Philippine Supreme Court Jurisprudence

Philippine Supreme Court Jurisprudence > Year 2020 > August 2020 Decisions > G.R. No. 248567 - ERWIN TORRES Y CASTILLO, Petitioner, v. AAA, RESPONDENT.:

Before this Court is a Petition for Review on Certiorari² under Rule 45 of the Rules of Court, assailing the Decision³ dated March 7, 2019 and the Resolution⁴ dated July 24, 2019 of the Court of Appeals (CA) in CA-G.R. SP No. 156429, which annulled and set aside the judgment of acquittal rendered by the Regional Trial Court (RTC) of Quezon City, Branch 107, and instead pronounced Erwin Torres y Castillo (Torres) guilty beyond reasonable doubt of violation of Section 5(b) of Republic Act No. (R.A.) 7610, otherwise known as the "Special Protection of Children Against Abuse, Exploitation and Discrimination Act."

Facts of the Case

Torres was charged with violation of Section 5(b) of R.A. 7610 in an Information that reads:clubjuris

That on or about the 14^th day of October 2012, in Quezon City, Philippines, the abovenamed accused, with force and intimidation did then and there, willfully, unlawfully and feloniously commit an act of child abuse upon one AAA, 12 years old, a minor, by then and there embracing her, taking off her shirt and bra, pulling her shorts and panty, laying her down on top of him then touching her breasts, against her will and consent, which act debase, degrade or demeans the intrinsic worth of dignity of said AAA as a human being, to the damage and prejudice of AAA.

Contrary to law.⁵

On June 10, 2014, Torres pleaded not guilty to the offense charged.⁶ Thereafter, pretrial and trial ensued. The prosecution presented three witnesses namely: (1) AAA; (2) BBB,⁷ AAA's mother; and (3) Aida Maria H. Perez, a psychiatrist.⁸ The version of the prosecution is summarized as follows:

AAA was 12 years old who was born in 1999⁹ when the incident happened at their house located in Quezon City. Torres was AAA's stepfather being her mother's husband. On October 14, 2012 at around 12:00 p.m., Torres asked AAA to go to his room and give him a massage. AAA complied to Torres' request. When inside the room, Torres suddenly locked the door and turned off the lights. Torres asked AAA to take off her bra and shirt. He touched AAA's breasts and kissed her from her neck down to her breasts. AAA also claimed that Torres told her to, "hawakan ko po iyong titi niya para po lumabas iyong tamod niya," but AAA refused to do so. AAA averred that Torres only stopped mashing her breasts when he heard the gate being opened. He asked AAA to get out of the room. AAA informed her grandmother about what happened.¹⁰

AAA also narrated that Torres has been molesting her since 2011 by pressing his penis against her butt whenever he would chance upon her standing in front of the kitchen sink and washing the dishes.¹¹ BBB on the other hand testified that she evicted Torres from their house when she found out about the incidents. She claimed that Torres sent her text messages asking for their forgiveness.¹²

The defense presented Torres as its sole witness who denied the accusations of AAA. According to Torres, on October 14, 2012, he was at the house with AAA and the other members of the family. They were busy preparing the house for the birthday after-party of Andrea's two-year old half sibling. At 2:00 p.m. of the same day, they left the house for Andrea's two�-year old half sibling's 3:00 p.m. party at Max's restaurant. Torres added that he never asked AAA for a massage and that AAA is against his marriage to BBB.¹³clubjuris

Ruling of the Regional Trial Court

In its Decision¹⁴ dated April 17, 2018, the RTC of Quezon City, Branch 107, acquitted Torres for failure of the prosecution to prove his guilt beyond reasonable doubt.¹⁵

The RTC was not convinced of the veracity of the testimony of AAA and held that her statements fell short of the quantum of evidence required in the prosecution of criminal cases. The RTC noted that AAA's testimony is replete with inconsistencies and lacks specific details on how the acts of sexual abuse was committed by Torres. The RTC, likewise, found conflicting statements between AAA's affidavit and her direct testimony in court.¹⁶

The RTC also held that the elements of coercion or influence must be proved in the commission of violation of Section 5(b) of R.A. 7610 when the victim is a minor not exploited in prostitution. However, in this case, there was no allegation much less proof of coercion or influence.¹⁷

Aggrieved of the acquittal of Torres, AAA filed a Petition for Certiorari¹⁸ under Rule 65 to the CA.

Ruling of the Court of Appeals

On March 7, 2019, the CA rendered a Decision¹⁹ annulling the ruling of the RTC. The CA found Torres guilty beyond reasonable doubt of lascivious conduct under Section 5 (b) of R.A. 7610; sentenced him to suffer the penalty of reclusion perpetua without eligibility for parole; and ordered him to pay fine in the amount of P15,000.00, as well as moral damages and exemplary damages amounting to P75,000.00 each.²⁰

According to the CA, the prosecution proved all the elements of violation of Section 5(b) of R.A. 7610. Tones committed lascivious conduct when he grabbed and mashed AAA's breasts.²¹ The CA found that being AAA's stepfather, Tones exercises moral ascendancy over the former. AAA was only 12 years old at the time the incidents occurred.²²

Contrary to the ruling of the RTC, the CA held that there were no inconsistencies between the affidavit of AAA and her direct testimony in court. The CA faulted the RTC for not considering the complete affidavit of AAA in ruling for the acquittal of Torres.²³

Torres filed a motion for reconsideration,²⁴ which was denied in a Resolution²⁵ dated July 24, 2019. Hence, Torres filed a Petition for Review on Certiorari²⁶ under Rule 45 of the Rules of Court.

The main argument of Torres in his petition is that the CA erred in convicting him for lascivious conduct under Section 5(b) of R.A. 7610 because this violates his constitutional right against double jeopardy after having been earlier acquitted by the RTC.²⁷

In her Comment, AAA stresses that the RTC committed grave abuse of discretion in acquitting Torres and in ruling that the affidavit of AAA was inconsistent with her direct testimony because the records of the case belie such a conclusion.²⁸clubjuris

Issue

The issue in this case is whether the CA violated Torres' right against double jeopardy when it convicted him for lascivious conduct under Section 5(b) of R.A. 7610 even if he was previously acquitted by the RTC.

Ruling of the Court

The petition is meritorious.

A judgment of acquittal, whether ordered by the trial or the appellate court, is final, unappealable, and immediately executory upon its promulgation.²⁹ This iron clad rule has only one exception: grave abuse of discretion that is strictly limited whenever there is a violation of the prosecution's right to due process such as when it is denied the opportunity to present evidence or where the trial is sham or when there is a mistrial, rendering the judgment of acquittal void.³⁰

An example of an exception to the finality-of-acquittal rule is the case of Galman v. Sandiganbayan³¹ where the Court remanded the case to the trial court because the previous trial conducted was a mockery. The unique facts surrounding the Galman case constitute the very narrow exception to the application of the right against double jeopardy. Hence, in order for the CA to take cognizance of the certiorari petition, AAA and the prosecution must have clearly demonstrated that the RTC blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.³²

Here, in setting aside Torres' acquittal, the CA reviewed the evidence presented by the parties before the RTC. The CA held that the RTC mistakenly ruled that there were inconsistencies between the affidavit and direct testimony of AAA. In other words, the CA concluded that the RTC erred in acquitting Torres because of misappreciation of evidence. It is a settled rule that misappreciation of the evidence is a mere error of judgment that does not qualify as an exception to the finality-of-acquittal doctrine. An error of judgment is not correctible by a writ of certiorari.³³

In this case, the petition of AAA before the CA is bereft of any allegation, much less, evidence that the prosecution's right to due process was violated or that the proceedings before the RTC were a mockery such that Torres' acquittal was a foregone conclusion.³⁴ It is immaterial whether the RTC was correct in its assessment of the evidence leading to the acquittal of Torres. The fact remains that Torres' right against double jeopardy already attached when the RTC acquitted him. Hence, no amount of error of judgment will ripen into an error of jurisdiction that would have allowed the CA to review the same through a petition for certiorari.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The Decision dated March 7, 2019 and the Resolution dated July 24,2019 of the Court of Appeals in CA-G.R. SP No. 156429, finding Erwin Torres y Castillo guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of Republic Act No. 7610 are hereby declared NULL and VOID for violation of his constitutional right against double jeopardy.

SO ORDERED.

Peralta, C.J., Zalameda, and Gaerlan, JJ., concur.clubjuris
Caguioa, J., See Separate Concurring Opinion.

Endnotes:

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¹ Pursuant to Republic Act No. 7610 or "An Act Providing for Stronger Deterrence and Special Protection against Child Abuse, Exploitation and Discrimination, and for Other Purposes"; Republic Act No. 9262 or "An Act Defining Violence against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefore, and for Other Purposes"; Section 40 of A.M. No. 04-10-11-SC, or the "Rule on Violence against Women and Their Children," effective November 15, 2004; and People v. Cabalquinto, G533 Phil. 703 (2006), the real name of the child victim is withheld and, instead, fictitious initials are used to represent her. The personal circumstances of the victim or any other information tending to establish or compromise her identity, as well as those of her immediate family or household members, are also concealed in accordance with People v. CCC, G.R. No. 220492, July 11, 2018.
�
²Rollo, pp. 30-100.

³ Penned by Associate Justice Jane Aurora C. Lantion, with the concurrence of Associate Justices Maria Elisa Sempio Diy and Marie Christine Azcarraga-Jacob; id. at 10-25.

⁴ Id. at 26-28.

⁵ Id. at 123.

⁶ Id. at 11.

⁷ Supra note 1.

⁸Rollo, p. 126.

⁹ CA rollo, p. 51.

¹⁰Rollo, pp. 11-12.

¹¹ Id. at 12.

¹² Id. at 12-13.

¹³ Id. at 13.

¹⁴ Penned by Judge Jose L. Bautista; id. at pp. 125-131.

¹⁵ Id. at 131.

¹⁶ Id. at 126.

¹⁷ Id. at 129-130.

¹⁸ Id. at 132-139.

¹⁹ Supra note 3.

²⁰Rollo, p. 24.

²¹ Id. at 18.

²² Id. at 19.

²³ Id. at 21.

²⁴ Id. at 210-282.

²⁵ Id. at 26-28.

²⁶ Id. at 30-100.

²⁷ Id. at 77.

²⁸ Additional rollo, p. 8.

²⁹Chiok v. People, 774 Phil. 230, 248 (2015).

³⁰People v. Arcega, G.R. No. 237489, August 27, 2020.

³¹ 228 Phil. 42 (1986).

³²People v. Court of Appeals, 691 Phil. 783, 788 (2012).

³³ Id. at 787.

³⁴ Id.

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CAGUIOA, J.:

Petitioner was charged with violation of Section 5(b) of Republic Act No. (R.A.) 7610 for allegedly sexually abusing AAA, his 12-year-old stepdaughter. The trial court acquitted petitioner for failure of the prosecution to prove his guilt beyond reasonable doubt. AAA filed a Petition for Certiorari under Rule 65 to the Court of Appeals (CA). The CA annulled the ruling of the trial court and found petitioner guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of R.A. 7610. In convicting petitioner, the CA faulted the trial court for failing to appreciate AAA's entire affidavit and for finding inconsistencies in her testimonies.

Hence, the present petition for review on certiorari which argues that petitioner's right against double jeopardy was violated.

The ponencia grants the petition, ruling that the certiorari petition of AAA filed before the CA neither alleged, much less proved, that it falls under the limited exceptions to the finality-of-acquittal rule; hence, the CA's decision granting the same and finding petitioner guilty of the crime charged was void for violation of his right against double jeopardy.²

I concur with the granting of the petition. The acquittal by the trial court of petitioner for the crime charged may not be assailed without violating his Constitutional right against double jeopardy. I submit this Concurring Opinion 1) to add that AAA had no legal personality to question the acquittal of petitioner before the CA, and 2) to stress that the remedy of certiorari under Rule 65 of the Rules of Court in judgments of acquittal is a very narrow exception which does not arise in the present case.

First, only the Office of the Solicitor General (OSG), on behalf of the State, and not the private offended party, has the authority to question the acquittal of an accused in a criminal case. Therefore, AAA had no legal personality to file the petition for certiorari with the CA.

The Court has definitively ruled that in criminal cases, the acquittal of the accused or the dismissal of the case against him can be appealed� whenever legally possible-only by the OSG, acting on behalf of the State.³The private complainant or the offended party may question such acquittal or dismissal only insofar as the civil liability of the accused is concerned.⁴ The Court explained this in Villareal v. Aliga:⁵

x x x The authority to represent the State in appeals of criminal cases before the Supreme Court and the CA is solely vested in the [OSG]. Section 35 (I), Chapter 12, Title III, Book IV of the 1987 Administrative Code explicitly provides that the OSG shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. It shall have specific powers and functions to represent the Government and its officers in the Supreme Court and the CA, and all other courts or tribunals in all civil actions and special proceedings in which the government or any officer thereof in his official capacity is a party. The OSG is the law office of the Government.

x x x x

Thus, the Court has definitively ruled that in a criminal case in which the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability arising therefrom. If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal of the criminal aspect may be undertaken, whenever legally feasible, only by the State through the Solicitor General. As a rule, only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not undertake such appeal.⁶

The rationale behind this rule is that in criminal cases, the State is the offended party.⁷ It is the party affected by the dismissal of the criminal action, and not the private complainant.⁸ Thus, in the prosecution of the offense, the complainant's role is limited to that of a witness for the prosecution.⁹ If a criminal case is dismissed by the trial court or if there is an acquittal, only the State, through the Solicitor General, may appeal the criminal aspect thereof and the offended party's right is limited to questioning only its civil aspect.¹⁰

From the narration of facts in the ponencia, AAA filed the petition for certiorari before the CA questioning the acquittal of the petitioner, without the participation of the OSG. Hence, it was incumbent upon the CA to dismiss the petition as AAA did not have the requisite legal standing to institute the same.

Second, the remedy of a petition for certiorari against the acquittal of an accused is a very limited exception to the finality-of-acquittal rule, and one which does not arise in the present case, as found by the ponencia.

The 1987 Constitution, as well as its predecessors, guarantees the right of the accused against double jeopardy.¹¹ To give life to this guarantee, our rules on criminal proceedings require that a judgment of acquittal, whether ordered by the trial or the appellate court, is final, unappealable, and immediately executory upon its promulgation.¹² This is referred to as the finality-of-acquittal rule.¹³ The rationale for this rule is elucidated in the oft�-cited People v. Velasco,¹⁴ thus:clubjuris

x x x The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the humanity of the laws and in a jealous watchfulness over the right of the citizen, when brought in unequal contest with the State. [x x x] Thus, Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty."

It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful [conviction]." The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose," a desire to know the exact extent of one's liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jury's leniency, will not be found guilty in a subsequent proceeding.

Related to his right of repose is the defendant's interest in his right to have his trial completed by a particular tribunal. This interest encompasses his right to have his guilt or innocence determined in a single proceeding by the initial jury empanelled to try him, for society's awareness of the heavy personal strain which the criminal trial represents for the individual defendant is manifested in the willingness to limit Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. The ultimate goal is prevention of government oppression; the goal finds its voice in the finality of the initial [proceeding]. As observed in Lockhart v. Nelson, "(t)he fundamental tenet animating the Double Jeopardy Clause is that the State should not be able to oppress individuals through the abuse of the criminal process." Because the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.¹⁵

In People v. Court of Appeals,¹⁶ the Court recapitulated the purposes of the rule, thus:clubjuris

The finality-of-acquittal doctrine has several avowed purposes. Primarily, it prevents the State from using its criminal processes as an instrument of harassment to wear out the accused by a multitude of cases with accumulated trials. It also serves the additional purpose of precluding the State, following an acquittal, from successively retrying the defendant in the hope of securing a conviction. And finally, it prevents the State, following conviction, from retrying the defendant again in the hope of securing a greater penalty.¹⁷

The rule is iron-clad, the exception of grave abuse of discretion being strictly limited to a situation where there is a violation of the prosecution's right to due process, when it is denied the opportunity to present evidence or where the trial is a sham, thus rendering the assailed judgment void.¹⁸

The case of Galman v. Sandiganbayan¹⁹ (Galman) presents the foremost example of the exception to the rule on double jeopardy. In Galman, the judgment of acquittal was remanded to the trial court after the Court found that the trial conducted was a mockery-a sham. The Court found that the then President had stage-managed in and from Malaca�ang Palace a scripted and predetermined manner of handling and disposing of the case, and that the prosecution and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidence which it could have otherwise presented, but also predetermined the final outcome of the case of total absolution of all the accused of all criminal and civil liability.^20]

Due to the influence that the Executive exerted over the independence of the court trying the case, the Court ruled that the decision acquitting the accused issued in that case was in violation of the prosecution's right to due process. The factors the Court considered in making this exception were (1) suppression of evidence, (2) harassment of witnesses, (3) deviation from the regular raffle procedure in the assignment of the case, (4) close monitoring and supervision of the Executive and its officials over the case, and (5) secret meetings held between and among the President, the Presiding Justice of the Sandiganbayan, and the Tanodbayan. From the foregoing, the Court saw the trial as a sham.

Thus, the Court ruled in Galman that the right against double jeopardy, absolute as it is, may be invoked only when there was a valid judgment terminating the first jeopardy. The Court explained that no right attaches from a void judgment, and hence the right against double jeopardy may not be invoked when the decision that "terminated" the first jeopardy was invalid and issued without jurisdiction.²¹

The unique facts surrounding Galman-and other similar scenarios where the denial of due process on the part of the prosecution was so gross and palpable-is the limited area where an acquittal may be revisited through a petition for certiorari.²²

Verily, this means that not every error in the trial or evaluation of the evidence by the court in question that led to the acquittal of the accused would be reviewable by certiorari. As the Court ruled in Republic v. Ang Cho Kio,²³ "[n]o error, however, flagrant, committed by the court against the state, can be reserved by it for decision by the [S]upreme [C]ourt when the defendant has once been placed in jeopardy and discharged, even though the discharge was the result of the error committed."²⁴

Applying the foregoing to the case on hand, the CA, in annulling the trial court's decision acquitting petitioner, determined that the trial court committed grave abuse of discretion-the grave abuse of discretion merely in finding inconsistencies in the testimonies of AAA and for failing to consider AAA's complete affidavit.²⁵ This is not the grave abuse of discretion that is an exception to the rule against double jeopardy. This falls far short of the strict and narrow standard set by law for review of acquittals in criminal cases. Thus, even assuming that the trial court incorrectly appreciated the evidence before it, it thereby only committed an error of judgment, and not one of jurisdiction, which could not be rectified by a petition for certiorari because double jeopardy had already set in when the trial court acquitted petitioner. As discussed, it is only when the case falls within the narrow confines of jurisprudential exception-like in Galman where the State was deprived of its day in court-that a decision acquitting the accused may be revisited.

Thus, in light of the foregoing considerations, I vote to GRANT the petition.

Endnotes:

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¹ The identity of the victims or any information which could establish or compromise their identities, as well as those of their immediate family or household members, shall be withheld pursuant to R.A. 7610, titled "AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER PURPOSES," approved on June 17, 1992; R.A. 9262, titled "AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER PURPOSES," approved on March 8, 2004; and Section 40 of A.M. No. 04-10-11-SC, otherwise known as the "Rule on Violence against Women and Their Children" (November 15, 2004). (See footnote 4 in People v. Cadano, Jr., 729 Phil. 576, 578 (2014), citing People v. Lomaque, 710 Phil. 338, 342 (2013). See also Amended Administrative Circular No. 83-2015, titled "PROTOCOLS AND PROCEDURES IN THE PROMULGATION, PUBLICATION, AND POSTING ON THE WEBSITES OF DECISIONS, FINAL RESOLUTIONS, AND FINAL ORDERS USING FICTITIOUS NAMES/PERSONAL CIRCUMSTANCES," dated September 5, 2017; and People v. XXX and YYY, G.R. No. 235652, July 9, 2018.)

²Ponencia, p. 5.
�
³Bangayan Jr. v. Bangayan, G.R. No. 172777, October 19, 2011, 659 SCRA 590, 597.

⁴ Id.

⁵ G.R. No. 166995, January 13, 2014, 713 SCRA 52.

⁶ Id. at 64-66 citing Bautista v. Cuneta-Pangilinan, G.R. No. 189754, October 24, 2012, 683 SCRA 521. Emphasis supplied.

⁷Cu v. Ventura, G.R. No. 224567, September 26, 2018, 881 SCRA 118, 131-132.

⁸Chiok v. People, G.R. Nos. 179814 & 180021, December 7, 2015, 776 SCRA 120, 135.

⁹People v. Santiago, 225 Phil. 851, 861-862 (1989).

¹⁰ Id.

¹¹ Article III, Section 21, 1987 CONSTITUTION provides:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Also see Article IV, Section 22, 1973 CONSTITUTION; Article III, Section 1 (20), 1935 CONSTITUTION.

¹²Chiok v. People, supra note 8 at 137.

¹³ Id.

¹⁴ G.R. No. 127444, September 13, 2000, 340 SCRA 207.

¹⁵ Id. at 240-241. Emphasis and underscoring supplied.

¹⁶ G.R. No. 159261, February 21, 2007, 516 SCRA 383.

¹⁷ Id. at 397. Emphasis supplied.

¹⁸Philippine Savings Bank v. Bermoy, G.R. No. 151912, September 26, 2005, 471 SCRA 94, 109, citing People v. Sandiganbayan, G.R. No. 140633, February 4, 2002, 376 SCRA 74, 78-79.

¹⁹ G.R. No. L-72670, September 12, 1986, 144 SCRA 43.

²⁰ Id. at 70.

²¹ Id. at 87.

²² See People v. Tria-Tirona, G.R. No. 130106, July 15, 2005, 463 SCRA 462, 469, wherein the Court ruled that "a judgment of acquittal brought before the Supreme Court on certiorari cannot be had unless there is a finding of mistrial, as in Galman v. Sandiganbayan." See also People v. Court of Appeals, G.R. No. 183652, February 25, 2015, 751 SCRA 675, 697, wherein the Court held that for "[a]n acquittal is considered tainted with grave abuse of discretion when it is shown that the prosecution's right to due process was violated or that the trial conducted was a sham."

²³ G.R. Nos. L-6687 & L-6688, July 29, 1954, 95 Phil. 475.

²⁴ Id. at 480. Emphasis and underscoring supplied.

²⁵Ponencia, pp. 5.