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

BENEDICTO DAPITAN y MARTIN, @ "Benny" and FRED DE GUZMAN, accused. BENEDICTO DAPITAN y MARTIN @ "Benny", accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

The scheduled hearing of 9 March 1987 was cancelled and reset to April 13, 1987 in view of the required vacation leave of absence of the judge. On 13 April 1987, upon motion of the prosecution and the defense in view of the projected settlement of the civil liability 5 of this case, the hearing was reset to 19 May 1987. On that date, however, counsel de oficio for the accused did not appear, hence "a report on the projected settlement of the civil aspect of the case cannot be made" and the hearing 6 was reset again to 15 June 1987 which schedule was later on cancelled due to the compulsory retirement of the 7 presiding judge (Judge Conrado Beltran) which took effect on 7 June 1987. In the meantime, Judge Francisco C. Rodriguez, Jr. presided over the trial court
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The initial reception of evidence took place on 24 August 1987 with the accused-appellant represented by Atty. Benjamin Pozon, also of the CLAO. On various dates thereafter, hearings were had until the parties completed the presentation of their evidence. Witnesses Orencia Amil and Cpl. Rodolfo Rivera for the prosecution testified during the incumbency of Judge Rodriguez. The rest testified before Judge Edilberto H. Noblejas who succeeded Judge Rodriguez. On 5 May 1989, the trial court promulgated its Decision the dispositive portion of which reads: WHEREFORE, premises considered, after appraising the evidence presented by the prosecution and the evidence of the defense, the Court finds the accused BENEDICTO DAPITAN y MARTIN GUILTY BEYOND REASONABLE DOUBT of the crime of ROBBERY WITH HOMICIDE, punishable under Article 294, par. 1 of the Revised Penal Code and sentences him to suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the victim Rolando Amil in the amount of Thirty Thousand (P30,000.00) Pesos, without subsidiary imprisonment in case of insolvency. With respect to the case against FRED DE GUZMAN, the records of the case insofar as he is concerned is hereby ordered ARCHIVED to be revived upon his arrest when he may be heard to answer for the offense charged. On 11 May 1 989, accused-appellant filed his Notice of Appeal, manifesting therein that he was appealing the decision to this Court. 10 However, in the Order of 11 May 1989, Judge Cipriano de Roma erroneously directed the transmittal of 11 the records of the case to the Court of Appeals. The Court of Appeals transmitted to this Court on 4 March 1989 the records which were erroneously transmitted to it. 12 In this appeal accused-appellant assigns only one error: THE TRIAL COURT ERRED IN NOT APPLYING THE INDETERMINATE SENTENCE LAW THAT FAVORS THE ACCUSED APPELLANT. 12 He is thus deemed to be in complete agreement with the findings and conclusion of facts by the trial court which We quote: The evidence adduced by the prosecution more than prove with moral certainty the guilt of the accused Benedicto Dapitan for the crime of ROBBERY WITH HOMICIDE. While there may be no direct evidence linking the accused to said crime, the witnesses who testified more than fully satisfy the requirements for conviction on the basis of circumstancial evidence, because it affords enough basis for a reasonable inference of the existence of the fact thereby sought to be proved, that the accused performed the criminal act. Orencia Amil, principal witness for the prosecution testified that at around 8:30 in the morning of May 16, 1986, she left for her farm which was about 50 meters away, leaving behind in her house his adopted son Rolando (the victim) very much alive.(TSN, page 5, hearing of August 24, 1987) who refused to go with her because he chose to play in the house instead; and that because she heard the barking of her dog which aroused her suspicion, she immediately returned and saw the accused Benedicto Dapitan and his co-accused Fred de Guzman passing through her fence (TSN, pp. 5-6, hearing of August 24, 1987); and that when she entered her house calling her child's name, and seeing the backdoor open, she entered and saw Rolando's body sprawled on the floor and his brain "scattered". Near his body was a piece of wood, also bloodied. Thinking her son to be still alive she took her in her arms, placed him on the table and that was the time she realized he was dead. (TSN pages 6-7, hearing of Aug. 24, 1987).
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DAVIDE, JR., J.:p This is an appeal from the Decision of the Regional Trial Court of Rizal (Branch 75, San Mateo) 4th Judicial Region, finding the accused-appellant guilty of the crime of Robbery with Homicide and sentencing him to: . . . suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the victim Rolando Amil in the amount of Thirty Thousand (P30,000.00) Pesos, without subsidiary imprisonment in case of 1 insolvency. Only the accused-appellant was tried. His co-accused, Fred de Guzman, remained at large and the court ordered the archival of the case as against him, to be revived upon his arrest. The information filed with the court a quo on 7 August 1986 against accused-appellant and his co-accused reads in part as follows: That on or about the 16th day of May, 1986, in Barangay San Rafael, Municipality of Rodriguez (formerly Montalban), Province of Rizal, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused conspiring and confederating together and mutually helping and aiding one another, with intent to gain, armed with deadly weapon and by means of force and violence, then and there willfully, unlawfully and feloniously took, robbed/stole and carried (sic) away two (2) pieces of men's watches worth One Thousand One Hundred Eighty Eight Pesos (P1,188.00), one (1) pair of long pants worth Two Hundred Fifty Pesos (P250.00) and cash money in the amount of Seventy Five Pesos (P75.00) belonging to Orencia E. Amil, without the knowledge and consent of said owner and to her damage and prejudice in the total amount of One Thousand Five Hundred Thirteen Pesos (P1,513.00), Philippine Currency; that on the occasion of the said robbery and for the purpose of enabling them to take, steal and carry away the above-mentioned articles, the herein accused in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously, with evident premeditation and taking advantage of their superior strength and with intent to kill, treacherously attack, assault and employ personal violence upon the person of Rolando Amil (an eight year old child) by stabbing him on the neck and hitting him several times on the head with a piece of wood, to prevent him from making an outcry, thereby inflicting upon him physical injuries which directly caused his death. 2 When arraigned on 25 November 1986 with the assistance of counsel de oficio, Atty. Magsanoc, accused entered a plea of not guilty. 3 At the scheduled hearing on 10 February 1987, new counsel de oficio for the accused, Atty. Gabriel Alberto of the Citizens Legal Assistance Office (CLAO) of San Mateo, Rizal, manifested that the accused had expressed to him the desire to enter a plea of guilty to a lesser offense. The court forthwith issued an order reading as follows: Atty. Alberto of CLAO and de oficio counsel for the accused manifested that the accused has manifested his desire to make a plea of guilty to a lesser offense but the circumstances are yet to be made in details. It appears that there are two mitigating circumstances that maybe applied. The Prosecuting Fiscal made no objection but also manifested that he has to look into the penalty applicable. The counsel for the accused and the Prosecuting Fiscal jointly moved that the hearing of this case be reset to another date. WHEREFORE, reset the hearing of this case for March 9, 1987 at 9:30 A.M. . . . .
4

She likewise testified that she lost two watches worth P1,180; pants at P250.00 and cash amounting to P75.00; and after her son's burial she further found that her child's toy worth P500.00, a flashlight and a bolo worth P45.00 and P120.00, respectively, were missing. (TSN, pages 8-9, hearing of August 24, 1987). Orencia Amil's testimony is likewise corroborated on its material points by the testimony of Celo Nilo, another prosecution witness. He testified that between the hours of 8:00 to 9:00 in the morning of May 16, 1986, he saw two persons entering the house of Mrs. Orencia Amil, one of whom he identified as Benedicto Dapitan, (TSN, pages 4-5, hearing of October 26, 1987). He positively identified Benedicto Dapitan who was in Court (TSN, pages 5-6, hearing of October 26, 1987). He likewise testified that when the two suspects entered the house of Mrs. Amil, he heard the voice of a child. In the statement he gave the police investigators (Exhibit B) which he confirmed when he testified, pertinent portions of which are herein quoted, he said: xxx xxx xxx T Noong May 16, 1986, sa pagitan ng ika 8:00 ng umaga, natatandaan mo ba noon kung saan ka naroroon? S Ako po ay galing sa aming bahay at ako po ay patungo sa bundok para magtanim po ng punong saging. xxx xxx xxx T Noong ikaw ay papadaan sa malapit sa bahay ni Orencia Amil, wala ka bang napansin na tao na nagtungo doon sa kanilang bahay.? S Mayroon po. T Nakilala mo ba naman kung sinong tao ang iyong nakita na dumaan doon sa bahay nina Mrs. Orencia Amil? S Iyon lang pong isang tao ang aking kilala na dumaan doon sa bahay nina Mrs. Orencia Amil na si Benny Dapitan na ang tirahan po ay doon po rin sa Sitio Tabak, Brgy. San Rafael, R/R, pero iyon pong isa na kasama ni Benny Dapitan ay hindi ko po kilala sa kanyang tunay na pangalan. T Ilan bang tao ang iyong nakita na nagpunta doon sa bahay ni Mrs. Orencia Amil? S Dalawang tao po.

1. That the victim, Rolando Amil, was alive when her mother left her as testified to by Orencia Amil and witness Celo Nilo, who cry out when the two suspects entered the house. (Testimony of Orencia Amil) 2. That the accused Benedicto Dapitan and an unidentified companion entered the house at a time when Mrs. Amil had already left, and that the victim, at the time, was still alive. (Testimonies of Celo Nilo & Orencia Amil) 3. That when Mrs. Amil returned at quarter to nine she saw Benedicto Dapitan and Fred de Guzman leaving the premises.(Testimony of Orencia Amil) 4. And that when Mrs. Amil entered her house, the victim, Rolando Amil, was already dead. (Testimony of Orencia Amil) As gleaned from the records, witness Orencia Amil was straightforward in her testimony. She remained steadfast even on cross-examination, and there is nothing on record concerning her testimony which would leave the court in doubt as to the truth of what she testified to. Her testimony therefore, relative to the circumstances transpiring at the time she left the house at 8:30 a.m. up to the time she returned at quarter to nine engenders belief. Celo Nilo's testimony was likewise made in the same vein as that of Orencia Amil. This witness was not shown to have cause to perjure himself on a serious crime against the accused. As the Court observed during the trial, his testimony, based on his demeanor when he testified, is impressed with a ring of veracity. The Court did not give credit to the testimony of Patrolman Rodolfo Rivera except on the fact that he conducted an investigation. No value whatsoever was given to the sworn statement of Benedicto Dapitan, even as to the portion in said testimony, where Benedicto Dapitan admitted being present when Fred de Guzman allegedly hit the victim on the head and that the stolen articles were in the possession of Fred de Guzman, because as wisely put by defense counsel, the sworn statement was taken in violation of the constitutional rights of the accused. In sum, therefore, there can be no other inference from the evidence presented by the prosecution considering the short span of time the victim Rolando Amil was left alive by his mother, and her return fifteen (15) minutes later to find him dead and the testimony that the accused was seen entering and leaving the premises during this intervening period, except the inevitable conclusion that the accused is responsible for the death of Rolando Amil. For his part, the accused Benedicto Dapitan interposes the defense of "alibi". This, he sought to establish through the testimony of witness Ismael Anacio. Pertinent portion of the witness' testimony, is herein quoted, to wit: xxx xxx xxx

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

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

T Matapos na makita mo si na si Benny Dapitan at iyong isa niyang kasama ay pumasok doon sa bahay, ano pa ang sunod na pangyayari? S Akin pong nakita na matapos na sila ay makapasok sa loob ng bahay ni Mrs. Amil ay kanila pong isinara iyong pintuan noong bahay, at hindi ko po naman sila pinansin at ako po ay nagpatuloy na sa aking pupuntahan. xxx xxx xxx T Matapos na makapasok iyong sina Benny Dapitan doon sa bahay, wala ka ba namang narinig na sigaw ng isang bata? S Mayroon po pero hindi ko po pinansin. (Emphasis supplied). xxx xxx xxx The testimonies of these two witnesses, evaluated together, on what transpired in the morning of May 16, 1986, between the hours of 8:00-9:00 a.m. attest to the existence of the following facts:

Q Was there any occasion when this Benedicto Dapitan left your house during that period? A None, sir. (TSN, pages 3-5, hearing of September 12, 1988). The testimony of witness Ismael Anacio, a salesman by occupation, that defendant Benedicto Dapitan, from May 16 to May 19, 1986, was in his house all the time, and that there was no occasion that he left the place during this period does not spark belief. In the first place, the witness wants the Court to believe that he was in his house during all the time so that he could during all the days alluded to, be in a position to be positive as to the whereabouts of the accused. This circumstance alone generates doubt on his testimony, because it was not explained why the witness, a salesman by occupation, would be in his house from the period beginning May 16-19, 1986 (TSN, pages 2-3, hearing of September 12, 1988). Assuming though, for the sake of argument, that the witness actually monitored the whereabouts of the accused during all the time, his testimony sustaining Benedicto Dapitan's defense of "alibi" cannot defeat the positive identification made of Benedicto Dapitan and of his presence in Montalban on May 16, 1986, by witness Orencia Amil and Celo Nilo. Even on this score alone, without taking into consideration that Sampaloc District where he allegedly was, is

geographically not so far from Montalban, from where he could have commuted through the ordinary means of 14 transportation present in the area, his defense of "alibi" naturally falls, so that his conviction is reasonably called for. In support of the assigned error accused-appellant argues that the imposition over him of the penalty of reclusion temporal by the trial court is "tantamount to deprivation of life or liberty without due process of law or is tantamount to a cruel, degrading or inhuman punishment prohibited by the Constitution" and he submits that "the righteous and humane punishment that should have been meted out should be indeterminate sentence" with "all mitigating circumstances as well as the legal provisions favorable to the accused-appellant . . . appreciated or . . . taken advantage for constructive and humanitarian reasons." He stresses that since mitigating circumstances are based on, among others, the lesser perversity of the offender, such should be appreciated in his favor since he had "a companion then when he entered 15 Mrs. Orencia Amil's house and perpetrated the offense. And it was his companion or mate by the name of Fred de Guzman who took the personal belongings of Mrs. Amil as the men's watch worth P1,188.00. It was Fred de Guzman 16 who is still at large who stabbed and hit the head of Rolando Amil. These facts or circumstances reveal that accusedappellant had a "lesser perversity than his companion Fred de Guzman." As evidence of such lesser perversity, "he did not flee or hide himself from the authorities. . . . within two (2) days' time he surrendered voluntarily to the police 17 authorities . . . ." Thus, the "mitigating circumstance ofvoluntary surrender must be considered" in his favor. He prays that he be sentenced to an indeterminate penalty ranging from twelve (12) years and one (1) day ofreclusion 18 temporal, as minimum, to reclusion perpetua as maximum. Meeting squarely the points raised by the accused-appellant, the People, in the Brief for Plantiff-Appellee submitted by the Solicitor General on 9 June 1990, asserts that the same are without merit for the accused was not deprived of due process as he was, as admitted by him, afforded full opportunity to be heard; for a penalty to be cruel, degrading or inhuman, "it must take more than merely being harsh, excessive, out of proportion, or severe. . . . ; it must be flagrantly 19 and plainly oppressive, disproportionate to the nature of the offense as to shock the moral sense of the community or when they involve torture or lingering death" 20 and since the penalty ofreclusion perpetua imposed on him is sanctioned by law, Act No. 3815 as amended, otherwise known as the Revised Penal Code, said penalty is not cruel, degrading or inhuman. It further argues that the special complex crime of robbery with homicide defined under Article 294, par. 1, of the Revised Penal Code is punishable with reclusion perpetua to death; with the abolition of the death penalty by the 1987 Constitution, the only penalty imposable upon a person found to have committed such complex crime is the single penalty of reclusion perpetua, which is an indivisible penalty. Under Article 63 of the Revised Penal Code it should be applied regardless of the presence of any mitigating or aggravating circumstances. As regards the Indeterminate Sentence Law, the People submits that the accused-appellant cannot avail of it since Section 2 of the law (Act No. 4103) specifically provides that it shall not apply to, among others, persons convicted of offenses punished with death penalty or life imprisonment. We find the instant appeal to be totally bereft of merit. There was no denial of due process. Due process is satisfied if the following conditions are present: (1) there must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired by it over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. 21 In People vs. Castillo, et al., 22 We ruled that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with opportunity to be heard, and a judgment awarded within the authority of the constitutional law, then he has had due process . 23 We reiterated the above doctrine in People vs. Muit. 24 All the requisites or conditions of due process are present in this case. The records further disclose that accusedappellant was given the fullest and unhampered opportunity not only to reflect dispassionately on his expressed desire to plead guilty to a lesser offense which prompted the court to cancel the hearing of 10 February 1987, but also to confront the witnesses presented against him and to present his own evidence. If indeed accused-appellant had been deprived of due process, he would have faulted the trial court not just for failure to apply the Indeterminate Sentence Law, but definitely for more. Yet, he found it futile to go any farther.

Neither is the penalty of reclusion perpetua cruel, degrading, and inhuman. To make that claim is to assail the constitutionality of Article 294, par. 1 of the Revised Penal Code, or of any other provisions therein and of special laws imposing the said penalty for specific crimes or offenses. The proposition cannot find any support. Article 294, par. 1 of the Revised Penal Code has survived four Constitutions of the Philippines, namely: the 1935 Constitution, the 1973 Constitution, the Freedom Constitution of 1986 and the 1987 Constitution. All of these documents mention life 25 imprisonment or reclusion perpetua as a penalty which may be imposed in appropriate cases. As a matter of fact, the same paragraph of the section of Article III (Bill of Rights) of the 1987 Constitution which prohibits the imposition of cruel, degrading and inhuman punishment expressly recognizesreclusion perpetua. Thus: Sec. 19(l). Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall the death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides it. Any death penalty already imposed shall be reduced toreclusion perpetua. As to the appreciation of mitigating circumstances, We also agree with the Solicitor General that since robbery with homicide under paragraph 1 of Article 294 of the Revised Penal Code is now punishable by the single and indivisible penalty of reclusion perpetua in view of the abolition of the death penalty, it follows that the rule prescribed in the first 26 paragraph of Article 63 of the Revised Penal Code shall apply. Consequently, reclusion perpetua must be imposed in this case regardless of the presence of mitigating or aggravating circumstances. The trial court correctly imposed on the accused the penalty of reclusion perpetua. The civil indemnity awarded by the trial court should, in line with Our decision in People vs. Sison, G.R. No. 86455, 14 September 1990, and People vs. Sazon, G.R. No. 89684, 18 September 1970, be increased from P30,000.00 to P50,000.00. WHEREFORE, except as modified above in respect to the civil indemnity, the decision appealed from is AFFIRMED in toto, with costs against accused-appellant. SO ORDERED. Fernan C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

2 = G.R. No. 48108 September 26, 1990 AMELITO R. MUTUC, petitioner, vs. COURT OF APPEALS, GEN. MANUEL T. YAN & BRIG. GEN. VICENTE RAVAL, respondents. Amelito R. Mutuc for and in his own behalf.

Reconsideration Arguing that Medina's detention is illegal, Mutuc sought the reconsideration of the Court of Appeals order. The Solicitor General's office opposed this latest motion and this is now pending before the Court of Appeals. Mutuc said in his statement "It is unthinkable, deplorable and shocking to see in our midst-in a country which has prided itself as being a proud example of a vibrant democracy and a firm adherent to the rule of law-this sad spectacle of a man kept illegally for 165 days without any criminal complaint pending against him."

PARAS, J.: Extremely Dubious This is a petition for certiorari and prohibition with preliminary injunction praying that the resolutions of respondent court in CA-G.R. No. 42658-R of June 21, 1969, ** October 24, 1977, *** January 26, 1978 and March 28, 1978, requiring petitioner to show cause why he should not be held liable and dealt with for contempt of court and be suspended from the practice of law be declared null and void and to make permanent the writ of preliminary injunction. The pertinent facts of the case as summarized in the June 21, 1969 resolution of the Court of Appeals, are as follows: On March 13, 1969, the Fourth Division of the Court of Appeals promulgated a resolution fixing at P5,000.00 the amount of the bond for the provisional release of Fortunato Medina, petitioner-appellee in CA-G.R. No. 42658-R, pending appeal by the respondents to said court, such bond being required by the provisions of Section 20, Rule 41 of the Rules of Court. On April 16, 1969, the said Division required the Solicitor General to answer the motion for reconsideration filed by the petitioner-appellee on March 28, 1969. On May 2, 1969, the Solicitor General filed an opposition thereto in Manila, when the Fourth Division was holding session in Baguio City, which was actually received in Baguio City on May 20, 1969. On June 10, 1969, the petitioner-appellee's motion for reconsideration of March 28, 1969 was denied for lack of merit, the requirement of the bond for his release being mandatory and indispensable. But before the Court of Appeals could act on petitioner's motion for reconsideration the following news article attributed to Atty. Amelito Mutuc, counsel of record of petitioner-appellee, appeared in the May 8, 1969 issue of the Manila Times, pages 1 and 22-A thereof: Mutuc Hits Appeals Court Ruling A. division of the Court of Appeals was denounced by former Ambassador Amelito R. Mutuc yesterday for he said, "knowingly abetting the perpetration of a gross and rank injustice" on a dissident suspect. Mutuc spoke of the case of Fortunato Medina, a Filipino worker who was arrested by armed forces intelligence officers in Saigon last year and forcibly flown to Manila. Since his arrest last November 23, Medina has been detained without any criminal case filed in court against him. He is now at the Arayat Municipal Hall. The case in the Court of Appeals arose from a petition for habeas corpus filed by Mutuc with the Supreme Court. The high court had given due course to the case and made the writ returnable to the Quezon City Court of First Instance. Detention Illegal The lower court later ruled that Medina's detention was illegal since there was no pending criminal case against him. The court ordered his immediate release. But the Solicitor General's office appealed the ruling to the Court of Appeals. Mutuc then filed an urgent motion before the Court of Appeals for Medina's release without posting bail on the basis of the lower court's findings and the fact that the man is a pauper. Mutuc said the Court of Appeals Fourth Division denied this motion and ordered Medina post a P5,000.00 bail bond for his provisional liberty. Mutuc said the appeal of the Solicitor General was filed under "extremely dubious circumstances" because the notice of appeal was filed even before the copy of the decision of the lower court was mailed to him. On May 9, 1969, the issue of the Manila Times, pages 1 and 14-A, carried the news item that petitioner-appellee Fortunate Medina escaped from confinement upon the advice of his counsel, Atty. Amelito Mutuc. Contacted by newspaper reporters for comment thereon, Atty. Mutuc issued the following statement which was published on page 14-A of the Manila times issue abovementioned: I have advised him (Medina) to escape. After all, his detention is illegal. It is the only way to regain his freedom. On May 10, 1969, the Manila Times issue, on page 1 and 18-A, carried the news report that Solicitor General Felix V. Makasiar and Solicitor Dominador Quiroz, counsel for the respondents, were studying the feasibility of asking the Court of Appeals to cite Atty. Amelito Mutuc for contempt and of instituting disbarment proceedings against him if it was really true that he advised petitioner-appellee Medina to escape from prison. On May 11, 1969, Atty. Amelito Mutuc, reacting to the proposed action of the Solicitor General, and apparently taking pride in having advised Fortunato Medina to escape from jail, issued the following statement: I am ready and willing to be imprisoned or stripped of my privilege as a lawyer if the Supreme Court so decrees that my cause is not just and that I am in error. Considering the statements attributed to Atty. Mutuc as grossly defiant, offensive and derogatory to the dignity and integrity of the members of the Fourth Division of the Court of Appeals, the latter required Atty. Mutuc to show cause why he should not be held liable and dealt with for contempt and suspended from the practice of law as member of the Philippine Bar (Rollo, pp. 35-40). Hence, a petition for certiorari, prohibition and mandamus with preliminary injunction was filed with the Supreme Court and docketed as G.R. No. L-30978 entitled "Fortunato Medina v. Gen. Manuel T. Yan, Brig. Gen. Vicente Raval and the Court of Appeals" seeking to annul the aforementioned resolution of the Court of Appeals and all other pertinent orders, and resolutions of said Court and prohibit it from proceeding further with the case and to compel it to certify said case to this Court on the ground that it has no jurisdiction to entertain the appeal. (Rollo, p. 47) In a decision promulgated on September 30, 1974, the Supreme Court denied the petition and authorized respondent Appellate Court to proceed with the appealed case and all incidents thereof. The restraining order dated September 4, 1969 issued by the Supreme Court against the respondent court was lifted. (Rollo, p. 52) After remand of the case by the Supreme Court, the Court of Appeals, promulgated a decision on October 24, 1977 in CA-G.R. No. 42658-R reiterating its June 21, 1969 resolution requiring Atty. Mutuc to show cause why he should not be held liable and dealt with contempt and suspended from the practice of law. (Rollo, p. 75) On November 22, 1977, petitioner filed a motion to disqualify the members of the respondent court "on the ground of bias and prejudice and that they had prejudged the case against him" (Rollo, p. 22) which was denied in a resolution dated January 26, 1978 and which again directed petitioner to show cause why he should not be held liable for contempt of court and suspended from the practice of law. (Rollo, pp. 89-90) A motion for reconsideration, filed on February 14, 1978 was denied on March 28, 1978 on the ground that the June 21, 1969 resolution of the former Special Fourth Division was merely a prima facie finding, not a positive premature determination of petitioner's guilt. (Rollo, pp. 93-94)

And so, for the second time, this case was elevated to this Court in a petition for certiorari and prohibition with preliminary injunction on June 9, 1978, docketed as G.R. No. 48108 entitled " Amelito R. Mutuc v. Court of Appeals et al". The Second Division of this Court required the respondents to file an answer and issued a Temporary Restraining Order, enjoining respondent court from proceeding with the proceeding for contempt of court against petitioner in CAG.R. No. 42658-R. (Rollo, pp. 115-117) The parties were required to submit their respective memoranda. Respondents filed their memorandum on September 27, 1978 (Rollo, p. 148) while petitioner filed his memorandum on October 11, 1978. (Rollo, p. 173) The main issue in this case is whether or not petitioner was deprived of due process by the resolution of the Court of Appeals in question. Petitioner argued that in ordering him to "show cause why he should not be dealt with for contempt of court and be suspended from the practice of law after, not before, finding him guilty of contempt of court and of having violated his lawyer's oath and in refusing to disqualify themselves from proceeding further, the Court of Appeals has deprived petitioner of his right to due process of law." (Rollo, p. 183) He further alleged that he has been deprived of his right to a hearing before being found guilty of contempt of court and of having given ground for suspension from the practice of law which is in violation of his right to due process of law. (Rollo, p. 185) Respondents, on the other hand, pointed out that the disputed resolution of the respondent court substantially followed a standard form of citations for contempt and that the questioned resolution of June 21, 1969 is a prima facie finding as a basis for requiring petitioner to show cause why he should not be proceeded against for making the statements attributed to him in the newspaper. Without such findings, there would be no basis for ordering petitioner to answer. (Rollo, p. 161) There is no question that the "essence of due process is a hearing before conviction and before an impartial and disinterested tribunal" (Rollo, p. 173) but due process as a constitutional precept does not, always and in all situations, require a trial-type proceeding (Zaldivar vs. Gonzales, 166 SCRA 316 [1988] citing the ruling in Torres vs. Gonzales, 152 SCRA 272 [1987]). The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one's defense (Tajonera vs. Lamaroza, 110 SCRA 438 [1981] and Richards vs. Asoy, 152 SCRA 45 [1987]). "To be heard" does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process (Juanita Yap Say vs. IAC, G.R. No. 73451, March 28, 1988). What the law prohibits is not the absence of previous notice but the absolute absence thereof and the lack of opportunity to be heard. (Tajonera v. Lamoroza, 110 SCRA 438 [1981]) Petitioner cannot allege lack of due process since in all the four (4) questioned resolutions, he was given ample time to explain why he should not be held in contempt of court and suspended from the practice of law. What due process contemplates is freedom from arbitrariness and what it requires is fairness or justice, the substance rather than the form being paramount (Maglasang vs. Ople, 63 SCRA 511 [1975]). PREMISES CONSIDERED, the petition is hereby DENIED and this case is hereby remanded to the Court of Appeals for further proceedings. The Temporary Restraining Order issued on June 9, 1978 is hereby LIFTED. SO ORDERED. Melencio-Herrera (Chairman), Padilla, Sarmiento and Regalado, JJ., concur.

3 = G.R. No. L-21325 October 29, 1971 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLEO DRAMAYO, PATERNO ECUBIN, PRIOLO BILLONA, FRANCISCO BILLONA, MODESTO RONQUILLA, CRESCENCIO SAVANDAL and SEVERO SAVANDAL, defendants; PABLEO DRAMAYO and PATERNO ECUBIN, defendants-appellant. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Arturo G. Ibarra and Solicitor Conrado T. Limcaoco for plaintiff-appellee. Arturo E. Balbastro for defendants-appellants.

FERNANDO, J.: There is an element of ingenuity as well as of novel in the plea made by counsel de oficio in this appeal of the accused Pableo Dramayo and Paterno Ecubin, who were sentenced to life imprisonment for the murder of Estelito Nogaliza. The claim is vigorously pressed that because the information alleged conspiracy on the part of seven defendants, with only the two appellants being convicted, two having been utilized as state witnesses and the other three having been acquitted on the ground of insufficiency of evidence as to their culpability, the judgment of conviction against the appellants cannot stand, there being a reasonable doubt as to their guilt. To bolster such a contention, certain alleged deficiencies in the proof offered by the prosecution were noted. A careful study of the evidence of record would leave no other rational conclusion but that the deceased met his death at the hands of the appellants in the manner as found by the lower court. Hence the appeal cannot prosper. We affirm. The gory incident which was attended by a fatality started on the morning of January 9, 1964. The two accused, now appellants, Pableo Dramayo and Paterno Ecubin, in the company of the deceased Estelito Nogaliza, all of Barrio Magsaysay, of the Municipality of Sapao, Surigao del Norte, saw its chief of police. Their purpose was to shed light on a robbery committed in the house of the deceased five days before by being available as witnesses. The response was decidedly in the negative as they themselves were prime suspects, having been implicated by at least two individuals who had confessed. At about 7:00 o'clock of the same day, while they were in the house of their co-accused Priolo Billona, the accused Dramayo invited all those present including the other accused Francisco Billons, Modesto Ronquilla. Crescencio and Severo Savandal, for a drinking session at a place at the back of the school house. It was on that occasion that Dramayo brought up the idea of killing Estelito Nogaliza so that he could not testify in the robbery case. The idea was for Dramayo and Ecubin to ambush Estelito, who was returning from Sapao. The others were to station themselves nearby. 1 Soon the unfortunate victim was sighted. He was accosted by Dramayo with a request for a cigarette. It was then that Ecubin hit him with a piece of wood on the side of the head near the right ear. Dramayo's participation consisted of repeated stabs with a short pointed bolo as he lay prostrate from the blow of Ecubin. It was the former also, who warned the rest of the group to keep their mouths sealed as to what had just happened. His equanimity appeared undisturbed for early the next morning, he went to the house of the deceased and informed the, latter's widow Corazon that he had just seen the cadaver of Estelito. The barrio lieutenant and the chief of police were duly notified. The latter, upon noticing blood stains on the trousers of Dramayo, asked him to explain. The answer was that a skin ailment of his daughter was the cause thereof. 2 The death was due to the wounds inflicted, two in the epigastric region, one in the right lumbar region, and another in the left breast. It was on the basis of the above testimony offered by the prosecution that the lower court reached its decision. Its dispositive portion found the accused, now appellant Pableo Dramayo and Paterno Ecubin, guilty beyond reasonable doubt, of the crime of [murder], defined and penalized under Art. 248 of the Revised Penal Code, qualified by the circumstance of evident premeditation aggravated by night time, and imposes upon each of the said accused, Pableo Dramayo and Paterno Ecubin, the penalty of [reclusion perpetual]." 3 Reference was likewise made in such decision as to why the other co-accused were not convicted, two of them, Crescencio Savandal and Severo Savandal being utilized as state witnesses, and the others three, Priolo Billona, Francisco Billona and Modesto Roquilla acquitted. Why they should not be found guilty was explained in the appealed decision thus: "From the beginning the accused Modesto Ronquilla maintained that he was not with the group but that he was fishing in the sea during the night in question. These facts that is, that none of the prosecution witnesses has testified that any of these three accused

actually helped in the killing of the deceased, Estelito Nogaliza; that these three accused were included in the case only much later after the filing of this case against Pableo Dramayo and Paterno Ecubin; the consistent contention of the accused Modesto Ronquilla that he was out in the sea fishing during the night in question; and the testimonies of the accused Priolo Billona [and] Francisco [and their witnesses,] Juan Billona, Esperanza Oposa Billona, Guillerma Ponce, and Anselmo Lisondra, given in a straight-forward manner, without hesitation, revealing a clear conscience, and the fact that the testimonies of these witnesses have not been refuted by the PC soldiers (whom they accused of maltreatment] when they were available to the prosecution, cause the Court to entertain a very serious doubt as to the guilt of the said 4 accused." The lower court was hardly impressed with the defense of alibi interposed by now appellants Dramayo and Ecubin, and it must have been their lack of persuasive character that must have led to the able brief of counsel de oficio, Atty. Arturo E. Balbastro, stressing the absence of evidence sufficient to convict, there still being a reasonable doubt to be implied from the fact that while conspiracy was alleged, only two of the seven accused were held culpable. To repeat, a meticulous appraisal of the evidence justifies a finding of the guilt of the appellants for the offense charged, thus calling for the affirmance of the decision. 1. It is to be admitted that the starting point is the Presumption of innocence. So it must be, according to the Constitution. 5 That is a right safeguarded both appellants. Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt be shown beyond reasonable doubt. To such a standard this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently whatever defense is offered by the accused. Only if judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should sentence be one of conviction. It is thus required that circumstance favoring his innocence be duly taken into count. The proof against him must survive the reason; the strongest suspicion must not be permitted to sway away judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty. So it has been held from the 1903 decision of United States v. Reyes. 6 United States v. Lasada, 7 decided in 1910, yields this excerpt: "By reasonable doubt is meant that which of possibility may arise, but it is doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certain of guilt is not demanded by the law to convict of any carnal charge but moral certainty is required, and this certainty is required as to every proposition of proof regular to constitute the offense." 8 To the same effect is an excerpt from the opinion of the late Justice Tuason in People v. Esquivel. 9 Thus: "In this connection it may not be out of place to bring to the attention of prosecuting attorneys the absolute necessity of laying before the court the pertinent facts as their disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in their evidence, to the end that the court's mind may not be tortured by doubts, that the innocent may not suffer and the guilty not escape unpunished. Obvious to all, this is the prosecution's prime duty to the court, to the accused, and to the state." 10 It is understandable why the stress should be on the absence of sufficient evidence to establish the guilt of appellants beyond reasonable doubt, the defense of alibi interposed hardly meriting any further discussion. It cannot be denied though that the credible and competent evidence of record resulted in moral certainty being entertained not only by the trial judge but by us as to the culpability of appellants. The force of the controlling doctrines, on the other hand, required that the other three accused be acquitted precisely because, unlike in the case of appellants, the requisite quantum of proof to show guilt beyond reasonable doubt was not present. There is no question as to the other two who testified for the state being likewise no long subject to any criminal liability. The reference then to opinion of the late Justice Laurel, stressing the need for adhering to the fundamental postulate that a finding of guilt is allowable only when no reasonable doubt could be entertained, is unavailing. This is evident from the very citation in the brief of appellants of the opinion of Justice Laurel in People v. Manoji.11 Thus: "Upon the other hand there are certain facts which if taken together are sufficient to raise in the mind of the court a grave doubt as to the guilt of the defendant-appellant, 'that doubt engendered by an investigation of the whole proof and an inability after such investigation, to let the mind rest easy upon the certainty of guilt.' (U.S. v. Lasada [1910], 18 Phil. 90, 96.) The finding of the two gold teeth of the deceased the suitcase of Maradani, and the testimony of Erajio Ello that he gave the hat ... to Maradani not only engender serious doubt in our minds as to the guilt of the appellant but also seems to sustain the theory of the defense and strengthen the suspicion of the trial court, that Maradani and Salupudin are not foreign to, or entirely ignorant of, the killing of Seijin Ige. In the light of the facts and circumstances of record, we feel that it is better to acquit a man upon the ground of reasonable doubt, even though he may in reality be guilty, than to confine in the penitentiary for the rest of his natural

life a person who may be innocent. ..." The facts of the present case certainly do not fit within the above mold. Reliance on the part of appellants on the above decision is therefore futile. The judgment of conviction should not have occasioned any surprise on the part of the two appellants, as from the evidence deserving of the fullest credence, their guilt had been more than amply demonstrated. The presumption of innocence could not come to their rescue as it was more than sufficiently overcome by the proof that was offered by the prosecution. What would have been a blot on the law is that if, on the facts as established, no reasonable doubt being entertained, the two appellants would have been acquitted likewise just because the other five defendants, for the reasons above stated, were not similarly sentenced. The principal contention raised is thus clearly untenable. It must be stated likewise that while squarely advanced for the first time, there had been cases where this Court, notwithstanding a majority of the defendants being acquitted, the element of conspiracy likewise being allegedly present, did hold the party or parties, responsible for the offense guilty of the crime charged, a moral certainty having arisen as to their 13 capability. 2. The brief for appellants did seek to fortify the allegation as to their guilt not having been sufficiently demonstrated with the contention that the lower court overlooked or did not properly consider material and significant facts of record that ought to have substantially affected or altered the judgment. Even the most careful reading of such brief, however, with due recognition of the vigor in which this particular point is pressed, would not destroy the credibility of the facts as testified to concerning the manner in which the deceased was killed and the motive that prompted appellants to put an end to his life. That such a version could not have been concocted is shown by the undeniable fact that the two appellants were duly convicted of robbery, with the deceased as the offended party. It was understandable then why they would want to do away with the principal witness against them. There was thus a strong inducement for the appellants to have committed this crime of murder. With the testimony of record pointing to no other conclusion except the perpetration of the killing by them, the effort of their counsel, while to be expected from an advocate zealous in defense of his clients' rights, certainly should not be attended with success. It suffices to reiterate the well-settled principle that this Court has invariably respected the findings of facts of a trial judge who was in a position to weigh and appraise the testimony before him except when, as was not shown in this case, circumstances weight or influence were ignored or disregarded by him. 14 WHEREFORE, the judgment of September 8, 1965 affirmed with the modification that the indemnification to the heirs of Estelito Nogaliza should be in the sum P12,000.00. With costs. Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ., concur. Barredo, J., took no part.

12

4 = G.R. No. 93947 May 21, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGUSTIN ABIERA alias "Agot", defendant-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for defendant-appellant.

Abiera argues that there was no evidence to show that he was caught in the act of having sexual intercourse with the complainant nor was there any clear or convincing testimony that he had carnal knowledge of her. He says it does not follow that he raped her simply because she found herself at his house, allegedly without her undergarments and with her vagina bleeding. The appellant invokes Article 335 of the Revised Penal Code, providing as follows: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1) By using force or intimidation;

CRUZ, J.: This is how Alma Villacacan, a 15-year old barrio lass at that time, awoke to the end of innocence. At about 6:00 o'clock in the evening of June 25, 1984, she went to retrieve a goat she had earlier tethered to a tree near the house of her uncle, Agustin Abiera, in Barangay Opsan, Tobias Fornier, Antique. She heard him call her softly, saying he had something to ask her. In obedience Alma approached Abiera. Without warning, the latter gripped her shoulder and suddenly hit her twice on the abdomen, causing her to faint. When she regained consciousness, she found herself lying half-naked on the floor inside Abiera's house. Abiera was sitting beside her, wearing only his briefs and holding her skirt and underpants. She felt pain all over her body, especially her private part, which was wet and 1 bleeding. Realizing what had happened, Alma started crying, at the same time hitting and kicking Abiera in helpless rage. She called him a traitor and threatened to tell her father. Abiera covered her mouth with his hand and threatened to kill her if she reported the incident. He then handed her clothes and sent her home. 2 It was only on July 3, 1984, that Alma summoned enough courage to tell her parents about the rape. Enraged, her father Manuel Villacacan, together with his two sons, Jerry and Louie Villacacan, sought Abiera to avenge Alma's honor. They found him and hacked him, inflicting wounds on his right shoulder, nape and at the back of right palm.3 Abiera proceeded to the hospital for treatment after first seeking refuge at the house of his uncle Espiridion Tacda. Manuel Villacacan went to the municipal building to surrender. Alma submitted to a medical examination on July 12, 1984, with the assistance of Amparo David, a neighbor and friend. The examining physician, Dr. Maria Gracita Laada, reported that Alma suffered a hymenal laceration which, however, had already healed, probably due to the lapse of seventeen days from the time the alleged injury was sustained. No spermatoza were found at the time of the examination. 4 In his defense, Abiera denied the rape and claimed that the charge was brought against him by Alma in retaliation of the frustrated murder charge he had earlier filed against Manuel, Jerry and Louie Villacacan from hacking him. On cross-examination, however, he could not give any reason why the Villacacans would want to kill him. He also admitted that they had never had any previous altercation. 5 Espiridion Tacda testified that Manuel Villacacan asked him to intercede for him and implore Abiera not to file any charge against him and his sons. He said he relayed this request to Abiera, who rejected it, whereupon Alma's father threatened to file the rape case against him. 6 The defense showed that the complaint for frustrated murder against Manuel, Jerry and Louie Villacacan was filed on July 11, 1984, whereas the criminal complaint for rape against Abiera was filed by Alma Villacacan only on August 29, 1984. The trial court was not persuaded by the defense. After considering the evidence of the parties, Judge Bonifacio Sanz Maceda of the Regional Trial Court of Antique found Abiera guilty of the crime of rape against Alma Villacacan, under Article 335, paragraph 2, of the Revised Penal Code, and sentenced him to "reclusion perpetuaor life imprisonment." 7 The appellant now faults the trial court for (a) giving weight and credence to the improbable and conflicting testimony of the private complainant, (b) convicting the accused-appellant of the crime of rape under Article 335, paragraph 2, of the Revised Penal Code and (c) not acquitting the accused-appellant on the ground of reasonable doubt.

2) When the woman is deprived of reason or otherwise unconscious; and 3) When the woman is under twelve years old, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. xxx xxx xxx His position is that the vital element of carnal knowledge has not been proven by the prosecutor. Furthermore, it was erroneous for the trial court to convict him of rape committed when the victim was deprived of reason or otherwise unconscious, in violation of Article 335, paragraph 2, when this particular mode was not charged in the information. The allegation therein was that he had carnal knowledge of Alma Villacacan by means of force, violence and intimidation under paragraph 1 of the said Article. The appellant maintains that he cannot be convicted of rape committed under one mode when the information alleged another mode. He cites the case of People v. Pailano, 8 where this Court held that to convict the appellant on the finding that he had committed rape while the victim was unconscious or otherwise deprived of reason and not through force and intimidation, which was the method alleged would violate his constitutional right to be informed of the nature and cause of the accusation against him. That case works against the appellant. In Pailano, this Court impliedly recognized that an accused charged with rape through one mode of commission may still be convicted of the crime if the evidence shows another mode of commission provided that the accused did not object to such evidence. The Court said: It may be argued that although initially deficient, the criminal complaint was deemed corrected when the prosecution introduced evidence on the complainant's mental condition and the defense did not object, thereby waiving the procedural defect. Even so, the charge has not been adequately established. The prosecution presented evidence to show that Abiera had carnal knowledge of the complainant when by means of force, violence and intimidation, he boxed her in the stomach, causing her to lose consciousness, after which he violated her. When Alma regained consciousness, the outrage had already been committed. Herdeshabille, her bleeding vagina, the near-naked man beside her all these reasonably indicated that Abiera had deflowered Alma while she was unconscious. The defense did not object to the presentation of evidence to establish all these circumstances. The Pailano case is different from the case at bar because it has been proven that Abiera had carnal knowledge of Alma after rendering her unconscious. Pailano was acquitted because it was not established that he used force and intimidation upon the complainant or that the girl was mentally deficient. The appelant assails the finding of the trial court that the hymenal laceration was due to the rape and submits that it could have been caused by severe physical exertion like biking, horseback-riding, or mere passage of blood clots during menstruation, in view especially of the lack of spermatozoa in Alma's genital organ. We have held in a number of cases that the presence or absence of spermatozoa is immaterial since it is not ejaculation but penetration, however slight, which constitutes the crime of rape. 9 Furthermore, it is unlikely that spermatozoa would still remain in the victim's genital organ after the lapse of 17 days from the commission of the rape.

Alma's delay in reporting the rape was due to the threat of death made upon her by the appellant, who lived only 55 meters away from her house. Moreover, it is not uncommon for young girls to conceal for some time the assault of their virtue because of the stigma that unfairly attaches to any maiden whose chastity has been stained, even against her will. In People v. Santiago, 10 we held that the lapse of the period of 35 days before the victim finally reported the sexual abuse committed against her by the accused could not render her testimony doubtful. In the case at bar, Alma reported her rape to her father on July 3, 1984, or only 8 days after its commission.

5 = G.R. No. L-29271 August 29, 1980 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADELINO BARDAJE, defendant-appellant.

MELENCIO-HERRERA, J.: Alma also explained that it took her several days after the rape before she submitted to medical examination because nobody had suggested that she go to a doctor. She decided to be examined only when her friend, Amparo David, advised her to do so and offered to accompany her. Her parents were of no help to her because her father was then already in prison for the hacking of the appellant, while her mother was attending to her young sister. The same reasons explain the lapse of about two months before she could file the criminal complaint for rape against Abiera. The Villacacans attacked Abiera on July 3, 1984, the very day Alma informed her father of the crime perpetrated against her by the appellant. They wanted to avenge the dishonor he has brought upon their family. Abiera himself could not give any reason why the Villacacans would make an attempt on his life, considering that they had no previous dispute and that they were neighbors and even related to each other. The inconsistencies between Alma's testimony and the statement she gave during the preliminary examination are minor discrepancies that do not detract from the substance of her narration. True, a rape victim cannot push out of her mind the violent attack upon her chastity but she is nevertheless not expected to remember all the sordid details of that traumatic experience. It is difficult to believe that an unmarried woman would complain about her debauched honor, allow the examination of her private parts and permit herself to be the subject of public trial, unless she was motivated by an honest desire to seek justice. 11 Alma was a naive 15-year old maiden when her innocence was defiled. The story of her violation was not concocted out of thin air by a wordly-wise woman but was a painful account of how, a virgin when she fainted, she awoke to find her maidenhood outraged. We hold that the trial court did not err in finding the appellant guilty beyond reasonable doubt of the crime of rape against Alma Villacacan, punishable under Article 335, paragraph 2 of the revised Penal Code. It erred, however, in sentencing him to the penalty of "reclusion perpetua or life imprisonment" as the two penalties are not synonymous. Life imprisonment does not carry the accessory penalties attached to reclusion perpetua. The proper penalty is reclusion perpetua, to which the Court will add a civil indemnity of P30,000.00 to be paid to the ravished victim. ACCORDINGLY, the appealed decision is AFFIRMED as above modified, with costs against the accused-appellant. SO ORDERED. Grio-Aquino, Bellosillo and Quiason, JJ., concur. The accused ADELINO Bardaje in this case, after trial, has been convicted of Forcible Abduction with Rape, and sentenced to death. The case is before us on automatic review. On December 20, 1965, MARCELINA Cuizon lodged the following complaint with the Court of First Instance of Samar against ADELINO and five (5) others 'namely, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas (hereinafter called the FIVE OTHERS): The undersigned complainant, after having been duly sworn to according to law, accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape, committed as follows: That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Lopig, Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, conspiring, confederating together and helping one another, with lewd design, by means of force and intimidation, and at nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina Cuizon from the house of one Norma Fernandez and brought her to a far away place and once there, accused Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her several times while his co-accused were on guard. Contrary to law. (Emphasis supplied). ADELINO was arrested on December 17th, and it was on December 20th, when he signed the alleged confession, Exhibit "C", admitting having kidnapped and molested MARCELINA, 1 which was probably the basis for MARCELINA's complaint, presumably prepared with the help of the Fiscal. What has been noticed is that, in Exhibit "C", ADELINO had mentioned that, besides the FIVE OTHERS, a sixth, Domingo Odal, was with the group when MARCELINA was "kidnapped". There is no indication in the record as to why Domingo Odal was not included in MARCELINA's complaint as one of the accused. The following day, December 21st, the Fiscal's office filed the following Information with the Court: The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape with Illegal Detention committed as follows: That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Crossing, Municipality of Sta. Rita, Province of Samar, Philippines and within the jurisdiction of this Honorable court the above-named accused, conspiring, confederating together and helping one another, with Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd design, by means of force and intimidation, armed with bolos and at nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina Cuizon, a minor of 14 years old, from the house of one Norma Fernandez and brought her to a far away place and once there, accused Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her for several times while his co-accused were on guard. That the commission of the crime the aggravating circumstances that it was committed in an uninhabited place and with the aid of armed men, were present. (Emphasis supplied). It will be noted that the complaint filed directly by MARCELINA with the Court was amended by the Fiscal in the Information. While MARCELINA charged ADELINO only with Rape, the Fiscal charged him with "Rape with Illegal Detention". MARCELINA merely alleged that she was dragged from the house of Norma Fernandez by means of force and intimidation and at nighttime. On the other hand, the Information added that the accused were "armed with bolos". The name of the barrio was also changed from Lopig to Crossing. Lastly, the Information included the allegation that the crime of Rape with Illegal Detention was committed with the "aggravating circumstances that it was committed in an uninhabited place and with the aid of armed men".

Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only ADELINO stood trial. The period of the offense was from December 14th to 17th, with the complaint having been filed on December 20th, or barely three (3) days thereafter. With that time frame in mind, an analysis of the Information will show the assumption that only ADELINO was the principal culprit while the FIVE OTHERS were either principals by cooperation or accomplices. Thus, the clause "with" Lucio Malate, Pedro Odal, Mariano Odal, Silvino Odal and Fidel Ansuas" indicates that it was ADELINO who had dragged MARCELINA "with" the help of the FIVE OTHERS. Both the complaint and Information also indicated that ADELINO was the only one who committed the rape, while the FIVE OTHERS were merely accomplices. On June 2, 1966, before the arraignment of ADELINO, the Information was amended to include the allegation that MARCELINA was detained and deprived of liberty for a period of th0ree (3) days, which allegation could be taken into 2 3 account in connection with Illegal Detention but not in connection with Forcible Abduction. Since according to Exhibit "C", MARCELINA was "kidnapped" at midnight of December 14th, and ADELINO was arrested in the morning of December 17th, or an interval of less than 72 Hours, it could not be correctly pleaded that MARCELINA was deprived of 4 liberty for three (3) days. After the trial was concluded, ADELINO's lawyer submitted his Memorandum on July 26, 1967, in which he specifically argued that "the prosecution did not establish the elements of Rape and Illegal Detention as prescribed by Articles 335 and 267 of the Revised Penal Code." It was only in the Memorandum of the Fiscal, dated July 27, 1967, when the position was taken that the crime which should be imputed to ADELINO is Rape with Forcible Abduction. The prosecution's Memorandum stated: Although the information is for Rape with Illegal Detention instead of Rape with Forcible Abduction, yet from the body of the information it could be clearly gleaned that the elements of abduction are sufficiently alleged therein and hence the accused can be convicted thereunder (People vs. Emiliano Javete, CA 01956-57-CR April 7, 1964 (82-1965). The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible Abduction with Rape with the aggravating circumstances of dwelling and aid of armed men, and sentenced him to death. The version of complainant MARCELINA Cuizon, 14 years of age, is that in December, 1965, she and her mother were living in the house of her aunt, Sofia Fernandez, at Barrio Crossing, Sta. Rita, Samar, where she worked as a beautician. At 7:00 o'clock in the evening of December 14, 1965 while she was then eating supper, ADELINO, whom she knew when they were "still small", and who was her classmate in Grade II (1960), accompanied by the FIVE OTHERS, entered the house and began drinking "sho hoc tong" which they brought along. After the liquor had been fully consumed, Silvino Odal broke the kerosene lamp causing complete darkness. She then ran to the room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and Adriano Odal, followed her, tried to extricate her from her mother's embrace and dragged the two of them to the sala. Pedro Odal choked the mother's neck thereby loosening her hold on the daughter and the four males, two of whom were armed with bolos, forced her downstairs and by holding and dragging her, brought her to the mountain about two kilometers from Barrio Crossing. That was about 12 midnight. On the way, ADELINO slapped her rendering her unconscious. She regained consciousness in a hut, with ADELINO holding her hands, and removing her panty. She bit and kicked him. Despite her struggle, ADELINO succeeded in having sexual intercourse with her while his other companions stayed outside on guard. Under cross-examination, MARCELINA declared that she did not know who owned the hut and that it was just a oneroom affair where a woman and two small children lived; that she and Appellant slept in that same room as the woman, 5 while the FIVE OTHERS slept near the kitchen. At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE OTHERS brought her to another mountain, 6 kilometers farther, arriving there past twelve o'clock noon at the house of one called Ceferino (also called Cipriano) who lived there with his family. She was kept in one room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas, still armed with bolos, drinking and guarding her. In the evening, ADELINO had another sexual intercourse with her even though she bit and kicked him and shouted for help which was to no avail as all present were relatives of ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita (daughter of Ceferino) the next day, because ADELINO threatened to kill her if she did not. Her curling paraphernalia was taken by Adriano Odal, upon ADELINO's instructions, from Norma Fernandez (her cousin) who gave the equipment as she (Norma) was also threatened. MARCELINA and her "captors" stayed in Ceferino's house for two days. In the morning of December 17, two soldiers with her father, Alejo Cuizon, arrived. The soldiers apprehended ADELINO while the FIVE OTHERS jumped down the window and fled. Upon her father, she embraced him and cried. They all returned to Barrio Crossing. She and her mother, Maria Fernandez, then went to Catbalogan, where she filed a complaint at the Fiscal's Office on December 20, 1965 and submitted to a medical examination at the Samar Provincial Hospital.

When cross-examined, Complainant admitted that Ceferino, his wife. and seven children were living in the same hut where she was taken the second time, which hut was about waist high from the ground, consisted of one room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the room and the sala was a wall of split bamboos so that noise 6 inside the room could be heard clearly from the other side. Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared that he examined MARCELINA on December 20, 1965 and issued a Medical Certificate with the following findings: 1. No evidence of external injuries around the vulva or any part of the body. 2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock. 3. Vagina easily admits two fingers. 4. Vaginal smear negative for spermatozoa
7

Explaining the "old healed laceration", the doctor stated that laceration may have been caused by possible sexual intercourse or other factors, and if it were intercourse, he estimated that it could have occured " say, two weeks or one 8 month" or possibly more. For his part, ADELINO, aged 18, admitted having had carnal knowledge of MARCELINA but denied having raped her. He claims that they eloped on December 14 to 17, 1965 as previously planned, they having been sweethearts since November 12, 1964. As such, they used to date in Tacloban and "anything goes". MARCELINA's family used to have a house in Barrio Crossing but now MARCELINA just stays in the house of her aunt, Sofia, which is about five houses away from theirs. In the evening of December 14, 1965, while Sofia, MARCELINA's mother and others were eating, MARCELINA handed him a bag and beauty culture equipment through the window, went downstairs, after which the two of them walked to the mountains, to Ceferino Armada's house. Ceferino was a cousin of ADELINO's mother. He and MARCELINA slept in the bedroom with 18-year old Narita, Ceferino's daughter. While in that hut, food was brought to them by his sister, Nenita. MARCELINA curled Narita's hair the next day. In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by MARCELINA's father, Alejo Cuizon, apprehended him for having kidnapped MARCELINA. The latter ran to him and embraced him and said she was to blame. notwithstanding, he was boxed by the soldiers as instructed by MARCELINA's father and taken to Maulong PC Headquarters for questioning. During the investigation, he was boxed and kicked and was forced to sign a statement implicating the FIVE OTHERS as his companions even if untrue. He did not know who attested to his statement as one Sgt. Gacelos took the document elsewhere. Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was allegedly forcibly brought the second time, corroborated that portion of ADELINO's testimony regarding their stay in his house adding that MARCELINA and ADELINO had told him that they had eloped; that MARCELINA even offered to curl his daughter's hair (Narita's and Concepcion's), and helped in house chores and in the threshing of palay, while ADELINO helped in carrying palay because it was rainy. The trial Court found the prosecutors version of the incident more worthy of credence stating that Complainant had no improper motive to implicate ADELINO in such a detestable crime as Rape. On the basis of the evidence, testimonial and documentary, we find that the guilt of ADELINO has not been established beyond reasonable doubt. In crimes against chastity, the conviction or acquittal of an accused depends almost entirely on the credibility of a complainant's testimony since by the intrinsic nature of those crimes they usually involve only two persons the complainant and the accused. The offended party's testimony, therefore, must be subjected to thorough scrutiny for a determination of its veracity beyond reasonable doubt. In the instant case, we find MARCELINA's charge that she was forcibly abducted and afterwards raped by ADELINO in conspiracy with FIVE OTHERS highly dubious and inherently improbable. To start with, according to the medical findings, "no evidence of external injuries was found around the vulva or any part of the body" of Complainant, a fact which is strange, indeed, considering that Complainant was allegedly "dragged" slapped" into unconsciousness, "wrestled" with, and criminally abused. Physical evidence is of the highest order and

speaks more eloquently than an witnesses put together. We are also faced with the medical finding of "old healed lacerations" in the hymen which, according to the testimony of the examining physician would have occurred two weeks or even one month before if said lacerations had been caused by sexual intercourse. This expert opinion bolsters the defense that MARCELINA and ADELINO had previous amorous relations at the same time that it casts serious doubts on the charge of intercourse by force and intimidation. Secondly, by Complainant's own admission, the first hut she was taken to was a small one-room affair occupied by a woman and two small children. Her charge, therefore, that she was ravished in that same room is highly improbable and contrary to human experience. Thirdly, from her own lips, Complainant testified that the second hut where she was taken, that of Ceferino Armada, consisted of a small room separated from the sala by a wall of split bamboos. Further, that Ceferino with his wife and seven children all lived therein. It challenges human credulity that she could have been sexually abused with so many within hearing and distance. It is unbelievable, too, that under those circumstances the FIVE OTHERS could have stood guard outside, armed with bolos and drinking, while ADELINO allegedly took advantage of her. If rape were, indeed, their malevolent intent, they would, in all probability, have taken turns in abusing her. That they did not, indicates that there was, indeed, some special relationship between MARCELINA and ADELINO. Furthermore, with people around, and the hut constructed as it was, it would have been an easy matter for MARCELINA to have shouted and cried for help. Surely, the old man Ceferino, his wife and/or his children could not have been insensible to her outcries notwithstanding their relationship to ADELINO. The aphorism still rings true that evidence to be believed must not only come from the mouth of a credible witness but must be credible in itself. Additionally, Complainant admits that she even curled the hair of Narita, one of Ceferino's daughters, a fact inconsistent with her allegation of "captivity". That she was threatened with death if she did not accede to such an inconsequential request defies credulity. The livelihood is that, as the defense maintains, MARCELINA was not forcibly abducted but that she and ADELINO had, in fact, eloped and that she had brought her beauty culture paraphernalia with her, or, that she herself had sent for them from her cousin Norma Fernandez voluntarily and not under threat from ADELINO. The totality of the foregoing circumstances count with such great weight and significance that they lend an aura of improbability and reasonable doubt to the allegation that MARCELINA had been "kidnapped" or "illegally detained" and that when she and ADELINO engaged in sexual intercourse, it was because of force or intimidation exercised upon her. They are circumstances that were overlooked by the trial Court and justify a reversal of its finding of guilt as an exception to the established rule that the findings of fact of a trial Judge based on the relative credibility of witnesses are entitled to great respect and will not be disturbed by appellate Courts. This case also constitutes an exception to the general belief that a young girl would not expose herself to the ordeal of public trial if she were not motivated solely by a desire to have the culprit who had ravished and shamed her placed behind bars. As we view it, MARCELINA was confronted with a paradoxical situation as a daughter of relative tender age who could not shamefacedly admit to her parents that she had eloped and voluntarily submitted to sexual intercourse, since that elopement must have met with righteous indignation on the part of her parents. As a result, MARCELINA was faced with no other choice but to charge ADELINO with rape or incur the ire of her parents and social disrepute from a small community. In respect of the alleged confession of ADELINO, suffice it to re-state that "an extrajudicial confession made by an accused shag not be sufficient ground for conviction unless corroborated by evidence of corpus delicti. 9 Corpus delicti is proved when the evidence on record shows that the crime prosecuted had been committed. That proof has not been met in the case at bar, the evidence establishing more of an elopement rather than kidnapping or illegal detention or forcible abduction, and much less rape. Moreover, ADELINO, aged 18, was by himself when being investigated by soldiers, 10 without benefit of counsel nor of anyone to advise him of his rights. Aside from his declaration that Ws confession was obtained through maltreatment and violence, 11 it was also vitiated by a procedural irregularity testified to by no less than prosecution witness Sgt. Pedro Gacelos to the effect that he and room after he presented the statement to the Clerk of Court, Mr. Rojas. 12 There is reason to believe, therefore that the so called confession was attested without ADELINO's presence so that the latter cannot be said to have duly subscribed and sworn to it. It should also be noted that throughout the hearings before the trial Court, it was assumed that ADELINO was being held responsible for the complex crime of Rape with Illegal Detention. While it is true that an accused can be punished for a crime described by the facts alleged in tile Information despite a wrong designation of the crime in the preamble of the Information, 13 yet, in capital cases, it should be desirable that, whenever a discrepancy is noted between the designation of the crime made by the Fiscal and the crime described by the facts pleaded in his Information. The lower Court should call attention of the accused to the discrepancy, so that the accused may be fully apprised of the nature and cause of the accusation against him. This was not done in regards to ADELINO who all the time was under the

impression that he was being tried for Rape with Illegal Detention, and not for Forcible Abduction with Rape. If ADELINO had known that he was being tried for Forcible Abduction with Rape, he may have changed the strategy or tactics of his defense. Not that it could be said he would have done so; but he should have been advised he had the right, and given the opportunity, to do so. Again, one of the rights of an accused is "to have compulsory process issued to secure the attendance of witnesses on 14 his behalf. ADELINO had stated that, while MARCELINA was in the house of Ceferino Armada, she curled the hair of Narita. one of the latter's children, as well as the hair of other girls in the vicinity. ADELINO wanted to have Narita testify on his behalf, and a subpoena had been issued to her. But instead of taking effective steps to have Narita brought to Court, the lower court gave responsibility for Narita's attendance to the defense, expressly stating that, if the defense was not able to bring her to the Court, her testimony will be dispensed with. The record shows: ATTY. BOHOL I appear as counsel for the accused. Up to now, Your Honor, the witnesses we have been expecting have not yet arrived. This representation, with the consent of the Clerk of Court have wired the Chief of Police of Sta. Rita, Samar to bring Ceferino Armada and Narita Armada tomorrow for the hearing, continuation of this case for those persons mentioned to testify, your Honor, for the accused. We pray, Your Honor, that we be given time to hear from the Chief of Police to bring those persons tomorrow, Your Honor. COURT What will be the nature of the testimonies of those witnesses. xxx xxx xxx COURT How about the other girl? ATTY. BOHOL Narita Armada will substantially be corroborative, Your Honor. COURT Suppose the two witnesses do not arrive tomorrow, for which this case is set also? ATTY. BOHOL If we receive information and find that those witnesses could really not come for this case, Your Honor, I will be constrained to submit the case for decision based on the testimony of the accused. However, Your Honor, if it will be all right with the Honorable Court and we find that there is hope that within this week Ceferino Armada could come here, in view of the distance, I pray before the Honorable Court that we be given time within this week to present Ceferino Armada, and upon his failure, submit the case for decision COURT The Court will not allow that anymore, anyway this case is set for tomorrow. The Court wail grant the postponement today on condition that any witness not presented tomorrow will be considered waived Afterall as you have manifest, 4 their testimonies will be corroborative. xxx xxx xxx COURT

What I mean is that you should have taken the necessary precaution for the attendance of your witness today considering that there is a subpoena for the witnesses.ORDER - for the reason that accused have no more witnesses to present today, the trial of this case is hereby Postponed for tomorrow, July 26, 1967 at 8:30 A.M., with the warning that witnesses not presented during that day shall be considered waived. 15 Considering that this case involved a prosecution for a capital offense, the lower Court acted precipitously in not having Narita brought to Court, by ordering her arrest if necessary ADELINO was deprived of his right "to have compulsory process issued to secure the attendance of witnesses on his behalf." Crucial questions should also have been asked by the trial Court of witnesses. MARCELINA testified before the lower Court on December 1, 1966. On December 12, 1966, P Gacelos, the PC Sgt. who investigated the complaint against ADELINO, testified: Q. Was that investigation of M Cuizon reduced to writing? A. Yes, Sir.
16

Separate Opinions

AQUINO, J., dissenting: I dissent. The following is a summary of the facts proven by the prosecution, as set forth in the brief filed by Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Santiago M. Kapunan: In the evening of December 14, 1965, Marcelina Cuizon, a fourteen-year-old beautician was in the house of her aunt, Sofia Fernandez, located at Barrio Crossing, Santa Rita, Samar. At seven-thirty on that evening, while Marcelina and her mother Maria Fernandez were taking supper, six persons, namely, Adelino Bardaje, Silvino Odal, Pedro Odal, Adriano Odal, Fidel Ansuas and Lucio Malate, all accused in this case, entered the house bringing with them some bottles of Sho Hoc Tong, a locally manufactured liquor. Once inside the house, the accused began drinking the liquor. After consuming the liquor, Silvino Odal put out the light by breaking the kerosene lamp. Afraid of what the men would do, Marcelina and her mother went inside the bedroom but the accused followed them and grabbed Marcelino While Marcelina was shouting for help, Maria laid aside the baby whom she was carrying and put her arms tightly around Marcelino in a desperate effort to protect her. The accused dragged both mother and daughter into the sala. To take away Marcelino from her mother's tenacious grasp, Fidel Ansuas aimed his bolo at Maria, threatening to strike her, while Pedro Odal put his hands around her neck and squeezed it with such force that Maria became unconscious, thus releasing Marcelina from her protective embrace. Then, the accused bodily carried Marcelina into the street and brought her to a hut in the mountain two kilometers away. On the way, Marcelina lost consciousness after a vigorous struggle to free herself from the accused and after Bardaje had slapped her violently. When Marcelina regained consciousness, she found herself in a hut with Bardaje in the act of removing her underwear. She fought energetically to resist Bardaje's advances by biting and kicking him, but all to no avail because she was no match to his physical strength. Bardaje held her hands and consummated sexual intercourse with her. On the following day, December 15, Bardaje and his five companions brought Marcelino to the house of one Cipriano where she was ravished two times. She was held captive in the house of Cipriano for two days until she was rescued by Constabulary soldiers Pedro Gacelos and Nemesio Tirador accompanied by her father. Bardaje was taken to the Constabulary headquarters in Catbalogan where he was investigated. Bardaje admitted that he and his companions forcibly abducted Marcelina and brought her to a hut in the mountain where he raped her. His admission was reduced to writing and sworn to by him (Exh-C to C3). Marcelina was brought to the Samar Provincial Hospital where she underwent a medical examination. Bardaje was the only one arrested and tried. The crime charged in the information is the complex crime of "rape with Legal detention". There may be some reasonable doubt as to the commission of rape because of the finding that the victim was no longer a virgin when the incident took place, the absence of external injuries on the victim's body and the claim of Bardaje that he with the victim in Tacloban City. But there is no doubt that Bardaje and his companions committed kidnapping and serious illegal detention of a minor as well as of a "female", an offense penalized in article 267(4) of the Revised Penal Code with reclusion perpetua to death. Republic Act No. 18 specifically made kidnapping of a minor and a woman a capital offense in order to deter the kidnapping of minors and women, a crime which was very rampant after liberation. The victim might have been a girl, who, like many teenagers of today, does not safeguard her virtue or chastity and easily succumbs to the temptation of the flesh. ( Time Magazine reports that at the Puerta del Sol in Madrid, Spain, there is a billboard on which is emblazoned Oscar Wildes witticism "Puedo resistir todo excepto la tentacion.")

It would have been advisable if the lower Court had right then and there asked for the production of the written statement of MARCELINA. The medical report, Exhibit "B", implied that MARCELINA could have had sexual intercourse previous to December 14th. On the other hand, ADELINO had testified that he and MARCELINA used to go together to Tacloban, and while 17 there several times, "we had sexual intercourse because she likes it." Considering the possible infliction of the death penalty on ADELINO, the lower Court could have asked MARCELINA if she had had sexual intercourse prior to December 14th and, if so, if it was with ADELINO. Further, there was possibility that ADELINO and MARCELINA had really been sweethearts. The lower Court could have asked MARCELINA if she realized that, charging ADELINO with Rape with Illegal Detention, the latter could be sentenced to death. If that had been explained to her clearly by the lower Court, she might then have admitted that she was neither raped nor "kidnapped" nor illegally detained. MARCELINA could had been examined on the two matters mentioned above, with the Court excluding the public from the hearing under the provisions of Rule 119, Section 14. MARCELINA might have testified without feeling the pressure of her relatives or other persons, if such pressure had in fact existed. It may not be amiss to state then that just as in pleas of guilty where a grave offense is charged trial Judges have been enjoined to refrain from accepting them with alacrity but to be extra solicitous in seeing to it that an accused fully understands the import of his plea, so also, in prosecutions for capital offenses, it behooves the trial Courts to exercise greater care in safeguarding the rights of an accused. The trial Judge should also take a more active role by means of searching questions in the examination of witnesses for the ascertaintment of the truth and credibility of their testimonies so that any judgment of conviction imposing the supreme penalty may rest on firm and unequivocal grounds. The life and liberty of an individual demand no less. WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the death penalty, is reversed and the appellant, Adelino Bardaje, acquitted of the crime with which he is charged. His immediate release is ordered unless lie is held on other charges. Costs de oficio. SO ORDERED. Fernando, C.J., Teehankee, Barredo, Concepcion, Jr., Fernandez, Guerrero, Abad Santos and De Castro, JJ., concur. Makasiar, * J., took no part.

Bardaje and his companions grievously and brazenly deprived the victim of her liberty by forcibly taking her against her will and the will of her mother and detaining her in a hut in the mountain. (See People vs. Ablaza, L-27352, October 31, 1969,30 SCRA 173; People vs. Tungala, 102 Phil. 1161; People vs. Ching Suy Siong and Mata, 97 Phil. 989.) The victim, being a minor, was still under parental authority. Her parents were entitled to her custody and to keep her in their company. They were obligated to take care of her and to see to it that her rights were respected. Even a layman would deduce from the manner in which the victim was snatched and detained, that the accused committed an outrageous and wrongful act which should be drastically punished. To acquit them would be a miscarriage of justice. I vote for the imposition of reclusion perpetua on the accused and the imposition of an indemnity of P10,000.

There may be some reasonable doubt as to the commission of rape because of the finding that the victim was no longer a virgin when the incident took place, the absence of external injuries on the victim's body and the claim of Bardaje that he with the victim in Tacloban City. But there is no doubt that Bardaje and his companions committed kidnapping and serious illegal detention of a minor as well as of a "female", an offense penalized in article 267(4) of the Revised Penal Code with reclusion perpetua to death. Republic Act No. 18 specifically made kidnapping of a minor and a woman a capital offense in order to deter the kidnapping of minors and women, a crime which was very rampant after liberation. The victim might have been a girl, who, like many teenagers of today, does not safeguard her virtue or chastity and easily succumbs to the temptation of the flesh. ( Time Magazine reports that at the Puerta del Sol in Madrid, Spain, there is a billboard on which is emblazoned Oscar Wildes witticism "Puedo resistir todo excepto la tentacion.") Bardaje and his companions grievously and brazenly deprived the victim of her liberty by forcibly taking her against her will and the will of her mother and detaining her in a hut in the mountain. (See People vs. Ablaza, L-27352, October 31, 1969,30 SCRA 173; People vs. Tungala, 102 Phil. 1161; People vs. Ching Suy Siong and Mata, 97 Phil. 989.)

Separate Opinions AQUINO, J., dissenting: I dissent. The following is a summary of the facts proven by the prosecution, as set forth in the brief filed by Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Santiago M. Kapunan: In the evening of December 14, 1965, Marcelina Cuizon, a fourteen-year-old beautician was in the house of her aunt, Sofia Fernandez, located at Barrio Crossing, Santa Rita, Samar. At seven-thirty on that evening, while Marcelina and her mother Maria Fernandez were taking supper, six persons, namely, Adelino Bardaje, Silvino Odal, Pedro Odal, Adriano Odal, Fidel Ansuas and Lucio Malate, all accused in this case, entered the house bringing with them some bottles of Sho Hoc Tong, a locally manufactured liquor. Once inside the house, the accused began drinking the liquor. After consuming the liquor, Silvino Odal put out the light by breaking the kerosene lamp. Afraid of what the men would do, Marcelina and her mother went inside the bedroom but the accused followed them and grabbed Marcelino While Marcelina was shouting for help, Maria laid aside the baby whom she was carrying and put her arms tightly around Marcelino in a desperate effort to protect her. The accused dragged both mother and daughter into the sala. To take away Marcelino from her mother's tenacious grasp, Fidel Ansuas aimed his bolo at Maria, threatening to strike her, while Pedro Odal put his hands around her neck and squeezed it with such force that Maria became unconscious, thus releasing Marcelina from her protective embrace. Then, the accused bodily carried Marcelina into the street and brought her to a hut in the mountain two kilometers away. On the way, Marcelina lost consciousness after a vigorous struggle to free herself from the accused and after Bardaje had slapped her violently. When Marcelina regained consciousness, she found herself in a hut with Bardaje in the act of removing her underwear. She fought energetically to resist Bardaje's advances by biting and kicking him, but all to no avail because she was no match to his physical strength. Bardaje held her hands and consummated sexual intercourse with her. On the following day, December 15, Bardaje and his five companions brought Marcelino to the house of one Cipriano where she was ravished two times. She was held captive in the house of Cipriano for two days until she was rescued by Constabulary soldiers Pedro Gacelos and Nemesio Tirador accompanied by her father. Bardaje was taken to the Constabulary headquarters in Catbalogan where he was investigated. Bardaje admitted that he and his companions forcibly abducted Marcelina and brought her to a hut in the mountain where he raped her. His admission was reduced to writing and sworn to by him (Exh-C to C3). Marcelina was brought to the Samar Provincial Hospital where she underwent a medical examination. Bardaje was the only one arrested and tried. The crime charged in the information is the complex crime of "rape with Legal detention". The victim, being a minor, was still under parental authority. Her parents were entitled to her custody and to keep her in their company. They were obligated to take care of her and to see to it that her rights were respected. Even a layman would deduce from the manner in which the victim was snatched and detained, that the accused committed an outrageous and wrongful act which should be drastically punished. To acquit them would be a miscarriage of justice. I vote for the imposition of reclusion perpetua on the accused and the imposition of an indemnity of P10,000.

6 = G.R. No. L-37933 April 15, 1988 FISCAL CELSO M. GIMENEZ and FEDERICO B. MERCADO, petitioners, vs. HON. RAMON E. NAZARENO, Presiding Judge, Court of First Instance of Cebu and TEODORO DE LA VEGA, JR., respondents. The Solicitor General for petitioners. Victor de la Serna for respondents.

On November 16,1973 the petitioners filed a Motion for Reconsideration questioning the above-quoted dispositive portion on the ground that it will render nugatory the constitutional provision on "trial in absentia" cited earlier. However, this was denied by the lower court in an Order dated November 22, 1973. Hence, this petition. The respondent court, in its Order denying the Motion for Reconsideration filed by the herein petitioners, expressed the opinion that under Section 19, Article IV of the 1973 Constitution, the private respondent, who was tried in absentia, did not lose his right to cross-examine the witnesses for the prosecution and present his evidence. 3 The reasoning of the said court is that under the same provision, all accused should be presumed innocent. 4 Furthermore the lower court maintains that jurisdiction over private respondent de la Vega, Jr. was lost when he escaped and that his right to crossexamine and present evidence must not be denied him once jurisdiction over his person is reacquired. 5 We disagree. First of all, it is not disputed that the lower court acquired jurisdiction over the person of the accused-private respondent when he appeared during the arraignment on August 22,1973 and pleaded not guilty to the crime charged. In cases criminal, jurisdiction over the person of the accused is acquired either by his arrest for voluntary appearance in court. Such voluntary appearance is accomplished by appearing for arraignment as what accused-private respondent did in this case. But the question is this was that jurisdiction lost when the accused escaped from the custody of the law and failed to appear during the trial? We answer this question in the negative. As We have consistently ruled in several earlier cases,6 jurisdiction once acquired is not lost upon the instance of parties but continues until the case is terminated. To capsulize the foregoing discussion, suffice it to say that where the accused appears at the arraignment and pleads not guilty to the crime charged, jurisdiction is acquired by the court over his person and this continues until the termination of the case, notwithstanding his escape from the custody of the law. Going to the second part of Section 19, Article IV of the 1973 Constitution aforecited a "trial in absentia"may be had when the following requisites are present: (1) that there has been an arraignment; (2) that the accused has been notified; and (3) that he fails to appear and his failure to do so is unjustified. In this case, all the above conditions were attendant calling for a trial in absentia. As the facts show, the private respondent was arraigned on August 22, 1973 and in the said arraignment he pleaded not guilty. He was also informed of the scheduled hearings set on September 18 and 19, 1973 and this is evidenced by his signature on the notice issued by the lower Court. 7 It was also proved by a certified copy of the Police Blotter 8 that private respondent escaped from his detention center. No explanation for his failure to appear in court in any of the scheduled hearings was given. Even the trial court considered his absence unjustified. The lower court in accordance with the aforestated provisions of the 1973 Constitution, correctly proceeded with the reception of the evidence of the prosecution and the other accused in the absence of private respondent, but it erred when it suspended the proceedings as to the private respondent and rendered a decision as to the other accused only. Upon the termination of a trial in absentia, the court has the duty to rule upon the evidence presented in court. The court need not wait for the time until the accused who who escape from custody finally decides to appear in court to present his evidence and moss e the witnesses against him. To allow the delay of proceedings for this purpose is to render ineffective the constitutional provision on trial in absentia. As it has been aptly explained: . . . The Constitutional Convention felt the need for such a provision as there were quite a number of reported instances where the proceedings against a defendant had to be stayed indefinitely because of his non- appearance. What the Constitution guarantees him is a fair trial, not continued enjoyment of his freedom even if his guilt could be proved. With the categorical statement in the fundamental law that his absence cannot justify a delay provided that he has been duly notified and his failure to appear is unjustified, such an abuse could be remedied. That is the way it should be, for both society and the offended party have a legitimate interest in seeing to it that crime should not go unpunished. 9 The contention of the respondent judge that the right of the accused to be presumed innocent will be violated if a judgment is rendered as to him is untenable. He is still presumed innocent. A judgment of conviction must still be based upon the evidence presented in court. Such evidence must prove him guilty beyond reasonable doubt. Also, there can be no violation of due process since the accused was given the opportunity to be heard.

GANCAYCO, J.: Two basic issues are raised for Our resolution in this petition for certiorari and mandamus. The first is whether or not a court loses jurisdiction over an accused who after being arraigned, escapes from the custody of the law. The other issue is whether or not under Section 19, Article IV of the 1973 Constitution, an accused who has been duly tried in absentia retains his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against him. The following facts are not in dispute: On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando Cargando, Rogelio Baguio and the herein private respondent Teodoro de la Vega Jr., were charged with the crime of murder. On August 22, 1973 all the above-named. accused were arraigned and each of them pleaded not guilty to the crime charged. Following the arraignment, the respondent judge, Hon. Ramon E. Nazareno, set the hearing of the case for September 18, 1973 at 1:00 o'clock in the afternoon. All the acused including private respondent, were duly informed of this. Before the scheduled date of the first hearing the private respondent escaped from his detention center and on the said date, failed to appear in court. This prompted the fiscals handling the case (the petitioners herein) to file a motion with the lower court to proceed with the hearing of the case against all the accused praying that private respondent de la Vega, Jr. be tried in absentia invoking the application of Section 19, Article IV of the 1973 Constitution which provides: SEC. 19. In all criminal prosecution, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to the attendance of witnesses and the production of evidence in his behalf. However, after arraignment trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified. (Emphasis supplied.) * Pursuant to the above-written provision, the lower court proceeded with the trial of the case but nevertheless gave the private respondent the opportunity to take the witness stand the moment he shows up in court. 1 After due trial, or on November 6,1973, the lower court rendered a decision dismissing the case against the five accused while holding in abeyance the proceedings against the private respondent. The dispositive portion is as follows: WHEREFORE, insofar as the accused Samson Suan Alex Potot, Rogelio Mula Fernando Cargando and Rogelio Baguio are concerned, this case is hereby dismissed. The City Warden of Lapu-Lapu City is hereby ordered to release these accused if they are no longer serving sentence of conviction involving other crimes. The proceedings in this case against the accused Teodoro de la Vega, Jr. who has escaped on August 30,1973 shall remain pending, without prejudice on the part of the said accused to cross-examine the witnesses for the prosecution and to present his defense whenever the court acquires back the jurisdiction over his person. 2

Nor can it be said that an escapee who has been tried in absentia retains his rights to cross-examine and to present evidence on his behalf. By his failure to appear during the trial of which he had notice, he virtually waived these rights. This Court has consistently held that the right of the accused to confrontation and cross-examination of witnesses is a personal right and may be waived. 10 In the same vein, his right to present evidence on his behalf, a right given to him for his own benefit and protection, may be waived by him. Finally, at this point, We note that Our pronouncement in this case is buttressed by the provisions of the 1985 Rules on Criminal Procedure, particularly Section 1 (c) of Rule 115 which clearly reflects the intention of the framers of our Constitution, to wit: ... The absence of the accused without any justifiable cause at the trial on a particular date of which he had notice shall be considered a waiver of his right to be present during that trial. When an accused under custody had been notified of the date of the trail and escapes, he shall be deemed to have waived his right to be present on said date and on all subsequent trial dates until custody in regained.... Accordingly, it is Our considered opinion, and We so hold, that an escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against him. 11 WHEREFORE, in view of the foregoing, the judgment of the trial court in Criminal Case No. 112-L in so far as it suspends the proceedings against the herein private respondent Teodoro de la Vega, Jr. is reversed and set aside. The respondent judge is hereby directed to render judgment upon the innocence or guilt of the herein private respondent Teodoro de la Vega, Jr. in accordance with the evidence adduced and the applicable law. No pronouncement as to costs. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento, Cortes and Grio- Aquino, JJ., concur.

7 = G.R. No. 118435 June 20, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO SERZO, JR., accused-appellant.

PANGANIBAN, J.: The right to counsel of an accused is guaranteed by our Constitution, our laws and our Rules of Court. During custodial investigation, arraignment, trial and even on appeal, the accused is given the option to be represented by a counsel of his choice. But when he neglects or refuses to exercise this option during arraignment and trial, the court shall appoint one for him. While the right to be represented by counsel is absolute, the accused's option to hire one of his own choice is limited. Such option cannot be used to sanction reprehensible dilatory tactics, to trifle with the Rules or to prejudice the equally important rights of the state and the offended party to speedy and adequate justice. This will be amplified in this appeal seeking the reversal of the August 23, 1994 Decision of the Regional Trial Court of 1 Antipolo, Rizal, Branch 72, in Criminal Case No. 90-5997 convicting Appellant Mario Serzo, Jr. of murder under Article 248 of the Revised Penal Code. Appellant was charged with murder in an Information dated September 4, 1990 filed by Rizal Assistant Provincial 2 Prosecutor Filipinas Z. Aguilar-Ata, worded as follows: That on or about the 22nd day of August, 1990, in the Municipality of Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with bladed weapon, with intent to kill, with treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab one Alfredo Alcantara y Casabal at the back, thereby inflicting upon him stab wounds which directly caused his death. Thereafter, pre-trial was waived and the case proceeded to trial on the merits. After arraignment and trial, appellant was found guilty as charged and sentenced thus: 3 WHEREFORE, on the basis of the foregoing, the Court finds accused GUILTY BEYOND REASONABLE DOUBT of having committed the crime of MURDER and as prescribed under Article 248 of the Revised Penal Code, hereby sentences accused to suffer the penalty of reclusion perpetua and to indemnify the victim's wife in the amount of FIFTY THOUSAND PESOS (P50,000.00) as actual damages and TWENTY FIVE THOUSAND PESOS (P25,000.00) as moral damages and costs. The Antecedents Summarizing the testimonies of Adelaida Alcantara (the victim's widow), Medico-Legal Officer Dario L. Gajardo and Epifania Andrade, the trial court found the following facts: 4 Alfredo Alcantara Y Casabal never knew that death was just around the corner inevitably meeting his way. That fateful night of August 22, 1990, Alfredo together with his wife Adelaida Alcantara were ( sic) staying inside their house comfortably watching television when at around 11:30 in the evening, Susana Serzo, mother of the accused, and one Epifania Bentilacion came knocking at their doorsteps and pleading for help to bring out her grandchildren who were being held inside their house by her son, the accused in this case. Unhesitatingly, the couple heeded their call and went with them at (sic) their house, located just across the private complainant's residence. The spouses were able to rescue the grandchildren and to bring them to a safer place. When returning to their house, Alfredo Alcantara who was walking just armslength ahead of his wife, was attacked by accused Mario Serzo from behind. Accused stabbed Alfredo at his back forcing the latter to scamper for his dear life. However, accused was able to overpower him thereby causing his fall in the canal where he was repeatedly stabbed by the accused. Adelaida Alcantara shouted for help but was likewise attacked by the accused as she was only half-meter away from her husband. However, Adelaida fortunately was able to hold the hand of the knifewielder and persistently fought the accused. (p. 05 TSN June 3, 1991) At that moment, the commotion had already caught the attention of the residents within the vicinity who responded to help her thereby causing the accused to flee. The victim Alfredo Alcantara, who remained lying and motionless in the canal, was rushed to the hospital where he was confirmed dead. (p. 06 TSN June 3, 1991) The Medico-legal Officer, Dr. Dario Gajardo, testified in Court that the victim sustained three (3) stab wounds, two at the back and one in his chest, which instantaneously caused the victim's death. (p. 04 TSN May 13, 1991)

In view of appellant's allegation that he was denied his right to counsel, a narration of the proceedings before the trial court is now in order. Arraignment was set by the trial court on January 8, 1991, during which appellant appeared without counsel. Consequently, the trial court appointed Atty. Wilfredo Lina-ac as counsel de oficio for the arraignment only. Appellant, however, moved that the arraignment be reset and that he be given time to engage a counsel of his 5 own choice, which the trial court granted. On February 11, 1991, appellant appeared without a counsel de parte. He was nonetheless arraigned with the 6 assistance of Counsel de oficio Wilfredo Lina-ac. He pleaded "not guilty." Pre-trial was waived and trial was set on April 22, May 6 and 13, 1991 for the reception of the prosecution evidence and June 3 and 17, 1991 for the defense. The hearings scheduled on April 22, 1991 and May 6, 1991 were cancelled on motion of Public Prosecutor Robert H. 7 Tobia. On both dates, appellant appeared with Atty. Lina-ac. On May 13 and June 3, 1991, trial proceeded with the testimonies of prosecution witnesses. On behalf of appellant, Atty. Lina-ac cross-examined the said witnesses. On June 17, 1991, trial was again cancelled as appellant appeared without counsel. 8 On August 13, 1991, the 9 prosecution rested its case. On November 4 and 11, 1991, presentation of evidence for the defense was reset as appellant was not ready to 10 11 testify and he manifested his intention to secure the services of a counsel de parte. On March 3, 1992, Atty. Linaac was relieved as counsel de oficio in view of appellant's manifestation and refusal to cooperate with said 12 counsel. On April 6, 1992 appellant appeared without counsel, forcing the trial court to appoint another counsel de oficio, Bella Antonano. Counsels for both parties agreed to reset the trial, but appellant refused to sign the minutes of the proceedings. 13 On April 27, 1992, over vehement objection from the prosecution, hearing was reset for the last time as appellant was still looking for a counsel de parte. 15 On August 25, 1992, appellant appeared without counsel; thus, the trial court appointed Atty. Bonifacia Garcia of the Public Attorney's Office (PAO) as appellant's counsel de oficio. Again, trial was postponed. 16 On September 1 and October 19, 1992, trial was postponed on motion of Atty. Garcia. 17 Appellant again refused to sign the minutes of the proceedings for both trial dates. On November 5, 1992, appellant refused to cooperate with Atty. Garcia by declining to take the witness stand, forcing the defense to rest its case. 18 Both parties were ordered to submit their respective memoranda in ten days, after which the case would be submitted for decision. Atty. Garcia was further ordered to manifest within the same period whether appellant would change his mind and cooperate with her. No memorandum or manifestation was ever filed by appellant. Appellant wrote Judge Angeles three times within the period beginning December 16, 1992 until April 2, 1993, seeking legal advice and the early resolution of the case. Branch Clerk of Court Melchisedek A. Guan replied to him twice, informing him that Judge Angeles was prohibited by law from giving legal advice to litigants in cases pending in his court and that a decision was forthcoming. On July 13, 1994, appellant wrote Deputy Court Administrator Reynaldo L. Suarez, asking for the early resolution of his case. 19 The latter referred said letter to Judge Angeles for appropriate action. Thereafter, the assailed Decision convicting appellant of murder was promulgated on August 23, 1994. Ruling of the Trial Court In its Decision, the trial court noted that appellant simply refused to secure the services of a counsel de parte and to present evidence in his defense despite ample opportunity accorded to him. Said the trial court: The defense particularly the accused assisted by counsel however refused to present any evidence despite several opportunities afforded by the Court. As early as the arraignment stage, accused refused to be assisted by a counsel de oficio from the Public Attorney's Office (PAO) insisting that he be assisted by a counsel of his own choice. For several settings, accused and her (sic) mother were allowed to secure the services of a counsel de parte. However, they failed to present one. Hence, the Court, to avoid further delay in the proceedings of the case, was constrained to assign a counsel de oficio from the PAO. During the presentation of evidence for the defense, accused and counsel could not present any witness as accused refused to cooperate and to testify in Court. Hence, the defense waived its right to present any evidence.
14

Considering that this case has been dragging for several years already . . . the court . . . afforded the defense another opportunity to present its case by submitting its memorandum simultaneously with the Prosecution. Thereafter, the case 20 was submitted for decision. Consequently, the trial court convicted appellant on the basis of the evidence presented by the prosecution. Appellant was positively identified as the assailant by the widow, Adelaida Alcantara, who survived his attack. In her distinct and vivid narration of the sequence of events leading to the murder, she showed that the attack was treacherous as the victim was stabbed at the back and without warning. Not satisfied with the trial court's Decision, appellant through Counsel Carmelo L. Arcilla Assignment of Errors In his Brief filed by Atty. Arcilla, appellant questions his conviction for murder based on the following alleged errors on 22 the part of the trial court: I The lower court erred in not giving the defendant-appellant time to engage counsel of his own choice. II The lower court erred in not affording the defendant-appellant the chance to present evidence for his defense. III The lower court erred in not acquitting the defendant-appellant. Mainly, appellant alleges that he had been denied effective legal representation. His thesis is that the trial court did not give him enough time to engage a counsel de parte, effectively depriving him of the chance to present evidence in his defense. In fact, the scant five-page Appellant's Brief was dedicated entirely to this argument without contesting the facts found by the trial court. The Court's Ruling The right of an accused to counsel is guaranteed by the Constitution, the supreme law of the land. This right is granted to minimize the imbalance in the adversarial system where the accused is pitted against the awesome prosecutory machinery of the state. In the words of Justice Black, 23 this is a "recognition . . . that an average (accused) does not have the professional skill to protect himself . . . before a tribunal with power to take his life or liberty, wherein the (prosecutor) is . . . an experienced and learned counsel." In Powell vs. Alabama, 24 Mr. Justice Sutherland wrote at greater length on why an accused needs a competent counsel: Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. The right covers the period beginning from custodial investigation, well into the rendition of judgment, 25 and even on appeal. Article III of the 1987 Constitution provides this right to an accused not only during trial but even before an information is filed. It provides: Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. Sec. 14 (1) No person shall be held to answer for a criminal offense without due process of law.
21

appealed to this Court.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, . . . With these precepts as springboard, the Rules of Court grants an accused the right to counsel under the following provisions, viz.: RULE 112 PRELIMINARY INVESTIGATION xxx xxx xxx Sec. 7. When accused lawfully arrested without warrant. . . . However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. . . . . xxx xxx xxx RULE 113 ARREST Sec. 14. Right of attorney or relative to visit person arrested. Any member of the bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person, in the jail or any other place of custody at any hour of the day or, in urgent cases, of the night. This right shall also be exercised by any relative of the person arrested subject to reasonable regulation. Rule 115 RIGHTS OF ACCUSED Sec. 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled: xxx xxx xxx (c) To be present and defend in person and by counsel at every stage of the proceedings, from the arraignment to the promulgation of the judgment. . . . . xxx xxx xxx Rule 116 of the Rules of Court makes it compulsory that the trial court inform the accused of his right to counsel prior to arraignment, thus: Sec. 6. Duty of court to inform accused of his right to counsel. Before arraignment, the court shall inform the accused of his right to counsel and shall ask him if he desires to have one. Unless the accused is allowed to defend himself in person, or he has employed counsel of his choice, the court must assign a counsel de oficio to defend him. Sec. 7. Appointment of counsel de oficio. The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the bar in good standing who, by reason of their experience and ability may adequately defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused. Even on appeal, the accused is still afforded the right to counsel under Rule 122: 26

Sec. 13. Appointment of counsel de oficio for accused on appeal. It shall be the duty of the clerk of the trial court upon the presentation of a notice of appeal in a criminal case, to ascertain from the appellant, if he be confined in prison, whether he desires the Court of Appeals or the Supreme Court to appoint a counsel to defend him de oficio and to transmit with the record, upon a form to be prepared by the clerk of the appellate court, a certificate of compliance with this duty and of the response of the appellant to his inquiry. The foregoing is buttressed by another provision in Rule 124: Sec. 2. Appointment of counsel de oficio for the accused. If it appears from the record of the case as transmitted: (a) that the accused is confined in prison, (b) without counsel de parte on appeal, and (c) signed the notice of appeal himself, then the clerk of the Court of Appeals shall designate a member of the bar to defend him, such designation to be made by rotation, unless otherwise directed by order of the court. An accused-appellant not confined in prison shall not be entitled to a counsel de oficio, unless the appointment of such counsel is requested in the appellate court within ten (10) days from receipt of the notice to file brief and the right thereto is established by affidavit. Recently, Republic Act No. 7438 was enacted providing, inter alia, that any person arrested, detained or under custodial investigation shall at all times be assisted by counsel. A deprivation of the right to counsel divests the accused of an equality in arms resulting in the denial of a level playing field, so to speak. In a previous case, this Court held that an accused was deprived of his right to counsel when he 27 28 retained the services of a person who misrepresented himself as a lawyer. In People vs. Malunsing, retrial was ordered on the ground that petitioner was denied his constitutional right to counsel. Very old and unlettered, he was shown not to have understood what was going on during the trial. In said case, although the lawyer of his co-accused was appointed as his counsel, petitioner was not properly apprised by said court of his right to be assisted by counsel. No evidence was presented for and on his behalf and the trial court did not even bother to inquire why he did not take the witness stand when all the other defendants were presented as witnesses. This is the legal backdrop against which appellant's allegation of deprivation of his right to counsel shall be measured. Right to Counsel De Parte Is Not Absolute Accordingly, an accused may exercise his right to counsel by electing to be represented either by a court-appointed lawyer or by one of his own choice. While his right to be represented by counsel is immutable, his option to secure the services of counsel de parte, however, is not absolute. The court is obliged to balance the privilege to retain a counsel of choice against the states's and the offended party's equally important right to speedy and adequate justice. Thus, the court may restrict the accused's option to retain a counsel de parte if the accused insists on an attorney he cannot afford, or the chosen counsel is not a member of the bar, or the attorney declines to represent the accused for a valid reason, e.g. conflict of interest and the like. 29 Also, the right to counsel de parte is, like other personal rights, waivable 30 so long as (1) the waiver is not contrary to law, public order, public policy, morals or good customs; or prejudicial to a third person with a right recognized by law 31 and (2) the waiver is unequivocally, knowingly and intelligently made. 32 In Sayson vs. People, 33 this Court held that the duty of the court to appoint a counsel de oficio is not mandatory where the accused has proceeded with the arraignment and the trial with a counsel of his choice but, when the time for the presentation of the evidence for the defense was due, he appears by himself alone because of the inexcusable absence of his counsel. In another case, this Court held that the right to be heard and to reopen the case (and send it to trial anew) could not be allowed if doing so would sanction a plainly dilatory tactic and a reprehensible trifling with the orderly administration of justice. 34 In the present case, appellant claims that he was not given sufficient time to engage a counsel de parte, thereby preventing him from presenting evidence in his defense. In his Brief he adds, but without giving particulars or proof, that allegedly his counsels de oficio did not exert their "utmost efforts" in representing him, thus: 35 . . . (T)he lower court afforded the accused the assistance of counsel de oficio as early as the arraignment stage but failed to show that utmost efforts were exerted by said counsel to defend the life and liberty of the accused. The duty of the court is not ended with such appointment, however, as it should also see to it that the counsel does his duty by the

defendant. Counsel de oficio should not merely make the motions of defending the accused but exert his utmost efforts as if he were representing a paying client. The Solicitor General, in his eleven-page Brief, 36 rebuts this, arguing that appellant's actions during the trial showed instead a "lackadaisical stance on his own defense." Appellant had been given ample time to secure the services of a counsel de parte, but his subsequent appearances in court without such counsel and his act of allowing this situation to continue until the presentation of his evidence betrays his lack of intention to do so. It even appears that he was merely delaying his own presentation of evidence on purpose to the prejudice of the offended party, the trial court and the orderly administration of justice. Furthermore, appellant did not demonstrate in what way the services of his counsels de oficio were unsatisfactory. He did not cite any instance substantiating his claim that he was not effectively represented. In short, he was afforded a chance to be heard by counsel of his own choice, but by his own neglect or mischief, he effectively waived such right. It taxes the mind to think that, almost two years 37 since appellant first invoked his right to be represented by counsel de parte, he still could not find one who would suit his needs and desires. Neither did he cooperate with his court-named lawyers. The facts of this case do not constitute a deprivation of appellant's constitutional right to counsel because he was adequately represented by three court-appointed lawyers: Atty. Lina-ac, Atty. Antonano and Atty. Garcia. Courts are not required to await indefinitely the pleasure and convenience of the accused as they are also mandated to promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with the rules. Indeed, public policy requires that the trial continue as scheduled, considering that appellant was adequately represented by counsels who were not shown to be negligent, incompetent or otherwise unable to represent him. Crime and Punishment In spite of appellant's failure, either through negligence or unreasonable refusal, to impute errors to the assailed Decision other than the alleged violation of his right to counsel this Court nonetheless scoured the records of the trial, perused the transcripts of the testimony of the witnesses for the prosecution, evaluated the evidence and examined the applicable laws and jurisprudence to determine the correctness of the trial court's Decision. We, however, find no cogent reason to reverse the conviction of appellant. In a case of murder or homicide, it is enough that the death of the victim and the responsibility of the person who caused such death are proven 38beyond reasonable doubt. Both elements were duly established by the prosecution witnesses. Dr. Gajardo testified to the fact of death while Widow Adelaida Alcantara positively identified the appellant as the assailant. Based on the facts established by the prosecution which remain uncontested, the Court affirms the trial court's appreciation of the qualifying circumstance of treachery. To constitute treachery, two conditions must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate and (2) deliberate or conscious adoption of the means of execution. 39 The manner of the attack itself is proof enough of alevosia. Widow Adelaida vividly described the stabbing as follows: 40 Q: And you said a certain Suzana Serzo together with one Epifania Bentilacion came to your house and asked for help from you, is that right? A: Yes, sir. Q: And that you responded for help Mrs. witness? A: Yes, sir. Q: And you are together with your husband in helping Suzana Serzo? A: Yes, sir. Q: What was the help she was asking Mrs. witness? xxx xxx xxx

A: She was asking to help her children being held by Mario Serzo by not letting them go out of the house. xxx xxx xxx Q: Were you able to help the grandchildren of Suzana Serzo? A: Yes, sir. Q: And after you help (sic) them what happened next? A: We brought them to where they could hide and then we went home. Q: You said you heard somebody approaching you at the back through the sound of his footsteps is that right? A: Yes, sir. xxx xxx xxx Q: What happened next after you hear (sic) those footsteps at your back? A: My husband was just beside me. Q: And immediately your husband was stabbed by the accused? A: Yes, sir. From this testimony, it appears that appellant waited for the victim and his wife and pounced on them swiftly and without warning. The victim and his wife were already on their way home after transferring appellant's children to a safe place. They were unarmed as they had absolutely no idea that appellant would attack them right then and from behind. The manner of the attack tended directly and especially to insure the execution of the crime without risk to appellant and virtually no chance for the victim to defend himself. 41 Even Adelaida's life would have been mortally threatened were it not for the timely intervention of her neighbors. Damages and Indemnity Actual and moral damages require the presentation of proof before they can be awarded by the trial court. 42According to Adelaida, burial expenses in the amount of P2,000.00 were incurred. 43 This is separate and distinct from civil indemnity awarded under prevailing jurisprudence, which is granted without further proof beyond the fact of death and the accused's responsibility therefor. Moral damages were not discussed at all in Adelaida's testimony. Hence, without any factual basis, the award of moral damages is not justified. WHEREFORE, the assailed Decision is hereby AFFIRMED, but the award of moral damages is DELETED. Instead, appellant is ORDERED TO PAY the amount of P50,000.00 as civil indemnity and actual damages of P2,000.00 as burial expenses. SO ORDERED.

8 = G.R. No. 112983 March 22, 1995 PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. HECTOR MAQUEDA @ PUTOL, and RENE SAGVAMAIJTE (at large), Accused, HECTOR MAQUEDA @ PUTOL, Accused-Appellant. DAVIDE, JR., J.: As against a bustling city life, Britisher Horace William Barker, a consultant of the World Bank, and his Filipino wife, Teresita Mendoza, chose the peace and quiet of a country home not any near the metropolis of Manila or its environs, but in the rugged and mountainous terrain of Tuba, Benguet. Perhaps they thought they were in a veritable paradise, beyond the reach of worldly distractions and trouble when in the early morning of 27 August 91, in the, sanctity of their own home, Horace was brutally slain and Teresita badly battered with lead pipes on the occasion of a robbery. Sufficient prima facie evidence pointed to Rene Salvamante, the victimsformer houseboy, as one of the perpetrators of the That illusion was shattered ghastly crime. As to Rene's co-conspirator, the, prosecution initially included one Richard Malig y Severino in the information for 1 robbery with homicide and serious physical injuries filed on 19 November 1991 with Branch 10 of the Regional Trial Court (RTC) of Benguet at La Trinidad, Benguet. Only Richard Malig was arrested On 22 January 1992, prior to the arraignment of Richard Malig, the prosecution filed a 2 motion to amend the information to implead as co-accused Hector Maqueda alias Putol because the evaluation Of the evidence subsequently submitted established his complicity in the crime, and at the hearing of the motion the following day, the Prosecutor further asked that accused Richard Malig be dropped from the information because further evaluation of the evidence disclosed no sufficient evidence against him. 3 The motion to drop Malig was granted and warrants for the arrest of accused Salvamante and Maqueda were issued. Maqueda was subsequently arrested on 4 March 1992, and on 9 April 1992, he filed an application for bail. 4 He categorically stated therein that "he is willing and volunteering to be a State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this case." On 22 April 1992, the prosecution filed an Amended Informations 5 with only Salvamante and Maqueda as the accused. Its accusatory portion reads as follows: That on or about the 27th Of August, 1991, at Tagadi; Upper Tadiangan Municipality of Tuba, Province Of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the, above-named accused, Conspiring, confederating and mutually aiding one another, armed with lead pipes, and with intent of gain and against the will and consent of the owners thereof, did then and there willfully, unlawfully and feloniously enter the house of Spouses TERESITA and WILLIAM HORACE BARKER and with violence against and intimidation of the persons therein ransack the place and take and carry away the following articles, to ,it: [An enumeration and description of the articles follow] all having a total value of TWO HUNDRED FOUR THOUSAND TWO HUNDRED FIFTY PESOS (P204.250.00), Philippine Currency, belonging to, the said Teresita and William Horace Barker; that on the occasion and by reason of the said robbery; both accused willfully, unlawfully and feloniously repeatedly strike Teresita Barker and William Horace Barker with lead pipes on the different Parts of their body, leading to the death of William Horace Barker and inflicting various physical injuries on the former which required medical attendance for a period of more than thirty (30) days and have likewise incapacitated her from the performance of her, customary labor for the same period of time. Contrary to Law. Since Rene Salvamante continues to elude arrest and has remained at large, trial proceeded entered a plea of not guilty on 22 April 1992. 6 In its decision 7 Promulgated on 31 August 1993, the trial Maqueda guilty beyond reasonable doubt of the crime of robbery with homicide and serious physical Injuries and sentenced him to Suffer the penalty of reclusion perpetuaand to indemnify the victim, Teresita M, Barker in the amount of P50,000.00 for the death of William Horace Barker, court

found accused Hector P41,681,00 representing actual expenses, P100,000.00 as moral damages and to pay the costs." The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker, househelps Norie Dacara and Julieta Villanueva, Mike Tayaban, Dr. Francisco Hernandez, Jr., Francisco Cabotaje, prosecutor Daniel Zarate, Ray Dean Salvosa, Glen Enriquez, SPO1 Rodolfo Tabadero, and Policarpio Cambod in its evidence in chief and Fredesminda Castrence and SP03 Armando Molleno on rebuttal. Accused Hector Maqueda took the witness stand and presented SPO1 Aurelio Sagun, Jr. in his evidence in chief and Myrna Maqueda Katindig as his sour-rebuttal witness. The version of the prosecution, as culled from the trial court's detailed and meticulous summary thereof, is as follows: Between 10:30 and 11:00 pm. of 26 August 1991, the spouses Horace William Barker and Teresita Mendoza Barker repaired to their bedroom after Teresita had checked, as washer wont, the main doors of their house to see if they had been locked and bolted. At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a househelp of the Barkers who shared a room with her cousin and fellow househelp, Julieta Villanueva, got up, opened the door to the garage, went to the lavatory to wash her face, and proceeded to the toilet. When she opened the door of the toilet and switched. on the light, she saw Rene Salvamante. She knew Salvamante very well because he and his sister Melanie were the former househelps of the Barkers whom she and Julieta Villanueva had replaced and because Salvamante had acquainted her on her chores. Salvamante suddenly strangled her. While she Was fighting back, Norie happened to turn her face and she saw a faircomplexioned, tall man with a high-bridged nose at Salvamante's side, whom she identified at the trial as Maqueda. After she broke free from Salvamante, Norie fled towards the garage and shouted for help. Salvamante chased her and pulled her back inside the house. Julieta Villanueva, who was awakened by the shouts of Norie, got out of her bed and upon opening the door of her room, saw a man clad in maong jacket and short pants with 'his right hand brandishing a lead pipe standing two meters in front of her. At the trial, She pointed to, accused Maqueda as the man she saw then. (She got scared and immediately closed the door. Since the door knob turned as if someone was forcing his way into the room, she held on to it and shouted for help. The shouts awakened Teresita Mendoza Barker. She rose from her bed and went out of the room, leaving behind her husband who was still asleep; She went down the Stairs and proceeded t, the dining room. She saw Salvamante and a companion who was a complete stranger to her. Suddenly the two rushed towards her and beat her up with lead pipes. Despite her pleas to get what they want and not to hurt her, they continued to beat her up until she lost consciousness. At the trial, she pointed to accused Maqueda as Salvamante's companion. Salvamante also hit Norie with the lead pipe on her back and at theback of her right hand. She fell to the concrete floor, and after she had recovered, she ran to-the garage and hid under the car. After a few seconds, ,he went near the door of the garage and because she could not open it, she called Julieta. Julieta opened the door and they rushed to their room and closed the door. When they saw that the door knob was being turned, they braced themselves against the door to prevent anyone from entering. While locked in their room, they heard the moans of Mrs. Barker and the shouts of Mr. Barker: "That's enough, that's enough, that's enough." When the noise stopped, Norie and Julieta heard the sound of water flowing from the toilet and the barking of dogs. At 7:00 a.m. of that same day, 27 August 1991, Mike Tabayan and Mark Pacio were resting in a waiting shed beside the Asin road at Aguyad, Tuba, Benguet, which is only a kilometer away from the house of the Barkers. They saw two men approaching them from a curve. When the two men reached the shed, he and Mark noticed that the taller of the two had an amputated left hand and a right hand with a missing thumb and index finger. This man was carrying a black bag on his right shoulder Speaking in Tagalog, the taller man asked Mike and Mark whether the road they were following would lead to Naguilian, La Union. Mike replied that it did not. Five minutes later, a passenger jeepney bound for Baguio City and owned and driven by Ben Lusnong arrived at the waiting shed. The two men bearded it, Mike again noticed that the taller man had the defects above mentioned because the latter used his right hand with only three fingers to hold on to the bar of the jeepney as he bearded it. In the Investigation conducted by the Tuba Police, he identified through a picture the shorter man as Salvamante, and at the hearing, he pointed to Maqueda as the taller man.

At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered bough courage to leave the room where they had earlier barricaded themselves and proceed to the kitchen to get the key to the gate of the garage. In the dining room, they saw the Barkers bathed in their own blood. Norie and Julieta rushed out of the house and ran to the place of Janet Albon to seek help. After requesting Janet to call the police, they returned to the Barker's house but did not enter it for fear of what they had seen earlier. They just stayed near the road. Soon after, security guards of the Baguio College Foundation (BCF) arrived. A team from the Baguio City Police Station, headed by Police Officer Policarpio Cambod, and which included Dr. Perfecto Micu of the City Health Department, also arrived. The team conducted an initial investigation only because it found out that the scene of the crime was within the jurisdiction of the Tuba Police Station, which, however, was difficult to get in touch with at that time. Dr. Perfecto Micu found the body of Mr. Barker inside the Barker house and Cambod prepared a sketch (Exhibit "JJ") showing its location.' They went around the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt (Exhibit "CC"), and a green hand towel (Exhibit "DD"). He also discovered another lead pipe (Exhibit "BB") at the back of the door of the house. He then interviewed the two househelps who provided him with descriptions of the assailants. The team then left, leaving behind BCF Security Officer Glen Enriquez and a security guard. Cambod prepared a report of his initial investigation (Exhibit "KK"). Enriquez conducted his own investigation. At the master's bedroom, he saw several pieces of jewelry scattered on the floor and an empty inner cabinet. He noticed footprints at the back of the house, particularly at the riprap wall, and observed that the grass below it was parted as if someone had passed through and created a trail amidst the grass down toward the Asin road of Tuba, Benguet. Upon his request, a security guard of the BCF, Edgar Dalit, was sent to the Barker house to secure the premises. Enriquez then left after Dalit's arrival. At 5:00 p.m. of that same day, members of the Tuba Police Station arrived at theBarker house to conduct their investigation. Enriquez, who in the meantime was called by Dalit, returned to the Barker house. The lead pipes, black T-shirt, and the green hand towel recovered from the Barker house by the Baguio City Police were first brought to the PNP Crime Laboratory Service at Camp Dangwa, La Trinidad, Benguet, and then to the court. The body of William Horace Barker was taken to the Baguio Funeral Homes at Naguilian Road, Baguio City, where it was examined by Dr. Francisco P. Cabotaje, MunicipalHealth Officer of Tuba, Benguet. H, found in it twenty-seven injuries, which could have been caused by a blunt instrument, determined the cause of death as hemorrhagic shock, and then issued a death certificate (Exhibits "P," "O," and "R"). The wounded Teresita Barker was brought to the Baguio General Hospital and Medical Center where she was treated and confined for eight days. The attending physician, Dr. Francisco L. Hernandez, Jr., first saw her at around 11:00 a.m. of 27 August 1991. She was in a comatose state. Dr. Hernandez found that she sustained multiple lacerations primarily an the left side of the occipital area, bleeding in the left ear, and bruises on the arm. One of the muscles adjoining her eyes was paralyzed. She regained consciousness only after two days. Dr. Hernandez opined that Mrs. Barker's injuries were caused by a blunt instrument, like a lead pipe, and concluded that if her injuries had been left unattended, she would have died by noontime of 27 August 1991 due to bleeding or hemorrhagic shock. On 1 September 1991, a police team from the Tuba Police Station, Benguet, came to the hospital bed of Mrs. Barker, showed her pictures of several persons, and asked her to identify the persons who had assaulted her. She pointed to a person who turned out to be Richard Malig. When informed of the investigation, Dr. Hernandez told the members of the team that it was improper for them to conduct it without first consulting him since Mrs. Barker had not yet fully recovered consciousness. Moreover, her eyesight had not yet improved, her visual acuity was impaired, and she had double vision. On 3 September 1991, the remains of Mr. Barker were cremated. Mrs. Barker was then discharged from the hospital and upon getting home, tried to determine the items lost during the robbery. She requested Glen Enriquez to get back the pieces of jewelry taken by the Tuba PNP (Exhibit "U"). The Tuba PNP gave them to Enriquez (Exhibit "V"). Mrs. Barker discovered that her Canon camera, radio cassette recorder (Exhibit "W-3"), and some pieces of jewelry (Exhibit "W-2") were missing. The aggregate value of the missing items was P204,250.00. She then executed an affidavit on these missing items (Exhibit "X.). Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City. It was revealed that she sustained a damaged artery on her left eye which could cause blindness. she then sought treatment at the St. Luke's Roosevelt Hospital in New York (Exhibit "L") where she underwent an unsuccessful operation. She likewise received treatment at the New York Medical Center (Exhibit "M").

On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the BCF, ordered Glen Enriquez to go to Guinyangan, Quezon, to coordinate with the police in determining the, whereabouts of accused Rene Salvamante. In Guinyangan, Enriquez was able to obtain information from the barangay captain, Basilio Requeron, that he saw Salvamante together with a certain "Putol" in September 1991; however, they already left the place. On 21 December 1991, Enriquez, Melanie Mendoza, and three others went back to Guinyangan to find out whether Salvamante and "Putol" had returned. Upon being informed by Barangay Captain Requeron that the two had not, Enriquez requested Requeron to notify him immediately once Salvamante or "Putol" returned to Guinyangan, On 4 March 1992, Requeron's daughter called up Enriquez to inform him that Putol," who is none other than accused Hector Maqueda, had been arrested in Guinyangan. Enriquez and Maj. Rodolfo Anagaran, Chief of the Tuba Police Station, together with another policeman, Proceeded to Guinyangan. The Guinyangan Police Station turned over Maqueda to Maj. Anagaran who then brought Maqueda to the Benguet Provincial Jail. Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken to the. headquarters of the 235th PNP Mobile Force Company at Sta. Maria, Calauag, Quezon. Its commanding officer, Maj. Virgilio F. Rendon, directed SP03 Armando Molleno to get Maqueda's statement. He did so and according to him, he informed Maqueda of his rights under the Constitution. Maqueda thereafter signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation in the crime at the Barker house on 27 August 1991. On 9 April 1992, while he was under detention, Maqueda filed a Motion to Grant Bail (Exhibit "GG-6"). He stated therein that "he is willing and volunteeringto be a State witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." Prosecutor Zarate then had a talk with Maqueda regarding such statement and asked him if he was in the company of Salvamante on 27 August 1991 in entering the house of the Barkers. After he received an affirmative answer, Prosecutor Zarate told Maqueda that he would oppose the motion for bail since he, Maqueda, was the only accused on trial (Exhibit "II"). In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and obtained permission from the latter to talk to Maqueda. Salvosa then led Maqueda toward the balcony. Maqueda narrated to Salvosa that Salvamante brought him to Baguio City in order to find a job as a peanut vendor; Salvamante then brought him to the Barker house and it was only when they were at the vicinity thereof that Salvamante revealed to him that his zeal purpose in going to Baguio City was to rob the Barkers; he initially objected to the plan, but later on agreed to it; when they were in the kitchen of the Barker house, one of the househelps was already there; Salvamante hit her with a lead pipe and she screamed; then Mrs. Barker came down, forcing him, Maqueda, to attack her with the lead pipe providedhim by Salvamante, After he felled Mrs. Barker, he helped Salvamante in beating up Mr. Barker who had followed his wife downstairs. the Barkers were already unconscious on the' floor, Salvamante went upstairs and a few minutes later came down bringing with him a radio cassette and some pieces of jewelry. Maqueda further divulged to Salvosa that they then changed clothes, went out of the house, walked toward the road where they Saw two persons from whom they asked directions, and when a passenger jeepney stopped and they were informed by the two Persons that it was bound for Baguio City, he and Salvamante bearded it. They alighted somewhere along Albano Street in Baguio City and walked until they reached the Philippine Rabbit Bus station where they boarded a bus for Manila. 8 Accused Hector Maqueda put up the defense of denial and alibi. Hi, testimony is summarized by the trial court in this wise: Accused Hector Maqueda denied having anything to do with the crime. He stated that O" August 27, 1991 he was at the polvoron factory owned by Minda Castrense located at Lot 1, Block 21 Posadas Bayview Subdivision, Sukat, Muntinlupa, Metro Manila. He was employed as a caretaker Since July 5, 1991 and he worked continuously there up to August 27, 1991, It was his sister, Myrna Katindig, who found him the job as caretaker. A, caretaker, it was his duty to supervise the employees in the factory and whenever his employer was not around, he was in charge of the sales. He and his 8 co-employees all Sleep inside the factory. On August 26, 1991, he reported for work although he could not recall what he did that day. He slept inside the factory that night and on August 27, 1991, he was teaching the new employees how to make the seasoning for the polvoron. On December 20, 1991, he went home to Gapas, Guinyangan, Quezon Province as it was his vacation time from his job at the polvoron factory. He was to be back at work after New Year's Day in 1992. Upon alighting from the bus at Guinyangan, Quezon, he saw accused Rene Salvamante. He knows accused Salvamante as they were childhood

playmates, having gone to the same elementary school. He had no chance to talk to him that day when he saw him and so they just waved to each other. He again saw accused Salvamante after Christmas day on the road beside their (Salvamante) house. Salvamante invited him to go to Calauag, Quezon Province and roam around. He agreed to go as he also wanted to visit his brother, Jose Maqueda who resided at Sabangdos, Calauag, Quezon. When the two accused were at Calauag, Salvamante asked Maqueda to accompany him /Salvamante) in selling a cassette recorder which he said came from Baguio City. Accused Maqueda knew that Salvamante worked in Baguio as the latter's mother told him about it. They were able to sell the cassette recorder to Salvamante's aunt. They had their meal and then went to visit accused Maqueda's brother. After that occasion, he never saw accused Salvamante again. After his Christmas vacation, he went back to work a the polvoron factory until February 29, 1992. One of his co-workers Roselyn Merca, who was a townmate of his asked him to accompany her home as she was hard up in her work at the factory. Hence, he accompanied Rosely home to Guinyangan, Quezon. He was supposed to report back for work on March 2, 1992 but he was not able to as he was arrested by members of the CAGFU at the house of Roselyn Merca when he brought her home. He was then brought to the Guinyangan municipal jail, then to the Tuba Police Station, Tuba, Benguet. There he was told to cooperate with the police in arresting Salvamante so he would not stay long in the Province of Benguet. He was also told that if he would point to accused Salvamante, he would be freed and he could also become a state witness: He told them that he could attest to the fact that he accompanied accused Salvamante in selling the cassette recorder. On March 5, 1992, he was brought to the Benguet Provincial Jail at La Trinidad, Benguet where he has remained under detention up to the present. 9 The prosecution rebutted the testimony of Hector Maqueda by presenting Fredesminda Castience and SP03 Armando Molleno. Castrence, the owner of the polvoron factory where Maqueda worked, testified that she started her business only on 30 August 1991 and thus it was impossible for her to have hired Maqueda on 5 July 1991. SP03 Molleno declared that he informed Maqueda of his constitutional rights before Maqueda was investigated and that Maqueda voluntarily and freely gave his Sinumpaang Salaysay (Exhibit "LL"). 10 Although the trial court had doubts on the identification of Maqueda by prosecution witnesses Teresita Mendoza Barker, Norie Dacara, and Julieta Villanueva and thus disregarded their testimonies on this matter, it decreed a conviction "based on the confession and the proof of corpus delicti" as well as on circumstantial evidence. It stated thus: Since we have discarded the positive identification theory of the prosecution pinpointing accused Maqueda as the culprit, can we still secure a conviction based on the confession and the proof of corpus delicti as well as on circumstantial evidence? In order to establish the guilt of the accused through circumstantia1 evidence, the following requisites must be present: 1) there must be more than One circumstance; 2) the facts from which the inferences are derived are proved; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt ( People vs. Pajarit, G.R. No. 82770, October 19, 1992, 214 SCRA 678). There must be an unbroken chain of circamstances which leads to one fair and reasonable conclusion pointing to the defendant to the exclusion of all Others, as the author of the crime (People vs. Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569). The circumstances shown by the prosecution which tend to show the guilt of the accused are: 1. A physical demonstration to which the accused and his counsel did not offer any objection shows that despite his being handicapped, accused Maqueda could well and easily grip a lead pipe and strike a cement post with such force that it produced a resounding vibration. It is not farfetched then to conclude that accused Maqueda could have easily beat Mr. Barker to death. 2. His presence within the vicinity of the crime scene right after the incident in the company of accused Salvamante was testified to by Mike Tabayan, the only prosecution witness who noticed the defective hands of the accused. As they had to ask for directions from the witness in the Tagalog dialect shows that they were strangers to the place 3. Accused Maqueda knows or is familiar with accused Rene Salvamante as they from the same town. By his own testimony, accused Maqueda has established that he Salvamante are close friends to the point that they went out together during the Christmas vacation in 1991 and he even accompanied Salvamante in selling the black radio cassette recorder. 4. His Motion to Grant Bail (Exhibit "HH") contains this statement that he is willing and volunteering to be State witness in the above-entitled case, it the accused in appearing that he is the least guilty along This in effect, supports his

extrajudicial confession trade to the police at Although he claims that he did not his signature would lean his as he was just told that release from detention, this is a flimsy excuse which cannot Had he not understood what the motion meant, he could have easily asked his sister and brother-in-law what it meant seeing that their signatures up already affixed on the motion. 5. This time, his admission to Prosecutor Zarate that he was at the Barker house that fateful morning and his even more damaging admission to Ray Dean Salvosa as to what he actually did can be considered as another circumstance to already bloster the increasing circumstances against the accused. 6. The accused's defense is alibi. As stated in a long Line of cases, alibi is at best a weak defense and easy of fabrication (People vs. Martinado, G.R. No. 92020, October 19, 1992, 214 SCRA 712). For alibi to be given credence, it must not only appear that the accused interposing the same was at some other place but also that it was physically impossible for him to be at the scene of the crime at the time of its commission (People vs. Pugal, G.R. No. 90637, October 29, 1992, 215 SCRA 247). This defense easily crumbles down as Tayaban placed accused Maqueda at vicinity of the crime scene. The combination of all these circumstances plus extrajudicial confession produce the needed proof beyond reasonable 11 doubt that indeed accused Maqueda is guilty of the crime. The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit: "LL") of Maqueda taken by SP02 Molleno immediately after Maqueda was arrested. Maqueda seasonably appealed to us his conviction. In his 14-page brief, he pleads that we acquit him because the trial court committed this lone error: . . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. 12 Only three pages of the brief, typed double space, are devoted to his arguments which are anchored on his alibi that at the time the crime Was committed he was not in Benguet but in Sukat, Muntinlupa, Metro Manila, ad the failure of the star witnesses for the Prosecution to identify him. He alleges that Mrs. Barker, when investigated at the hospital, Pointed to Richard Malig as the companion of Rene Salvamante, and that when initially investigated, the two housemaids gave a description of Salvamante's companion that fitted Richard Malig. We find no merit in this appeal. As hereinafter shown, the defense of alibi is unconvincing. The accused's arguments which stress the incredibility of the testimonies of Mrs. Barker and the househelps identifying Maqueda are misdirected and misplaced because the trial court had ruled that Mrs. Teresita Mendoza Barker and the two housemaids, Norie Dacara and Julieta Villanueva, were not able to positively identify Magueda, The trial court based his conviction on his extrajudicial confession and the proof of corpus delicti, as well as on circumstantial evidence. He should have focused his attention and arguments on these. From its ratiocinations, the trial court made a distinction between an extrajudicial confession the Sinumpaang Salaysay and an extrajudicial admission the, verbal admissions to Prosecutor Zarate and Ray Dean Salvosa. A perusal of the Sinumpaang Salaysay fails to convince us that it is an extrajudicial confession. It is only an extrajudicial admission. There is a distinction between. the former and the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules of Court which read as follows: Sec. 26. Admission of a party. The act, declaration or omission of party as to a relevant fact may be given in evidence against him. xxx xxx xxx Sec. 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. In a confession, there is an acknowledgment of guilt. The term admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of his guilt or of the criminal intent 13 to commit the offense with which he is charged. Wharton distinguishes a confession from an admission as follows:

A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a 14 conviction and which tends only to establish the ultimate fact of guilt. And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient for conviction unless corroborated by evidence of corpus delicti. The trial court admitted the Sinumpaang Salaysay of accused Maqueda although it was taken without the assistance of counsel because it was of the opinion that since an information had already benefited in court against him and he was arrested pursuant to a warrant of arrest issued by the court, the Sinumpaang Salaysay was not, therefore, taken during custodial investigation. Hence, Section 12(1), Article III of the Constitution providing as follows: Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. is not applicable, i.e., the police investigation was " no longer within the ambit of a custodial investigation." It heavily 16 relied on People vs. Ayson where this Court elucidated on the rights of a person under custodial investigation and the rights of an accused after a case is filed in court. The trial court went on to state: At the time of the confession, the accused was already facing charges in court. He no longer had the right to remain silent and to counsel but he had the right to refuse to be a witness and not to have any prejudice whatsoever result to him by such refusal. And yet, despite his knowing fully well that a case had already been filed in court, he still confessed when he did not have to do so. 17 The trial court then held that the admissibility of the Sinumpaang Salaysay should not be tested under the aforequoted Section 12(1), Article III of the Constitution, but on the voluntariness of its execution. Since voluntariness is presumed, Maqueda had the burden of proving otherwise, which he failed to do and, hence, the Sinumpaang Salaysay was admissible against him. As to the admissions made by Maqueda to Prosecutor Zarate and Ray Dean Salvosa, the trial court admitted their testimony thereon only to prove the tenor of their conversation but not to prove the truth of the admission because such testimony was objected to as hearsay. It said: In any case, it is settled that when testimony is presented to establish not the truth but the tenor of the statement or the fact that such statement was made, it is not hearsay (People vs. Fule, G.R. No. 83027, February 28, 1992, 206 SCRA 652). 18 While we commend the efforts of the trial court to distinguish between the rights of a person under Section 12(1), Article III of the Constitution and his rights after a criminal complaint or information had been filed against him, we cannot agree with its sweeping view that after such filing an accused "no longer Has] the right to remain silent End to counsel but he [has] the right to refuge to be a witness and not to have any prejudice whatsoever result to him by such refusal." If this were so, then there would be a hiatus in the criminal justice process where an accused is deprived of his constitutional rights to remain silent and to counsel and to be informed of such rights. Such a view would not only give a very restrictive application to Section 12(1); it would also diminish the said accused's rights under Section 14(2) Article III of the Constitution, The exercise of the rights to remain silent and to counsel and to be informed thereof under Section 12(1), Article III of the Constitution are not confined to that period prior to the filing of a criminal complaint or information but are available at that stage when a person is "under investigation for the commission of an offense." The direct and primary source of this Section 12(1) is the second paragraph of Section 20, Article II of the 1973 Constitution which reads: 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 . . . The first sentence to which it immediately follows refers to the right against self-incrimination reading:
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No person shall be compelled to be a witness against himself. which is now Section 17, Article III of the 1987 Constitution. The incorporation of the second paragraph of Section 20 in the Bill of Rights of the 1973 constitution was an acceptance of the landmark doctrine laid down by the united States 19 Supreme Court in Miranda vs. Arizona. In that case, the Court explicitly stated that the holding therein "is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." It went on to state its ruling: Our holding will be spelled out with some specificity in the pages which follow but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some question or volunteered some statements on his own does not deprive him of the right to refrain from answering any further 20 inquiries until he has consulted with an attorney and thereafter consents to a questioned. It may be pointed out though that as formulated in the second paragraph of the aforementioned Section 20, the word custudial, which was used in Miranda with reference to the investigation, was excluded. In view thereof, inGalman vs. Pamaran, 21 this Court aptly observed: The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and "investigation," as in fact the sentence opens with the phrase "any person" goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. Clearly then, the second paragraph of Section 20 has even broadened the application of Miranda by making it applicable to the investigation for the commission of an offense of a person and in custody. 22 Accordingly, as so formulated, the second paragraph of Section 20 changed the rule adopted in People vs. Jose 23 that the rights of the accused only begin upon arraignment, Applying the second paragraph of Section 20, this Court laid down this rule in Morales vs, Enrile: 24 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Note that the first sentence requires the arresting officer to inform the person to be arrested of the reason for the arrest and show him "the warrant of arrest, if any." The underscored phrase simply means that a case had been filed against him in a court of either preliminary or original jurisdiction and that the court had issued the corresponding warrant of arrest. From the foregoing, it is clear that the right to remain silent and to counsel and to be informed thereof under the second paragraph of Section 20 are available to a person at any time before arraignment whenever he is investigated for the commission of an offense. This paragraph was incorporated into Section 12(1), Article III of the present Constitution with the following additional safeguards: (a) the counsel must be competent and independent, preferably of his own choice, (b) if the party cannot afford the services of such counsel, he must be provided with one, and (c) the rights therein cannot be waived except in writing and in the presence of counsel.

Then, too, the right to be heard would be a farce if it did not include the right to counsel. Thus, Section 12(2), Article III of the present Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be heard by 26 himself and counsel." In People vs. Holgado, this Court emphatically declared: One of the great principles of justice guaranteed by our Constitution is that "no person shall be-held to answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de officio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own. It was, therefore, wrong for the trial court to hold that Section 12(1), Article III of the Constitution is strictly limited to custodial investigation and that it does not apply to a person against whom a criminal complaint or information has already been filed because after its filing he loses his right to remain silent and to counsel. If we follow the theory of the trial court, then police authorities and other law enforcement agencies would have a heyday in extracting confessions or admissions from accused persons after they had been arrested but before they are arraigned because at such stage the accused persons are supposedly not entitled to the enjoyment of the rights to remain silent and to counsel. Once a criminal complaint or information is filed in court and the accused is thereafter arrested by virtue of a warrant of arrest, he must be delivered to the nearest police station or jail and the arresting officer must make a return of the warrant to the issuing judge, 27 and since the court has already acquired jurisdiction over his person, it would be improper for any public officer Or law enforcement agency to investigate him in connection with the commission of the offense for which he is charged. If, nevertheless, he is subjected to such' investigation, then Section 12(1), Article III of the Constitution and the jurisprudence thereon must be faithfully complied with. The Sinumpaang Salaysay of Maqueda taken by SP02 Molleno after the former's arrest was taken in palpable violation of his rights under Section 12(1), Article III of the Constitution. As disclosed by a reading thereof, Maqueda was not even told of any of his constitutional rights under the said section. The statement was also taken in the absence of counsel. Such uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of the Constitution which reads: (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. However, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa stand on a different footing. These are not governed by the exclusionary rules under the Bill of Rights.. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect; 28or restriction on the power of government found "not in the particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited. 29 They are the fundamental safeguards against aggressions of arbitrary power, 30 or state tyranny and abuse of authority. In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. 31 Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former Under Section 26, Rule 130 of the Rules of Court. In Aballe vs; People, 32 this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admissions.

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To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he explicitly .stated that "he is willing and volunteering to be a state witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his willingness to be a state witness, Maqueda's participation in the commission of the crime charged was established beyond moral certainty. His defense of alibi was futile because by his own admission he was not only at the scene of the crime at the time of its commission, he also admitted his participation therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was, as correctly ruled by the trial court, established beyond doubt by circumstantial evidence. The following circumstances were duly proved in this case: (1) He and a companion were seen a kilometer away from the Barker house an hour after the crime in question was committed there; (2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker, Norie Dacara, and Julieta Villanueva as one of two persons who committed the crime; (3) He and co-accused Rene Salvamante are friends; (4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left the place sometime in September 1991; (5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and (6) He freely and voluntarily offered to be a state witness stating that "he is the least guilty." Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The proven; and facts from which the inferences are derived are

(c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e. the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. 33 We do not hesitate to rule that all the requisites of Section 2, Rule 133 of the Rules of Court are present in this case. This conclusion having been reached, the defense of alibi put up by the appellant must fail. The trial court correctly rejected such defense. The rule is settled that for the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. 34 Through the unrebutted testimony of Mike Tayaban, which Maqueda does not controvert in his brief, it was positively established that Maqueda and a companion were seen at 7:00 a.m. of 27 August 1991 at the waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer away from the house of the Barkers. It was not then impossible for Maqueda and his companion to have been at the Barker house at the time the crime was committed. Moreover, Fredisminda Castrence categorically declared that Maqueda started working in her polvoron factory in Sukat only on 7 October 1991, thereby belying his, testimony that he started working on 5 July 1991 and continuously until 27 August 1991. WHEREFORE, in of the foregoing, the instant appeal is DISMISSED and the appealed decision Of Branch 10 of the Regional Trial Court Of Benguet in Criminal Case, No.91-CR-1206 is AFFIRMED in toto. Costs against accused-appellant HECTOR MAQUEDA @ PUTOL. SO ORDERED,