[G.R. No. 90625. May 23, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

BENEDICTO DAPITAN y MARTIN, @ "Benny" and FRED DE GUZMAN, accused. BENEDICTO DAPITAN y MARTIN @ "Benny", accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused appellant. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW; REQUISITES. Due process is satisfied if the following conditions are present: (1) there must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired by it over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. 2. ID.; ID.; ID.; OBSERVED IN CASE AT BAR. All the requisites or conditions of due process are present in this case. The records further disclose that accused-appellant was given the fullest and unhampered opportunity not only to reflect dispassionately on his expressed desire to plead guilty to a lesser offense which prompted the court to cancel the hearing of 10 February 1987, but also to confront the witnesses presented against him and to present his own evidence. If indeed accused-appellant had been deprived of due process, he would have faulted the trial court not just for failure to apply the Indeterminate Sentence Law, but definitely for more. Yet, he found it futile to go any further. 3. ID.; ID.; PROHIBITION AGAINST IMPOSITION OF CRUEL, DEGRADING AND INHUMAN PUNISHMENT; NOT VIOLATED BY IMPOSING A PENALTY OF RECLUSION PERPETUA FOR SPECIFIC CRIMES. Neither is the penalty of reclusion perpetua cruel, degrading, and inhuman. To make that claim is to assail the constitutionality of Article 294, par. 1 of the Revised Penal Code, or of any other provisions therein and of special laws imposing the said penalty for specific crimes or offenses. The proposition cannot find any support. Article 294, par. 1 of the Revised Penal Code has survived four Constitutions of the Philippines, namely: the 1935 Constitution, the 1973 Constitution, the Freedom Constitution of 1986 and the 1987 Constitution. All of these documents mention life imprisonment or reclusion perpetua as a penalty which may be imposed in appropriate cases. As a matter of fact, the same paragraph of the section of Article III (Bill of Rights) of the 1987 Constitution which prohibits the imposition of cruel, degrading and inhuman punishment expressly recognizes reclusion perpetua. 4. CRIMINAL LAW; ROBBERY WITH HOMICIDE; IMPOSABLE PENALTY. As to the appreciation of mitigating circumstances, We also agree with the Solicitor General that since robbery with homicide under paragraph 1 of Article 294 of the Revised Penal Code is now punishable by the single and indivisible penalty of reclusion perpetua in view of the abolition of the death penalty, it follows that the rule prescribed in the first paragraph of Article 63 of the Revised Penal Code shall apply. Consequently, reclusion perpetua must be imposed in this case regardless of the presence of mitigating or aggravating circumstances. DECISION DAVIDE, JR., J p:

This is an appeal from the Decision of the Regional Trial Court of Rizal (Branch 75, San Mateo) 4th Judicial Region, finding the accused-appellant guilty of the crime of Robbery with Homicide and sentencing him to: ". . . suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the victim Rolando Amil in the amount of Thirty Thousand (P30,000.00) Pesos, without subsidiary imprisonment in case of insolvency." 1 Only the accused-appellant was tried. His co-accused, Fred de Guzman, remained at large and the court ordered the archival of the case as against him, to be revived upon his arrest. The information filed with the court a quo on 7 August 1986 against accused-appellant and his co-accused reads in part as follows: "That on or about the 16th day of May, 1986, in Barangay San Rafael, Municipality of Rodriguez (formerly Montalban), Province of Rizal, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused conspiring and confederating together and mutually helping and aiding one another, with intent to gain, armed with deadly weapon and by means of force and violence, then and there willfully, unlawfully and feloniously took, robbed/stole and carried (sic) away two (2) pieces of men's watches worth One Thousand One Hundred Eighty Eight Pesos (P1,188.00), one (1) pair of long pants worth Two Hundred Fifty Pesos (P250.00) and cash money in the amount of Seventy Five Pesos (P75.00) belonging to Orencia E. Amil, without the knowledge and consent of said owner and to her damage and prejudice in the total amount of One Thousand Five Hundred Thirteen Pesos (P1,513.00), Philippine Currency; that on the occasion of the said robbery and for the purpose of enabling them to take, steal and carry away the above-mentioned articles, the herein accused in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously, with evident premeditation and taking advantage of their superior strength and with intent to kill, treacherously attack, assault and employ personal violence upon the person of Rolando Amil (an eight year old child) by stabbing him on the neck and hitting him several times on the head with a piece of wood, to prevent him from making an outcry, thereby inflicting upon him physical injuries which directly caused his death." 2 When arraigned on 25 November 1986 with the assistance of counsel de oficio, Atty. Magsanoc, accused entered a plea of not guilty. 3 At the scheduled hearing on 10 February 1987, new counsel de oficio for the accused, Atty. Gabriel Alberto of the Citizens Legal Assistance Office (CLAO) of San Mateo, Rizal, manifested that the accused had expressed to him the desire to enter a plea of guilty to a lesser offense. The court forthwith issued an order reading as follows: "Atty. Alberto of CLAO and de oficio counsel for the accused manifested that the accused has manifested his desire to make a plea of guilty to a lesser offense but the circumstances are yet to be made in details. It appears that there are two mitigating circumstances that may be applied. The Prosecuting Fiscal made no objection but also manifested that he has to look into the penalty applicable. The counsel for the accused and the Prosecuting Fiscal jointly moved that the hearing of this case be reset to another date. WHEREFORE, reset the hearing of this case for March 9, 1987 at 9:30 A.M. . . ." 4 The scheduled hearing of 9 March 1987 was cancelled and reset to April 13, 1987 in view of the required vacation leave of absence of the judge.

On 13 April 1987, upon motion of the prosecution and the defense in view of the projected settlement of the civil liability of this case, the hearing was reset to 19 May 1987. 5 On that date, however, counsel de oficio for the accused did not appear, hence "a report on the projected settlement of the civil aspect of the case cannot be made" and the hearing was reset again to 15 June 1987, 6 which schedule was later on cancelled due to the compulsory retirement of the presiding judge (Judge Conrado Beltran) which took effect on 7 June 1987. 7 In the meantime, Judge Francisco C. Rodriguez, Jr. presided over the trial court. 8 The initial reception of evidence took place on 24 August 1987 with the accused-appellant represented by Atty. Benjamin Pozon, also of the CLAO. On various dates thereafter, hearings were had until the parties completed the presentation of their evidence. Witnesses Orencia Amil and Cpl. Rodolfo Rivera for the prosecution testified during the incumbency of Judge Rodriguez. The rest testified before Judge Edilberto U. Noblejas who succeeded Judge Rodriguez. On 5 May 1989, the trial court promulgated its Decision 9 the dispositive portion of which reads: "WHEREFORE, premises considered, after appraising the evidence presented by the prosecution and the evidence of the defense, the Court finds the accused BENEDICTO DAPITAN y MARTIN GUILTY BEYOND REASONABLE DOUBT of the crime of ROBBERY WITH HOMICIDE, punishable under Article 294, par. 1 of the Revised Penal Code and sentences him to suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the victim Rolando Amil in the amount of Thirty Thousand (P30,000.00) Pesos, without subsidiary imprisonment in case of insolvency. With respect to the case against FRED DE GUZMAN, the records of the case insofar as he is concerned is hereby ordered ARCHIVED to be revived upon his arrest when he may be heard to answer for the offense charged." On 11 May 1989, accused-appellant filed his Notice of Appeal, manifesting therein that he was appealing the decision to this Court. 10 However, in the Order of 11 May 1989, Judge Cipriano de Roma erroneously directed the transmittal of the records of the case to the Court of Appeals. 11 The Court of Appeals transmitted to this Court on 4 March 1989 the records which were erroneously transmitted to it. 12 In this appeal accused-appellant assigns only one error: THE TRIAL COURT ERRED IN NOT APPLYING THE INDETERMINATE SENTENCE LAW THAT FAVORS THE ACCUSED APPELLANT. 13 He is thus deemed to be in complete agreement with the findings and conclusion of facts by the trial court which We quote: "The evidence adduced by the prosecution more than prove with moral certainty the guilt of the accused Benedicto Dapitan for the crime of ROBBERY WITH HOMICIDE. While there may be no direct evidence linking the accused to said crime, the witnesses who testified more than fully satisfy the requirements for conviction on the basis of circumstantial evidence, because it affords enough basis for a reasonable inference of the existence of the fact thereby sought to be proved, that the accused performed the criminal act.

Orencia Amil, principal witness for the prosecution testified that at around 8:30 in the morning of May 16,1986, she left for her farm which was about 50 meters away, leaving behind in her house his adopted son Rolando (the victim) very much alive. (TSN, page 5, hearing of August 24, 1987) who refused to go with her because he chose to play in the house instead; and that because she heard the barking of her dog which aroused her suspicion, she immediately returned and saw the accused Benedicto Dapitan and his coaccused Fred de Guzman passing through her fence (TSN, pp. 5-6, hearing of August 24,1987); and that when she entered her house calling her child's name, and seeing the backdoor open, she entered and saw Rolando's body sprawled on the floor and his brain "scattered". Near his body was a piece of wood, also bloodied. Thinking her son to be still alive she took her in her arms, placed him on the table and that was the time she realized he was dead. (TSN, pages 6-7, hearing of Aug. 24, 1987). She likewise testified that she lost two watches worth P1,180; pants at P250.00 and cash amounting to P75.00; and after her son's burial she further found that her child's toy worth P500.00, a flashlight and a bolo worth P45.00 and P120.00, respectively, were missing. (TSN, pages 8-9, hearing of August 24,1987). Orencia Amil's testimony is likewise corroborated on its material points by the testimony of Celo Nilo, another prosecution witness. He testified that between the hours of 8:00 to 9:00 in the morning of May 16, 1986, he saw two persons entering the house of Mrs. Orencia Amil, one of whom he identified as Benedicto Dapitan, (TSN, pages 4-5, hearing of October 26, 1987). He positively identified Benedicto Dapitan who was in Court (TSN, pages 5-6, hearing of October 26, 1987). He likewise testified that when the two suspects entered the house of Mrs. Amil, he heard the voice of a child. In the statement he gave the police investigators (Exhibit B) which he confirmed when he testified, pertinent portions of which are herein quoted, he said: xxx xxx xxx

T Noong May 16, 1986, sa pagitan ng ika 8:00 ng umaga, natatandaan mo ba noon kung saan ka naroroon? S Ako po ay galing sa aming bahay at ako po ay patungo sa bundok para magtanim po ng punong saging. xxx xxx xxx

T Noong ikaw ay papadaan sa malapit sa bahay in Orencia Amil, wala ka bang napansin na tao na nagtungo doon sa kanilang bahay? S Mayroon po.

T Nakilala mo ba naman kung sinong tao ang iyong nakita na dumaan doon sa bahay nina Mrs. Orencia Amil? S Iyon lang pong isang tao ang aking kilala na dumaan doon sa bahay nina Mrs. Orencia Amil na si Benny Dapitan na ang tirahan po ay doon po rin sa Sitio Tabak, Brgy. San Rafael, R/R, pero iyon pong isa na kasama in Benny Dapitan ay hindi ko po kilala sa kanyang tunay na pangalan. T Ilan bang tao ang iyong nakita na nagpunta doon sa bahay in Mrs. Orencia Amil?

Dalawang tao po.

T Mayroon ka ba gaano kalayo doon sa dalawang tao na ang isa ay si Benny Dapitan ng sila ay makita mo na pumunta doon sa bahay ni Mrs. Orencia Amil? S Mayroon po lamang na mga 10 metro ang aking layo sa kanila.

T Matapos na makita mo si na si Benny Dapitan at iyong isa niyang kasama ay pumasok doon sa bahay, ano pa ang sunod na pangyayari? S Akin pong nakita na matapos na sila ay makapasok sa loob ng bahay ni Mrs. Amil ay kanila pong isinara iyong pintuan noong bahay, at hindi ko po naman sila pinansin at ako po ay nagpatuloy na sa aking pupuntahan. xxx xxx xxx

T Matapos na makapasok iyong sina Benny Dapitan doon sa bahay, wala ka ba namang narinig na sigaw ng isang bata? S xxx Mayroon po pero hindi ko po pinansin. (Emphasis supplied). xxx xxx

The testimonies of these two witnesses, evaluated together, on what transpired in the morning of May 16, 1986, between the hours of 8:00-9:00 a.m. attest to the existence of the following facts: 1. That the victim, Rolando Amil, was alive when her mother left her as testified to by Orencia Amil and witness Celo Nilo, who cry out when the two suspects entered the house. (Testimony of Orencia Amil) 2. That the accused Benedicto Dapitan and an unidentified companion entered the house at a time when Mrs. Amil had already left, and that the victim, at the time, was still alive. (Testimonies of Celo Nilo & Orencia Amil) 3. That when Mrs. Amil returned at quarter to nine she saw Benedicto Dapitan and Fred de Guzman leaving the premises. (Testimony of Orencia Amil) 4. And that when Mrs. Amil entered her house, the victim, Rolando Amil, was already dead. (Testimony of Orencia Amil). As gleaned from the records, witness Orencia Amil was straightforward in her testimony. She remained steadfast even on cross-examination, and there is nothing on record concerning her testimony which would leave the court in doubt as to the truth of what she testified to. Her testimony therefore, relative to the circumstances transpiring at the time she left the house at 8:30 a.m. up to the time she returned at quarter to nine engenders belief. Celo Nilo's testimony was likewise made in the same vein as that of Orencia Amil. This witness was not shown to have cause to perjure himself on a serious crime against the accused. As the Court observed during the trial, his testimony, based on his demeanor when he testified, is impressed with a ring of veracity.

The Court did not give credit to the testimony of Patrolman Rodolfo Rivera except on the fact that he conducted an investigation. No value whatsoever was given to the sworn statement of Benedicto Dapitan, even as to the portion in said testimony, where Benedicto Dapitan admitted being present when Fred de Guzman allegedly hit the victim on the head and that the stolen articles were in the possession of Fred de Guzman, because as wisely put by defense counsel, the sworn statement was taken in violation of the constitutional rights of the accused. In sum, therefore, there can be no other inference from the evidence presented by the prosecution considering the short span of time the victim Rolando Amil was left alive by his mother, and her return fifteen (15) minutes later to find him dead and the testimony that the accused was seen entering and leaving the premises during this intervening period, except the inevitable conclusion that the accused is responsible for the death of Rolando Amil. For his part, the accused Benedicto Dapitan interposes the defense of "alibi". This, he sought to establish through the testimony of witness Ismael Anacio. Pertinent portion of the witness' testimony, is herein quoted, to wit: xxx xxx xxx

Q Now, do you remember, Mr. Witness, if this Benedicto Dapitan was present in the said house on the period from May 16 to May 19, 1986? A He was there, sir.

Q Was there any occasion when this Benedicto Dapitan left your house during that period? A None, sir.

(TSN, pages 3-5, hearing of September 12, 1988). The testimony of witness Ismael Anacio, a salesman by occupation, that defendant Benedicto Dapitan, from May 16 to May 19, 1986, was in his house all the time, and that there was no occasion that he left the place during this period does not spark belief. In the first place, the witness wants the Court to believe that he was in his house during all the time so that he could during all the days alluded to, be in a position to be positive as to the whereabouts of the accused. This circumstance alone generates doubt on his testimony, because it was not explained why the witness, a salesman by occupation, would be in his house from the period beginning May 16-19, 1986 (TSN, pages 2-3, hearing of September 12, 1988). Assuming though, for the sake of argument, that the witness actually monitored the whereabouts of the accused during all the time, his testimony sustaining Benedicto Dapitan's defense of "alibi" cannot defeat the positive identification made of Benedicto Dapitan and of his presence in Montalban on May 16, 1986, by witness Orencia Amil and Celo Nilo. Even on this score alone, without taking into consideration that Sampaloc District where he allegedly was, is geographically not so far from Montalban, from where he could have commuted through the ordinary means of transportation present in the area, his defense of "alibi" naturally falls, so that his conviction is reasonably called for." 14 In support of the assigned error accused-appellant argues that the imposition over him of the penalty of reclusion temporal by the trial court is "tantamount to deprivation of life or

liberty without due process of law or is tantamount to a cruel, degrading or inhuman punishment prohibited by the Constitution" and he submits that "the righteous and humane punishment that should have been meted out should be indeterminate sentence" with "all mitigating circumstances as well as the legal provisions favorable to the accused-appellant . . . appreciated or . . . taken advantage for constructive and humanitarian reasons." He stresses that since mitigating circumstances are based on, among others, the lesser perversity of the offender, such should be appreciated in his favor since he had "a companion then when he entered Mrs. Orencia Amil's house and perpetrated the offense. 15 And it was his companion or mate by the name of Fred de Guzman who took the personal belongings of Mrs. Amil as the men's watch worth P1,188.00. It was Fred de Guzman who is still at large who stabbed and hit the head of Rolando Amil. 16 These facts or circumstances reveal that accused-appellant had a "lesser perversity than his companion Fred de Guzman." As evidence of such lesser perversity, "he did not flee or hide himself from the authorities. . . . within two (2) days' time he surrendered voluntarily to the police authorities . . ." Thus, the "mitigating circumstance of voluntary surrender must be considered" in his favor. 17 He prays that he be sentenced to an indeterminate penalty ranging from twelve (12) years and one (1) day of reclusion temporal, as minimum, to reclusion perpetua as maximum. 18 Meeting squarely the points raised by the accused-appellant, the People, in the Brief for Plaintiff-Appellee submitted by the Solicitor General on 9 June 1990, asserts that the same are without merit for the accused was not deprived of due process as he was, as admitted by him, afforded full opportunity to be heard; for a penalty to be cruel, degrading or inhuman, "it must take more than merely being harsh, excessive, out of proportion, or severe . . .; it must be flagrantly and plainly oppressive, disproportionate to the nature of the offense as to shock the moral sense of the community 19 or when they involve torture or lingering death" 20 and since the penalty of reclusion perpetua imposed on him is sanctioned by law, Act No. 3815 as amended, otherwise known as the Revised Penal Code, said penalty is not cruel, degrading or inhuman. It further argues that the special complex crime of robbery with homicide defined under Article 294, par. 1, of the Revised Penal Code is punishable with reclusion perpetua to death; with the abolition of the death penalty by the 1987 Constitution, the only penalty imposable upon a person found to have committed such complex crime is the single penalty of reclusion perpetua, which is an indivisible penalty. Under Article 63 of the Revised Penal Code it should be applied regardless of the presence of any mitigating or aggravating circumstances. As regards the Indeterminate Sentence Law, the People submits that the accused-appellant cannot avail of it since Section 2 of the law (Act No. 4103) specifically provides that it shall not apply to, among others, persons convicted of offenses punished with death penalty or life imprisonment. We find the instant appeal to be totally bereft of merit. There was no denial of due process. Due process is satisfied if the following conditions are present: (1) there must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired by it over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. 21 In People vs. Castillo, et al., 22 We ruled that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only

punished after inquiry and investigation, upon notice to him, with opportunity to be heard, and a judgment awarded within the authority of the constitutional law, then he has had due process. 23 We reiterated the above doctrine in People vs. Muit. 24

All the requisites or conditions of due process are present in this case. The records further disclose that accused-appellant was given the fullest and unhampered opportunity not only to reflect dispassionately on his expressed desire to plead guilty to a lesser offense which prompted the court to cancel the hearing of 10 February 1987, but also to confront the witnesses presented against him and to present his own evidence. llcd If indeed accused-appellant had been deprived of due process, he would have faulted the trial court not just for failure to apply the Indeterminate Sentence Law, but definitely for more. Yet, he found it futile to go any farther. Neither is the penalty of reclusion perpetua cruel, degrading, and inhuman. To make that claim is to assail the constitutionality of Article 294, par. 1 of the Revised Penal Code, or of any other provisions therein and of special laws imposing the said penalty for specific crimes or offenses. The proposition cannot find any support. Article 294, par. 1 of the Revised Penal Code has survived four Constitutions of the Philippines, namely: the 1935 Constitution, the 1973 Constitution, the Freedom Constitution of 1986 and the 1987 Constitution. All of these documents mention life imprisonment or reclusion perpetua as a penalty which may be imposed in appropriate cases. 25 As a matter of fact, the same paragraph of the section of Article III (Bill of Rights) of the 1987 Constitution which prohibits the imposition of cruel, degrading and inhuman punishment expressly recognizes reclusion perpetua. Thus: "Section 19(1). Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall the death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides it. Any death penalty already imposed shall be reduced to reclusion perpetua. As to the appreciation of mitigating circumstances, We also agree with the Solicitor General that since robbery with homicide under paragraph 1 of Article 294 of the Revised Penal Code is now punishable by the single and indivisible penalty of reclusion perpetua in view of the abolition of the death penalty, it follows that the rule prescribed in the first paragraph of Article 63 of the Revised Penal Code shall apply. 26 Consequently, reclusion perpetua must be imposed in this case regardless of the presence of mitigating or aggravating circumstances. prcd The trial court correctly imposed on the accused the penalty of reclusion perpetua. The civil indemnity awarded by the trial court should, in line with Our decision in People vs. Sison, G.R. No. 86455, 14 September 1990, and People vs. Sazon, G.R. No. 89684, 18 September 1970, be increased from P30,000.00 to P50,000.00. WHEREFORE, except as modified above in respect to the civil indemnity, the decision appealed from is AFFIRMED in toto, with costs against accused-appellant. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

[A.M. No. RTJ-96-1353. March 11, 1997.] DANILO B. PARADA, complainant, vs. JUDGE LORENZO B. VENERACION, REGIONAL TRIAL COURT, BRANCH 47, MANILA, respondent. Carpio, Carpio, Carpio & Carpio for complainant. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; TRIAL IN ABSENTIA; REQUISITES. Section 14(2), Article 3 of the Constitution provides, inter alia, that trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. The requisites then of a valid trial in absentia are: (1) the accused has already been arraigned; (2) he has been duly notified of the trial; and (3) his failure to appear is unjustifiable. 2. ID.; ID.; ID.; ID.; ACCUSED DULY NOTIFIED OF TRIAL AND FAILURE TO APPEAR IS JUSTIFIED; NOT PRESENT WHERE NOTICE SENT TO FORMER ADDRESS. As a rule, where a party appears by attorney in an action or proceeding in a court of record, all notices required to be given therein must be given to the attorney of record. Accordingly, notices to counsel should be properly sent to his address of record and unless the counsel files a notice of change of address, his official address remains to be that of his address of record. Here, the notice of hearing was sent to the former address of Parada's counsel despite the fact that the latter formally notified the court of his change of address. His failure to appear therefore is justified by the absence of a valid service of notice. 3. ID.; ID.; DUE PROCESS OF LAW; RIGHT TO A HEARING INCLUDES RIGHT TO BE NOTIFIED; VIOLATION THEREOF. Due process of law in judicial proceedings requires that the accused must be given an opportunity to be heard. He has the right to be present and defend in person at every stage of the proceedings. Incidentally, the right to a hearing carries with it the right to be notified of every incident of the proceedings in court. Notice to a party is essential to enable him to adduce his own evidence and to meet and refute the evidence submitted by the other party. No less than the Constitution provides that no person shall be held to answer for a criminal offense without due process of law. A violation therefore of any of the rights accorded the accused constitutes a denial of due process of law. The circumstantial setting of the instant case as weighed by the basic standards of fair play impels us to so hold that the trial in absentia of Parada and his subsequent conviction are tainted with the vice of nullity, for evidently Parada was denied due process of law. 4. ID.; ID.; RIGHT TO BAIL; VIOLATED WHERE NONE RECOMMENDED TO A BAILABLE OFFENSE. The warrant of arrest with no recommendation for bail that was issued by respondent Judge is a downright violation of Parada's constitutional right to bail. The rule is clear that unless charged with offenses punishable by reclusion perpetua and the evidence of guilt is strong, all persons detained, arrested or otherwise under the custody of the law are entitled to bail as a matter of right. It should be noted that the crime with which Parada was charged is estafa which is undoubtedly a bailable offense. This circumstance could not have escaped the attention of the respondent judge when he issued the order of arrest. 5 JUDICIAL ETHICS; JUDGES; PROPER CONDUCT. Judges, by the very delicate nature of their functions in dispensing justice, should be more circumspect in the performance of their duties. In resolving matters in litigation, they should endeavor assiduously to ascertain the facts and the applicable laws. Judges ate required by Canon 3, Rule 3.01 of the Code of Judicial Conduct to be faithful to the law and maintain professional

competence. They are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles. DECISION TORRES, JR., J p: The case before us stems from a verified complaint filed by Danilo B. Parada against respondent Judge Lorenzo B. Veneracion for gross ignorance of the law, abuse of authority and rendering unjust and erroneous interlocutory orders and judgment in connection with Criminal Cases Nos: 93-121385 to 88, entitled People vs. Danilo Parada, which led to complainant Parada's "premature incarceration" at the Makati City Jail and Muntinlupa National Penitentiary. The undisputed facts of the case as found by the Office of the Court Administrator are as follows: "Complainant herein is the accused in the aforementioned case for four (4) counts of estafa which were initially raffled to Branch 30, RTC, Manila presided by Judge Senecio Ortile. Complainant is also duly bonded with the Eastern Assurance and Surety Corporation (EASCO). On October 23, 1993 complainant notified said court formally thru counsel of his change of address from 219 Cityland Condominium, Buendia Extension, Makati, Metro Manila to 2412 Nobel St., Bo. San Isidro, Makati, Metro Manila. On October 27, 1993 he also notified the Manager of the bonding company of his change of address. On February 8, 1994, Judge Ortile inhibited himself from trying the said case and thus, the case was reraffled to the sala of respondent Judge Lorenzo Veneracion, and per order of April 26, 1994, the hearing of the case was set for June 3, 6, 7 and 8, 1994. Apparently, the notice of hearing dated April 27, 1994 was sent to complainant's former address and that for failure of accused-complainant to appear on June 3, 1994, respondent ordered the arrest of herein accused-complainant, ordering the confiscation of the bond and a trial in absentia was conducted. Respondent Judge likewise assigned a counsel de officio, Atty. Jesse Tiburan of the Public Attorney's Office (PAO) as counsel for the accused. . . . Furthermore, a warrant of arrest was issued on June 3, 1994 with 'no bail recommended'. On June 6, 7 and 8, 1994, respondent court issued orders noting the failure of the petitioner to appear and proceeded with the trial in absentia. On the hearing of June 8, 1994, the motion of counsel de officio of accused-complainant that defense be allowed to present evidence upon petitioner's arrest, was denied and further held that the 'failure of the accused to appear is a waiver of his right to adduce evidence'. . . . On November 25, 1994, a decision was rendered convicting herein accused-appellant of the crime and the decision was promulgated despite his absence. Accused-complainant was arrested and brought to the Makati City Jail. Accused-complainant filed a Petition for Habeas Corpus, Certiorari and Annulment of Judgment with prayer for immediate relief with the Court of Appeals and was docketed as CA-GR. SP No. 37340 entitled 'Danilo Parada vs. Judge Lorenzo B. Veneracion, et al.'. On August 18, 1995, the Court of Appeals promulgated a decision declaring the decision dated November 25, 1995 of respondent court null and void and further ordering the case to be remanded to respondent for further proceeding in order to afford accused-complainant

the opportunity to rebut the testimonies of the prosecution witnesses and documentary evidence against him as well as present his evidence." 1 Subsequently, Parada filed with this Court the instant complaint dated March 11, 1996 against the respondent Judge Veneracion in connection with the decision and interlocutory orders rendered by the latter in Criminal Cases Nos. 93-121385 to 88. He alleged, inter alia that the respondent Judge is guilty of ignorance of the law when he did not follow the legal requirements of a valid trial in absentia which led to his conviction and premature incarceration, that the order of his arrest with no recommendation for bail was erroneous, and that respondent Judge abused his authority when he issued the June 8, 1994 order denying the Motion- of Parada's counsel de oficio to allow him to present his evidence upon his arrest. Parada thus prayed for the dismissal from service of the respondent Judge and that the latter be barred from railroading the subject Criminal Cases Nos. 93-121385 to 88. On June 4, 1996, the Office of the Court Administrator received the respondent Judge's comment to Parada's complaint, the pertinent portion of which reads: xxx xxx xxx

1. That the herein complaint is purely and plainly a 'harassment suit' arising from the Decision rendered in the case of People vs. Danilo Parada for estafa; 2. That the charges therein are denied because they are not based on the facts and of the records of the case, the herein Judge merely acted with compassion upon receipt of the records of these cases from another sala, after having been informed that the private complainants merely borrowed from 'loan sharks' the money given to the accused Danilo Parada and that they are only interested in compelling said accused to return their money, not in sending said accused to jail; 3. That the herein Judge acted in good faith in the trial of the said cases." 2

Unfazed by the foregoing assertions of the respondent Judge, the Office of the Court Administrator on the contrary held that: xxx xxx xxx

Respondent's general denial of the allegations imputed to him does not belie any of the facts which lead to the incarceration of the complainant. Thus, his failure to deny and every specific allegations can be construed as admission on his part. Moreover, trial in absentia may proceed only if the accused failed to appear at the trial without justification despite due notice. In this case, complainant was never notified of any hearing from the time he changed his address up to the promulgation of the decision despite the fact that he notified the court and his bonding company. xxx xxx xxx

Respondent issued a warrant for the arrest of the accused-complainant with no 'bail recommended' despite the fact that the crime charged was bailable and denied the motion of his counsel for the accused to adduce evidence upon accused's arrest. Clearly, respondent denied complainant his right to due process." 3

On the basis of these observations, the Office of the Court Administrator recommended that respondent Judge Veneracion be fined in the amount of P10,000.00 with a warning-that a commission of the same or similar infraction shall be dealt with more severely. We agree with the findings of the Office of the Court Administrator. Section 14 (2), Article 3 of the Constitution provides, inter alia, that trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. The requisites then of a valid trial in absentia are: (1) the accused has already been arraigned; (2) he has been duly notified of the trial; and (3) his failure to appear is unjustifiable. 4 In the subject criminal cases, requisite numbers two (2) and three (3) of a valid trial in absentia are clearly wanting. Parada had not been duly notified of the trial because the notice of hearing dated April 27, 1994 was sent to the former address of Parada's counsel despite the fact that the latter formally notified the court of his change of address. His failure to appear therefore in the June 3,6, 7 and 8, 1994 hearings is justified by the absence of a valid service of notice of hearing to him. As a rule, where a party appears by attorney in an action or proceeding in a court of record, all notices required to be given therein must be given to the attorney of record. 5 Accordingly, notices to counsel should be properly sent to his address of record and unless the counsel files a notice of change of address, his official address remains to be that of his address of record. 6 It is undisputed that Parada's counsel filed a notice of change of address on October 23, 1993. As such, the respondent judge should have already taken cognizance of the new address when it sent the notice of hearing dated April 27, 1994. It is thus unwarranted for the respondent judge to still send the notice of hearing to the old address of Parada's counsel because it is not his official address nor his address of record. Concomitantly, the sending of notice of hearing to his former address is an invalid service and cannot in any way bind Parada. It is worthy to stress that due process of law in judicial proceedings requires that the accused must be given an opportunity to be heard. He has the right to be present and defend in person at every stage of the proceedings. Incidentally, the right to a hearing carries with it the right to be notified of every incident of the proceedings in court. Notice to a party is essential to enable him to adduce his own evidence and to meet and refute the evidence submitted by the other party. 7 No less than the Constitution provides that no person shall be held to answer for a criminal offense without due process of law. A violation therefore of any of the rights accorded the accused constitutes a denial of due process of law. The circumstantial setting of the instant case as weighed by the basic standards of fair play impels us to so hold that the trial in absentia of Parada and his subsequent conviction are tainted with the vice of nullity, for evidently Parada was denied due process of law. Judges, by the very delicate nature of their functions in dispensing justice, should be more circumspect in the performance of their duties. 8 In resolving matters in litigation, they should endeavor assiduously to ascertain the facts and the applicable laws. Had respondent judge carefully and diligently studied the records of the case, he would have surely noticed the change of address, and his questioned orders, which eventually led to Parada's unwarranted deprivation of liberty, could not have been precipitately issued. Likewise, the warrant of arrest with no recommendation for bail that was issued by respondent Judge on June 3, 1994 is a downright violation of Parada's constitutional right to

bail. The rule is clear that unless charged with offenses punishable by reclusion perpetua and the evidence of guilt is strong, all persons detained, arrested or otherwise under the custody of the law are entitled to bail as a matter of right. It should be noted that the crime with which Parada was charged is estafa 9 which is undoubtedly a bailable offense. This circumstance could not have escaped the attention of the respondent judge when he issued on June 3, 1994 the order of arrest of Parada with no recommendation for his bail. In so doing, respondent judge exhibited that degree of ignorance so gross which the Court can not countenance. Judges are required by Canon 3, Rule 3.01 of the Code of Judicial Conduct to be faithful to the law and maintain professional competence. 10 They are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles. 11 WHEREFORE, respondent Judge Lorenzo B. Veneracion is FINED P10,000.00 for disregarding Parada's right to procedural due process and for showing gross ignorance of the law, with a STERN WARNING that a repetition of a similar act in the future will be dealt with more severely. cdtai SO ORDERED. Regalado, Romero, Puno and Mendoza, JJ., concur

[G.R. No. L-59378. February 11, 1986.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NELIA NICANDRO y VELARMA, accused-appellant. DECISION PLANA, J p: This is an appeal from a judgment of the then Court of First Instance of Manila, Branch VIII, convicting the accused Nelia Nicandro y Velarma of violation of Section 4, Article II, in relation to Section 2(e), (f), (l), (m), and (o), Article I, of Republic Act 6425, as amended (Dangerous Drugs Act), upon an information which reads: "That on or about November 6, 1981, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, deliver, give away to another or distribute any prohibited drug, did then and there willfully, unlawfully, and knowingly sell or offer for sale four (4) sticks of marijuana cigarettes, marijuana flowering tops wrapped in a piece of newspaper, one (1) roach marijuana cigarette and marijuana seeds and ashes contained in a white plastic bag, which are prohibited drugs." The People's version of the facts is as follows: "Not long before November 6, 1981, the Drug Enforcement Unit of Police Station No. 5, Western Police District, Metropolitan Police Force, Manila, received complaints from concerned citizens regarding the illegal sale of prohibited drugs by one alias 'Nel' in the Commodore Pension House at Arquiza Street, Ermita, Manila (p. 4, tsn, Dec. 8, 1981). It was

also informed that the use of prohibited drugs in said place was rampant (pp. 3, 18-19, tsn, ibid.). "Responding to said complaints and reports, Cpl. Salvador Guitan and Pfc. Romeo Joves of the Drug Enforcement Unit of said Police Station No. 5 placed the Commodore Pension House and its surroundings under surveillance for about a week (pp. 4-5, tsn, ibid.). After the complaints and reports were verified to be true, an entrapment with the confidential informant acting as the buyer of marijuana was organized. (pp. 5-6, 29-30, tsn, ibid.). "At about 9:00 p.m. on November 6, 1981, the police team formed to carry out the entrapment plan was alerted of the presence of the drug pusher, alias 'Nel', at room 301 of the Commodore Pension House, selling marijuana to drug users (pp. 6, 32-33, tsn, ibid.). Immediately Cpl. Salvador Guitan, Pat. Proceso Federes, Pat. Aurora Gomez and Pfc. Romeo Joves proceeded to the said Commodore Pension House and met the female confidential informant at the corner of Arquiza Street and M.H. del Pilar Street, Ermita, Manila (pp. 6, 23, 33, tsn, Dec. 8, 1981; pp. 15-16, tsn. Dec. 9, 1981). Pfc. Joves gave the informant two (2) P5.00 bills, marked Exhibits "D" and "E", with his initial thereon, marked Exhibits "D-1", and "E-1 " (Exhs. "D", "D-1", "E" and "E-1", pp. 3-4, Folio of Exhs.; pp. 6, 8, 35, tsn, Dec. 8, 1981; p. 16, tsn, Dec. 9, 1981). They instructed her to follow them to the Commodore Pension House (p. 33, tsn, Dec. 8, 1981). "Following later, the informant went to room 301 of the Commodore Pension House (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Upon a given signal, she knocked on the door of the room. Appellant Nelia Nicandro y Velarma, alias 'Nel', opened the door (p. 6, tsn, Dec. 8, 1981). The informant asked to buy some marijuana cigarette and gave appellant the two (2) marked P5.00 bills (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Thereupon, the appellant delivered to informant four (4) sticks of marijuana cigarette (pp. 7, 25, tsn; Dec. 8, 1981; p. 8, tsn; Dec. 9, 1981). "Immediately the police team closed in and nabbed appellant (p. 7, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Pat. Gomez frisked appellant and got from the right front pocket of her pants the two (2) marked P5.00 bills (Exhs. "D" & "E") and from the left pocket of her pants marijuana flowering tops wrapped in a piece of newspaper (pp. 8-9, 12, 34, tsn, Dec. 8, 1981; pp. 9-10, 17-19, tsn. Dec. 9, 1981). Appellant tried to escape by entering her rented room 301 but was immediately collared (pp. 8-9, tsn, Dec. 9, 1981). xxx xxx xxx

"Upon being investigated and after having been duly apprised of her constitutional rights, appellant orally admitted having sold the four (4) sticks of marijuana cigarettes and the ownership of the marijuana flowering tops taken from her pocket, but refused to reduce her confession to writing (pp. 12-13, tsn; Dec. 8, 1981 . . ." (People's Brief, pp. 3-6, 8.) To support the charges, the prosecution relied principally on Pat. Joves, who testified that he saw the accused sell marijuana cigarettes to the unnamed police informant, which allegedly the accused verbally admitted when she was under custodial investigation. Pat. Joves declared: LLpr "Q A Where were you when the informant handed the two P5.00 bills to the accused? We were hidden within the vicinity of Room 301 sir.

Q After your confidential informant have handed the two P5.00 bills to the accused, what happened next?

A The accused in turn handed one small plastic bag containing suspected marijuana leaves. I beg to correct sir. I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir. Q What did you do when you saw the accused hand over to the confidential informant the four sticks of cigarettes containing marijuana? A When we saw the accused handed the four sticks of suspected marijuana cigarettes to our confidential informant, and after a pre- arranged signal was given by the confidential informant that the accused had already sold her the marijuana cigarettes, we immediately nabbed said suspect and at the same time we identified ourselves as police officers." (TSN, Dec. 8, 1981, p. 7.) xxx xxx xxx

"Q You also conducted the investigation of this accused and confiscation of the articles of the crime? A Q A Q Yes, sir. How did you conduct the investigation? The first thing I did was I informed the accused of her constitutional rights. What next?

A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. Q A xxx Did you place that in writing? The accused refused to place her statement in writing, sir." (Ibid., pp. 12-13.). xxx xxx

CROSS EXAMINATION "Q And who were your companions in apprehending the accused?

A I was with Police Cpl. Salvador Guitan, Pat. Federis and Policewoman Aurora Gomez, sir. Q When you posted yourselves and other companions at the third floor of Commodore Pensione House, were there any other persons present in the premises, Pat. Joves? A There were other persons passing by or walking in the place from where we were posted sir.

Q In fact, there were several or many persons in that place because there is a lodging house Pat. Joves when you posted yourselves there? There were several persons present there? A There are several persons present but they are just passing by or walking towards their rooms, sir. Q And you want this Court to believe that in spite of the presence of these people walking and passing to the place where you made the apprehension, you want this Court to believe that the accused was then selling the alleged marijuana sticks? WITNESS: Please repeat the questions? ATTY. CARINGAL: Q You want the Court to believe that the accused was selling the prohibited drug in public because according to you there were several persons present then? A There were several persons passing by sir at that place.

Q You testified a while ago Pat. Joves that you have seen the accused handing a plastic bag to your confidential informant. How big is that plastic bag? A It was not a plastic bag, sir but four sticks of marijuana cigarettes, sir.

Q Do you want to impress this Honorable Court that the accused was selling this marijuana cigarette in the open? A The accused sold marijuana cigarettes also in a way that she will not be noticed by other persons sir. Q How were you able to say that the things handed by the accused to your confidential informant were four sticks of marijuana cigarettes when you have just said that the transactions was done secretly? A She was handing the marijuana cigarette secretly, sir.

Q How were you able to say and how were you able to determine that the things handed to your confidential informant were four sticks of marijuana cigarettes? A We saw and observed that the accused handed sticks of suspected marijuana cigarettes and we also have a prearranged signal from the confidential informant that the marijuana was already sold by the accused, sir." (Ibid., pp. 23-25.) Policewoman Aurora Gomez also testified but her testimony was limited to events subsequent to the alleged sale of marijuana cigarettes. She did not witness the sale. (TSN, Dec. 9, 1981. pp. 17-18, 21.) Neither did Cpl. Guitan or Pat. Federis. After trial, the trial court convicted the accused as aforesaid and imposed the penalty of reclusion perpetua and a fine of P20,000.00.

In the instant appeal, defendant-appellant has assigned the following errors: I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED FOR VIOLATION OF SECTION 4 OF ARTICLE II IN RELATION TO SECTION 2(e), (l), (f) and (o), ARTICLE 1, R.A. 6425, AS AMENDED BY P.D. NO. 44 AND FURTHER AMENDED BY P.D. NO. 1675. II THE COURT A QUO GRAVELY ERRED IN GIVING PROBATIVE VALUE TO THE TESTIMONIES OF ALL POLICE OFFICERS WHICH ARE HEARSAY. III THE COURT A QUO GRAVELY ERRED IN ADMITTING PROSECUTION EVIDENCE WHICH WERE OBTAINED IN VIOLATION OF ACCUSED CONSTITUTIONAL RIGHTS. IV THE CONSTITUTIONAL RIGHTS OF THE ACCUSED MORE PARTICULARLY THE RIGHT TO CONFRONTATION AND TO CROSS-EXAMINE WITNESS AGAINST HER HAS BEEN VIOLATED. Numerous factors combine to make the appeal meritorious. The prosecution evidence leaves much to be desired. It is at best uncertain whether any prosecution witness really saw the alleged sale of marijuana cigarettes. Patrolman Joves allegedly was an eyewitness. He testified that he saw the appellant sell marijuana cigarettes to the police informant, as the transaction took place openly just outside room 301, in the presence of several persons "passing by or walking in the place". But when his attention was called to the improbability that an illegal merchandise would openly be sold, he qualified his story by saying that appellant handed the marijuana cigarettes to appellant "secretly". Pat. Joves was not certain as to what he saw. At first, he said that after the police informant had paid appellant, the latter handed to the former "one small plastic bag containing suspected marijuana leaves." Then he corrected himself by saying: "I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir." It is probable that Pat. Joves really did not see either the alleged delivery of the marijuana cigarettes or the supposed payment therefor. After all, according to him, the transaction was effected "secretly". On the other hand, if the sale was made within the view of Pat. Joves and his companions, there would have been no need for them to wait for a signal from the police informant to indicate that the transaction had been completed, before closing in and arresting appellant. With the testimony of Pat. Joves seriously placed in doubt, there is not much left of the prosecution evidence. Note that the police informant was not presented as a witness, prompting the accused to invoke with reason the presumption that evidence willfully suppressed would be adverse if produced. (Rules of Court, Rule 131, Sec. 5(e).]

In convicting the appellant, the trial court relied partly on her alleged oral admission during custodial investigation, as testified to by Pat. Joves. This reliance is assailed as violative of Section 20 of Article IV of the Constitution which reads: prLL "No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." The above provision is an expanded version of the guarantee against self-incrimination, formally incorporating the doctrine in the landmark American case of Miranda vs. Arizona ". . . Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." [384 U.S. 436, 444-445. Incidentally, the Miranda doctrine rests on just one broad guarantee in the U.S. Constitution, i.e., that no person shall be compelled in any criminal case to be a witness against himself. (Fifth Amendment.)] When the Constitution requires a person under investigation "to be informed" of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefor, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. (See People vs. Ramos, 122 SCRA 312; People vs. Caguioa, 96 SCRA 2.) In other words, the right of a person under interrogation "to be informed" implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been "informed" of his rights. Now, since the right "to be informed" implies comprehension, the degree of explanation required will necessary vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the subject is unlettered. Thus, in the cited case of People vs. Ramos, this Court said:

"In the case at bar, appellant has only finished Grade VI, which means that he is not adequately educated to understand fairly and fully the significance of his constitutional rights to silence and to counsel. As mandated, it is not enough that the police investigator merely informs him of his constitutional rights to silence and to counsel, and then taking his statements down, the interrogating officer must have patience in explaining these rights to him. The records do not reveal that these requirements have been fully complied with, nor was there any showing that appellant has been represented by counsel during custodial investigation. In consonance with Section 20 of the Bill of Rights which states that 'any confession obtained in violation of this section shall be inadmissible in evidence,' We hold that the verbal admissions of appellant during custodial investigation may not be taken in evidence against him." (pp. 321-322.) Like other constitutional rights, the right against self-incrimination, including the right of a person under investigation to remain silent and to counsel, and to be informed of such right, may be waived. To be valid, however, a waiver of the right must not only be voluntary; it must be made knowingly and intelligently (People vs. Caguioa, supra), which presupposes an awareness or understanding of what is being waived. It stands to reason that where the right has not been adequately explained and there are serious doubts as to whether the person interrogated knew and understood his relevant constitutional rights when he answered the questions, it is idle to talk of waiver of rights. Going to the instant case, Pat. Joves testified that he conducted the custodial investigation of appellant. As to the manner of investigation, he tersely testified: LLpr "Q A Q How did you conduct the investigation? The first thing I did was I informed the accused of her constitutional rights. What next?

A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession." (TSN, December 8, 1981, pp. 12-13.) According to Pat. Joves, he informed appellant of her constitutional rights when she was under custodial investigation. What specific rights he mentioned to appellant, he did not say. Neither did he state the manner in which the appellant was advised of her constitutional rights so as to make her understand them. This is particularly significant in the instant case because appellant is illiterate and cannot be expected to be able to grasp the significance of her right to silence and to counsel upon merely hearing an abstract statement thereof. As it is the obligation of the investigating officer to inform a person under investigation of his right to remain silent and to counsel, so it is the duty of the prosecution to affirmatively establish compliance by the investigating officer with his said obligation. Absent such affirmative showing, the admission or confession made by a person under investigation cannot be admitted in evidence. As broadly stated in the Miranda case and quoted with approval by the then Chief Justice Enrique M. Fernando in People vs. Caguioa, supra, ". . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial investigation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (95 SCRA 2, 9. Emphasis supplied.)

The reason is not difficult to see. A constitutional guarantee should be liberally construed with a view to promoting its object. ". . . Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. xxx xxx xxx

"In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of these rights be assumed on a silent record . . ." (Miranda case, 384 U.S. 436, 491, 498-499.) Thus, in People vs. Ramos, supra, the Court ruled that the verbal admission of the accused during custodial investigation was inadmissible, although he had been apprised of his constitutional rights to silence and to counsel, for the reason that the prosecution failed to show that those rights were explained to him, such that it could not be said that "the apprisal was sufficiently manifested and intelligently understood" by the accused. Similarly, in People vs. Caguioa, the Court sustained the rejection by the trial court of the extrajudicial admission made by the accused during custodial investigation, there being no showing by the prosecution that there was sufficient compliance with the constitutional duty to inform the accused of his rights to silence and to counsel, without which there could be no intelligent waiver of said rights. In said case, the accused a native of Samar was interrogated in Tagalog. The prosecution did not show that the accused's acquaintance with Tagalog was such that he could fully understand the questions posed to him. LLjur All considered, we hold that the guilt of appellant has not been established beyond reasonable doubt. WHEREFORE, the appealed decision is reversed and set aside, and the appellant is hereby acquitted on the basis of reasonable doubt. SO ORDERED. Teehankee, Melencio-Herrera, Gutierrez, Jr., De la Fuente, and Patajo, JJ., concur.

[G.R. No. L-29169. August 19, 1968.] ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PRIVILEGE AGAINST SELFINCRIMINATION; BASIS THEREOF. The privilege against self-incrimination is based on the constitutional injunction that: "No person shall be compelled to be a witness against himself," fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled to be exempt from being a witness against

himself. While the admissions of confessions of the prisoner, when freely and voluntarily made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the question put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions which is so painfully evident in many of the earlier state trials, made the system so odious as to give rise to a demand for its total abolition. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonist that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment. 2. ID.; ID.; ID.; ORIGIN, NATURE AND PURPOSE THEREOF. An old Philippine case speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses which they were charged." So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant of valuable and substantive right; it is fundamental to our scheme of justice. The Supreme Court of the United States thru Mr. Justice Harlan warned that "the constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and the foresighted." It is in this context that the constitutional guarantee may not be treated with unconcern. Taada and Fernando take note of U.S. vs. Navarro, which reaffirms the rule that the constitutional prescription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. 3. ID.; ID.; ID.; CONCEPT OF COMPULSION. Compulsion as it is understood does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 4. ID.; ID.; ID.; ACCUSED DISTINGUISHED FROM ORDINARY WITNESS. An accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." This rule may apply even to a co-defendant in a joint trial.

5. ID.; ID.; ID.; PRECEPT. The guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but the capability of abuse." 6. ID.; ID.; ID.; WAIVER OF THE PRIVILEGE AGAINST SELF-INCRIMINATION; MEANING; REQUIREMENTS OF WAIVER. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver follows only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. 7. ID.; ID.; ID.; VIOLATION OF CONSTITUTIONAL RIGHT TO BE REPRESENTED BY COUNSEL IS JURISDICTIONAL BAR. A court's jurisdiction at the beginning of trial may be lost in the course of the proceedings due to failure to complete the court as the Sixth Amendment requires by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guarantee, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. 8. ID.; ID.; ID.; HABEAS CORPUS AS REMEDY WHERE THERE IS BREACH. Habeas Corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may be granted upon a judgment already final. The writ of habeas corpus as an extraordinary remedy must be liberally given effect so as to protect well a person whose liberty is at stake. CASTRO, J., Separate opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST SELF-INCRIMINATION. In 1901, early in the history of constitutional government in this country, this Court reversed the conviction of an accused who, having pleaded "not guilty," was required by the judge to testify and answer the complaint. The case was that of United States vs. Junio and even in the case of Cabal vs. Kapunan it was assumed as a familiar learning that the accused in a criminal case cannot be required to give testimony and that if his testimony is needed at all against his co-accused, he must first be discharged. If Cabal, the respondent in an administrative case, was required by an investigating committee to testify, it was because it was thought that proceedings for forfeiture of illegally acquired property under Republic Act 1379 were civil and not criminal in nature. 2. ID.; ID.; ID.; TAKING THE WITNESS STAND IS WITHIN THE PRIVILEGE. It is not disputed that the accused in a criminal case may refuse not only to answer incriminatory questions but also to take the witness stand. 3. ID.; ID.; ID.; AIM OF THE PRIVILEGE AGAINST SELF-INCRIMINATION. The constitutional provision that "No person shall be compelled to be a witness against himself" may, on occasion, save a guilty man from his just desserts, but it is aimed against a more

far-reaching evil - the recurrence of the inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. The Government must thus establish guilt by evidence independently and freely secured; it cannot by coercion prove a charge against an accused out of his own mouth. 4. ID.; ID.; ID.; MOTIVES IRRELEVANT IN THE PRESERVATION OF LIBERTIES. The motives of men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the guarantees of liberty contained in our constitution. The battle over the Bill of Rights is a never ending one. 5. ID.; HABEAS CORPUS; ITS OFFICE. The fact that the judgment of conviction became final with the dismissal of the appeal to the Court of Appeals for failure of the petitioner's former counsel to file a brief is of no moment. That judgment is void, and it is precisely the abiding concern of the writ of habeas corpus to provide redress for unconstitutional and wrongful convictions. Vindication of due process is precisely the historic office of the Great Writ. DECISION SANCHEZ, J p: The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction 1 he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law. The indictment in the court below the third amended information upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe. 2 Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle abovedescribed. Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty. On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City. The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:

"COURT: The parties may proceed. FISCAL GRECIA: Our first witness is Roger Chavez [one of the accused]: ATTY. CARBON [Counsel for petitioner Chavez]: I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the fiscal in presenting him as his witness. I object. COURT: On what ground, counsel? ATTY. CARBON: On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution. COURT (To the Fiscal): You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?. FISCAL GRECIA: I am not making him as state witness, Your Honor. I am only presenting him as an ordinary witness. ATTY. CARBON: As a matter of right, because it will incriminate my client, I object. COURT: The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the giving of his testimony. xxx xxx xxx

COURT: [after the recess] Are the parties ready?

FISCAL: We are ready to call on our first witness, Roger Chavez. ATTY. CARBON: As per understanding, the proceedings was suspended in order to enable me to confer with my client. I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire. COURT: What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witnessstand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witness stand. ATTY. CARBON: I submit. xxx xxx xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: MAY IT PLEASE THE COURT: This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel. This representation has been apprised of the witnesses embraced in the information. For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing. COURT:

The court will give counsel time within which to prepare his cross-examination of this witness. ATTY. CRUZ: I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information. I did not know until this morning that one of the accused will testify as witness for the prosecution. COURT: That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness. The court will not defer the taking of the direct examination of the witness. Call the witness to the witness-stand. EVIDENCE FOR THE PROSECUTION ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows: ATTY. IBASCO [Counsel for defendant Luis Asistio]: WITH THE LEAVE OF THE COURT: This witness, Roger Chavez is one of the accused in this case No. Q-5311. The information alleges conspiracy. Under Rule 123, Section 12, it states: 'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.' COURT: That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution wants to establish by calling this witness to the witness-stand. ATTY. IBASCO: I submit. COURT: The Fiscal may proceed." 3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia". Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows: A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop, informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez, known to be a car agent, was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon, Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21,000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer-notary public in Quezon City, known to Chavez, for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto. As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee. At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer. 4 Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and came back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it. Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.

From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows: In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00. To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000.00-loan backed up by the P5,000.00check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the next day, as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar. About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note. On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor. The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agent's commission the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez. At Eugene's, Chavez asked Sumilang for the balance, Sumilang accommodated. There, Sumilang also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign. After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang. When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel. Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang

consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded. The trial court gave credence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted. As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court. As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt." 5 The trial court branded him "a self-confessed culprit". 6 The court further continued: "It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez's accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself." 7 The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame. The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car. The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals. On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed. On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous. 8

On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to the turn him over to Muntinglupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment. It was at this stage that the present proceedings were commenced in this Court. Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented. We concentrate attention on that phase of the issues which relates to petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here. 1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right constitutionally entrenched against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that: "No person shall be compelled to be a witness against himself," 9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican government"; 10 that "[i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom." 11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " 'The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however, adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment.' (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821.)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against

the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged." So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16

It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Taada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) takes note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17 Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18 2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear-cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence. Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 19 an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly inhuman

procedure of compelling a person "to furnish the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial. 23 And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words: "What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witnessstand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witness-stand." Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, 25 while a defendant's knowledge of the facts "remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" to conviction. The judge's words heretofore quoted "But surely, counsel could not object to have the accused called on the witness-stand" wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice: the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent. 3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27 The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution." Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez' "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt"; and that Chavez is "a self-confessed culprit." 4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be

said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions in spite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and there on the first day of the trial. It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involved is not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver follows only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur. The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampant that gives protection even to the guilty. 30 5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. 34 That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise: "Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty. A court's jurisdiction at the beginning of trial may be lost 'in the course of the proceedings' due to failure to complete the court as the Sixth Amendment requires by providing Counsel for an accused who

is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus." 41 Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers . . ." 42 6. Respondent's return 43 shows that petitioner is still serving under a final and valid judgment of conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted. Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist. No costs. So ordered. Concepcion, C. J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur. [G.R. No. 85215. July 7, 1989.] THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents. Nelson Lidua for private respondent. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT AGAINST SELF-INCRIMINATION; RIGHT CONSTRUED. The right against selfincrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to

every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. The right is NOT to "be compelled to be a witness against himself." It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. 2. ID.; ID.; ID.; ID.; TIME TO ASSERT RIGHT. The right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. 3. ID.; ID.; ID.; ID.; NOT A SELF-EXECUTING RIGHT. The right against selfincrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 4. ID.; ID.; ID.; OTHER RIGHTS OF THE ACCUSED. The accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others 1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 5. ID.; ID.; ID.; RIGHT TO BE EXEMPT FROM BEING A WITNESS AGAINST HIMSELF, CONSTRUED. The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 6. ID.; ID.; ID.; RIGHTS OF THE ACCUSED BEFORE AND AFTER THE CASE IS FILED IN THE COURT. A person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in that matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify to his own behalf, subject to crossexamination by the prosecution; d) WHILE TESTIFYING, to refuse to answer a specific

question which tends to incriminate him for some time other than that for which he is prosecuted. 7. ID.; ID.; ID.; RIGHTS DURING CUSTODIAL INVESTIGATION DOES NOT ENCOMPASS STATEMENTS MADE DURING AN ADMINISTRATIVE INQUIRY; CASE AT BAR. Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the socalled "Miranda rights" had not been accorded to Ramos. DECISION NARVASA, J p: What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed. Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained. 2 On the day before the investigation, February 8, 1986, Ramos gave to his superiors a handwritten note 3 reading as follows: "2-8-86 TO WHOM IT MAY CONCERN: THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86. (s) Felipe Ramos F. Ramos"

(Printed)

At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise . . . to pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with by the parties at all; but it would seem that no compromise agreement was reached much less consummated. About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) ". . . with unfaithfulness and/or abuse of confidence, did then and there willfully . . . defraud the Philippine Airlines, Inc., Baguio Branch, . . . in the following manner, to wit: said accused . . . having been entrusted with and received in trust fare tickets of passengers for one-waytrip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, . . . once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there . . . misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, . . . failed and refused to make good his obligation, to the damage and prejudice of the offended party . . ." On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal. At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988, 6 which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission . . . given on February 8, 1986," also above referred to, which had been marked as Exhibit K. The defendant's attorneys filed "Objections/Comments to Plaintiffs Evidence." 7 Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.' " By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager . . . since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J.

Ramos, given on February 8, 1986 . . . for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission." The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, Peo. v. Galit, 135 SCRA 467, Peo. v. Sison, 142 SCRA 219, and Peo. v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited." These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People . . . vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question. The Court deems that there has been full ventilation of the issue of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it. At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent Judge has given a construction that is disputed by the People. The section reads as follows: SEC. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely: 1) the right against self-incrimination i.e., the right of a person not to be compelled to be a witness against himself set out in the first sentence, which is a verbatim

reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution, 12 and 2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense." Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self-incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The rights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. 13 Right Against Self-Incrimination The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to be a witness against himself." The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. 17 The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18 Rights in Custodial Interrogation Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.

This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20 Section 20 states that whenever any person is "under investigation for the commission of an offense" 1) he shall have the right to remain silent and to counsel, and to be informed of each right, 21 2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; 22 and 3) any confession obtained in violation of . . . (these rights shall be inadmissible in evidence). 23 In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. 24 He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a policedominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25 The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has also been more precisely described by this Court. 28 . . . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance."

Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances. Rights of Defendant in Criminal Case As Regards Giving of Testimony It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime. It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation." But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against selfincrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. 30 Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others 1) to be exempt from being a witness against himself, 31 and

2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32 The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross-examined as any other witness." He may be crossexamined as to any matters stated in his direct examination, or connected therewith. 36 He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged. It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa. In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in that matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) a) b) c) AFTER THE CASE IS FILED IN COURT 37 to refuse to be a witness; not to have any prejudice whatsoever result to him by such refusal; to testify to his own behalf, subject to cross-examination by the prosecution;

d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some time other than that for which he is prosecuted. It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside. It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial

interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos. His Honor adverts to what he perceives to be the "greater danger . . (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their overeagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy, and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability. Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all. WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus oficio, is now declared of no further force and effect. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

[G.R. No. 150224. May 19, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL YATAR alias "KAWIT", appellant. DECISION PER CURIAM p: On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to P511,410.00, and costs of litigation. 1 Appellant was charged with Rape with Homicide under the following Information: That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will. aECSHI CONTRARY TO LAW. 2 The facts are: On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar, through Kathylyn's friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that morning. 3 At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alone in the house. 4 Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel. They saw appellant at the back of the house. They went inside the house through the back door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he was getting lumber to bring to the house of his mother. 5 At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the ladder from the second floor of the house of Isabel Dawang and run towards the back of the house. 6 She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth at the back of the house. She did not find this unusual as appellant and his wife used to live in the house of Isabel Dawang. 7

At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber he had stacked, and that Isabel could use it. She noticed that appellant's eyes were "reddish and sharp." Appellant asked her where her husband was as he had something important to tell him. Judilyn's husband then arrived and appellant immediately left and went towards the back of the house of Isabel. 8 In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless body that was cold and rigid. 9 Isabel moved her hand throughout the entire body. She found out that it was the naked body of her granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of Isabel, Cion, called the police. 10 At 9:00 that evening, SPO4 Melchor Faniswa received a report that a dead woman was found in Isabel Dawang's house. Together with fellow police officers, Faniswa went to the house and found the naked body of Kathylyn Uba with multiple stab wounds. The people in the vicinity informed the police officers that appellant was seen going down the ladder of the house of Isabel Dawang at approximately 12:30 p.m. The police discovered the victim's panties, brassiere, denim pants, bag and sandals beside her naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50 meters from the house of Isabel. When questioned by the police authorities, appellant denied any knowledge of Kathylyns's death, 11 however, he was placed under police custody. On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police station. They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (He's running away!). Police Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Appellant was approximately 70 meters away from the station when Police Officer Abagan recaptured him. 12 He was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not guilty." After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly, sentenced to Death. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief, appellant assigns the following errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS.

II THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT. Appellant's contentions are unmeritorious. The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. This Court will not interfere with the judgment of the trial court in determining the credibility of witnesses unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted. 13 Well-entrenched is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same; the reason being that the former is in a better and unique position of hearing first hand the witnesses and observing their deportment, conduct and attitude. 14 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, the trial judge's assessment of credibility deserves the appellate court's highest respect. 15 Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit. 16 The weight of the prosecution's evidence must be appreciated in light of the well-settled rule which provides that an accused can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime. 17 Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised, were found on the victim's abdomen and back, causing a portion of her small intestines to spill out of her body. 18 Rigor mortis of the victim's body was complete when Dr. Bartolo examined the victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) to twelve (12) hours prior to the completion of rigor mortis. 19 In other words, the estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses. It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim, 20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual intercourse with the victim. 21 In addition, it is apparent from the pictures submitted by the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm indicating resistance to the appellant's assault on her virtue. 22 Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellant's gene type. ESHcTD DNA is a molecule that encodes the genetic information in all living organisms. 23 A person's DNA is the same in each cell and it does not change throughout a person's lifetime; the DNA in a person's blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal

cells. 24 Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. 25 DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used. 26 Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victim's body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victim's body during the assault. 27 Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime. 28 The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus, getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify small samples using the PCR method. In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. 29 In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. 30 Based on Dr. de Ungria's testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. 31 The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken from the victim's vaginal canal. 32 Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow, 33 it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. 34 Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Independently of the physical evidence of appellant's semen found in the victim's vaginal canal, the trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the victim, Kathylyn Uba; (2) In June 1998, appellant's wife left the house because of their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victim's vagina (Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are identical; and (13) Appellant escaped two days after he was detained but was subsequently apprehended, such flight being indicative of guilt. 35 Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 36 In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution. This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. 37 The right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. We ruled in People v. Rondero 38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. Under People v. Gallarde, 39

where immediately after the incident, the police authorities took pictures of the accused without the presence of counsel, we ruled that there was no violation of the right against self-incrimination. The accused may be compelled to submit to a physical examination to determine his involvement in an offense of which he is accused.

It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30, 2000, in the presence of counsel. Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an expost facto law. This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual determination of the probative weight of the evidence presented. Appellant's twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawang's house during the time when the crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at the same time, especially in this case where the two places are located in the same barangay. 40 He lives within a one hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach one house from the other. This fact severely weakens his alibi. As to the second assignment of error, appellant asserts that the court a quo committed reversible error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt. Appellant's assertion cannot be sustained. Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value." 41 This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt. 42 This requires that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged. 43 In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of moral certainty.

However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit. 44 Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang. 45 She witnessed the appellant running down the stairs of Isabel's house and proceeding to the back of the same house. 46 She also testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel Yatar attempted to rape her after she came from the school." 47 The victim told Judilyn about the incident or attempt of the appellant to rape her five days before her naked and violated body was found dead in her grandmother's house on June 25, 1998. 48 In addition, Judilyn also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to kill our family." 49 According to Judilyn, who was personally present during an argument between her aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your relatives . . ." 50 These statements were not contradicted by appellant. Thus, appellant's motive to sexually assault and kill the victim was evident in the instant case. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred. 51 Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victim's lips by stabbing her repeatedly, thereby causing her untimely demise. The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or intimidation, appellant killed the woman. 52 However, in rape committed by close kin, such as the victim's father, step-father, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed. 53 Moral influence or ascendancy takes the place of violence and intimidation. 54 The fact that the victim's hymen is intact does not negate a finding that rape was committed as mere entry by the penis into the lips of the female genital organ, even without rupture or laceration of the hymen, suffices for conviction of rape. 55 The strength and dilatability of the hymen are invariable; it may be so elastic as to stretch without laceration during intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age. 56 In the case at bar, appellant is the husband of the victim's aunt. He is seven years older than the victim Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law, together with the victim and his wife. After the separation, appellant moved to the house of his parents, approximately one hundred (100) meters from his mother-in-law's house. Being a relative by affinity within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the victim. Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be lawfully imposed in the case at bar.

As to damages, civil indemnity ex delicto of P100,000.00, 57 actual damages incurred by the family of the victim that have been proved at the trial amounting to P93,190.00, 58 and moral damages of P75,000.00 59 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages cannot be awarded as part of the civil liability since the crime was not committed with one or more aggravating circumstances. 60 WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED. Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. Costs de oficio. SO ORDERED. HcTEaA Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ ., concur.

[G.R. No. 61570. February 12, 1990.] RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all surnamed FULGADO, petitioners, vs. HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, ISMAEL PORCIUNCULA and DOMINGA MACARULAY, respondents. Dollete, Blanco, Ejercito & Associates for petitioners. Ramon Tuangco for private respondents. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; THE RIGHT TO CROSSEXAMINATION REQUIRES MERELY AN OPPORTUNITY TO EXERCISE SUCH RIGHT. The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. 2. ID.; ID.; ID.; ID.; TESTIMONY NOT EXCLUDED IF FAILURE OF CROSS-EXAMINATION WAS DUE TO CROSS-EXAMINER'S FAULT. There is no disputing that where there was no such opportunity (to cross examine) and the want of it was caused by the party offering (plaintiff), the testimony should be stricken out. However, where the failure to obtain crossexamination was imputable to the cross examiner's fault, the lack of cross-examination is no longer a ground for exclusion according to the general principle that an opportunity, though waived, will suffice.

3. ID.; ID.; ID.; INTENTION TO UTILIZE RIGHT TO CROSS-EXAMINE WITNESS MUST BE EXPRESSED. The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiff's witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of the case on plaintiff's shoulders can be construed to extremes as what happened in the instant proceedings. 4. ID.; ID.; ID.; WHOLESALE EXCLUSION OF TESTIMONIES, AN INFLEXIBLE SOLUTION ; ALTERNATIVE IS TO ADMIT THE DIRECT EXAMINATION. Having had the liberty to cross-examine and having opted not to exercise it, the case is then the same in effect as if private respondent had actually cross-examined. We therefore hold that it was gross error for both the trial court and the Appellate Court to dismiss the complaint in Civil Case No. 10256 on the ultimate ground that there was an alleged failure of crossexamination. The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse because it prejudiced the party whose only fault during the entire proceedings was to die before he could be cross-examined. The prudent alternative should have been to admit the direct examination so far as the loss of cross-examination could have been shown to be not in that instance a material loss. And more compellingly so in the instant case where it has become evident that the adverse party was afforded a reasonable chance for cross-examination but through his own fault failed to cross-examine the witness. Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or his witness, it seems a harsh measure to strike out all that has been obtained in the direct examination. DECISION FERNAN, C.J p: On September 9, 1967, Ruperto Fulgado, a man approaching the twilight of his life, undertook the arduous task of filing an action in the Court of First Instance of Rizal, Pasig branch, against Rufino Custodio, Simplicia Custodio, Arsenio Piguing, Ismael Porciuncula and Dominga Macarulay for the annulment of certain contracts of sale and partition with accounting. 1 The defendants (herein private respondents) filed their answer to the complaint with special and affirmative defenses and a counterclaim. After several deferments, the pre-trial conference was finally set for February 1, 1968 at 8:30 in the morning. Private respondents and their counsel failed to appear on time at the pretrial and were subsequently declared as in default. Plaintiff Fulgado was then allowed to present his evidence ex parte before the Deputy Clerk of Court. Meanwhile, upon learning of their predicament, private respondents immediately filed a motion to lift the order of default on the same day that the order was issued. The trial court denied said motion in its order of February 16, 1972. Their motion for reconsideration was also denied. Persistently, respondents filed a petition for relief from the default order. Once more, this was denied. On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto Fulgado. On appeal, however, the Court of Appeals found that private respondents had been deprived of

their day in court by the unjust denial of their motion to lift the order of default. 2 The Appellate Court, in no less than explicit terms, said: "WHEREFORE, the decision of the court a quo is hereby set aside and the case is remanded to the court of origin for trial on the merits, granting to the defendants the opportunity to present their evidence, provided, however, that the evidence already presented before the commissioner shall stand, but with the right of the defendants to cross-examine the witness who had already testified and with the right of the plaintiff to present additional evidence that then he may decide. Without costs" 3 The Court of Appeals' decision became final and executory on June 27, 1974 and the records of the case were remanded to the trial court. On July 3, 1975, or more than a year after the finality of the Appellate Court's decision, counsel for private respondents moved that the trial court "include th(e) case in any date of the August and September calendar of the Court, at the usual hour in the morning." 4 The case was set for hearing on September 16, 1975. Unfortunately, the presiding judge went on official leave and the hearing was postponed anew to January 15 and February 15, 1976. In the meantime, plaintiff Ruperto Fulgado died on November 25, 1975 and was substituted by his children as party plaintiffs. Fulgado's witness, Jose Fulgado, referred to in the dispositive part of the Appellate Court's judgment, had earlier migrated to the United States on September 16, 1974. cdphil When the case was heard on May 4, 1976, the following proceedings transpired: "Atty. Dollete: "For the plaintiff, Your Honor. If your Honor please, may I inform this Honorable Court that this is a remanded case from the Court of Appeals for cross-examination or presentation by the plaintiff of any additional evidence. But we have no further evidence in this case . . . except those evidence already adduced in the lower court before it was appealed in the Court of Appeals. It is up for the defense now to cross-examine the witnesses. "Court (To Atty. Tuangco): "You are through with the cross-examination? "Atty. Tuangco: "Not yet, Your Honor, we were granted by the Court of Appeals the right to crossexamine the witnesses . . . The last time this case was called for hearing by this Honorable Court, the Presiding Judge tried to make the parties come to a settlement, but it seems that they could not come to such settlement. I advised my clients to try to meet them. So now, this is the stage where they could not agree and so we will be proceeding with the crossexamination of the witnesses. "Atty. Dollete: "There were only two witnesses. Two witnesses were presented, one is Ruperto Fulgado and he died already. Your Honor, the other witness was Jose Fulgado who is now abroad for almost a year, Your Honor.

"Atty. Tuangco: "I understand that the other witness was here on a visit, Your Honor. He came back. "Court: "So, what shall we do now? "Atty. Tuangco: "So, I move to strike out the testimonies of the witnesses who testified on the ground that we were deprived of our right to cross-examine them. "Atty. Dollete: "We will submit, Your Honor, for resolution the motion of the defendants. "Court (To Atty. Tuangco): "So, what do you want? "Atty. Tuangco: "That the whole testimonies of the two witnesses who were presented ex parte be stricken off the record because we have not been granted the right of cross-examining them and they are not available at this stage, Your Honor. "Atty. Dollete: "We will submit Your Honor. We maintain, Your Honor. Our opposition is that it hinges on the fact that defendants committed laches in their failure to cross-examine the witness. That is our opposition. "Court: "Why? "Atty. Dollete: "There were several opportunities for them to cross-examine especially the witness Ruperto Fulgado, Your Honor. They are with full knowledge of the age of this witness. They could have taken steps to assert their right granted by the Court of Appeals. Notwithstanding their knowledge about the age, the advanced age and health condition of this witness Ruperto Fulgado, then we maintain, Your Honor, that defendants, in a way, have committed laches in the assertion of their right to cross-examine. "Atty. Tuangco: "The records will show Your Honor, that it was the defendants who moved to set this case for hearing upon the remanding of the records from the Court of Appeals. "Court:

"You make a written motion and I will grant you a period of ten (10) days within which to file an opposition and then another additional period of ten (10) days within which to reply. Then this matter shall be deemed submitted for resolution. But the fact is clear now that plaintiff has no more additional evidence. "Atty. Dollete: "Yes, Your Honor. "Court: "So that in case the court favorably grants the motion of defendants and orders the striking out of the testimonies of Ruperto Fulgado and the other witness, together with the documentary evidence, the plaintiff had no more evidence to offer. "Atty. Dollete: "Yes, Your Honor. We stand on the evidence on Record." 5 On June 30, 1976, the trial court issued an order dismissing the case. It decreed: "For reason stated in the defendants' motion filed on May 18, 1976, which the Court finds meritorious, the testimonies of plaintiff's witnesses Ruperto Fulgado and Jose Fulgado, who were not presented by the plaintiff so that the defendants could cross-examine them on May 4, 1976, are stricken off the record and, as a consequence, in view of the manifestation of plaintiff's counsel that he had no more witnesses to present, the above-entitled case is dismissed without pronouncement as to costs." 6 On appeal to the Appellate Court in C.A.-G.R No. 62353-R, said order was affirmed on June 30, 1982. 7 Petitioners now question said affirmance before this Court in the instant petition for review. The principal issue in the case at bar is the propriety of the exclusion of the testimonies given by the now deceased Ruperto Fulgado and his witness, Jose Fulgado, who has departed for the United States, which resulted in the dismissal of the complaint. Private respondents maintain that such testimonies are wholly inadmissible for being hearsay, because respondents were not able to cross-examine the witnesses. Petitioners, on the other hand, contend that while the right to cross-examination is an essential part of due process, the same may however be waived as the private respondent have done when they allowed an unreasonable length of time to lapse from the inception of the opportunity to cross-examine before availing themselves of such right and likewise when they failed to exhaust other remedies to secure the exercise of such right. The appeal is well-taken. In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 8 and the cases cited thereunder, the Court, speaking through Justice Muoz Palma, has provided us with a concise overview of the right to cross-examination as a vital element of due process. Thus: Cdpr "The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals

with quasi-judicial powers, is a fundamental right which is part of due process. However, the right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the light of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. "The conduct of a party which may be construed as an implied waiver of the right to crossexamine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone." The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. 9 Thus the resolution of the present case would hinge on whether or not this was an opportunity for cross-examination. There is no disputing that where there was no such opportunity (to cross examine) and the want of it was caused by the party offering (plaintiff), the testimony should be stricken out. However, where the failure to obtain cross-examination was imputable to the cross examiner's fault, the lack of cross-examination is no longer a ground for exclusion according to the general principle that an opportunity, though waived, will suffice. 10 From the records presented, it is manifest that private respondents had enough opportunity to cross-examine plaintiff Ruperto Fulgado before his death, and Jose Fulgado before his migration to the United States. Conceding that private respondents lost their standing in court during the time they were in default, they were no longer in that situation on June 6, 1974 when the Court of Appeals set aside the default judgment in CA-G.R. No. 42590-R and remanded the case to the court of origin for trial on the merits, "granting to the defendants the opportunity to present their evidence . . ." 11 This was a positive signal for them to proceed with the cross-examination of the two Fulgados, a right previously withheld from them when they were considered in default. But despite knowledge of Ruperto's failing health (he was then 89 years of age) and Jose's imminent travel to the United States, private respondents did not move swiftly and decisively. They tarried for more than one year from the finality of the Appellate Court's decision on June 27, 1974 to ask the trial court on July 3, 1975 to set the already much delayed case for hearing "in any date of August and September . . ." 12 Such inaction on the part of private respondents cannot be easily dismissed by the argument that it is the duty of the plaintiff to always take the initiative in keeping the proceedings "alive." At best, the argument is fatuous. The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiff's witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of the case on plaintiff's shoulders can be construed to extremes as what happened in the instant proceedings. cdphil

Having had the liberty to cross-examine and having opted not to exercise it, the case is then the same in effect as if private respondent had actually cross-examined. We therefore hold that it was gross error for both the trial court and the Appellate Court to dismiss the complaint in Civil Case No. 10256 on the ultimate ground that there was an alleged failure of cross-examination. The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse because it prejudiced the party whose only fault during the entire proceedings was to die before he could be cross-examined. The prudent alternative should have been to admit the direct examination so far as the loss of cross-examination could have been shown to be not in that instance a material loss. 13 And more compellingly so in the instant case where it has become evident that the adverse party was afforded a reasonable chance for cross-examination but through his own fault failed to cross-examine the witness. Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or his witness, it seems a harsh measure to strike out all that has been obtained in the direct examination. 14 As to the witness Jose Fulgado who is reportedly abroad, private respondents could have resorted to the various modes of discovery under the Rules of Court to cross-examine Jose. During the hearing of May 4, 1976, counsel for private respondents unwittingly or wittingly disclosed that they knew that Jose was in the country "for a visit" but they did not exert any effort to have him subpoenaed. Altogether, the acts of private respondents constitute a waiver, and consequently, a forfeiture of their right to cross-examination. And having failed to make use of this right, the consequences should rightfully fall on them and not on their adversary. llcd WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No. 62353-R dated June 30, 1982 is SET ASIDE. The trial court is ordered to REINSTATE Civil Case No. 10256 and to allow the direct testimonies of plaintiff Ruperto Fulgado and his witness Jose Fulgado to remain in the record. The court is further ordered to give priority to the hearing of said case in view of the length of time that it has remained unresolved on account of procedural differences. This judgment is immediately executory. No costs. Gutierrez, Jr., Feliciano, Bidin and Corts, JJ., concur.

[G.R. No. 118435. June 20, 1997.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO SERZO, JR., accused-appellant. The Solicitor General for plaintiff-appellee. Carmelo I. Arcilla for accused-appellant. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF AN ACCUSED TO COUNSEL, AS GUARANTEED BY THE CONSTITUTION. The right of an accused to counsel is guaranteed by the Constitution, the supreme law of the land. This right is granted to minimize the imbalance in the adversarial system where the accused is pitted against the awesome prosecutory machinery of the state. In the words of Justice Black, this is a

"recognition . . . that an average (accused) does not have the professional skill to protect himself . . . before a tribunal with power to take his life or liberty, wherein the (prosecutor) is . . . an experienced and learned counsel." In Powell vs. Alabama, Mr. Justice Sutherland wrote at greater length on why an accused needs a competent counsel: "Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." The right covers the period beginning from custodial investigation, well into the rendition of judgment, and even on appeal. Article III of the 1987 Constitution provides this right to an accused not only during trial but even before an information is filed. HEcaIC 2. ID.; ID.; ID.; RIGHT TO COUNSEL DE PARTE; NOT ABSOLUTE. An accused may exercise his right to counsel by electing to be represented either by a court-appointed lawyer or by one of his own choice. While his right to be represented by counsel is immutable, his option to secure the services of counsel de parte, however, is not absolute. The court is obliged to balance the privilege to retain a counsel of choice against the state's and the offended party's equally important right to speedy and adequate justice. Thus, the court may restrict the accused's option to retain a counsel de parte if the accused insists on an attorney he cannot afford, or the chosen counsel is not a member of the bar, or the attorney declines to represent the accused for a valid reason, e.g. conflict of interest and the like. 3. ID.; ID.; ID.; ID.; WAIVABLE LIKE OTHER PERSONAL RIGHTS. The right to counsel de parte is, like other personal rights, waivable so long as (1) 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" and (2) the waiver is unequivocally, knowingly and intelligently made. SHTEaA 4. ID.; ID.; ID.; ID.; APPELLANT WAS AFFORDED A CHANCE TO BE HEARD BUT BY HIS OWN NEGLECT OR MISCHIEF, HE EFFECTIVELY WAIVED SUCH RIGHT. Appellant did not demonstrate in what way the services of his counsels de oficio were unsatisfactory. He did not cite any instance substantiating his claim that he was not effectively represented. In short, he was afforded a chance to be heard by counsel of his own choice, but by his own neglect or mischief, he effectively waived such right. It taxes the mind to think that, almost two years since appellant first invoked his right to be represented by counsel de parte, he still could not find one who would suit his needs and desires. Neither did he cooperate with his court-named lawyer. 5. ID.; ID.; ID.; ID.; THE FACTS OF THE PRESENT CASE DO NOT CONSTITUTE A DEPRIVATION OF APPELLANT'S CONSTITUTIONAL RIGHT TO COUNSEL. The facts of this case do not constitute a deprivation of appellant's constitutional right to counsel because he was adequately represented by three court-appointed lawyers: Atty. Lina-ac, Atty. Antonano and Atty. Garcia. Courts are not required to await indefinitely the pleasure and convenience of the accused as they are also mandated to promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with the rules. Indeed, public policy requires that the trial continue as scheduled, considering that appellant was adequately represented by counsels who were not shown to be negligent, incompetent or otherwise unable to represent him. EaTCSA

6. CRIMINAL LAW; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; THE MANNER OF THE ATTACK ON THE VICTIM ITSELF IS ENOUGH PROOF OF ALEVOSIA; CASE AT BAR. Based on the facts established by the prosecution which remains uncontested, the Court affirms the trial court's appreciation of the qualifying circumstance of treachery. To constitute treachery, two conditions must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate and (2) deliberate or conscious adoption of the means of execution. The manner of the attack itself is proof enough of alevosia. Widow Adelaida vividly described the stabbing. According to her testimony, it appears that appellant waited for the victim and his wife and pounced on them swiftly and without warning. The victim and his wife were already on their way home after transferring appellant's children to a safe place. They were unarmed as they had absolutely no idea that appellant would attack them right then and from behind. The manner of the attack tended directly and especially to insure the execution of the crime without risk to appellant and virtually no chance for the victim to defend himself. Even Adelaida's life would have been mortally threatened were it not for the timely intervention of her neighbors. 7. ID.; CIVIL LIABILITY; DAMAGES; WITHOUT ANY FACTUAL BASIS, THE AWARD OF MORAL DAMAGES IS NOT JUSTIFIED. Actual and moral damages require the presentation of proof before they can be awarded by the trial court. According to Adelaida, burial expenses in the amount of P2,000.00 were incurred. This is separate and distinct from civil indemnity awarded under prevailing jurisprudence, which is granted without further proof beyond the fact of death and the accused's responsibility therefor. Moral damages were not discussed at all in Adelaida's testimony. Hence, without any factual basis, the award of moral damages is not justified. cSHATC DECISION PANGANIBAN, J p: The right to counsel of an accused is guaranteed by our Constitution, our laws and our Rules of Court. During custodial investigation, arraignment, trial and even on appeal, the accused is given the option to be represented by a counsel of his choice. But when he neglects or refuses to exercise this option during arraignment and trial, the court shall appoint one for him. While the right to be represented by counsel is absolute, the accused's option to hire one of his own choice is limited. Such option cannot be used to sanction reprehensible dilatory tactics, to trifle with the Rules or to prejudice the equally important rights of the state and the offended party to speedy and adequate justice. This will be amplified in this appeal seeking the reversal of the August 23, 1994 Decision of the Regional Trial Court of Antipolo, Rizal, Branch 72, 1 in Criminal Case No. 90-5997 convicting Appellant Mario Serzo, Jr. of murder under Article 248 of the Revised Penal Code. Appellant was charged with murder in an Information dated September 4, 1990 filed by Rizal Assistant Provincial Prosecutor Filipinas Z. Aguilar-Ata, worded as follows: 2 "That on or about the 22nd day of August, 1990, in the Municipality of Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with bladed weapon, with intent to kill, with treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab one Alfredo Alcantara y Casabal at the back, thereby inflicting upon him stab wounds which directly caused his death." Thereafter, pre-trial was waived and the case proceeded to trial on the merits. After arraignment and trial, appellant was found guilty as charged and sentenced thus: 3

"WHEREFORE, on the basis of the foregoing, the Court finds accused GUILTY BEYOND REASONABLE DOUBT of having committed the crime of MURDER and as prescribed under Article 248 of the Revised Penal Code, hereby sentences accused to suffer the penalty of reclusion perpetua and to indemnify the victim's wife in the amount of FIFTY THOUSAND PESOS (P50,000.00) as actual damages and TWENTY FIVE THOUSAND PESOS (P25,000.00) as moral damages and costs." The Antecedents Summarizing the testimonies of Adelaida Alcantara (the victim's widow), Medico-Legal Officer Dario L. Gajardo and Epifania Andrade, the trial court found the following facts: 4 "Alfredo Alcantara y Casabal never knew that death was just around the corner inevitably meeting his way. That fateful night of August 22, 1990, Alfredo together with his wife Adelaida Alcantara were (sic) staying inside their house comfortably watching television when at around 11:30 in the evening, Susana Serzo, mother of the accused, and one Epifania Bentilacion came knocking at their doorsteps and pleading for help to bring out her grandchildren who were being held inside their house by her son, the accused in this case. Unhesitatingly, the couple heeded their call and went with them at (sic) their house, located just across the private complainant's residence. The spouses were able to rescue the grandchildren and to bring them to a safer place. When returning to their house, Alfredo Alcantara who was walking just armslength ahead of his wife, was attacked by accused Mario Serzo from behind. Accused stabbed Alfredo at his back forcing the latter to scamper for his dear life. However, accused was able to overpower him thereby causing his fall in the canal where he was repeatedly stabbed by the accused. Adelaida Alcantara shouted for help but was likewise attacked by the accused as she was only half-meter away from her husband. However, Adelaida fortunately was able to hold the hand of the knifewielder and persistently fought the accused. (p. 05 TSN June 3, 1991) At that moment, the commotion had already caught the attention of the residents within the vicinity who responded to help her thereby causing the accused to flee. The victim Alfredo Alcantara, who remained lying and motionless in the canal, was rushed to the hospital where he was confirmed dead. (p. 06 TSN June 3, 1991) The Medico-legal Officer, Dr. Dario Gajardo, testified in Court that the victim sustained three (3) stab wounds, two at the back and one in his chest, which instantaneously caused the victim's death. (p. 04 TSN May 13, 1991)" In view of appellant's allegation that he was denied his right to counsel, a narration of the proceedings before the trial court is now in order. Arraignment was set by the trial court on January 8, 1991, during which appellant appeared without counsel. Consequently, the trial court appointed Atty. Wilfredo Lina-ac as counsel de oficio for the arraignment only. Appellant, however, moved that the arraignment be reset and that he be given time to engage a counsel of his own choice, which the trial court granted. 5 On February 11, 1991, appellant appeared without a counsel de parte. He was nonetheless arraigned with the assistance of Counsel de oficio Wilfredo Lina-ac. 6 He pleaded "not guilty." Pre-trial was waived and trial was set on April 22, May 6 and 13, 1991 for the reception of the prosecution evidence and June 3 and 17, 1991 for the defense. The hearings scheduled on April 22, 1991 and May 6, 1991 were cancelled on motion of Public Prosecutor Robert H. Tobia. 7 On both dates, appellant appeared with Atty. Lina-ac. On May 13 and June 3, 1991, trial proceeded with the testimonies of prosecution witnesses. On behalf of appellant, Atty. Lina-ac cross-examined the said witnesses. On June 17, 1991, trial was again cancelled as appellant appeared without counsel. 8 On August 13, 1991, the prosecution rested its case. 9

On November 4 and 11, 1991, presentation of evidence for the defense was reset as appellant was not ready to testify 10 and he manifested his intention to secure the services of a counsel de parte. 11 On March 3, 1992, Atty. Lina-ac was relieved as counsel de oficio in view of appellant's manifestation and refusal to cooperate with said counsel. 12 On April 6, 1992 appellant appeared without counsel, forcing the trial court to appoint another counsel de oficio, Bella Antonano. Counsels for both parties agreed to reset the trial, but appellant refused to sign the minutes of the proceedings. 13 On April 27, 1992, 14 over vehement objection from the prosecution, hearing was reset for the last time as appellant was still looking for a counsel de parte. 15 On August 25, 1992, appellant appeared without counsel; thus, the trial court appointed Atty. Bonifacia Garcia of the Public Attorney's Office (PAO) as appellant's counsel de oficio. Again, trial was postponed. 16 On September 1 and October 19, 1992, trial was postponed on motion of Atty. Garcia. 17 Appellant again refused to sign the minutes of the proceedings for both trial dates. On November 5, 1992, appellant refused to cooperate with Atty. Garcia by declining to take the witness stand, forcing the defense to rest its case. 18 Both parties were ordered to submit their respective memoranda in ten days, after which the case would be submitted for decision. Atty. Garcia was further ordered to manifest within the same period whether appellant would change his mind and cooperate with her. No memorandum or manifestation was ever filed by appellant. Appellant wrote Judge Angeles three times within the period beginning December 16, 1992 until April 2, 1993, seeking legal advice and the early resolution of the case. Branch Clerk of Court Melchisedek A. Guan replied to him twice, informing him that Judge Angeles was prohibited by law from giving legal advice to litigants in cases pending in his court and that a decision was forthcoming. On July 13, 1994, appellant wrote Deputy Court Administrator Reynaldo L. Suarez, asking for the early resolution of his case. 19 The latter referred said letter to Judge Angeles for appropriate action. Thereafter, the assailed Decision convicting appellant of murder was promulgated on August 23, 1994. Ruling of the Trial Court In its Decision, the trial court noted that appellant simply refused to secure the services of a counsel de parte and to present evidence in his defense despite ample opportunity accorded to him. Said the trial court: "The defense particularly the accused assisted by counsel however refused to present any evidence despite several opportunities afforded by the Court. As early as the arraignment stage, accused refused to be assisted by a counsel de oficio from the Public Attorney's Office (PAO) insisting that he be assisted by a counsel of his own choice. For several settings, accused and her (sic) mother were allowed to secure the services of a counsel de parte. However, they failed to present one. Hence, the Court, to avoid further delay in the proceedings of the case, was constrained to assign a counsel de oficio from the PAO. During the presentation of evidence for the defense, accused and counsel could not present any witness as accused refused to cooperate and to testify in Court. Hence, the defense waived its right to present any evidence. Considering that this case has been dragging for several years already . . . the court . . . afforded the defense another opportunity to present its case by submitting its memorandum simultaneously with the Prosecution. Thereafter, the case was submitted for decision." 20

Consequently, the trial court convicted appellant on the basis of the evidence presented by the prosecution. Appellant was positively identified as the assailant by the widow, Adelaida Alcantara, who survived his attack. In her distinct and vivid narration of the sequence of events leading to the murder, she showed that the attack was treacherous as the victim was stabbed at the back and without warning. Not satisfied with the trial court's Decision, appellant through Counsel Carmelo L. Arcilla 21 appealed to this Court. Assignment of Errors In his Brief filed by Atty. Arcilla, appellant questions his conviction for murder based on the following alleged errors on the part of the trial court: 22 "I The lower court erred in not giving the defendant-appellant time to engage counsel of his own choice. "II The lower court erred in not affording the defendant-appellant the chance to present evidence for his defense. "III The lower court erred in not acquitting the defendant-appellant." Mainly, appellant alleges that he had been denied effective legal representation. His thesis is that the trial court did not give him enough time to engage a counsel de parte, effectively depriving him of the chance to present evidence in his defense. In fact, the scant five-page Appellant's Brief was dedicated entirely to this argument without contesting the facts found by the trial court. The Court's Ruling The right of an accused to counsel is guaranteed by the Constitution, the supreme law of the land. This right is granted to minimize the imbalance in the adversarial system where the accused is pitted against the awesome prosecutory machinery of the state. In the words of Justice Black, 23 this is a "recognition . . . that an average (accused) does not have the professional skill to protect himself . . . before a tribunal with power to take his life or liberty, wherein the (prosecutor) is . . . an experienced and learned counsel." In Powell vs. Alabama, 24 Mr. Justice Sutherland wrote at greater length on why an accused needs a competent counsel: "Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings

against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." prcd The right covers the period beginning from custodial investigation, well into the rendition of judgment, 25 and even on appeal. Article III of the 1987 Constitution provides this right to an accused not only during trial but even before an information is filed. It provides: "SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel." "SEC. 14 (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, . . ." With these precepts as springboard, the Rules of Court grants an accused the right to counsel under the following provisions, viz.: "RULE 112 PRELIMINARY INVESTIGATION xxx xxx xxx

SEC. 7. When accused lawfully arrested without warrant. . . . However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. . . . xxx RULE 113 ARREST SEC. 14. Right of attorney or relative to visit person arrested. Any member of the bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person, in the jail or any other place of custody at any hour of the day or, in urgent cases, of the night. This right shall also be exercised by any relative of the person arrested subject to reasonable regulation. Rule 115 RIGHTS OF ACCUSED xxx xxx

SEC. 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled: xxx xxx xxx

(c) To be present and defend in person and by counsel at every stage of the proceedings, from the arraignment to the promulgation of the judgment. . . . xxx xxx xxx"

Rule 116 of the Rules of Court makes it compulsory that the trial court inform the accused of his right to counsel prior to arraignment, thus: "SEC. 6. Duty of court to inform accused of his right to counsel. Before arraignment, the court shall inform the accused of his right to counsel and shall ask him if he desires to have one. Unless the accused is allowed to defend himself in person, or he has employed counsel of his choice, the court must assign a counsel de oficio to defend him. SEC. 7. Appointment of counsel de oficio. The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the bar in good standing who, by reason of their experience and ability may adequately defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused." Even on appeal, the accused is still afforded the right to counsel under Rule 122: 26 "SEC. 13. Appointment of counsel de oficio for accused on appeal. It shall be the duty of the clerk of the trial court upon the presentation of a notice of appeal in a criminal case, to ascertain from the appellant, if he be confined in prison, whether he desires the Court of Appeals or the Supreme Court to appoint a counsel to defend him de oficio and to transmit with the record, upon a form to be prepared by the clerk of the appellate court, a certificate of compliance with this duty and of the response of the appellant to his inquiry." The foregoing is buttressed by another provision in Rule 124: "SEC. 2. Appointment of counsel de oficio for the accused. If it appears from the record of the case as transmitted: (a) that the accused is confined in prison, (b) without counsel de parte on appeal, and (c) signed the notice of appeal himself, then the clerk of the Court of Appeals shall designate a member of the bar to defend him, such designation to be made by rotation, unless otherwise directed by order of the court. An accused-appellant not confined in prison shall not be entitled to a counsel de oficio, unless the appointment of such counsel is requested in the appellate court within ten (10) days from receipt of the notice to file brief and the right thereto is established by affidavit." Recently, Republic Act No. 7438 was enacted providing, inter alia, that any person arrested, detained or under custodial investigation shall at all times be assisted by counsel. A deprivation of the right to counsel divests the accused of an equality in arms resulting in the denial of a level playing field, so to speak. In a previous case, this Court held that an accused was deprived of his right to counsel when he retained the services of a person who misrepresented himself as a lawyer. 27 In People vs. Malunsing, 28 retrial was ordered on

the ground that petitioner was denied his constitutional right to counsel. Very old and unlettered, he was shown not to have understood what was going on during the trial. In said case, although the lawyer of his co-accused was appointed as his counsel, petitioner was not properly apprised by said court of his right to be assisted by counsel. No evidence was presented for and on his behalf and the trial court did not even bother to inquire why he did not take the witness stand when all the other defendants were presented as witnesses. This is the legal backdrop against which appellant's allegation of deprivation of his right to counsel shall be measured. Right to Counsel De Parte Is Not Absolute Accordingly, an accused may exercise his right to counsel by electing to be represented either by a court-appointed lawyer or by one of his own choice. While his right to be represented by counsel is immutable, his option to secure the services of counsel de parte, however, is not absolute. The court is obliged to balance the privilege to retain a counsel of choice against the state's and the offended party's equally important right to speedy and adequate justice. Thus, the court may restrict the accused's option to retain a counsel de parte if the accused insists on an attorney he cannot afford, or the chosen counsel is not a member of the bar, or the attorney declines to represent the accused for a valid reason, e. g. conflict of interest and the like. 29 Also, the right to counsel de parte is, like other personal rights, waivable 30 so long as (1) 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 31 and (2) the waiver is unequivocally, knowingly and intelligently made. 32 In Sayson vs. People, 33 this Court held that the duty of the court to appoint a counsel de oficio is not mandatory 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 was due, he appears by himself alone because of the inexcusable absence of his counsel. In another case, this Court held that the right to be heard and to reopen the case (and send it to trial anew) could not be allowed if doing so would sanction a plainly dilatory tactic and a reprehensible trifling with the orderly administration of justice. 34 In the present case, appellant claims that he was not given sufficient time to engage a counsel de parte, thereby preventing him from presenting evidence in his defense. In his Brief he adds, but without giving particulars or proof, that allegedly his counsels de oficio did not exert their "utmost efforts" in representing him, thus: 35 ". . . (T)he lower court afforded the accused the assistance of counsel de oficio as early as the arraignment stage but failed to show that utmost efforts were exerted by said counsel to defend the life and liberty of the accused. The duty of the court is not ended with such appointment, however, as it should also see to it that the counsel does his duty by the defendant. Counsel de oficio should not merely make the motions of defending the accused but exert his utmost efforts as if he were representing a paying client." The Solicitor General, in his eleven-page Brief, 36 rebuts this, arguing that appellant's actions during the trial showed instead a "lackadaisical stance on his own defense." Appellant had been given ample time to secure the services of a counsel de parte, but his subsequent appearances in court without such counsel and his act of allowing this situation to continue until the presentation of his evidence betrays his lack of intention to do so. It

even appears that he was merely delaying his own presentation of evidence on purpose to the prejudice of the offended party, the trial court and the orderly administration of justice. Furthermore, appellant did not demonstrate in what way the services of his counsels de oficio were unsatisfactory. He did not cite any instance substantiating his claim that he was not effectively represented. In short, he was afforded a chance to be heard by counsel of his own choice, but by his own neglect or mischief, he effectively waived such right. It taxes the mind to think that, almost two years 37 since appellant first invoked his right to be represented by counsel de parte, he still could not find one who would suit his needs and desires. Neither did he cooperate with his court-named lawyers. The facts of this case do not constitute a deprivation of appellant's constitutional right to counsel because he was adequately represented by three court-appointed lawyers: Atty. Lina-ac, Atty. Antonano and Atty. Garcia. Courts are not required to await indefinitely the pleasure and convenience of the accused as they are also mandated to promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with the rules. Indeed, public policy requires that the trial continue as scheduled, considering that appellant was adequately represented by counsels who were not shown to be negligent, incompetent or otherwise unable to represent him. Crime and Punishment In spite of appellant's failure, either through negligence or unreasonable refusal, to impute errors to the assailed Decision other than the alleged violation of his right to counsel this Court nonetheless scoured the records of the trial, perused the transcripts of the testimony of the witnesses for the prosecution, evaluated the evidence and examined the applicable laws and jurisprudence to determine the correctness of the trial court's Decision. We, however, find no cogent reason to reverse the conviction of appellant. In a case of murder or homicide, it is enough that the death of the victim and the responsibility of the person who caused such death are proven 38 beyond reasonable doubt. Both elements were duly established by the prosecution witnesses. Dr. Gajardo testified to the fact of death while Widow Adelaida Alcantara positively identified the appellant as the assailant. Based on the facts established by the prosecution which remain uncontested, the Court affirms the trial court's appreciation of the qualifying circumstance of treachery. To constitute treachery, two conditions must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate and (2) deliberate or conscious adoption of the means of execution. 39 The manner of the attack itself is proof enough of alevosia. Widow Adelaida vividly described the stabbing as follows: 40 "Q. And you said a certain Suzana Serzo together with one Epifania Bentilacion came to your house and asked for help from you, is that right? A. Q. A. Q. A. Yes, sir. And that you responded for help Mrs. witness? Yes, sir. And you are together with your husband in helping Suzana Serzo? Yes, sir.

Q. xxx

What was the help she was asking Mrs. witness? xxx xxx

A. She was asking to help her children being held by Mario Serzo by not letting them go out of the house. xxx Q. A. Q. A. xxx xxx

Were you able to help the grandchildren of Suzana Serzo? Yes, sir. And after you help (sic) them what happened next? We brought them to where they could hide and then we went home.

Q. You said you heard somebody approaching you at the back through the sound of his footsteps is that right? A. xxx Q. A. Q. A. Yes, sir. xxx xxx

What happened next after you hear (sic) those footsteps at your back? My husband was just beside me. And immediately your husband was stabbed by the accused? Yes, sir."

From this testimony, it appears that appellant waited for the victim and his wife and pounced on them swiftly and without warning. The victim and his wife were already on their way home after transferring appellant's children to a safe place. They were unarmed as they had absolutely no idea that appellant would attack them right then and from behind. The manner of the attack tended directly and especially to insure the execution of the crime without risk to appellant and virtually no chance for the victim to defend himself. 41 Even Adelaida's life would have been mortally threatened were it not for the timely intervention of her neighbors. Damages and Indemnity Actual and moral damages require the presentation of proof before they can be awarded by the trial court. 42 According to Adelaida, burial expenses in the amount of P2,000.00 were incurred. 43 This is separate and distinct from civil indemnity awarded under prevailing jurisprudence, which is granted without further proof beyond the fact of death and the accused's responsibility therefor. Moral damages were not discussed at all in Adelaida's testimony. Hence, without any factual basis, the award of moral damages is not justified. WHEREFORE, the assailed Decision is hereby AFFIRMED, but the award of moral damages is DELETED. Instead, appellant is ORDERED TO PAY the amount of P50,000.00 as civil indemnity and actual damages of P2,000.00 as burial expenses.

SO ORDERED. Narvasa, C .J ., Davide, Jr. and Melo, JJ ., concur.

[G.R. No. 107211. June 28, 1996.] FRANCISCO GUERRERO, petitioner, vs. HON. COURT OF APPEALS, (Former Special Seventh Division), REGIONAL TRIAL COURT OF MALABON, BRANCH 72, and PEOPLE OF THE PHILIPPINES, respondents. Benjamin C. Santos & Ofelia Calcetas-Santos Law Offices for petitioner. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ELEMENTS OF DOUBLE JEOPARDY. For double jeopardy to attach, the following elements must concur: ". . . It is a settled rule that to raise the defense of double jeopardy, the following requisites must concur: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof. And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. 2. ID.; ID.; WHEN THE RIGHT TO SPEEDY TRIAL IS DEEMED VIOLATED. The right to speedy trial is violated only where there is an unreasonable, vexatious and oppressive delay without the participation or fault of the accused, or when unjustified postponements are sought which prolong the trial for unreasonable lengths of time. 3. ID.; ID.; SPEEDY DISPOSITION OF CASES; CONSTRUED. The case of Caballero vs. Alfonso, Jr., 153, SCRA 153, 162-163 (August 21, 1987), laid down the guidelines in determining the applicability of the "speedy disposition" formula: ". . . '[S]peedy disposition of cases' is a relative term. Just like the constitutional guarantee of 'speedy trial' accorded an accused in all criminal proceedings, 'speedy disposition of cases' is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory. In the determination of whether or not the right to a 'speedy trial' has been violated, certain factors may be considered and balanced against each other. These are length of delay, reason for the delay, assertion of the right or failure to assert it, and prejudice caused by the delay. The same factors may also be considered in answering judicial inquiry whether or not a person officially charged with the administration of justice has violated the 'speedy disposition of cases' guarantee." 4. ID.; ID.; ID.; A PARTY'S INDIVIDUAL RIGHT SHOULD NOT PRECLUDE PEOPLE'S RIGHT TO PUBLIC JUSTICE. While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and although this Court has always zealously espoused protection from oppressive and vexatious delays not attributable to the party involved, at the same time, we hold that a party's individual rights should not work against and preclude the people's equally important right to public justice. In the instant case, three people died as a result of the crash of the airplane that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused but the

people as well. Since the accused has completely failed to assert his right seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense) substantial justice in the premises. DECISION PANGANIBAN, J p: "Does the constitutional right to a speedy trial include the right to a prompt disposition and judgment?" This is the question posed before this Court in the instant petition for review under Rule 45 seeking to set aside (a) the Decision 1 of the Court of Appeals 2 promulgated on February 18, 1992 in CA-G.R. SP No. 237237; and (b) the Resolution promulgated on September 10, 1992 denying the motion for reconsideration. By a resolution dated November 13, 1995, the First Division of this Court transferred this case, along with several others, to the Third. After careful deliberation and consultation on the petition, comment, reply, memoranda and other submission of the parties, this Court assigned the writing of this Decision to the undersigned ponente. The Facts The antecedents are not disputed. As summarized by the Solicitor General in his memorandum, they are as follows: 3 "On November 16, 1971, an Information for Triple Homicide Through Reckless Imprudence was filed against petitioner before the Court of First Instance, Branch XXXV, Caloocan City, presided by Judge Manuel A. Argel, and docketed as Criminal Case No. C-2073, which reads: 'That on or about the 13th day of May, 1969, in the Municipality of Malabon, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being then the pilot of non-commercial Aircraft, type Camanche PA-24-250 with registration marking PI-C515, then in-charge of, and has complete responsibility for, the maintenance and operation of said aircraft, without taking the necessary care and precaution to avoid accidents or injuries to persons, and without ascertaining as to whether the quantity of fuel in the tanks of said aircraft was sufficient for the flight from Cuyapo, Nueva Ecija to MIA, Paraaque, Rizal, did, then and there willfully, unlawfully and feloniously operate, fly, pilot, maneuver and/or conduct the flight of said aircraft from the airport at Cuyapo, Nueva Ecija with four (4) passengers on board, and while the said aircraft was already airborne after several minutes, the engine quitted twice indicating that there was no more fuel, prompting the accused to make an emergency manner landing on a fishpond which he executed in a careless, negligent and imprudent manner in the Piper Camanche Owner's Handbook, and as a result of the improper execution of said emergency landing, the aircraft's landing gear collided with a dike and trees near the fishpond in Malabon, Rizal, resulting to the fatal injuries in three (3) passengers, namely, Cpl. Teodoro Neric, Jose Mari Garcia and Lourdes Garcia which directly caused their deaths. Contrary to law.' Due to several postponements, all filed by the petitioner, the prosecution was finally able to start presenting its evidence on September 29, 1972 after petitioner entered his pleas of 'Not Guilty.'

On August 19, 1975, the prosecution finally rested its case. On February 7, 1978, the defense rested its case. On March 16, 1978, the hearing was terminated and the parties were ordered by Judge Argel to submit their respective memoranda. On January 19, 1979, Judge Bernardo P. Pardo who ostensibly took over as presiding judge vice Judge Argel, granted private prosecutor's omnibus motion to file memorandum up to January 29, 1979. On December 21, 1979, petitioner filed his memorandum. It would appear that from the RTC of Caloocan City, Branch XXXV, the case was subsequently assigned to Branch CXXV presided over by Judge Alfredo Gorgonio who apparently did not take action thereon. On January 30, 1989, Court Administrator Meynardo Tiro ordered the re-raffling of the case from the RTC of Caloocan City, Branch CXXV to the RTC of Navotas-Malabon which, under the provisions of B.P. 129, had jurisdiction over the case. The case, now docketed as Criminal Case No. 7356-MN, was raffled to presiding Judge Benjamin N. Aquino of the RTC, Navotas-Malabon, Branch 72. On March 14, 1990, Judge Aquino ordered the parties to follow-up and complete the transcript of stenographic notes within 30 days considering that the same was found to be incomplete. On April 29, 1990, since the parties were not able to complete the transcript of stenographic notes, the court ordered the retaking of the testimonies of the witnesses. On May 15, 1990, the private prosecutor submitted copies of the duplicate originals of the testimonies of Eusebio Garcia and Elena Obidosa (December 11, 1969), Celestino Nazareno (March 16, 1973), Cenen Miras (April 27, 1973), Ariston Agustin (February 10, 1977) and Francisco Guerrero (December 5 and 19, 1977). The private prosecutor manifested that he had communicated with one of the stenographers on record, Ms. Remedios S. Delfin, who promised to look into her files and hopefully complete the transcription of her stenographic notes. On October 1, 1990, the presiding Judge set the retaking of the witnesses' testimony on October 24, 1990. On October 24, 1990, the retaking of the testimonies was reset to November 9, 1990 due to petitioner's failure to appear on the scheduled hearing. On November 7, 1990, petitioner filed a motion to dismiss on the ground that his right to speedy trial has been violated. On November 9, 1990, presiding Judge denied the motion to dismiss and reset the retaking of the testimonies to November 21, 1990.

On November 16, 1990, petitioner filed a motion for reconsideration which was denied on November 21, 1990. The presiding Judge set anew the retaking of the testimonies to December 5, 1990. Hence, petitioner filed petition for certiorari, prohibition and mandamus for the review of the orders of the Regional Trial Court dated November 9, 1990 and November 20, 1990 anent petitioner's motion to dismiss, as well as his motion for reconsideration. The petition was anchored on the alleged violation of petitioner's constitutional right to speedy trial. In its decision which was promulgated on February 18, 1992, the Honorable Court of Appeals dismissed the petition. In a resolution dated September 10, 1992, petitioner's motion for reconsideration was denied." Errors Assigned Petitioner now assigns the following errors 4 against the respondent Court. "I. The respondent Court of Appeals erred in not finding that the re-hearing of the instant case will not suit the intended purpose and will only result in untold prejudice to the petitioner. II. The respondent Court of Appeals erred in not ruling that the petitioner is entitled to a dismissal of the criminal case equivalent to an acquittal on the merits based on the violation of his right to speedy trial resulting from the failure to render a prompt disposition of judgment." The First Issue: Untold Prejudice Petitioner claims that through no fault of his, seven of the ten witnesses who testified for the accused will no longer be able to testify anew. So too, three witnesses for the prosecution have died and thus would not be able to appear during the re-hearing. And even if all witnesses would be able to testify again, "the passage of a long period of time spanning more than two decades since the incident complained of will tend to confuse or hinder than aid the accurate recall of the facts and circumstances of the case," as follows 5 : "(a) Capt. Ricardo B. Stohner of the Civil Aeronautics Administration has reportedly migrated to either the U.S.A. or Canada, after he retired from CAA about eight (8) years ago. Capt. Stohnner's indispensable testimony as an expert witness as well as to his personal knowledge of certain material facts as described in Francisco Guerrero's Memorandum of 17 December 1979, crucial to the defense, is now lost to the petitioner. (b) Eduardo V. Guerrero, a son of Francisco Guerrero, has been undergoing psychiatric treatment for more than two years now, as he is suffering from chronic mental illness. He is in no condition to testify. Copies of medical certificates on Eduardo's condition were submitted to the respondent courts as annexes to various pleadings. (c ) Rosario V. Guerrero, wife of Francisco Guerrero, was operated on last August for tumor of the colon and is still suffering a partial disability. She is under medical advice to

avoid activities which may cause her stress, including testifying in court. Copies of medical certificates on Mrs. Guerrero's operation and condition were submitted to the respondent courts as annexes to various pleadings. (d) The whereabouts of Alberto Atanacio, Rodolfo Fontanilla, Editha Pangilinan, and Rizal and Belen Macabole, are unknown, and despite diligent efforts exerted by petitioner, they have not been found up to the present." At this point, this argument is premature and at best speculative. As to whether the witnesses for the defense would be available at the trial, and if available, whether they will still be in a position to recall the events that transpired in the case more than twenty five years ago is a question of fact which cannot be determined now. As pointed out by the Solicitor General in his memorandum: 6 "Contrary to petitioner's contention, the whereabouts of his witnesses (except Rizal and Evelyn Macabole) are ascertainable should a diligent search may be made by him. This can be gleaned from the return of the subpoena dated October 1, 1990 which forms part of the record of the case. Eduardo Guerrero and Rosario Guerrero were respectively served with subpoena and their alleged mental and physical incapacity to testify should best be left to the assessment of respondent trial court. Edith (sic) Pangilinan was notified of the retaking and is, thus, available. Alberto Atanacio and Rodolfo Fontanilla, on the other hand, are in Lucena City. The exact whereabouts of the last two witnesses can be ascertained if diligent efforts were exerted to locate them." The alleged unavailability of the witnesses for the prosecution should not be the concern of the petitioner at this time. The burned of proving his guilt rests upon the prosecution. And if the prosecution fails for any reason to present evidence sufficient to show his guilt beyond reasonable doubt, he will be acquitted. ". . . The burden of proof rests upon the prosecution and unless the State succeeds in proving his guilt, the presumption of innocence in favor of the accused-appellant applies. The conscience must be satisfied that on the accused-appellant could be laid the responsibility of the offense charged." 7 ". . . [C]ourts must exert utmost scrupulousness in evaluating the evidence of the prosecution for it is elementary that the conviction of an accused must rest on the strength of the prosecution and not on the weakness of the defense (People vs. Cruz, 215 SCRA 339 ([1992]). The prosecution must overcome the constitutional presumption of innocence by proof beyond reasonable doubt; otherwise, the acquittal of the accused is ineluctably demanded. . . ." 8 ". . . It is safely entrenched in our jurisprudence that unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his behalf. Acquittal then of the accused-appellant is in order." 9 On this matter, the respondent Court, 10 citing the assailed order of the trial court, argues that there are really only two witnesses of the prosecution whose testimonies need to be retaken and the rehearing should not really present a monumental problem; "With only two (2) witnesses of the prosecution to be presented, coupled with a promise of expeditiousness by respondent Judge, the Court is of the view that petitioner's misgivings are rather exaggerated. And as to his expressed fear that his own witnesses for the defense can no longer testify 'in the same manner as before,' the same Order well and truly states in adequate refutation that

'. . . the fear that the witnesses to the incident which occurred in 1969 may no longer have the same perception of what they saw and, therefore, would not be able to testify in Court in the same manner they originally testified is not the concern of the defense but of the prosecution. If the prosecution witnesses cannot give convincing testimony in the retaking of their testimony, that is the worry of the prosecution. It is not even unfair to the accused if his witnesses cannot testify in the same convincing manner that they testified before as long as the prosecution witnesses are convincing. Everything in a criminal prosecution should be interpreted liberally in favor of the accused and strictly against the state.' . . . ." Anent petitioner's contention that the re-hearing would place him in double jeopardy, suffice it to say that there has been no termination of the criminal prosecution i.e. of that "first jeopardy." For double jeopardy to attach, the following elements must concur: ". . . It is a settled rule that to raise the defense of double jeopardy, the following requisites must concur: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof (citations omitted). And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent court; (c ) after arraignment; (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (citation omitted)." 11 In the present case, there has not even been a first jeopardy, since the fourth element dismissal or termination of the case without the express consent of the accused is not present. Moreover, measured against the aforequoted standard, the re-taking of testimonies cannot in any wise be deemed a second jeopardy. Hence, it is beyond dispute that petitioner's claim of double jeopardy is utterly without basis. The Second Issue: Speedy Trial and Speedy Disposition True, indeed, the 1987 Constitution provides the right not only to a speed trial but also to a speedy judgment after trial when in Section 16, Article III, it provides: "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies." Hence, the Constitution mandates dispatch not only in the trial stage but also in the disposition thereof, warranting dismissals in case of violations thereof without the fault of the party concerned, not just the accused. In the recent case of People vs. Leviste, 12 this Court citing Gonzales vs. Sandiganbayan 13 and People vs. Tampal, 14 reiterated the ruling that the right to speedy trial is violated only where there is an unreasonable, vexatious and oppressive delay without the participation or fault of the accused, or when unjustified postponements are sought which prolong the trial for unreasonable lengths of time. On the other hand, the case of Caballero vs. Alfonso, Jr., 15 laid down the guidelines in determining the applicability of the "speedy disposition" formula: ". . . '(S)peedy disposition of cases' is a relative term. Just like the constitutional guarantee of 'speedy trial' accorded an accused in all criminal proceedings, 'speedy disposition of

cases' is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory. In the determination of whether or not the right to a 'speedy trial' has been violated, certain factors may be considered and balanced against each other. These are length, of delay, reason for the delay, assertion of the right or failure to assert it, and prejudice caused by the delay. The same factors may also be considered in answering judicial inquiry whether or not a person officially charged with the administration of justice has violated the 'speedy disposition of case' guarantee." In the case before us, the petitioner merely sat and waited after the case was submitted for resolution in 1979. It was only in 1989 when the case below was re-raffled from the RTC of Caloocan City to the RTC of Navotas-Malabon and only after respondent trial judge of the latter court ordered on March 14, 1990 the parties to follow-up and complete the transcript of stenographic notes that matters started to get moving towards a resolution of the case. More importantly, it was only after the new trial judge reset the retaking of the testimonies to November 9, 1990 because of petitioner's absence during the original setting on October 24, 1990 that the accused suddenly became zealous of safeguarding his right to speedy trial and disposition. While it may be said that it was not petitioner's fault that the stenographic notes of the testimonies of the witnesses were not transcribed, yet neither was it the prosecution's. The respondent trial judge can hardly be faulted either because he could not have rendered the decision without the transcripts in question. Let it be remembered that he was the judge who conducted the trial and hence he would not have had sufficient basis to make a disposition in the absence of the said transcripts. As respondent Court of Appeals noted: "Indeed, it can be gleaned from the pleadings on file that the case was assigned to respondent Judge only in late 1989 or early 1990, and that he took prompt action thereon by setting the case for retaking of testimonies, obviously as a prelude to judgment. The case then was finally making progress toward termination. For such dispatch and diligence, respondent Judge hardly deserves condemnation. Petitioner also faults the prosecution for its failure 'to follow up the status of the case.'" As regards the other judges to whom the case was assigned prior to 1989, the accused himself could not pinpoint the cause of the problem: 16 "2) Reason for the delay No one knows why the Presiding Judge (Manuel A. Argel) of the respondent court who heard the trial did not render a decision during his tenure. No one knows either why another former Presiding Judge (Alfredo Gorgonio) failed to turn over the case to the Malabon court during the Judiciary Reorganization under B.P. Bldg. 129. It appears later on that the case became a victim of neglect and languished in the court docket. Not surprisingly, since the risk of such loss through neglect and other causes grew with each passing year, part of the records and several transcripts were lost in the time of the case lay unattended. Before being finally assigned to the respondent trial court, the case was shuttled from court to court through various indorsements of Executive Judges and the Court Administrator of the Supreme Court as a result of the confusion as to which court had territorial jurisdiction over it." In the present case, there is no question that petitioner raised the violation against his own right to speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to assume that he would have just continued to sleep on his right a

situation amounting to laches had the respondent judge not taken the initiative of determining the non-completion of the records and of ordering the remedy precisely so he could dispose of the case. The matter could have taken a different dimension if during all those ten years between 1979 when accused filed his memorandum and 1989 when the case was re-raffled, the accused showed signs of asserting his right which was granted him in 1987 when the new constitution took effect, 17 or at least made some overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right. While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and although this Court has always zealously espoused protection from oppressive and vexatious delays not attributable to the party involved, at the same time, we hold that a party's individual rights should not work against and preclude the people's equally important right to public justice. In the instant case, three people died as a result of the crash of the airplane but that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused but the people as well. Since the accused has completely failed to assert his right seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense) substantial justice in the premises. WHEREFORE, the petition is DENIED. The respondent trial court is directed to proceed with judicious dispatch in the re-taking of testimonies and in concluding the case in accordance with law. SO ORDERED. Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.