680

SUPREME COURT REPORTS ANNOTATED

Sayson vs. People
No. L-51745. October 28, 1988.*
RAMON

F.

SAYSON,

petitioner,

vs.

PEOPLE

OF THE

PHILIPPINES and the HON. COURT OF APPEALS, respondents.

Estafa

through

Falsification

of

Commercial

Document;

Constitutional Law; Due Process; Waiver of Rights of the Accused;

Case at bar.The right to be heard by himself and counsel is one of
the constitutional rights of the accused. But while the accused has
the right to be heard by himself and counsel and to present evidence
for his defense by direct constitutional grant, such right is not
exempt from the rule on waiver as long as the waiver is not contrary
to law, public order, public policy, morals or good customs or
prejudicial to a third person with a right recognized by law [Article
6, Civil Code.] There is nothing in the Constitution nor in any law
prohibiting such waiver. Accordingly, denial of due process cannot
be successfully invoked where a valid waiver of rights has been
made, as in this case. Petitioner claims though that he was not
waiving such right; on the contrary, he was vigorously asserting his
right to be heard by counsel and to present evidence in his verbal
motion for postponement due to absence of his counsel de parte. He

thus assails the denial of his motion as it in effect deprived him of

his day in court.
Same; Same; Same; Postponements; Abuse of Discretion; No abuse
of discretion in denying the petitioners motion for postpone-ment;
Reasons.No grave abuse of discretion in denying the petitioners
motion for postponement can be imputed to the trial court. First, the
petitioners motion was not seasonably filed as the three-day notice
required by the rules (Rule 15, Section 4 of the Revised Rules of
Court) was not complied with. Moreover, it was not accompanied by
an affidavit nor a medical certificate to support the alleged illness of
counsel, contrary to what Rule 22, Section 5 of the Revised
_______________
* THIRD DIVISION.
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VOL. 166, OCTOBER 28, 1988
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Sayson vs. People
Rules of Court mandates: Sec. 5. Requisites of motion to postpone
trial for illness of party or counsel.A motion to postpone trial on
the ground of illness of a party or counsel may be granted if it

appears upon affidavit that the presence of such party or counsel at

the trial is indispensable and that the character of his illness is such
as to render his non-attendance excusable.
Same; Same; Same; Same; Two circumstances that should be taken
into account in granting a motion for postponement.Finally, the
motion for postponement was properly denied inasmuch as the
defendant failed to present any meritorious defense. This Courts
pronouncement.that in incidents of this nature before the trial
court, two circumstances should be taken into account, namely, 1)
the reasonableness of the postponement and 2) the merits of the case
of the movantshould not be lightly ignored [Udan v. Amon, G.R.
No. L-24288, May 28, 1968, 23 SCRA 837.] There may be an
accident, surprise or excusable neglect justifying postponement or
reconsideration but if the movant does not present a meritorious
claim or defense, denial of his motion for postponement may not be
considered as an abuse of the discretion of the court [De Cases v.
Peyer, G.R. No. L-18564, August 31, 1962, 5 SCRA 1165.]
Same; Same; Same; Same; Courts; Petitioners plea that it was
incumbent upon the trial judge to appoint a counsel de oficio for him
when he appeared without his counsel, utterly without merit;
Reasons.The Court finds the petitioners plea that it was
incumbent upon the trial judge to appoint a counsel de oficio for him

when he appeared without his counsel utterly without legal basis.

The duty of the court to appoint a counsel de oficio when the
accused has no counsel of choice and desires to employ the services
of one is mandatory only at the time of arraignment [Rule 116,
Section 6, Revised Rules of Court.] This is no longer so where the
accused has proceeded with the arraignment and the trial with a
counsel of his choice but when the time for the presentation of the
evidence for the defense has arrived, he appears by himself alone
and the absence of his counsel was inexcusable. This Courts holding
in a previous case that there is no deprivation of the right to counsel
in such a case is squarely applicable: As the appellant was
represented by counsel of his choice at the arraignment, trial and in
the incidental motions to dismiss and to postpone the resumption of
the trial of the case, the trial court was not in duty bound to appoint a
counsel de oficio to assist him in his defense. His failure to appear
with counsel of his choice at the hearing of the case, notwithstanding
repeated postponements and warnings that failure to so appear would
be deemed a waiver on the
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SUPREME COURT REPORTS ANNOTATED

Sayson vs. People

part of the appellant to present his evidence and the case would be
deemed submitted for decision upon the evidence presented by the
prosecution, was sufficient legal justification for the trial court to
proceed and render judgment upon the evidence before it. Taking
into consideration all the steps taken by the trial court to safeguard
the rights of the appellant, the latter cannot pretend that he was
deprived of his right to be assisted by counsel and to present
evidence in his behalf. Moreover, the repeated failure of the
appellant to appear with counsel at the resumptions of the trial of the
case may be taken as a deliberate attempt on his part to delay the
proceedings. [People v. Angco, 103 Phil. 33, 39 (1958).]
Same; Same; Same; Same; Criminal Procedure; In case of offense
against property, the designation of the name of the offended party is
not absolutely indispensable; Case at bar.The petitioner vigorously
maintains that he cannot be justifiably convicted under the
information charging him of attempting to defraud Ernesto Rufino,
Sr. and/ or Bank of America because the totality of the evidence
presented by the prosecution show very clearly that the accused
allegedly attempted to defraud Mever Films, Inc., a corporate entity
entirely separate and distinct from Ernesto Rufino, Sr. He firmly
asserts that his conviction was in gross violation of his right to be

informed of the nature and cause of the accusation against him.

Petitioners claim is unavailing. The rule in this jurisdiction is that
variance between the allegations of the information and the
evidence offered by the prosecution in support thereof does not of
itself entitle the accused to an acquittal. [People v. Catli, G.R. No.
L-11641, November 29, 1962, 6 SCRA 642.] The rules on criminal
procedure require the complaint or information to state the name and
surname of the person against whom or against whose property the
offense was committed or any appellation or nickname by which
such person has been or is known and if there is no better way of
identifying him, he must be described under a fictitious name [Rule
110, Section 11, Revised Rules of Court; now Rule 110, Section 12
of the 1985 Rules on Criminal Procedure.] In case of offenses
against property, the designation of the name of the offended party is
not absolutely indispensable for as long as the criminal act charged
in the complaint or information can be properly identified. Thus,
Rule 110, Section 11 of the Rules of Court provides that: Section 11.
Name of the offended party.(a) In cases of offenses against
property, if the name of the offended party is unknown, the property,
subject matter of the offense, must be described with such
particularity as to properly identify the particular offense charged.
(b) If in the course of the trial, the true name of the person against

whom or against whose property the offense was committed is

disclosed or
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VOL. 166, OCTOBER 28, 1988
683
Sayson vs. People
ascertained, the court must cause the true name to be inserted in the
complaint or information or record.
Same; Same; Same; Same; Same; When an offense shall have been
described in the complaint with sufficient certainty as to identify the
act, an erroneous allegation as to the person injured shall be deemed
immaterial; Case at bar.In U.S. v. Kepner, [1 Phil. 519 (1902)],
this Court laid down the rule that when an offense shall have been
described in the complaint with sufficient certainty as to identify the
act, an erroneous allegation as to the person injured shall be deemed
immaterial as the same is a mere formal defect which did not tend to
prejudice any substantial right of the defendant. Accordingly, in the
aforementioned case, which had a factual backdrop similar to the
instant case, where the defendant was charged with estafa for the
misappropriation of the proceeds of a warrant which he had cashed
without authority, the erroneous allegation in the complaint to the

effect that the unlawful act was to the prejudice of the owner of the
cheque, when in reality the bank which cashed it was the one which
suffered a loss, was held to be immaterial on the ground that the
subject matter of the estafa, the warrant, was described in the
complaint with such particularity as to properly identify the
particular offense charged. In the instant suit for estafa which is a
crime against property under the Revised Penal Code, since the
check, which was the subject-matter of the offense, was described
with such particularity as to properly identify the offense charged, it
becomes immaterial, for purposes of convicting the accused that it
was established during the trial that the offended party was actually
Mever Films and not Ernesto Rufino, Sr. nor Bank of America as
alleged in the information.
PETITION for certiorari to review the decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Federico P. Roy for petitioner.
The Solicitor General for respondents.
CORTS, J.:
Petitioner seeks the reversal of the Court of Appeals decision finding

him guilty of attempted estafa.

On March 25, 1972, an information for the crime of Estafa through
Falsification of a Commercial Document was filed against the herein
petitioner, Ramon F. Sayson, before the
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SUPREME COURT REPORTS ANNOTATED
Sayson vs. People
Court of First Instance of Manila, the pertinent portion of which
reads:
. . . the said accused having come in possession of a blank US dollar
check #605908142, with intent to defraud Ernesto Rufino, Sr. and/or
Bank of America, did then and there wilfully, unlawfully and
feloniously forge and falsify or cause to be forged and falsified the
said check, by then and there writing or filling or causing to be
written or filled up the following words and figures: March 10,
1972, Atty. Norberto S. Perez, 2,250.00 and forging the
signature of the Asst. Cashier, Manager of the Bank of America,
Dania Branch, making it appear, as it did appear, that the said check
was duly issued by the Bank of America, when in truth and in fact,
as the accused well knew, the said check was never issued nor

authorized by the said bank; that thereafter, said accused wrote or

affixed; the signature Norberto Perez on the back of said check as
indorser: that once the said check had been forged and falsified in
the manner above described, the said accused by means of false
manifestations and fraudulent representations which he made to
Ernesto Rufino, Sr. that he is Atty. Norberto Perez who is the
payee of the said Check, and by means of other similar deceits,
induced and succeeded in inducing the said Ernesto Rufino, Sr. to
change said dollar check, as in fact, said Ernesto Rufino, Sr. issued
Manufacturers Bank Check No. 87586 dated March 22, 1972
payable to Norberto Perez in the amount of P14,850.00 in
exchange for said dollar check; . . . [Rollo, pp. 23-24.]
Arraigned on December 8, 1972, petitioner pleaded not guilty. On
October 9, 1974, after several postponements, the prosecution rested
its case. At the hearing of December 9, 1974, when the defense was
scheduled to present its evidence, only the petitioner appeared. He
said that his counsel had another case in a different court. In the
morning of the said day, his lawyer also sent a telegram to the court
requesting cancellation of the hearing because he was sick. The court
denied the motion for postponement and the case was considered
submitted for decision without petitioners evidence.
The trial court rendered judgment on January 30, 1975, finding the

accused guilty of the crime charged and sentencing him to an

indeterminate penalty of 2 years, 4 months and 1 day to 6 years of
prision correctional, to pay a fine of P2,000.00, with subsidiary
imprisonment and to pay the costs. The Court
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VOL. 166, OCTOBER 28, 1988
685
Sayson vs. People
of Appeals affirmed but modified the penalty by imposing six
months of arresto mayor and eliminating the fine. Hence, this
petition for review on certiorari.
The background facts as found by the appellate court as well as its
conclusions thereon follow:
On March 22, 1972, appellant Ramon Sayson y Fernandez was
introduced by Vicente Jaucian, a former employee of the Luzon
Theatres, Inc. to Anselmo Aquilmg, private secretary to Ernesto
Rufino, Sr., General Manager of the corporation Vicente Jaucian had
known appellant as Fiscal Perez who wanted to exchange dollars
for pesos, having been introduced to him in that capacity by his
(Jaucians) cousin Thinking that Rufino might be interested in
dollars, Jaucian accompanied appellant to the offices of the Luzon

Theatres, Inc. and Mever Films, Inc. at the Avenue Hotel on Rizal
Avenue, Manila Upon being introduced to Anselmo Aquiling,
appellant showed the latter an identification card indicating that he
was Norberto S. Perez, a Prosecuting Attorney from Angeles City
After making the introduction, Jaucian left Mr. Rufino said that he
was not personally interested in dollars but suggested to his secretary
to inquire if Mever Films, Inc. needed dollars.
Mr. Rufino was also Chairman of the Board of the aforesaid
corporation; and when told that Mever Films needed dollars, he
authorized the transaction. Appellant then presented to Edgar
Mangona, the assistant accountant of Mever Films, a Bank of
America check in the amount of $2,250,00 payable to the order of
Atty. Norberto S. Perez, a xerox copy of which was introduced in
evidence as Exhibit E. Actually, Exhibit E appears to be a bill of
exchange or draft drawn by the Dania, Florida Branch of the Bank of
America on its San Francisco Branch in favor of said payee and
bears serial number 605908142. Edgar Mangona prepared a check of
the Manufacturers Bank and Trust Company in the amount of
P14,850.00 at the exchange rate of P6.60 to a dollar (Exh. B). He
then walked over to the office of Mrs Teresita Rufino Litton whom
he asked to sign the check, and thereafter Mangona asked Mr Rufino
to countersign it. Finally, the check was exchanged with appellants

Bank of America draft and the latter signed the voucher for the peso
check.
On the same day, March 22, 1972, appellant repaired to the Tayuman
Branch of the Banco Filipino and informed its Branch Manager,
Mrs. Maria Fe Relova that he wanted to open a savings account. He
was given an application form which he filled up with the name
Norberto S. Perez as the applicant, among other things. Appellant
then presented the Manufacturers Bank check Exhibit B, pay686
686
SUPREME COURT REPORTS ANNOTATED
Sayson vs. People
able to the order of Norberto S. Perez, and after endorsing the same,
it was posted in the passbook issued to him. Unknown to appellant,
however, Mrs. Relova, an astute woman had been suspicious of the
formers actuations. So that after he left, she called up the office of
the PLDT and inquired if the telephone number which appellant had
unsolicitedly given her was listed in Perez name. She was told that
the number referred to had not yet been issued by PLDT. She then
telephoned the office of Mever Films, Inc., the drawer of the check,
and inquired if the check was in fact issued by it and she was

answered in the affirmative. Despite this assurance, she tested her

suspicions further by sending out a bank employee to deliver a
brochure to the address given by appellant and the messenger
returned without locating the place.
Within a short time, the officials of the Mever Films, Inc. became
doubtful of the genuineness of the Bank of America draft. And on
March 24, 1972, two days after the issuance of the Manufacturers
Bank check and one day after the check was cleared with the Central
Bank, Mever Films which was convinced that the draft was spurious
ordered its payment stopped (Exhibit D). On the same day, Vicente
Jaucian who had introduced appellant to Anselmo Aquiling and the
latter himself went to the office of the National Bureau of
Investigation (NBI) and there gave written statements on what they
knew about appellant (Exhibits F and G). Also on the same day, the
Assistant Manager of the Bank of America, Manila Branch, who
must have been informed of the transaction involving the draft,
addressed a letter to the NBI authorities (Exh. B) which reads:
Gentlemen:
This is to certify that U.S. Dollar draft No. 605908142 drawn on the
Bank of America NT & SA, San Francisco, in favor of Atty.
Norberto S. Perez for $2,250.00 and dated March 10, 1972, is one of
the blank drafts surreptitiously taken from a shipment sent to us by

our San Francisco Headquarters sometime in the latter part of 1970.

Issuance of the above-mentioned draft was not authorized by this
bank.
Jose R. Lopez, the abovementioned assistant manager who issued
the aforestated certification, testified that the draft in question was
one of the 900 blank drafts which were missing from a shipment
received from their head office in the United States sometime in
1971. He declared that the words Dania Branch and Dania,
Florida appearing on the face of the draft were superimposed so as
to make it appear that the draft was drawn by the Dania, Florida
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VOL. 166, OCTOBER 28, 1988
687
Sayson vs. People
Branch of the Bank of America on the San Francisco Branch, when
in fact the blank draft was for the exclusive use of the Manila
Branch-as revealed by the first four code figures of the drafts serial
number.
We are satisfied with Lopez testimony that the draft in question was
a forgery. Since the same was a blank draft appertaining to the
Manila Branch of the Bank of America, of which he was the

Assistant Manager, Lopez was competent to state whether or not the

draft was a forgery. And the fact that appellant had openly and
falsely represented himself to be Atty. Norberto S. Perez indicated in
the forged draft as the payee, is a strong circumstantial evidence that
he was instrumental in its forgery. [Rollo, p. 25-30.]
xxx
The appellant has raised the issue of due process, alleging denial of
his right to be heard and to present evidence. This requires inquiry
into the extent of the rights accorded an accused in a criminal case
and whether the accused-appellant has been denied the rights to
which he is entitled.
The right to be heard by himself and counsel is one of the
constitutional rights of the accused. But while the accused has the
right to be heard by himself and counsel and to present evidence for
his defense by direct constitutional grant, such right is not exempt
from the rule on waiver as long as the waiver is not contrary to law,
public order, public policy, morals or good customs or prejudicial to
a third person with a right recognized by law [Article 6, Civil Code.]
There is nothing in the Constitution nor in any law prohibiting such
waiver. Accordingly, denial of due process cannot be successfully
invoked where a valid waiver of rights has been made, as in this
case.

Petitioner claims though that he was not waiving such right; on the
contrary, he was vigorously asserting his right to be heard by counsel
and to present evidence in his verbal motion for postponement due to
absence of his counsel de parte. He thus assails the denial of his
motion as it in effect deprived him of his day in court.
It is too well established to require citation of authorities that the
grant or refusal of an application for continuance or postponement of
the trial lies within the sound discretion of the court. Justice
Malcolm, in a 1919 decision, expounded on such judicial discretion
as follows:
688
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SUPREME COURT REPORTS ANNOTATED
Sayson vs. People
Applications for continuances are addressed to the sound discretion
of the court. In this respect, it may be said that the discretion which
the trial court exercises must be judicial and not arbitrary. It is the
guardian of the rights of the accused as well as those of the people at
large, and should not unduly force him to trial nor for light causes
jeopardize the rights and interests of the public. Where he conceives
it to be necessary for the more perfect attainment of justice, it has the

power upon the motion of either party to continue the case. But a
party charged with a crime has no natural or inalienable right to a
continuance.
The ruling of the court will not be disturbed on appeal in the absence
of a clear abuse of discretion. When the discretion of the court is
exercised with a reasonable degree of judicial acumen and fairness,
it is one which the higher court is loathe to review or disturb. The
trial judge must be to a certain extent free to secure speedy and
expeditious trials when such speed and expedition are not
inconsistent with fairness. Since the court trying the case is, from
personal observation, familiar with all the attendant circumstances,
and has the best opportunity of forming a correct opinion upon the
case presented, the presumption will be in favor of its action. It
would take an extreme case of abuse of discretion to make the action
of the trial court a denial of due process. (Italics supplied; U.S. v.
Ramirez, 39 Phil. 738 (1919).]
The factual background of the case penned by Justice Malcolm,
which was quoted with approval in the case of People v. Mendez
[G.R. No. L-27348, July 29, 1969, 28 SCRA 880], is very similar to
that of the case at bar. In the instant case, the information was filed
on March 25, 1972 and arraignment was held on December 8, 1973.
The prosecution started presenting its evidence on March 12, 1973

and after 1 year, 10 months and 1 day from the day of arraignment, it
rested its case. During this time, petitioner had already secured seven
postponements, which it admitted in its brief filed with the Court of
Appeals [Rollo, p. 20] thus prompting the trial judge to remark that
this is a notoriously postponed case and that the defense had
abused the rules [TSN, December 12, 1973, pp. 2-3.] Since the
judges comments were borne out by the record regarding the
postponements which were admitted by petitioner himself in his
brief filed before the Court of Appeals, petitioner cannot rightfully
cast aspersion on the integrity of said judge by attributing to him a
non-existent attitude of bias and hatred
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VOL. 166, OCTOBER 28, 1988
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Sayson vs. People
towards the petitioner-accused.
No grave abuse of discretion in denying the petitioners motion for
postponement can be imputed to the trial court. First, the petitioners
motion was not seasonably filed as the three-day notice required by
the rules (Rule 15, Section 4 of the Revised Rules of Court) was not
complied with. Moreover, it was not accompanied by an affidavit

nor a medical certificate to support the alleged illness of counsel,

contrary to what Rule 22, Section 5 of the Revised Rules of Court
mandates:
Sec. 5. Requisites of motion to postpone trial for illness of party or
counsel.A motion to postpone trial on the ground of illness of a
party or counsel may be grafted if it appears upon affidavit that the
presence of such party or counsel at the trial is indispensable and
that the character of his illness is such as to render his nonattendance excusable.
Besides, when petitioner himself sought postponement of the case
during the December 9 hearing, he claimed that his counsel had
another case in a different court. Certainly, the conflicting stories
advanced by petitioner and his counsel only indicate the lack of a
good cause for the postponement.
Petitioners lament that at least, in the name of justice and fair play,
the trial court should have warned accused that no further
postponements shall be entertained by the court [Rollo, p. 97] is
baseless. As he was aware that the case had already been postponed
seven times at his initiative, he had no right to assume that his
motion would be granted; rather, he should have foreseen that any
further motions for postponement might not be met with approval by
the trial court. Besides, the record of the case clearly shows that the

accused had repeatedly appeared in court without his counsel,

seeking postponements which were liberally granted by the court
with an order directing his counsel to show cause why he should not
be held in contempt for repeated failure to appear at the trial of the
case. In fact, the court, in its Order dated August 12, 1974,
categorically declared: In the meantime, let the trial of this case be
DEFINITELY POSTPONED FOR THE LAST TIME to August 14,
1974 at 8:30 a.m. as previously scheduled, with the warning to the
accused to be ready with his present counsel or another counsel on
said date as the court will not entertain any
690
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SUPREME COURT REPORTS ANNOTATED
Sayson vs. People
further delays in the proceedings in this case and shall proceed with
the trial of this case with or without his counsel. [Original Records,
p. 430.] This, certainly, was enough warning.
Finally, the motion for postponement was properly denied inasmuch
as the defendant failed to present any meritorious defense. This
Courts pronouncementthat in incidents of this nature before the
trial court, two circumstances should be taken into account, namely,

1) the reasonableness of the postponement and 2) the merits of the

case of the movantshould not be lightly ignored [Udan v. Amon,
G.R. No. L-24288, May 28, 1968, 23 SCRA 837.] There may be an
accident, surprise or excusable neglect justifying postponement or
reconsideration but if the movant does not present a meritorious
claim or defense, denial of his motion for postponement may not be
considered as an abuse of the discretion of the court [De Cases v.
Peyer, G.R. No. L-18564, August 31, 1962, 5 SCRA 1165.]
Absent any meritorious case in defendants favor, his motion for
postponement was properly denied. His invocation of his right to
counsel and to present evidence was an empty gesture revealing his
dilatory scheme. Under the circumstances, the petitioner must be
deemed to have waived his rights and to have been extended the
protection of due process.
Moreover, the petitioner in negotiating the check presented himself
as a lawyer; he was addressed in the Notice of the Order dated
September 11, 1972 as Atty. Ramon Sayson y Fernandez [Original
Records, p. 38] and he himself filed the Motion to Quash [Original
Records, p. 22] and a pleading captioned Compliance dated
December 2, 1972 [Original Records, p. 41.] These facts indicate
that he was capable of defending himself. That he himself was
allowed to file pleadings clearly negatives the alleged deprivation of

his right to due process of law. Consequently, there being no abuse

of discretion on the part of the trial court, its order will not be
disturbed.
The Court finds the petitioners plea that it was incumbent upon the
trial judge to appoint a counsel de oficio for him when he appeared
without his counsel utterly without legal basis, The duty of the court
to appoint a counsel de oficio when the accused has no counsel of
choice and desires to employ the services of one is mandatory only
at the time of arraignment
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VOL. 166, OCTOBER 28, 1988
691
Sayson vs. People
[Rule 116, Section 6, Revised Rules of Court.] This is no longer so
where the accused has proceeded with the arraignment and the trial
with a counsel of his choice but when the time for the presentation of
the evidence for the defense has arrived, he appears by himself alone
and the absence of his counsel was inexcusable. This Courts holding
in a previous case that there is no deprivation of the right to counsel
in such a case is squarely applicable:
As the appellant was represented by counsel of his choice at the

arraignment, trial and in the incidental motions to dismiss and to

postpone the resumption of the trial of the case, the trial court was
not in duty bound to appoint a counsel de oficio to assist him in his
defense. His failure to appear with counsel of his choice at the
hearing of the case, notwithstanding repeated postponements and
warnings that failure to so appear would be deemed a waiver on the
part of the appellant to present his evidence and the case would be
deemed submitted for decision upon the evidence presented by the
prosecution, was sufficient legal justification for the trial court to
proceed and render judgment upon the evidence before it. Taking
into consideration all the steps taken by the trial court to safeguard
the rights of the appellant, the latter cannot pretend that he was
deprived of his right to be assisted by counsel and to present
evidence in his behalf. Moreover, the repeated failure of the
appellant to appear with counsel at the resumptions of the trial of the
case may be taken as a deliberate attempt on his part to delay the
proceedings. [People vs. Angco, 103 Phil. 33, 39 (1958).]
At the most, the appointment of a counsel de oficio in situations like
the present case is discretionary with the trial court, which discretion
will not be interfered with in the absence of abuse. Here, the trial
court had been liberal in granting the postponements secured by the
petitioner himself, at the same time admonishing the latter to be

ready with his present counsel or another counsel [Original Records,

p. 430.] Notwithstanding this admonition, the petitioner kept on
attending the hearings without securing another lawyer to substitute
his present counsel who was constantly absent during the hearings.
Still, as admitted by petitioner in his memorandum, the trial court, at
the December 9, 1974 hearing, allowed him to look for a lawyer but
no one was available at the time [Rollo, p. 94.] These steps
undertaken by the trial court re692
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SUPREME COURT REPORTS ANNOTATED
Sayson vs. People
moves any doubt that its order was tainted with grave abuse of
discretion.
The last issue to be resolved dwells on the effect of the alleged
variance between the prosecutions allegation and proof.
The petitioner vigorously maintains that he cannot be justifiably
convicted under the information charging him of attempting to
defraud Ernesto Rufino, Sr. and/or Bank of America because the
totality of the evidence presented by the prosecution show very
clearly that the accused allegedly attempted to defraud Mever Films,

Inc., a corporate entity entirely separate and distinct from Ernesto

Rufino, Sr. He firmly asserts that his conviction was in gross
violation of his right to be informed of the nature and cause of the
accusation against him.
Petitioners claim is unavailing. The rule in this jurisdiction is that
variance between the allegations of the information and the
evidence offered by the prosecution in support thereof does not of
itself entitle the accused to an acquittal. [People v. Catli, G.R. No.
L-11641, November 29, 1962, 6 SCRA 642.]
The rules on criminal procedure require the complaint or information
to state the name and surname of the person against whom or against
whose property the offense was committed or any appellation or
nickname by which such person has been or is known and if there is
no better way of identifying him, he must be described under a
fictitious name [Rule 110, Section 11, Revised Rules of Court; now
Rule 110, Section 12 of the 1985 Rules on Criminal Procedure.] In
case of offenses against property, the designation of the name of the
offended party is not absolutely indispensable for as long as the
criminal act charged in the complaint or information can be properly
identified. Thus, Rule 110, Section 11 of the Rules of Court provides
that:
Section 11. Name of the offended party.

xxx
(a) In cases of offenses against property, if the name of the offended
party is unknown, the property, subject matter of the offense, must
be described with such particularity as to properly identify the
particular offense charged.
(b) If in the course of the trial, the true name of the person against
whom or against whose property the offense was committed is
disclosed or ascertained, the court must cause the true name to be
inserted in the complaint or information or record.
xxx
In U.S. v. Kepner, [1 Phil. 519 (1902)], this Court laid down the rule
that when an offense shall have been described in the complaint with
sufficient certainty as to identify the act, an erroneous allegation as
to the person injured shall be deemed immaterial as the same is a
mere formal defect which did not tend to prejudice any substantial
right of the defendant. Accordingly, in the aforementioned case,
which had a factual backdrop similar to the instant case, where the
defendant was charged with estafa for the misappropriation of the
proceeds of a warrant which he had cashed without authority, the
erroneous allegation in the complaint to the effect that the unlawful
act was to the prejudice of the owner of the cheque, when in reality
the bank which cashed it was the one which suffered a loss, was held

to be immaterial on the ground that the subject matter of the estafa,

the warrant, was described in the complaint with such particularity
as to properly identify the particular offense charged. In the instant
suit for estafa which is a crime against property under the Revised
Penal Code, since the check, which was the subject-matter of the
offense, was described with such particularity as to properly identify
the offense charged, it becomes immaterial, for purposes of
convicting the accused, that it was established during the trial that
the offended party was actually Mever Films and not Ernesto
Rufino, Sr. nor Bank of America as alleged in the information.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition
is hereby DENIED and the decision of the Court of Appeals is
AFFIRMED in toto with costs against the appellant.
SO ORDERED.
Fernan (C.J.), Feliciano and Bidin, JJ., concur.
Gutierrez, Jr., J., no part because he filed the brief for the appellee
in the Court of Appeals in his capacity as Acting Solicitor General.
Petition denied. Decision affirmed.
694
694
SUPREME COURT REPORTS ANNOTATED

Lontoc vs. Ministry of Labor

Notes.Fraudulent intent is not an element of estafa committed by
way of misappropriation of funds held in trust. (Hayco vs. CA, 138
SCRA 227.)
Issuance of postdated checks which inexplicably bounced on
presentation for payment constitutes estafa. (Echaus vs. CA, 134
SCRA 42.)
o0o [Sayson vs. People, 166 SCRA 680(1988)]