EN BANC [G.R. No. L-32951-2. September 17, 1971.] RICARDO DE LA CAMARA, petitioner, vs. HON.

MANUEL LOPEZ ENAGE, Presiding Judge of the Court of First Instance of Agusan del Norte and Butuan City (Branch II), respondents. Demosthenes Mediante, Puro Valdez, Francisco Fabe, Federico del Ruerto and Pelaez, Jalandoni and Jamer for petitioner. Hon. Manuel Lopez Enage in his own behalf. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO BAIL; A MATTER OF RIGHT BEFORE CONVICTION. Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. 2. ID.; ID.; ID.; BAIL RENDERED NUGATORY WHERE SUM IS EXCESSIVE. Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there where no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United States Constitution limits itself to a prohibition against excessive bail. As construed in the latest American decision, "the sole permissible function of money bail is to assure the accused's presence at trial, and declared that 'bail set at a higher figure than an amount reasonably calculated to fulfill this purpose is "excessive" under the Eight Amendment.'" 3. ID.; ID.; ID.; FIXED AT P1,195,200 FOR TWO OFFENSES, CLEARLY EXCESSIVE. Nothing can be clearer, therefore, than that the challenged order of August 10, 1790 fixing the amount of P1,195,200.00 as the bail that should be posted by petitioner, the sum of P840,000.00 for the information charging multiple murder, there being fourteen victims, and the sum of P335,200.00 for the other offense of multiple frustrated murder, there being twelve victims, is clearly violative of this constitutional provision. Under the circumstances, there being only two offenses charged, the amount required as bail could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the other information for frustrated murder. Nor should it be ignored in this case that the Department of Justice did recommend the total sum of P40,000.00 for the two offenses. 4. ID.; ID.; ID.; GUIDELINES IN FIXING AMOUNT THEREOF. The guidelines in the fixing of bail was there summarized, in the opinion of Justice Sanchez, as follows: "(1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds, (9) whether the accused was a fugitive from

justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases." Respondent Judge, however, did ignore this decisive consideration appearing at the end of the above opinion: "Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy." RESOLUTION FERNANDO, J p: An order of respondent Judge Manuel Lopez Enage, fixing the bail of petitioner, Ricardo de la Camara, in the sum of P1,195,200.00 is assailed in this petition for certiorari as repugnant to the constitutional mandate prohibiting excessive bail. 1 The merit of the petition on its face is thus apparent. Nonetheless, the relief sought setting aside the above order by reducing the amount of bail to P40,000.00 cannot be granted, as in the meanwhile, petitioner had escaped from the provincial jail, thus rendering this case moot and academic. It is deemed advisable, however, for the guidance of lower court judges, to set forth anew the controlling and authoritative doctrines that should be observed in fixing the amount of the bail sought in order that full respect be accorded to such a constitutional right. The facts are not in dispute. Petitioner, Ricardo de la Camara, Municipal Mayor of Magsaysay, Misamis Oriental was arrested on November 7, 1968 and detained at the Provincial Jail of Agusan, for his alleged participation in the killing of fourteen and the wounding of twelve other laborers of the Tirador Logging Co., at Nato, Esperanza, Agusan del Sur, on August 21, 1968. Thereafter, on November 25, 1968, the Provincial Fiscal of Agusan filed with the Court of First Instance a case for multiple frustrated murder 2 and another for multiple murder 3 against petitioner, his co-accused Nambinalot Tagunan and Fortunato Galgo, resulting from the aforesaid occurrence. Then on January 14, 1969, came an application for bail filed by petitioner with the lower court, premised on the assertion that there was no evidence to link him with such fatal incident of August 21, 1968. He likewise maintained his innocence. Respondent Judge started the trial of petitioner on February 24, 1969, the prosecution resting its case on July 10, 1969. As of the time of the filing of the petition, the defense had not presented its evidence. Respondent Judge, on August 10, 1970, issued an order granting petitioner's application for bail, admitting that there was a failure on the part of the prosecution to prove that petitioner would flee even if he had the opportunity, but fixed the amount of the bail bond at the excessive amount of P1,195,200.00, the sum of P840,000.00 for the information charging multiple murder and P355,200.00 for the offense of multiple frustrated murder. Then came the allegation that on August 12, 1970, the Secretary of Justice, Vicente Abad Santos, upon being informed of such order, sent a telegram to respondent Judge stating that the bond required "is excessive" and suggesting that a P40,000.00 bond, either in cash or property, would be reasonable. There was likewise a motion for reconsideration to reduce the amount. Respondent Judge however remained adamant. Hence this petition. The answer filed by respondent Judge on March 5, 1971 set forth the circumstances concerning the issuance of the above order and the other incidents of the case, which, to his mind, would disprove any

charge that he was guilty of grave abuse of discretion. It stressed, moreover, that the challenged order would find support in circulars of the Department of Justice given sanction by this Court. He sought the dismissal of the petition for lack of merit. In the hearing of the case set for March 31, 1971, there was no appearance for both the petitioner and respondents with the former, upon written motion, being given thirty days within which to submit a memorandum in lieu of oral argument, respondent Judge in turn having the same period from receipt thereof to file his reply. Such a memorandum was duly submitted by petitioner on April 6, 1971. Instead of a reply, respondent Judge submitted, on May 26, 1971, a supplemental answer wherein he alleged that petitioner escaped from the provincial jail on April 28, 1971 and had since been remained at large. There was a reiteration then of the dismissal of his petition for lack of merit, to which petitioner countered in a pleading dated June 7, 1971, and filed with this Court the next day with this plea: "The undersigned counsel, therefore, vehemently interpose opposition, on behalf of petitioner, to respondent's prayer for dismissal of the present petition for lack of merit. For, the issue in this case is not alone the fate of petitioner Ricardo de la Camara. The issue in the present petition that calls for the resolution of this Honorable Tribunal is the fate of countless other Ricardo de la Camaras who may be awaiting the clear-cut definition and declaration of the power of trial courts in regard to the fixing of bail." 4 While under the circumstances a ruling on the merits of the petition for certiorari is not warranted, still, as set forth at the opening of this opinion, the fact that this case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required. 1. Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. 5 Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the lass of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. Thereby a regime of liberty is honored in the observance and not in the breach. It is not beyond the realm of probability, however, that a person charged with a crime, especially so where his defense is weak, would just simply make himself scarce and the frustrate the hearing of his case. A bail is intended as a guarantee that such an intent would be thwarted. It is, in the language of Cooley, a "mode short of confinement which would, with reasonable certainty, insure the attendance of the accused" for the subsequent trial. 6 Nor is there anything unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong, as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence, an ever present threat, temptation to flee the jurisdiction would be too great to be resisted. 2. Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United States

Constitution limits itself to a prohibition against excessive bail. 7 As construed in the latest American decision, "the sole permissible function of money bail is to assure the accused's presence at trial, and declared that 'bail set at a higher figure than an amount reasonably calculated to fulfill this purpose is "excessive" under the Eighth Amendment." 8 Nothing can be clearer, therefore, than that the challenged order of August 10, 1970 fixing the amount of P1,195,200.00 as the bail that should be posted by petitioner, the sum of P840,000.00 for the information charging multiple murder, there being fourteen victims, and the sum of P355,200.00 for the other offense of multiple frustrated murder, there being twelve victims, is clearly violative of this constitutional provision. Under the circumstances, there being only two offenses charged, the amount required as bail could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the other information for frustrated murder. Nor should it be ignored in this case that the Department of Justice did recommend the total sum of P40,000.00 for the two offenses. 3. There is an attempt on the part of respondent Judge to justify what, on its face, appears to be indefensible by the alleged reliance on Villaseor v. Abao. 9 The guidelines in the fixing of bail was there summarized, in the opinion of Justice Sanchez, as follows: "(1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases." 10 Respondent Judge, however, did ignore this decisive consideration appearing at the end of the above opinion: "Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy." 11 No attempt at rationalization can therefore give a color of validity to the challenged order. There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant sum. What aggravates the situation is that the lower court judge would apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the position of petitioner would under the circumstances be unable to resist thoughts of escaping from confinement, reduced as he must have been to a state of desperation. In the same breath that he was told he could be bailed out, the excessive amount required could only mean that provisional liberty would be beyond his reach. It would have been more forthright if he were informed categorically that such a right could not be availed of. There would have been no disappointment of expectations then. It does call to mind these words of Justice Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." 12 It is no wonder that the resulting frustration left resentment and bitterness in its wake. Petitioner's subsequent escape cannot be condoned. That is why he is not entitled to the relief prayed for. What respondent Judge did, however, does call for repudiation from this Court.

Nor is there any justification then for imputing his inability to fix a lesser amount by virtue of an alleged reliance on a decision of this Tribunal. Even if one were charitably inclined, the mildest characterization of such a result is that there was a clear misreading of the Abao opinion when such a meaning was ascribed to it. No doctrine refinement may elicit approval if to do so would be to reduce the right to bail to a barren form of words. Not only is the order complained of absolutely bereft of support in law, but it flies in the face of common sense. It is not too much to say that it is at war with the command of reason. With petitioner, however, having escaped from the provincial jail, no ruling can be had on his plea to nullify the above order. WHEREFORE, this case is dismissed for being moot and academic. Without pronouncement as to costs. Concepcion, C .J ., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Teehankee, Barredo and Villamor, JJ ., concur. Castro, J ., concurs in the result. Makasiar, J ., did not take part. Footnotes

EN BANC [G.R. No. 79269. June 5, 1991.] PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. The Solicitor General for petitioner. Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas. SYLLABUS 1. CONSTITUTIONAL LAW; RIGHT OF ACCUSED TO BAIL; GOVERNED BY THE LAW AT THE TIME THE COURT RESOLVED THE PETITION FOR BAIL. At the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail.

2. ID.; ID.; ABSOLUTE WHEN THE OFFENSE CHARGED IS PUNISHABLE BY ANY PENALTY LOWER THAN RECLUSION PERPETUA. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution and provides thus: Section 3, Rule 114 of the Rules of Court, as amended. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the right is absolute. 3. ID.; ID.; ID.; CANNOT BE DENIED EVEN IF THE SECURITY OF THE STATE SO REQUIRES; PEOPLE VS. HERNANDEZ, ET AL. (99 PHIL. 515) CITED. And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom." 4. ID.; ID.; ID.; SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS SUSPENDED. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: "The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection." 5. ID.; ID.; SUBJECT TO THE SOUND DISCRETION OF THE COURT IF THE OFFENSE CHARGED IS PUNISHABLE BY RECLUSION PERPETUA. If the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. (Teehankee vs. Director of Prisons [76 Phil. 756, 770] But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In the same case, We held: "The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: 'The Constitution of the United States and the constitution of the

many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great!" 6. ID.; ID.; RIGHT OF PROSECUTION TO PRESENT EVIDENCE TO DENY THEREOF; WHEN AVAILABLE. The prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 7. ID.; ID. ; GUIDELINES IN FIXING BAILBOND. We agree with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495: "Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . ." 8. ID.; ID.; SUBJECT TO THE LIMITATION THAT PERSON APPLYING FOR ADMISSION TO BAIL SHOULD BE IN THE CUSTODY OF THE LAW; APPLICABLE IN CASE AT BAR. He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." When the parties in G. R. No. 76009 stipulated that: "b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person." they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released,

further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. 9. ID.; ID.; MAY BE WAIVED BY THE ACCUSED. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; the right to counsel and to remain silent; and the right to be heard. Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states : ". . . These rights cannot be waived except in writing and in the presence of counsel." This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the Constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. 10. CRIMINAL LAW; REBELLION; IMPOSABLE PENALTY AS AMENDED BY R. A. NO. 6968. It must be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: "Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua." 11. ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. Republic Act No. 6968 cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." 12. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DEFINED AND PURPOSE. In defining bail as: ". . . the security given for the release of a person in custody of the law, . . ." Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 13. CIVIL LAW; WAIVER OF RIGHT; CONSTRUED. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender,

by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." 14. ID.; ID.; RULE. As to what rights and privileges may be waived, the authority is settled: ". . . the doctrine of waiver extends to rights and privileges of any character, and, since the word 'waiver' covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver." DECISION DAVIDE, JR., J p: The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge a Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/ preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 86-48926 for Rebellion, 1 and the subsequent Order dated July 30, 1987 granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987. The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived. The following are the antecedents of this petition:

In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later amended in an Amended Information 3 which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows: "That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts, have, under the direction and control of said organizations' leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the country's territory or part of it; That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . . ." (then follows the enumeration of specific acts committed before and after February 1986). At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his capture. 4 A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for private respondent and his co-accused was filed with this Court 5 which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person. On November 7, 1986, private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished, 6 to which petitioner filed an Opposition 7 citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that: xxx xxx xxx

"Par. 2 (b) Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person." In his Order of March 6, 1987, 8 respondent Judge denied the motion to quash. Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail, 9 which herein petitioner opposed in an Opposition filed on 27 May 1987 10 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion, the accused is no longer entitled to bail as evidence of his guilt is strong. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored. Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987. In his Order of 7 July 1987 11 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated: ". . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty of prision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense." As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied: "True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, 'the existence of the government that bestows the right, the paramount interest of the state.' Suffice to state that the Bill of Rights, one of which is the right to bail, is a 'declaration of the rights of the

individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited from violating' (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those 'who oppose, threaten (sic) and destroy a just and orderly society and its existing civil and political institutions.' The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of right to bail. Dura est lex sed lex." In a motion to reconsider 12 the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the government through armed struggle and replace it with an alien system based on a foreign ideology is attained." On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; 2. He was not arrested at his residence as he had no known address;

3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address;

5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false;

6. Pursuant to Ministry Order No. 1-A dated 11 January 1982,a reward of P250,000.00 was offered and paid for his arrest," which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings, 14 and that an arrestee may be incarcerated until trial as he presents a risk of flight; 15 and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to the community which no condition of release can dispel." 16 On 30 July 1987 respondent Judge handed down the Orders 17 adverted to in the introductory portion of this decision the dispositive portion of which reads: "WHEREFORE, in the light of the foregoing considerations, the Court finds the 'supplemental' motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58)." In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil. 172. Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues:

"THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS. THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS." in support of which petitioner argues that private respondent is stopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal background, the gravity of the pending charge, and the likelihood of flight. 18 In Our resolution of 11 August 1987 19 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00. In his Comment filed on 27 August 1987, 20 private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds: I RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL. II RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL. III

RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION. IV THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NONEXISTENT AND/OR HAD BEEN WAIVED. V THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS. We required the petitioner to reply to the comment of private respondent. 21 The reply was filed on 18 September 1987. 22 In Our resolution of 15 October 1987 23 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice. In their respective manifestations and motions dated 5 November 24 and 23 November 1987 25 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private respondent, which We granted in Our resolutions of 19 November 1987 26 and 1 December 1987, 27 respectively. In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this petition, 28 which he complied with by filing his Manifestation on 30 May 1990 29 wherein he manifests that he supports the petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the right to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him, which would be frustrated by the "almost certainty that respondent Salas will jump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge. And now on the issues presented in this case. I. Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for

bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. 30 It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus: "Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Section 3, Rule 114 of the Rules of Court, as amended, also provides: "Bail, a matter of right: exception. All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong." Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. 31 To that extent the right is absolute. 32 And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: ". . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom." The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: LexLib

"The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection." Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. 33 But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held: "The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: 'The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great!" 34 Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 35 We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495: "Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case . . . ." In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail.

II. It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: "Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. "Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua." xxx xxx xxx

This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." 36 III. We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009. LLpr On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 8648926 with the trial court, a petition for habeas corpus for herein private respondent, and his coaccused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case: 1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning. 2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ of Habeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Manila, being leaders or members of the Communist Party of the Philippines, New People's Army and National

Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any safe conduct pass issued by competent authorities. 3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows: "When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, with Solicitor General Ordoez arguing for the respondents. Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately. Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing statement made by petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their coaccused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required. In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise agreement that they have previously undertaken to submit. prcd Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release. Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on official leave."

4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows: "COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest: 1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A. Ordoez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play. 2. That in the conference both counsel agreed to the following terms of agreement:

a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance. b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person. 3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record. 4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning. WHEREFORE, it is prayed that the petition for habeas corpus be dismissed." 5. On 16 October 1986 We issued the following resolution:

"G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col. Virgilio Saldajeno] Considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordoez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal

Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus but subject to the condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee, C.J., is on official leave." It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." 37 Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver. Interestingly, private respondent admits that: "'Custody' has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by virtue of a lawful authority, or the 'care and possession of a thing or person.' (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306)" He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38 When the parties in G.R. No. 76009 stipulated that: "b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person." they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-

petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. cdrep In defining bail as: ". . . the security given for the release of a person in custody of the law, . . ." Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 39 It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 40 Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail. But, is such waiver valid? Article 6 of the Civil Code expressly provides: "Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law." Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." 41 As to what rights and privileges may be waived, the authority is settled: ". . . the doctrine of waiver extends to rights and privileges of any character, and, since the word 'waiver' covers every conceivable right, it is the general rule that a person may waive any matter which affects

his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or role made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. prcd While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver." 42 In Commonwealth vs. Petrillo, 43 it was held: "Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be." It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." 44 This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; 45 the right to counsel and to remain silent; 46 and the right to be heard. 47 Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states: ". . . These rights cannot be waived except in writing and in the presence of counsel." This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order,

public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. prLL The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent. WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 8648926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part. Footnotes 1. Entitled People of the Philippines versus Rodolfo C. Salas, alias Commander Bilog, Josefina Cruz, alias Mrs. Mercado, and Jose Concepcion, alias Eugene Zamora. 2. 3. Annex "B" of Petition; Rollo, 25-27. Annex "C" of Petition; Id., 28-31.

4. Petition, 7; Rollo, 7; p. 4 of Order of 6 March 1987 of respondent Judge, Annex "F" of Petition; Rollo, 47. 5. G.R. No. 76009 entitled In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, petitioners, versus Hon. Juan Ponce Enrile, et al., respondents. 6. 7. 8. 9. 10. 11. 12. 13. Annex "D" of Petition; Rollo, 32-36. Annex "E" of Petition; Id., 37-45. Annex "F" of Petition; Id., 44-50. Annex "G" of Petition; Id., 51-53. Annex "H" of Petition; Rollo, 54-56. Annex "J" of Petition; Id., 64-70. Annex "K" of Petition; Rollo, 71-74. Annex "L" of Petition; Id., 75-79.

14. 15.

Carlson vs. Landon, 342 U.S. 524; 537-542 (1952); Wong Wing vs. U.S., 163 U.S. 228 (1986). Bell vs. Wolfish, 441 U.S. 534.

16. U.S. vs. Anthony Salerno and Vincent Cafaro, No. 86-87, May 26, 1987, decided by the U.S. Court of Appeals for the Second Circuit Court. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. Annex "A" of Petition; Rollo, 18-24. Petition, 11-15. Rollo, 84. Id., 89-119. Resolution of 3 September 1987; Rollo, 122. Id., 126-135. Id., 136. Rollo, 137. Id., 139-141. Id., 138-A. Id., 142. Id., 163. Id., 196-206. Article 135, Revised Penal Code. See Payao vs. Lesaca, 63 Phil. 210, 213; People vs. Alano, 81 Phil. 19, 21.

32. Montano vs. Ocampo, L-6352, Resolution of 29 January 1953, 49 O.G. 1855, cited in the dissenting opinion of then Justice Teehankee in Garcia-Padilla vs. Enrile, et al., 121 SCRA 472 (1953). 33. 34. 35. 36. 37. Herras-Teehankee vs. Director of Prisons, 76 Phil. 756, 770. Citing 6 C.J., sec. 168, pp. 953, 954; Italics supplied for emphasis. People vs. Sandiego, 26 SCRA 522. Article 22, Revised Penal Code. Petition, 8.

38. 39. 40. 41. 42. 43.

Comment, 6-8; Rollo, 94-96. Almeda vs. Villaluz, 66 SCRA 38. Mendoza vs. Court of First Instance of Quezon, et al., 51 SCRA 369. 67 C.J. 291. 92 C.J.S., 1066-1068; Italics supplied for emphasis. 16 A. 2d 50, 57, 340 Pa. 33, cited in note 71 C.J.S., 1068.

44. TOLENTINO, Civil Code of the Philippines, vol. 1, 1985 ed., pp. 31-32, citing Waxman vs. United States, 12 Fed. 2nd, 775. 45. People vs. Malasugui, 63 Phil. 221; de Garcia vs. Locsin, et al., 65 Phil. 689.

46. People vs. Royo, 114 SCRA 304; Morales vs. Enrile, 121 SCRA 538; People vs. Colana, 126 SCRA 23; People vs. Galit, 135 SCRA 465; People vs. Sanchez, 132 SCRA 103 and People vs. Quizon, 142 SCRA 362. 47. Abriol vs. Homeres, 84 Phil. 525; People vs. Dichoso, 96 SCRA 957.

[G.R. No. L-23599. September 29, 1967.] REYNALDO C. VILLASEOR, petitioner, vs. HON. MAXIMO ABAO, Judge of the Court of First Instance of Marinduque, and the PROVINCIAL FISCAL OF MARINDUQUE, respondents. Maximo Abao for respondents. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL. In bail fixing, "the principal factor considered, to the determination of which most other factors are directed, is the probability of the appearance of the accused, or of his flight to avoid punishment." 2. ID.; ID.; ID.; BAIL, EXCESSIVENESS OF. Here, petitioner is charged with a capital offense, direct assault upon an agent of a person in authority with murder. HELD: Whereas the reasonableness of Circular 47 of the Department of Justice, series of 1946, reiterated by Circular 48, series of 1963, which directs prosecuting attorneys to recommend bail at the rate of P2,000 per year of imprisonment corresponding to the medium period of the penalty prescribed for the offense charged, has already received this Court's imprimatur in one case, we are unprepared to downgrade this method of computation, what with compound of reduced peso value and the aggravated crime climate. We see no discernible abuse of discretion, given the facts and the law, when respondent Judge fixed petitioner's bail at P60,000.

3. ID.; ID.; ID.; SURETIES; QUALIFICATIONS OF; RULES OF COURT; RULE 114, SEC. 9. Where the respondent Judge required that the property bond be posted only by "residents of the province of Marinduque actually staying therein," in apparent collision with Sec. 9 of Rule 114 of the Rules of Court which provides that each of the sureties "must be a resident householder or freeholder within the Philippines," we read this directive to mean that it is but a minimum requirement. It is not intended to tie up the hands of a Judge to approve bail so long as it is offered by a resident householder or freeholder within the Philippines. It is to be treated as cumulative, rather than exclusive, of the inherent power of the courts to determine whether bail proffered should be accepted, for, in principle, a court has broad powers essential to its judicial function. And where petitioner failed to aver that the requirement that his bondsmen be actual residents of the province would cause him prejudice, such failure weighs heavily against him as it is not shown that, if error there was on the part of the respondent Judge, it was a prejudicial error calling for correction. 4. ID.; ID.; ID.; DISCRETION OF JUDGE. Discretion, indeed, is with the court called upon to rule on the question of bail. However, where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. FERNANDO, J., concurring: 1. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT TO BAIL; SUPREME COURT TO EXERCISE ITS SUPERVISORY POWERS SO AS NOT TO RENDER THE RIGHT NUGATORY. I join the Court in the decision arrived at, in view of the categorical assurance in its opinion expressed thus: "We are not to be understood as laying down here specifics in bail fixing, bail approval or bail denial. Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. 2. ID.; ID.; ID.; CONSTITUTIONAL MANDATE MUST BE FOLLOWED. It must not be forgotten that the Constitution stands for the proposition that public welfare is best served if the rights of an accused therein guaranteed are accorded due respect. As in so many cases in public law, there is here a need for the reconciliation of ends desirable in themselves, which, at times, may come into conflict and collision. With all due allowance, however, for the undeniable necessity for more effective law enforcement to deter rampant criminality and with full recognition of what Justice Cardozo correctly stressed, that "justice though due to the accused is due to the accuser also," with the courts then, as he stressed, having to keep the balance true, the imperative mandate of the Bill of Rights must be followed to the letter. 3. ID.; ID.; ID.; PROPERTY BOND REQUIRED IN CASE AT BAR NOT EXCESSIVE. What removes the taint of constitutional infirmity is that the bail in this case is not in cash, but a property bond. Considering the rapid increase in value of real estate and the undoubted fact that under the prevailing family relationship, embracing as it does not only the immediate household unit, but distant relations,

the probability of an accused languishing in detention even if ultimately proven innocent, is not as great as .otherwise it might have been. It is for that reason that I do not deem the amount of P60,000.00 here imposed excessive and thus violative of a constitutional prescription. DECISION SANCHEZ, J p: The questions presented in this, an original petition for certiorari, took root in Criminal Case 2299 (Court of First Instance of Marinduque) for the murder of Boac police sergeant Alfonso Madla, lodged by the Provincial Fiscal against petitioner. 1 Petitioner, defendant below, was, on motion, admitted to a P60,000.00 bail. The amount of the bond was, on verbal representation of petitioner's wife, reduced to P40,000.00. On May 29, 1964, petitioner posted a property bond, was set at provisional liberty. Before arraignment on the murder charge, however, respondent Provincial Fiscal amended the information. This time he accused petitioner with "Direct Assault Upon an Agent of a Person in Authority with Murder." On August 7, 1964, respondent judge sua sponte cancelled petitioner's bond, ordered his immediate arrest. On petitioner's motion to reconsider, respondent judge, on September 9, 1964, after hearing, resolved to admit him to bail provided he puts up a cash bond of P60,000.00. On September 15, 1964, on petitioner's motion that the original bond previously given be reinstated, respondent judge resolved to fix "the bond anew in real property in the amount of P60,000, but to be posted only by residents of the province of Marinduque actually staying therein" with properties which "must be in the possession and ownership of said residents for five years." On October 1, 1964, petitioner came to this Court on certiorari, with a prayer for preliminary injunction. He seeks to set aside respondent judge's orders of August 7, September 9 and September 15, 1964; to reinstate the bail bond theretofore approved by respondent judge on May 29, 1964, and for other reliefs. He charges respondent judge with having acted without and/or in excess of his jurisdiction and with grave abuse of discretion, and with violation of the Constitution and the Rules of Court in issuing the disputed orders. On October 3, 1964, this Court issued a writ of preliminary injunction upon a P1,000.00-bond. We restrained respondents from enforcing the orders in question and from further proceeding with the case. On November 5, 1965, we modified the writ of preliminary injunction; we lifted the portion thereof which prohibited continuation of the proceedings in the case below, Criminal Case 2299, to avoid delay in the prosecution thereof. Upon respondent's separate returns, the case was submitted without argument. 1. We need not pass upon respondent judge's orders of August 7, 1964 canceling petitioner's bail, and September 9, 1964 admitting the accused anew to cash bail. The August 7, 1964 order was superseded by that of September 9, 1964. This, in turn, was replaced by the last order of September 15,

1964, by virtue of which the cash bond required was reverted back to property bond. The two orders of August 7 and September 9, 1964 thus became functus officio. 2 A rule of ancient respectability is that it is not the function of a court of justice to furnish answers to purposeless questions that no longer exist. 3 Our inquiry accordingly narrows down to the three-pronged attack leveled by petitioner against the September 15, 1964 order of respondent judge. We propose to discuss them in seriatim. 2. Forefront amongst the three problems is this: Does the P60,000.00-bond fixed by respondent judge transgress the constitutional injunction that "(e)xcessive bail shall not be required?" 4 Petitioner's submission is that he is a mere government employee, earning but a monthly salary of P210.00, and the sole breadwinner of a family of five. To be read with the constitutional precept just adverted to is Section 12, Rule 114, Rules of Court, which provides that "the court may, upon good cause shown, either increase or reduce the amount" of the bail, and that "defendant may be committed to custody unless he gives bail in the increased amount he is called upon to furnish." Along with the court's power to grant bail in bailable cases is its discretion to fix the amount therefor, 5 and, as stated, to increase or reduce the same. 6 The question of whether bail is excessive "lays with the court to determine." 7 In the matter of bail fixing, courts perforce are to be guided at all times by the purpose for which bail is required. The definition of bail in Section 1, Rule 114, Rules of Court, gives this purpose "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." 8 And, in amplification thereof, Section 2 of the same rule states that the condition of the bail is that "defendant shall answer the complaint or information in the court in which it is filed or to which it may be transferred for trial, and after conviction, if the case is appealed to the Court of First Instance upon application supported by an undertaking or bail, that he will surrender himself in execution of such judgment as the appellate court may render, or that, in case the cause is to be tried anew or remanded for a new trial, he will appear in the court to which it may be remanded and submit himself to the orders and processes thereof." Expressions in varying language spell out in a general way the principles governing bail fixing. One is that the amount should be high enough to assure the presence of defendant when required but no higher than is reasonably calculated to fulfill this purpose. 9 Another is that "the good of the public as well as the rights of the accused," 10 and "the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction under the circumstances surrounding each particular accused, 11 "should all be balanced in one equation. We are not to consider solely the inability of a defendant to secure bail in a certain amount. This circumstance by itself does not make the amount excessive. 12 For, where an accused has no means of his own, no one to bail him out, or none to turn to for premium payments, any amount fixed no matter how small would fall into the category of excessive bail; and, he "would be entitled to be discharged on his own recognizance." 13

So it is, that experience has brought forth certain guidelines in bail fixing, which may be summarized as follows: (1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing at trial; (8) forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases. 14 But, at bottom, in bail fixing, "the principal factor considered, to the determination of which most other factors are directed, is the probability of the appearance of the accused, or of his flight to avoid punishment." 15 importance then is the possible penalty that may be meted. Of course, penalty depends to a great extent upon the gravity of the offense. Here, petitioner is charged with a capital offense, direct assault upon an agent of a person in authority with murder. A complex crime, it may call for the imposition of capital punishment. Then, Circular 47 dated July 5, 1946 of the Department of Justice, reiterated in Circular 48 of July 18, 1963, directed prosecuting attorneys to recommend bail at the rate of P2,000.00 per year of imprisonment, corresponding to the medium period of the penalty prescribed for the offense charged, unless circumstances warrant a higher penalty. The reasonableness of this circular has already received this Court's imprimatur in one case. 16 We are unprepared to downgrade this method of computation, what with a compound of reduced peso value and the aggravated crime climate. We see no discernible abuse of discretion, given the facts and the law, when respondent judge fixed petitioner's bail at P60,000.00. 3. Exacting serious consideration is that portion of the disputed order of September 15, 1964, where respondent judge requires that the property bond be posted only by "residents of the province of Marinduque actually staying therein." This question is of first impression. The drive of petitioner's argument is that this condition collides with Section 9, Rule 114, Rules of Court, which in part recites: "SEC. 9. Qualification of sureties. The necessary qualifications of sureties to a bail bond shall be as follows: (a) xxx Each of them must be a resident householder or freeholder within the Philippines; xxx xxx"

We read this statute to mean that the directive that bondsmen be resident householders or freeholders in the Philippines, is but a minimum requirement. Reason for this is that bondsmen in criminal cases, residing outside of the Philippines, are not within the reach of the processes of its courts. The provision under consideration, however, makes no attempt "to cover the whole field of what is necessary for a bondsman before he is allowed to make bonds in the various courts;" nor does it "attempt to take away the inherent right of the court to properly administer its affairs." 17 Residence within the country is not the only thing that could be required by the courts; it is not intended to tie up the hands of a judge to

approve bail so long as it is offered by a resident householder or freeholder within the Philippines. It is to be treated "as cumulative, rather than exclusive, of the inherent power" of the courts to determine whether bail proffered should be accepted. 18 For, in principle, a court has broad powers essential to its judicial function. 19 We look in retrospect at the situation confronting respondent judge. What prompted him to require as condition that petitioners bondsmen be residents of the province of Marinduque actually staying therein? In this return to the petition before this Court, respondent judge reasons out that it has been his experience that "it is hard to send notices to people outside of the province." He explains that the usual procedure of his clerk of court is to send notices by registered mail accompanied by return cards; that when trial comes, the return cards in many instances have not yet been received in court; that when the parties fail to appear, there is no way of knowing whether the notices have been duly received: that he cannot order the confiscation of the bond and the arrest of the accused, because he is not sure whether the bondsmen have been duly notified; that sending telegrams to people outside the province is costly, and the court cannot afford to incur much expenses. The posture taken by respondent judge does not offend the good sense of justice. Bail is given to secure appearance of the accused. If bondsmen reside in far away places, even if within the Philippines, the purpose of bail may be frustrated. There is the insufficiency of the mails as an effective means of communication. And then, there is the problem of complying with the constitutional mandate of speedy trial. If notice to sureties is not served, no trial can be had. For sureties, in legal contemplation, are defendant's mancupators. In the circumstances here obtaining, it would not seem unfair if the judge should require, as he did, that sureties be so situated that court processes could reach them on time. Because, by both the Constitution and the law, sureties should be sufficient. 20 And, sureties are deemed sufficient not only when they are of sufficient financial ability. They must also be "of sufficient vigilance to secure the appearance and prevent the absconding of the accused." 21 They cannot be said to be of sufficient vigilance to secure defendant's appearance whenever required, if the court should experience difficulty in communicating with them. Here, respondent judge only wanted to make sure that when the proper time comes for the court to order the sureties to produce the person of defendant, no undue delay will be incurred. Weighing as heavily against petitioner's case is the fact that a reading of his petition fails of an averment that the requisite exacted that bondsmen be residents of and actually staying in Marinduque would cause him prejudice. The burden of his arguments solely is that such a condition runs counter to the rules of court. He did not even say that he cannot secure such sureties. On the contrary, suggestion there is in the record that he is a former agent of the governor of Marinduque. Implicit in all these is that if error there was in the disputed order of September 15, 1964, petitioner has not shown that it was prejudicial error calling for correction. 22 The situation here presented does not warrant substitution of our judgment for that of respondent judge's. We are not called upon to strike down respondent judge's order on this point as an abuse of discretion.

4. Also assailed as beyond the power of respondent judge is the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years." Respondent judge, in his return, relies on Circular 2, dated January 23, 1964, of the Honorable, the Secretary of Justice, addressed, amongst others, to Judges of First Instance. That circular recites that it had been brought to the attention of the Department of Justice that in certain provinces, unscrupulous persons who are spurious land owners have been accepted as sureties. The Secretary then suggested that "(i)t may be a good policy not to accept as bail bonds real properties not covered by certificates of title unless they have been declared for taxation purposes in favor of the person offering them as bond for at least five (5) years." Basically, reason is with this requirement. Its purpose, so the circular states, is to "prevent the commission of frauds in connection with the posting of personal bail bonds and to protect the interests of the Government." Really, if the bondsmen is not the owner, bail fails of its purpose, prejudice to the government sets in. We note, however, that the order of September 15, 1964 spoke of properties in general. It did not exclude properties registered under the Torrens system. A Torrens title is indefeasible, Failure of specificness on the part of respondent judge then could have been a case of oversight. To obviate misunderstanding, we take it upon ourselves to clarify that order. We do say now that the order of September 15, 1964 is to be understood as excluding properties covered by Torrens titles from the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years." 5. In the end we say that respondent judge's order of September 15, 1964, as thus clarified, is here confirmed, considering the overall environmental circumstances. We are not to be understood as laying down here specifics in bail fixing, bail approval or bail denial. Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. With the observations heretofore adverted to, we vote to dismiss the petition for certiorari, and to dissolve the writ of preliminary injunction issued herein. Cost against petitioner. So ordered. Concepcion, C. J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Ruiz Castro and Angeles, JJ., concur. Separate Opinions FERNANDO, J., concurring: Candor compels the admission that the writer had to overcome serious doubts and hesitancy before concurring in the dismissal of this petition for certiorari. It may be observed parenthetically that such misgivings do not reflect at all on the ably-written opinion of Justice Sanchez, who was most meticulous in his appraisal of the facts and most sympathetic to the claim for constitutional protection. There are

unfortunately circumstances, which, to my mind, militate against the actuation of the lower court whose view on the constitutional right to bail hardly merits the fullest approval. I join the Court, however, in the decision arrived at, in view of the categorical assurance in its opinion expressed thus: "We are not to be understood as laying down here specifics in bail fixing, bail approval or bail denial. Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy." As noted by former Chief Justice Paras in one of the many opinions in Nava v. Gatmaitan, 1 where this Court, in view of the lack of necessary votes, was unable to rule that the suspension of the privilege of the writ of habeas corpus did not carry with it the suspension of the right to bail, fitly categorized such right along with the other rights of the accused as tending "to aid the accused to prove his innocence and obtain acquittal." The then Justice, later Chief Justice, Bengzon, who was with the majority in upholding the continued existence of the right to bail notwithstanding the suspension of the privilege was equally emphatic. Thus: "Give them the assurance that the judiciary, ever mindful of its sacred mission will not, thru faulty cogitation or misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always cling to the principles uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the Constitution, 'the Courts will favor personal liberty' (Ex parte Burford 3 Cranch [7 U.S.] Law. Ed. Book 2 at p, 495)." 2 So was the late Justice Tuason "To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so called 'judicial statesmanship. The legislature itself can not infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound to protect and maintain undiluted individual rights." 3 I am not insensible to the claim strongly pressed by the prosecuting arm of the government that there has been an abuse of the right to bail and that there are quite a few instances where due to such lapses perpetrators managed to go scot-free. It is indisputable that there is a great public interest in having malefactors apprehended, thereafter tried, and if found guilty, punished according to law. Equally so, it must not be forgotten that the Constitution stands for the proposition that public welfare is best served if the rights of an accused therein guaranteed are accorded due respect. As in so many cases in public law, there is here a need for the reconciliation of ends desirable in themselves, which, at times, may come into conflict and collision. With all due allowance, however, for the undeniable necessity for more effective law enforcement to deter rampant criminality and with full recognition of what Justice Cardozo correctly stressed, that "justice though due to the accused is due to the accuser also," 4 with the courts then, as he stressed, having to keep the balance true, the imperative mandate of the Bill of Rights must be followed to the letter. There is, to repeat, comfort in the thought categorically set forth in the

opinion of the court, "Where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy." That expression of sentiment commands my fullest concurrence. One last point. On its face, the requirement of a P60,000 bail raises a serious question as to whether there is a violation of the constitutional prohibition against excessive bail. The view of Justice Perfecto in Lino vs. Fugoso, 5 comes to mind: "It is a fact that the twelve detainees joined the workers' strike in a desperate endeavor to secure a decent living wage. They went into strike because with what they were being paid for their daily labor they had not enough to make both ends meet. At the time of their arrest, they were not even earning the insufficient salary or wage against which they were protesting by means of strike. If those persons were not earning enough to live as decent human beings, and at the time of their detention they were not receiving even the miserable pittance they were complaining of, is it not an insulting joke to require them to raise each P12,000 for bail, an amount, which even we, the members of the Supreme Court, occupying the highest ranks in our judicial system, and receiving the highest salary allowed by law to a judicial officer, could not raise with the urgency required by the situation of a man who is deprived of his personal freedom? " What removes the taint of constitutional infirmity is that the bail in this case is not in cash, but a property bond. Considering the rapid increase in value of real estate and the undoubted fact that under the prevailing family relationship, embracing as it does not only the immediate household unit, but distant relations, the probability of an accused languishing in detention even if ultimately proven innocent, is not as great as otherwise it might have been. It is for that reason that I do not deem the amount here excessive and thus violative of a constitutional prescription. Footnotes 1. "People of the Philippines vs. Reynaldo Villaseor y Cordero alias Reny," Court of First Instance of Marinduque. 2. De la Fuente vs. Jugo, 76 Phil. 262, 264; Zarcal vs. Herrero, 83 Phil. 211, 712-713; Madrigal & co. vs. Court of Appeals, 92 Phil. 941, 944; Canlas vs. Judge of the Court of First Instance, L-19733, November 28, 1964. 3. 4. 5. 6. Remonte vs. Bonto, L-19900, February 28, 1966, citing cases. Section 1 (16), Article III, Constitution. 8 C.J.S., p. 13. See Sy Guan vs. Amparo, 79 Phil. 670, 671.

7. Weems vs. United States, 217 U.S. 349, 369, 54 L. ed. 793, 799. See: IV Moran, Comments on the Rules of Court, 1963 ed., p. 136, Navarro, Criminal Procedure, 1960 ed., p. 232. "When bail is allowed, unreasonable bail is not to be required; but the constitutional principle that demands this is one which,

from the very nature of the case, addresses itself exclusively to the judicial discretion and sense of justice of the court or magistrate empowered to fix upon the amount." Green vs. Petit, 54 N.E 2d. 281, 282. citing Cooley, Constitutional Limitations, 5th ed., p. 378. 8. 9. 10. 11. 12. Emphasis supplied. 8 Am. Jur. 2d., p. 824, citing cases. Braden vs. Lady, 276 S.W. 2d 664, 666. United States vs. Mulcahy, 155 F. 2d. 1002,1004. Ex parte Malley, 53 A L.R. 395, 397.

13. Annotation: 72 A.L.R. 809, citing Re Scott, 56 N.W. 1009 and Ex parte Duncan; 54 Cal. 75. Our law also recognizes two methods of taking bail: (1) by bond; and 2) by recognizance. Section 1, Rule 114, Rules of Court. "A bail bond is an obligation given by the accused with one or more securities, with the condition to be void upon the performance by the accused of such acts as he may legally be required to perform. A recognizance is an obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial." People vs. Abner,. 87 Phil. 566, 569. 14. 8 Am. Jur. 2d., pp. 824-825.

15. Id., p. 825; emphasis supplied. The probability that the accused will abscond justifies courts to increase bail Montano vs. Ocampo (Resolution), 49 O.G. No. 5, p. 1855; Sy Guan vs. Amparo, supra Cf. People vs. Berg, 79 Phil. 842. 16. 17. 18. 19. 20. Edao vs. Cea, L-6821 May 10, 1954. Taylor vs. Waddey, 334 S.W. 2d 733, 736. Am. Jur. 2d. p. 789. Section 5 (d), Rule 135, Rules of Court. Section 6 (16), Article III, Constitution; Section 10, Rule 114, Rules of Court.

21. Western Surety Co. vs. People, 208 P. 2d. 1164, 1166,, citing People vs. Pollock; 176 P. 329, and United States vs. Lee, 170 F. 613, 614. 22. Section 10, Rule 124, Rules of Court.

FERNANDO, J., concurring: 1. 2. 90 Phil. 175 (1951). At p. 195.

3. 4. 5.

At p. 206. Snyder v. Massachusetts (1934) 291 US 97, 122. 77 Phil. 933, 943 (1946), Perfecto, J.. concurring.

SECOND DIVISION [G.R. No. 129297. March 17, 2000.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMULO SAN DIEGO y ESPIRITU, accusedappellant. The Solicitor General for plaintiff-appellee. Tagle-Chua Cruz & Aquino for accused-appellant. SYNOPSIS Accused-appellant Romulo San Diego appealed the decision of the Regional Trial Court, Branch 80, Tanay, Rizal, finding him guilty of rape and sentencing him to suffer the penalty of reclusion perpetua. Petitioner contended that the trial court seriously erred in convicting him on the basis of the incredible and conflicting testimonies of the prosecution witnesses and in disregarding the clear, convincing and well-corroborated testimony of the accused. IDSEAH The Supreme Court found the appeal meritorious and acquitted accused-appellant of the crime charged. The element of force and intimidation was not sufficiently established in the case at bar. The Court cannot imagine how appellant could have undressed the victim, kissed her all over her body, fondled her private parts, inserted his penis into her vagina, and mashed her breasts while all the time pointing a knife at her side. The duration of the alleged rape three hours during which, the victim said, appellant kissed her all over the body before inserting his penis into her vagina, tended to show that appellant and the victim engaged in consensual sex rather than that she had merely been forced into the act. The test of sufficiency of force or intimidation in rape, is whether it produces a reasonable fear in the victim that if she resists or does not give in to the sexual demands of the accused, the threat would be carried out. Assuming that a knife was really poked at the victim's side, it could not have been held by the appellant for the entire three-hour period that she was being raped. The victim could have done something during that time to fight off appellant but she did not do anything, not even an attempt to escape. SYLLABUS 1. CRIMINAL LAW; RAPE; ELEMENT OF FORCE AND INTIMIDATION; NOT ESTABLISHED IN CASE AT BAR. Ailene alleges that force and intimidation were used against her by accused-appellant. However, her account of how the rape took place and her demeanor during the one month and a half that she was

allegedly detained by accused-appellant is not credible. We cannot imagine how accused-appellant could have undressed her, kissed her all over her body, fondled her private parts, insert his penis into her vagina, and mashed her breasts while all the time pointing a knife at her side. The duration of the alleged rape three hours during which, Ailene said, accused-appellant kissed her all over the body before inserting his penis into her vagina, tends to show that accused-appellant and complainant engaged in consensual sex rather than that complainant had merely been forced into the act. Indeed, we have ruled that the test of sufficiency of force or intimidation in rape is whether it produces a reasonable fear in the victim that if she resists or does not give in to the sexual demands of the accused, the threat would be carried out. Assuming that a knife was really poked at Ailene's side, it could not have been held by the accused-appellant for the entire three-hour period that she was being raped. Ailene could have done something during that time to fight off accused-appellant. Besides, we cannot understand how Ailene could have been frightened by the warning, "May kukunin ako sa inyo," which was allegedly uttered by accused-appellant while he was raping her. If at all, threats of this kind are generally made by rapists to prevent their victim from reporting the rape rather than to force submission to their demands. 2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; VICTIM'S TESTIMONY FAILED TO ENGENDER THAT WELL-FOUNDED BELIEF THAT ACCUSED-APPELLANT COMMITTED THE CRIME. The factual findings of the trial court are generally accorded great respect unless it is shown that certain facts of value have been plainly overlooked. In the case at bar, the trial court relied on Ailene's testimony, which, to our mind, failed to engender that well-founded belief that accused-appellant committed the crime. In rape cases, courts are guided by the following considerations: (1) An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person, though innocent, to disprove the same; 2) In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) The evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. Applying these guidelines, we hold that Ailene's testimony can not pass muster, especially given the requirement that the prosecution must prove beyond all reasonable doubt that accused-appellant is guilty. CAIaHS DECISION MENDOZA, J p: This is an appeal from the decision 1 of the Regional Trial Court, Branch 80, Tanay, Rizal, finding accusedappellant Romulo San Diego guilty of rape and sentencing him to suffer the penalty of reclusion perpetua, to pay complainant Ailene G. Ebreo P50,000.00 as moral damages, plus costs. 2 The information against accused-appellant reads: That on or about the 1st day of September, 1995, in the Municipality of Morong, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with Ailene G. Ebreo, without her consent and against her will.

CONTRARY TO LAW. Tanay, Rizal, December 13, 1995. Upon arraignment, accused-appellant pleaded not guilty, whereupon, he was tried. The prosecution's version of the case, based mainly on the testimony of complainant and her mother, is as follows: On September 1, 1995 at around 5 P.M., upon arriving home in Cherry II, San Jose, Antipolo, Rizal, Ailene G. Ebreo realized that she had left her umbrella in the tricycle from which she alighted. Fearing that her sister would scold her for this, she asked permission from her mother to go out and look for the umbrella. Ailene took a tricycle driven by accused-appellant to go to the town proper of Teresa, Rizal where she planned to look for her missing umbrella. She noticed that accused-appellant was only driving in circles, so he asked accused-appellant to stop and let her off. Accused-appellant, however, paid no heed and instead, drove the vehicle towards San Guillermo, Morong, Rizal, where, at knifepoint, he forced complainant to go inside a house which was in a rather uninhabited place. Ailene noticed a man inside the house. Accused-appellant then locked Ailene inside a room. She tried to escape but failed to do so because someone was guarding her. She screamed and cried to no avail. cdll At 9 P.M., accused-appellant returned. He started kissing Ailene while poking a knife at her side. She begged him to have pity on her, but accused-appellant boxed her in the stomach. So, Ailene stopped protesting. Accused-appellant then removed Ailene's underwear and inserted his penis into her vagina. She was warned that if she reported the incident, something dire would happen to her family. ("May kukunin siya sa amin.)" 3 Ailene testified that accused-appellant had sexual intercourse with her, kissed and fondled her breast, for three hours. She also claimed that accused-appellant again raped her the following morning, and this time the intercourse lasted two hours. Ailene claimed she did not resist because she wanted to gain the trust of accused-appellant so she could then escape from him. She said she even kept accused-appellant company wherever he had drinks with his friends. She further said that accused-appellant used drugs and made her take some against her will. Ailene also testified that she went with accused-appellant whenever he would make trips on his tricycle around Morong and Antipolo. She would sit on the driver's seat, holding on to accused-appellant for support. They were often at the Teresa Public Market where accused-appellant picked up passengers. 4 On October 18, 1995, 48 days after she was allegedly abducted by accused-appellant, Ailene was found by her parents inside accused-appellant's tricycle which was then parked near the Teresa Public Market. Ailene was then alone as accused-appellant was elsewhere calling for passengers. According to Ailene, when she saw her mother, she ran towards her and told her what had happened to her. 5 Nenita Ebreo, Ailene's mother, corroborated her daughter's testimony. According to Nenita, when her daughter left their house on September 1, 1995 at around 5 P.M. to look for the missing umbrella, she

did not expect her to return home that day because Ailene was then staying with her other daughter, Iryne Ebreo, in Dela Paz, Antipolo. Ailene would go home to her parents house in Cherry II Subdivision on the 15th and 30th day of each month to bring groceries to her mother. Hence, on September 16, 1995, Nenita decided to look for Ailene in Iryne's house. It was only then that she learned that Ailene was missing. 6 Nenita said she and her husband went around to look for their daughter but to no avail. They went around Morong and Antipolo asking some tricycle drivers for the whereabouts of Ailene, but no one could tell them where she was. 7 Several days later, they learned that Ailene was being held by a "Kan Roy," the name by which accused-appellant is known in Teresa. But it was only on October 18, 1995, that Nenita and her husband finally found Ailene in the public market. According to Nenita, Ailene ran towards her. She was allegedly in shock and did not talk throughout the trip home. It was only much later that Ailene was able to tell her parents that she had been raped by accused-appellant. 8 On October 22, 1995, Ailene, accompanied by her parents, went to the Morong Police Station and filed a complaint against accused-appellant. 9 On October 23, 1995, she was examined at the Philippine National Police (PNP) Crime Laboratory by Dr. Owen Lebequin whose report states: GENERAL AND EXTRAGENITAL:

EN BANC [G.R. No. 93177. August 2, 1991.] BGEN. JOSE COMENDADOR, BGEN. MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT. MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC. RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT, LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PEA, MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA, MAJ. FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA, and GENERAL COURT-MARTIAL NO. 14 COMPOSED OF: BGEN. DEMETRIO CAMUA, COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents. [G.R. No. 95020. August 2, 1991.] BGEN. DEMETRIO CAMUA, COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, petitioners, vs. HON. MAXIMIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT, PA., respondents.

[G.R. No. 96948. August 2, 1991.] BGEN. JOSE COMENDADOR, BGEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC. JACINTO LIGOT, PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PEA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA CAPT. ELMER AMON PAF, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. BGEN. DEMETRIO CAMUA, COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14, respondents. [G.R. No. 97454. August 2, 1991.] AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT. COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP Detention Center/Jail, petitioners, vs. HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL. 1LT. SERVANDO A. BAOANAN PN(M), 1LT. WILFREDO JIMENEZ PAF, 1LT. ATANACIO T. MACALAN, JR PM(M), 2LT. ELISEO T. RASCO PC, 2LT. JONAS CALLEJA PC, 2LT. JAIRUS JS. GELVEZON III PM M), 2LT. JOSELITO CABREROS PM(M), 2LT. MEMEL ROJAS PN(M) and 2LT. HERMINIO L. CANTACO PC, respondents. Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero, Ericson Aurelio, Levino Valencia, Danilo Amon, Vergel Nacino, Florencio Flores, Benigno Junio and Joey Sarroza. Manuel Q. Malvar for Rafael Galvez and Danny Lim. Manuel E. Valenzuela for Arsenio Tecson. Mariano R. Santiago for Alfredo Oliveros. Ricardo J.M. Rivera for Manuel Ison. Castillo, Laman, Tan and Pantaleon for Danilo Pizarro. Alfredo Lazaro for Romelino Gojo. Manuel A. Barcelona, Jr. for Jose Comendador. Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando. Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio. Efren C. Moncupa for A.L. Tecson. M.M. Lazaro & Associates for respondents Ligot and Ison.

Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot. Salvador B. Britanico for Cesar de la Pea. Gilbert R.T. Reyes for Danilo Pizarro. Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177. The Solicitor General for respondents. DECISION CRUZ, J p: These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident. The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d'etat that took place on December 1 to 9, 1989. The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder). In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the conduct of the Pre-Trial Investigation (PTI) Panel constituted to investigate the charges against them and the creation of the General Court Martial (GCM) convened to try them. In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408. In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents. In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020. I Before the charges were referred to GCM No. 14, a Pre-Trial Investigation (PTI) Panel had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177 and 96948.

The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the petitioners, to wit: You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counteraffidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for viol of AWs ________. DO NOT SUBMIT A MOTION TO DISMISS. Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence. On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements of witnesses, and death and medical certificates of victims of the rebellion. At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing. This was done through a Motion for Summary Dismissal dated February 21, 1990. In a resolution dated February 27, 1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses. On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14, 1990. The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides: ARTICLE 71. Charges; Action upon. Charges and specifications must be signed by a person subject to military law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief. No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. (Emphasis supplied.) They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution witnesses were presented to reaffirm their affidavits. While the motion for summary

dismissal was denied, the motion for reconsideration remains unresolved to date and they have not been able to submit their counter-affidavits. At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their right to raise peremptory challenges against the president and members of GCM No. 14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued under P.D. No. 39. In G.R. No. 95020, Ltc. Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No. 14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No. 14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot. On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobeying the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court. After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc. Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc. Romelino Gojo and Capt. Manuel Ison. On August 22, 1990, the trial court rendered judgment inter alia. (a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the assailed orders of General Court-Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14 Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson. On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpus on the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release. II

The Court has examined the records of this case and rules as follows. It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial. The said petitioners cannot now claim they have been denied due process because the investigation was resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly warned in the subpoena sent them that "failure to submit the aforementioned counteraffidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their defense. Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violation of the Bill of Rights. There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general courtmartial of jurisdiction." We so held in Arula v. Espino, 1 thus: xxx xxx xxx

But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction. The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said: "We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counterpart is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable pre-requisite to the exercise of Army general court martial jurisdiction. The Article does serve important functions in the administration of court-martial procedures and does provide safeguards to an accused. Its language is clearly such that a defendant could object to trial in the absence of the required investigation. In that event the court-martial could itself postpone trial pending the investigation. And the military reviewing authorities could consider the same contention, reversing a court-martial conviction where failure to comply with Article 70 has substantially injured an accused. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pre-trial investigations fall short of the standards prescribed by Article 70. That Congress has not required analogous pre-trial

procedure for Navy court-martial is an indication that the investigatory plan was not intended to be exalted to the jurisdictional level. xxx xxx xxx

Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But this holding has been expressly repudiated in later holdings of the Judge Advocate General. This later interpretation has been that the pre-trial requirements of Article 70 are directory, not mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's interpretation was pointedly called to the attention of Congress in 1947 after which Congress amended Article 70 but left unchanged the language here under consideration." A trial before a general court-martial convened without any pretrial investigation under article of war 71 would of course be altogether irregular; but the court-martial might nevertheless have jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity of the proceedings. As to what law should govern the conduct of the preliminary investigation, that issue was resolved more than two years ago in Kapunan v. De Villa, 2 where we declared: The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge sheets, charging petitioners and their co-respondents with mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had investigated the matter through an evaluation of the pertinent records, including the reports of respondent AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge sheets were not certified in the manner provided under said decrees, i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that they voluntarily executed and understood his affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against them. That petitioners were not able to confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance with P.D. No. 77, as amended by P.D. No. 911. The petitioners also allege that GCM No. 14 has not been constituted in accordance with Article 8 of the Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by Gen. Renato de Villa as Chief of Staff.

Article of War No. 8 reads: ARTICLE 8. General Courts-Martial. The President of the Philippines, the Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority . . . While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he authorized it because the order itself said it was issued "By Command of General De Villa" and it has not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned the said order, as he would certainly have done if his authority had been improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M-6 in the Comment filed for him and the other respondents by the Solicitor General. Coming now to the right to peremptory challenge, we note that this was originally provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit: ARTICLE 18. Challenges. Members of general or special courts-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged except for cause. The history of peremptory challenge was traced in Martelino v. Alejandro, 3 thus: In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, this aside from the fact that the officer corps of the developing army was numerically inadequate for the demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory challenges should not in the meanwhile be permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court-martial or by the accused. After December 17, 1958, when the Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program

of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War II in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12, 1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause." On September 27, 1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them." On November 7, 1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction, Procedure, and other matters relevant to Military Tribunals). This decree disallowed the peremptory challenge, thus: No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced. On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No. 39 was embodied in this decree. On January 17, 1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending therein. P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein. With the termination of martial law and the dissolution of the military tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased automatically. It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases. Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul. Applying these rules, we hold that the withdrawal of the right to peremptory challenge in P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation No. 2045. As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived and now again allows the right to peremptory challenge.

We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime." The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present government should invoke the rules of that discredited body to justify its action against the accused officers. The Court realizes that the recognition of the right to peremptory challenge may be exploited by a respondent in a court-martial trial to delay the proceedings and defer his deserved punishment. It is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their adverse effects. This is a problem only the political departments can resolve. The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings. The petitioners further contend that under Sec. 9(3) of BP 129, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals, 4 where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals." It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts. In Martelino, we observed as follows: It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion what in the language of Rule 65 is referred to as "grave abuse of discretion" as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition . . . The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on

petitions for habeas corpus and quo warranto. 5 In the absence of a law providing that the decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction. We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist." The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. xxx xxx xxx

National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on 'provisional' bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more than one year from their arrest, our finding is that there was substantial compliance with the requirements of due process and the right to a speedy trial. The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991, by the respondent court, where the petitioners submitted the charge memorandum and specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant

to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and specifications and were required to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of more than one year in the investigation and preparation of the charges against the private respondents. However, this was explained by the Solicitor General thus: . . . The AFP Special Investigating Committee was able to complete its pre-charge investigation only after one (1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months to finish. The pre-charge investigation was rendered doubly difficult by the fact that those involved were dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout Rangers, have already been disbanded. After the charges were completed, the same still had to pass review and approval by the AFP Chief of Staff. While accepting this explanation, the Court nevertheless must reiterate the following admonition: This Court as protector of the rights of the people, must stress the point that if the participation of petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed against him or the existence of a prima facie case warranting trial before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must be taken to try the person accused or to dismiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion may even be punished as a court martial may direct. 6 It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The 48-hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the decision had not yet become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991. III Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court in Arula: The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will

amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released. ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of the private respondents are hereby REVERSED and SET ASIDE. No costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, GrioAquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Separate Opinions SARMIENTO, J., concurring and dissenting: I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he would deny bail to accused military personnel. The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong." 1 The Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas corpus is suspended." 2 To deny the military officers here concerned of the right to bail is to circumscribe the inclusive meaning of "all persons" the coverage of the right. I believe that military officers fall within "persons" The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on 'provisional' bail . . . [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice." 3 But would a scenario of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally dangerous" elements of society?

We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be granted the same right. The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we are a government of laws, not tradition. If there are precedents that attest to the contrary, I submit that a reexamination is in order. Footnotes 1. 2. 3. 4. 28 SCRA 540. 168 SCRA 264. 32 SCRA 106. 186 SCRA 287.

5. Sec. 5, Article VIII, 1987 Constitution of the Republic of the Philippines; Sec. 9(1) and Sec. 21(1), B.P. 129. 6. Elepante v. Madayag, G.R. No. 93559, April 26, 1991.

SARMIENTO, J ., concurring and dissenting: 1. 2. 3. CONST., art. III, sec. 13. Supra. 3 Decision, 20.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 92871 & 92860 August 2, 1991 MARIA P. VDA. DE JOMOC, ET AL. vs. COURT OF APPEALS, ET AL. THIRD DIVISION [G.R. No. 92871. August 2, 1991.] MARIA P. VDA. DE JOMOC, ET AL., petitioners, vs. THE COURT OF APPEALS, REGIONAL TRIAL COURT OF MISAMIS ORIENTAL, 10th Judicial Region, Br. 25, respondents.

[G.R. No. 92860. August 2, 1991.] SPOUSES LIM LEONG HONG & LIM PUE KING, petitioners, vs. MAURA SO & HON. COURT OF APPEALS (Eleventh Division), respondents. Pablito C. Pielago, Nemesio G. Beltran, Federico C. Villaroya and Medardo P. Millares for petitioners in G.R. No. 92860. Manolo S. Tagarda for petitioners in G.R. No. 92871. Jose Ngaw collaborating counsel for the petitioners in G.R. No. 92871. DECISION GUTIERREZ, JR., J p:

EN BANC [G.R. No. 122770. January 16, 1998.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO AGBAYANI y MENDOZA, accusedappellant. The Solicitor General for plaintiff-appellee. Froilan V. Siobal for accused-appellant. SYNOPSIS Eduardo Agbayani was sentenced to death by the Regional Trial Court, Branch 106 of Quezon City for raping her 14-year old daughter, Eden. The conviction was based on the testimonies of prosecution witnesses, Dr. Florante Baltazar, the victim and SPO1 Salvador Buenviaje. ECcTaS The defense, on the other hand, interpose the defense of denial and alibi, and one of the evidence presented was the affidavit of desistance of the victim. However, it was retracted by the victim during the presentation of the rebuttal evidence claiming that she was only pressured by her mother and sister to sign it. Hence, in this appeal the appellant questioned the credibility of the testimony of the victim in view of her execution of the affidavit of desistance. The Court ruled that affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court, and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later

on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. cIHCST The decision of the trial court is affirmed. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; PRESUMPTION OF REGULAR PERFORMANCE OFFICIAL DUTY; TRIAL COURT PRESUMED TO HAVE COMPLIED WITH ITS DUTY TO INFORM ACCUSED OF HIS RIGHT TO COUNSEL. The trial court's order of 22 December 1994 states that said de oficio counsel were "duly appointed by the Court with the consent of the accused." Since appellant miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand. In other words, the trial court is presumed to have complied with its four-fold duties under Section 6 of Rule 116 of the Rules of Court; namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him. 2. ID.; ID.; ID.; ID.; ID.; FAILURE OF THE RECORD TO DISCLOSE AFFIRMATIVELY THAT TRIAL JUDGE ADVISED ACCUSED OF HIS RIGHT TO COUNSEL, NOT SUFFICIENT TO REVERSE CONVICTION. It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right. IDTSaC 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; RIGHT TO QUESTION FAILURE OF TRIAL COURT TO INFORM ACCUSED OF RIGHT TO COUNSEL DEEMED WAIVED BY HIS CONSENT TO BE ASSISTED BY TWO (2) COUNSEL DE OFICIO. In the instant case, the trial court appointed two de oficio counsel who assisted the appellant at his arraignment, one of whom extensively cross-examined the first witness for the prosecution, Dr. Florante Baltazar. Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsel's extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged failure of the trial court to inform him of his right to counsel. 4. REMEDIAL LAW; COURTS; TRIAL COURTS' COMPLIANCE WITH THEIR PRE-ARRAIGNMENT DUTIES MUST APPEAR ON RECORD. We take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel to ask him if

he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, a de oficio counsel will be appointed for him, must appear on record. 5. ID.; CRIMINAL PROCEDURE; TWO (2) DAYS TIME TO PREPARE FOR TRIAL MUST BE EXPRESSLY DEMANDED, OTHERWISE, IT IS DEEMED WAIVED. Turning to the alleged violation of appellant's right to the 2-day period to prepare for trial Section 9 of Rule 116 of the Rules of Court reads: SEC. 9. Time to prepare for trial After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Further, such right may be waived, expressly or impliedly. In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. 6. ID.; EVIDENCE; CREDIBILITY; THIS COURT WILL NOT GENERALLY INTERFERE WITH THE JUDGMENT OF THE TRIAL COURT IN PASSING UPON CREDIBILITY OF OPPOSING WITNESSES. The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility of opposing witnesses, unless there appears in the record some facts or circumstances of weight and influence which have been overlooked and, if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying. He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked, she often hides in nooks and crannies visible only to the mind's eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt 7. ID.; ID.; ID.; MOTIVE OF 14-YEAR OLD DAUGHTER IN CHARGING HER OWN FATHER OF RAPE. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. 8. CRIMINAL LAW; RAPE; MAY BE COMMITTED WHERE PEOPLE CONGREGATE. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape anywhere even in places where people congregate such as in parks, along the roadside, within school premises, and inside a house where there are other occupants. In People v. Opena, rape was committed in a room occupied also by other persons. In the instant case, EDEN's other companions in the room

when she was molested by appellant were young girls who were all asleep. DHSaCA

9. ID.; ID.; FORCE OR INTIMIDATION; SUBSTITUTED BY MORAL ASCENDANCY OR INFLUENCE BY THE FATHER OVER HIS DAUGHTER. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether or not he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough to render her incapable of resisting or asking for help. In any event, in a rape committed, by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with equanimity of disposition and with nerves of steel or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout, some may faint, and some may be shocked into insensibility; while others may openly welcome the intrusion. 10. ID.; ID.; INTIMIDATION; SUFFICIENT IF IT PRODUCED FEAR FOR VICTIM'S LIFE; RESISTANCE, UNNECESSARY. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim' s submission to the sexual act voluntary. 11. REMEDIAL LAW; EVIDENCE; AFFIDAVIT OF; DESISTANCE; CONSIDERED INFERIOR TO THE TESTIMONY GIVEN IN OPEN COURT. Nor is there merit in the insistent claim that EDEN's affidavit of desistance "must have necessarily contradicted her previous testimony." We have earlier quoted in full this affidavit of desistance. Plainly, nowhere therein did she retract her previous testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court; and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. 12. CIVIL LAW; DAMAGES; P50,000.00 INDEMNITY FOR RAPE. To take appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full

force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of "P75,000.00 as damages," which is hereby reduced to P50,000.00 in accordance with current case law. DECISION PER CURIAM p: Nine years and four months ago this Court declared: Rape is a nauseating crime that deserves the condemnation of all decent persons who recognize that a woman's cherished chastity is hers alone to surrender of her own free will. Whoever violates that will descends to the level of the odious beast. The act becomes doubly repulsive where the outrage is perpetrated on one's own flesh and blood for the culprit is reduced to lower than the lowly animal. The latter yields only to biological impulses and is unfettered by social inhibitions when it mates with its own kin, but the man who rapes his own daughter violates not only her purity and her trust but also the mores of his society which he has scornfully defied. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all respect as a human being and is justly spurned by all, not least of all by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery. 1 At the end of the day, after resolving this case of 14-year-old Eden Agbayani who charged her own father with rape committed in the sanctity of their rented room on 19 July 1994, this Court finds itself repeating this declaration. 2 Before this Court on automatic review is the decision 3 of the Regional Trial Court of Quezon City, Branch 106, in view of the death penalty imposed by it for the crime of rape, defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659. 4 On 12 September 1994, the Station Investigation and Intelligence Division of the National Capital Regional Command, Philippine National Police (PNP), endorsed to the Office of the City Prosecutor of Quezon City the complaint of Eden Agbayani (hereafter EDEN) for rape against her father, herein accused-appellant Eduardo Agbayani y Mendoza. 5 After appropriate preliminary investigation, a complaint 6 for rape signed by EDEN, assisted by her sister Fedelina Agbayani, and subscribed and sworn to before Asst. City Prosecutor Charito B. Gonzales, was filed against appellant with the Regional Trial Court of Quezon City on 27 October 1994. The case was docketed as Criminal Case No. Q-94-59149, then set for arraignment, pre-trial and trial on 22 December 1994. 7 At his arraignment on 22 December 1994, appellant, assisted by Attys. Samuel Baldado and Edwin de la Cruz as counsel de oficio, entered a plea of not guilty. 8 Upon agreement of the parties, trial on the merits immediately followed, with the prosecution presenting the first witness, Dr. Florante Baltazar, a Medico-Legal Officer of the PNP Crime Laboratory, 9 who was cross-examined by Atty. Baldado. 10 On the succeeding dates of trial, the prosecution presented EDEN 11 and SPO1 Salvador Buenviaje. 12

During these hearings, however, appellant was represented by Atty. Arturo Temanil of the Public Attorney's Office. 13 On its part, the defense presented appellant, Adoracion M. Cruz, Fedelina Agbayani, as well as EDEN who identified her and Fedelina's affidavit of desistance, 14 which was subscribed and sworn to before notary public Eranio Cedillo on 6 February 1995. Said affidavit reads as follows: We, Eden Agbayani, 14 years old, complainant and Fedelina Agbayani, 19 years old, sister of Eden Agbayani, and presently residing at No., Phase 1, United Glorieta, Kaniogan, Pasig, Metro Manila, after having been duly sworn to in accordance with law do hereby depose and states [sic]: dctai That we are the complainant [sic] against our father, Eduardo Agbayani pending before this honorable Court docketed as Criminal Case No. 59149; That after evaluating the circumstance that lead [sic] to the filing of the instant case I formally realize that the incident between us and my father is purely family problem that arise from the disciplinarian attitude of our father; That this resulted to family misunderstanding, hence we decided to formally forego this case and withdraw the same: That I am executing this affidavit for purposes of finally withdrawing the instant case and therefrom requesting this Honorable Court to dismiss the case against our father. That this affidavit was executed freely and voluntarily. As EDEN declared in open court that what she said in her previous testimony and sworn statement were not true, the trial court held her in direct contempt of court, reasoning that her "intentional falsehood" was "offensive to its dignity and a blatant disrespect to the Court, and actually degrading [to] the administration of justice." Accordingly, the trial court ordered her "committed to incarceration and imprisonment within the period provided by law," 15 which penalty, however, was modified to a fine of P200.00 upon EDEN's motion for reconsideration. 16 On rebuttal, the prosecution had EDEN back on the witness stand. She retracted her affidavit of desistance and claimed that she had signed it under coercion by her mother and elder sister. The trial court's summary of the evidence for the prosecution, with the references to the pages of the stenographic notes and exhibits deleted, is as follows: The evidence adduced on record shows that sometime in September of 1993 in Malolos, Bulacan, the accused was charged by his two daughters, FEDELINA and DODIMA AGBAYANI, [with] the crime of rape which case was raffled to the sala of Judge Danilo Manalastas of Branch 7, Regional Trial Court, Bulacan. The case was, however, provisionally dismissed by said Judge after the complainants desisted from pursuing the same in May 1994. Eduardo Agbayani was thus consequently released from jail on July 13,

1994. Three (3) days thereafter, he began living with four (4) of his six (6) daughters, Fedelina, Eden, Diana and Edima, in a rented room at 30-A Makabayan St., Bgy. Obrero, Quezon City. The evidence of the prosecution, in part consisting of the testimonies of Complainant Eden Agbayani, Medico Legal Officer, Dr. Florante Baltazar and SPO1 Salvador Buenviaje, shows that at the abovementioned address, the complainant, Eden Agbayani, on the evening of July 19, 1994, was sleeping on the floor of the room with her father, the accused Eduardo Agbayani and her youngest sister, Edima, while her sisters, Fedelina and Diana slept on a bed. At the time, complainant's mother was outside the country, working in Saudi Arabia. At about 9:00 p.m. of July 19, Complainant Eden Agbayani was awakened from her sleep by hands caressing her breasts and vagina. She turned to discover that it was her father who was then molesting her. Frightened, she asked, "Tay bakit niyo po ginagawa sa akin ito, gayong kalalabas mo lang sa kulungan?" and threatened to kill her [sic]. The accused then proceeded to undress her. Thereafter he undressed himself and succeeded in having carnal knowledge with the complainant who could only cry helplessly. The complainant thereafter felt blood dripping from her vagina and felt pain. The next day, or on July 20, 1994, the complainant informed her elder sister, Fedelina, of what had been done to her by her father. She was told not to worry as they would go to Bulacan to report the incident to Fiscal Caraeg of Bulacan, who had, the year before, handled the rape case filed by Fedelina and Dodima. Several attempts were made by her sisters, Fedelina and Eden to reach the said fiscal but it was only on September 9, 1994, that they were able to meet with him. Fiscal Caraeg of Bulacan reported the complaint to Judge Danilo Manalastas who reopened the previously provisionally dismissed case and issued a warrant of arrest against the herein accused. With the assistance of police officers from Station 10 of the SIID in Quezon City, the accused was arrested on the same day at his residence at 30-A Makabayan St., Bgy. Obrero, Quezon City and was later brought to Malolos, Bulacan where he is currently detained. After the accused's arrest, Eden and Fedelina returned to Station 10 where they made individual statements before SPO1 Salvador Buenviaje narrating the events leading to and occurring after the incident of July 19, 1994. The next morning, Eden was examined by Medico-Legal Officer and Chief of the PNP Crime Laboratory, Dr. Florante Baltazar, a colonel, who, accordingly, prepared the corresponding Medico-Legal Report. 17 Appellant put up the defense of denial and alibi. According to him, he could not have raped his daughter EDEN, because on 19 July 1994, he was in Barangay Victoria in Sual, Pangasinan, visiting his eldest daughter. 18 He declared that EDEN charged him with rape because he had hit her with a belt after he caught her lying about her whereabouts one night. Then on 24 July 1994, she left their rented apartment and did not return anymore. 19 Adoracion Cruz corroborated appellant's alibi. She declared that on 17 July 1994, appellant requested her to take care of his children because he was going to Pangasinan to visit his sick father, returning home only on 21 July 1994.20

The trial court gave full credence to the testimony of EDEN, who "appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive;" further, it commended her "for her courage and her unwavering strength in the midst of the emotional and psychological strain and humiliation, not to mention the pressure and lack of moral support of her family, brought on by the filing of this case." It also ruled that EDEN did not voluntarily execute the affidavit of desistance as it was procured "at the behest of her mother and sister for whom the sanctity of the family and the family's good name were more important than demanding punishment for whatever injury the complainant might have suffered in the hands of the accused." Besides, even assuming arguendo that no such pressure was exerted by her mother and sister, the trial court declared that it understood EDEN's moral predicament, viz., for a child like EDEN, it was difficult to charge her own father with rape; insist on his punishment; and thereby inflict emotional stress and financial strain upon the members of her family, particularly her mother. The trial court likewise gave full faith to the sworn statement (Exhibit "E") of Fedelina Agbayani. Turning to the defense of appellant, the trial court found his alibi wholly self-serving, and characterized the testimony of Adoracion Cruz unworthy of belief. As to appellant's claim that EDEN filed the complaint because of a grudge against him, the trial court found this "incredible, if not totally absurd," for: The complainant is an innocent girl of tender years who is unlikely to possess such vindictiveness and dearth of conscience as to concoct such a malicious and damaging story. The complainant appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive. Her retraction on March 16 was sufficiently explained to this Court (tsn, 5-4 95, testimony of Eden Agbayani, pp. 2-3). She has shown to this Court the seriousness of the injury upon her person and dignity inflicted upon by the accused . . . Even assuming argumenti gratia that the complainant would indeed lodge a complaint against her father solely on account of an altercation with him, it is highly unlikely that the complainant would concoct a charge which would damage her and wreck havoc on her family's reputation, destroy the household peace and subject her father, the accused, to a grave punishment which by dent of express of law, can obliterate him from the face of this earth. Indeed, to uphold the defense's proposition would be stretching the imagination too far, if not to the extreme. The trial court finally found that appellant employed on EDEN force or intimidation by virtue of his moral ascendancy over her and his threat that he would kill her if she reported the incident to anyone. Accordingly, the trial court, applying Section 11 of R.A. No. 7659 which imposes the penalty of death when the victim is under eighteen years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or common-law spouse of the parent of the victim, rendered judgment against appellant, to wit: WHEREFORE, considering all the foregoing, judgment is hereby rendered finding the accused, EDUARDO AGBAYANI, GUILTY beyond reasonable doubt of the crime of RAPE committed against complainant, Eden Agbayani, his minor daughter. This Court, as a consequence thereof, hereby imposes upon him the supreme penalty of DEATH, conformably with the provisions of the death penalty law, R.A. 7659.

Further, Accused is hereby ordered to pay the complainant, Eden Agbayani, the sum of P75,000.00 as damages, with all the necessary penalties provided for by law without subsidiary imprisonment, however, in the event of insolvency and to pay the costs. Let the entire records of this case be forwarded to the Supreme Court on automatic review. SO ORDERED. On 26 May 1995, appellant, through his new counsel de parte Attorneys Froilan V. Siobal and Domingo Floresta, filed a Motion for New Trial 21 on the ground that serious irregularities prejudicial to his substantial rights were committed during the trial, viz., the failure of the counsel de oficio to: (a) present at trial the Barangay Captain of Barangay Obrero, Quezon City, who would have testified, on the basis of his certification attached to the motion, that there was a house bearing No. 30, Makabayan St., in his barangay, but that there was no such place as 30-A Makabayan St. of said barangay, which was the address given by EDEN; (b) consider the futility of Adoracion Cruz's testimony; (c) present private complainant's mother and sister Fedelina on sur-rebuttal to testify as to the circumstances which brought about he execution of the affidavit of desistance; and (d) cross-examine complainant and the police investigator exhaustively. He further alleged that his counsel de oficio was never prepared during all the scheduled hearings, worse, even waived the presence of appellant after the third witness for the prosecution was presented. He also averred that the trial court used its inherent power of contempt to intimidate private complainant. In their Comments/Opposition to the Motion for New Trial, 22 the public and private prosecutors alleged that there were no such irregularities; neither was there new and material evidence to be presented that appellant could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted at trial would probably change the judgment of the court. In its Order 23 of 31 July 1995, the trial court denied the motion for new trial for being devoid of merit and for not being within the purview of Sections 1 and 2, Rule 121 of the Rules of Court. In his Appellant's Brief filed before this Court, appellant contends that the trial court erred in: (a) denying his motion for new trial; and (b) holding that the prosecution proved beyond reasonable doubt that he committed the crime charged. In support of the first assigned error, appellant reiterates the grounds in his motion for new trial, and adds two others, namely, (1) the lower court failed to apprise him of his right to have counsel of his own choice; and (2) the lower court did not give him the opportunity to prepare for trial, despite the mandated period of two days prescribed in Section 9 of Rule 116 of the Rules of Court. In his second assigned error, appellant contends that EDEN's testimony is not sufficient to convict, since it is unclear and not free from serious contradictions. Considering their proximity to EDEN, it was impossible for her sisters or any one of them not to have been awakened when EDEN was allegedly being abused by him. Strangely, EDEN simply kept quiet and allowed him to abuse her; neither did she

shout for help or put up a fight that would have awakened her sisters. Notably, EDEN and her sisters allowed him to live and sleep with them again in their rented room even after the alleged rape. Finally, appellant asserts that EDEN's testimony is unreliable because her affidavit of desistance must have necessarily been contradictory thereto. Her "subsequent turn-around . . . that she was pressured and influenced to execute and sign the affidavit of desistance further confirmed her being untruthful and, in effect, demolished whatsoever faith left on her charge against the accused." The Office of the Solicitor General (OSG) considers the first assigned error as devoid of merit. When appellant appeared without counsel at the arraignment, the trial court informed him that it would appoint de oficio counsel for him if he so desired, to which appellant agreed. Moreover, the 2-day period to prepare for trial provided in Section 9 of Rule 116 is merely directory and does not prohibit the court from proceeding with trial after arraignment, especially if the defense, as here, consented thereto. It would have been entirely different if the defense did not agree, in which case the court would have no other alternative but to grant him the period. As to appellant's other grievances, the OSG points out that throughout all the hearings, appellant never questioned the way his defense was being handled by his counsel de oficio. The latter's request for a continuance because he had not yet conferred with appellant was not evidence of counsel's lack of sincerity. On the contrary, it showed counsel's awareness of his duty to confer with appellant to ferret out the relevant facts as regards the second witness for the prosecution. Likewise, the waiver of appellant's presence during the hearing of 18 March 1995 did not prejudice him, because on that date, the defense presented EDEN to testify as to her affidavit of desistance, and Fedelina to corroborate the statements of EDEN which testimonies were in appellant's favor. As to the manner appellant's counsel de oficio cross-examined the prosecution witnesses, the OSG stresses that the record shows that said counsel tried his best. The OSG then characterizes the second assigned error as "barren of merit." EDEN's positive identification of appellant as the author of the crime rendered appellant's defense of alibi unavailing; moreover, she demonstrated clearly and vividly what transpired that fateful evening of 19 July 1994. Thus in view of EDEN's candid and categorical manner of testifying the OSG concluded that she was a credible witness. 24 As to the commission of rape in a small room and in the presence of other persons, the OSG maintains that such was not at all improbable. 25 There was, as well, nothing unusual in EDEN's silence; as she could only attempt to shout because appellant had succeeded in covering her mouth with his hands and exercised a high level of moral ascendancy over EDEN, his daughter. 26 Hence the OSG invokes the principle that in a rape committed by a father against his own daughter, the former's moral ascendancy and influence over the latter substitutes for violence or intimidation. 27 As regards EDEN's affidavit of desistance, the OSG maintains that courts look with disfavor on retraction of testimonies previously given in court, for such can easily be secured from poor and ignorant witnesses usually for a monetary consideration, 28 as well as the probability that it may later be repudiated.

In his Reply Brief, appellant countered that his consent to the appointment of counsel de oficio at his arraignment did not relieve the court of its duty under Section 6 of Rule 116 of the Rules of Court to inform him of his right to counsel and that it would be grievous error to deny an accused such right. Appellant then elaborated on this point as follows: This is not without judicial precedent. In People vs. Cachero, 73 Phil. 426 and People vs. Domenden, 73 Phil. 349, cited in R.J. Francisco's Criminal Procedure, Third Ed., 1966, p. 323 it was held, that: "The courts should comply with Rule 116, Sec. 3. It would be a grievous error to proceed by sentencing the accused without due process of law and this is not complete, when the accused is denied the right recognized by said rule. The records must show compliance therewith or that the accused renounced his right to be assisted by counsel. This is demanded by the interest of justice and remove all doubts that if the accused had waived said right, he was fully informed before giving his plea of its consequences. Omission by courts whether voluntary should not truly be censured but also condemned." Discussing further the right to the 2-day period to prepare for trial, the appellant contends that said right: [H]as been held to be mandatory and denial of this right is a reversible error and a ground for new trial. (R.J. Francisco's Criminal Procedure, Third Ed., 1986, p. 404, citing People vs. Mijares, et al., 47 OG 4606; Dumasig v. Morave, 23 SCRA 659). This must be so ". . . to prevent that any accused be caught unaware and deprived of the means of properly facing the charges presented against him." LibLex The first assigned error does not persuade this Court. It is true that the transcript of the stenographic notes of the proceedings of 22 December 1994 and the order issued by the trial court after the conclusion of said proceedings only state that the court appointed de oficio counsel with the consent of the said accused. They do not categorically disclose that the trial informed appellant of his right to counsel of his own choice. However, this does not mean that the trial court failed to inform appellant of such right. The precise time the two counsel de oficio were appointed is not disclosed in the record either. At the recorded portion of the arraignment aspect of the proceedings on 22 December 1994, the two formally entered their appearance, thus: COURT: Call the case. (Interpreter calls the case). FISCAL ROSARIO BARIAS: For the prosecution, Your Honor. ATTY. MARIETA AGUJA: Respectfully appearing for the prosecution, Your Honor under the control and direct supervision of the Trial Prosecutor, Your Honor, we are ready to present our first witness.

ATTY. BALDADO: For the accused Your Honor, appointed as counsel de oficio. ATTY. DE LA CRUZ: For the accused, Your Honor appointed by the court as counsel de oficio. 29 This obviously means that the appointment had taken place earlier. The trial court's order 30 of 22 December 1994 states that said de oficio counsel were "duly appointed by the Court with the consent of the accused." Since appellant has miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand. 31 In other words, the trial court is presumed to have complied with its four-fold duties under Section 6 32 of Rule 116 of the Rules of Court, namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him. 33 It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right. 34 In U .S. v. Labial, 35 this Court held: Adhering to the doctrine laid down in that case, the only question to be determined in this case is whether the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial. Upon this point we are all agreed that in the absence of an affirmative showing that the court below did in fact fail to advise the accused of their rights under the provisions of sections 17 of General Orders No. 58, as amended by section 1 of Act No. 440, the mere omission from the record brought here upon appeal of an entry affirmatively disclosing that he did so, is not reversible error. In the absence of an affirmative showing to the contrary, the court below must be presumed in matters of this kind to have complied with the provisions of law prescribing the procedure to be followed in the trial had before him. While in People v. Miranda 36 this Court explicitly stated:

However, said counsel calls attention to the fact that the record is silent as to whether or not, at the time appellant was arraigned, the trial court informed him of his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of Court. This precise issue was determined in United States vs. Labial (27 Phil. 87, 88), in the sense that unless the contrary appears in the records, it will be presumed that the defendant was informed by the court of his right to counsel. ". . . If we should insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws, we should destroy public justice, and give unbridled license to crime. Much must be left to intendment and presumption, for it is often less difficult to do things correctly than to describe them correctly." (United States vs. Labial, supra.) The same doctrine was reiterated in People vs. Abuyen (52 Phil. 722) and in United States vs. Custan (28 Phil. 19). We see no reason to modify it now. In the instant case, the trial court appointed two de oficio counsel who assisted the appellant at his arraignment, one of whom extensively cross-examined the first witness for the prosecution, Dr. Florante Baltazar. 37 Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsel's extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged failure of the trial court to inform him of his right to counsel. 38 The cases of People v. Domenden 39 and People v. Cachero 40 cited by appellant are inapplicable. In both cases the trial courts there clearly failed to inform the accused of their right to counsel nor appoint de oficio counsel during the arraignment. Nevertheless, we take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel, to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, a de oficio counsel will be appointed for him, must appear on record. Turning to the alleged violation of appellant's right to the 2-day period to prepare for trial, Section 9 of Rule 116 of the Rules of Court reads: SEC. 9. Time to prepare for trial. After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. 41 Only when so demanded does denial thereof constitute reversible error and a ground for new trial. 42 Further, such right may be waived, expressly or impliedly. 43 In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. During the succeeding hearings, appellant was represented by Atty. Temanil of the Public Attorney's Office in Quezon City, who entered his appearance as de parte, and not as de oficio, counsel. It is to be presumed that Atty. Temanil's services were obtained pursuant to the law creating the Public Attorney's Office (PAO), formerly the Citizen's Legal Assistance Office (CLAO). 44 There is at all no showing that

Atty. Temanil lacked the competence and skill to defend appellant. The latter's contention that his counsel was not ready at all times because at the hearing on 20 January 1995 he asked for a continuation as he has "not yet interviewed [his] client," 45 is misleading. Atty. Temanil made that statement after he cross-examined EDEN and after the judge realized that it was almost 1:00 o'clock in the afternoon and both of them were already hungry, thus: ATTY. TEMANIL: I just want to make it on record, Your Honor that from the start of trial the witness appears to be fluent and suffers no difficulty in answering the questions, even the questions propounded by the Private Prosecutor, Your Honor. COURT: Put that on record. That is true, Atty. Temanil, it is almost 1:00 o'clock in the afternoon and we are both hungry now. ATTY. TEMANIL. I will just asked [sic] for continuance considering that I have not yet interviewed my client, Your Honor. 46 Neither is there merit in appellant's claim that his counsel committed irregularities: (1) in not considering the futility of the testimony of Adoracion Cruz; (2) in not presenting the barangay captain in the evidence in chief for the defense, and EDEN's mother and sister Fedelina in sur-rebuttal; and (3) in not cross-examining exhaustively EDEN. Adoracion Cruz was presented to corroborate appellant's alibi that he was in the province and not in their rented room from 17 to 21 July 1994. On the other hand, the testimony of the barangay captain could not alter the fact that rape was committed in a rented room in a house along Makabayan Street in his barangay. Appellant neither testified that he did not occupy a house numbered 30-A nor denied that he was living with EDEN and her sisters in that room. Besides, he and his children were not renting the entire house, but merely a room, which could probably be the unit numbered "30-A" referred to by EDEN. As to the presentation of EDEN's mother and sister Fedelina as sur-rebuttal witnesses to disprove the claim of EDEN that they coerced her into signing the affidavit of desistance, suffice it to state that there was nothing to show that they were in fact willing to refute EDEN's claim. Finally, contrary to appellant's allegation, a meticulous examination of the transcripts of the stenographic notes convinces this Court that Atty. Temanil sufficiently cross-examined EDEN. If he decided to terminate his cross-examination, it could have been due to the futility of any further crossexamination which might only prove favorable to the prosecution, as it might have opened another window of opportunity for EDEN to strengthen her testimony.

The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility or opposing witnesses, unless there appears in the record some facts or circumstances of weight and influence which have been overlooked and if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying. 47 He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked; she often hides in nooks and crannies visible only to the mind's eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. 48 On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt. 49 At any rate, in view of the gravity of the offense charged and the extreme penalty of death imposed, this Court took painstaking effort and meticulous care in reviewing the transcripts of the stenographic notes of the testimonies of the witnesses. This Court is fully satisfied that EDEN told the truth that she was raped by her father, herein appellant, on 19 July 1994, in their rented room in Barangay Obrero, Quezon City. Her story was made even more credible by the simplicity and candidness of her answers, as well as by the fact that it came from an innocent girl writhing in emotional and moral shock and anguish. She must have been torn between the desire to seek justice and the fear that a revelation of her ordeal might mean the imposition of capital punishment on her father. By testifying in court, she made public a painful and humiliating secret, which others may have simply kept to themselves for the rest of their lives. She thereby jeopardized her chances of marriage, as even a compassionate man may be reluctant to marry her because her traumatic experience may be a psychological and emotional impediment to a blissful union. Moreover, such a revelation divided her family and brought it shame and humiliation. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape anywhere even in places where people congregate such as in parks, along the roadside, within school premises, and inside a house where there are other occupants. 50 In People v. Opena, 51 rape was committed in a room occupied also by other persons. In the instant case, EDEN's other companions in the room when she was molested by appellant were young girls who were all asleep.

That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether or not he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough to render her incapable of resisting or asking for help. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim's and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary. 52 In any event, in a rape committed by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. 53 Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. 54 Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the intrusion. 55 Neither does the fact that EDEN continued to live with appellant in the same rented room disprove the rape. While she was hurt physically, psychologically and emotionally, yet the thought must have been irresistible and compelling that her assailant was her own father, who was both a father and mother to her since her mother was in Saudi Arabia and who provided her with the daily wherewithal to keep her alive. Besides, a less harsh life outside was uncertain. Instances are not few when daughters raped by their fathers stayed with the latter and kept in the deepest recesses of their hearts the evil deed even if the memory thereof haunted them forever. LibLex Nor is there merit in the insistent claim that EDEN's affidavit of desistance "must have necessarily contradicted her previous testimony." We have earlier quoted in full this affidavit of desistance. Plainly, nowhere therein did she retract her previous testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court; 56 and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. 57

This Court has no doubt that appellant is guilty as charged. The penalty therefor is death under the first circumstance mentioned in Article 335(7) of the Revised Penal Code, as amended by R.A. No. 7659, which provides, in part, as follows: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent of the victim. This law may be difficult to accept for those who believe that the verdict of death for a sin or crime is God's exclusive prerogative. But the fundamental law of the land allows Congress, for compelling reasons, to impose capital punishment in cases of heinous crimes, 58 hence the passage of R.A. No. 7659. Hoc quidem per quam durum est sed ita lex scripta est. The law may be exceedingly hard but so the law is written and the Court is duty-bound to apply it in this case. To the appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of "P75,000.00 as damages," which is hereby reduced to P50,000.00 in accordance with current case law. WHEREFORE, judgment is hereby rendered AFFIRMING the decision of the Regional Trial Court of Quezon City, Branch 106, in Criminal Case No. Q-94-59149 finding accused-appellant EDUARDO AGBAYANI y MENDOZA guilty beyond reasonable doubt as principal of the crime of rape defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and imposing upon him the penalty of DEATH, subject to the above modification as to the amount of indemnity. Two Justices voted to impose upon the accused-appellant the penalty of reclusion perpetua. Upon finality of this Decision, let certified true copies thereof, as well as the records of this case, be forwarded without delay to the Office of the President for possible exercise of executive clemency pursuant to Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. No. 7659. With costs de oficio. SO ORDERED. Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Panganiban and Martinez, JJ ., concur. Footnotes 1. People v. Ramos, 165 SCRA 400, 408 [1988].

2. 3.

See also People v. Matrimonio, 215 SCRA 613, 633 [1992]. Original Record (OR), 121-133; Rollo, 76-88. Per Judge Julieto P. Tabiolo.

4. Entitled An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended, Other Special laws, and for Other Purposes. It took effect on 31 December 1993 (People v. Simon, 234 SCRA 555 [1994]). 5. 6. 7. 8. 9. 10. 11. 12. OR, 11-12. Id., 1-2. OR, 19. Id., 32; TSN, 22 December 1994, 26. Ibid., id., 3. TSN, 22 December 1994, 15. TSN, 20 January 1995. TSN, 9 February 1995.

13. TSN, 20 January 1995, 1; TSN, 9 February 1995, 1; TSN, 16 March 1995, 1; TSN, 24 March 1995, 1; TSN, 20 April 1995, 1. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. Exhibit "1," OR, 95. Order of 16 March 1995, Id., 72. Order of 17 March 1995, Id., 82. OR, 122-123; Rollo, 77-75. TSN, 24 March 1995, 4, 12-13. Id., 6-8. TSN, 20 April 1995, 4-5. OR, 148-154. Id., 160-165. Id., 176-179. Citing People v. Palicte, 27 January 1996. Citing People v. Manuel, 236 SCRA 545 [1994].

26. 27. 28. 29. 30. 31. 32.

Citing People v. Dusohan, 227 SCRA 87 [1993]. Citing People v. Matrimonio, 215 SCRA 613 [1992]. Citing People v. Mangulabnan, 200 SCRA 611 [1991]. TSN, 22 December 1994, 2. Id., 26. Sections 3(ff) and (m), respectively, Rule 151, Rules of Court. The section provides:

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 is 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. 33. People v. Holgado, 85 Phil. 752, 756 [1950]. VICENTE J. FRANCISCO, THE REVISED RULES OF COURT (CRIMINAL PROCEDURE) 559 (2d, 1969) 34. U.S. v. Labial, 27 Phil. 82, 84 [1914]; U.S. v. Escalante, 36 Phil. 743, 746 [1917]; People v. Abuyen, 52 Phil. 722, 724 [1929]; People v. Ocbina, 63 Phil. 528, 529 [1936]; People v. Javier, 64 Phil. 413, 416417 [1937]; People v. Miranda, 78 Phil. 418 [1947]; People v. Nang Kay, 88 Phil. 515, 517-518 [951]. 35. 36. 37. 38. 39. 40. 41. Supra note 34, at 84. Supra note 34, at 419. TSN, 22 December 1994, 15-25. U.S. v. Escalante, supra note 34 at 746-747. 73 Phil. 349 [1941]. 73 Phil. 426 [1941]. People v. Kagui Malasugui, 63 Phil. 221, 229 [1936].

42. People v. Mejares, 85 Phil. 727, 729 [1950]; Montilla v. Arellano, 89 Phil. 434, 437 [1951]; People v. Nabaluna, 101 Phil. 402, 404-405 [1957]. 43. People v. Moreno, 77 Phil. 548, 553-554 [1946], citing People v. Cruz, 54 Phil. 24, 28 [1929].

44. Integrated Reorganization Plan which was decreed into law by P.D. No. 1, dated 24 September 1972, and by Letter of Implementation No. 4 dated 23 October 1972. The CLAO was renamed PAO by Sec. 14, Chapter 5, Title III of Book IV of the 1987 Administrative Code.

45. 46. 47.

TSN, 20 January 1994, 31. Id., 31. People v. Conde, 322 Phil. 757,766 [1996].

48. People v. Delovino, 317 Phil. 741, 753 [1995), citing Creamer v. Bivert, 214 MO 473, 474 [1908] as cited in M. FRANCES McNAMARA, 2000 FAMOUS LEGAL QUOTATIONS 548 [1967). 49. People v. De Guzman, 188 SCRA 407, 410 [1990]; People v. De Leon, 245 SCRA 538, 546 [1995].

50. People v. Aragona, 138 SCRA 569, 580 [1985]; People v. Viray, 164 SCRA 135, 143 [1988]; People v. De los Reyes, 203 SCRA 707, 723 [1991]. 51. 102 SCRA 755 [1981].

52. People v. Grefiel, 215 SCRA 596, 608, 609 [1992]; People v. Matrimonio, supra note 2, at 630; People v. Pamor, 237 SCRA 462, 472 [1994]. 53. People v. Erardo, 127 SCRA 250 [1984]; People v. Lucas, 181 SCRA 316 [1990]; People v. Caballes, 199 SCRA 152 [1991]; People v. Matrimonio, supra note 2. 54. 55. 56. 57. 58. People v. Matrimonio, supra note 2. People v. Cabradilla, 133 SCRA 413, 418-419 [1984]; People v. Grefiel, supra note 54. People v. Marcelo, 223 SCRA 24, 37 [1993]; People v. Enciso, 223 SCRA 675, 686 [1993]. People v. Mangulabnan, 200 SCRA 611, 623 [1991]. Section 29 (1), Article III, Constitution.

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G.R. No. 122046 January 16, 1998 METRO TRANSIT ORGANIZATION vs. NLRC, ET AL. FIRST DIVISION [G.R. No. 122046. January 16, 1998.] METRO TRANSIT ORGANIZATION, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and RAMON M. GARCIA, respondents.

The Government Corporate Counsel for petitioner. Romeo C. Lagman for private respondent. SYNOPSIS Private respondent Ramon Garcia started working with petitioner Metro Transit Organization as a station teller in 1984. In April 1992 he called up the office of petitioner and asked his immediate supervisor if he could go on leave of absence as he was proceeding to Cebu to look for his wife and children who suddenly left home without his knowledge. After a few weeks of fruitless search he returned to Manila. When he reported to the office in May, 1992, he was not allowed to resume work and was informed to resign rather than be terminated for his absences. He at once prepared a resignation latter. Upon advice from the president of his labor union, they brought the matter of his forced resignation before the grievance machinery for arbitration. Petitioner paid no heed to his plea. Thus, he filed a complaint for illegal dismissal. The Labor Arbiter ruled in his favor and ordered him reinstated with backwages. The NLRC on appeal affirmed the Labor Arbiter's decision. Hence this petition. AIaDcH The petition is unavailing. Petitioner has failed to establish satisfactorily that public respondent NLRC acted rashly and capriciously to justify the issuance against it of the extraordinary coercive measure of certiorari. We are not persuaded that Garcia had already made up his mind to resign, as petitioner would have us believe, even he was told by an immediate superior to report to the legal department for investigation. If this was so, he would have already prepared a formal letter of resignation to hand over to management as soon as he reported for work. On examination of the circumstances surrounding the submission of the letter indicates that the resignation was made without proper discernment so that it could not have been intelligently and voluntarily done. We need not belabor the point that the reinstatement of Ramon M. Garcia is in keeping with established jurisprudence. Certainly, a termination without just cause entitles a worker to reinstatement. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACTS OF THE LABOR ARBITER AFFIRMED BY THE NLRC; GENERALLY ACCORDED GREAT WEIGHT AND CERTITUDE ON APPEAL. The Court has always held that the factual findings arrived at by a trier of facts who is uniquely positioned to observe the demeanor of the witnesses appearing before him and is most competent in judging the credibility of the contending parties are accorded great weight and certitude. In the instant case, we find nothing irrational nor wayward in the affirmation by the NLRC that Garcia was forced to resign thus was illegal dismissed. There is therefore nothing to correct in the questioned act of the NLRC. This circumstance obtaining, certiorari does not lie. ECaScD 2. LABOR AND SOCIAL LEGISLATION; LABOR CODE; EMPLOYMENT; EMPLOYEE ILLEGALLY DISMISSED IS ENTITLED TO REINSTATEMENT. We need not belabor the point that the reinstatement

of Ramon M. Garcia is in keeping with established jurisprudence. Certainly, a termination without just cause entitles a worker to reinstatement. DECISION BELLOSILLO, J p: This is a petition for certiorari with prayer for the issuance of a temporary restraining order and/or preliminary injunction seeking the reversal of the decision of the National Labor Relations Commission (NLRC) dated 3 July 1995 1 and its resolution dated 25 August 1995 denying petitioner's motion for reconsideration. The assailed decision affirmed the ruling of the Labor Arbiter which held petitioner liable for illegal dismissal. 2 Private respondent Ramon M. Garcia started working with petitioner Metro Transit Organization (METRO) as a station teller in November 1984. On 22 April 1992 he called up the office of METRO and asked his immediate supervisor Carlos Limuaco if he could go on leave of absence as he was proceeding to Cebu to look for his wife and children who suddenly left home without his knowledge. After a few weeks of fruitless search he returned to Manila. prcd When he reported to the office on 15 May 1992 Garcia was not allowed to resume work but was directed by his section head, Felix Leyson, to proceed to the legal department of METRO where he would undergo investigation. There he was asked by one Noel Pili about his absence from work. After he explained to Pili his predicament, Pili cut short the inquiry and informed him right away that it would be better for him to resign rather than be terminated for his absences. Still in a state of extreme agitation and weighed down by a serious family problem, Garcia at once prepared a resignation letter. Then he left again for the province to look for his family. But like his first attempt his effort came to naught. Soon after, or on 4 June 1992, the Personnel Committee of METRO approved his resignation. Meanwhile, Garcia sought advice from the president of his labor union and asked that the union intervene in his case by bringing the matter of his forced resignation before their grievance machinery for arbitration. METRO paid no heed to the problem and rejected Garcia's plea that he be not considered resigned from his employment. Thus on 15 December 1992 Garcia filed a complaint for illegal dismissal. At the hearings, petitioner maintained that private respondent absented himself on 22 April 1992 without official leave and then later on freely and willingly relinquished his employment because he was establishing his own business. This position was rebuffed by the Labor Arbiter who on 28 November 1994 found for private respondent and ordered petitioner to "immediately reinstate complainant Ramon M. Garcia to his former position as station teller without loss of seniority rights and to pay him back wages in the total sum of P180,219.00 plus attorney's fees of P18,219.00." 3 On appeal, the NLRC affirmed the decision of the Labor Arbiter and thereafter denied petitioner's motion for reconsideration.

The petition before us is unavailing. Petitioner has failed to establish satisfactorily that public respondent NLRC acted rashly and capriciously to justify the issuance against it of the extraordinary coercive measure of certiorari. While petitioner rails against the NLRC for ign

FIRST DIVISION [G.R. No. L-48944. February 26, 1981.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADULFO TERROBIAS, defendant-appellant. Solicitor General Estelito P. Mendoza, Reynato S. Puno and Solicitor Jesus V. Diaz for plaintiff-appellee. J. Antonio M. Carpio for defendant-appellant. DECISION DE CASTRO, J p: This is an appeal from the decision of the Court of First Instance of Catanduanes convicting the accused, Adulfo Terrobias, of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua; to acknowledge the offspring of Delia Bonion as his natural child with all the rights granted her by law; and to indemnify the victim, Delia C. Bonion, in the sum of P10,000.00 as actual, moral and exemplary damages, and to pay the costs. 1 To the charge of rape, appellant interposed the defense of alibi. He does not, therefore, deny the truth of the testimony of the complainant, the 17-year-old Delia C. Bonion, as to her sexual experience except only to disclaim any participation therein with his assertion of never having had sexual intercourse with her. The testimony of the complainant on how she was sexually assaulted, and the events that intervened thereafter, may, therefore, be quoted from the appealed decision which set forth the said testimony as follows: ". . . Complainant Delia C. Bonion narrated how on the night of February 17, 1977 as she was fast asleep because of the days work, she woke up to find Adulfo Terrobias already on top of her holding her hands and when she resisted was told not to shout under threats of harm. As Delia continued to struggle, Adulfo covered her mouth with a wad of cotton soaked with medicine which smell weakened her and caused her to lose consciousness. When she came to, Delia still saw Adulfo getting his pants and went out the room. Still laboring under the fear of harm because Adulfo warned her that nobody should know what he did, Delia continued her usual household work, awaiting the arrival of her parents. Adulfo did not take breakfast at the table the following morning. Delia's mother visited her February 27 and she confided to her what Adulfo did. Florencia Terrobias was informed by Dolores C. Bonion same day within the hearing of Delia, and after condemning Adulfo as a 'salvaje', her Lola Insay asked the two to wait for the arrival of Gregorio Terrobias who was in Naga City. The defense miserably failed to present Gregorio and Florencia Terrobias to rebut the claim of Delia and Dolores about the report of the RAPE to

both of them. Neither did the defense deny that Gregorio after knowing his son's perfidy told complainant and her mother Dolores to have the child removed or aborted thru the help of an 'arbulario'. The proposal of abortion refused, Dolores demanded that Adulfo marry her daughter which the Terrobias family scorned. Delia was thereafter taken away by her own parents. The case went to Court. In retaliation, Dolores and her husband were summarily removed as tenant-encargado:" 2 The assault took place in the house of appellant's parents, Gregorio and Florencia Terrobias, at Bato, Catanduanes, where complainant was a house helper, her parents being the "encargado" 3 of the properties of the aforesaid spouses, whom Delia called "Lolo Goyong" and "Lola Insay", 4 and treated as her foster parents. Appellant, then single and thirty-three years of age, was living with his parents in the same house. Delia's room was between appellant's room and that of the latter's mother. 5 It is in complainant's room that the rape took place. From her plain and straightforward testimony, We have no doubt as to complainant's candor and sincerity. A 17-year-old girl at the time, she could not have merely concocted the story she narrated in court, directed against a thirty-three-year-old son of her masters. Only truth and a feeling of deep grievance could have impelled her to charge appellant with the grave offense committed against her, even at a price she has to pay in terms of her honor being exposed or even tarnished, not to mention the discharge of her parents as "encargados" of appellant's parents. prcd The circumstances as duly established following the sexual assault could not but strengthen belief in complainant's honesty and truthfulness. As soon as she had the chance to report the offense done her to someone of her fullest confidence and who could look at her plight with sympathy and understanding, she did so. This was on February 27, 1977 on her mother's first visit to her after the incident when she told her mother about the harrowing experience. 6 The mother, in turn, told appellant's mother what the latter's son did to her daughter. Right after hearing the daughter's whole story, appellant's mother, instead of expressing disbelief in what was told her, reproached her son for the act, calling him "salvaje", and suggested that Delia remain until the matter is reported to her husband who was then in Naga City. 7 When the father of appellant heard of the incident as narrated to him by complainant's mother, he told the latter to return on April 2 to afford him time to investigate the matter. On her return as agreed, Delia's mother told appellant's father that Delia was on the family way. Thus informed, appellant's father suggested abortion by an "arbulario", 8 to which Delia's mother disagreed, and instead demanded that appellant marry Delia who was with her. Appellant's father answered in Bicol: "Carabaos should be with carabaos and cows with cows." 9 On the same date, April 2, 1977, Mrs. Bonion took her daughter Delia to Virac to seek advice of her aunt who suggested that a medical certificate be secured as to the condition of Delia. Dr. Masagca who examined Delia found her one and one-half month pregnant, her last menstruation being on January 29, 1977. Because of the complaint filed by Delia and her parents who forthwith reported what happened to their daughter to the PC at Virac, the Terrobias spouses discharged Delia's parents as their "encargado". 10 Delia later gave birth to a baby girl on October 28, 1977. 11

With the complainant pointing to appellant as the person who ravished her in her room in appellant's residence on the night of February 17, 1977, the latter's alibi of not being in his house on said time and day because he attended the birthday party of Teodulo dela Providencia in San Andres, Catanduanes, some 25 kilometers from Bato, where he had to spend the night in Teodulo's house because he had drunk too much is unavailing. No motive was given why the complainant should falsely charge appellant with so grave an offense, considering that she had treated appellant's parents with so much affection that she called them "Lolo" and "Lola". Complainant might have incurred in some inconsistencies, in her testimony during the trial in relation to statements she gave before the trial as appellant tried graphically to demonstrate in his brief (p. 11). They refer, however, to minor details that do not detract from the truth of the central fact of rape having been committed by appellant on the complainant. They arise from or are caused by, the natural weakness, or even fickleness, of memory and rather strengthen credibility, as they erase suspicion of coaching or of a rehearsed testimony. On the important and decisive details, however, she was consistent in all the statements she made, such as appellant's being already on top of her when she woke up, how she resisted his action despite appellant's threat, which was followed by the latter pressing a wad of cotton soaked with medicine on her mouth and nose which rendered her unconscious, her feeling pain in, and the bleeding of, her private parts, her "bra" being torn and her skirt, rolled up. On the other hand, complainant's mother's testimony that on her first visit to her daughter at her masters' residence after the incident, Delia reported to her the outrage committed on her, and appellant's mother called her son a savage on being informed of what he did, while the father advised the removal of the fetus by an "arbulario," were not rebutted by appellant's parents. They did not take the witness stand despite that the aforesaid testimony against them lent full credence to complainant's story. The acts of appellant's parents as aforestated would show that they had no reason to disbelieve said story, specially considering that the father had all the time he asked for to investigate the matter. Indeed, a young simple barrio girl like Deha could not have fabricated a charge of rape against a man twice her age, the son of her masters at that, for whom she had none but affectionate respect. Appellant claims of having been denied his constitutional right by the mere fact that the trial of the case took only four days is entirely without basis. He had presented all his evidence which was duly submitted by his counsel who never asked for more time to do so. His right to cross-examine the witnesses against him was exercised to the fullest. Neither is his claim of lack of authority of the trial judge to decide the instant case with any legal support to stand on. While by the Resolution of the Supreme Court 12 the authority of the trial judge to try criminal cases in Branch II of the Court of First Instance of Catanduanes was up to March 2, 1978, it does not preclude submission of memoranda even after such date, as long as the trial was completed, and the order to file memorandum given, before the expiration of his authority to try the case. Much less was the trial judge divested of the authority to decide the case which he can do anytime after the trial of the case, under Section 51 of the Judiciary Act, the filing of memoranda not being a part of the trial, nor is the memorandum itself an essential, much less an indispensable, pleading before a case may be submitted for decision. It is intended primarily to aid the court in the rendition of the decision in

accordance with law and the evidence, and should not, therefore, be the cause for the loss of the authority of the judge who heard the case to decide it. WHEREFORE, as recommended by the Solicitor General, the judgment appealed from being in accordance with law and the evidence, is hereby affirmed in toto, with costs. SO ORDERED. Teehankee (Chairman), Makasiar, Fernandez, Guerrero and Melencio-Herrera, JJ., concur. Footnotes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. p. 11, Rollo. p. 10, Rollo. p. 99, t.s.n., February 23, 1978. pp. 3-4, January 21, 1978. p. 54, t.s.n., February 22, 1978; Exhibits D, C. C-1, 1-b). pp. 86-87, t.s.n., February 23, 1978. pp. 88-91, t.s.n., February 23, 1978. pp. 92-94, t.s.n., February 23, 1978. pp. 94-98, t.s.n., February 23, 1978. p. 99, t.s.n., February 23, 1978. pp. 35-36, t.s.n., February 22, 1978. Resolution No. 765-CCC, November 8, 1977.

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G.R. No. L-45892 February 26, 1981 SEVERO E. CUENZA vs. EMPLOYEES' COMPENSATION COMMISSION, ET AL. FIRST DIVISION [G.R. No. L-45892. February 26, 1981.]

SEVERO E. CUENZA, petitioner, vs. EMPLOYEES' COMPENSATION COMMISSION and GOVERNMENT SERVICE INSURANCE SYSTEM, respondents. Lamberto C. Nanguil for petitioner. Manuel M. Lazaro for respondent G.S.I.S. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Jose F. Racela, Jr. and Solicitor Josefina Z. David for respondent commission. DECISION FERNANDEZ, J p: This is a petition to review the decision of the Employees' Compensation Commission in ECC Case No. 0121 entitled "Severo E. Cuenza, appellant vs. Government Service Insurance System (Civil Intelligence & Security Agency), respondent" which affirmed the decision of the Government Service Insurance System denying the claim for compensation filed by Severo E. Cuenza. 1 The petitioner, Severo E. Cuenza, was employed as a driver on April 21, 1950 in the Government Service Insurance System (Civil Intelligence and Security Agency). On February 5, 1976, the petitioner filed a claim for disability benefit with the Government Service Insurance System on the ground of an ailment diagnosed as "Neuroblastoma, Mediastinum". On February 25, 1976 the Government Service Insurance System denied the claim on the ground that the ailment is not an occupational disease. The petitioner appealed to the Employees' Compensation Commission which affirmed the decision of the Government Service Insurance System denying the claim. cdphil Hence the petitioner filed this petition for review. The facts, as found by the Employees' Compensation Commission, are: "It appears from the record that Severo E. Cuenza, appellant herein, is employed by the Civil Intelligence and Security Authority as a driver since April 21, 1950 until the present. His ailment started in 1972 with clinical manifestations of shortness of breath, associated with fatigability and vague pain in the front and back portion of the left hemithorax. These symptoms gradually became more severe and now accompanied by occasional cough and bloody expectoration, which were not relieved by medications. A chest x-ray examination done at the UST Hospital showed a mass located on the appellant's left hemithorax. He underwent operation for the surgical removal of the mass, which was later on diagnosed as a neurogenic tumor known as Neuroblastoma. "On February 25, 1976, his claim for income benefits for temporary total disability filed under Presidential Decree No. 626 was denied by the respondent System on the ground that the ailment upon which the claim was based is not an occupational disease and that the nature of appellant's duties as a driver as well as the working conditions of his employment could not have directly caused such ailment. In his motion for reconsideration filed on March 19, 1976, appellant stressed that since the cause of

neuroblastoma is still unknown, the existing doubt as to whether or not his employment could have placed a significant role in the development of his ailment must be resolved in his favor since, he said, Presidential Decree No. 626, as amended, is characterized by spirit of liberality in its interpretation and implementation. Nonetheless, the respondent System reiterated its previous decision and stated further that appellant's ailment is not directly influenced at all by a particular kind of employment for had he been employed in some other forms of occupations, he would nevertheless have contracted the same ailment. For this denial, appellant filed his present appeal with this Commission." 2 The Employees' Compensation Commission denied the claim because ". . . other than his own unsubstantiated statement that he was healthy when he joined the government service, there is nothing at all in the record which could justify a finding that indeed such employment conditions to which appellant herein had been exposed have increased the risk of contracting his malignant ailment." 3 The Employees' Compensation Commission found that the ailment of the appellant-petitioner herein falls outside the "compensable ambit" of Decree No. 626 because the appellant's ailment manifested itself sometime in 1972 and "only injury or sickness that occurred on or after January 1, 1975 and the resulting disability or death are cognizable under the present Employees' Compensation Program under Presidential Decree No. 626, as amended . . ." 4 It is clear that the ailment of the petitioner was contracted before January 1, 1975. Under the recent decisions of this Court, the claim of the petitioner should be decided under the Workmen's Compensation Act. In Balatero vs. Employees' Compensation Commission 5 this Court held: "It is true that the claim for compensation was filed after the effectivity of the New Labor Code. However, the facts of the case call for the application of the Workmen's Compensation law. It is a settled rule that the governing law in the prosecution of a cause of action which has accrued prior to the effectivity of a new law shall be the law enforced at the time of the accrual of said cause of action. In the case at bar, the cause of action existed as early as 1972. Since the Workmen's Compensation Law was then in full force and effect, then it should govern the present case, based on the principle that rights accrued and vested while a statute was in force ordinarily survive its repeal. (Corrales vs. ECC, et al., L44063, February 27, 1979; Villones vs. ECC, et al., L-46200, July 30, 1979; De los Angeles vs. ECC, et al., L47099, November 16, 1979). "It is undisputed that petitioner's ailment supervened in the course of his employment as a school teacher, and respondents admitted that at most, said ailment was just aggravated by the nature of his work. Under the old Workmen's Compensation Law, when there is a showing that the ailment was contracted and/or aggravated in the course of one's employment, the presumption of compensability arises and the burden of proof is shifted to the employer to show by substantial evidence that although the illness supervened in the course of employment, it does not necessarily follow that it also arose from such employment or was at least aggravated by it. (De los Angeles vs. ECC, supra; Animos vs. WCC, et al., L-53021, June 30, 1978; Enriquez vs. WCC, et al., L-48252, October 30, 1979) It can rightly be said that petitioner's hypertension and loss of hearing supervened in the course of his employment. Said

ailments were therefore, presumed to be service-connected. Consequently, they are compensable, in accordance with Section 2 of the Workmen's Compensation Act, as amended." As found by the Employees' Compensation Commission, the ailment of the petitioner supervened during his employment with the Government Service Insurance System (Civil Intelligence and Security Authority), hence there is a disputable presumption that the claim is compensable. When there is a showing that the ailment was contracted in the course of his employment, the presumption of compensability arises and the burden of proof is shifted to the employer to prove by substantial evidence that although the illness supervened in the course of employment, it does not necessarily follow that it also arose from such employment or was at least aggravated by it. 6 The respondent Government Service Insurance System did not rebut the presumption that the petitioner's claim is compensable. Under the facts of record, the petitioner is entitled to an amount of P6,000.00 as disability benefit. He should be reimbursed the medical expenses incurred. WHEREFORE, the decision of the Employees' Compensation Commission sought to be reviewed is hereby set aside and the Government Service Insurance System is ordered to pay the petitioner the amount of SIX THOUSAND PESOS (P6,000.00.) as disability benefit and the amount of SIX HUNDRED PESOS (P600.00) as attorney's fees; and to reimburse said petitioner the medical expenses he incurred supported proper receipts; and to pay the successor of the Workmen's Commission the amount of SIXTY ONE PESO (P61.00) as administrative fee. prcd SO ORDERED. Teehankee (Chairman), Makasiar, Guerrero and Melencio-Herrera, JJ., concur. Footnotes 1. Rollo, pp. 31-34.

4. 5.

6. 7. 8.

Republic of the Philippines SUPREME COURT Manila 3. EN BANC G.R. No. 137889 March 26, 2001 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO DELOS SANTOS, accused-appellant. MELO, J.: A father who ravages his own daughter reduces himself to the level of a beast and forfeits his membership in the world of civilized men. Nenita de los Santos was only 14 years old when her father, accused-appellant Romeo de los Santos, sexually abused her. She narrated that on July 31, 1997 at around 9 o'clock in the evening while she was about to go to sleep, her father suddenly approached her, held her waist and poked a knife at her side, threatening to kill her if she tells anyone what he

2.

9.

10.

was about to do to her. Then her father boxed her on the abdomen, inflicting on her so much pain and causing her to fall down on the floor. While in such a position, her father removed her short pants and panties even while she resisted; but her father overpowered her and he succeeded in having sexual intercourse with her. Accused-appellant stopped violating his daughter only after he has satisfied his lust. Nenita cried the whole night through and the days after because of the intense pain m her private part, but more so because of the betrayal of the man who gave her life and whom she trusted would protect and shield her from life's sorrows and pains. To add ignominy to his bestial acts, accusedappellant not only violated his daughter once but several times. Out of shame and fear for her life, Nenita suffered in silence. She never told anyone, not even her mother, about the horrible ordeal she went through in the hands of her own father. But after several days, she mustered enough courage and went to the police to report the incident. She also submitted to a physical examination to substantiate her allegations. The necessary information for multiple rape was filed against accusedappellant. Upon arraignment, accused-appellant pleaded not guilty to the crimes charged.

The prosecution accordingly presented as its first witness Dr. Felma Caybot, the physician who examined the victim. Dr. Caybot testified; among other things that: (1) she was able to insert her two fingers in Nenita's private part with minimal resistance and there was not even a change in the facial expression of the patient, and (2) in the examination of the hymen of the patient, she found healed lacerations at 6 o'clock and 3 o'clock positions (tsn, p. 3, July 7, 1998). 11. The prosecution then called Nenita as its next witness. Nenita had barely started her narration of the incidents when accused-appellant manifested in court that he was changing his plea from "not guilty" to "guilty" provided the Information is amended to a single-charge of rape. The trial court put accused appellant on the witness stand, and after seemingly satisfying itself that accused-appellant understood the full consequences of his plea of guilty, the court a quo allowed the amendment of the Information to one charge of rape and changed accused-appellant's plea of "not guilty" to "guilty". Nenita continued with her testimony; after which, the prosecution rested its case. When it was accused-appellant's turn to present his evidence, he manifested to the court that he had no evidence to present. On February 10, 1999, the court a quo convicted accused-appellant of the crime of rape and imposed on him the supreme penalty of death, thusly: WHEREFORE, the Court finds accused ROMEO DELOS SANTOS, GUILTY beyond reasonable doubt as principal of the crime of RAPE as defined and penalized under Article 335 of the Revised Penal Code as amended by R.A. No. 7659, Sec. 11 thereof and hereby imposes upon the accused Romeo delos Santos the penalty of DEATH; to pay the victim Nenita delos Santos civil indemnity in the amount of FIFTY THOUSAND (P50,000.00) PESOS and the costs. The death penalty having been imposed by this Court, let the records of the case together with the transcript of stenographic notes be transmitted to the Supreme Court by way of an automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659. SO ORDERED.

12.

13. 14.

15.

16.

(pp. 72-73, Records.) 17. In this automatic review, accused-appellant faults the trial court "in not applying the safeguards to a plea of guilty to a capital offense set forth under section 3, Rule 116, 1985 Revised Rules on Criminal Procedure" (Brief for the Accused-Appellant, Rollo, p. 29). We find the contention partially meritorious, but not sufficient to warrant the reversal of the finding of guilt by the court a quo. Section 3, Rule 116 of the 1985 Rules on Criminal Procedure (the Rule then prevailing when the instant crime was committed and tried, and which remains unamended in the present 2000 Rules) states the procedure to be followed where the accused, with the assistance of counsel, voluntarily pleads to a capital offense: Sec. 3. When an accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability The accused may also present evidence in his behalf: (1985 Rules on Criminal Procedure) Thus, where the accused enters a plea of guilty to a capital offense, the trial court is called upon to observe the following procedure: the court shall conduct a searching inquiry into the voluntariness and the accused's full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of his culpability. The accused may also present evidence in his behalf (People vs. Dayot, 187 SCRA 637 [1990]). In the case at bar, the trial court asked accused-appellant the following questions to determine the voluntariness and full comprehension of his change of plea from "not guilty" to "guilty", thus: COURT: xxx xxx xxx Put the accused in the witness stand for the searching questions and inquiries. Q You just change your plea of not guilty to plead guilty to the crime of rape, is that correct? A Yes, Ma'am. Q Do you know that by pleading guilty to the crime charged you can be meted out of a penalty of death? A Yes, Ma'am. Q By the way, is your decision to plead guilty voluntary on your part? A Yes your Honor, because I pity her. Q Nobody is threatening you of bodily harm so that you will plead guilty to the crime charged? A None your Honor. It is my own will. Q Inspite the fact that you are already aware that the penalty provided for by law is death, will you still insist on your plea of guilty? A Yes, your Honor. Q Aside from that reason that your wife deserted you and your small children are left behind are you still bent on proceeding your plea of guilty despite that you can be meted with the penalty of death? A Yes your honor, I will go on with my plea of guilty.

18. 19.

20.

21.

22.

23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

37.

(pp. 4-5, tsn, July 9, 1998.) 38. It is observed that the procedure followed by the trial court in respect of the affirmative plea of accused-appellant leaves much to be desired. As required under Section 3, Rule 116 of the 1985 Rules of Criminal Procedure (supra), the trial court should have taken the necessary measures to see to it that accused-appellant really and freely comprehended the meaning, full significance and consequences of his plea. In the case at bar, accusedappellant pleaded guilty to raping his daughter because he pitied her (tsn, July 9, 1998, p. 5). This is not a sufficient reason for the trial court to allow a change of plea from "not guilty" to one of "guilty". Aside from ensuring the voluntariness of accused-appellant's plea and his full comprehension of the consequences of the same, the trial court should also have impressed on him that by changing his plea from "not guilty" to "guilty", he was, in effect, admitting authorship of the crime of rape against his own daughter. This the trial court failed to do. Nevertheless, even without considering said plea of guilty on the part of accusedappellant as above discussed, there is adequate evidence to warrant and justify the conviction of accused-appellant, namely: the medical certificate attesting to the fact that the victim, Nenita, has a lacerated hymen, and, the testimony of Nenita herself that her father, herein accused-appellant, forced her to have sexual intercourse with him, not just once but several times. This testimony was unrebutted as accused-appellant did not present any evidence to prove his innocence even when asked to do so by the court a quo. His plea of guilty effectively corroborated and substantiated Nenita's allegations that her father indeed raped her. Of no small significance too is the fact that accused-appellant changed his plea of "not guilty" to one of "guilty" after arraignment, and after the prosecution has presented its witnesses the physician who examined Nenita, and, Nenita herself. Republic Act No. 7659 or the Death Penalty Law, punishes the rape of a minor with death. The allegation of minority must, however, be proved with equal certainty and clearness as the crime itself. Thus, in People vs. Javier (311 SCRA 122 [1999]), we required the presentation of the birth certificate of the victim to prove her minority, failing which the imposition of the death penalty cannot be upheld. It is a common observance that in this age of modernity, a physically developed 14-year old girl may be mistaken for an 18-year old young woman, in the same manner that a frail and youthfullooking 18-year old lady may pass as a 14-year old minor. Thus, it is in this context that proof of the actual age of a rape victim becomes vital and essential so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in Republic Act No. 7659. In the case at hand, the prosecution did not present any independent proof of Nenita's minority. It merely alleged in the Information that Nenita was 14 years old when her father raped her. In the light of our discussion in Javier (supra), this failure effectively removes the instant case from the operation of the Death Penalty Law. It is a time-honored principle that in a criminal prosecution, especially where the life of another human being is hanging on the balance, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which the accused is charged must be established in order for the corresponding penalty thereto to be upheld. The prosecution, in the instant case, was remiss in this regard. The applicable penalty is, therefore, reclusion perpetua and this penalty being an

39.

40.

41.

42.

43. 44.

indivisible penalty, the benefits under the Indeterminate Sentence Law are not applicable (Section 2, Act No. 4103, as amended). Pursuant to prevailing jurisprudence the indemnity for rape is now P50,000.00 (People vs. Itdang, G.R. No. 136393, October 18, 2000, citing People vs. Betonio, 279 SCRA 532 [1997]). Rape victims shall likewise be entitled to moral damages in the amount of P50,000.00 (People vs. Clado, G.R. No. 135699-70, 139103, October 19, 2000 citing People vs. Perez, 307 SCRA 276 [1999]). WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that the penalty to be imposed shall be RECLUSION PERPETUA, instead of death. Accusedappellant is further ordered to indemnify the victim in the amount of Fifty Thousand Pesos (P50,000.00) and to pay another Fifty Thousand Pesos (P50,000.00) as moral damages. No special pronouncement is made as to costs. SO ORDERED. Davide, Jr., C .J ., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ ., concur. Quisumbing, J., is on leave. The Lawphil Project - Arellano Law Foundation

45. 46.
FIRST DIVISION [G.R. No. 126959. March 28, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SERVANDO SATURNO, ARMAN SOLIMAN, ABRAHAM RODRIGUEZ, BENIGNO ANDRES and DELFIN GREGORIO, accused. SERVANDO SATURNO, ABRAHAM RODRIGUEZ and BENIGNO ANDRES, accused-appellants. The Solicitor General for plaintiff-appellee. Domingo V. Pascua for accused-appellant Servando Saturno. Esguerra, Esguerra & Associates for accused appellants Abraham Rodriguez and Benigno Andres. SYNOPSIS The Regional Trial Court, Branch 39, San Jose City, Nueva Ecija convicted accused-appellant Servando Saturno, Abraham Rodriguez and Benigno Andres of the crime of multiple murder. In this appeal, the accused-appellants contended that prosecution witness Lucila Valdez was not able to positively identify them. HAaDcS The Court ruled that witness Lucila's testimony regarding the identity of the accused was too general to deserve consideration. On the other hand, accused-appellants were able to present convincing evidence that they could not possibly be at the scene of the crime at the time of its commission. The prosecution

was able to establish the fact of the killing; however, it failed to prove that appellants perpetrated the crime. Where the prosecution has failed to discharge the onus probandi for a pronouncement of guilt beyond reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; TWO-FOLD TASK OF THE PROSECUTION. The task of the prosecution is two-fold: first, to prove that a crime has been committed, and second, that the accused is the person responsible therefor. Thus, the prosecution must be able to overcome the constitutional presumption of innocence with evidence beyond reasonable doubt to justify the conviction of the accused. ASIDTa 2. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT; ELUCIDATED. It is a basic rule that the guilt of an accused must be proved beyond reasonable doubt. Before he is convicted, there must be moral certainty of guilt a certainty that convinces and satisfies the reason and conscience of those who are to act upon it that he is guilty of the crime charged. Under our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. 3. ID.; ID.; ADMISSIBILITY; OBJECTS NOT IDENTIFIED DURING TRIAL NOR FORMALLY OFFERED ARE INADMISSIBLE AS EVIDENCE. The fatigue cap and the light brown jacket (and the bloodstains found on it) were the basis for implicating accused Saturno. These were not identified during the trial nor formally offered in evidence. As a matter of fact, the jacket was never seen after it was submitted for examination. The chemist who examined the bloodstains in the jacket was not presented to identify the report and the jacket. 4. ID.; ID.; ID.; NO SUFFICIENT PROOF THAT SLUGS WERE FIRED FROM ACCUSED'S GUN. There was also no convincing proof that the slugs, which were presented during the trial were the same slugs recovered from the scene of the crime. Barangay Chairman Jaime Collado admitted that after he removed the slugs from the cadavers, he did not immediately give them to the police officers. The slugs, which were submitted for ballistic examination, could have been those used when Sgt. Apostol firetested the gun on July 1, 1989. There was no sufficient proof that they were fired from accused Saturno's gun. The ballistician, after testifying that there is no margin of error in his report, could not estimate when the gun was last fired. The other homemade gun also alleged to have been used in the killing was tested in court and it was shown that it could not be operated easily. Using the court's own words, the gun was "pasumpong-sumpong". IEHaSc 5. ID.; ID.; CREDIBILITY OF WITNESSES; IDENTIFICATION; TOO GENERAL TO DESERVE CONSIDERATION. Witness Lucila Valdez hesitated at first to point at accused Saturno's tricycle because it looked different from the one used by the assailants which was color red and with a tail. She did not also recognize the inscription "SATURNO FAMILY" at the back of the tricycle. Witness Lucila Valdez was covering her face during the incident. She claimed that the man who was wearing a light brown jacket had a well-chiseled or occidental nose and his face was oblong; that the gun used in killing

her husband appeared to have a circular object in the middle; that the man who hog-tied the other victims was of medium height, a well-built man, dark skinned and the other who helped him was also well-built and fair-complexioned and a little bit handsome. She stated that the person who dumped Florencio Bulatao in front of the other victims "was wearing a belt which was borrowed from my husband", and she assumed that it was Benigno Andres because she remembered the latter borrowing her husband's belt. Witness Lucila's testimony regarding the identity of the accused, however, is too general to deserve consideration. 6. ID.; ID.; ID.; PROSECUTION WITNESS' CONFLICTING TESTIMONIES AS TO HER DISPOSITION AT THE TIME OF THE INCIDENT CREATE A REASONABLE DOUBT ON HER CAPABILITY TO POSITIVELY IDENTIFY THE KILLERS. Bgy. Chairman Collado and Mayor George Castaeda testified that Lucila Valdez told them that she was not able to recognize the assailants. It is inconceivable for Lucila not to tell the barangay officials that her long-time compadre Benigno Andres assisted in the killing. On rebuttal, she said that she had not seen accused Saturno and Andres prior to June 23, 1989. Witness Lucila testified that she was afraid and trembling after she saw that her husband was shot, yet she also testified that she was composed and normal all throughout the incident. Her conflicting testimony as to her disposition at that time creates a reasonable doubt on her capability to positively identify the killers. TSacAE 7. ID.; ID.; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT; NOT ESTABLISHED IN CASE AT BAR. In the case at bar, the prosecution was able to establish the fact of the killing; however, it failed to prove that appellants perpetrated the crime. Where the prosecution has failed to discharge the onus probandi for a pronouncement of guilt beyond reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal. 8. ID.; ID.; ADMISSIBILITY; AFFIDAVITS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED ARE INADMISSIBLE AS EVIDENCE. The court a quo gave weight to the affidavits executed by the accused wherein they admitted their participation in the killing. However, they were able to prove that their affidavits were solely prepared by the police investigators, that they were not apprised of their constitutional rights, and that they were forced to sign the affidavits lest they be maltreated again. DHSEcI 9. ID.; ID.; CREDIBILITY OF WITNESSES; ALIBI; GAINS CONSIDERABLE STRENGTH IN VIEW OF UNRELIABLE IDENTIFICATION OF THE PERPETRATORS OF THE CRIME. True, the settled rule is that alibi is a weak defense. It has been held that courts will not at once look with disfavor on the defense of alibi. Alibi may be considered in light of all the evidence for it may be sufficient to acquit the accused. Appellants' alibi and denial gain considerable strength in view of the unreliable identification of the perpetrators of the crime. 10. ID.; ID.; EQUIPOISE RULES; ELUCIDATED. Where the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. The equipoise rule provides that where the evidence in a criminal

case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. CADSHI DECISION PARDO, J p: The case is an appeal interposed by accused Servando Saturno, Abraham Rodriguez and Benigno Andres from the decision 1 of the Regional Trial Court, Branch 39, San Jose City, Nueva Ecija, finding them guilty beyond reasonable doubt of multiple murder and ordering them to indemnify the heirs of the victims, and to pay costs. IDSaEA On July 4, 1989 the provincial prosecutor of Nueva Ecija filed with the Regional Trial Court an information charging accused as follows: "That on or about the 23rd day of June, 1989, in Barangay Agupalo Este, Municipality of Lupao, Province of Nueva Ecija, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating and aiding one another, with intent to kill, and with treachery, in that they perpetrated their crime upon their victims without the latter having any means to defend themselves, evident premeditation and abuse of superior strength, and for and in consideration of the sum of P2,000.00 given by accused Delfin Gregorio, did then and there willfully, unlawfully and feloniously attack and assault and shoot, with the use of firearm namely: pistolized caliber .22 without serial number and a caliber 22 Magnum Smith and Wesson revolver, with Serial No. 88463, the persons of Rodelito Valdez, Florencio Bulatao, Protacio Pasalusdos and Jose Lopez, Jr., hitting them on the different parts of their bodies, thereby inflicting upon them fatal wounds which directly caused their instantaneous deaths." The trial court arraigned the accused separately. Accused Servando Saturno was arraigned on July 7, 1989. He pleaded not guilty. Accused Delfin Gregorio, Abraham Rodriguez and Benigno Andres were arraigned on August 11, 1989. They pleaded not guilty. Accused Arman Soliman remains at large. Trial ensued. The facts are as follows: On June 23, 1989, at around 7:00 in the morning, Rodelito Valdez, Benigno Andres, Jose Lopez, Jr., Protacio Pasalusdos, Florencio Bulatao and Matias Andres were having a drinking spree at Rodelito Valdez's house at Agupalo Este, Lupao, Nueva Ecija. Matias Andres only had a few drinks and proceeded to the farm. Benigno Andres left around lunchtime. Lucila Valdez, Rodelito's wife, heard Benigno say that he was going to Muoz, so she asked him to buy her a kilo of pinapaitan (cow meat) and oil. At around 1:00 in the afternoon, all the others were already dead drunk and went to sleep. 2 At around 5:30 in the afternoon of the same day, Lucila heard a tricycle park near their house. There were four passengers, and the last one to alight was Benigno Andres.

Thinking that he was delivering her pinapaitan, she went down to meet him. However, one of the men (wearing a light brown jacket and a fatigue cap) met her downstairs and asked for her husband Rodelito. She told him that Rodelito was dead drunk and could not be awakened. The man did not heed her and went straight to their house. Lucila followed him inside. He woke up Rodelito, who was sleeping in the bedroom, and asked for his gun. When Rodelito answered that he did not have a gun, the man shot him. Lucila, who was carrying her one-year old child, started to cry for help but the man ordered her to be quiet and to stay in the corner of the room. 3 The man's companions brought Jose Lopez, Jr. and Protacio Pasalusdos to the bedroom and hog-tied them. Florencio Bulatao arrived later and was also hog-tied. Lucila, who was covering her face and trembling in fear, sensed that those who were hog-tied were separately brought downstairs. Every time a body was brought downstairs, she would hear gunshots. When she tried to open her eyes again, she saw that the man in light brown jacket was still there and was pointing his gun at her. She closed her eyes and heard two gunshots. When she looked again, the man was no longer there. She realized that the two shots were aimed at her husband. 4 A few hours after the incident, the police authorities interrogated Lucila and others who may have knowledge about the crime. Lucila repeatedly stated that she could not identify the assailants. 5 Five (5) empty shells of cal. 22 and two (2) deformed slugs were recovered from the cadavers of Rodelito Valdez and Florencio Bulatao. 6 After investigation, constables from the 182nd PC Company apprehended accused-appellants. Sgts. Romeo Pillonar and Anastacio Apostol and other policemen invited accused Servando Saturno, a fireman, on June 28, 1989. He went with the police officers after having been told that their Commanding Officer Capt. Undan wanted to talk to him. He brought his tricycle so he would have a ride home later that evening. He was not able to bring it home because it would be identified by the widow of Rodelito Valdez. The police officers asked him to return to the camp the following day. 7 On June 29, 1989, Lucila arrived at the camp in the morning. Sgt. Pillonar escorted her. He pointed at Saturno and told Lucila, "Mrs., this is the suspect". Lucila answered that she does not know Saturno, and that Saturno's tricycle was not the same as the one used by her husband's assailants. Sgt. Pillonar brought her inside the office. Later, Saturno was asked to go inside the office as well. In the afternoon of that same day, pictures were taken which showed Lucila pointing at Saturno, a gun, a light brown jacket and a fatigue cap which were later identified as belonging to Saturno. 8 Lucila's testimony also revealed, however, that she initially pointed at a fatigue cap and a jacket inside the camp office, but the soldier on duty laughed at because those belonged to him. 9 The other accused were arrested later. On July 1, 1989, they executed affidavits admitting their participation in the crime and implicating Delfin Gregorio as the one who gave P2,000.00 for them to kill Rodelito Valdez. 10 All the accused denied the charges against them.

Servando Saturno, a native of Sapang Cawayan, Muoz, Nueva Ecija, claimed that he was at home from June 22 to 25, 1989, because he was sick. His immediate supervisors, Capt. Peter Torres and Jose Gania also testified that they asked Saturno to go home on June 22 because he looked sick. Saturno reported back to work on June 25. He claimed that he had not been to Agupalo Este, Lupao in his entire life. 11 Saturno testified that when he was apprehended, he was asked about his participation in the killing. When he insisted that he was innocent, he was repeatedly maltreated and tortured at the back of the PC barracks. He was made to lie upside down, nude, and water was poured on his mouth and nose, which directly went to his forehead. He was coerced into admitting that he killed the victims as he could no longer endure the pain. 12 A few minutes after he was maltreated, accused Saturno was asked to write a letter to his wife asking for his gun, one of his brown jackets and one of his fatigue caps. His first letter was badly written because his hands were shaking. He wrote a second letter, but it was lost, so Sgts. Pillonar and Apostol asked him to write a third letter. The prosecution presented the third letter as its evidence. Saturno's wife testified that she never saw this letter. It was Saturno's mother-in-law who was at home when the police officers came to their house and got Saturno's belongings. 13 When accused Saturno realized that he was being implicated in the crime, he requested the police officers who maltreated him to subject his gun to ballistic examination and to give him a paraffin test. They did not heed his request and they retorted that he acted as if he knew better. On July 1, 1989, Sgt. Apostol fire-tested Saturno's gun. On July 3, 1989, the day before the information was filed, they brought the gun to Manila for ballistic examination, after asking accused Saturno for P100.00, to buy new bullets. Accused Saturno was given a paraffin test, and the result was negative. 14 Lt. Peter Torres, accused Saturno's immediate supervisor at the Muoz Fire Station, testified that the gun used in the killing was with him prior to June 22, 1989. He never gave it back to accused Saturno because he was supposed to have it licensed. However, on June 28, 1989, Sgt. Pillonar took it from him upon Capt. Undan's orders. 15 Delfin Gregorio, who was acquitted for insufficiency of evidence, testified that he accompanied Lucila Valdez to the PC headquarters on June 29, 1989. After Lucila talked to the police officers, she told him that Sgts. Pillonar and Apostol had asked her to point at accused Saturno and at his tricycle. 16 When she was first asked upon her arrival whether she recognized accused Saturno, she did not say anything. 17 At that same day, Delfin Gregorio was left behind at the stockade. Sgts. Pillonar and Apostol maltreated him. He was undressed and made to lie down with his head downward and was repeatedly asked whether he knew accused Servando Saturno. Every time he answered that he did not know accused Saturno, they would pour water on his nose. They also applied a lighted cigarette butt on his private part, and when he could no longer endure the pain, he said that he knew accused Saturno. Later, they brought him to the office and called in a photographer. He was ordered to point at accused Saturno and his jacket. 18 Gregorio testified, however, that it was the first time that he saw accused Saturno. CHEIcS

On June 30, 1989, Gregorio was again brought to the back of the barracks and asked to undress himself and was maltreated again. They asked him if he knew Abraham Rodriguez from Muoz. He answered that Rodriguez was an acquaintance who visited him on June 18, 1989, because he (Rodriguez) bought a dog. They also asked him who were Rodelito Valdez's drinking companions in the morning of June 23, 1989. When he was mentioning their names, the police officers stopped him and said that "there are too many already and that would already be in excess." Afterwards, Sgt. Pillonar stated that the four of them (Delfin Gregorio, Servando Saturno, Abraham Rodriguez and Benigno Andres) would be included in the case. 19 Later that day, the same PC soldiers maltreated accused Gregorio and Abraham Rodriguez. While he was blindfolded, he was instructed that his story should be that he saw accused Saturno, Andres and Rodriguez come out of Rodelito Valdez's house immediately after the killing on June 23, 1989. 20 Accused Abraham Rodriguez was apprehended on June 30, 1989. He denied the charges against him. He testified that he was at home in Muoz, Nueva Ecija, at the time the incident took place. Aside from Delfin Gregorio, he did not know the victims and his other co-accused. He only came to know accused Saturno and Andres when they were in jail. 21 He was shown to Lucila Valdez, and the latter told the police officers to release him because he had nothing to do with the killing. 22 Instead of releasing him, Sgts. Pillonar, Apostol and other PC men brought him to the back portion of the barracks and repeatedly tortured him for about half an hour. They interrogated him whether he had any participation in the killing. He insisted he was innocent. He was again severely maltreated. He was coerced into admitting that he was involved in the killing. 23 Afterwards, the police officers brought him inside the office and his affidavit was purportedly taken. Rodriguez testified that aside from a few immaterial questions, he was not asked any other questions but the police officers continued typing. A few days later, he and his co-accused were brought to a certain Atty. Evangelista and were sternly ordered to answer "yes" to every question Atty. Evangelista may ask. He and the other accused were not allowed to read the contents of their affidavits. 24 Accused Benigno Andres denied any participation in the killing. He testified that he had not known accused Saturno and Rodriguez prior to June 23, 1989, and that he only met them at the PC Company compound on July 1, 1989. He admitted that Rodelito Valdez asked him to drink gin with him in the morning of June 23, 1989, but he only stayed for a few minutes because he had to go to Muoz. He arrived at Muoz early in the afternoon. His tricycle broke down and he stayed there overnight in the house of Florencio Bulatao's (one of the victims) distant relative. The following day, he learned about the killing and he immediately went to Agupalo Este together with Florencio Bulatao's sister and her husband. 25 Florencio Bulatao's sister did not testify in court. Accused Andres testified that when he was apprehended on July 1, 1989, he was brought to the back of the barracks of the 182nd PC Company compound, was maltreated, and was coerced to admit his participation in the killing. He was also forced to sign a document purportedly his affidavit admitting his

guilt. He testified that he had no participation in the preparation of the document and was never informed of his constitutional rights. 26 The trial court found accused-appellants guilty of multiple murder. The trial court acquitted accused Delfin Gregorio for insufficiency of evidence. Hence, this appeal. 27 In their brief, appellants raise as issue the prosecution's failure to prove their guilt beyond reasonable doubt. They contended that prosecution witness Lucila Valdez was not able to positively identify them. They claim an alibi, that is, it was physically impossible for them to be at the locus criminis at the time the incident occurred. The Solicitor General contends that the trial court correctly gave credence to the testimony of Lucila Valdez and that the defense of alibi is weak. He maintains that appellants' alibi cannot prevail over the positive identification made by witness Lucila that they were the perpetrators of the crime as it is an entrenched jurisprudential doctrine that positive identification prevails over denial and alibi. 28 We find the appeal meritorious. It is a basic rule that the guilt of an accused must be proved beyond reasonable doubt. 29 Before he is convicted, there must be moral certainty of guilt a certainty that convinces and satisfies the reason and conscience of those who are to act upon it that he is guilty of the crime charged. 30 Under our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. 31 The task of the prosecution is two-fold: first, to prove that a crime has been committed, and second, that the accused is the person responsible therefor. Thus, the prosecution must be able to overcome the constitutional presumption of innocence with evidence beyond reasonable doubt to justify the conviction of the accused. 32 The fatigue cap and the light brown jacket (and the bloodstains found on it) were the basis for implicating accused Saturno. These were not identified during the trial nor formally offered in evidence. As a matter of fact, the jacket was never seen after it was submitted for examination. The chemist who examined the bloodstains in the jacket was not presented to identify the report and the jacket. There was also no convincing proof that the slugs, which were presented during the trial were the same slugs recovered from the scene of the crime. Barangay Chairman Jaime Collado admitted that after he removed the slugs from the cadavers, he did not immediately give them to the police officers. The slugs, which were submitted for ballistic examination, could have been those used when Sgt. Apostol firetested the gun on July 1, 1989. There was no sufficient proof that they were fired from accused Saturno's gun. The ballistician, after testifying that there is no margin of error in his report, could not estimate when the gun was last fired. The other homemade gun also alleged to have been used in the killing was tested in court and it was shown that it could not be operated easily. Using the court's own words, the gun was "pasumpong-sumpong." 33

Witness Lucila Valdez hesitated at first to point at accused Saturno's tricycle because it looked different from the one used by the assailants which was color red and with a tail. 34 She did not also recognize the inscription "SATURNO FAMILY" at the back of the tricycle. 35 Witness Lucila Valdez was covering her face during the incident. She claimed that the man who was wearing a light brown jacket had a well-chiseled or occidental nose and his face was oblong; that the gun used in killing her husband appeared to have a circular object in the middle; that the man who hogtied the other victims was of medium height, a well-built man, dark skinned and the other who helped him was also well-built and fair-complexioned and a little bit handsome. 36 She stated that the person who dumped Florencio Bulatao in front of the other victims "was wearing a belt which was borrowed from my husband", and she assumed that it was Benigno Andres because she remembered the latter borrowing her husband's belt. 37 Witness Lucila's testimony regarding the identity of the accused, however, is too general to deserve consideration. On the other hand, accused-appellants were able to present convincing evidence that they could not possibly be at the scene of the crime at the time of its commission. SaIHDA Bgy. Chairman Collado and Mayor George Castaeda testified that Lucila Valdez told them that she was not able to recognize the assailants. 38 It is inconceivable for Lucila not to tell the barangay officials that her long-time compadre Benigno Andres assisted in the killing. On rebuttal, she said that she had not seen accused Saturno and Andres prior to June 23, 1989. 39 Witness Lucila testified that she was afraid and trembling after she saw that her husband was shot, 40 yet she also testified that she was composed and normal all throughout the incident. 41 Her conflicting testimony as to her disposition at that time creates a reasonable doubt on her capability to positively identify the killers. The identification of appellants as the assailants could in no way be considered as positive and credible. In the case at bar, the prosecution was able to establish the fact of the killing; however, it failed to prove that appellants perpetrated the crime. Where the prosecution has failed to discharge the onus probandi for a pronouncement of guilt beyond reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal. 42 Accused-appellants testified that they were somewhere else when the killing occurred, and that it was impossible for them to have committed the crime. The court a quo gave weight to the affidavits executed by the accused wherein they admitted their participation in the killing. 43 However, they were able to prove that their affidavits were solely prepared by the police investigators, that they were not apprised of their constitutional rights, and that they were forced to sign the affidavits lest they be maltreated again. True, the settled rule is that alibi is a weak defense. It has been held that courts will not at once look with disfavor on the defense of alibi. Alibi may be considered in light of all the evidence for it may be sufficient to acquit the accused. 44

Appellants' alibi and denial gain considerable strength in view of the unreliable identification of the perpetrators of the crime. 45 Thus, where the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. 46 The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. 47 WHEREFORE, the Court REVERSES the appealed decision of the Regional Trial Court, Branch 39, San Jose City, Nueva Ecija in Criminal Case No. L-15 (89). The Court ACQUITS accused-appellants SERVANDO SATURNO, ABRAHAM RODRIGUEZ and BENIGNO ANDRES for failure of the prosecution to prove their guilt beyond reasonable doubt. The Director of Corrections is hereby directed to forthwith release accused-appellants unless they are lawfully held for another cause, and to inform the Court of their release within ten (10) days from notice. THIECD No costs. SO ORDERED. Davide, Jr., C.J., Kapunan and Ynares-Santiago, JJ., concur. Puno, J., is on official business abroad. Footnotes 1. In Criminal Case No. L-15 (89), Judge Reynaldo A. Alhambra, presiding (Rollo, pp. 166-198). It is noted that three (3) judges presided over the trial of this case. Judge Alhambra heard only the concluding testimony on rebuttal (the last testimony for the entire case) of the prosecution's main witness. 2. 3. 4. 5. 6. 7. 8. 9. 10. Decision, Rollo, pp. 166-198, at p. 167. Ibid., pp. 2-3. Ibid., p. 3. TSN, December 16, 1992, pp. 4-8. Decision, Rollo, pp. 166-198, at p. 169. TSN, September 9, 1992, pp. 9-11. Ibid., pp. 13-16. TSN, August 30, 1989, pp. 21-25. Decision, Rollo, pp. 166-198, at p. 170.

11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

TSN, September 14, 1992, p. 9. TSN, September 9, 1992, pp. 18-22. TSN, September 9, 1992, pp. 23-25. TSN, September 14, 1992, pp. 4-8. TSN, June 22, 1992, pp. 17-19. TSN, June 18, 1991, p. 11. TSN, August 21, 1991, p. 21. TSN, July 23, 1991, pp. 2-11; TSN, July 25, 1991, pp. 7-8. TSN, July 25, 1991, pp. 11-12. Ibid., pp. 15-17. TSN, November 12, 1991, pp. 9-10. Ibid., p. 15; TSN, August 14, 1991, p. 10. TSN, November 12, 1991, pp. 17-28. TSN, January 6, 1992, pp. 8-14. TSN, October 19, 1992, pp. 6-8. TSN, October 21, 1992, pp. 3-10. Notice of Appeal, Rollo, p. 199. Appellee's Brief, p. 26. Article III, Section 14 (2), Constitution. People vs. Kenneth Canedo, G.R. No. 128382, July 5, 2000, citing U.S. vs. Reyes, 3 Phil. 3 (1903). People vs. Vasquez, 345 Phil. 380, 384 (1997). People vs. Garcia, G.R. No. 124514, July 6, 2000. TSN, September 14, 1992, p. 6. TSN, June 18, 1991, p. 9. TSN, May 28, 1993, p. 4.

36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47.

TSN, August 15, 1989, pp. 18-27. Ibid., p. 25. TSN, May 28, 1993, pp. 8-9. TSN, May 19, 1993, pp. 3-4. TSN, May 28, 1993, pp. 7-8. TSN, May 7, 1993, p. 24. People vs. Castillon, 217 SCRA 76 (1993). Decision, supra, Note 10. People vs. Abellanosa, 332 Phil. 760, 787 (1996). People vs. Gamer, G.R. No. 115984, February 29, 2000. People vs. Agustin, 316 Phil. 828, 832 (1995). People vs. Lagmay, 306 SCRA 157 (1999).

Copyright 2001 CD Technologies Asia Inc

G.R. No. 126751 March 28, 2001 SAFIC ALCAN & CIE vs. IMPERIAL VEGETABLE OIL CO., INC. FIRST DIVISION [G.R. No. 126751. March 28, 2001.] SAFIC ALCAN & CIE, petitioner, vs. IMPERIAL VEGETABLE OIL CO., INC., respondent. Sycip Salazar Hernandez & Gatmaitan for petitioner. Abad and Associates for private respondent. SYNOPSIS Safic Alcan and Cie, a French corporation engaged in the international purchase, sale and trading of coconut oil, filed a complaint against Imperial Vegetable Oil Co., (IVO) before the Regional Trial Court of Manila which alleged that on July 1, 1986 and September 25, 1986, it placed purchase orders with IVO for 2,000 long tons of crude coconut oil valued at US$222.50 per ton to be delivered within the month of

January 1987 which were covered by Purchase Contracts. However, IVO failed to deliver the said coconut oil and instead, it offered a "wash out" settlement, whereby coconut oil subject of the purchase contracts were to be sold back to IVO at the international market price at the time of wash out. Thus, IVO bound itself to pay to Safic the difference between the said prevailing price and the contract price which amounted to US$293,500.00. However, still IVO failed to pay it despite of repeated demands. Consequently, Safic also demanded that IVO will also make marginal deposits within forty eight hours on the eight purchase contracts executed between April 24, 1986 and October 31, 1986, in the aggregate amount of US$391,593.62 which is equivalent to the difference between the contract price and the market price of coconut oil. But still IVO failed to make the prescribed marginal deposits. Hence, Safic prayed that IVO be ordered to pay the above stated amounts plus attorney's fees and litigation expenses. In its answer, IVO raised, among others, that the subject contracts were speculative contracts entered into by IVO's previous President, Dominador Monteverde, in contravention of the prohibition by the Board of Directors against engaging in speculative paper trading. After trial, the trial court ruled that the subject contracts were ultra vices act of Dominador Monteverde, hence, it dismissed the foregoing complaint. It also rejected IVO's counterclaim. On appeal, the Court of Appeals affirmed in toto the decision of the lower court. Hence, this petition. aTEACS Under Article 1898 of the Civil Code, the acts of an agent beyond the scope of his authority do not bind the principal unless the latter ratifies the same expressly or impliedly. There was no such ratification in this case. When Monteverde entered into the speculative contracts with Safic, he did not secure the Board's approval. He also did not submit the contracts to the Board after their consummation so there was, in fact, no occasion at all for ratification. The contracts were not reported in IVO's export sales book and turn-out book. Neither were they reflected in other books and records of the corporation. It must be pointed out that the Board of Directors, not Monteverde, exercises corporate power. Clearly, Monteverde's speculative contracts with Safic never bound IVO and Safic can not therefore enforce those contracts against IVO. Furthermore, such agreements did not prove Safic's actual losses in the transactions in question. The fact was that Safic did not pay for the coconut oil that it supposedly ordered from IVO through Monteverde. Safic only claimed that, since it was ready to pay when IVO was not ready to deliver, Safic suffered damages to the extent that they had to but the same commodity from others at higher prices. The foregoing claim of petitioner was not, however, substantiated by the evidence. AaDSEC The petition was DENIED for lack of merit. SYL FIRST DIVISION [G.R. No. L-52090. February 21, 1980.] BIANITO ALEJANDRO, petitioner, vs. HON. GERARDO M. S. PEPITO, Presiding Judge, Branch III, Court of First Instance of Aklan, respondent. Niovady M. Marin for petitioner.

Office of the Solicitor General for respondents. DECISION MELENCIO-HERRERA, J p: Upon petitioner's arraignment and plea of not guilty to the crime of Homicide before the Court of First Instance of Aklan, Branch III, presided by respondent Judge, the latter issued an Order, dated July 6, 1979, of the following tenor: LLjur "Upon petition of the accused with the conformity of the prosecution, transfer the initial hearing of this case to AUGUST 7, 1979, at 8:30 o'clock in the morning. "Let it be made of record, in black and white, that the accused in this case admits in open court that he killed the deceased but that he acted in self-defense. For this reason, the Court requires the defense counsel, first to prove evidence in self-defense and the prosecution to present its evidence to disprove the same." 1 Petitioner moved for reconsideration, reiterated in an Amended Motion, of the aforequoted Order contending that the Court action was violative of Section 3 Rule 119 of the Rules of Court, which establishes the sequence in the presentation of evidence by the parties in criminal cases, first by the prosecution and then by the defense, and not vice versa. Additionally, petitioner claimed that the procedure adopted by respondent Judge is prejudicial to the substantial rights of the accused in the sense that the same would give rise to the presumption that the prosecution had already established the guilt of the accused beyond reasonable doubt when what is only on record is the accused's admission that he had killed the victim in self defense. On the other hand, the prosecution maintained that section 3, Rule 119 is not mandatory, relying on the ruling in U.S. vs. Gaoiran, 17 Phil. 404 (1910) to the effect that a departure from the order of trial, when rights of the defendant are not prejudiced, does not constitute a reversible error; that the admission by the accused of having killed in self-defense did not give rise to the presumption of his guilt beyond reasonable doubt but, rather, would result in his acquittal, if self-defense is proved; and finally, citing People vs. Besana, 64 SCRA 84 (1975), that having pleaded self-defense, petitioner admitted having stabbed and killed the deceased so that the burden is shifted on him to establish that he was justified in doing so. Respondent Judge denied reconsideration in an Order dated October 9, 1979, reading in part: "For resolution is an amended motion dated August 13, 1979 for reconsideration of the order of this court dated July 6, 1979, requiring the counsel for the accused in the above-entitled case to first present his evidence on self-defense ahead of the prosecution - the herein accused himself having admitted in open court the killing but that he acted in self-defense.

"The prosecuting Fiscal interposed an opposition which was filed on August 30, 1979, citing the case of U.S. vs. Gaoiran, 17 Phil. 404 in which it was held among others that the substantial rights of the accused were in no way prejudiced by the change in the order of presentation of evidence. "The court is pretty aware of the sequence in the presentation of the evidence of the parties indicated in Sec. 3, Rule 119 of the Rules of Court to be generally followed in criminal cases. While sec. 3 of Rule 119 of the Rules of Court generally establishes a procedure to secure an orderly conduct in judicial proceedings in criminal cases, the Court, however, in an effort to find ways and means to speedily dispose of the cases to de-clog its docket has altered the sequence above referred to without in any way prejudicing the substantial rights of the accused herein. "The accused is still presumed innocent, only that he was ordered to first present his evidence on selfdefense as the killing has been admitted but that he acted in self-defense. It will indeed save time by dispensing with proof of death and injuries causing death a matter admitted by the accused in open court before actual trial on the merits. "WHEREFORE, finding the foregoing motion for reconsideration without merit, the Court DENIES the same." 2 Hence, this Petition for Certiorari, with petitioner alleging that respondent Judge acted without or in excess of his jurisdiction and with grave abuse of discretion in requiring defense counsel to present first its evidence of self-defense and the prosecution to present its evidence to disprove the same; that there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law available to him and that unless respondent Judge is properly restrained, petitioner will suffer irreparable damage and prejudice. We issued the Restraining Order prayed for on December 12, 1979 enjoining respondent Judge from proceeding with the hearing of the case below. Required to comment, the Solicitor General candidly admits that there is proper ground for Certiorari and recommends that the Orders of July 6, 1979 and October 9, 1979 be annulled and the trial of the case held in accordance with law and jurisprudence on the matter. cdll We find the recommendation well taken. Enshrined in our Constitution as a protection to accused persons in criminal cases is the requirement that no person shall be held to answer for a criminal offense without due process of law. 3 That requirement simply requires that the procedure established by law shall be followed. 4 Section 3 of Rule 119 prescribes the order of trial in criminal cases, to wit: "SEC. 3. Order of Trial. The plea of not guilty having been entered, the trial must proceed in the following order: (a) The fiscal, on behalf of the People of the Philippines, must offer evidence in support of the charges.

(b)

The defendant or his attorney may offer evidence in support of the defense.

(c) The parties may then respectively offer rebutting evidence only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question. (d) When the introduction of evidence shall have been concluded, unless the case is submitted to the court without argument, the fiscal must open the argument, the attorney for the defense must follow, and the fiscal may conclude the same. The argument by either attorney may be oral or written, but only the written arguments, or such portions of the same as may be in writing, shall be preserved in the record of the case." It behooved respondent Judge to have followed the sequence of trial set forth. That procedure observes, in the words of Chief Justice Fernando, the "mandate of reason and the guarantee of fairness with which due process is identified". 5 The procedure outlined safeguards and protects the fundamental right of the accused to be presumed innocent until the contrary is proved. That right is founded on the principle of justice and is intended not to protect the guilty but to prevent as far as human agencies can, the conviction of an innocent person. 6 Indeed, the form of a trial is also a matter of public order and interest; 7 the orderly course of procedure requires that the prosecution shall go forward and present all of its proof in the first instance. 8 The following excerpt from People vs. Balicasan 17 SCRA 1119 (1966) shows fidelity to that procedure: llcd "In view of the assertion of self-defense in the testimony of the accused, the court should have taken anew defendant's plea and then proceeded with the trial of the case, in the order set forth in Section 3 of Rule 119 of the Rules of Court. In deciding the case upon the merits without the requisite trial, the court not only erred in procedure but also deprived the prosecution of its day in court and right to be heard." It is noteworthy also that the Information filed herein alleges that the heirs of the deceased suffered damages in the amount of P20,000.00. The prosecution should prove this first before the defense presents its evidence. It is true that in the case of U.S. vs. Gaoiran, 17 Phil. 404 (1910), relied upon by the prosecution and the trial Court, the defense had produced its proofs before the prosecution presented its case, and it was held that no substantial rights of the accused were prejudiced. There is one radical difference, however, since in that case, no objection was entered in the Court below to the procedure followed in the presentation of proof. In this case, the change in order of trial made by respondent Judge was promptly and timely objected to by the defense. Respondent Judge's desire to abbreviate the trial and unclog his docket is commendable but it must yield to the paramount objective of safeguarding the rights of an accused at all stages of criminal proceedings, and to the interest of orderly procedure adopted for the public good. WHEREFORE, granting the Writ prayed for, the Orders issued by respondent Judge on July 6, 1979 and October 9, 1979, respectively, are hereby annulled and set aside, the Restraining Order heretofore

issued is lifted, and respondent Judge hereby directed to proceed with the trial in accordance with section 3, Rule 119 of the Rules of Court. No costs. SO ORDERED. Teehankee (Chairman), Makasiar, Fernandez, Guerrero and De Castro, JJ., concur. Footnotes 1. 2. 3. 4. 5. 6. 7. 8. Annex B, Petition. Pp. 31-32, Rollo. Art. IV, sec. 17. U.S. vs. Ocampo, 18 Phil. 1, 41 (1910). Philippine Constitution, Second Edition, pp. 668-669. Malcolm & Laurel Phil. Constitutional Law, 471. Arzadon vs. Arzadon, 15 Phil. 77, 79-80 (1910). U.S. vs. Alviar, 36 Phil. 804, 805-806.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. L-48264 February 21, 1980 SWITZERLAND GENERAL INSURANCE COMPANY, LTD. vs. PEDRO A. RAMIREZ, ET AL. SECOND DIVISION [G.R. No. L-48264. February 21, 1980.] SWITZERLAND GENERAL INSURANCE COMPANY, LTD., petitioner, vs. HON. PEDRO A. RAMIREZ, Presiding Judge of the Court of First Instance of Manila, Branch XXX, OYAMA LINES, CITADEL LINES and MABUHAY BROKERAGE CO., INC., respondents. Manuel N. Camacho, for petitioner. Bito, Misa & Lozada for respondents Oyama Lines and Citadel Lines. Gregorio Gonzales for respondent Company.

DECISION ANTONIO, J p: Petition for review of the decision, dated February 24, 1978 of the Court of First Instance of Manila in Civil Case No. 100704, entitled "Switzerland General Insurance Co., Ltd. v. Oyama Lines and Citadel Lines, and/or Mabuhay Brokerage Co., Inc." On December 24, 1975, petitioner, a foreign insurance company authorized to do business

EN BANC [G.R. Nos. L-66497-98. July 10, 1986.] VIRGILIO V. SACAY, petitioner, vs. SANDIGANBAYAN, respondent. DECISION FERIA, J p: This is a petition for review on certiorari of the decision of the Sandiganbayan. Although petitioner did not join the People of the Philippines as party respondent, it is necessarily impleaded as such. Petitioner was found guilty beyond reasonable doubt of two (2) separate crimes of homicide in the dispositive portion of the decision which reads as follows: "WHEREFORE, in Criminal Case No. 503, accused PAT. VIRGILIO SACAY Y VALDEZ is hereby found guilty beyond reasonable doubt as principal of the crime of HOMICIDE, defined and penalized under Article 249 of the Revised Penal Code. "With the aggravating circumstance of taking advantage of his public position and absent any mitigating circumstance to offset the same, said accused is hereby sentenced to an indeterminate penalty ranging from EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, and to pay the heirs of the deceased PATERNO N. LERMA: P15,000.00 as indemnity for the death of the said deceased; P1,650.00 as actual damages; P24,600.00 a compensatory damages representing the lost earning capacity of the same deceased; and P5,000.00 as moral damages.

In Criminal Case no. 5004, accused Pat. Virgilio Sacay Y Valdez is also found guilty beyond reasonable doubt as principal of a separate crime of Homicide, defined and penalized under Article 249 of the Revised Penal Code. "With the presence of the aggravating circumstance of taking advantage of his public position, with no mitigating circumstance to offset the same, he is hereby sentenced to suffer another indeterminate penalty ranging from EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as minimum, to SEVENTEEN (1) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, to pay to the heirs of the deceased, ANTONIO N. TEPACE: P15,000.00 as indemnity for the death of said victim; P3,683.40 as actual damages; P34,800.00 as compensatory damages, representing the lost earning capacity of the said deceased for a period of 29 years; and P5,000.00 as moral damages. "Subject .22 caliber paltik revolver marked Exhibit "11" together with the three (3) live ammunitions and one (1) used cartridge contained in an envelope marked Exhibit "12" and four (4) test shells are hereby confiscated in favor of the government. Let the same be brought to the Firearm Section of the Philippine Constabulary, Camp Crame, Quezon City, Metro Manila, for disposition in accordance with law. 1 Arraigned on February 24, 1982 in both cases, the accused entered a plea of Not Guilty after which, upon motion of the prosecution and without objection from the accused, joint trial was held. 2 Petitioner Virgilio V. Sacay was a Patrolman in the Western Police District, Masinop Street, Tondo, Manila. He was on duty on April 12, 1979, the date of the riot incident in Don Bosco Compound in Tondo, Manila. He admitted having shot with a .38 caliber Smith and Wesson revolver Antonio Tepace and Paterno N. Lerma who were among the rioters but invoked self-defense and fulfillment of duty to justify his act of shooting said deceased. As correctly stated by respondent Court: "Having admitted the two gun-shot killings charged, the accused assumed the burden of showing legal justification therefor. He has to substantiate the justifying circumstance invoked. He is called upon to spell out and describe convincingly how he acted in complete self-defense and or due fulfillment of official duty, as claimed by him; otherwise, he must suffer all the consequences of his malefaction. And he has to rely on the qualitative and quantitative strength of his own evidence; not on the weakness of the prosecution; for even if it were weak it could not be disbelieved after he had admitted the killings." 3 The first witness for the prosecution in the killing of the deceased was Veneranda Lagrimas. As summarized by the Sandiganbayan, her testimony was as follows:

"She narrated that as she was outside the church near Marcos Road, some twenty (20) meters from the NHA and NHCC Compound, at about 4:00 o'clock in the afternoon of April 15, 1979, Patrolman Virgilio Sacay shot Antonio Tepace inside the Don Bosco Compound near said Church. Many people, including Boy Rodrigo, were then playing basketball inside the Don Bosco compound, she recalled." 4 Her testimony was, however, cut short when the defense admitted the killings in question and the prosecution asked that the reverse procedure be adopted as in the other cases in that court. Justice Rallos commented that it would be improper for the Court to provide or suggest the procedure to follow. Thereafter, the prosecutor opted to submit the case on the basis of the admission of the accused, but without prejudice to presenting the medical certificates on rebuttal. Witness Lagrimas was discharged. 5 To prove civil liability, Leonida Nubio Tepace, mother of Antonio N. Tepace, and Francisca Lerma Y. Naldo, mother of Paterno N. Lerma, were placed on the witness stand." 6 With the admission thus made by the defense, the testimonies of the aforementioned witnesses and its documentary evidence consisting of Exhibit "A", death certificate of Paterno N. Lerma: Exhibit "B": death certificate of Antonio N. Tepace Exhibit "C", post mortem findings on the body of Antonio N. Tepace and Exhibit "D", post mortem findings on the body of Paterno N. Lerma, the prosecution closed its evidence in chief. 7 For the defense, the following testimonies were also summarized by the trial court, as follows: Testimony of Juanito Yang, member of WPD and assigned with the Homicide Investigation Section: "He prepared on April 16, 1979, the report marked Exhibit "I" and took down the statement of Alfredo Madrigo (Exhibit "2"), of Robert Catangjas (Exhibit "3") and of Leonila Galit (Exhibit "4"). As stated in the report Exhibit "I", he received from Pfc. Cabildo in the afternoon of April 15, 1979 the 10-inch long knife (Exhibit "5") together with a firearm which he submitted for ballistic examination per receipt (Exhibit "7"). According to Pfc. Cabildo, the aforesaid knife and firearm were confiscated by Patrolman Virgilio Sacay during a gang war inside the Don Bosco compound in Tondo, Manila. In connection with the shooting of Antonio N. Tepace and Paterno N. Lerma, he invited Pat. Virgilio Sacay for investigation but the latter refused to give any written statement. The accused opted, instead to submit the affidavit (Exhibit "6") rather than to be interrogated. "As the investigator designated to look into the case, he went to and saw at the Tondo General Hospital the cadavers of Paterno Lerma and Antonio Tepace bearing tatoo marks of BCJ as indicated in the third paragraph (Exhibit "1-A") of Exhibit "I". Starting the investigation of the incident at bar in the afternoon of April 15, 1979, he prepared his report (Exhibit "I") the following day. It was 1:00 to 2:00 a.m. of April 16, 1979 that the accused presented the already finished affidavit (Exhibit "6"). He interviewed not only Madrigo and Catangjas but also Pat. Rodolfo Amado, the one who dispatched Sacay to verify a reported rioting at the scene of the incident in question. Pat. Amado sent only Sacay because it was just for the purpose of verifying the veracity of said report." 8 Testimony of Bonifacio Abao, Jr. Y Rom, security guard of Don Bosco Youth Center:

"Bonifacio Abato, Jr. Y Rom, security guard of Don Bosco Youth Center whose tour of duty on April 15, 1979 was from 8:00 a.m. to 4:00 p.m., identified his "Sinumpaang Salaysay" of May 8, 1981, marked Exhibit "8" and reaffirmed its contents. He narrated that at about 3:00 o'clock in the afternoon of April 15th, he phoned Police Station I about a brewing confrontation between the warring Sigue SigueSputnik and Batang City Jail Gangs which were outside the Don Bosco compound, with the latter positioning themselves at Marcos Road and the former along Carlos P. Garcia Street, Tondo, Manila. Respondent to his call for police intervention, Patrolman Sacay arrived in civilian clothes. Sacay was the lone policeman to show up at the place where the rioters were already shouting and throwing stones and darts at each other. The first thing Sacay did was to fire two warning shots and identify himself as a peace officer by shouting "I am a policeman." Then, he ordered the fight to stop but, instead five of the rioters one of whom holding a revolver and a bladed weapon, ran towards and unsuccessfully tried twice to stab Sacay who shot and felled the said aggressor. At the precise moment when the said aggressor named "Fernando" was thrusting a bladed instrument towards Sacay, and the latter fired at the former, the two were just 3 & 1/2 feet apart. After hearing two more gun rapports, two men fell but did not see any particular person being hit by Sacay's tirades. Others docked and ultimately surrendered, this witness who claims to have been twenty meters from the protagonists, recounted. "Cross-examination elicited from witness that after firing the last shot, Sacay stood up and ordered the trouble makers to stop even as some of them were running. He did not notice Sacay leaving the crime scene because when people were coming, he was preoccupied closing the gate of the Don Bosco compound. He did not also see what ride was used by Sacay who was alone. He could not tell if Sacay fired immediately but he did observe that Sacay fired only after the aggressor's second thrust towards Sacay. He heard a shot and saw Sacay shooting the fellow. There were four shots, all in all, witness said." 9 Testimony of Ramon Pintado y Baguio, Ballistician or Firearm Identification Technician, WPD Evidence Laboratory: "Ramon Pintado y Baguio, ballistician or firearm identification technician of WPD's Evidence Laboratory, also mounted the witness stand for the defense to state that on April 20, 1979, Cpl. Yang requested ballistic examination of a .38 caliber revolver with Serial Number SN-243277 used by Pat. Virgilio Sacay on April 15, 1979 repelling aggression coming from Antonio Tepace and Paterno Lerma. Subject firearm was accompanied with the "Reference Slip" marked Exhibit "9". Then, on April 24, or four days later, Yang was back to ask ballistic examination also of a .22 caliber Magnum revolver having serial No. SN2424 (Exhibit "11") with three (3) rounds of live ammo and one (1) fired cartridge contained in the envelope marked Exhibit "12". The subsequent request was embodied in the "Reference Slip" marked Exhibit "10". Placed in another envelope marked Exhibit "13" are two (2) test shells and two (2) test bullets utilized for the examination of subject .22 caliber revolver, the result of which ballistic test is shown in the findings and conclusions (Exhibit "14-B ") in the Laboratory Report No. 5790. "As thus requested, he conducted on May 7, 1979 the desired ballistic examination for the purpose of determining whether the .22 caliber discharged cartridge with the initial "JY" was fired from the said .22 caliber paltik revolver bearing Serial Number 2424. The spent cartridge was found inside the chamber of

subject firearm but no spent bullet from the same gun was submitted to him for examination, this witness revealed." 10 Testimony of Virgilio Sacay y Valdez, accused member of the Western Police District: "On April 15, 1979, he was a station reserve from 7:00 a.m. to 7:00 p.m. In the afternoon, he was instructed by the Actg. Desk Officer, Patrolman Amado Adolfo, to verify a phoned report regarding a riot at the Don Bosco premises in Barangay Magsaysay Tondo, Manila. Right away, he boarded a passenger jeepney. He was alone and in plain clothes. Upon arrival at the reported scene of trouble, shooting of darts between members of the Sigue Sigue-Sputnik gang and Batang City Jail gang was taking place. He knew the identity of the warring groups because he grew up in the area. At the right side facing north were members of the Sigue Sigue-Sputnik gang. On the left side of the Don Bosco compound were those belonging to the Batang City Jail gang. He entered the compound via the left gate (the right gate was closed) and met Virginia Nacar who told him that the throwing of stones and darts by about twenty (20) people had been going on for quite a time. Among the people involved were Paterno Lerma, Antonio Tepace, Alfredo Mondrigo and Roberto Catangjas. Closing in on the protagonists, has identified himself as a policeman and fired two warning shots. "After the warning shots were fired, members of the Sigue Sigue-Sputnik gang dispersed. They ran towards the right gate of the Don Bosco compound. But members of the Batang City Jail Gang ran to the place where he was and one of them, Paterno Lerma who was only an arm's length away, lunged an 8inch knife at him. Luckily, he was able to evade the thrust by moving backward. In so stepping to the rear, however, a big stone blocked his leg, causing him to sit on the buttocks and while in such position Lerma approached at the left and as he (accused) stood up, Lerma tried once more to stab him with the same weapon; and so he fired his service gun at Lerma who was mortally hit. "Denying the imputation that he shot Paterno Lerma when the latter was kneeling down, the accused went on to narrate that after Lerma was fatally wounded, Antonio Tepace, Lerma's gangmate, shot him (accused) with a .22 caliber magnum revolver from a distance of two meters but missed him so that to protect his life, he fired back at Tepace who thereafter slumped on the ground. "To reinforceable theory of self-defense and fulfillment of duty, the accused also declared that the .22 caliber magnum revolver (Exhibit "11") with three (3) live ammo and one spent shell (Exhibit "12") was picked up from the ground near the hands of the deceased Antonio Tepace and the knife (Exhibit "5") was taken near the hands of Paterno Lerma inside the Don Bosco compound that afternoon of April 15, 1979. Investigated later by P/Cpl. Johnny Yang of WPD's Homicide Section on the same day of the unfortunate happening, he gave the affidavit (Exhibit "G") to said police investigator. To the Tanodbayan, he turned in the counter-affidavit (Exhibit "18") including the annexes marked Exhibits "18A" to "18-D" pertaining to the derogatory police and court records of the deceased Paterno Lerma and Antonio Tepace who were full of tatoo marks of the Batang City Jail Gang. "Such in a nutshell, was the tale of the accused before the court." 11 Testimony of Eusebio Arguelles y Magpantay, police chemist of Manila's finest.

"He testified that Patrolman Rodolfo Buenaventura who is now retired, was under his administrative supervision. Upon the request of P/Cpl. Yang, Buenaventura subjected to paraffin test the body of the late Antonio Tepace about 7:30 in the afternoon of April 16, 1979 at the Capitol Memorial Chapel. Although he did not actually see the written request of P/Cpl. Yang therefor, Buenaventura informed him of the paraffin test thus made whereby the latter took a paraffin cast from the dorsal side of the right and left hands of Antonio Tepace. Thereafter, he conducted thereon a diphenylamine test which gave positive reaction to the presence of nitrates or nitrites, a finding mentioned in that portion marked Exhibit "16-1" of the laboratory report marked Exhibit "16". "The witness pointed to Exhibits "17" and "17-A" as the patterns of the right and left hands of Antonio Tepace y Nubia. "On cross-examination, he opined that the presence of nitrates on the dorsal side of the right hand of Antonio Tepace could have been caused by gun powder residues. Because of the possibility of contamination upon touching any object, the palm of subject cadaver was not examined anymore, he justified. Told that the deceased Antonio Tepace died a day before the paraffin examination was made, he did not discount the possibility that during the 24-hour period following the death of Antonio Tepace, the dead man's hand could have been used by someone to fire a gun thereby rendering the dorsal side of such hand positive of nitrates. 12 Testimony of Veneranda P. Lagrimas, on rebuttal for the Prosecution: "Veneranda P. Lagrimas testified that at about 4:00 o'clock in the afternoon of April 15, 1979, she was in the church near Don Bosco compound in Tondo to fulfill her Sunday obligation. While outside the said church, she saw Patrolman Sacay, the accused herein, alighting from a passenger jeepney. There was no clash between the Sigue Sputnik gang and the Batang City Jail gang, she said. According to her, upon the arrival of the accused at the place of the incident complained of, he died not say "magsitigil kayo, pulis ako, si Sacay ako" but said "magsilapit kayo" and commanded the three persons, including Antonio Tepace, to "raise your hands, kneel, lie flat on your stomach" which order the three obeyed. The accused fired no warning shot; he aimed his gun at the people. Paterno Lerma was unarmed, had no knife and never lunged any knife at the accused who shot Lerma even as Lerma was running away with face looking backward at the accused, witness recalled. "As regards the deceased, Antonio Tepace, she categorically revealed that the latter was equally unarmed. He never fired, had no gun to fire and was actually lying flat on his stomach with hands stretched forward when fatally shot by the accused, she recounted. Shown Exhibit "F", she acknowledged the same to be the sworn statement she executed in connection with the shooting incident at bar. She affirmed the truth of its contents. "On cross-examination, she went on to state that she had known the late Antonio Tepace even prior to April 15, 1979 because he used to buy viand in her house. But she never saw Paterno Lerma alive. He was already dead when she saw his lifeless body. As to why she failed to present herself for police investigation not long after the tragic happening under inquiry, she pointed out that it was her impression that no complaint would even be filed in relation thereto. It was only when the mother of

Antonio Tepace was crying over lack of witnesses to testify against the feared accused that she became aware of the intention of the bereaved family to sue. So, three days later, she was accompanied to the police station by the sorrowful mother of Antonio Tepace and, then and there, she executed her affidavit (Exhibit "F"). "More on the environmental facts surrounding the shooting litigated upon, she further divulged that there were a lot of churchgoers and no basketball game was being played at the time because a Sunday afternoon mass was about to begin. 13 Testimony of Dr. Luis Larion y Craig, medico-legal officer of the Western Police District sur-rebuttal witness for the defense: "Sometime in April, 1979, he performed post-mortem examination and autopsy on the cadaver of the deceased, Antonio Tepace, and in the course thereof, recovered a bullet embedded in the head of said victim who sustained two gunshot wounds, one of which was just a "grazing gunshot wound." The bullet was without a point of exit, he ventilated. "Judging from the trajectory of the bullet, he ruled out the infliction of such a wound on a victim lying face down. The kind of wound sustained by Antonio Tepace could be possible if the assailant was in front and the head of the victim was raised upward by about a foot, making it almost perpendicular to the ground, the doctor theorized." 14 The Sandiganbayan, giving credence to the lone testimony of the prosecution witness and finding the version of the defense too incredible and repugnant to human experience, convicted the accused as charged. 15 Hence this petition, with the following assignment of errors: (a) There has been an error by the Court in giving weight and evidentiary worth to conjectures and beliefs in finding the accused guilty of the offenses charged against him; the decision is not based on the evidence adduced; (b) There has been an error by the Court in utterly ignoring and disregarding all the evidence adduced by the accused; (c) There has been an error by the Court in giving too much weight and reliance on the testimony of Veneranda Lagrimas, the lone witness for the prosecution whose testimony is never free from serious legal defects, and (d) There has been a serious error in the trial of these cases in the sense that the Order of Trial provided for in Section 3, Rule 119 of the New Rules of Court had never been observed, thus depriving this accused of the right to due process of law. 16 The accused begs, in the interest of justice and fair play, that all the evidences presented be fairly and justly evaluated through this sought-for judicial review by this Honorable Court. 17

The first three errors assigned question the appreciation of the evidence by the trial court while the fourth raises the denial of procedural due process to the accused. In his comment, the Solicitor General maintains that petitioner's contentions raise the question of sufficiency of evidence upon which his conviction is predicated and necessarily a question of fact. However, because of the sufficiency of evidence against the accused, said question of fact cannot be transformed into one of law under the exceptions as have been noted by this Court by which a question of fact may be passed upon even under a petition for certiorari. Accordingly, the Solicitor General supports the view of respondent Court that the version of petitioner as to how he shot the two victims to death is unworthy of credence, so that the plea of self-defense is not established by clear and convincing evidence. He adds that there was no denial of due process to the accused as there was no reverse order of trial followed, but on the contrary the order of trial as provided in Section 3, Rule 119 of the Rules of Court was religiously observed. 18 The main issue in this petition is whether or not petitioner has convincingly established that he acted in self-defense and/or in fulfillment of duty. Relative thereto, petitioner also claims that he has been deprived of procedural due process. We shall deal first with the procedural issue. At the initial hearing, the testimony of Veneranda Lagrimas was interrupted when the accused, through his counsel, admitted that he shot the deceased Tepace and Lerma, but invoked self-defense and fulfillment of duty. The prosecution then moved that the reverse procedure be adopted in view of the admission that the accused shot the deceased. No objection was interposed by the accused or his counsel. After presenting Mrs. Leonida N. Tepace and Mrs. Francisca Lerma Y. Naldo to prove damages and the death and medical certificates of the deceased, the prosecution rested. Petitioner claims that the order of trial provided in Section 3j Rule 119 of the Rules of Court was not followed and in support of his claim quotes the ruling of this Court in the case of Alejandro vs. Pepito, as follows: "It behooved respondent Judge to have followed the sequence of trial set forth. That procedure observes in the words of Chief Justice Fernando, the 'Mandate of reason and the guarantee of fairness with which due process is identified.' The procedure outlined safeguards and protects the fundamental right of the accused to be presumed innocent until the contrary is proved. That right is founded on the principle of justice and is intended not to protect the guilty but to prevent as far as human agencies can, the conviction of an innocent person. Indeed, the form of a trial is also a matter of public order and interest; the orderly course of procedure requires that the prosecution shall go forward and present all of its proof in the first instance." 19 However, this ruling is not applicable in the case at bar inasmuch as the accused did not object to the procedure followed. In the above-cited case of Alejandro vs. Pepito, this Court also stated:

"It is true that in the case of U.S. vs. Gaoiran, 17 Phil. 404 (1910), relied upon by the prosecution and the trial Court, the defense had produced its proofs before the prosecution presented its case, and it was held that no substantial rights of the accused were prejudiced. There is one radical difference, however, since in that case, no objection was entered in the Court below to the procedure followed in the presentation of proof. In this case, the change in order of trial made by respondent Judge was promptly and timely objected to by the defense." 20 It should be noted that this procedure is now expressly sanctioned in Section 3(e), Rule 119 of the 1985 Rules on Criminal Procedure which provides as follows: "However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly." We shall now deal with the main issue the sufficiency of petitioner's evidence of self-defense and/or fulfillment of duty. After petitioner had presented his evidence, the prosecution presented its sole rebuttal witness, Veneranda Lagrimas, who disputed the testimony of petitioner. At the close of her direct examination she was asked to confirm the truth of the contents of her sworn statement, Exhibit "F", which she did, after which the following took place: "PJ PAMARAN Cross examination? ATTY. SANCHEZ If Your Honor please, I think this is the only witness for the prosecution. In order to give the accused, Your Honor, the prepared cross-examination . . . . I am not or I was not able to read all the stenographic notes neither all the affidavit, may I be given an opportunity . . . . PJ PAMARAN Denied. You cross examination her based on that. Proceed." 21 Atty. Demetrio Sanchez, an attorney of the Citizens Legal Assistance Office, who had been appointed counsel de officio for petitioner upon the withdrawal of counsel de parte, Atty. Santiago Inoferio, on the ground of a permanent ailment, should have been given a little time to prepare for cross-examination. Moreover, in the case of People vs. Estenzo, this Court frowned upon the procedure proposed by counsel for the defense of submitting the affidavits of his witnesses subject to cross-examination by the prosecution, and stated: "There is an additional advantage to be obtained in requiring that the direct testimony of the witness be given orally in court. Rules governing the examination of witnesses are intended to protect the rights of litigants and to secure orderly dispatch of the business of the courts. Under the rules, only questions directed to the eliciting of testimony which, under the general rules of evidence, is relevant to, and

competent to prove, the issue of the case, may be propounded to the witness. A witness may testify only on those facts which he knows of his own knowledge. Thus, on direct examination, leading questions are not allowed, except on preliminary matters, or when there is difficulty in getting direct and intelligible answer from the witness who is ignorant, a child of tender years, or feeble-minded, or a deaf-mute. (Section 5, Rule 132, of the Rules of Court.) It is obvious that such purpose may he subverted, and the orderly dispatch of the business of the courts thwarted, if trial judges are allowed, as in the case at bar, to adopt any procedure in the presentation of evidence other than what is specifically authorized by the Rules of Court." 22 Similarly, Veneranda Lagrimas should have been examined directly on the statements in her affidavit. Respondent Sandiganbayan gave credence to the testimony of Veneranda Lagrimas and found "the version of the defense too incredible and repugnant to human experience to induce faith and reliance." It is well settled that the findings of facts of the Court of Appeals (now Intermediate Appellate Courts are conclusive on the parties and on this Court, 23 unless (1) the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; 24 (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of facts are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; 25 (10) the finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by evidence on record. 26 The same exceptions apply to the findings of fact of the Sandiganbayan. As this Court stated in the case of Cesar vs. Sandiganbayan: "Considering further that no less than three senior members of this Court, Justices Teehankee, Makasiar and Fernandez dissented from the Court's opinion in Nuez (111 SCRA 433) partly because of the absence of an intermediate appeal from Sandiganbayan, this Court has been most consistent in carefully examining all petitions seeking the review of the special court's decisions to ascertain that the fundamental right to be presumed innocent is not disregarded. This task has added a heavy burden to the workload of this Court but it is a task which is steadfastly discharged." 27 Since the testimony of Veneranda Lagrimas is the only evidence of the prosecution to rebut the evidence of petitioner, it becomes necessary to scrutinize the same carefully. Moreover, this witness volunteered to testify only about five (5) months after the incident when she executed her affidavit on September 14, 1979. Asked why it took her so long a time to go to the police headquarters, she replied: "Because I thought the relatives of Antonio Tepace would not file a complaint." 28 In the case of People vs. Mula Cruz, it was held that the long delay of forty-two (42) days after the incident by a witness, an Army man, in reporting a crime to the authorities, not caused by threat,

intimidation or coercion, rendered the evidence for the prosecution insufficient to establish appellant's guilty connection to the requisite moral certainty. 29 The fact that there was a riot going on at the Don Bosco Youth Center in Tondo and that petitioner was dispatched to proceed to the place and investigate the incident was clearly established by the testimonies of Corporal Juanito Yang and the Security Guard, Bonifacio Abao. 30 And yet, Lagrimas denied that there was a clash between the two gangs in the Don Bosco compound. 31 On May 31, 1982, Lagrimas testified that before the shooting there were many people who were playing basketball, 32 but on June 13, 1983, she stated that no basketball game was going on that afternoon and that the people were to enter the church to attend mass. 33 More significant is the fact that according to Lagrimas, Antonio Tepace was lying flat on his stomach with his hands stretched forward when he was shot. 34 This is contradicted by the expert testimony of Dr. Luis Larion, medico-legal officer of the Western Police District, who testified on sur-rebuttal as follows: "ATTY. SANCHEZ Q But having examined the deceased, could you tell this Honorable Court what was the relative position of the deceased when he was shot at? A The relative position of the deceased in relation with the assailant when he was shot was that, if they were both on standing position, the assailant could have been in a higher elevation .. in relation with the victim. That is assuming that both were standing, that the assailant could have been in a higher elevation, if they are both facing each other. ATTY. SANCHEZ Q Now Doctor, a prosecution witness, Veneranda Lagrimas Pepito, when she testified before this Honorable tribunal in rebuttal evidence, stated in answer to a question of the prosecutor that the deceased Tepace was lying flat on his stomach with his hands stretched forward. My question, sir is, considering the entry of the bullet wound that you found, is it possible that the deceased was in this position when he was shot at? FISCAL VIERNES I object, the question is misleading because the witness Lagrimas stated in her testimony that the deceased was lying down flat on his back but his head was lifted. It was looking up. ATTY. SANCHEZ Yes, but in the stenographic notes it shows that it was not so stated, Your Honor. "FISCAL VIERNES The deceased lifted his head.

PJ PAMARAN What does your note say? ATTY. SANCHEZ The stenographic notes says that Tepace was lying flat on his stomach with his hands outstretched forward. PJ PAMARAN Answer. WITNESS A With that position, it is not possible." 35

On the other hand, the testimony of petitioner was corroborated by the testimony of Bonifacio Abao, the security guard of Don Bosco Youth Center. Ramon Pintado, Ballistic expert of the Western Police District, testified that the .22 caliber empty shell (Exhibit "12") had been discharged or fired from the .22 caliber paltik Magnum revolver (Exhibit "1"1) which had been submitted to him for examination by Corporal Yang. 36 This was the revolver which petitioner testified had been fired at him by Antonio Tepace. Eusebio Arguelles, Police Chemist, testified that the right hand, dorsal side, of Tepace was positive for the presence of nitrates or nitrites, a strong indication that the deceased had recently fired a gun. 37 Of course, one cannot discount the possibility that the knife (Exhibit "5") which petitioner testified was used by Paterno Lerma in attacking him, and the gun (Exhibit "11") were planted evidence. Nor can one easily dispel the nagging suspicion that the deceased were salvaged. But possibilities and suspicions are not evidence. That respondent Court harbored such suspicions may be gleaned from the following statements in its decision, to wit: ". . . What is more, the accused also admitted that his place of abode is only a barangay away from the residence of Lerma and Tepace for the past ten (10) years he had known and used to see them. The existence of ill-feeling or grudge between the deceased and the accused is not, therefore, improbable; and the actuations of the accused at the crime scene that afternoon of April 15, 1979 could have been far from being impersonal. He could have been laboring under some prejudice or bad impression against some people in that area where he spent many years of childhood." 38 This conclusion is not supported by the evidence as shown by the following: "ATTY. INOFERIO: q Now Mr. Witness, you have known previously this Tepace and Lerma, is that correct?

a q a

Yes, sir. For how long have you known them? About 10 years ago, sir.

PJ PAMARAN: q a Those two belong to one gang? Yes, Your Honor.

JUSTICE PURISIMA: q a What gang? Batang City Jail, Your Honor.

JUSTICE MOLINA: q a q a Would you say that they also knew you for the same period of time? Yes, Your Honor. And they know you to be a member of the Western Police District? Yes, Your Honor.

q And during that ten-years period that you knew each other until April 15, 1979, had there been any untoward incident between you and these two? a So far, none, Your Honor.

JUSTICE MOLINA: q a There had been no ill-feelings between you and these two deceased persons? None, Your Honor.

JUSTICE PURISIMA: q a You are neighbors? One barangay away, Your Honor. 39

"JUSTICE MOLINA: q a By the way, what is your educational attainment? I am a graduate of Criminology, Your Honor."

Respondent Court also had to resort to speculation when it attempted to reconcile the testimony of Lagrimas with the expert testimony of Dr. Luis Larion, as follows: ". . . The late Antonio N. Tepace lay flat on his stomach as ordered by the accused but while listening and talking to the accused who was in front of him, he could have raised his head such that when he was fatally shot his (victim's) head was almost perpendicular to the ground." 40 Prejudice against petitioner is shown by the following incident when petitioner presented Police Chemist Eusebio Arguelles as one of his witnesses. "AJ PURISIMA: Q A Q A Q A But you are not testifying in your own capacity. You were hired to testify here by the defense. I was subpoenaed, Your Honor. You were sent here by your Chief? I am the Chief of the Section. What about your Chief of Police? You are testifying against the prosecution now, is it not? Not exactly, sir. I will be testifying on my findings based on the incident." 41

Well established is the rule that every circumstance favorable to the accused should be duly taken into account. The evidence against him must survive the test of reason. The strongest suspicion must not be allowed to sway judgment. In brief, We are not morally certain of the guilt of petitioner. WHEREFORE, the decision of the Sandiganbayan is reversed and the petitioner is acquitted, with costs de officio. SO ORDERED. Teehankee, C.J., Abad Santos, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and Paras, JJ., concur. Footnotes 1. 2. Decision of the Sandiganbayan, Rollo, pp. 22-24. Ibid.

3. People vs. Ansoyon, 75 Phil. 772; People vs. Cruz, 53 Phil. 635; Decision of the Sandiganbayan, Rollo, p. 37. 4. 5. Ibid; Rollo, p. 26. TSN, Hearing of May 31, 1982, pp. 17-20.

6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

Decision, Rollo, p. 26. Ibid; Rollo, p. 27. Decision; Rollo, pp. 27-28. Decision of Sandiganbayan, Rollo, p. 29. Ibid; Rollo, p. 30. Ibid.; Rollo, pp. 31-32. Ibid; Rollo, p. 33. Ibid; Rollo, pp. 34-36. Ibid; Rollo. pp. 36-37. Rollo, pp. 38-39. Petition; Rollo. p. 17. Petition; Rollo, p. 20. Rollo, pp. 96-131. February 21, 1960, 96 SCRA 322, 326. Id. p. 327. TSN, pp. 15-16, June 13, 1983 Hearing. August 25, 1976, 72 SCRA 428, 434.

23. Cases cited in Tolentino vs. de Jesus, 56 SCRA 67; Cesar vs. Sandiganbayan, January 17, 1985, 134 SCRA 105, 121. 24. Ramos vs. Pepsi-Cola Bottling Co., February 8, 1967, 19 SCRA 289, 291-292; Roque vs. Buan, Oct. 31, 1967, 21 SCRA 648, 651. 25. Garcia vs. CA, June 30, 1970, 33 SCRA 622; Alsua-Bett vs. Court of Appeals, July 30, 1979, 92 SCRA 322; 366. 26. 27. 28. 29. Salazar vs. Gutierrez, May 29, 1970, 33 SCRA 243, 247. 134 SCRA 105, 121. TSN, p. 21, June 13, 1983 Hearing. April 30, 1984, 129 SCRA 156.

30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Exhibits "1" and "8"; TSN, pp. 4-6, 22-24, 29-31, August 24, 1982 Hearing. TSN, p. 7, June 13, 1983 Hearing. TSN, pp. 12-13. TSN, pp. 27-28. TSN, p. 14, June 13, 1983 Hearing. TSN, pp. 7-8, August 10, 1983 Hearing. TSN, pp. 7-20, September 13, 1982, Hearing; Exhibit "14". TSN, pp. 7-15, April 14, 1983 Hearing. Decision, Rollo, pp. 41-42. TSN, pp. 48-50, January 3, 1983 Hearing. Decision, Rollo, p. 42. . TSN, pp. 6-7, April 14, 1983 Hearing.

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G.R. No. L-36958 July 10, 1986 MARIANO ZABAT, JR. vs. COURT OF APPEALS, ET AL. FIRST DIVISION [G.R. No. L-36958. July 10, 1986.] MARIANO ZABAT, JR., petitioner, vs. THE COURT OF APPEALS, and MANOTOK REALTY, INC., respondents. Magtanggol C. Gunigundo for petitioner. Rodolfo G. Santiago for private respondent. DECISION CRUZ, J p:

This is an appeal by certiorari from a decision of the Court of Appeals sustaining the lower court which on separate dates: a) dismissed a complaint to quiet title for failure of the complainant and his counsel to appear at the scheduled pre-trial hearing; and b) upheld the counterclaim that the plaintiff should pay to the defendant rentals on the disputed land on the ground that the same belonged to the latter. 1 The complaint was dismissed on October 26, 1976, and notice of the dismissal was served on the plaintiff on October 29, 1966. 2 The plaintiff filed a motion for reconsideration on February 28, 1967, which was denied on March 7, 1967. 3 Notice of the d

EN BANC [G.R. No. 24978. March 27, 1926.] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FERNANDO DE FERNANDO, defendantappellant. W. A. Armstrong for appellant. Attorney-General Jaranilla for appellee. SYLLABUS 1. CRIMINAL LAW; HOMICIDE. An agent of the law, to whom notice had been given of the presence of suspicious looking persons, who might be escaped prisoners from a nearby penitentiary, proving around the vicinity, and who enters a house to keep watch and later in the evening sees a person with a bolo in hand approaching the house in the attitude of going up the stairs who does not answer the challenge of the officer of the law, and continues his advance notwithstanding that the latter had fired a shot into the air, and the said agent of the law considering that the said stranger has not been recognized by any person in the household and thinking him to be an evil-doer shoots and kills him, is not guilty of murder or homicide. 2. ID.; ID.; HOMICIDE THROUGH RECKLESS NEGLIGENCE. The said office of the law, however, acted with reckless negligence in failing to exercise by inquiring of the occupants of the house whether the stranger was known to them, as he seemed to have called somebody, in the house, or was really what he thought him to be, before shooting him, which makes said officer guilty of homicide through reckless negligence, under article 568, in connection with article 404, of the Penal Code. DECISION VILLA-REAL, J p: This appeal has been taken by the defendant Fernando de Fernando from the judgment of the Court of First Instance of Zamboanga, in which he was held guilty of the crime of murder and sentenced to suffer the penalty of twenty years cadena temporal to indemnify the heirs of the deceased Buenaventura

Paulino in the sum of P1,000 and to pay the costs, by virtue of a complaint filed by the fiscal charging him the said crime. As a basis for his appeal the accused assigns the following errors as committed by the trial court: (1) In holding that the acts committed by the accused constituted the crime of murder; (2) in not holding that the accused was exempt from criminal liability and in not acquitting him. At the trial he following facts were proven beyond a reasonable doubt: Before the day of the crime several Moro prisoners had escaped from the Penal Colony of San Ramon, Zamboanga. The residents of the barrio of Municahan of the municipality of Zamboanga were alarmed by the presence of three suspicious looking persons who were prowling around the place. The accused Fernando del Fernando who, at that time, was a municipal policeman, when passing in front of the house of one Remigio Delgado, was called by the latter's daughter Paciencia Delgado, who stated that her father wished to see him. When the policeman came up the house Remigio Delgado informed him that three unknown and suspicious looking persons, dressed remained in the said house talking with Paciencia Delgado, both being seated on a bench near the window. While they were thus talking, at about 7 o'clock at night, there appeared in the dark, at about 4 meters from the stairs, a person dressed in dark clothes, calling "Nong Miong." At the time neither the accused nor Paciencia Delgado knew who was thus calling. The accused inquired what he wanted but instead of answering he continued advancing with bolo in hand. Upon seeing this Fernando de Fernando took out his revolver and fired a shot in the air. As she saw that the unknown disappeared and ran to the house of a neighbor Leon Torres where, after placing upon a table the bolos that he carried, he fell on the floor and expired. Remigio Delgado, who was in the kitchen and had recognized the voice of the unknown, on hearing the shots ran into the parlor, took hold of the arm of the defendant and asked him why he had fired at Buenaventura Paulino. Fernando de Fernando only said "Let me go, that is a cross eyed person" and immediately repaired to the house of the teniente of the barrio, Santiago Torres, from where he telephoned to the chief of police advising him of what had happened. When the body was examined it was found that a bullet had penetrated the base of the neck at the right, imbedding itself in the left side under the skin. The status of the accused on the night in question was that of an agent of the law, to whom notice had been given of the presence of suspicious looking persons who might be the Moro prisoners who had escaped from the Penal Colony of San Ramon. The appearance of a man, unknown to him, dressed in clothes similar in color to the prisoners' uniform, who was calling the owner of the house, and the silence of Paciencia Delgado, who did not at the time recognize the man, undoubtedly caused the accused to suspect that the unknown man was one of the three persons that the owner of the house said were prowling around the place. The suspicion became a reality in his mind when he saw that the man continued ascending the stairs with a bolo in his hand, not heeding his question as to who he was. In the midst of these circumstances and believing undoubtedly that he was a wrongdoer he tried to perform his duty and first fired into the air and then at the alleged intruder. But it happened that what to him appeared to be a wrongdoer was the nephew of the owner of the house who was carrying three bolos tied together. At that psychological moment when the forces of fear and the sense of duty were at odds, the accused was not able to take full account of the true situation and the bundle of bolos seemed to him to be only one bolo in the hands of a suspicious character who intended to enter the house.

There is, however, a circumstance that should have made him suspect that the man was not only a friend but also a relative of the owner of the house from the fact that he called "Nong Miong," which indicated that the owner of the house might be an older relative of the one calling, or an intimate friend; and in not asking Paciencia Delgado who it was that was calling her father with such familiarity, he did not use the ordinary precaution that he should have used before taking such fatal action. Taking into consideration the state of mind of the accused at the time, and the meaning that he gave to the attitude of the unknown person, in shooting the latter he felt that he was performing his duty by defending the owners of the house against an unexpected attack, and such act cannot constitute the crime of murder, but only that of simple homicide He cannot be held guilty, however, as principal, with malicious intent, because he thought at the time that he was justified in acting as he did, and he is guilty only because he failed to exercise the ordinary diligence which, under the circumstances, he should have by investigating whether or not the unknown man was really what he thought him to be. In firing the shot, without first exercising reasonable diligence, he acted with reckless negligence. The crime committed by the accused, therefore, is homicide through reckless negligence defined and punished in Article 568, in relation with article 404, of the Penal Code, the penalty prescribed by law being arresto mayor in its maximum degree to prision correccional in its minimum degree. In view of the foregoing and reversing the appealed judgment, the accused is held guilty of the crime of homicide through reckless negligence, and he is sentenced to suffer one year of prision correccional, to pay the amount of P500 to the heirs of the deceased as an indemnity, with subsidiary imprisonment in case of insolvency, the costs and with credit of one-half of the preventive imprisonment already suffered. So ordered. Avancea, C.J., Street, Malcolm, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.

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G.R. No. 25071 March 25, 1926 PEOPLE OF THE PHIL. ISLANDS vs. UTO ALLI 049 Phil 73 EN BANC [G.R. No. 25071. March 25, 1926.] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. UTO ALLI, defendant-appellant.

A. L. Velilla for appellant. Attorney-General Jaranilla for appellee. SYLLABUS 1. CRIMINAL LAW; PENALTIES; PHYSICAL INJURIES RESULTING IN DEFORMITY. The penalty prescribed by paragraph 4 of article 603 of the Penal Code is applicable not only to cases of robbery where violence or intimidation employed in committing the crime is "carried to a degree unnecessary to the commission of the crime," but also to cases where in the commission of the robbery, wounds are inflicted upon the victim, which result in deformity. DECISION OSTRAND, J p: The defendant is accused of the crime of robbery with physical injuries the information alleging "that on or about May 3, 1925, in the sitio of Tikong, municipal district of Parang, Province of Sulu, Philippine Islands, the herein defendant did willfully, unlawfully, and criminally and with intent of gain, through force, violence, and intimidation upon persons, compel one Mora by the name of Ulad to deliver P20 to him, as said Mora Ulad did in fact deliver to him P2.50 by fear, and at the act of delivering said sum and on the occasion of said robbery, said defendant did willfully, unlawfully, and criminally assault and attack said Mora Ulad, striking her cut blows on the neck and other parts of the body, thus inflicting wounds on said parts of the body, which required medical attendance for over thirty days, and prevented her from performing her usual work for a like period of time, and produced deformity on her neck. That the commission of this crime was attended by the aggravating circumstance of nocturnity and of the same having been committed in the dwelling of the offended Mora Ulad." The court below found the accused guilty as charged in the information and sentenced him to suffer ten years and one day of presidio mayor and to return to the offended party the sum of P2.50, and to pay the costs. From the judgment the defendant appeals and his counsel makes the following assignments of error: "(1) That the trial court erred in not acquitting the accused on account of reasonable doubt.

"(2) That the trial court erred in finding the accused guilty of robbery under article 503 (4) of the Penal Code and sentencing him to suffer imprisonment for ten years and one day of presidio mayor, and "(3) That the trial court erred in finding the accused guilty of a crime not charged nor comprehended in the information." As to the first assignment of error it is our opinion the evidence leaves no doubt as to the defendant's guilty. It is true that the conviction rests almost exclusively upon the testimony of the offended party, but the accused was her neighbor, she had ample opportunity to identify him and, as far as the record shows, she had no motive to falsely charge the defendant with the crime. The defendant attempted to

prove an alibi, but the story does not seem very probable and his witnesses contradicted each other on important points. The second and third assignments of error rest upon an erroneous interpretation of paragraph 4 of article 503 of the Code. The paragraph reads as follows: "A penalty ranging from presidio mayor in its medium degree cadena temporal in its minimum degree, whenever the violence or intimidation employed in committing the robbery shall have been carried to a degree clearly unnecessary to the commission of the crime, or when in the course the perpetration of the crime the offenders shall have acted upon any persons not connected with its commission any of the physical injuries falling within the terms paragraphs three and four of article four hundred and sixteen."

The appellant contends that the information does not allege that violence or intimidation employed in committing the crime was "carried to a degree unnecessary to the commission on of the crime." That is true, but it is alleged in the information that the wound on the neck of the offended party caused a deformity and the lower court found that the deformity existed. This being the case, the defendant was properly convicted under the paragraph quoted in connection with paragraph 3 of article 416. The penalty imposed by the court is in accordance with law and the findings of the court below are fully sustained by the evidence. The judgment appealed from is therefore affirmed with the costs against the appellant. So ordered. Avancea, C.J., Street, Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

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G.R. No. 24988 March 25, 1926 F. M. YAP TICO & CO., LTD. vs. JOSE LOPEZ VITO 049 Phil 61 EN BANC [G.R. No. 24988. March 25, 1926.] F. M. YAP TICO & CO., LTD., plaintiff-appellant, vs. JOSE LOPEZ VITO, in his capacity as administrator of the estate of Gregorio Yulo, defendant-appellee. Powell & Hill for appellant. Gil Balagot for appellee.

SYLLABUS 1. WHEN ACCOUNT BOOKS ARE NOT COMPETENT EVIDENCE. In the absence of some evidence as to the authenticity of the entries, and as to how, by whom, and in what manner account books were kept, such books, standing alone, are not competent evidence for any purpose. 2. RULE OF CONSTRUCTION AS TO OPEN, MUTUAL, AND CURRENT ACCOUNTS. "Where there is a mutual, open, and current account consisting of reciprocal demands, the general rule is that the cause of action to recover the balance is deemed to accrue at the date of the last item proved, and that the statute of limitations runs from that time, so that if the last item on either side of the account is not barred, it 'draws to itself all the other items' which will become barred only when the statute has run against the last no matter how far back the account commenced. . . ." (Corpus Juris, volume 37, page 865.) 3. REASON FOR RULE. ". . . It is commonly stated that the main ground upon which the rule as to mutual accounts rests, independent of express statutory provision, is that every new item and credit in an account given by one party to the other is an admission that there are some unsettled accounts between them, each item within the statutory period being regarded as equivalent to evidence of a promise which takes all the prior items out of the statute. . . ." (Corpus Juris, volume 37, page 867.) 4. DISTINCTION. "The distinction between a mutual open account and a simple open account is that in the former case the bar of the statute of limitations does not begin to run until the date of the last item, while in the latter the statute run from the date of each particular item." (Corpus Juris volume 37, page 868.) 5. ACTIONS ON ACCOUNTS. "Actions on accounts. Where there is a mutual open account between two parties it is said implies that they have mutually consented that each item shall not constitute an independent debt due immediately, to be paid or enforced at once, but that the items occurring from time to time, in favor of the respective parties, shall operate as mutual set-offs, and that the shifting balance, when either or both shall call for it, shall be the debt, and for this reason the statute of limitations does not run during such a state of mutual dealings, but only from the date of the last item. . . ." (Ruling Case Law, volume 17, page 730.) 6. RULE OF INTEREST. In a case like this, plaintiff has no legal right to add the amount of annual interest to the amount of principal each succeeding year, and bring the annual interest forward, and add it to, and make it a part of, the yearly principal. DECISION STATEMENT October 14, 1910, Gregorio Yulo y Regalado, then 37 years of age, executed a mortgage to and in favor of the commercial house of Francisco Manzano Yap Tico, through its attorney-in-fact, Yap Eng Chong, on his sugar plantation, in consideration of which and at that time, the firm advanced Yulo the sum of P15,000. It was stipulated in the mortgage that the debt should draw interest at the rate of 10 per cent

per annum, and that the original debt, "as well as such obligations as are herein contained," should become due and payable about the month of May, 1911. It was contemplated by both parties that the debt should be paid by Yulo by the delivery and sale of sugar produced on his plantation. This was followed by another like instrument of date November 24,1911, including some other property, in which it is recited that "on account of the fact the fields of said haciendas were burned," and for the purpose of obtaining an extension of that debt up to 30, 1912, and to increase the credit of P15,000 by the amount of P8,000, Philippine currency, to attend to necessities of the haciendas Tongo and Napay," that the amount of the original debt should be increased to P23,000, P8,000 of which was then advanced, and that the total amount should draw interest at the rate of 10 per cent annum. It further appears that on October 22, 1922, there was a settlement between the parties in which it was agreed there was then due and owing the firm, the sum of P20,065.20. It also appears that the firm from time to time and in different amounts continued to advance money to Yulo, and that Yulo continued and at different times delivered sugar to the plaintiff; that the last money advanced to Yulo was on July 30, 1918; and that Yulo made his last delivery of sugar on May 30, 1915, amounting to P1,181.43. Apparently, such items are the last debits and credits between the parties. Yulo, having died, Jose Lopez Vito was appointed as administrator of his estate. In the ordinary course of business, Commissioners on claims were appointed to whom the firm duly presented its claim, and, for some unknown reason, no part of it was allowed.

From that decision the firm appealed to the Court of First Instance where it sought to establish its claim against the estate for P72,496.48. At the trial before the court, the parties entered in the following stipulation: "The parties agree that the chits signed by Gregorio Yulo and Meliton Fernandez represent the amounts and goods taken by said Gregorio Yulo on the date shown therein; that the defendant does not admit nor recognize such items set forth in the statement of accounts which the plaintiff presents as Exhibit C, as are not evidenced by receipts or chits signed by Gregorio Yulo or Meliton Fernandez or Jose Yulo. "That the defendant alleges as special defense in this case that plaintiff's action has already prescribed as to the amounts shown in the statement of accounts in Exhibit C taken up to October 14, 1914; that the value of the sugar delivered after October 14, 1914, must be applied upon the payment of the amounts taken by Gregorio Yulo, evidenced by chits or receipts subsequent to October 14, 1914; that the document marked Exhibit A is one signed by Gregorio Yulo on the date shown therein; that the document marked Exhibit D is one signed by Gregorio Yulo on the date shown therein; that the receipts and chits marked Exhibits B-1 to B-39 are the vouchers of the items shown in Exhibit C referred to in said receipts and chits; that Exhibit C is an abstract of the debit and credit of the account of the deceased Gregorio Yulo in the books of the plaintiff written in Chinese.

"That Exhibits E-1 to E-4 are the report of the commissioners of appraisal; the claim of the plaintiff filed with the commissioners; the notice of the hearing of the claim; and a receipt of the commissioners of the copies of chits B-1 to B-39. "That the plaintiff has made demand on the defendant for the payment of the amount claimed in the complaint and said defendant has not paid the same. "That the plaintiff corporation is the successor of F. M. Yap Tico. That with the facts herein agreed upon and the defense of the defendant, the parties submit the case to the court for judgment." The lower court held that, as to all of that portion of plaintiff's claim filed before the commissioners which was contracted prior to October 14, 1914, had prescribed under the provisions of paragraph 1, of section 43, of the Code of Civil Procedure, and upon that theory

SECOND DIVISION [G.R. No. L-50103. November 24, 1986.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO TOLENTINO, accused, HAMID DUMA, accused-appellant. The Solicitor General for plaintiff-appellee. Bienvenido G. Martin and Cecilio G. Martin counsel de oficio for accused appellant Hamid Duma. Wilfredo Ramirez for accused Leonardo Tolentino. SYLLABUS 1. CONSTITUTIONAL LAW; RIGHT OF ACCUSED AGAINST SELF-INCRIMINATION; RULE ON PRESUMPTION OF REGULARITY OF OFFICIAL ACTS RELATIVE TO ADMISSIBILITY OF STATEMENTS, ABROGATED; IN-CUSTODY CONFESSION HELD INADMISSIBLE. The Court held that appellant's incustody confession is not admissible in evidence and that the remaining circumstantial evidence does not fulfill the degree of moral certainty required to sustain the judgment of conviction. It appears that in giving credence to the confession, the trial court applied the rule in People vs. Castro, where it was stated that the burden of proof to show the involuntariness of a confession rests on the accused. The trial court concluded that since herein appellant failed "to adequately meet or put up convincingly this burden of proof," the presumption of voluntariness stands and the fact that the same was obtained from him while under arrest does not affect its admissibility. However, the Castro ruling, which is premised on the presumption of regularity of official acts, is no longer controlling in so far as it concerns the application of Section 20, Article IV of the 1973 Constitution. 2. ID.; ID.; PROSECUTION HAS BURDEN TO PROVE THAT ACCUSED DURING IN-CUSTODY INTERROGATION WAS WARNED OF HIS RIGHTS. In People vs. Duero, the Court en banc pronounced

that the rights enumerated in Section 20, except the first sentence, were adopted from Miranda vs. Arizona, a case decided by the United States Supreme Court on June 13, 1966. This Court then ruled that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence." In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionality protected rights. In Miranda, Chief Justice Warren, who delivered the opinion of the Court, laid down the rule on admissibility of statements, i.e., that 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. The heavy burden is on the prosecution because the State is responsible for establishing the isolated circumstance under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation. Precisely, the Miranda doctrine was formulated to counteract the incommunicado police-oriented atmosphere during custodial interrogation and the evils it can bring. 3. ID.; RIGHT TO COUNSEL WHEN ACCUSED IS INDIGENT; PREREQUISITE. The answer of appellant to the questions propounded to him is not the kind of waiver contemplated in Miranda, which dictates that it must be made voluntarily, knowingly and intelligently. Moreover, appellant was not informed of another absolute prerequisite that if he is indigent, a lawyer will be appointed to represent him. Without the additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey subjected to interrogation the knowledge that he too has a right to have counsel present and only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. 4. REMEDIAL LAW; EVIDENCE; PRESENCE OF ACCUSED AT THE SCENE OF THE CRIME SHORTLY AFTER ITS COMMISSION; NOT INDICATIVE OF GUILT; CASE AT BAR. While flight, when unexplained, is presumptive evidence of guilt, mere presence of the accused within the vicinity of the scene of the crime barely three hours after its commission raises no such presumption. This proposition is supported by Duma's explanation that at or about 11 o'clock in the evening of February 23, 1977, upon reaching the gate of the Weyerheauser compound on his way home, he was spotted by the investigators and then mauled. Moreover, it has not been disputed that appellant's house is situated within the Weyerheauser compound and that he has to pass through the gate of the said compound in going to and from the poblacion of Isabela, Basilan. Even assuming that appellant appeared at the office at the time when the investigation was going on, although he had no business to be there, as claimed by the prosecution, still, this has no probative value. Guilt is not imputable to Duma for his actuation is susceptible of two interpretations. Thus the time-honored principle in criminal law that if the

inculpatory facts are capable of two or more explanations, one consistent with the innocence of the accused and the other with his guilt, the Court should adopt that which is more favorable to the accused for then the evidence does not fulfill the test of moral certainty, finds application in this case. This is rightly so as every circumstance against guilt and in favor of innocence must be considered and suspicion no matter how strong should not sway judgment, for well-established is the rule that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. DECISION FERNAN, J p: In Criminal Case No. 151 of the then Court of First Instance of Basilan, Hamid Duma, Leonardo Tolentino and Romeo Palermo were accused of the crime of robbery with homicide said to have been committed as follows: "That on or about the 23rd day of February, 1977 and within the jurisdiction of this Honorable Court, viz., at the Office of the Zamboanga Coconut Planters Trading, Inc., Municipality of Isabela, Province of Basilan, Philippines, the above named accused, taking advantage of the night to better accomplish their purpose and forming a group of three [3] persons armed with axe, bolo and knife, conspiring and confederating together, aiding and assisting one another, and by means of violence and treachery, did then and there wilfully, unlawfully and feloniously, take, steal and carry away cash money in the amount of FOUR THOUSAND FOUR HUNDRED THIRTY-SEVEN PESOS [P4,437.80] and EIGHTY CENTAVOS, Philippine Currency, which money was placed inside a steel cabinet, belonging to the Zamboanga Coconut Planters Trading, Inc.; that in the commission of the crime above-described, the said accused did wilfully, unlawfully and feloniously assault, attack, hack, stab and hit with said axe, bolo and knife one Benjamin Pollisco, thereby inflicting hacked and stabbed wounds upon his body which caused his death." 1 In a decision promulgated on January 8, 1979, Romeo Palermo was acquitted on the ground of insufficiency of evidence while Hamid Duma and Leonardo Tolentino were found guilty as charged and sentenced to suffer the penalty of reclusion perpetua and ordered to indemnify the relatives of the victim the sum of P12,000.00 and the Zamboanga Coconut Planters Trading, Inc. the amount of P4,437.80 without subsidiary imprisonment in case of insolvency, in either case, and to pay the costs. The judgment of conviction against Leonardo Tolentino has become final since he did not appeal therefrom. 2 On the other hand, the Court accepted on March 21, 1979 the appeal interposed by Hamid Duma. Thus, this review will deal only with said appeal. The People narrates the facts as follows: "The Zamboanga Coconut Planters Trading, Inc. was a corporation engaged in copra buying with branch office at Isabela, Basilan [pp. 4-5, tsn., June 3, 1977: p. 145, tsn, June 9, 1977]. It had only two security guards deceased Benjamin Pollisco and accused Leonardo Tolentino [pp. 4-5, 8-9, tsn, June 3, 1977; p.

149, tsn, June 9, 1977; p. 197, tsn, July 6, 1977]. Appellant Hamid Duma and accused Romeo Palermo were laborers of the corporation [p. 5, tsn, June 3, 1977; p. 201, tsn, July 6, 1977]. "At about 6:45 p.m., on February 23, 1977, the security guard on duty was the deceased whose shift was from 3:00 p.m. to 11:00 p.m. [p. 14, tsn, June 3, 1977; p. 149, tsn, June 9, 1977; p. 198, tsn, July 6, 1977]. The shift of accused Tolentino was from 11:00 p.m. of the same day to 7:00 a.m. of the following day, February 24, 1977 [pp. 14, 29, tsn, June 3, 1977; p. 150, tsn, June 9, 1977; p. 198, tsn, July 6, 1977]. "At about 10:45 o'clock in the evening of February 27, 1977 Rasul Alibasa, the corporation's branch manager, and his assistant, Domingo Araneta, arrived at the office of the corporation where they also resided. They had just come from a conference with Benjie Arsenia at Pardo's residence [pp. 17-18, 20, tsn, June 3, 1977]. Upon entering the door of their office, they saw a body sprawled on the floor. When the light inside the building was switched on, they identified the victim as Benjamin Pollisco whose body was full of blood. They also saw the steel cabinet in their office with its first drawer forced open and deformed. The steel cabinet was pushed to the floor so that its handles were facing upward [pp. 20-25, 28, 63-66, tsn, June 3, 1977; pp. 191-192, 221, tsn, July 6, 1977]. Immediately, they reported the incident to the nearby army detachment. Araneta called up by telephone the Integrated National Police [pp. 27-28, 65, 67, tsn, June 3, 1977; pp. 192, 221, tsn, July 6, 1977; p. 359, tsn, Oct. 6, 1977].

"In a few moments, military personnel and policemen arrived. During their investigation, the police found the steel cabinet of the corporation pushed down the floor with its handles up and its top drawer forcibly opened, Of the amount of P9,437.80 inside it, P4,437.80 was gone [pp. 23-24, 43, 65, 67, tsn, June 3, 1977; p. 92, tsn, June 8, 1977; pp. 147-148, 177, 182, tsn, June 9, 1977; p. 199, tsn, July 6, 1977; pp. 362, 364, tsn, Oct. 6, 1977]. "While the police authorities were still inside the building investigating and searching the premises for possible clues, at about 11:45 o'clock that night, appellant Hamid Duma appeared at the scene of the crime with bloodstains on his shirt [pp. 30, 68, tsn, June 3, 1977; pp. 193, 221, tsn, July 6, 1977; p. 366, tsn, Oct. 6, 1977]. Cpl. Conrado Francisco of the Integrated National Police investigated him. Appellant Duma admitted having participated in the commission of the crime [Exh. "J", pp. 5-7, Folio of Exhs.; pp. 30, 33, 35, 68-69, tsn, June 3, 1977; pp. 84, 86-87, 91, 100, tsn, June 8, 1977; pp. 194, 227-234, tsn, July 6, 1977; pp. 366-367, 381, tsn, Oct. 6, 1977]. His shirt was found to be positive of human blood [Exh. "L", p. 52, rec.; p. 257, tsn, July 7, 1977]. "A few minutes later, at about 12:10 a.m., of the following day, February 24, 1977, accused Tolentino also arrived at the scene of the crime without uniform and slippers and appeared drunk and aggressive [pp. 36-37, 69-70, tsn, June 3, 1977; pp. 119-120, tsn, June 8, 1977; p. 194, 198-199, tsn, July 6, 1977; p. 369, tsn, Oct. 6, 1977]. Immediately, appellant Duma pointed at him as one of those who killed the deceased [pp. 36, 70, tsn, June 3, 1977; p. 95, tsn, June 8, 1977; p. 195, tsn, July 6, 1977; pp. 371, 418, tsn, Oct. 6, 1977]. In the course of the investigation of Tolentino by Cpl. Francisco, Tolentino likewise admitted having participated in the commission of the crime [Exh. "B," p. 46, rec.; pp. 37-39, 70, tsn, June 3, 1977]. His shirt was also found to be positive of human blood [Exh. "K", p. 52, rec.; pp. 39-40, tsn,

June 3, 1977; p. 256, tsn, July 7, 1977]. When Tolentino was searched, the police found a knife [Exh. E] tucked to his waist [pp. 42-43, tsn, June 3, 1977]. Tolentino led the lawmen to his room and showed an ax and bolo [Exh. D] under his bed [p. 39, tsn, id.]. "Both appellant Duma and accused Tolentino implicated accused Romeo Palermo as their companion in the commission of the crime. Palermo, however, denied participation [p. 53, tsn, June 5, 1978; pp. 96, 99, tsn; June 6, 1978]. When searched, Palermo had P100.00 in cash in his possession [pp. 376, 394, tsn, Oct. 6, 1977]. His shirt which was full of blood was found in the house of his parents [pp. 16-19, tsn, June 3, 1977; pp. 373-375, tsn, Oct. 6, 1977]. On the night of the incident instead of sleeping in his parent's house, Palermo slept in the house of Mrs. Selsa Montez [pp. 373-374, 393, tsn, Oct. 6, 1977; p. 23, tsn, May 16, 1978; p. 6, tsn, June 5, 1978]. "During the preliminary investigation before the Provincial Fiscal of Basilan, both appellant Duma and accused Tolentino confessed participation in the commission of the crime [Exhs. "P" and "Q", pp. 33-66 and 9-26, respectively, Folio of Exhs.; pp. 304-316, tsn, Aug. 10, 1978]. Accused Palermo, however, refused to confess and denied having participated in it [p. 64, tsn, June 6, 1978]. "A certification issued by Dr. Purita Suson, Municipal Health Officer of Isabela, Basilan, showed that the deceased suffered the following injuries: '1. 2. 3. Hacked wound, multiple, face, right. Hacked wound, temporal region, right. Stabbed wound, ear, left.

4. Contusion with abrasion face, left.' [Exhs. "G" and "H", pp. 2 and 3, respectively, Folio of Exhs. pp. 124-126, 132, 133, tsn, June 9, 1977]. His death was instantaneous due to "Hemorrhage secondary to multiple hack, lacerated and stab wounds [Exhs. "G-2" and "H-3", pp. 2 and 3 respectively, Folio of Exhs.; p. 141, tsn, June 9, 1977; p. 361, tsn, Oct. 6, 1977]. "The amount of P5,000.00 was found by Rasul Alibasa and the police officers in the first drawer of the steel cabinet mixed with other documents. It was subsequently deposited with the Office of the Municipal Treasurer [pp. 43-46, tsn, June 7, 1977]." 3 On the other hand, appellant's version of the incident is as follows: "On February 23, 1977, at or about 7:00 o'clock in the evening, appellant and some of the laborers thereof were still in the premises of the Coconut Planters at Weyerheauser, Isabela, Basilan, on account of management's order that it was expecting delivery of copra from the coconut producers from Sumisip, Basilan Province [testimony of Fausta Tagud, t.s.n., page 181, Volume I]. "When management was certain that no copra delivery was forthcoming, most of the laborers, including the herein appellant, went home or at least, left the premises of the Coconut Planters compound leaving

the manager, Rasul Alibasa alone with the deceased, Benjamin Pollisco, in the office of the Coconut Planters, Isabela, Basilan [testimony of Fausta Tagud, t.s.n. pages 175 and 184, Volume I]. "At or about 7:30 o'clock in the evening, Rasul Alibasa together with Domingo Araneta left the office of the Coconut Planters on board a motorcycle and proceeded to Sariling Atin, a restaurant located at the poblacion of Isabela, for their supper, and the only persons who were left in the office of the Coconut Planters were Benjamin Pollisco and Romeo Palermo. After taking their supper thereat, they went back to the office of the Coconut Planters for Alibasa's jacket and, thereupon, they saw Benjamin Pollisco and Romeo Palermo therein. The time was 8:10 o'clock in the evening. A little later, Alibasa and Araneta, on board a motorcycle went to Pardo's residence, a place situated nearby, on the invitation of one Benjie Arsenia for a conference. At 10:45 o'clock in the evening, or there about, Alibasa and Araneta went back to the office at the Coconut Planters, a place which was used by Alibasa as his sleeping quarter, and therein found Benjamin Pollisco, a security guard thereof, dead. [Testimony of Rasul Alibasa, t.s.n, pages 18-25, Volume I]. "Having found the dead body of Benjamin Pollisco thereat, said Alibasa and Araneta immediately sought the assistance of the police, and the army soldiers at a nearby military detachment, which was only a few meters distance from the scene of the crime. Pursuant thereto, Sgt. Mabalot of the Philippine Army and his men responded [sic] the call and about half an hour later, a team of policemen headed by homicide investigator, Corporal Conrado Francisco arrived thereat and who, thereupon, made his ocular inspection of the crime scene and other police routinary investigation thereof. "The investigation of Conrado Francisco revealed that the top drawer of the steel filing cabinet therein was forcibly opened and the money inside in the sum of P4,437.80 was missing but the sum of P,000.00 was not, however, taken and remained inside the drawer mixed with other papers and other documents therein. "In the meantime, the appellant, whose house is situated within the Weyerheauser compound, has to pass through the gate of the said compound in going to and from the poblacion of Isabela, Basilan. Incidentally, at or about 11:00 o'clock in the evening of February 23, 1977, appellant, while on his way home from a drinking joint at Tondo, Isabela, Basilan, and upon reaching the gate of the Weyerheauser compound, for no apparent reason and without provocation on his part, was mauled and assaulted by a group of soldiers there and, who thereafter, brought him to the office of the Coconut Planters for investigation in connection with the death of Benjamin Pollisco, with his mouth splattered with blood and other body injuries sustained by him as a result thereof [Testimony of Hamid Duma, t.s.n. pages 1020, Volume II]. "Appellant was immediately pointed to by Rasul Alibasa apparently on account of the blood stains splattered on appellant's shirt as a result of the body injuries sustained by him from the foregoing beatings. By reason thereof, the appellant was immediately placed under custodial investigation and focusing on him as the principal suspect in the killing and robbery of February 23, 1977 mentioned above. From 12:00 o'clock midnight of February 23, 1977 till 2:00 o'clock of the following day, appellant, in the course of the interrogation, had vomited blood and left unconscious for a period of one hour as a

result of the continuous beatings and assault upon his person by Conrado Francisco, PC Rebollos and a certain Sammy. When appellant can no longer sustain the beatings, assault, maltreatment and intimidations of death upon him by Francisco and his men, he was finally compelled to falsely admit and make untruthful statements incriminating himself and his two other co-accused. Testimony of Hamid Duma, t.s.n. pages 13-20, Volume II]. "After having falsely admitted participation in the killing of Benjamin Pollisco and the robbery therein, appellant was immediately brought to the police station by Corporal Francisco and his men after passing by the Army Battalion at Menzi, Isabela wharf; Tondo and Sta. Cruz, Isabela, Basilan. "At the police station, appellant's right hand was handcuffed by Corporal Francisco and thereafter, hanged by his right hand until only his toes were touching the floor of the police station. Appellant's statement, however, was taken at the police station by Corporal Francisco at 2:20 o'clock in the morning of February 24, 1977 as borne out in Exhibit "J" for the prosecution and admission of Corporal Conrado Francisco [Cross-examination on Conrado Francisco, t.s.n. page 4-8, Volume I]. On the same date, appellant was brought before Ruben Ramos, Clerk of Court II, Municipal Court of Isabela, Basilan before whom the statement of appellant was sworn to and subscribed. The appellant simply did not register his complaint to the said clerk of court indicating the circumstances under which Exhibit "J" was taken for fear of his life and other forms of intimidations by Corporal Francisco should appellant show the slightest sign of non-conformity in affixing his signature in the prepared statement [Exhibit "J"] before Ruben Ramos [Testimony of Hamid Duma, t.s.n. pages 4-30, Volume II]. Thereafter, appellant was held incommunicado (sic) for the period of one week. "On March 5, 1977, in a preliminary investigation conducted by the Provincial Fiscal of Basilan, the appellant and his co-accused were not assisted by counsel or informed of such right nor were they informed of their right to remain silent pursuant to Section 20, Article IV of the 1973 Constitution [Crossexamination on [sic] Pelagio Santos, t.s.n., pages 325, Volume I, S. Manzanaris]. And while the Provincial Fiscal had not intimidated appellant and his two other co-accused into submitting themselves to preliminary investigation, the presence of Corporal Conrado Francisco, who remained outside of the Fiscal's Office and monitoring the proceedings therein to the mind of the appellant, was enough intimidation to himself into repeating the untruthful statements treated in Exhibit "J" during the preliminary investigation." 4 Since there was no eyewitness to the commission of the crime, the trial court, in assessing the evidence, accorded importance to [a] the in-custody confession of appellant which it characterized as voluntary; [b] the circumstance that appellant's shirt [Exhibit "O"]) was "found to be with human blood"; and [c] the circumstance that appellant, who was an ordinary laborer of the Zamboanga Coconut Planters Trading, Inc. "appeared at the office at 11:45 in the evening of February 23, 1977 when it was not his duty to go to the office at that time for as stated by witnesses both for the prosecution and the defense, that at 6:45 p.m., the laborers were informed that no copra would be forthcoming and that they could go home." 5

The main thrust of appellant Duma's arguments is that the trial court erred in convicting him on the basis of his extrajudicial confession [Exhibit "J"] allegedly obtained in violation of Section 20, Article IV of the 1973 Constitution, which provides: "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." Appellant claims that his confession should have been ruled out as evidence as it was extracted "as a result of torture, intimidation, force, threats, violence and coercion upon his person" and without the assistance of counsel. After a careful review of the records, we find for the appellant. We hold that this in-custody confession is not admissible in evidence and that the remaining circumstantial evidence does not fulfill the degree of moral certainty required to sustain the judgment of conviction. It appears that in giving credence to the confession, the trial court applied the rule in People vs. Castro, 6 where it was stated that the burden of proof to show the involuntariness of a confession rests on the accused. The trial court concluded that since herein appellant failed "to adequately meet or put up convincingly this burden of proof," the presumption of voluntariness stands and the fact that the same was obtained from him while under arrest does not affect its admissibility. However, the Castro ruling, which is premised on the presumption of regularity of official acts, is no longer controlling in so far as it concerns the application of Section 20, Article IV of the 1973 Constitution. In People vs. Duero, 7 the Court en banc pronounced that the rights enumerated in Section 20, except the first sentence, where adopted from Miranda vs. Arizona, 8 a case decided by the United States Supreme Court on June 13, 1966. This Court then ruled that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. "In effect, the Court not only abrogated the rule on presumption of regularity of official acts related to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionality protected rights. In Miranda Chief Justice Warren, who delivered the opinion of the Court, laid down the rule on admissibility of statements, i.e., that 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. 9 The heavy burden is on the prosecution because the State is responsible for establishing the isolated circumstance under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation. 10 Precisely, the Miranda doctrine was

formulated to counteract the incommunicado police-oriented atmosphere during custodial interrogation and the evils it can bring. 11 Prescinding from these principles, the U.S. Supreme Court enumerated the procedural safeguards which must be adhered to as follows: cdphil "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. "The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. "An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. "In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at anytime prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly waived his privilege against self-incrimination and his right to retained or appointed counsel." 12 The admission of appellant Duma's in-custody confession having been based on an abandoned doctrine, there is a need to re-evaluate the evidence of the prosecution. The Solicitor General maintains that the appellant was duly informed of his constitutional rights to remain silent and to counsel. However, the following revealing testimonies of at least three of the prosecution witnesses indicate otherwise: Cpl. Conrado Francisco, before whom the statement was taken, testified: "Q. Do you expect, Mr. Francisco, that Hamid Duma could possibly communicate at 2:20 in the morning of February 24, 1977 to any member of the bar at least to assist him in the investigation conducted by you on February 24, 1977?

A. As it is stipulated therein that if he is willing to hire or look for a counsel to assist him in the investigation or the investigator concerned will be the one to afford him. Q. Why do you have to conduct this investigation at 2:20 in the morning of February 24, 1977 when you could have waited, let's say, at 8:00 o'clock, 9:00 o'clock or 10:00 o'clock in the morning so that he could, at least, have a chance to look for or to, at least, look for a lawyer or to inform his relatives requesting for assistance of a lawyer in the investigation? A. I would like to tell this Honorable Court that element of time is very important, sir." [Vol. I, T.S.N., October 6, 1977, pp. 432-433] (Emphasis supplied). Ruben Ramos, the Clerk of Court, before whom the statement was subscribed and sworn to stated: "Q. The affiant was not aided nor accompanied by a counsel when he appeared before you to sign this document? A. Q. I have not seen any counsel. My question is, was be accompanied or aided by counsel?

A. No, he was not accompanied. He was only brought in by the interpreter. [Vol. I, T.S.N., July 6, 1977, pp. 236-237]. Q. According to you, you only asked of him that whatever statement embodied in Exhibit "J" may or may not be used against him and he voluntarily said that the statement as embodied in Exhibit "J" are voluntary? A. Q. Yes. And on that basis, he signed this statement?

A. And I asked him whether he was willing to sign his statement and he said he is signing that voluntarily. Q. A. Q. A Q. He was not assisted by any counsel? Not. Of course, yon did not inform him that he has a right to be presented by counsel? I did not inform him any more inasmuch as the Judge was there. You did not inform him whether he can remain silent or he can refuse?

A. I informed him. That is why I said he can sign or not sign that document and he said he is willing to sign.

Q. You did not inform him that he has a right to be represented by counsel because Judge Principe was present at the time when he signed this document? A. I did not bother." [Vol. I, T.S.N., July 7, 1977, pp. 243-244]. (Emphasis supplied)

Pelagio S. Santos, the Court Stenographer of the Court of First Instance of Basilan who acted as stenographer in the preliminary investigation conducted in the office of the Provincial Fiscal on March 5, 1977, declared: "Q. At the start of this investigation all the three accused in this case were not represented by counsel? A. No, sir.

Q. And were they informed by the Provincial Fiscal of Basilan to the effect that they are entitled to counsel considering the nature or gravity of the case they are being subjected to at that time? FISCAL SAAVEDRA: I think the best evidence, Your Honor, I would like to object on the question. The best evidence is the record of the stenographic notes. xxx COURT: Then the record is the best evidence. However, if you will ask the question not in relation to the record, you may be allowed. xxx xxx xxx xxx xxx

A. No, sir, because if they were informed it will be reflected on the record." [Vol. I, T.S.N., October 6, 1977, pp. 321-322] (Emphasis supplied) The statement of Hamid Duma given to Cpl. Francisco in the Office of the Investigation Section on February 24, 1977 at 2:20 a.m. contains the following preliminaries: "PRELIMINARY: You are under investigation for the murder of BENJAMIN POLLISCO, of legal age, married, Security Guard of the Zamboanga Coconut Planters, Basilan Branch, and a resident of San Rafael St., Isabela, Basilan Province. You have the right to remain silent, anything you may declare hereof may be used in evidence against you. You have the right to assistance/presence of a counsel at your own choice. Q. A. Do you want to declare in this investigation or you want to remain silent? Yes, sir, I will declare in this investigation.

Q.

Do you need the assistance/presence of a counsel in this investigation?

A. No, sir, I do not need the assistance/presence of a counsel in this investigation for what I will declare here is the truth and nothing but the whole truth. 13 Assuming that the foregoing questions were propounded to appellant despite the latter's assertion to the contrary, still, it is not the kind of waiver contemplated in Miranda, which dictates that it must be made voluntarily, knowingly and intelligently. Moreover, appellant was not informed of another absolute prerequisite that if he is indigent, a lawyer will be appointed to represent him. Without the additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent the person most often subjected to interrogation the knowledge that he too has a right to have counsel present and only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. 14 Since the prosecution utterly failed to demonstrate compliance with the procedural safeguards, the Court finds the extrajudicial confession objectionable and therefore inadmissible in evidence for being in violation of the inhibition against compulsory self-incrimination. With the exclusion of the confession of Duma, there is no necessity to deliberate on the appellant's allegations of intimidation and maltreatment which attended its execution. As aforesaid, the other circumstantial evidence failed to produce the degree of moral certainty to overcome the constitutional presumption of innocence of the appellant. The prosecution inferred that the appellant must be guilty of the crime charged because of the bloodstains on his shirt. However, this circumstance merits scant consideration, there being no other evidence to support the inference. Prosecution witness Oliva Perez, the forensic chemist of the PC Criminal Laboratory who conducted a test on the bloodstains, testified that she failed to ascertain the blood type on the shirt. 15 She further testified that the blood type of the deceased was also not determined because when the specimen reached the laboratory, it was already "putrified and rendered unsuited for examination." 16 Hence, the tests neither confirmed nor refuted appellant's claim that the blood stains were that of his own. While flight, when unexplained, is presumptive evidence of guilt, mere presence of the accused within the vicinity of the scene of the crime barely three hours after its commission raises no such presumption. This proposition is supported by Duma's explanation that at or about 11 o'clock in the evening of February 23, 1977, upon reaching the gate of the Weyerheauser compound on his way home, he was spotted by the investigators and then mauled. Moreover, it has not been disputed that appellant's house is situated within the Weyerheauser compound and that he has to pass through the gate of the said compound in going to and from the poblacion of Isabela, Basilan. cdll

Even assuming that appellant appeared at the office at the time when the investigation was going on, although he had no business to be there, as claimed by the prosecution, still, this has no probative value. Guilt is not imputable to Duma for his actuation is susceptible of two interpretations. Thus the time honored principle in criminal law that if the inculpatory facts are capable of two or more explanations, one consistent with the innocence of the accused and the other with his guilt, the Court should adopt that which is more favorable to the accused for then the evidence does not fulfill the test of moral certainty, finds application in this case. 17 This is rightly so as every circumstance against guilt and in favor of innocence must be considered and suspicion no matter how strong should not sway judgment, for well-established is the rule that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. 18 Finally, in People vs. Peralta, 19 it was held that the presence of the accused in the place in question shortly after the commission of the offense is a circumstance favorable to him, because, as a general rule, the wicked flee when no man pursueth, but the righteous are as bold as a lion. WHEREFORE, the decision of the Court of First Instance of Basilan in Criminal Case No. 151 is hereby REVERSED and the appellant Hamid Duma is ACQUITTED of the crime charged on grounds of reasonable doubt, with costs de oficio. In view of the circumstances obtaining in the case which cast doubt on the validity and admissibility of the statements of the co-accused Leonardo Tolentino who was likewise convicted by the trial court but who for reasons not shown in the record failed to appeal, let a copy of this decision be furnished the Honorable Minister of Justice for possible recommendation of executive clemency. 20 SO ORDERED. Feria, Alampay, Gutierrez, Jr. and Paras, JJ ., concur. Footnotes 1. p. 6, Rollo.

2. Apparently, accused Leonardo Tolentino was confident that his conviction had been appealed to this Court. In a letter dated April 4, 1980, he moved to withdraw his appeal. Said letter was noted by the Court and Tolentino was accordingly informed that "there was no appeal to withdraw." 3. 4. 5. 6. 7. 8. pp. 3-7, Brief for the Appellee. pp. 3-8, Brief for the accused-appellant. p. 17, Rollo. 11 SCRA 699. 104 SCRA 379. 384 U.S. 436, 16 l. Ed. 2nd 694.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Miranda vs. Arizona, supra, p. 706. [Underscoring supplied]. Miranda vs. Arizona, supra, p. 724. Miranda vs. Arizona, supra, p. 713. Miranda vs. Arizona, supra, pp. 720-724. Exhibit "J", p. 5, Original Exhibits. Miranda vs. Arizona, supra, p. 723. Vol. I, t.s.n., July 7, 1977, p. 261. Vol. I, t.s.n., July 7, 1977, p. 272. People vs. Santos, 85 SCRA 630. People vs. Clores, 125 SCRA 67, citing People vs. Inguito, 117 SCRA 641. 67 Phil. 293. People vs. Inguito, 117 SCRA 641.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 74243 November 14, 1986 ASUNCION SANTOS vs. INTERMEDIATE APPELLATE COURT, ET AL. SECOND DIVISION [G.R. No. 74243. November 14, 1986.] ASUNCION SANTOS, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT AND GAVINO RAMOS, respondents. SYLLABUS 1. REMEDIAL LAW; APPEALS; ISSUES NOT INVOKED IN THE TRIAL COURT CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL. The question of whether or not a petition for declaratory relief is the proper action was never raised by petitioner in her answer or in any of the pleadings before the trial court. This court in several decisions has repeatedly adhered to the general principle that points of law, theories, issues of fact, and arguments not adequately brought to the attention of the trial court need

not be, and ordinarily will not be, considered by a reviewing court, as they cannot be raised for the first time on appeal. 2. ID.; EVIDENCE; FINDINGS OF FACT OF TRIAL COURT UPHELD; CASE AT BAR. The findings of facts of the lower court will readily show that sufficient documentary evidence supports private respondent's allegation that the deed of sale of Lot 559-B, Hermosa Cadastre, is nothing but a substitute of the Deed of Sale of Lot 1317 Hermosa Cadastre. The court a quo rendered a decision based on the evidence adduced at the trial. The trial court extensively considered all the evidence presented during the proceedings that transpired substantially. The lower courts inquired into the nature and validity of the title over the property although the action was titled one of declaratory relief. We find no plausible reason to reverse the finding of facts of the appellate tribunal. DECISION PARAS, J p: This is a petition for review by way of appeal by certiorari of the judgment of the Intermediate Appellate Court (now Court of Appeals) affirming the decision of the trial court in a petition for declaratory relief. Private respondent herein, Gavino Ramos, was the petitioner for declaratory relief in the trial court while petitioner herein, Asuncion Santos, was the respondent. Judgment was for Ramos. In affirming the trial court's decision, the appellate court made the following findings: llcd "After a careful examination of the evidence on the record, we find no merit in this appeal. There is no question that petitioner executed two deeds of sale in favor of respondent. The first covering Lot 1317 dated August 28, 1961 (Exh. "A") and the second covering Lot 559-B dated September 24, 1964 (Exh. "B"). We find, however, that the second sale was merely in substitution of the first as tit