384 U.S.

436

custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. Pp. 445-458.

Miranda v. Arizona (No. 759) (b) The privilege against self-incrimination, which has had a long and expansive historical Argued: February 28-March 1, 1966 development, is the essential mainstay of our adversary system, and guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of Decided: June 13, 1966 his own will," during a period of custodial interrogation [p437] as well as in the courts or during the course of other official investigations. Pp. 458-465. Syllabus (c) The decision in Escobedo v. Illinois, 378 U.S. 478, stressed the need for protective devices In each of these cases, the defendant, while in police custody, was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all four cases, the questioning elicited oral admissions, and, in three of them, signed statements as well, which were admitted at their trials. All defendants were convicted, and all convictions, except in No. 584, were affirmed on appeal. (d) In the absence of other effective measures, the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is Held: indigent, a lawyer will be appointed to represent him. Pp. 467-473. to make the process of police interrogation conform to the dictates of the privilege. Pp. 465466.

1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from 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, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination. Pp. 444-491.

(e) If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present. Pp. 473-474.

(f) Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant

(a) The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating, and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in

knowingly and intelligently waived his right to counsel. P. 475.

(g) Where the individual answers some questions during in-custody interrogation, he has not waived his privilege, and may invoke his right to remain silent thereafter. Pp. 475-476.

(h) The warnings required and the waiver needed are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement, inculpatory or exculpatory, made by a defendant. Pp. 476-477.

2. The limitations on the interrogation process required for the protection of the individual's constitutional rights should not cause an undue interference with a proper system of law enforcement, as demonstrated by the procedures of the FBI and the safeguards afforded in other jurisdictions. Pp. 479-491.

3. In each of these cases, the statements were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. Pp. 491-499.

EN BANC [G.R. Nos. 138934-35. January 16, 2002.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTHONY ESCORDIAL, accused-appellant.

The Solicitor General for plaintiff-appellee. Entila & Entila Law Offices for accused-appellant.

SYNOPSIS Accused-appellant Anthony Escordial was convicted of robbery with rape by the Regional Trial Court of Bacolod City and was sentenced to suffer the supreme penalty of death. In his appeal before the Court, appellant questioned the legality of his arrest without warrant and the credibility of the prosecution witnesses. HacADE The Supreme Court acquitted appellant. The Court upheld appellant's claim that his arrest is illegal and does not fall under any of the circumstances of allowing a warrantless arrest. The Court, however, ruled that appellants act of pleading guilty to the crime charged during the arraignment without questioning his warrantless arrest effectively waived his right to object to the legality of the arrest. The Court doubted the credibility of the victim because of the fact that she has not actually seen the face of her assailant and the apparent suggestiveness of the show-up identification conducted by the police authorities. The Court did not disregard the possibility that her identification of appellant was merely planted in her mind both by the circumstances surrounding the show-up and her concomitant determination to seek justice.

crime. The phrase "personal knowledge" in paragraph (b) has been defined in this wise: Personal knowledge of facts in arrests without a warrant under Section 5(b) of Rule 113 must be based upon "probable cause" which means "an actual belief or reasonable grounds of suspicion." The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officer making the arrest. In these cases, the crime took place on December 27, 1996. But, accused-appellant was arrested only on January 3, 1997, a week after the occurrence of the crime. As the arresting officers were not present when the crime was committed, they could not have "personal knowledge of the facts and circumstances of the commission of the crime" so as to be justified in the belief that accused-appellant was guilty of the crime. The arresting officers had no reason for not securing a warrant. However, the records show that accused-appellant pleaded not guilty to the crimes charged against him during his arraignment on February 25, 1997 without questioning his warrantless arrest. He thus waived objection to the legality of his arrest. As this Court has held in another case: [The accused] waived objections based on the alleged irregularity of their arrest, considering that they pleaded not guilty to the charges against them and participated in the trial. Any defect in their arrest must be deemed cured when they voluntarily submitted to the jurisdiction of the court. For the legality of an arrest affects only the jurisdiction of the court over the person of the accused. Consequently, if objections based on this ground are waived, the fact that the arrest was illegal is not a sufficient cause for setting aside an otherwise valid judgment rendered after a trial, free from error. The technicality cannot render subsequent proceedings void and deprive the State of its right to convict the guilty when all the facts on record point to the culpability of the accused. 2.ID.; ID.; RIGHT TO COUNSEL; OUT-OF-COURT IDENTIFICATION OF A SUSPECT UNDER CUSTODIAL INVESTIGATION IS INADMISSIBLE IF NOT DONE WITH THE ASSISTANCE OF A COUNSEL. As a rule, an accused is not entitled to the assistance of counsel in a police lineup considering that such is usually not a part of the custodial inquest. However, the cases at bar are different inasmuch as accused-appellant, having been the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, was already under custodial investigation when these out-of-court identifications were conducted by the police. An out-of-court identification of an accused can be made in various ways. In a show-up, the accused alone is brought face to face with the witness for identification, while in a police line-up, the suspect is identified by a witness from a group of persons gathered for that purpose. During custodial investigation, these types of identification have been recognized as "critical confrontations of the accused by the prosecution" which necessitate the presence of counsel for the accused. This is because the results of these pre-trial proceedings "might well settle the accused's fate and reduce the trial itself to a mere formality." We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a show-up for that matter, after the start of the custodial investigation is inadmissible as evidence against him. Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police line-up on various dates after his arrest. Having been made when accused-appellant did not have the assistance of counsel,

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST WARRANTLESS ARREST, VIOLATED; RIGHT OF APPELLANT TO OBJECT THERETO, DEEMED WAIVED; CASES AT BAR. The cases at bar do not fall under paragraphs (a) or (c) of the aforequoted rule. At the time of his arrest, accused-appellant was watching a game in a basketball court in Barangay Miranda, Pontevedra, Negros Occidental. He was not committing or attempting to commit a crime when he was arrested by the police on that day. Nor was he an escaped prisoner whose arrest could be effected even without a warrant. The question is whether these cases fall under paragraph (b) because the police officers had personal knowledge of facts and circumstances that would lead them to believe that accused-appellant had just committed a

these out-of-court identifications are inadmissible in evidence against him. Consequently, the testimonies of these witnesses regarding these identifications should have been held inadmissible for being "the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality.'" 3.REMEDIAL LAW; EVIDENCE ADMISSIBILITY; INADMISSIBILITY OF THE OUT-OF-COURT IDENTIFICATION DEEMED WAIVED BY ACCUSED'S FAILURE TO OBJECT TO THE PRESENTATION OF WITNESSES WHO WILL TESTIFY ON THE MATTER. Be that as it may, as the defense failed to object immediately when these witnesses were presented by the prosecution or when specific questions regarding this matter were asked of them, as required by Rule 132, 36 of the Rules on Evidence, accused-appellant must be deemed to have waived his right to object to the admissibility of these testimonies. Furthermore, the inadmissibility of these out-ofcourt identifications does not render the in-court identification of accused-appellant inadmissible for being the "fruits of the poisonous tree." This in-court identification was what formed the basis of the trial court's conviction of accused-appellant. As it was not derived or drawn from the illegal arrest of accused-appellant or as a consequence thereof, it is admissible as evidence against him. However, whether or not such prosecution evidence satisfies the requirement of proof beyond reasonable doubt is another matter altogether. 4.ID.; ID.; WEIGHT AND SUFFICIENCY; MERE SPECULATIONS AND PROBABILITIES CANNOT TAKE THE PLACE OF PROOF BEYOND REASONABLE DOUBT. Coupled with failure of Michelle to see the face of her assailant, the apparent suggestiveness of the show-up places in doubt her credibility concerning the identity of accused-appellant. The possibility that her identification of accused-appellant was merely planted in her mind both by the circumstances surrounding the show-up and her concomitant determination to seek justice cannot be disregarded by this Court. Michelle's identification of accused-appellant is further rendered dubious by the disparity between her description of her attacker and the appearance of accused-appellant. Michelle's affidavit clearly indicated that she felt the keloids on the back of her assailant when the latter was raping her. But, when she testified in court, Michelle admitted that she did not see keloids on accused-appellant although she said that his skin was rough. This is corroborated by the testimony of PO2 Rodolfo Gemarino who said that he did not see any lump on the back of accused-appellant when he tried to look for it. In fact, it would appear that accused-appellant had no such markings on his back but had only small patches which could not even be readily seen. In dismissing the disparity between accusedappellant's appearance and Michelle's description of her attacker, the trial court dwelt on the apparent roughness of accused-appellant's skin and the probability that Michelle might have felt only the arch of the spinal cord of her assailant. However, mere speculations and probabilities cannot take the place of proof beyond reasonable doubt required by law to be established by the prosecution. Michelle Darunday was a civil engineer in the City Engineer's Office in Bacolod City. Considering her educational attainment and professional status, it is improbable that she was mistaken as to what she felt on her attacker's back at the time she was raped. A mere protrusion on the back of the neck of the assailant could not possibly have been mistaken for keloids. 5.ID.; ID.; ID.; WHERE THE CIRCUMSTANCES SHOWN TO EXIST YIELD TWO OR MORE INFERENCES, ONE OF WHICH IS CONSISTENT WITH THE PRESUMPTION OF INNOCENCE,

WHILE THE OTHER OR OTHERS MAY BE COMPATIBLE WITH THE FINDING OF GUILT, THE COURT MUST ACQUIT THE ACCUSED; SAID EVIDENCE DOES NOT FULFILL THE TEST OF MORAL CERTAINTY AND IS INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION. Another circumstance casting doubt on the credibility of Michelle's identification is her lack of reaction upon seeing accused-appellant at the Pontevedra police headquarters. Defense witnesses PO2 Rodolfo Gemarino, Ricardo Villaspen, and Nestor Dojillo testified that Michelle failed to see any identifying marks on accused-appellant and that she showed hesitation in pinpointing the latter as the culprit. With Gemarino being a policeman, Villaspen a barangay tanod, and Dojillo a barangay captain, these witnesses were all, in one form or another, connected with law enforcement. The prosecution having failed to ascribe any ill motive on the part of these defense witnesses, who are without doubt respectable members of the community, their testimonies that Michelle showed no reaction in seeing accused-appellant at the show-up in Pontevedra police station deserve greater credence than the testimony of Tancinco that Michelle confirmed to him that accused-appellant was her attacker. The defense evidence established that Tancinco was abusive policeman who had made up his mind as to accusedappellant's guilt and who had no compunction in doing whatever means necessary, legal or illegal, to ensure his conviction. We note further that the testimonies of these defense witnesses coincide with Michelle's testimony that she kept quiet when she saw accusedappellant at the Pontevedra police station on January 3, 1997. This being so, her reaction to the show-up at the Pontevedra police station upon seeing accused-appellant, the man who supposedly raped her twice in an ignominious manner, is contrary to human nature. It may be that she was filled with rage so that upon seeing accused-appellant she was unable to show any emotion. But it is equally possible that, as defense witnesses Gemarino, Villaspen, and Dojillo testified, Michelle did not immediately recognize accused-appellant as her attacker and only pointed to him as her assailant upon promptings by the police and her companions. "[W]here the circumstances shown to exist yield two (2) or more inferences, one of which is consistent with the presumption of innocence, while the other or others may be compatible with the finding of guilt, the court must acquit the accused: for the evidence does not fulfill the test of moral certainty and is insufficient to support a judgment of conviction." AaCTcI

DECISION

MENDOZA, J p: These cases are before this Court for review from the decision, 1 dated February 26, 1999, of the Regional Trial Court, Branch 53, Bacolod City, finding accused-appellant Anthony Escordial guilty of robbery with rape and sentencing him to death and to pay private complainant Michelle Darunday the amounts of P3,650.00 representing the amount taken by him, P50,000.00 as moral damages, P30,000.00 as exemplary damages, and the costs.

In Criminal Case No. 97-18117, the information against accused-appellant charged him with the crime of rape committed as follows: That on or about the 27th day of December, 1996, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused armed with a deadly weapon, a knife, by means of force, violence and intimidation, did, then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant Michelle Darunday y Jintula, against the latter's will. All contrary to law and with the aggravating circumstance that the said offense was committed in the dwelling of the said party during nighttime while [she] was asleep inside her room. Act contrary to law. 2 In Criminal Case No. 97-18118, the information charged accused-appellant with robbery with rape as follows: That on or about the 27th day of December, 1996, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a deadly weapon, a knife, with intent of gain and by means of violence and intimidation on the person, did, then and there willfully, unlawfully and feloniously take from Michelle Darunday y Jintula the sums of P3,650.00, belonging to said offended party and [on] the occasion thereof have carnal knowledge with the complainant Michelle Darunday y Jintula, against her will, and inside her room wherein she was temporarily residing as a boarder. All contrary to law and with aggravating circumstance that the said offense was committed inside the dwelling of the offended party and during nighttime the latter not having given provocation for the offense. Act contrary to law. 3 When arraigned on February 25, 1997, accused-appellant pleaded not guilty to the charges, whereupon the two cases were jointly tried. The prosecution presented eight witnesses, namely, Jason Joniega, Mark Esmeralda, Erma Blanca, 4 Dr. Joy Ann Jocson, PO3 Nicolas Tancinco, Leo Asan, Ma. Teresa Gellaver, and Michelle Darunday. Their testimonies are as follows:

Jason Joniega and Mark Esmeralda testified that at around 8 o'clock in the evening of December 27, 1996, they and Mark Lucena were playing inside a jeepney parked in front of a boarding house owned by Pacita Aguillon 5 at No. 17 Margarita Extension, Libertad St., Purok Amelia 2, Barangay 40, Bacolod City. As one of them hit his head on the rails of the jeepney, the boys were told by a man sitting inside the jeepney to go home lest they would meet an accident. The man was later identified by Jason Joniega and Mark Esmeralda as accusedappellant. 6 Living in a boarding house in front of which the jeepney was parked were Michelle Darunday, Erma Blanca, and Ma. Teresa Gellaver. They stayed in a bedroom on the ground floor. That same night, December 27, 1996, Teresa went to sleep at around 9:30 p.m., while Michelle and Erma watched television for a while before going to bed. They slept beside each other on two beds placed side by side, with Teresa nearest the wall, Michelle in the middle, and Erma on the other side. While the three were asleep, Erma was awakened by the presence of a man. The man had his head covered with a t-shirt to prevent identification and carried a knife about four inches long. He warned Erma not to shout or he would kill her. He then asked Erma where her money was, and the latter pointed to the wall where she had hung the bag which contained her money. Michelle, who by then was already awake, told Erma to give the man her money so he would leave. Erma gave the man P300.00, but the latter said to give him all her money. He told Erma that he would look for more money and, if he found more, he would kill her. For this reason, Erma gave the rest of her money. Afterwards, she was told to lie on her side facing the wall. The man then turned to Michelle and Teresa. Michelle gave him her money, but Teresa said her money was in the other room. However, she was not allowed to leave the bedroom. The man was able to get P500.00 from Erma and P3,100.00 from Michelle. After getting their money, the man gave a t-shirt to Erma to blindfold Teresa and another to Michelle to blindfold Erma. He blindfolded Michelle himself and then began touching her in different parts of her body. He ordered her to take off her t-shirt, threatening to kill her if she did not do as he commanded. He then went on top of Michelle and tried to insert his penis into her vagina. As he had difficulty doing so, he instead inserted his two fingers. He tried once more to insert his penis, but again failed. The man then rose from the bed and took some soapy water, which he proceeded to insert into Michelle's vagina. He finally succeeded in inserting his penis into Michelle's vagina. Michelle felt great pain and pleaded with the man to stop, but the man paid no heed, and only stopped after satisfying his lust. Michelle said that although she was blindfolded and could not see, she could feel that the man had no cover on his face when he was raping her. She felt that his chest was rough and had some scars. When he placed her hands on his nape, she felt that it was also rough. On the other hand, Erma claimed she was able to see through her blindfold and that she saw the man's face because of the light coming from the lamp post outside the boarding house. Their bedroom window had panes through which the light filtered in.

After he had finished raping Michelle, the man sat on the bed and talked to the three women. He told Michelle that he used to make catcalls at her and called her a beautiful girl whenever she passed by his place but Michelle had ignored him. He told them that he was from Hinigaran, but later took back his statement when Teresa told him that she was from Binalbagan, which was near Hinigaran. Michelle then told him that she worked at the City Engineer's Office and graduated from the Central Mindanao University. The man cussed when he learned that Michelle was from Mindanao. As he spoke to Michelle, he leaned over the bed and mashed the breasts of Erma and Teresa. After a while, the man told Michelle he wanted to have sex with her again. Michelle pleaded with him, but the man threatened to call his companions and said it would be worse for her if his companions would be the ones to rape her. He ordered Michelle to lie on her stomach and then inserted his penis into her anus. When he was through, he gave Michelle a blanket to cover herself and returned to her a pair of earrings which he had taken from her. He then left, but not before warning the women not to report the matter to anyone or he would kill them. 7 Mark Esmeralda testified that he was in his bedroom on the second floor of their house, toying with a flashlight, when he saw from his bedroom window a man wearing denim shorts coming out of the boarding house. It was around 12:30 in the morning then. The man was nibbling something. Mark saw the man jump over the fence. After 30 minutes, Mark went down from his room and told his parents what he had seen. His parents then went out to check what had happened. Mark identified accused-appellant as the man he saw that night. 8 Michelle, Erma, and Teresa were so frightened that they were not able to ask for help until 30 minutes after the man had left. They told their neighbor, Tiyo Anong, that a man had come to the house and robbed them. They also called up Allan Aguillon, the son of the owner of the boarding house, who in turn reported the incident to the police. When the policemen arrived, they asked Michelle to describe the assailant, but she told them that she could only identify his voice and his eyes. Accompanied by the police, the three women looked for the man around the Libertad area, but they did not find him. Michelle, Erma, and Teresa were taken to the police station at Bac-Up 6 for investigation. But, at Michelle's request, Erma and Teresa did not tell the others that Michelle had been raped by their attacker. Upon returning home, Michelle found her aunt and uncle. She embraced her aunt and told her about her ordeal. Michelle was again taken to the police headquarters, where she was referred to the Women's Desk to report the rape. They were able to go home to the house of Michelle's aunt at around 5 to 6 o'clock in the evening. 9 PO3 Nicolas Tancinco, one of the policemen who responded to the report shortly after the commission of the crime, also testified for the prosecution. He said that the assailant was described to him as wearing long hair and having a rough projection on the back of his neck, small eyes, a slim body, and a brown complexion. Later on, Michelle Darunday, accompanied by Allan Aguillon, returned to the police station to report the rape committed against her.

Tancinco entered her complaint in the police blotter and referred Michelle to the Women's Desk. In the morning of December 28, 1996, Tancinco returned to the boarding house. He found that the intruder was able to gain entry to the house through the window of the bathroom. He noticed that the room beside those of the three women had been ransacked, with the cabinets opened and the clothes in disarray. The following day, on December 29, 1996, Tancinco went around Margarita Extension and learned about the children playing on the street around the time the intruder entered the boarding house. He was told by Mark Esmeralda and Jason Joniega that they saw a man inside the jeepney where they were playing at the time of the incident. Tancinco was likewise informed by Esmeralda that the person he saw inside the jeepney was the same person he saw coming out of the boarding house later that night. According to Tancinco, the children said that they could identify the man if he was shown to them. At around 8 o'clock that evening, Tancinco questioned a certain Tiyo Anong and Ramie about the identity of the suspect. Ramie said that the description of the suspect fitted that of a worker at a caf called Coffee Break Corner, about two houses away from the boarding house.

Thus, on January 2, 1997, Tancinco and some companions proceeded to the Coffee Break Corner and interviewed the security guard, who told them that a certain Fidel Hinolan owned the caf. When interviewed by Tancinco and his companions, Fidel Hinolan told them that accused-appellant was his helper and that the latter had gone home on December 27, 1996 to Barangay Miranda, Pontevedra, Negros Occidental. Based on the information furnished by Hinolan, Tancinco and his fellow police officers, Michelle Darunday, Allan Aguillon, and Pacita Aguillon went to Barangay Miranda, Pontevedra, Negros Occidental at around 10 o'clock in the morning of January 3, 1997 and asked the assistance of the police there to locate accused-appellant. PO2 Rodolfo Gemarino asked one of his colleagues at the Pontevedra police to accompany Tancinco and his companions. They found accused-appellant at the basketball court and "invited" him to go to the police station for questioning. 10 Michelle Darunday remained at the Pontevedra police station. When accused-appellant was brought there, he saw Michelle and blushed. Michelle looked at him and recognized him as the man who had robbed and raped her on December 27, 1996. Accused-appellant was asked to take off his t-shirt. Michelle said that she just kept quiet while accused-appellant tried to talk to her. However, according to Tancinco, Michelle confirmed to him that accusedappellant was the man who had attacked her, identifying him through a rough projection, or a keloid, on the back of his neck and his voice. At the time of his arrest, accused-appellant had a short haircut. He was transferred to the Bacolod police station for further investigation. 11 Allan Aguillon took a picture of accused-appellant (Exh. F) at the Pontevedra police station.12

At the Bacolod police station, Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda were asked whether accused-appellant was the same person they saw on the night of the incident. They were taken one by one to the jail cell and asked to point to the person that they had seen that night. They picked accused-appellant out of four people who were inside the jail cell. 13 Michelle Darunday executed an affidavit, dated January 4, 1997, identifying accusedappellant as the person who had robbed and raped her. 14 She testified that she and her friends had gone to the Coffee Break Corner sometime in September or October 1996. On the way home, she was approached by accused-appellant. He asked Michelle what her name was, and she gave it to him, albeit reluctantly. She usually passed by the said caf when going home and accused-appellant would often whistle at her and call her a beautiful girl. Michelle had simply ignored him and gone on her way. 15 Dr. Joy Ann C. Jocson, Medical Officer IV of the Bacolod City Health Department, examined Michelle Darunday and made the following findings and remarks: 1.Abrasions noted on the right and left Labia Minora and on the posterior fourchette. 2.New Lacerations noted on the hymenal ring on the following location 1 o'clock position, 3 o'clock position, and 9 o'clock position. 3.Vaginal introitus admits 2 fingers but with pain. 4.Presently, patient with menstruation. In my opinion, the patient would need a urinalysis (since she complains of pain upon urination) and possible Medical treatment if necessary, for about 7 to 10 days. And if necessary, psychiatric evaluation & management is also recommended. 16 Testifying in court, Dr. Jocson said there was penetration of the victim's vagina as shown by the fact that the hymenal rim had lacerations at the 1, 3, and 9 o'clock positions. Since the edges of the lacerations were sharp, she concluded that these lacerations were less than a week old at the time of the examination. According to Dr. Jocson, these were caused by abrasions due to force or pressure applied on the vaginal area. When asked during crossexamination whether the victim had abrasions or contusions on her body at the time of her examination, Dr. Jocson said that she could not remember. She could not remember either whether there was sperm in the victim's vagina when she examined the latter. She said that no sperm specimen had been taken from the victim. She testified that it could not be determined how many times the victim had previously engaged in sexual intercourse because this would depend on the elasticity of the victim's hymen. She opined, however, that it would be less than 10 times in the case of the victim. Dr. Jocson stated it was possible the victim

agreed to have sexual intercourse voluntarily based on the lack of marks of violence on the latter, although it was also possible that she was merely forced to have sex because she was threatened. On re-direct examination, she stated it was possible that seminal fluid was not found on the victim's private parts because the victim was having her monthly period. She said the lacerations on the victim's vagina would result whether the sexual intercourse was voluntary or involuntary on the part of the victim. 17 Leo Asan, an employee at the City Health Office in Bacolod, testified that the medical certificate presented by the prosecution, which was undated, was a faithful reproduction of what was written by Dr. Joy Ann Jocson on January 3, 1997 in the logbook. 18 The defense presented as its witnesses Elias Sombito, Aaron Lavilla, PO2 Rodolfo Gemarino, Ricardo Villaspen, Nestor Dojillo, accused-appellant Anthony Escordial, Jerome Jayme, and Lucila Jocame. These witnesses gave a different account of the events that led to the arrest of accused-appellant. Their version is as follows: Accused-appellant testified that he was employed by Fidel Hinolan on January 21, 1996. He said he started on August 6, 1996 as a dishwasher and was later made cashier. Accusedappellant said that he went home to Pontevedra, Negros Occidental on December 24, 1996, arriving there at 2 o'clock in the afternoon. Hinolan paid him P500.00, which he gave to his mother as his Christmas gift. He dropped by the house of Aaron Lavilla. At 5:30 p.m., he returned to Coffee Break Corner in Bacolod City. In the evening of December 26, 1996, accused-appellant asked permission from Hinolan to go home to Pontevedra to stay there until January 1997 as the restaurant would be closed anyway during this period. Hinolan gave accused-appellant his permission and paid the latter his salary of P600.00 as well as a P200.00 bonus. Hence, at 2 o'clock in the afternoon of December 27, 1996, accused-appellant took the bus home, arriving in Barangay Miranda, Pontevedra, Negros Occidental an hour later. He went straight home to his mother and gave her P600.00, telling her to use P400.00 for New Year's Day. 19 Accused-appellant also saw Elias 20 Sombito, who told him to look for Aaron Lavilla because a cockfight derby was being held that day in their barangay. Accused-appellant, therefore, looked for Aaron Lavilla and found him at the basketball court. Aaron's mother asked accused-appellant to help her bring to the cockpit some cases of beer which she planned to sell there. Accused-appellant obliged. At the cockpit, Elias Sombito asked him to take care of his cocks. Accused-appellant asked Aaron Lavilla to go with him to the cockpit, but the latter continued playing basketball and only proceeded to the cockpit after the game was finished. The derby ended at around 9 o'clock in the evening. At about 10 o'clock that night, accused-appellant and Aaron Lavilla went to the latter's house and slept there. The following day, December 28, 1996, accused-appellant helped Aaron

Lavilla's mother with the household chores, cutting the grass and feeding the cocks. He stayed in Barangay Miranda until January 3, 1997. 21Accused-appellant's testimony as to his whereabouts from December 27, 1996 to January 3, 1997 was corroborated by Elias Sombito 22 and Aaron Lavilla. 23 As to the circumstances of accused-appellant's arrest, PO2 Rodolfo Gemarino and Ricardo Villaspen testified that at around 11 o'clock in the morning of January 3, 1997, three members of the Bacolod police, led by PO3 Nicolas Tancinco, went to the headquarters of the Pontevedra police to ask for help in locating a person named Anthony Escordial, said to be a resident of Barangay Miranda, Pontevedra, Negros Occidental, who was wanted in connection with a case for robbery with rape. Although Tancinco and his companions showed their mission order to Gemarino, they did not show a warrant for accused-appellant's arrest. Nonetheless, Gemarino told PO2 Gella of the Pontevedra police and Ricardo Villaspen, the tanod commander of Barangay Miranda, to help the Bacolod policemen look for accusedappellant. The group left the police station, although Tancinco's other companions, Michelle Darunday and Pacita Aguillon, stayed in the headquarters. 24 The arresting party, composed of Tancinco, PO2 Gella, and Villaspen, proceeded to the house of accused-appellant in Barangay Miranda, but the latter was not there. They found accusedappellant at the basketball court watching a game. After informing him that he was a suspect in a robbery case, the group invited accused-appellant to go with them to the police headquarters. Nestor Dojillo, the barangay captain of Barangay Miranda, was at the police station. He testified that when accused-appellant, together with Tancinco and his companions, arrived at the police station, he (Nestor Dojillo) followed them to the investigating room. Inside the room were Michelle Darunday, three members of the Bacolod police, Villaspen, and Gemarino. Gemarino asked Michelle if she could identify accused-appellant as her attacker, but the latter said that she could do so only if she could see a lump on his back. Gemarino told accused-appellant to take off his t-shirt. When accused-appellant did as Gemarino ordered, Michelle looked at his back for identifying marks, while Allan Aguillon took his photograph. Gemarino then asked Michelle whether accused-appellant was her attacker, but she replied that she was not sure because the attacker was wearing a mask when she was raped. The Bacolod policemen requested Gemarino to allow them to bring accused-appellant to Bacolod City as they still had some witnesses who could identify the suspect there. Accused-appellant was allowed to go with them after Dojillo and Gemarino asked the Bacolod policemen not to harm him. 25 Dojillo's testimony was corroborated by the testimonies of PO2 Rodolfo Gemarino, 26 Ricardo Villaspen, 27and accused-appellant. 28

told to take off his clothes and to lie down. PO3 Tancinco and his companions then proceeded to hit him with a belt. Afterwards, they covered his mouth and took him to the bathroom. Tancinco put a knife to his neck, telling him that he would be killed if he refused to admit that he was the culprit. As he continued to deny liability for the crime, accused-appellant was subjected to further torture. Later on, the driver entered the room and brought with him a child, whose head was covered, who was instructed to identify accused-appellant. The child, however, did not react upon seeing accused-appellant, who was thus brought back to the headquarters where he was again maltreated. Accused-appellant said that he was left alone in his cell and tied to a chair. He also said that at around 8 o'clock that evening, two of the complainants arrived and the police told them to identify accused-appellant as their attacker. But these two complainants just kept looking at accused-appellant and even asked the policemen if he was the suspect. After the two women had left, PO3 Tancinco took accused-appellant to a house so that he could be identified by another complainant. But this complainant likewise said that he was not the assailant, as the latter had a heavier build and longer hair. Accused-appellant was returned to the police headquarters. At the headquarters, PO3 Tancinco talked to accused-appellant and told him that he would help him if accused-appellant confessed to the crime. But accused-appellant again refused because he said he had not done anything wrong. The police then began beating him up again. PO3 Tancinco burnt accused-appellant's lips and tongue with a lighted cigarette. 29 At around 12:00 noon of January 6, 1997, Gemarino, Dojillo, and Villaspen, together with accused-appellant's grandfather, a certain Inspector Tamayo, and reporters from Bombo Radyo, went to the Bacolod police station to visit accused-appellant. They found him tied to a chair. When they entered the cell, accused-appellant, thinking that they were members of the Bacolod police, held up his hands and asked for pity. The visitors assured accused-appellant that they would not hurt him. Accused-appellant had a limp because his feet were injured. For this reason, Dojillo and his companions asked the Bacolod police to let them take accused-appellant to the hospital for treatment. Accused-appellant was thus brought to the provincial hospital in Bacolod for x-ray and medical treatment. He was taken back to the police station thereafter. 30 Lucita Jocame, Records Officer of the Corazon Locsin Montelibano Memorial Regional Hospital (CLMMH), identified in court 31 the medical certificate (Exh. 12) issued by the said hospital, showing the injuries sustained by accused-appellant, to wit: # 5 CM LINEAR ABRASION WITH CONTUSION HEMATOMA LEFT SCAPULAR AREA.

Accused-appellant further testified that on the way to Bacolod City, PO3 Tancinco began beating him and hitting him with the butt of a shotgun to force him to admit liability for the crime. Because accused-appellant refused to do so, he was taken by Tancinco and his companions to a lodging house where he was subjected to torture. Accused-appellant was

# 1 CM LINEAR ABRASION RIGHT SCAPULAR AREA.

# 4 x 2 CM CONTUSION HEMATOMA LEFT LATERAL CHEST LEVEL OF T12. # 2 x 2 CM CONTUSION HEMATOMA M/3 RIGHT LEG ANTERIOR ASPECT. # 2 x 4 CM CONTUSION HEMATOMA RIGHT KNEE LATERAL ASPECT. # 3 x 3 CM SWELLING AND TENDER LEFT ANKLE. # 1 x 1 CM CONTUSION HEMATOMA D/3 RIGHT LEG POSTERIOR ASPECT. # 1 x 1 CM CONTUSION HEMATOMA M/3 RIGHT THIGH POSTERIOR ASPECT. # 2 x 2 CM CONTUSION HEMATOMA RIGHT PERI AURICULAR AREA. X-RAY # 280 dated January 6, 1997: SKULL APL: CHEST BUCKY RIGHT THIGH: APL: RIGHT AND LEFT FOOT APO. "No Radiographic evidence of fracture in this examination." 32 The last witness presented by the defense was Jerome 33 Jayme, General Manager of Royal Express Transport, Inc., who testified that the last bus trip from Kabankalan to Bacolod on December 27, 1996 left at 6 o'clock in the evening. The trip from Kabankalan to Barangay Miranda, Pontevedra, Negros Occidental would take one hour. On cross-examination, Jayme stated that the said bus would reach Bacolod City by 7:40 to 8:00 p.m. if it left Kabankalan at 6:00 p.m. His company's buses were not allowed to pick up passengers along the way to Bacolod City because of the incidence of highway robbery. Jayme identified in court a certification (Exh. 12-a) he issued which stated that the last bus trip of their company on December 27, 1996 was at 6:00 p.m. 34 On February 26, 1999, the trial court rendered a decision, the dispositive portion of which stated: WHEREFORE, it is the well-considered view of this court, after a thorough, painstaking and exhaustive review and examination of the evidence adduced in this case, that the accused ANTHONY ESCORDIAL y GALES, is GUILTY, beyond a reasonable doubt of the crime of Robbery with Rape, punished under Art. 294, paragraph 1 of the Revised Penal Code, as amended. The commission of the crime was attended by three aggravating circumstances of nighttime, that

the crime was committed in the dwelling of the offended party, and that craft, fraud and disguise were employed by the accused in the commission of the crime under paragraphs 3, 6, and 14 of Art. 14 of the Revised Penal Code. There is no mitigating circumstance. Applying Article 63, paragraph 1, the accused is hereby sentenced to the maximum penalty of DEATH. He is also condemned to pay private complainant the sum of P3,650.00, representing the money taken by the accused; P50,000.00 as moral damages, P30,000.00 as exemplary damages, and the costs. SO ORDERED. 35 Hence this appeal. Accused-appellant contends that: 1.THE COURT A QUO ERRED IN DISREGARDING THE DEFENSE OF THE ACCUSED TO THE EFFECT THAT ANTHONY ESCORDIAL CAN NEVER BE THE ROBBER-RAPIST WHO RAVISHED MICHELLE DARUNDAY ON THAT FATEFUL NIGHT OF DECEMBER 27, 1996, AS THE FORMER (ESCORDIAL) DID NOT HAVE THE QUALITIES, CHARACTER AND EXPERTISE OF THE LATTER (ROBBER-RAPIST). 2.THE COURT A QUO ERRED IN CONCLUDING THAT THE DESCRIPTION OF THE ASSAILANT AS DESCRIBED BY THE COMPLAINANT AND HER WITNESSES FIT WITH THAT OF HEREIN ACCUSED, THE TRUTH OF THE MATTER IS THAT THERE WAS NO DESCRIPTION OF THE ASSAILANT EVER MADE BY ANYBODY PRIOR TO THE "WARRANTLESS ARREST" OF THE ACCUSED. THE AFFIDAVITS OF THE COMPLAINANT AND HER WITNESSES WERE IN FACT DRAFTED, EXECUTED AND SIGNED ONLY SEVERAL DAYS AFTER THE ACCUSED WAS BROUGHT INTO THE CUSTODY OF THE BACOLOD POLICE. 3.THE COURT A QUO ERRED IN DISREGARDING THE TESTIMONIES OF WITNESSES PO2 RODOLFO GEMARINO (DEP. CHIEF OF POLICE OF PONTEVEDRA), BRGY. CAPT. NESTOR DOJILLO (BRGY. CAPT. OF MIRANDA AND THEN MEMBER OF THE SANGGUNIANG BAYAN OF PONTEVEDRA), AND RICARDO VILLASPEN (THEN COMMANDER OF BARANGAY TANOD IN PONTEVEDRA) TO THE EFFECT THAT MICHELLE DARUNDAY FAILED TO IDENTIFY THE ACCUSED DURING THEIR ENCOUNTER IN PONTEVEDRA POLICE STATION.

4.THE COURT A QUO ERRED IN NOT EXCLUDING ALL EVIDENCES, TESTIMONIAL AND DOCUMENTARY, OBTAINED BY THE PROSECUTION DURING THE WARRANTLESS ARREST OF THE ACCUSED AND THE LATTER'S SUBJECTION TO CUSTODIAL INVESTIGATION WITHOUT LETTING HIM KNOW OF HIS CONSTITUTIONAL RIGHTS, PARTICULARLY HIS RIGHT TO COUNSEL OF CHOICE. 5.THE COURT A QUO ERRED IN CONCLUDING THAT PROSECUTION WITNESSES WERE ABLE TO POSITIVELY IDENTIFY THE ACCUSED IN A POLICE LINE UP DESPITE THE FACT THAT OF THE PERSONS BEING LINED UP ONLY THE ACCUSED WAS HANDCUFFED. 6.THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF PROSECUTION WITNESSES TO THE EFFECT THAT THEY WERE ABLE TO IDENTIFY THE ASSAILANT BY FACE THAT VERY EVENING OF DECEMBER 27, 1996 AMIDST THE IMPOSSIBILITY OF DOING THE SAME, GIVEN THE DISTANCE, THE INTENSITY OF LIGHT, AND THE TERRIFYING SITUATION, WHICH ALL OBSCURE, IF NOT DESTROY, THE CLARITY OF HUMAN MEMORY AND PERCEPTION. 7.THE COURT A QUO ERRED IN CONCLUDING THAT THE DEFENSE FAILED TO SHOW THE IMPOSSIBILITY OF ACCUSED TO GO TO BACOLOD THAT EVENING OF DECEMBER 27, 1996, DESPITE OVERWHELMING EVIDENCE SUBMITTED, BY SIMPLY RELYING ON THE POSSIBILITY OF THE ACCUSED TAKING A CARGO TRUCK FROM PONTEVEDRA TO BACOLOD. 8.THE COURT A QUO ERRED IN CONCLUDING THAT ACCUSED ANTHONY ESCORDIAL HAD MOTIVE TO COMMIT THE CRIME CHARGED BASED ON A WRONG PREMISE THAT THE DEFENSE ALLEGEDLY DID NOT REFUTE THE ALLEGATIONS OF THE COMPLAINANT THAT ACCUSED ATTEMPTED TO BE ACQUAINTED WITH THE COMPLAINANT AND WHISTLED AT THE LATTER SEVERAL TIMES. 36 The issues raised by accused-appellant concern (1) the alleged violations of his constitutional rights and the consequent admissibility of the evidence against him and (2) the credibility of the prosecution witnesses.

I.Alleged Violations of Accused-appellant's Constitutional Rights A.Accused-appellant questions the legality of his arrest without a warrant. Indeed, PO3 Nicolas Tancinco admitted that he and his companions had arrested accused-appellant without any warrant issued by a judge. 37 Art. III, 2 of the Constitution states: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. To implement this provision, Rule 113, 5 of the Revised Rules of Criminal Procedure provides that a peace officer or a private person may, without a warrant, arrest a person only under the following circumstances: (a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b)When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c)When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. The cases at bar do not fall under paragraphs (a) or (c) of the aforequoted rule. At the time of his arrest, accused-appellant was watching a game in a basketball court in Barangay Miranda, Pontevedra, Negros Occidental. He was not committing or attempting to commit a crime when he was arrested by the police on that day. Nor was he an escaped prisoner whose arrest could be effected even without a warrant. The question is whether these cases fall under paragraph (b) because the police officers had personal knowledge of facts and circumstances that would lead them to believe that accused-

appellant had just committed a crime. The phrase "personal knowledge" in paragraph (b) has been defined in this wise: Personal knowledge of facts in arrests without a warrant under Section 5(b) of Rule 113 must be based upon "probable cause" which means "an actual belief or reasonable grounds of suspicion." The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officer making the arrest. 38 In these cases, the crime took place on December 27, 1996. But, accused-appellant was arrested only on January 3, 1997, a week after the occurrence of the crime. As the arresting officers were not present when the crime was committed, they could not have "personal knowledge of the facts and circumstances of the commission of the crime" so as to be justified in the belief that accused-appellant was guilty of the crime. The arresting officers had no reason for not securing a warrant. However, the records show that accused-appellant pleaded not guilty to the crimes charged against him during his arraignment on February 25, 1997 without questioning his warrantless arrest. 39 He thus waived objection to the legality of his arrest. 40 As this Court has held in another case: [The accused] waived objections based on the alleged irregularity of their arrest, considering that they pleaded not guilty to the charges against them and participated in the trial. Any defect in their arrest must be deemed cured when they voluntarily submitted to the jurisdiction of the court. For the legality of an arrest affects only the jurisdiction of the court over the person of the accused. Consequently, if objections based on this ground are waived, the fact that the arrest was illegal is not a sufficient cause for setting aside an otherwise valid judgment rendered after a trial, free from error. The technicality cannot render subsequent proceedings void and deprive the State of its right to convict the guilty when all the facts on record point to the culpability of the accused. 41 B.Accused-appellant invokes Art. III, 12(1) of the Constitution which provides that "[a]ny 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." He contends that he was subjected to custodial interrogation without being informed of his right to remain silent and to have independent counsel preferably of his choice. Hence, he contends, the trial court erred in not excluding evidence obtained from him during such interrogation for violation of accused-appellant's rights under this provision. While it cannot be denied that accused-appellant was deprived of his right to be informed of his rights to remain silent and to have competent and independent counsel, he has not shown that, as a result of his custodial interrogation, the police obtained any statement from him whether inculpatory or exculpatory which was used in evidence against him. The records do not show that he had given one or that, in finding him guilty, the trial court relied on such statement. In fact, accused-appellant testified that at no point, even when subjected to physical torture, did he ever admit committing the crime with which he was charged. In other words, no uncounseled statement was obtained from accused-appellant which should have been excluded as evidence against him. C.Of greater significance is the fact that accused-appellant was never assisted by counsel, whether of his own choice or provided by the police officers, from the time of his arrest in Pontevedra, Negros Occidental to the time of his continued detention at the Bacolod police station. Although accused-appellant made no statement during this time, this fact remains important insofar as it affects the admissibility of the out-of-court identification of accusedappellant by the prosecution witnesses, namely, Michelle Darunday, Erma Blanca, Ma. Teresa Gellaver, Mark Esmeralda, and Jason Joniega. As a rule, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of the custodial inquest. 42 However, the cases at bar are different inasmuch as accused-appellant, having been the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, was already under custodial investigation when these out-of-court identifications were conducted by the police. An out-of-court identification of an accused can be made in various ways. In a show-up, the accused alone is brought face to face with the witness for identification, while in a police lineup, the suspect is identified by a witness from a group of persons gathered for that purpose. 43 During custodial investigation, these types of identification have been recognized as "critical confrontations of the accused by the prosecution" which necessitate the presence of counsel for the accused. This is because the results of these pre-trial proceedings "might well settle the accused's fate and reduce the trial itself to a mere formality." 44 We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a showup for that matter, after the start of the custodial investigation is inadmissible as evidence against him. 45 Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police lineup on various dates after his arrest. Having been made when accused-appellant did not have the assistance of counsel, these out-of-court identifications are inadmissible in evidence

against him. Consequently, the testimonies of these witnesses regarding these identifications should have been held inadmissible for being "the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality."' 46 Be that as it may, as the defense failed to object immediately when these witnesses were presented by the prosecution or when specific questions regarding this matter were asked of them, as required by Rule 132, 36 of the Rules on Evidence, accused-appellant must be deemed to have waived his right to object to the admissibility of these testimonies. 47 Furthermore, the inadmissibility of these out-of-court identifications does not render the incourt identification of accused-appellant inadmissible for being the "fruits of the poisonous tree." 48 This in-court identification was what formed the basis of the trial court's conviction of accused-appellant. As it was not derived or drawn from the illegal arrest of accusedappellant or as a consequence thereof, 49 it is admissible as evidence against him. However, whether or not such prosecution evidence satisfies the requirement of proof beyond reasonable doubt is another matter altogether. II. Credibility of the Prosecution Witnesses Accused-appellant contends that: (1) he does not possess the character, qualities, and expertise of the assailant who robbed and raped Michelle Darunday, Erma Blanca, and Ma. Teresa Gellaver; (2) the records are bereft of any description of the assailant made by these prosecution witnesses prior to his arrest as the affidavits of Darunday, Blanca, Joniega, and Esmeralda were executed only after his arrest; (3) the testimonies of the defense witnesses, namely, PO2 Rodolfo Gemarino, Barangay Captain Nestor Dojillo, and Ricardo Villaspen, show that Michelle Darunday failed to identify accused-appellant when the latter was presented to her at the Pontevedra police station; (4) Tancinco's testimony that Michelle Darunday properly identified accused-appellant at the Pontevedra police station could not be believed as the said witness had motive to testify falsely against accused-appellant; (4) the identification of accused-appellant at the Bacolod police station was tainted because only accused-appellant was handcuffed among the persons presented to the prosecution witnesses; and (5) it was highly improbable for the prosecution witnesses to identify the assailant by face considering the distance, the intensity of light, and the circumstances at the time of the commission of the crime. A.Jason Joniega 50 and Mark Esmeralda 51 pointed to accused-appellant as the man they saw on the night of December 27, 1996 and the person they identified inside a jail cell at the Bacolod police station. Erma Blanca, on the other hand, testified that she saw through her blindfold accused-appellant raping Michelle Darunday. She identified accused-appellant in court as their assailant and as the man whom she saw inside the jail cell at the Bacolod police station. 52 Ma. Teresa Gellaver 53 and Michelle Darunday 54 identified accused-appellant as the suspect brought before them at the Bacolod police station and the Pontevedra police station, respectively.

The test is whether or not the prosecution was able to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the line-up identification. 55 As held in United States v. Wade: 56 We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 US 471, 488, 9 L ed 2d 441, 455, 83 S Ct 407, "'[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt 221 (1959)." See also Hoffa v. United States, 385 US 293, 309, 17 L ed 2d 374, 386, 87 S Ct 408. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any pre-line-up description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup. We now consider whether the testimonies of the prosecution witnesses meet the test as laid down in that case. 1.Michelle Darunday testified that her assailant's face was covered with cloth when he entered the room and that she was blindfolded when she was raped. 57She could thus only see the assailant's eyes, which Michelle described as chinito (chinky), 58 although she testified that she could also identify his voice. 59 Otherwise, Michelle did not see her attacker. Yet, she testified that she immediately recognized accused-appellant as the assailant when she saw him at the Pontevedra police station. Michelle stated: PROS. CARDINAL: Madam Witness, a few days thereafter, can you recall any development of your case? WITNESS: That was in January 3, when somebody told us to identify a suspect in the City Hall of Pontevedra. PROS. CARDINAL:

Who was with you when you went to Pontevedra? WITNESS:

anything." But when I looked at his eyes and heard his voice, I was sure that he was the man. PROS. CARDINAL:

My aunt and my uncle and the police investigators. xxx xxx xxx PROS. CARDINAL: Upon arrival at Pontevedra, what happened? WITNESS: We waited for a while because they will find the suspect and I was there in the room of the police sitting. xxx xxx xxx PROS. CARDINAL: So, you stayed behind and the policemen pick up the suspect? WITNESS: I and my aunt waited in the police of the policemen, and then later the suspect arrived. PROS. CARDINAL: When that suspect arrived inside the room where you were, can you tell us what was the reaction of the suspect? WITNESS: When the suspect arrived, at first, he was not able to see me because I was behind the desk after the door, and then he was so fresh saying that he was a good man, but when he saw me he blushed and moving his head asking, "Ano ang sala ko sa imo? (What did I do to you?), I did not do When that person said, what did I do to you, I did not do anything, what was [your] reaction? WITNESS: I just looked at him and he was so fresh that he has not done anything, but the policeman said that his case is rape. Then, he was asked to take off his t-shirt and I just looked at him and then later, the policeman asked to borrow the man for investigation and while the policeman was recording, that suspect approached me and told me that, "You do not know me," and asked, "Do you know me?" PROS. CARDINAL: What was your reaction? WITNESS: I just [kept] quiet but my aunt reacted by saying, "You think you cannot be identified because you covered yourself?" PROS. CARDINAL: And then what did he answer? WITNESS: He just stand outside while we went ahead to go back to our home. 60 A show-up, such as what was undertaken by the police in the identification of accusedappellant by Michelle Darunday, has been held to be an underhanded mode of identification for "being pointedly suggestive, generat[ing] confidence where there was none, activat[ing] visual imagination, and, all told, subvert[ing] their reliability as [an eyewitness]." 61 In these cases, Michelle knew that she was going to identify a suspect when she went to Pontevedra. Upon seeing accused-appellant escorted by Tancinco and his colleagues in the Bacolod police,

she knew that he was the suspect she was supposed to identify. When accused-appellant was thus shown to her, there could be no doubt as to what was expected of her. Further aggravating the situation were the reply of the policeman to accused-appellant's protestations of innocence that he was being held for rape and Michelle's aunt's obvious assumption of his guilt. Michelle's immediate conclusion, therefore, that accused-appellant was her attacker was understandable. As has been explained: Social psychological influences. Various social psychological factors also increase the danger of suggestibility in a lineup confrontation. Witnesses, like other people, are motivated by a desire to be correct and to avoid looking foolish. By arranging a lineup, the police have evidenced their belief that they have caught the criminal; witnesses, realizing this, probably will feel foolish if they cannot identify anyone and therefore may choose someone despite residual uncertainty. Moreover, the need to reduce psychological discomfort often motivates the victim of a crime to find a likely target for feelings of hostility. Finally, witnesses are highly motivated to behave like those around them. This desire to conform produces an increased need to identify someone in order to show the police that they, too, feel that the criminal is in the lineup, and makes the witnesses particularly vulnerable to any clues conveyed by the police or other witnesses as to whom they suspect of the crime . . . 62 Coupled with the failure of Michelle to see the face of her assailant, the apparent suggestiveness of the show-up places in doubt her credibility concerning the identity of accused-appellant. The possibility that her identification of accused-appellant was merely planted in her mind both by the circumstances surrounding the show-up and her concomitant determination to seek justice cannot be disregarded by this Court. Michelle's identification of accused-appellant is further rendered dubious by the disparity between her description of her attacker and the appearance of accused-appellant. In her affidavit, dated January 4, 1997, Michelle described her attacker as follows: PSadtong tinion nga ginahimoslan ikaw sining suspetsado nakita mo bala ang iya hitsura? (At the time that you were abused by the suspect, did you see what he looked like?) SWala, kay tungod nga may tabon ang akon mata, apang matandaan ko guid ang iya tingog, mata, ang iya malaka nga biguti, ang structure sang iya lawas, ang supat sang iya kamot, ang iya bibig, ang madamo nga "kelloid" sa iya lawas kag ang iya baho. (No, because I was blindfolded but I can remember his voice, his eyes, his thin mustache,

his body structure, the smoothness of his hands, his mouth, and the numerous keloids on his body, and his smell.) 63 Michelle's affidavit clearly indicated that she felt the keloids on the back of her assailant when the latter was raping her. But, when she testified in court, Michelle admitted that she did not see keloids on accused-appellant although she said that his skin was rough. 64 This is corroborated by the testimony of PO2 Rodolfo Gemarino who said that he did not see any lump on the back of accused-appellant when he tried to look for it. 65 In fact, it would appear that accused-appellant had no such markings on his back but had only small patches which could not even be readily seen. 66 In dismissing the disparity between accused-appellant's appearance and Michelle's description of her attacker, the trial court dwelt on the apparent roughness of accusedappellant's skin and the probability that Michelle might have felt only the arch of the spinal cord of her assailant. 67 However, mere speculations and probabilities cannot take the place of proof beyond reasonable doubt required by law to be established by the prosecution. 68 Michelle Darunday was a civil engineer in the City Engineer's Office in Bacolod City. Considering her educational attainment and professional status, it is improbable that she was mistaken as to what she felt on her attacker's back at the time she was raped. A mere protrusion on the back of the neck of the assailant could not possibly have been mistaken for keloids. Another circumstance casting doubt on the credibility of Michelle's identification is her lack of reaction upon seeing accused-appellant at the Pontevedra police headquarters. Defense witnesses PO2 Rodolfo Gemarino, 69 Ricardo Villaspen, 70 and Nestor Dojillo 71 testified that Michelle failed to see any identifying marks on accused-appellant and that she showed hesitation in pinpointing the latter as the culprit. With Gemarino being a policeman, Villaspen a barangay tanod, and Dojillo abarangay captain, these witnesses were all, in one form or another, connected with law enforcement. The prosecution having failed to ascribe any ill motive on the part of these defense witnesses, who are without doubt respectable members of the community, their testimonies that Michelle showed no reaction in seeing accusedappellant at the show-up in Pontevedra police station deserve greater credence than the testimony of Tancinco that Michelle confirmed to him that accused-appellant was her attacker. The defense evidence established that Tancinco was an abusive policeman who had made up his mind as to accused-appellant's guilt and who had no compunction in doing whatever means necessary, legal or illegal, to ensure his conviction. We note further that the testimonies of these defense witnesses coincide with Michelle's testimony that she kept quiet when she saw accused-appellant at the Pontevedra police station on January 3, 1997. This being so, her reaction to the show-up at the Pontevedra police station upon seeing accusedappellant, the man who supposedly raped her twice in an ignominious manner, is contrary to human nature. 72 It may be that she was filled with rage so that upon seeing accusedappellant she was unable to show any emotion. But it is equally possible that, as defense witnesses Gemarino, Villaspen, and Dojillo testified, Michelle did not immediately recognize accused-appellant as her attacker and only pointed to him as her assailant upon promptings by the police and her companions. "[W]here the circumstances shown to exist yield two (2) or

more inferences, one of which is consistent with the presumption of innocence, while the other or others may be compatible with the finding of guilt, the court must acquit the accused: for the evidence does not fulfill the test of moral certainty and is insufficient to support a judgment of conviction." 73

executed her affidavit only on January 4, 1997, more than a week after the occurrence of the crime. Delay in reporting the crime or identifying the perpetrator thereof will not affect the credibility of the witness if it is sufficiently explained. 79 But here, no explanation was given by the prosecution why Erma Blanca executed her affidavit one week after the crime took place and one day after accused-appellant's arrest. The most likely explanation for such lapse is that Erma Blanca was used merely to corroborate what would otherwise have been a weak claim on the part of Michelle Darunday. The same may be said of the testimonies of Jason Joniega and Mark Esmeralda. B.Accused-appellant's testimony that he was at the cockpit in Barangay Miranda, Pontevedra, Negros Occidental on December 27, 1996 is corroborated by Aaron Lavilla, 80 Elias Sombito, 81 and Nestor Dojillo. 82 Considering the improbabilities and uncertainties surrounding the testimonies of the prosecution witnesses, the defense of alibi by accusedappellant deserves credence. 83 To summarize, we find that the prosecution failed to meet the degree of proof beyond reasonable doubt required in criminal cases. The acquittal of accused-appellant is thus in order. WHEREFORE, the decision of the Regional Trial Court, Branch 53, Bacolod City, finding accused-appellant guilty of robbery with rape and sentencing him to death, is hereby REVERSED and accused-appellant is ACQUITTED on the ground of reasonable doubt. Accusedappellant is ordered immediately released unless there are other legal grounds for his continued detention. The Director of Prisons is directed to implement this Decision and to report to the Court immediately the action taken hereon within five (5) days from receipt hereof. SO ORDERED.

For the foregoing reasons, we find both the out-of-court and in-court identification of Michelle Darunday to be insufficient to establish accused-appellant as the person who robbed and raped her and her companions on the night of December 27, 1996. 2.Erma Blanca testified that she saw through her blindfold the assailant when he was raping Michelle Darunday. She identified accused-appellant in open court as the person whom she saw that night. 74 Certain circumstances in these cases lead us to believe, however, that Erma Blanca did not really see the assailant and that her testimony otherwise was a mere afterthought. These are: First, the police blotter, dated December 28, 1996, 75 prepared by PO3 Nicolas Tancinco, referred to an "unknown suspect" who allegedly entered the boarding house of Pacita Aguillon and robbed Ma. Teresa Gellaver and Michelle Darunday. This casts doubt on Erma's credibility because she testified that she had known accused-appellant for a long time prior to December 27, 1996. During her testimony, Erma claimed that accused-appellant approached her and Michelle sometime in September or October 1996 to ask for the name of the latter. In addition, Erma said she had seen accused-appellant whenever he passed by their boarding house or stayed in her Tiyo Anong's store nearby. 76 It would thus seem that Erma was familiar with accused-appellant. But, if she had actually seen him on that night of the robbery, why did she not report this to the police immediately? Being a victim herself, Erma had every motive to reveal the identity of the robber that same night the crime was committed. But she did not do so. We are therefore left with the conclusion that the police blotter referred to an unknown suspect because the identity of the assailant had not been determined at the time the crime was reported to the police. Second, Erma was not the one who accompanied the Bacolod police when the latter sought accused-appellant in Pontevedra, Negros Occidental. PO3 Tancinco testified that he took Michelle Darunday along with his other companions when they went to Pontevedra, Negros Occidental so that she could identify if the suspect was the person who had raped her. But Michelle admitted that she did not see the face of the assailant. Erma Blanca, who claimed she recognized accused-appellant, was not taken along by the police to Pontevedra, Negros Occidental. Why not? Why did they bring instead Michelle Darunday? Third, the affidavit of Erma Blanca 77 was prepared on January 4, 1997, a day after the arrest of accused-appellant. This delay belies Erma's claim that she saw the assailant through her blindfold on the night of the incident. For the normal reaction of one who actually witnessed a crime and recognized the offender is to reveal it to the authorities at the earliest opportunity. 78 In these cases, the crime took place on December 27, 1996, but Erma Blanca

EN BANC [G.R. No. 135562. November 22, 1999.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENITO BRAVO, accused-appellant.

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; EXCLUSIONARY RULE; EXPLAINED. Section 12 of Article III of the 1987 Constitution embodies the mandatory protection afforded a person under investigation for the commission of a crime and the correlative duty of the State and its agencies to enforce such mandate. The mantle of protection under this constitutional provision covers the period from the time a person is taken into custody for investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of a crime although not yet in custody. The exclusionary rule sprang from a recognition that police interrogatory procedures lay fertile grounds for coercion, physical and psychological, of the suspect to admit responsibility for the crime under investigation. It was not intended as a deterrent to the accused from confessing guilt, if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. Law enforcement agencies are required to effectively communicate the rights of a person under investigation and to insure that it is fully understood. Any measure short of this requirement is considered a denial of such right. Courts are not allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule. Any information or admission given by a person while in custody which may appear harmless or innocuous at the time without the competent assistance of an independent counsel should be struck down as inadmissible. It has been held, however, that an admission made to news reporters or to a confidant of the accused is not covered by the exclusionary rule. 2.ID.; ID.; ID.; ID.; ADMISSION MADE DURING AN INFORMAL TALK INADMISSIBLE AS EVIDENCE. The accused was under arrest for the rape and killing of Juanita Antolin and any statement allegedly made by him pertaining to his possible complicity in the crime without prior notification of his constitutional rights is inadmissible in evidence. The policeman's apparent attempt to circumvent the rule by insisting that the admission was made during an "informal talk" prior to custodial investigation proper is not tenable. The appellant was not invited to the police station as part of a general inquiry for any possible lead to the perpetrators of the crime under investigation. At the time the alleged admission was made the appellant was in custody and had been arrested as the prime suspect in the rape and killing of Juanita Antolin. The exclusionary rule presumes that the alleged admission was coerced, the very evil the rule stands to avoid. Supportive of such presumption is the absence of a written extra-judicial confession to that effect and the appellant's denial in court of the alleged oral admission. The alleged admission should be struck down as inadmissible. 3.REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; NOT SUFFICIENTLY ESTABLISHED IN CASE AT BAR. We also agree with both the appellant and the appellee that the trial court erred in rendering judgment convicting the appellant based on a single circumstance. Only one circumstantial evidence was proveni.e., that the victim went with the accused to buy soda and balut on the evening of January 12, 1994. Section 4 Rule 133 of the Rules of Court states: Section 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: a) There is more than one circumstance; b) The facts from which the inferences are derived are proven; and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In the case ofPeople vs. Adorfina this

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

SYNOPSIS On May 25, 1994 an Information for rape with homicide was filed against herein appellant. On September 26, 1994 the appellant was arraigned and pleaded not guilty to the crime charged. After trial on the merits the court a quo rendered judgment finding the appellant guilty beyond reasonable doubt of the crime charged and sentenced him to suffer the penalty of death. The trial court likewise ordered the appellant to pay the heirs of the victim the amount of P100,000.00 as indemnity and P300,000.00 as exemplary damages. In view of the penalty imposed, the case was forwarded to the Supreme Court for automatic review. The Supreme Court reversed the judgment of the lower court. The accused was under arrest for the rape and killing of Juanita Antolin and any statement allegedly made by him pertaining to his possible complicitly in the crime without prior notification of his constitutional rights is inadmissible in evidence. The policemen's attempt to circumvent the rule by insisting that the admission was made during an informal talk prior to the custodial investigation proper is not tenable. The appellant was not invited to the police station as part of a general inquiry for any possible lead to the perpetrators of the crime under investigation. At the time the alleged admission was made, the appellant was in custody and had been arrested as the prime suspect in the rape and killing of Juanita Antolin. The exclusionary rule presumes that the alleged admission was coerced, the very evil the rule stands to avoid. Supportive of such presumption is the absence of a written extra-judicial confession to the effect and the appellant's denial in court of the alleged oral admission. The alleged admission should be struck down as inadmissible. Moreover, the trial court erred in rendering judgment convicting the appellant based on a single circumstance. The rule is clear that there must be at least two proven circumstances which in complete sequence leads to no other logical conclusion than that of the guilt of the accused. The two witnesses for the prosecution testified to a single circumstance, that is, the victim was seen in the company of the appellant. This circumstance alone cannot be the basis of the judgment of conviction. Accordingly, the appealed decision was reversed. Appellant was acquitted of the crime charged.

court held that: ". . . a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven 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, that is, 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." The rule is clear that there must be at least two proven circumstances which in complete sequence leads to no other logical conclusion than that of the guilt of the accused. The two witnesses for the prosecution testified to a single circumstance, namely, that the victim was seen in the company of the appellant on the night of January 12, 1994. This circumstance alone cannot be the basis of a judgment of conviction. There is no other proven circumstance linking the appellant to the crime as the perpetrator thereof to the exclusion of any other possible culprit e.g. that the appellant was at or near the scene of the crime at the time it was probably committed or any other evidence to establish the appellant's participation in the commission thereof.

Juanita Antolin y Jandoc, inflicting upon her, a fracture on the skull, which directly caused her death. CONTRARY TO LAW." On September 26, 1994 the accused was arraigned and pleaded not guilty to the crime charged. 6 Evelyn San Mateo an eight year old second grader from Rosario, Santiago City neighbor and cousin of the victim testified that she was with the deceased the night before she disappeared. She stated that while they stood on the roadside watching "Home Along Da Riles" from an open window of a neighbor's house the appellant approached them and asked Len-Len to come with him to a birthday party and then he will buy her Coke and balut. LenLen asked her to go with them but she did not want to because she was watching television. Len-Len went alone with the accused. The following morning Len-Len's mother told Evelyn and her mother that Len-Len was missing. In court, Evelyn positively identified the appellant as the person last seen with Len-len before she was found dead. 7

DECISION

GONZAGA-REYES, J p: On January 15, 1994 the decomposing body of a child was found in a vacant lot along the road leading to Patul, Rosario Santiago City. 1 Her body was found between two concrete fences half naked, shirtless and skirt pulled up, her panty stuffed in her mouth. 2 The body was identified to be that of a nine year old girl named Juanita Antolin, a resident of Rosario, Santiago City and known in her neighborhood as Len-len. Her body was found about 700 meters from her house putrid and in rigor mortis. 3 The scalp on the left side of her head was detached exposing a fracture on the left temporal lobe of her skull. Vaginal examination showed fresh laceration at 2:30 o'clock and old lacerations at 5:00 and 7:00 o'clock and easily accepts two fingers. The cause of death was cerebral hemorrhage. 4 On May 25, 1994 an Information for rape with homicide 5 was filed against herein accusedappellant which states: cdphil "That on or about the 12th day of January 1994, in the municipality of Santiago, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there, willfully, unlawfully and feloniously, with lewd design and by means of violence and intimidation, have carnal knowledge with one Juanita Antolin y Jandoc, a nine year old girl, against her will and consent; that on the occasion and by reason of the said rape, the said accused, did then and there, willfully, unlawfully and feloniously, assault, attack and hit with a blunt instrument the said

The owner of the house where Len-len and Evelyn watched television, Gracia Monahan, corroborated Evelyn's testimony that on the evening of January 12, 1994 she saw the appellant talking to Len-len while the two girls were watching television from her open window and that when she looked again towards the end of the program to the direction where the girls were situated, only Evelyn was left watching television. Monahan testified that she is familiar with the appellant and the two children because they are neighbors. 8 The Chief of the Intelligence Section of the Santiago Police Department, Alexander Mico, testified that on January 15, 1994 his office received a report that a dead body was found in a vacant lot. The body was later identified as Juanita Antolin. Mico stated that he interviewed San Mateo who pointed to the appellant as the man last seen with the deceased. Mico found the appellant at his place of work at the Spring Garden Resort at Sinsayon, Santiago City. Upon seeing Bravo, Mico informed him that he is a suspect in the killing of a girl in Rosario, Santiago City and asked him to come with him for questioning. The appellant agreed. Mico further narrated in court that at the police station the appellant admitted he was with the girl and he carried her on his shoulder but he was so drunk that night that he does not remember what he did to her. 9 On cross-examination Mico admitted that he did not inform the appellant of his constitutional rights to remain silent, to counsel and of his right against selfincrimination before the appellant made the said admission because according to Mico he was only informally interviewing the accused when he made the admission and that custodial interrogation proper was conducted by the assigned investigator. 10 The appellant Benito Bravo testified in court that on his way home after work at around five o'clock in the afternoon of January 12, 1994 he was invited to go on a drinking spree at Purok

1, Rosario, Santiago City where he and four other men consumed five round bottles of gin until 7:30 that evening. He then headed for home. Appellant admitted in court that he passed by the house of Gracia Monahan but stated that he did not see the two girls watching television along the road. At home, he found his mother very sick and so he decided to stay home all night. He woke up the following morning at around 4:30 a.m. and prepared to go to work. On January 15, 1994 a policeman came to his place of work and apprehended him without a warrant of arrest and at the police station he was forced to admit commission of the crime of rape with homicide of Juanita Antolin. The appellant denied the accusation and stated that the deceased was his godchild and that he has known Fely Handoc, the mother of the child, for three years prior to this proceedings. 11 Juanito Bravo, the brother of the appellant testified that the appellant stayed home on the night of January 12, 1994 to take care of their sick mother who died a few days thereafter. 12 Ernesto Pastor, the foreman at the Spring Garden Resort where the appellant was employed, testified that he has known the appellant for a long time and that he knows him to be hardworking and of good moral character. Pastor corroborated the appellant's testimony that police investigator Mico came to the Spring Garden Resort and arrested Bravo without a warrant. 13 The testimony of the Municipal Health Officer who conducted the autopsy was dispensed with by the prosecution as the handwritten Autopsy Report made by the Municipal Health Officer of Santiago, Isabela, marked as Exhibit B, was admitted by both parties. 14 The Report reads: LLphil AUTOPSY REPORT ABEL MEM ORIA L HOM ES PUR OK 2, ROSA RIO, SANT IAGO , ISAB ELA

JANU ARY 15, 1994 2:30 P.M. JUANITA ANTOLIN PUROK 1, BARANGAY ROSARIO AGE: 9 FATHER: ANTONIO MOTHER: OFELIA JANDOC Was investigated under the mango tree where the crime was committed and left side of the face is covered by sand (done by anay) with rigor mortis and with putrification, easy pulling of the skin and plenty of small worms coming out from the ears, nose, eyes and mouth (without panty), the whole body is edematous. After complete washing, coming out of small worms on both eyes and ears and mouth, scalp on the left side was detached and skull exposed. Fracture of the skull with left temporal Edematous Abdomen, extremities has no pertinent findings except easy pulling of skin and all are edematous Vaginal examination shows fresh laceration at 2:30 o'clock, old lacerations at 5:00 and 7:00 o'clock-could easily accept two fingers. Cause of death cerebral hemorrhage (fracture of skull temporal region, left). 15

On August 25, 1998 the trial court rendered judgment finding the accused guilty of the crime charged as follows: prcd Wherefore, finding the accused BENITO BRAVO "GUILTY" beyond reasonable doubt of the crime of RAPE WITH HOMICIDE punishable under Art. 335 of the Revised Penal Code, as amended by Republic Act 7659, the court sentences him the penalty of DEATH and ordering him to pay the heirs of Juanita Antolin y Jandoc the amount of one hundred thousand pesos (P100,000.00) as indemnity and three hundred thousand pesos (P300,000.00) as exemplary damages. SO ORDERED. 16 and held that abuse of confidence and treachery attended the commission of the crime. This case is before us on automatic review in view of the penalty imposed by the trial court. Both counsels for the accused-appellant and the appellee plead for the acquittal of the accused. Both the accused-appellant and the appellee invoke the constitutionally guarded presumption of innocence in favor of the accused and the latter's right to remain silent and to counsel. The testimony of the policeman that the accused admitted he was with the victim on the evening of January 12, 1994 but the latter was too drunk to remember what happened should have been held inadmissible by the trial court in view of the policeman's own admission in court that although he informed the accused that he is a suspect in the rape and killing of one Juanita Antolin he did not inform the accused of his constitutional rights before he asked him of his participation in the crime under investigation. Both the appellant and the appellee are in agreement that the trial court grievously erred in finding the accused guilty beyond reasonable doubt based on the sole circumstantial evidence that the victim was last seen by her cousin in the company of the accused whereas the Rules of Court clearly requires the presence of at least two proven circumstances the combination of which creates an unbroken link between the commission of the crime charged and the guilt of the accused beyond reasonable doubt. The single circumstance proven by the prosecution that the victim was last seen conversing with the accused two days before she was found dead cannot serve as basis for any conclusion leading to the guilt of the accused of the crime charged. The evidence for the prosecution falls short of the quantum of evidence required by the Rules to establish guilt of the accused beyond reasonable doubt. In sum, both the appellant and the appellee profess that the presumption of innocence of the accused was not successfully overturned by the prosecution. We resolve to acquit Benito Bravo.

Section 12 of Article III of the 1987 Constitution embodies the mandatory protection afforded a person under investigation for the commission of a crime and the correlative duty of the State and its agencies to enforce such mandate. It states: 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. prLL (1)No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (2)Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. (3)The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. The mantle of protection under this constitutional provision covers the period from the time a person is taken into custody for investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of a crime although not yet in custody. 17 The exclusionary rule sprang from a recognition that police interrogatory procedures lay fertile grounds for coercion, physical and psychological, of the suspect to admit responsibility for the crime under investigation. It was not intended as a deterrent to the accused from confessing guilt, if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. 18 Law enforcement agencies are required to effectively communicate the rights of a person under investigation and to insure that it is fully understood. Any measure short of this requirement is considered a denial of such right. 19 Courts are not allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule. Any information or admission given by a person while in custody which may appear harmless or innocuous at the time without the competent assistance of an independent counsel should be struck down as inadmissible. 20 It has been held, however, that an admission made to news reporters or to a confidant of the accused is not covered by the exclusionary rule. 21

The admission allegedly made by the appellant is not in the form of a written extra-judicial confession; the admission was allegedly made to the arresting officer during an "informal talk" at the police station after his arrest as a prime suspect in the rape and killing of Juanita Antolin. The arresting policeman testified that the appellant admitted that he was with the victim on the evening of January 12, 1994, the probable time of the commission of the crime and that he carried her on his shoulder but that he was too drunk to remember what subsequently happened. The arresting policeman admitted that he did not inform the appellant of his constitutional rights to remain silent and to counsel. We note that the alleged admission is incriminating because it places the accused in the company of the victim at the time the crime was probably committed. The exclusionary rule applies. The accused was under arrest for the rape and killing of Juanita Antolin and any statement allegedly made by him pertaining to his possible complicity in the crime without prior notification of his constitutional rights is inadmissible in evidence. The policeman's apparent attempt to circumvent the rule by insisting that the admission was made during an "informal talk" prior to custodial investigation proper is not tenable. The appellant was not invited to the police station as part of a general inquiry for any possible lead to the perpetrators of the crime under investigation. At the time the alleged admission was made the appellant was in custody and had been arrested as the prime suspect in the rape and killing of Juanita Antolin. The exclusionary rule presumes that the alleged admission was coerced, the very evil the rule stands to avoid. Supportive of such presumption is the absence of a written extra-judicial confession to that effect and the appellant's denial in court of the alleged oral admission. The alleged admission should be struck down as inadmissible. We also agree with both the appellant and the appellee that the trial court erred in rendering judgment convicting the appellant based on a single circumstance. Only one circumstantial evidence was proven i.e., that the victim went with the accused to buy soda and balut on the evening of January 12, 1994. Section 4 Rule 133 of the Rules of Court states: Section 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: a)There is more than one circumstance; b)The facts from which the inferences are derived are proven; and c)The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In the case of People vs. Adorfina 22 this court held that:

". . . a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven 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, that is, 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." cdrep The rule is clear that there must be at least two proven circumstances which in complete sequence leads to no other logical conclusion than that of the guilt of the accused. The two witnesses for the prosecution testified to a single circumstance, namely, that the victim was seen in the company of the appellant on the night of January 12, 1994. This circumstance alone cannot be the basis of a judgment of conviction. There is no other proven circumstance linking the appellant to the crime as the perpetrator thereof to the exclusion of any other possible culprit e.g. that the appellant was at or near the scene of the crime at the time it was probably committed or any other evidence to establish the appellant's participation in the commission thereof. The prosecution's theory that the appellant is guilty of the crime charged because he was seen with the victim a few days before she was found dead is not tenable. The approximate time the crime was committed was not established at all because the physician who made the autopsy report was discharged as a witness when both parties admitted the report. The two day interval between the evening of January 12th when the victim was seen with the appellant and the day when her dead body was found on January 15th presents a wide range of possibilities as to the perpetrator of the crime. The Rules and jurisprudence demand no less than an unbroken chain of proven facts pointing to the appellant as the guilty person to the exclusion of all others. This the evidence for the prosecution failed to do. Both counsels for the appellant and the appellee are correct in their submission that the single circumstance that the victim was seen with the appellant two days before she was found dead is clearly insufficient to overcome the presumption of innocence in favor of the accused. The rape and killing of nine year old Juanita Antolin is supported by concrete evidence undisputed by both parties. The unpardonable assault on the child is tragic and the trial court may have been swayed by the tide of human indignation. We must however uphold the primacy of the presumption of innocence in favor of the accused when the evidence at hand falls short of the quantum required to support conviction. Wherefore, the judgment appealed from is hereby reversed. The appellant Benito Bravo is acquitted of the crime charged herein. The Director of the Bureau of Corrections is ordered to immediately release him from custody unless he is detained for another legal cause. LLphil SO ORDERED.

EN BANC [G.R. No. 140740. April 12, 2002.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUANITO BALOLOY, accused-appellant.

ordinary manner whereby the suspect orally admits having committed the crime. Neither can it apply to admissions or confessions made by a suspect in the commission of a crime before he is placed under investigation. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. 2.ID.; ID.; ID.; CASE AT BAR. In the instant case, after he admitted ownership of the black rope and was asked by Ceniza to tell her everything, JUANITO voluntarily narrated to Ceniza that he raped GENELYN and thereafter threw her body into the ravine. This narration was a spontaneous answer, freely and voluntarily given in an ordinary manner. It was given before he was arrested or placed under custody for investigation in connection with the commission of the offense. 3.REMEDIAL LAW; EVIDENCE; MOTIVE; ABSENCE OF IMPROPER MOTIVE BY WITNESS TO TESTIFY FALSELY AGAINST ACCUSED IN CASE AT BAR. Moreover, JUANITO did not offer any evidence of improper or ulterior motive on the part of Ceniza, which could have compelled her to testify falsely against him. Where there is no evidence to show a doubtful reason or improper motive why a prosecution witness should testify against the accused or falsely implicate him in a crime, the said testimony is trustworthy. 4.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL DURING CUSTODIAL INVESTIGATION; ONCE ACCUSED VOLUNTARILY SURRENDERS, OR IS ARRESTED, CUSTODIAL INVESTIGATION IS DEEMED TO HAVE STARTED; ACCUSED CANNOT BE ASKED QUESTIONS WITHOUT ASSISTANCE OF COUNSEL. However, there is merit in JUANITO's claim that his constitutional rights during custodial investigation were violated by Judge Dicon when the latter propounded to him incriminating questions without informing him of his constitutional rights. It is settled that at the moment the accused voluntarily surrenders to, or is arrested by the police officers, the custodial investigation is deemed to have started. So, he could not thenceforth be asked about his complicity in the offense without the assistance of counsel. Judge Dicon's claim that no complaint has yet been filed and that neither was he conducting a preliminary investigation deserves scant consideration. The fact remains that at that time JUANITO was already under the custody of the police authorities, who had already taken the statement of the witnesses who were then before Judge Dicon for the administration of their oaths on their statements. ACcISa 5.REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; DEFINED. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense, and it is made by an actual restraint of the person to be arrested, or by his submission to the person making the arrest. 6.ID.; EVIDENCE; ADMISSIBILITY; EXTRAJUDICIAL CONFESSION OF ACCUSED OBTAINED WITHOUT ASSISTANCE OF COUNSEL MAY BE TREATED AS VERBAL ADMISSION. At any rate, while it is true that JUANITO's extrajudicial confession before Judge Dicon was made without the advice and assistance of counsel and hence inadmissible in evidence, it could however be

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

SYNOPSIS Appellant was convicted of rape with homicide in connection with the rapeslay of 11-year old Genelyn. His conviction was based on his extrajudicial confessions to Barangay Captain Ceniza and to Judge Dicon as well as the several circumstantial evidence against him. Ceniza testified that before the arrest of appellant, he admitted that he raped Genelyn and then threw her body into the ravine, while according to Judge Dicon, he asked appellant whether the charge against him was true and appellant replied that "he was demonized" and narrated how he struck the victim's head with a stone and dropped her into the precipice. He asked appellant these questions after the statements of the witnesses for the prosecution were taken. Appellant interposed denial and alibi. He was sentenced to suffer the death penalty. He assailed the admissibility of his confessions and the sufficiency of evidence against him. It was held that the right to counsel during custodial investigation does not apply to spontaneous statements. The statements must be made before and not after appellant was placed under the custody of the police authorities for investigation; and that an accused may be convicted on the basis of circumstantial evidence provided that there be more than one circumstance, the inferences are based on proven facts; and the combination of all the circumstances produces a conviction beyond reasonable doubt of the guilt of the accused, as in the case at bar.

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; CONSTITUTIONAL PROVISION ON CUSTODIAL INVESTIGATION DOES NOT APPLY TO A SPONTANEOUS STATEMENT, ADMISSION, OR CONFESSIONS MADE BY A SUSPECT BEFORE HE IS PLACED UNDER INVESTIGATION. It has been held that the constitutional provision on custodial investigation does not apply to a spontaneous statement, not elicited through questioning by the authorities but given in an

treated as a verbal admission of the accused, which could be established through the testimonies of the persons who heard it or who conducted the investigation of the accused. 7.ID.; ID.; ALIBI; DEFENSE UNAVAILING WHERE ACCUSED ADMITTED THAT HE WAS AT THE SCENE OF THE CRIME DURING ITS COMMISSION. JUANITO's defense of alibi is futile because of his own admission that he was at the scene of the crime. Alibi is a defense that places an accused at the relevant time of a crime in a place other than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party. Likewise, a denial that is unsubstantiated by clear and convincing evidence is a negative and self-serving evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. 8.ID.; ID.; CREDIBILITY OF WITNESSES; MINOR INCONSISTENCIES STRENGTHEN RATHER THAN WEAKEN CREDIBILITY. Anent the alleged inconsistencies in the details surrounding the recovery of the black rope, the same are irrelevant and trite and do not impair the credibility of the witnesses. Minor inconsistencies and honest lapses strengthen rather than weaken the credibility of witnesses, as they erase doubts that such testimonies have been coached or rehearsed. What matters is that the testimonies of witnesses agree on the essential fact that JUANITO was the owner of the black rope and the perpetrator of the crime. 9.ID.; ID.; CIRCUMSTANTIAL EVIDENCE; ELEMENTS FOR CONVICTION; CASE AT BAR. Guilt may be established through circumstantial evidence provided that the following requisites concur: (1) there is more than one circumstance; (2) the inferences are based on proven facts; and (3) the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the accused. All these requisites are present in the case at bar. TEHIaD 10.CRIMINAL LAW; RAPE WITH HOMICIDE; DEATH PENALTY PROPER IN CASE AT BAR. With JUANITO's guilt for rape with homicide proven beyond reasonable doubt, we are constrained to affirm the death penalty imposed by the trial court. Article 335 of the Revised Penal Code, as amended by Section 11 of R. A. No. 7659, pertinently provides: "When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death." 11.CIVIL LAW; DAMAGES; CIVIL INDEMNITY FOR RAPE WITH HOMICIDE IS P100,000.00. As to JUANITO's civil liability, prevailing judicial policy has authorized the mandatory award of P100,000 as civil indemnity ex delicto in cases of rape with homicide (broken down as follows: P50,000 for the death and P50,000 upon the finding of the fact of rape). Thus, if homicide is committed by reason or on occasion of rape, the indemnity in the amount of P100,000 is fully justified and properly commensurate with the seriousness of the said special complex crime. 12.ID.; ID.; MORAL DAMAGES; AWARD OF P50,000.00 IN RAPE CASES MAY BE MADE WITHOUT NEED OF PROOF. Moral damages in the amount of P50,000 may be additionally awarded to the heirs of the victim without the need for pleading or proof of the basis thereof; the fact that they suffered the trauma of mental, physical and psychological sufferings, which constitutes the basis for moral damages under the Civil Code, is too obvious to still require the recital thereof at the trial.

DECISION

PER CURIAM p: At the waterfalls of Barangay Inasagan, Aurora, Zamboanga del Sur, on the evening of 3 August 1996, the dead body of an 11-year-old girl Genelyn Camacho (hereafter GENELYN) was found. The one who caused its discovery was accused-appellant Juanito Baloloy (hereafter JUANITO) himself, who claimed that he had caught sight of it while he was catching frogs in a nearby creek. However, based on his alleged extrajudicial confession, coupled with circumstantial evidence, the girl's unfortunate fate was pinned on him. Hence, in this automatic review, he seeks that his alleged confession be disregarded for having been obtained in violation of his constitutional rights, and that his conviction on mere circumstantial evidence be set aside. The information 1 charging JUANITO with the crime of rape with homicide reads as follows: That on August 3, 1996 at about 6:30 o'clock in the evening, at Barangay Inasagan, Municipality of Aurora, province of Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge with one Genelyn Camacho, a minor against the latter's will and on said occasion and by reason of the rape, the said Genelyn Camacho died as a result of personal violence, inflicted upon her by the accused.

Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659. The case was docketed as Criminal Case No. AZ-CC-96-156. Upon arraignment 2 on 10 December 1996, JUANITO entered a plea of not guilty. Trial on the merits ensued thereafter. Jose Camacho, father of GENELYN and resident of Inasagan, Purok Mabia, Aurora, Zamboanga del Sur, testified that at about 5:00 p.m. of 3 August 1996, he asked GENELYN to borrow some rice from their neighbor Wilfredo Balogbog whose house was about 200 meters away. GENELYN forthwith left, but never returned. Thus, Jose went to the house of Wilfredo, who informed him that GENELYN had already left with one ganta of rice. Jose then started to look for GENELYN. Speculating that GENELYN might have taken shelter at the house of their

neighbor Olipio Juregue while it was raining, Jose proceeded to Olipio's house. Unfortunately, Jose did not find GENELYN there. Not losing hope, Jose proceeded to the house of Ernesto Derio. On his way, he met Wilfredo, who accompanied him to the house of Ernesto. GENELYN was not there either. They continued their search for GENELYN, but when it proved to be in vain, the two decided to go home. 3 A few minutes after Jose reached his house, Ernesto and JUANITO arrived. JUANITO informed Jose that he saw a dead body at the waterfalls, whose "foot was showing." When asked whose body it was, JUANITO answered that it was GENELYN's. Immediately, the three went to the waterfalls where JUANITO pointed the spot where he saw GENELYN's body. With the aid of his flashlight, Jose went to the spot, and there he saw the dead body floating face down in the knee-high water. True enough, it was GENELYN's. Jose reported the incident to Barangay Captain Luzviminda Ceniza. Upon Ceniza's order, the Bantay Bayan members and some policemen retrieved and brought GENELYN's dead body to Jose's house. 4 Wilfredo Balogbog corroborated the testimony of Jose that GENELYN came to his house in the afternoon of 3 August 1996 to borrow some rice. GENELYN had with her an umbrella that afternoon, as it was raining. He learned that GENELYN failed to reach her home when Jose came to look for her. 5 Ernesto Derio, JUANITO's uncle-in-law, testified that at about 6:30 p.m. of 3 August 1996, Jose, together with Wilfredo Balogbog, arrived at his house to look for GENELYN, but they immediately left when they did not find her. At about 7:30 p.m., JUANITO arrived at Ernesto's house, trembling and apparently weak. JUANITO was then bringing a sack and a kerosene lamp. When Ernesto asked JUANITO where he was going, the latter said that he would catch frogs; and then he left. After thirty minutes, JUANITO returned and told Ernesto that he saw a foot of a dead child at the waterfalls. With the disappearance of GENELYN in mind, Ernesto lost no time to go the house of Jose. JUANITO followed him. There, JUANITO told Jose that he saw a foot of a dead child at the waterfalls. When Jose asked whether it was GENELYN's, JUANITO answered in the affirmative. The three then proceeded to the waterfalls, where JUANITO pointed the place where he saw the body of GENELYN. Jose immediately approached the body, and having confirmed that it was GENELYN's, he brought it to a dry area. 6 Ernesto also testified that on 4 August 1996, he saw Antonio Camacho hand over a black rope to Barangay Captain Ceniza. The latter asked those present as to who owned the rope. When JUANITO admitted ownership of the rope, Ceniza brought him away from the crowd to a secluded place and talked to him. 7 Finally, Ernesto testified that JUANITO previously attempted to molest his (Ernesto's) child, an incident that caused a fight between him (JUANITO) and his (Ernesto's) wife. 8 Antonio Camacho, a cousin of Jose, testified that on 3 August 1996, he was informed by Jose's brother that GENELYN was "drowned." He and the Bantay Bayanmembers proceeded to the place of the incident and retrieved the body of GENELYN. At 8:00 a.m. of the following day he,

together with Edgar Sumalpong and Andres Dolero, went to the waterfalls to trace the path up to where GENELYN was found. There, they found a black rope and an umbrella. They gave the umbrella to Jose's wife, and the black rope to Barangay Captain Ceniza, who was then attending the wake of GENELYN. Ceniza asked those who were at the wake whether anyone of them owned the rope. JUANITO answered that he owned it. Thereafter Ceniza talked to JUANITO. 9 Andres Dolero corroborated the testimony of Antonio on the recovery of the black rope and umbrella at the waterfalls where GENELYN's body was found. 10 Barangay Captain Ceniza of Inasagan, Aurora, Zamboanga del Sur, testified that at about 8:30 p.m. of 3 August 1996, Jose Camacho, Ernesto Derio, Porferio Camacho, and JUANITO arrived at her house to inform her that JUANITO found GENELYN's dead body at the waterfalls. Ceniza forthwith ordered the members of theBantay Bayan to retrieve the body of GENELYN, and reported the incident to the police headquarters of Aurora, Zamboanga del Sur. She specifically named JUANITO as her suspect. She then went home and proceeded to Jose's house for GENELYN's wake. She saw JUANITO at the wake and noticed that he was very uneasy. 11 Ceniza further revealed that on 4 August 1996, while she was on her way to Jose's house, Antonio gave her a black rope, which he reportedly found at the spot where the dead body of GENELYN was retrieved. Ceniza then asked the people at the wake about the rope. JUANITO, who was among those present, claimed the rope as his. She brought JUANITO away from the others and asked him why his rope was found at the place where GENELYN's body was discovered. JUANITO answered: "I have to claim this as my rope because I can commit sin to God if I will not claim this as mine because this is mine." Ceniza further asked JUANITO to tell her everything. JUANITO told Ceniza that his intention was only to frighten GENELYN, not to molest and kill her. When GENELYN ran away, he chased her. As to how he raped her, JUANITO told Ceniza that he first inserted his fingers into GENELYN's vagina and then raped her. Thereafter, he threw her body into the ravine. 12 After such confession, Ceniza examined his body and found a wound on his right shoulder, as well as abrasions and scratches on other parts of his body. Upon further inquiry, JUANITO told her that the wound on his shoulder was caused by the bite of GENELYN. Ceniza then turned over JUANITO to a policeman for his own protection, as the crowd became unruly when she announced to them that JUANITO was the culprit. JUANITO was forthwith brought to the police headquarters. 13 Victor Mosqueda, a member of the Philippine National Police (PNP) stationed at the Aurora Police Station, testified that at about 10:00 p.m. of 4 August 1996 he was at Jose's house. Ceniza informed him that JUANITO was the suspect in the killing of GENELYN, and she turned over to him a black rope which belonged to JUANITO. He wanted to interrogate JUANITO, but Ceniza cautioned him not to proceed with his inquiry because the people around were getting unruly and might hurt JUANITO. Mosqueda immediately brought JUANITO to the police

station, and on that same day, he took the affidavits of the witnesses. The following day, a complaint was filed against JUANITO. 14 Dr. Arturo Lumacad, Municipal Health Officer of the Aurora Rural Health Clinic, testified that he examined JUANITO so as to verify the information that JUANITO sustained wounds in his body. 15 His examination of JUANITO revealed the following injuries: EDISaA 1.fresh abrasions on the right portion of the cheek; 2.multiple abrasions on the right shoulder; 3.abrasion on the left shoulder; and 4.abrasions on the left forearm. 16 Dr. Lumacad also testified that he examined the dead body of GENELYN on 4 August 1996 and found the following injuries: 1.2.5-inch lacerated wound at her left neck, front of the head; 2.1-inch wound at the right cheek just below the first wound; 3.multiple contusions on her chest; 4.contusion at the right hip; and 5.fresh lacerations on her vagina at 9 o'clock and 3 o'clock positions. 17 He opined that the fresh lacerations could have been caused by a large object inserted into GENELYN's vagina, such as a male sex organ, a rod, or a piece of wood or metal. 18 Presiding Judge Celestino V. Dicon of the Municipal Trial Court of Aurora, Zamboanga del Sur, testified that when he arrived in his office at around 8:30 a.m. of 4 August 1996 several people, including Barangay Captain Ceniza, were already in his courtroom. He learned that they came to swear to their affidavits before him. After reading the affidavit of Ceniza, he asked Ceniza whether her statements were true. Ceniza answered in the affirmative and pointed to JUANITO as the culprit. Judge Dicon turned to JUANITO and asked him whether the charge against him was true. JUANITO replied in the dialect: "[N]apanuwayan ko, sir" ("I was demonized"). While Judge Dicon realized that he should not have asked JUANITO as to the truthfulness of the allegations against him, he felt justified in doing so because the latter was not under custodial investigation. Judge Dicon thus proceeded to ask JUANITO whether he

had a daughter as old as the victim and whether he was aware of what he had done to GENELYN. Again, JUANITO responded that he was demonized, and he spontaneously narrated that after he struck GENELYN's head with a stone he dropped her body into the precipice. 19 Lopecino Albano, process server in the court of Judge Dicon, corroborated the testimony of the latter as to JUANITO's admission that he was demonized when he raped and killed GENELYN. 20 The sole witness for the defense was JUANITO, who invoked denial and alibi. He testified that he was at his mother's house at around 6:30 p.m. of 3 August 1996. An hour later, he left for the creek to catch frogs; and while catching frogs, he saw a foot. He forthwith headed for Ernesto Derio's house to ask for help. There, he told Ernesto and his wife of what he had seen. Ernesto's wife asked JUANITO whether the person was still alive, and JUANITO answered that he was not sure. At this point, Ernesto informed him that Jose Camacho was looking for GENELYN. JUANITO and Ernesto then proceeded to the house of Jose to inform the latter of what he, JUANITO, had seen. The three forthwith went to the creek. There, they found out that the foot was GENELYN's and that she was already dead. Upon Jose's request, JUANITO and Ernesto informed Jose's brother about the incident, and they proceeded to the house of Ceniza. Thereafter, they, along with the members of the Bantay Bayan, went back to the creek to retrieve the body of GENELYN. 21

JUANITO further recalled that after the body of GENELYN was brought to her parent's house, he helped saw the lumber for her coffin. Thereafter, he went to Ernesto's house to get the sack containing the seventeen frogs he had caught that night, which he earlier left at Ernesto's house. He was shocked to find out that the rope which he used to tie the sack, as well as all the frogs he caught, was missing. As it was already dawn, JUANITO left his sack at his mother's house; then he proceeded to the house of Jose to help make the coffin of GENELYN. But, at around 8:00 a.m., policeman Banaag came looking for him. He stopped working on GENELYN's coffin and identified himself. Banaag took him away from the house of Jose and asked him whether he owned the rope. JUANITO answered in the affirmative. At this point, policeman Mosqueda came near them and escorted him and Banaag back to Jose's house. At Jose's house, Mosqueda announced to the crowd that JUANITO was the suspect in GENELYN's untimely demise. JUANITO was then detained and investigated at the police station. 22 During his investigation by the police officers and by Judge Dicon, he was never assisted by a lawyer. 23 In its challenged decision, 24 the trial court found JUANITO guilty beyond reasonable doubt of the crime of rape with homicide. On the challenge on the admissibility of the admissions he made to Barangay Captain Ceniza and Judge Dicon, it ruled that they are not the law enforcement authorities referred to in the constitutional provisions on the conduct of custodial investigation. Hence, JUANITO's confessions made to them are admissible in evidence. Moreover, no ill-motive could be attributed to both Ceniza and Judge Dicon. It also found unsubstantiated JUANITO's claim that he was threatened by his fellow inmates to make

the confession before Judge Dicon; and that, even assuming that he was indeed threatened by them, the threat was not of the kind contemplated in the Bill of Rights. The threat, violence or intimidation that invalidates confession must come from the police authorities and not from a civilian. Finally, it ruled that JUANITO's self-serving negative evidence cannot stand against the prosecution's positive evidence. ECcaDT The trial court, thus, convicted JUANITO of rape with homicide and imposed on him the penalty of death. It also ordered him to pay the heirs of the victim the amount of P50,000 by way of civil indemnity. Hence, this automatic review. In his Appellant's Brief, JUANITO imputes to the trial court the following errors: I THE COURT A QUO GRAVELY ERRED IN ADMITTING THE ALLEGED CONFESSION OF THE ACCUSED-APPELLANT TO WITNESSES LUZVIMINDA CE[N]IZA AND JUDGE CELESTINO DICON AS EVIDENCE AGAINST THE ACCUSED. II ON ACCOUNT OF THE INADMISSIBILITY OF THE ACCUSED'S ALLEGED CONFESSION THE COURT GRAVELY ERRED IN CONVICTING THE ACCUSED BASED ON MERE CIRCUMSTANTIAL EVIDENCE. Anent the first assigned error, JUANITO maintains that the trial court violated Section 12(1) of Article III of the Constitution 25 when it admitted in evidence his alleged extrajudicial confession to Barangay Captain Ceniza and Judge Dicon. According to him, the two failed to inform him of his constitutional rights before they took it upon themselves to elicit from him the incriminatory information. It is of no moment that Ceniza and Dicon are not police investigators, for as public officials it was incumbent upon them to observe the express mandate of the Constitution. While these rights may be waived, the prosecution failed to show that he effectively waived his rights through a written waiver executed in the presence of counsel. He concludes that his extrajudicial confession is inadmissible in evidence. In his second assigned error, JUANITO asserts that the prosecution miserably failed to establish with moral certainty his guilt. He points to the contradicting testimonies of the witnesses for the prosecution concerning the retrieved rope owned by him. Consequently, with the inadmissibility of his alleged extrajudicial confession and the apparent contradiction surrounding the prosecution's evidence against him, the trial court should have acquitted him. In the Appellee's Brief, the Office of the Solicitor General (OSG) supports the trial court's finding that JUANITO is guilty beyond reasonable doubt of the crime as charged. His bare

denial and alibi cannot overcome the positive assertions of the witnesses for the prosecution. Moreover, he was unable to establish by sufficient evidence that Barangay Captain Ceniza and Judge Dicon had an ulterior motive to implicate him in the commission of the crime. The OSG recommends that the civil indemnity of P50,000 awarded by the trial court be increased to P75,000; and that in line with current jurisprudence, moral damages in the amount of P50,000 be awarded to the heirs of GENELYN. We shall first address the issue of admissibility of JUANITO's extrajudicial confession to Barangay Captain Ceniza. DcSEHT It has been held that the constitutional provision on custodial investigation does not apply to a spontaneous statement, not elicited through questioning by the authorities but given in an ordinary manner whereby the suspect orally admits having committed the crime. Neither can it apply to admissions or confessions made by a suspect in the commission of a crime before he is placed under investigation. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. 26 In the instant case, after he admitted ownership of the black rope and was asked by Ceniza to tell her everything, JUANITO voluntarily narrated to Ceniza that he raped GENELYN and thereafter threw her body into the ravine. This narration was a spontaneous answer, freely and voluntarily given in an ordinary manner. It was given before he was arrested or placed under custody for investigation in connection with the commission of the offense. It may be stressed further that Ceniza's testimony on the facts disclosed to her by JUANITO was confirmed by the findings of Dr. Lumacad. GENELYN's physical resistance and biting of the right shoulder of JUANITO were proved by the wound on JUANITO's right shoulder and scratches on different parts of his body. His admission that he raped GENELYN was likewise corroborated by the fresh lacerations found in GENELYN's vagina. Moreover, JUANITO did not offer any evidence of improper or ulterior motive on the part of Ceniza, which could have compelled her to testify falsely against him. Where there is no evidence to show a doubtful reason or improper motive why a prosecution witness should testify against the accused or falsely implicate him in a crime, the said testimony is trustworthy. 27 However, there is merit in JUANITO's claim that his constitutional rights during custodial investigation were violated by Judge Dicon when the latter propounded to him incriminating questions without informing him of his constitutional rights. It is settled that at the moment the accused voluntarily surrenders to, or is arrested by, the police officers, the custodial investigation is deemed to have started. So, he could not thenceforth be asked about his complicity in the offense without the assistance of counsel. 28 Judge Dicon's claim that no

complaint has yet been filed and that neither was he conducting a preliminary investigation deserves scant consideration. The fact remains that at that time JUANITO was already under the custody of the police authorities, who had already taken the statement of the witnesses who were then before Judge Dicon for the administration of their oaths on their statements. While Mosqueda claims that JUANITO was not arrested but was rather brought to the police headquarters on 4 August 1996 for his protection, the records reveal that JUANITO was in fact arrested. If indeed JUANITO's safety was the primordial concern of the police authorities, the need to detain and deprive him of his freedom of action would not have been necessary. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense, and it is made by an actual restraint of the person to be arrested, or by his submission to the person making the arrest. 29 At any rate, while it is true that JUANITO's extrajudicial confession before Judge Dicon was made without the advice and assistance of counsel and hence inadmissible in evidence, it could however be treated as a verbal admission of the accused, which could be established through the testimonies of the persons who heard it or who conducted the investigation of the accused. 30 JUANITO's defense of alibi is futile because of his own admission that he was at the scene of the crime. Alibi is a defense that places an accused at the relevant time of a crime in a place other than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party. 31 Likewise, a denial that is unsubstantiated by clear and convincing evidence is a negative and self-serving evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. 32 Anent the alleged inconsistencies in the details surrounding the recovery of the black rope, the same are irrelevant and trite and do not impair the credibility of the witnesses. Minor inconsistencies and honest lapses strengthen rather than weaken the credibility of witnesses, as they erase doubts that such testimonies have been coached or rehearsed. 33 What matters is that the testimonies of witnesses agree on the essential fact that JUANITO was the owner of the black rope and the perpetrator of the crime. Even if JUANITO's confession or admission is disregarded, there is more than enough evidence to support his conviction. The following circumstances constitute an unbroken chain proving beyond reasonable doubt that it was JUANITO who raped and killed GENELYN: ECaTDc

2.About 7:30 p.m. of the same day, JUANITO arrived at Ernesto's house bringing a sack and kerosene lamp, trembling and apparently weak. 3.Thirty minutes thereafter, JUANITO returned to Ernesto's house and told Ernesto that he saw a foot of a dead child at the waterfalls, without disclosing the identity of the deceased. 4.When JUANITO and Ernesto were at Jose's house, the former told Jose that it was GENELYN's foot he saw at the waterfalls. 5.GENELYN was found dead at the waterfalls with fresh lacerations on her vaginal wall at 9 and 3 o'clock positions. 6.At about 8:00 a.m. of 4 August 1996, Antonio Camacho, Andres Dolero and Edgar Sumalpong recovered at the crime site a black rope, which they turned over to Ceniza, who was then at GENELYN's wake. 7.When Ceniza asked the people around as to who owned the black rope, JUANITO claimed it as his. 8.When Ceniza examined JUANITO's body, she saw a wound on his right shoulder and scratches on different parts of his body. 9.Dr. Lumancad's physical examination of JUANITO revealed abrasions, which could have been caused by scratches. Guilt may be established through circumstantial evidence provided that the following requisites concur: (1) there is more than one circumstance; (2) the inferences are based on proven facts; and (3) the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the accused. 34 All these requisites are present in the case at bar. With JUANITO's guilt for rape with homicide proven beyond reasonable doubt, we are constrained to affirm the death penalty * imposed by the trial court. Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659, pertinently provides: "When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death." As to JUANITO's civil liability, prevailing judicial policy has authorized the mandatory award of P100,000 35 as civil indemnity ex delicto in cases of rape with homicide (broken down as

1.At about 5:00 p.m. of 3 August 1996, Jose Camacho bid his daughter GENELYN to borrow some rice from their neighbor Wilfredo Balogbog. GENELYN did so as told, but failed to return home.

follows: P50,000 for the death and P50,000 upon the finding of the fact of rape). Thus, if homicide is committed by reason or on occasion of rape, the indemnity in the amount of P100,000 is fully justified and properly commensurate with the seriousness of the said special complex crime. Moral damages in the amount of P50,000 may be additionally awarded to the heirs of the victim without the need for pleading or proof of the basis thereof; the fact that they suffered the trauma of mental, physical and psychological sufferings, which constitutes the basis for moral damages under the Civil Code, is too obvious to still require the recital thereof at the trial. 36 WHEREFORE, the decision of the Regional Trial Court, Branch 30, Aurora, Zamboanga Del Sur, in Criminal Case No. AZ-CC-96-156, finding accused-appellant Juanito Baloloy guilty of the crime of rape with homicide and sentencing him to suffer the penalty of death is AFFIRMED with the modification that he is ordered to pay the heirs of Genelyn Camacho P100,000 as indemnity and P50,000 as moral damages. In consonance with Section 25 of R.A. No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. IcDESA Costs de officio. SO ORDERED.

FIRST DIVISION [G.R. No. L-49149. October 23, 1981.] THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. GREGORIO TAYLARAN alias "Goring", defendantappellant.

inflicted if they did not result from the first blow. Their locations preclude that a single blow produced all the wounds. This fact robs the accident theory of appellant of any plausibility. 2.ID.; ID.; TESTIMONY OF WITNESS; CREDIBILITY; EXPLANATION OF APPELLANT AS TO HOW THE WOUNDS WERE INFLICTED CANNOT INSPIRE BELIEF; CASE AT BAR. The explanation of appellant as to how the wounds other than that located on the right chest was inflicted simply cannot inspire belief. In trying to succor the old woman when she fell upon being hit accidentally with the point of the bolo, as appellant alleged, he could not have kept on holding the bolo. He would have dropped it instantly, as instinct would have made him do so. The infliction of more wounds after the first was therefore deliberate and not by mere accident. It is, likewise, hard to believe that a mere accidental hitting with the point of a small bolo, and therefore not with so much force, would inflict a wound that is so fatal as that sustained on the chest. 3.ID.; ID.; ID.; ID.; STATEMENT AND CONDUCT OF THE APPELLANT UPON SURRENDER; INTENT TO KILL REELECTED THEREFROM. That the wounding was with intent to kill is reflected by appellant's statement that he killed the old woman because she allegedly promised to kill him by "barang" or by witchcraft, which he gave upon surrendering to Pat. Demetrio Basilad at the Municipal Building. It was just natural for appellant to explain to the police why he was surrendering. For Pat. Basilad to testify on what appellant said on this score is thus perfectly proper, and full credence must be accorded to him, being obviously an impartial witness. It is not a matter of whether the statement is a part of the res gestae to be admissible. 4.ID.; ID.; ID.; ID.; INCULPATORY STATEMENT OF APPELLANT ADMISSIBLE NOT BECAUSE OF RES GESTAE BUT ON WITNESSES' PERCEPTION. It would, therefore be of no avail for appellant to contend that the court a quo erred in admitting appellant's statement he made upon surrendering that he killed the deceased because the latter intended to kill him by witchcraft as part of the res gestae. The testimony of both Pat. Basilad and Juanita Busalla, the daughter of the deceased on the inculpatory statement is legally admissible not because the statement is part of res gestea, but for said witnesses having heard appellant made the statement on their own perception. 5.ID.; ID.; ID.; ID.; ACCIDENT VERSION OF APPELLANT INHERENTLY INCREDIBLE; CASE AT BAR. Even without the admission, the accident version of appellant is inherently incredible. That he was not allowed by Ofremia's daughter and husband to enter their house when he went there direct from the old woman's house is a strong proof that he did not exhibit the harmless mood of a repentant killer as he should visibly appear to them if the killing was only accidental. On the contrary, he most have appeared so angry, displaying unmistakable intent to kill them, after killing their mother, as the daughter Juanita Busalla, so testified. 6.ID.; ID.; ID.; ADMISSION OF THE CRIME; BURDEN OF PROVING EXEMPTING CIRCUMSTANCE, ON APPELLANT. Appellant having admitted the killing, the burden of proving the exempting circumstance he has invoked in his defense calls for clear and convincing evidence, as is required of similar defenses as that of self-defense. This, he failed dismally to fulfill.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Octavio R. Ramirez and Solicitor Enrique M. Reyes for plaintiff-appellee. Erico B. Aumentado for defendant-appellant.

SYNOPSIS Appellant was charged with murder for the death of Ofremia Atup, a quack doctor. The evidence for the prosecution disclosed that on the evening of November 5, 1976, while appellant was in the house of the deceased for treatment of his toe which hati been bitten by a snake, he stabbed her several times with a bolo until she died. He thereafter proceeded to the house of the victim's son and his wife to accomplish the same purpose but he failed as he was not allowed entry. Shortly thereafter, he surrendered himself with his bolo to the policeman then on guard at the municipal hall declaring that he killed the deceased as she had promised to kill him with witchcraft. The defense insisted that the killing was accidental but this notwithstanding, the appellant was convicted, sentenced to life imprisonment, ordered to indemnify the heirs of the deceased and to pay the costs. The Supreme Court, upon review, found it difficult to accept the accident version of the appellant which he purveyed without corroboration. The number and location of the wounds inflicted, his statement upon surrender, the credibility of the witnesses who testified against him, his failure to prove the exempting circumstance invoked in his defense called for affirmance of the appealed decision.

SYLLABUS 1.REMEDIAL LAW; EVIDENCE; PHYSICAL EVIDENCE; NUMBER AND LOCATION OF WOUNDS IN THE BODY OF THE DECEASED PRECLUDES THE PLAUSIBILITY OF APPELLANT'S ACCIDENT THEORY. More than one wound was found sustained by the deceased, on different parts of the body. One single stroke could not have inflicted all of them. The first wound could possibly have been accidentally inflicted, but the other wounds could not have been similarly

7.ID.; ID.; ID.; AUTOPSY REPORT; INADMISSIBILITY AS HEARSAY DUE TO DEATH OF EXAMINING PHYSICIAN; IMMATERIAL WHERE REPORT i PART OF THE TESTIMONY OF PEACE OFFICER WITH KNOWLEDGE OF MEDICO-LEGAL MEDICINE; CASE AT BAR. Where Dr. Silverio Gaviola who issued the post-mortem examination report failed to testify thereon because he died before he could be called to the stand, this fact so unduly stressed to show the quality of his report as hearsay, does not affect the sufficiency of the evidence against appellant to entitle him to the acceptance of his claim of accident to exempt him from criminal liability. The autopsy report, if not admissible as independent evidence, is pan of the testimony of Pat. Sarabosing who testified on the number and location of the wounds and his testimony, being that of a peace officer with basic knowledge in medico-legal medicine, may well serve the purpose of the autopsy report. 8.CONSTITUTIONAL LAW; BILL OF RIGHTS; ADMISSION OF THE CRIME; SEC. 20, ART. IV OF THE CONSTITUTION NOT APPLICABLE WHERE NO WRITTEN CONFESSION WAS SOUGHT. Section 20, Article IV of the Constitution does not seem to contemplate cases like the present where no written confession was sought to be presented in evidence as a result of formal custodial investigation. What was testified to is only what appellant told the police why he is surrendering to them. It is but natural for one who surrenders to the police to give reason or explanation for his act of surrendering. It can hardly be said that under such circumstance, the surrenderee is already "under investigation," within the meaning of the constitutional provision. As the Solicitor General correctly observes on the circumstances of this case: "If however, he voluntarily admits the killing and it was precisely because he surrendered to admit the killing, the constitutional safeguards to be informed of his rights to silence and to counsel may not be invoked." Another witness, Juanita Busalla, who is not a policewoman also testified to appellant telling her when he was already in jail, that he killed Ofremia Atup because of her promise to kill him by means of witchcraft, the same declaration he supposedly made to Pat. Basilad, upon surrendering after the killing. The constitutional safeguard invoked can have no application to Juanita's testimony on what appellant told her not in the course of a police investigation. 9.REMEDIAL LAW; APPEALS; FINDINGS OF THE TRIAL COURT ON CREDIBILITY OF WITNESSES; WILL NOT BE DISTURBED ON APPEAL. Where the issue is one of credibility, the lower court giving more of it to the testimony of the prosecution witnesses, the Supreme Court finds no reason to disturb the lower court's appreciation of the relative credibility of the opposing witnesses.

P12,000 and to pay costs. Appealing to this Court, appellant insists on his defense of accidental, not deliberate killing. We quote hereunder from the appealed decision the versions of both the prosecution and the defense, as set forth therein: "EVIDENCE FOR THE PROSECUTION" "At about 10:00 P.M. of November 5, 1976 accused called at the house of deceased Ofremia Atup y Sarabosing located in barrio Binliw, Ubay, Bohol for the purpose of submitting himself to the latter for treatment of his snake-bite located at his left foot. His announced purpose being good, the deceased opened the door for him. Once inside, the deceased took her medicine paraphernalia (she being a local quack doctor) and started treating the accused. Then all of a sudden the accused drew his small bolo (Exhibit A) and stabbed the deceased several times causing her to fall on the floor dead. After killing the deceased accused proceeded to the house of the son of the deceased for the purpose of killing him and his wife but accused did not accomplish his purpose because the deceased's son refused to let him enter his house. After that the accused surrendered himself with his bolo to policeman Demetrio Basilad who was then on guard at the municipal hall of Ubay. When asked why he killed the deceased who was also his grandmother-in-law, accused answered, `because she promised to kill me with a `barang', hence I killed her first.' (Testimonies of Salvador Atup, policeman Demetrio Basilad and Juanita Busalla) "EVIDENCE FOR THE DEFENSE" "At about 9:00 P.M. on November 5, 1976 accused went to tend to his carabao. On the way, he was bitten by a snake at the smallest toe of his left foot. Hence, he proceeded to the house of his grandmother-in-law, Ofremia Sarabosing which was located in barrio Binliw, Ubay, Bohol for treatment of snake-bite. Ofremia Sarabosing was a quack doctor known to cure snake-bites. He arrived at deceased's house at about 10:00 P.M. The deceased opened the door to let him enter. Once inside he and the deceased stood on the floor facing each other. Then the deceased instructed accused to open his snake-bite with a bolo (Exhibit A) so that the venom can be drained out. While he was opening his snake-bite with a bolo, he accidentally put out the light of the kerosene lamp which was placed on the floor. This prompted the deceased to relight said lamp. She bended her body down with her two hands extended towards the floor to light said lamp. At the very time that deceased was bending

DECISION

DE CASTRO, * J p: Charged with murder in the Court of First Instance of Bohol, appellant was convicted and sentenced to life imprisonment, and to indemnify the heirs of the deceased in the sum of

her body downward, accused lifted his right hand which was holding the bolo, upward, so that the point of the bolo accidentally hit deceased's right chest penetrating the nipple and resulting in her death. Upon realizing that the deceased was fatally wounded, accused asked for her forgiveness and after that he ran away (Testimonies of accused himself and Elpidio Mendez)." 1

inflicted which could not have resulted from just one blow. Repeated blows easily negate any claim of wounding by mere accident. The fact that he was not allowed to enter the house of Juanita Busalla, daughter of the deceased, when he went there directly from the old woman's house, would show that he appeared, by his behavior or words, that he was dangerously in an angry mood, which is indicative of being a deliberate killer rather than a sorrowful and harmless penitent for a killing he has committed only by accident. As Juanita also testified, when appellant was already in jail, he told her that he killed her mother because of witchcraft, corroborating Pat. Basilad's testimony. It would, therefore, be of no avail for appellant to contend that the court a quo erred in admitting appellant's statement he made upon surrendering that he killed the deceased because the latter intended to kill him by witchcraft as part of the res gestae. The testimony of both Pat. Basilad and Juanita Busalla on the inculpatory statement of appellant is legally admissible not because the statement is part of the res gestae, but for said witnesses having heard appellant made the statement on their own perception. cdphil It is hard to see why the aforementioned witnesses testified on the admission of appellant the way they did unless they were prompted only by the truth. If appellant had surrendered with an admission of killing the old woman by accident, as he must have tried to impress upon the authorities if such was the truth, Pat. Basilad had no reason to give the killing the graver character than what it really was. As far as he is concerned, he had no more problem relative to the solution of the crime, which is the usual cause for police twisting the truth or other form of excesses when conducting investigations-the desire to solve a crime by all means. That Dr. Silverio Gaviola who issued the post-mortem examination report failed to testify thereon because he died before he could be called to the stand, so unduly stressed to show the quality of his report as hearsay, does not affect the sufficiency of the evidence against appellant to entitle him to the acceptance of his claim of accident to exempt him from criminal liability. As already shown, such evidence is more than adequate to make the mind rest at ease on appellant's guilt as charged. The autopsy report, if not admitted as such, is part of the testimony of Pat. Sarabosing. He testified on the number and location of the wounds, and his testimony, being that of a peace officer with basic knowledge in medico-legal medicine, having taken a course therein (p. 26, tsn, May 21, 1978) may well serve the purpose of the autopsy report, if the report is not itself admissible as independent evidence, as appellant would insist. Appellant has also invoked the provision of Article IV, Section 20 of the Constitution in trying to block the admission of his declaration to Pat. Basilad that he killed Ofremia Atup because of her alleged vow to kill him by with craft, contending that the safeguards therefor have not been made available to him. The cited provision reads: "Section 20.No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or

As the trial court prefaced its decision, which version is correct? That the deceased died from wounds inflicted by the appellant is not disputed. As gleaned from the opposing versions set forth above, the conflict is in how the wounds were inflicted whether with deliberate intent, or purely by accident. cdphil It is extremely difficult to accept the accident version of appellant which he purveyed without corroboration. More than one wound was found sustained by the deceased, on different parts of the body. One single stroke could not have inflicted all of them. The first wound could possibly have been accidentally inflicted, but the other wounds could not have been similarly inflicted if, as just pointed out, they did not result from the first blow. Their locations preclude that a single blow produced all the wounds. This fact robs the accident theory of appellant of any plausibility. The explanation of appellant as to how the wounds other than that located on the right chest was inflicted simply cannot inspire belief. In trying to succor the old woman when she fell upon being hit accidentally with the point of the bolo, as appellant alleged, he could not have kept on holding the bolo. He would have dropped it instantly, as instinct would have made him do so. The infliction of more wounds after the first was therefore deliberate and not by mere accident. It is, likewise, hard to believe that a mere accidental hitting with the point of the small bolo, and therefore not with so much force, would inflict a wound that is so fatal as that sustained on the chest. That the wounding was with intent to kill is reflected by appellant's statement that he killed the old woman because she had allegedly promised to kill him by "barang" or by witchcraft, which he gave upon surrendering to Pat. Demetrio Basilad at the Municipal Building. It was just natural for appellant to explain to the police why he was surrendering. For Pat. Basilad to testify on what appellant said on this score is thus perfectly proper, and full credence must be accorded to him, being obviously an impartial witness. It is not a matter of whether the statement is a part of the res gestae to be admissible. Appellant of course denies having made the admission, but in the light of the other evidence of the prosecution, his denial is not convincing. As demonstrated earlier, his accident theory of the killing merits not much credibility from the mere fact that more than one wound was

any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." The applicability of the foregoing provision does not seem to contemplate cases like the present where no written confession was sought to be presented in evidence as a result of formal custodial investigation. What was testified to is only what appellant told the police why he is surrendering to them. It is but natural for one who surrenders to the police to give reason or explanation for his act of surrendering. It can hardly be said that under such circumstance, the surrenderee is already "under investigation," within the meaning of the constitutional provision. As the Solicitor General correctly observes on the circumstances of this case: "If however, he voluntarily admits the killing and it was precisely because he surrendered to admit the killing, the constitutional safeguards to be informed of his rights to silence and to counsel may not be invoked." In any case, as previously pointed out, another witness, Juanita Busalla, who is not a policeman also testified to appellant telling her when he was already in jail, that he killed Ofremia Atup because of her promise to kill him by means of witchcraft, the same declaration he supposedly made to Pat. Basilad, upon surrendering after the killing. The constitutional safeguard invoked can have no application to Juanita's testimony on what appellant told her not in the course of a police investigation. LLpr At any rate, even without the admission, the accident version of appellant is inherently incredible. As already stated, that he was not allowed by Ofremia's daughter and husband to enter their house when he went there direct from the old woman's house is a strong proof that he did not exhibit the harmless mood of a repentant killer as he should visibly appear to them if the killing was only accidental. On the contrary, he must have appeared so angry, displaying unmistakable intent to kill them, after killing their mother, as the daughter Juanita Busalla, so testified (pp. 30-39, tsn, Feb. 1, 1978). Verily, the issue is one of credibility. The lower court gave more of it to the testimony of the prosecution witnesses. We find no reason to disturb the lower court's appreciation of the relative credibility of the opposing witnesses. 2 Moreover, appellant having admitted the killing, the burden of proving the exempting circumstance he has invoked in his defense calls for clear and convincing evidence, as is required of similar defenses as that of selfdefense. 3 This, he failed dismally to fulfill. WHEREFORE, the appealed decision is affirmed, with costs. SO ORDERED.

EN BANC [G.R. No. 136253. February 21, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLEMENTE JOHN LUGOD, accused-appellant.

discovered an 8 cm. wound penetration in her vagina which was probably caused by the insertion of a penis; that the cadaver was in an advanced state of decomposition; that more or less, the approximate time of death of the victim was three (3) days prior to his examination; and that the cause of death of the victim was hypovolemic shock secondary to the laceration. 4 RICARDO VIDA, the Task Force Chief of Cavinti, testified that on September 18, 1997, at around 4:35 p.m., the accused pointed out where the body of the victim was; that the accused pointed to a place inside Villa Anastacia which was two hundred (250) meters from the road; that at the time the accused pointed to the place, he was handcuffed to the accused; that the accused used his left hand in pointing towards the direction; and that the father of the victim cried upon identifying the victim." 5 VIOLETA CABUHAT testified that on September 15, 1997, at around 10:00 p.m., she was weaving hats at her house. At that time, she was together with her three children, Joey, Jessica and Jovelin and Loreto Veloria. The accused suddenly entered her house and asked her if he could sleep there but she declined. After she declined, he suddenly forced her to move to one side of the place where she was seated by forcing his body against hers and held her chin. She noticed that he was drunk at that time because she smelt liquor on his breath. After he held her chin, she went upstairs and slept. She claims that the accused left her house at 10:20 p.m. since she looked at her watch when she went upstairs. She does not remember what happened next. In court, she identified that accused as the person .who entered her house that night. 6 LORETO VELORIA testified that on September 15, 1997, at around 10:10 p.m., he was at the house of Violeta Cabuhat. While he was there, the accused, whom he identified in court, suddenly arrived. He noticed that the accused was wearing a pair of muddy rubber slippers the bottom of which was color red while the top was color yellow. Since the slippers of the accused were muddy, he asked him to remove them but the accused did not comply with his request. Veloria also noticed that the accused was wearing a black collared T-shirt. In court, he identified a pair of slippers (Exhibit "D") as the one he saw the accused wearing that night and on several other occasions. He also identified a black collared T-shirt in court (Exhibit "E") as the one he saw the accused wearing that night and on two other occasions. Veloria stated that the accused sat beside Violeta and tried to catch her chin; that he conversed with Violeta but did not hear the accused's request if he could stay overnight. After the accused left, he also left the house of Violeta. 7 PEDRO DELA TORRE testified that on September 15, 1997, at 10:30 p.m., the accused arrived at his house and joined the drinking session of his son. He noticed that the accused was wearing a black T-shirt and appeared to be drunk. Dela Torre claims that the accused left at around 11:45 p.m. 8 ROMUALDO RAMOS testified that at around 8:30 on the morning of September 16, 1997, he was driving his tricycle towards the poblacion of Cavinti. While driving towards the poblacion, he noticed the accused coming out of the gate of Villa Anastacia. Upon seeing the accused, he

DECISION

GONZAGA-REYES, J p: This is an automatic review of the Judgment 1 dated October 8, 1998 of the Regional Trial Court (RTC) of Santa Cruz, Laguna, Branch 28 in Criminal Case No. SC-6670 finding the accused, Clemente John Lugod alias "HONASAN", guilty beyond reasonable doubt of the crime of rape with homicide. On October 10, 1997, an Information 2 for rape with homicide was filed against the accused as follows: "That on or about September 16, 1997 in the municipality of Cavinti, province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused by means force and intimidation and with lewd designs, did then and there willfully, unlawfully and feloniously have carnal knowledge with one NAIRUBE J. RAMOS, an eight-year old girl, against her will and by reason or on the same occasion and in order to hide the crime he just committed, dump the victim in the grassy coconut plantation area, which resulted in her death due to shock secondary to vulvar laceration committed on her by the herein accused, to the damage and prejudice of the surviving heirs of the victim." Upon arraignment, the accused with the assistance of counsel entered a plea of not guilty. 3 Thereafter, trial ensued. The prosecution presented the following witnesses in support of its charge against the accused: EDILBERTO CASTILLO, the medico-legal officer who examined the cadaver of Nairube on September 19, 1997, testified that during the course of his examination of the cadaver, he

stopped his tricycle thinking that the accused would board the same but the accused did not mind him. He noticed that the accused was wearing only a pair of white short pants with a red waistline and was not wearing a T-shirt or any slippers. The accused also appeared to be drunk. Thereafter, he proceeded to the poblacion terminal where he discovered that Nairube was missing. He also learned that the accused was the suspect behind her disappearance. Upon learning this, he told Ricardo Vida, the Chief of the barangay tanod who was searching for the victim, to look for her at Villa Anastacia because it was the place where he saw the accused come out from. Ramos further testified that the house of the victim is about five hundred (500) meters away from the place where he saw the accused but if one passes through the coconut plantation, it is only two hundred (200) meters away. 9 ALMA DIAZ testified that around 2:00 to 3:00 p.m. of September 16, 1997, she went with the search party to look for Nairube. The search party was composed of around ten (10) persons including Violeta and Helen Ramos, the mother of the victim. They first searched the back portion of the victim's house. During the course of their search, she found a panty around three hundred (300) meters away from the house of the victim. Helen identified the panty as belonging to her daughter and cried upon seeing the same. The panty was laid behind a barb wire fence (the boundary of Villa Anastacia) and had a spot of blood and some mud on it. In court, she identified Exhibit "F" as the panty she saw but stated that it was already clean. Thereafter, they continued the search and found a black collared T-shirt with buttons in front and piping at the end of the sleeve hanging on a guava twig. The T-shirt appeared clean at the time. She picked up the T-shirt and brought it along with her to the house of the victim. Upon reaching the house, the T-shirt fell in mud and got dirty. Diaz further stated that the panty was found less than a hundred (100) meters away while the black T-shirt was fifty (50) meters away from the place where the body of the victim was found inside Villa Anastacia and that the panty and T-shirt were around thirty (30) meters away from each other. Diaz also claims that eight days after the death of the child, the mother of the accused, Irene Lugod, came to her house to ask her for help in seeking an amicable settlement of the case with the Ramos spouses. On cross-examination Diaz stated that she found the panty closer than the black Tshirt to the body of the victim. 10 HELEN RAMOS, the mother of the victim, testified that on September 15, 1997 at around 7:00 p.m., she was asleep in her house together with her husband and children, Nimrod, Neres and Nairube, the victim. Nairube slept close to her "on the upper part" of her body. At around 12:30 a.m., her husband woke her up because he sensed someone going down the stairs of their house. She noticed that Nairube was no longer in the place where she was sleeping but she assumed that Nairube merely answered the call of nature. After three minutes of waiting for Nairube's return, she stood up and began calling out for Nairube but there was no answer. Thereafter, she went downstairs and saw that the backdoor of their house was open. She went outside through the backdoor to see if Nairube was there but she was not. Helen also testified that Nairube's blanket was also no longer at the place she slept but that her slippers were still there. She further stated that she found a pair of rubber slippers on top of a wooden bench outside of her backdoor. The sole of the slippers was red while the strap was a combination of yellow and white. She assured the court that the slippers did not belong to any member of her family. In court, she identified Exhibit "D" as the slippers she found that night. Thereafter, she proceeded to the house of Alma Diaz to ask her for help. Then, in the morning of September 16, 1997, she went to the police station to report the loss of her child.

She also reported the discovery of the pair of slippers. She then went home while the police began their search for Nairube. At around 12:30 p.m., Alma Diaz requested her to go with the searching team. During the search, Alma Diaz found a panty which she recognized as that of her daughter. After seeing the panty, she cried. She was thereafter ordered to go home while the others continued the search. On September 18, 1997, they found the dead body of her daughter in Villa Anastacia. Helen also testified on the amounts she spent in connection with the funeral of her daughter and produced a list which totaled P37,200.00. During crossexamination, Helen stated that the pair of slippers she found on top of the bench was muddy. 11 SPO2 QUIRINO GALLARDO testified that on September 16, 1997 at around 7:30 in the a.m., Helen Ramos reported that her daughter, Nairube, was missing. He thereafter proceeded to the house of the victim together with members of the Crime Investigation Group, the PNP and some townspeople to conduct an ocular inspection. Helen Ramos gave him a pair of slippers and pointed to him the location where she found the same. Alma Diaz also gave him a black T-shirt which she found. Loreto Veloria informed him that the two items were worn by the accused when he went to the house of Violeta Cabuhat. At around 7:00 p.m., he apprehended the accused on the basis of the pair of slippers and the black T-shirt. He then brought the accused to the police station where he was temporarily incarcerated. At first, the accused denied that he did anything to Nairube but after he told him what happened to the girl. Gallardo claims that the accused told him that after the drinking spree on September 15, 1997, the accused wanted to have sexual intercourse with a woman. So after the drinking spree, the accused went to the house of Gemma Lingatong, the neighbor of Helen Ramos. Upon his arrival at the house of Gemma, he bumped pots which awakened the occupants of the house. Considering the commotion he caused, he left and went to the house of Nairube Ramos. After removing his slippers, he entered the house of Nairube and slowly went upstairs. He saw that Helen Ramos was sleeping beside her husband so he took Nairube instead. In court, Gallardo demonstrated how the accused claimed to have lifted the child by raising two of his hands as if he was lifting something off the ground. After taking Nairube, he brought her to the farm where according to the accused; he raped her three times. After successfully raping Nairube, the accused slept. When he woke up, he saw the lifeless body of Nairube which he wrapped in a blanket and hid in a grassy place. Then, he took a bath in the river. He then returned to Villa Anastacia and went out through its gate. Although he admitted to having raped and killed Nairube, the accused refused to make a statement regarding the same. After having been informed that the body of Nairube was in the grassy area, Gallardo together with other members of the PNP, the Crime Watch and the townspeople continued the search but they were still not able to find the body of Nairube. It was only when they brought the accused to Villa Anastacia to point out the location of the cadaver that they found the body of Nairube. Gallardo stated that the accused pointed to the location by using his lips. 12

PO2 ANTONIO DECENA's testimony corroborates the testimony of Ricardo Vida although he claims that the accused pointed to the location of the body of the victim by using his lips. 13

DANILO RAMOS, the father of Nairube, testified that on September 15, 1997 at around 7:00 in the evening, he was asleep in his house together with his wife, Helen and five children, Nimrod, Neres, Nairube, Nixon and Nerdami. At around 12:30 a.m., he felt someone going down the stairs of their house. He woke his wife up and checked if his children were all there. He noticed that Nairube was not there so his wife went downstairs and checked if she was downstairs. After three minutes, his wife returned and told him that Nairube was not downstairs. So, he went down to double check. Upon his return, his wife gave him a pair of red rubber slippers. He described the slipper as having a red sole but that he did not notice the color of the strap since the light was dim. In court, he identified Exhibit "D" as the pair of slippers he saw that night. In the early morning of September 16, 1997, they continued searching for Nairube. On September 18, 1997, a member of the bantay bayan went to their house informing them that the accused would be pointing out where the body of Nairube was. At around 4:00 p.m., the accused pointed out the location of the body of Nairube inside Villa Anastacia by using his lips. 14 FLORO ESGUERRA, the Vice-Mayor of Cavinti, testified that on September 19, 1997 at around 3:30 p.m., he attended the funeral of Nairube. After the funeral, he visited the accused in his cell. In the course of his conversation with the accused, the accused confessed to the commission of the offense. 15 On October 8, 1998 the RTC rendered a decision finding the accused guilty beyond reasonable doubt of the crime of rape with homicide, the dispositive portion of the decision reads: EScaIT "WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, this Court finds the accused CLEMENTE JOHN LUGOD GUILTY BEYOND REASONABLE DOUBT of the special complex crime of RAPE WITH HOMICIDE under Section 11 of Republic Act No. 7659, otherwise known as the Death Penalty Law, amending Article 335 of the Revised Penal Code and hereby sentences him to suffer the SUPREME PENALTY OF DEATH. Accused is also ordered to indemnify the heirs of the victim, NAIRUBE RAMOS the sum of P50,000.00 as civil indemnity for her death and P37,200.00 as actual damages. The accused is further ordered to pay the cost of the instant suit. SO ORDERED." 16 In view of the imposition of the death penalty, the case is now before this Court on automatic review. In his brief, the accused-appellant assigns the following errors committed by the RTC:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE WHICH DID NOT PROVE WITH MORAL CERTAINTY THAT HE WAS THE PERPETRATOR OF THE CRIME CHARGED. THE COURT ERRED IN HOLDING THAT APPELLANT CONFESSED HIS GUILT BEFORE THE VICE-MAYOR, WHICH CONFESSION IS ADMISSIBLE AS IT WAS NOT MADE IN RESPONSE TO ANY INTERROGATION. 17 In support of his appeal, accused-appellant submits that the evidence presented by the prosecution fails to establish that he raped and killed Nairube Ramos beyond reasonable doubt. The prosecution did not present any direct evidence to inculpate him in the commission of the crime. Neither did the prosecution present circumstantial evidence sufficient to establish his guilt beyond reasonable doubt. Moreover, accused-appellant claims that the alleged confession he made to the vice-mayor was not a confession. He prays that the judgment of conviction of the RTC be reversed and that he be acquitted of the crime charged. After a careful review of the case, we agree with the submission of accused-appellant and find that the prosecution failed to prove his guilt beyond reasonable doubt. In rendering its decision, the trial court disregarded accused-appellant's defense of denial and alibi and relied on the following pieces of circumstantial evidence culled from the testimonies of the prosecution witnesses to justify its judgment of conviction: "(1)In the evening of September 15, 1997, Accused CLEMENTE JOHN LUGOD wearing a pair of slippers and black T-shirt, had a drinking spree with the son of Pedro dela Torre outside their house at Udia, Cavinti, Laguna; (2)On the same evening, accused wearing the same pair of slippers and black T-shirt and under the influence of liquor, entered the house of VIOLETA CABUHAT without her consent; (3)On the same evening, LORETO VELORIA saw accused wearing the same pair of slippers and black T-shirt; (4)At about 12:30 in the early morning of September 16, 1997, father of the. victim noticed somebody going downstairs of their house; (5)The pair of slippers were found near the door of the victim's house;

(6)The panty of the victim was found inside the premises of VILLA ANASTACIA at Cavinti, Laguna; (7)In the early morning of September 16, 1997, Romualdo Ramos saw accused coming out of from VILLA ANASTACIA barefoot and half-naked; (8)Accused pointed to RICARDO VIDA and SPO2 ANTONIO DECENA the place where the cadaver of the victim could be found; (9)Accused confessed to the Mayor and the Vice-Mayor of Cavinti, Laguna, that he committed the offense imputed against him; and (10)Almost all eyewitnesses for the Prosecution positively identified the accused in open court as CLEMENTE JOHN LUGOD." 18 There is no question that at the time of his apprehension, accused-appellant was already placed under arrest and was suspected of having something to do with the disappearance of Nairube. In fact, the lower court declared that accused-appellant's warrantless arrest was valid based on Section 5 (b) of Rule 113 of the Rules of Court. 19 However, at the time of his arrest, the apprehending officers did not inform the accused-appellant and in fact acted in a blatant and wanton disregard of his constitutional rights specified in Section 12, Article III of the Constitution, which provides: (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. (2)No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3)Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. DACaTI (4)The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation

of victims of torture or similar practices, and their families. Records reveal that accused-appellant was not informed of his right to remain silent and to counsel, and that if he cannot afford to have counsel of his choice, he would be provided with one. Moreover, there is no evidence to indicate that he intended to waive these rights. Besides, even if he did waive these rights, in order to be valid, the waiver must be made in writing and with the assistance of counsel. Consequently, the accusedappellant's act of confessing to SPO2 Gallardo that he raped and killed Nairube without the assistance of counsel cannot be used against him for having transgressed accusedappellant's rights under the Bill of Rights. 20 This is a basic tenet of our Constitution which cannot be disregarded or ignored no matter how brutal the crime committed may be. In the same vein, the accused-appellant's act in pointing out the location of the body of Nairube was also elicited in violation of the accused-appellant's right to remain silent. The same was an integral part of the- uncounselled confession and is considered a fruit of the poisonous tree. Thus, in People vs. De La Cruz, 21 we ruled that: "Equally inadmissible, for being integral parts of the uncounselled admission or fruits of the poisonous tree are the photographs of subsequent acts which the accused was made to do in order to obtain proof to support such admission or confession, such as (a) his digging in the place where Virginia Trangia was allegedly buried, (b) his retrieving of the bones discovered therein (c) his posing before a photographer while executing such acts. " 22 Even if we were to assume that accused-appellant was not yet under interrogation and thus not entitled to his constitutional rights at the time he was brought to the police station, the acts of accused-appellant subsequent to his apprehension cannot be characterized as having been voluntarily made considering the peculiar circumstances surrounding his detention. His confession was elicited by SPO2 Gallardo who promised him that he would help him if he told the truth. Furthermore, when accused-appellant allegedly pointed out the body of the victim, SPO2 Gallardo, the whole police force as well as nearly one hundred (100) of the townspeople of Cavinti escorted him there. Ricardo Vida stated that the townspeople were antagonistic towards accused-appellant and wanted to hurt him. 23 The atmosphere from the time accused-appellant was apprehended and taken to the police station up until the time he was alleged to have pointed out the location of the body of the victim was highly intimidating and was not conducive to a spontaneous response. Amidst such a highly coercive atmosphere, accused-appellant's claim that he was beaten up and maltreated by the police officers raises a very serious doubt as to the voluntariness of his alleged confession. The Vice-Mayor, who testified that when he visited accused-appellant in the jail cell, he noticed that the accusedappellant had bruises on his face, corroborated accused-appellant's assertion that he was maltreated. 24

In addition, the records do not support the confession allegedly made by the accusedappellant to the Mayor and Vice-Mayor of Cavinti. Records show that the Mayor of Cavinti did not testify in the criminal trial. Moreover, the testimony of the Vice-Mayor with respect to the alleged confession made by the accused-appellant is not conclusive. The Vice-Mayor's testimony reads as follows: "TRIAL PROSECUTOR;

A:I pitied him during that time, I asked him why he did that thing. COURT: Q:Did you specify to him what you mean by why he did such a thing? A:No, Your Honor, I merely asked him why was he able to do that.

Q:More or less what time did you visit Clemente John Lugod in his cell? A:Between 3:30 and 4:00 o'clock in the afternoon, sir. Q:Do you have any companion at the time you visited Clemente John Lugod? A:Nobody, sir. aCcADT Q:Tell us how you were able to visit him in the said cell? A:My first intention in visiting him was just to know him, sir.

Q:Do you know if Lugod understood what you mean? A:I think he understood my question then, Your Honor. TRIAL PROSECUTOR: Q:What was the response of Clemente John Lugod when you asked him that question? A:He told me he was so drunk, he did not know what happened next. "Hindi niya namalayan na ganoon ang nangyari." Q:Did you ask him what he has done?

Q:Did anybody introduce to you Clemente John Lugod? WITNESS: A:A police officer called Clemente John Lugod, who was then lying inside the cell, sir. Q:What did the police officer say to Clemente John Lugod? A:The police officer said: "Lugod, the vice mayor wants to talk to you." TRIAL PROSECUTOR: Q:What did Lugod do if any when he was called by the police officer? A:He arose and he greeted me good afternoon, sir. Q:What happened after he greeted you good afternoon? A:I asked him why he went to that place, sir. TRIAL PROSECUTOR: Q:What place are you referring to? A:That house. I did not ask the specific place, what I was referring then was that house. Q:What was the response of Clemente John Lugod? A:He answered he thought of his two children, sir. Q:What about if he thought of his two children?

A:According to him he planned to go back to Brgy. Layog where he left his children. Q:Did you ask him what he do (sic) in that place?

That will be all, Your Honor. COURT: Cross

A:I did not ask, sir. ATTY. DE RAMOS: Q:What else did he tell you? With the permission of the Honorable Court? A:I asked another question, sir. COURT: Q:What is that other question? Proceed. A:I asked him if it was the mother whom he liked then, sir. ATTY. DE RAMOS: Q:What was the answer? A:Allegedly not the mother, sir. TRIAL PROSECUTOR: A:Yes, sir. Q:Did you ask him what did he do (sic) in that place? ATTY. DE RAMOS: A:No more, sir. Q:What else did he tell you aside from what you have testified? A:No more, sir, I bid him goodbye. Q:Is Clemente John Lugod present in court? A:Yes, sir. Q:Please point at him. A:(Witness going down of the witness stand and pointed to a person who when asked of his name answered Clemente John Lugod, the accused in this case). TRIAL PROSECUTOR: Q:And the reason why the police officer called John Lugod is because you approached that police, is that correct? A:Yes, sir. Q:And you asked him where is John Lugod? A:Yes, sir. Q:Because you do not know John Lugod personally? A:Yes, sir. Q:When you were about to talk to John Lugod, was he still inside the cell or outside the cell? Q:Vice mayor, when you visited John Lugod on September 19, 1997 at around 3:30 to 4:00 o'clock in the afternoon, you stated that he was Lying in his cell, is that correct?

A:He was still inside the cell, sir. Q:So you are outside the cell?

Q:Did it not occur to you to think in that appearance there was something that happened? aTIEcA A:No, Your Honor, because my first intention was just to know him.

A:Yes, sir. Q:How about the police officer who called John Lugod? A:He was outside the cell, sir. Q:So the police officer who called John Lugod was present while you were conversing with John Lugod? A:No, sir, he was no longer present because after calling John Lugod he left. Q:What was John Lugod wearing at that time? WITNESS: A:I cannot remember anymore, sir. A:No more, sir. ATTY. DE RAMOS: Q:But you can still remember his physical appearance at that time? A:Yes, sir. Q:What was the physical appearance of Clemente John Lugod at that time? A:As far as I can recall it seemed that he had some bruises on his face (witness pointing to his lower jaw) COURT A:Yes, sir." 25 Q:Did you not ask him what happened to his face? A:No, sir. As can be seen from the testimony of the Vice-Mayor, accused-appellant merely responded to the ambiguous questions that the Vice-Mayor propounded to him. He did not state in certain and categorical terms that he raped and killed Nairube. In fact, the Vice-Mayor Q:You stated earlier that you asked John Lugod why did you do that, tell the Court what was his response to your question? A:He said he was so drunk then, sir. Q:He did not tell you that he raped the victim and killed her? A:He did not say that, sir. Q:He did not directly answer your question because your question did not ask direct to something? Q:Did not the accused Clemente John Lugod inform you of any maltreatment done to him by the police officers? A:He did not say anything about that, Your Honor. Q:Did you not ask John Lugod whether somebody laid force on him? WITNESS: A:I was not able to ask that, Your Honor. ATTY. DE RAMOS: Q:Aside from bruises on his face did you notice any other bruises or wound on other parts of his body?

admitted that the accused-appellant did not tell him that he raped and killed Nairube. In addition, we note the contradiction between the testimony of the Vice-Mayor who stated that he was alone when he spoke to the accused-appellant and that of SPO2 Gallardo who claimed that he was present when accused-appellant confessed to the Mayor and ViceMayor. Considering that the confession of accused-appellant cannot be used against him, the only remaining evidence which was established by the prosecution is the fact that several persons testified having seen accused-appellant the night before the murder of Nairube and on several other occasions wearing the rubber slippers and black T-shirt found at the house of the victim and Villa Anastacia respectively as well as the testimony of Romualdo Ramos, the tricycle driver who stated that he saw accused-appellant in the early morning of September 16, 1997 leaving Villa Anastacia without a T-shirt and without slippers. These pieces of evidence are circumstantial in nature. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference.26 Under Section 4 of Rule 133 of the Rules on Evidence, circumstantial evidence is sufficient for conviction if: (a)There is more than one circumstance; (b)The facts from which the inferences are derived are proven; and (c)The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Circumstantial evidence is sufficient to convict if the circumstances proven constitute an unbroken chain which lead to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. 27 In the present case, much emphasis was placed by the trial court on the discovery of the pair of rubber slippers at the victim's house and the black T-shirt hanging on a guava twig near the cadaver of Nairube which were allegedly worn by accused-appellant the day before Nairube's disappearance. The trial court also relied on the fact that there was an eyewitness who saw accused-appellant leaving Villa Anastacia, the place where the body of the victim was found, in the morning after the disappearance of the victim. However, the combination of the abovementioned circumstances does not lead to the irrefutably logical conclusion that accusedappellant raped and murdered Nairube. At most, these circumstances, taken with the testimonies of the other prosecution witnesses, merely establish the accused-appellant's whereabouts on that fateful evening and places accused-appellant at the scene of the crime and nothing more. The evidence of the prosecution does not provide a link which would enable this Court to conclude that he in fact killed and raped Nairube. It must be stressed that although not decisive for the determination of the guilt of the accused-appellant, the prosecution did not present any evidence to establish that he was at any time seen with the victim at or about the time of the incident. Neither was there any other evidence which could single him out to the exclusion of any other as being responsible for the crime.

It may be argued that his presence at the scene of the crime was unexplained and gives rise to the suspicion that the accused-appellant was the author thereof but this circumstance alone is insufficient to establish his guilt. It is well settled that mere suspicions and speculations can never be the bases of conviction in a criminal case. 28 More important, it appears that the rubber slippers, which were found at the house of the victim on the night Nairube disappeared, are an ordinary pair of rubber slippers without any distinguishing marks to differentiate the same from any other. In People vs. De Joya, 29 this Court ruled that: "Rubber or beach walk slippers are made in such quantities by multiple manufacturers that there must have been dozens if not hundreds of slippers of the same color, shape and size as the pair that Herminia gave to appellant's wife. And even if conclusive identification of the slippers had been offered, and it is assumed that appellant (rather than his wife) had worn those slippers on that fatal afternoon, still the presence of that singular slipper did not clearly and directly connect the appellant to the robbery or the slaying. At most, under that assumption, the presence of that slipper in the house of the Valencias showed that the accused had gone to the house of the Valencias and there mislaid the slipper. We note in this connection, that appellant himself had testified that he did enter the house of the Valencias that afternoon, but after the killing of Eulalia Diamse had been perpetrated, and there found many persons in the house viewing the body. " 30

Likewise, in People vs. Mijares, 31 this Court ruled that the fact that the accused was the last person seen with the victim and that his slippers were found at the crime scene do not necessarily prove that he killed the victim. This Court stated that: "That the appellant was the last person seen with the victim on the night she disappeared does not necessarily prove that he killed her. It was not established that appellant and the victim were together until the crime was committed. It was not even shown that the appellant proceeded to the crime scene, either by himself or together with the victim. Likewise, the fact that the slippers which appellant borrowed from Elizabeth Oglos were found near the victim's dead body does not necessarily prove that he was the perpetrator of the crime. Even if we were to conjecture that appellant went to the locus criminis and inadvertently left them there, such supposition does not necessarily imply that he had committed the crime. Indeed, it was not

established whether appellant went to the place before, during or after the commission of the crime, if at all. Moreover, the prosecution has not ruled out the possibility that the slippers may have been brought by another person to the crime scene, precisely to implicate him and thus exonerate the real culprit. Clearly, several antithetical propositions may be inferred from the presence of the slippers at the crime scene, and appellant's guilt is only one of them ." 32 WHEREFORE, in view of the foregoing, the appealed Judgment dated October 8, 1998 of the Regional Trial Court of Santa Cruz, Laguna, Branch 28 in Criminal Case No. SC-6670 finding the accused, Clemente John Lugod alias "HONASAN", guilty of the crime of rape with homicide is hereby REVERSED and SET ASIDE and accused-appellant is ACQUITTED of the crime charged on the ground of reasonable doubt. He is ordered immediately RELEASED from confinement unless held for some other legal cause. No pronouncement as to costs. SO ORDERED.

FIRST DIVISION [G.R. No. 85215. July 7, 1989.] THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents.

against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 5.ID.; ID.; ID.; RIGHT TO BE EXEMPT FROM BEING A WITNESS AGAINST HIMSELF, CONSTRUED. The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify bysubpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 6.ID.; ID.; ID.; RIGHTS OF THE ACCUSED BEFORE AND AFTER THE CASE IS FILED IN THE COURT. A person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in that matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify to his own behalf, subject to cross-examination by the persecution; d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some time other than that for which he is prosecuted. 7.ID.; ID.; ID.; RIGHTS DURING CUSTODIAL INVESTIGATION DOES NOT ENCOMPASS STATEMENTS MADE DURING AN ADMINISTRATIVE INQUIRY; CASE AT BAR. Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos.

Nelson Lidua for private respondent.

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT AGAINST SELFINCRIMINATION; RIGHT CONSTRUED. The right against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. The right is NOT to "be compelled to be a witness against himself." It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." It simply secures to a witness, whether he be a party or not, the right to refuse to answer anyparticular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. 2.ID.; ID.; ID.; ID.; TIME TO ASSERT RIGHT. The right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. 3.ID.; ID.; ID.; ID.; NOT A SELF-EXECUTING RIGHT. The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 4.ID.; ID.; ID.; OTHER RIGHTS OF THE ACCUSED. The accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others 1) to be exempt from being a witness

DECISION

NARVASA, J p: What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed. Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained. 2 On the day before the investigation, February 8, 1986, Ramos gave to his superiors a handwritten note 3 reading as follows: "2-8-86 TO WHOM IT MAY CONCERN: THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86. (s)Felipe Ramos (Printed)F. Ramos" At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the

money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise . . . to pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated. About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) ". . . with unfaithfulness and/or abuse of confidence, did then and there willfully . . . defraud the Philippine Airlines, Inc., Baguio Branch, . . . in the following manner, to wit: said accused . . . having been entrusted with and received in trust fare tickets of passengers for one-way-trip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, . . . once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there . . . misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, . . . failed and refused to make good his obligation, to the damage and prejudice of the offended party . . ."

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal. At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988, 6 which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission . . . given on February 8, 1986," also above referred to, which had been marked as Exhibit K. The defendant's attorneys filed "Objections/Comments to Plaintiffs Evidence." 7 Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.' "

By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager . . . since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 . . . for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission." The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September 14, 1988. 10 In justification of said Order, respondent Judgeinvoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, Peo. v. Galit, 135 SCRA 467, Peo. v. Sison, 142 SCRA 219, and Peo. v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited." These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People . . . vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question. The Court deems that there has been full ventilation of the issue of whether or not it was grave abuse of discretion for respondent Judge to have excluded thePeople's Exhibits A and K. It will now proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent Judge has given a construction that is disputed by the People. The section reads as follows: SEC. 20.No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. It should at once be apparent that there are two (2) rights, or sets of rights, dealth with in the section, namely: 1)the right against self-incrimination i.e., the right of a person not to be compelled to be a witness against himself set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution, 12 and 2)the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense." Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self-incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The rights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. 13 Right Against Self-Incrimination The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to be a witness against himself." The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear

before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. 17 The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18 Rights in Custodial Interrogation Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative. This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20 Section 20 states that whenever any person is "under investigation for the commission of an offense" 1)he shall have the right to remain silent and to counsel, and to be informed of each right, 21 2)nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; 22 and

3)any confession obtained in violation of . . . (these rights shall be inadmissible in evidence. 23 In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. 24 He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a policedominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25 The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has also been more precisely described by this Court. 28 . . . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence.

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

2)to testify as witness in his own behalf; but if he offers himself as a witness he may be crossexamined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32 The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 35 If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross-examined as any other witness." He may be crossexamined as to any matters stated in his direct examination, or connected therewith. 36 He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged. It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa. In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in that matter of his testifying or producing evidence, to wit: 1)BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2)AFTER THE CASE IS FILED IN COURT 37

a)to refuse to be a witness; b)not to have any prejudice whatsoever result to him by such refusal; c)to testify to his own behalf, subject to cross-examination by the prosecution; d)WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some time other than that for which he is prosecuted. It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside. It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos.

him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability. Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all. WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus oficio, is now declared of no further force and effect. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

His Honor adverts to what he perceives to be the "greater danger . . (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their overeagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy, and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to

EN BANC [G.R. No. 97214. July 18, 1994.] ERNESTO NAVALLO, petitioner, vs. HONORABLE SANDIGANBAYAN ( SECOND DIVISION) and PEOPLE OF THE PHILIPPINES,respondents.

been taken into custody or otherwise deprived of his freedom of action in any significant way." A person under a normal audit examination is not under custodial investigation. An audit examiner himself can hardly be deemed to be the law enforcement officer contemplated in the above rule. In any case, the allegation of his having been "pressured" to sign the Examination Report prepared by Dulguime appears to be belied by his own testimony. 5.CRIMINAL LAW; MALVERSATION; PRESUMED WHERE PUBLIC OFFICER FAILED TO ACCOUNT PUBLIC FUNDS OR PROPERTY WHICH HE IS CHARGED WITH. Accused-petitioner challenges the sufficiency of evidence against him. Suffice it to say that the law he contravened itself creates a presumption of evidence. Article 217 of the Revised Penal Code states that "(t)he failure of a public officer to have dully forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use." An accountable officer, therefore, may be convicted of malversation even in the absence of direct proof of misappropriation as long as there is evidence of shortage in his accounts which he is unable to explain. 6.REMEDIAL LAW; EVIDENCE; FINDINGS OF FACTS OF THE TRIAL COURT, GENERALLY UPHELD ON APPEAL. Findings of facts made by a trial court are accorded the highest degree of respect by an appellate tribunal and, absent a clear disregard of the evidence before it that can otherwise affect the results of the case, those findings should not be ignored. We see nothing on record in this case that can justify a deviation from the rule.

SYLLABUS 1.REMEDIAL LAW; SANDIGANBAYAN; ARRAIGNMENT OF ACCUSED AT THE REGIONAL TRIAL COURT DOES NOT DEPRIVE THE SANDIGANBAYAN OF ITS JURISDICTION TO TRY THE CASE; CASE AT BAR. Presidential Decree No. 1606 is explicit and clear. Sections 4 and 8 of the law provide that a case falling under the jurisdiction of the Sandiganbayan shall be transferred to it so long as the accused has not as yet been properly arraigned elsewhere on the date of effectivity of the law, i.e., on 10 December 1978. The accused is charged with having violated paragraph 4, Article 217, of the Revised Penal Code, an offense which falls under Title VII of the Revised Penal Code and, without question, triable by the Sandiganbayan. Navallo's arraignment before the Regional Trial Court on 18 July 1985 is several years after Presidential Decree No. 1606, consigning that jurisdiction to the Sandiganbayan, had become effective. 2.CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; REQUISITES. Double jeopardy requires the existence of the following requisites: (1) The previous complaint or information or other formal charge is sufficient in form and substance to sustain a conviction: (2) The court has jurisdiction to try the case; (3) The accused has been arraigned and has pleaded to the charge; and (4) The accused is convicted or acquitted or the case is dismissed without his express consent. When all the above elements are present, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily included in, the first offense charged, can rightly be barred. 3.ID.; ID.;. ID.; CASE AT BAR. In the case at bench, the RTC was devoid of jurisdiction when it conducted an arraignment of the accused which by then had already been conferred on the Sandiganbayan. Moreover, neither did the case there terminate with conviction or acquittal nor was it dismissed. 4.ID.; ID.; RIGHTS OF THE ACCUSED DURING CUSTODIAL INVESTIGATION; RIGHT NOT AVAILABLE WHERE ONE IS UNDER NORMAL AUDIT EXAMINATION. Accused-petitioner claims to have been deprived of his constitutional rights under Section 12, Article III, of the 1987 Constitution. Well-settled is the rule that such rights are invocable only when the accused is under "custodial investigation," or is "in custody investigation," which we have since defined as any "questioning initiated by law enforcement officers after a person has

DECISION

VITUG, J p: On 11 May 1978, an information charging petitioner with having violated Article 217, paragraph 4, of the Revised Penal Code, was filed with the then Court of First Instance ("CFI") of Surigao del Norte (docketed Criminal Case No. 299). It read: "That on or before January 27, 1978 in the municipality of del Carmen, Province of Surigao del Norte and within the jurisdiction of this Honorable Court, accused who is the Collecting and Disbursing Officer of the Numancia National Vocational School, which school is also located at del Carmen, Surigao del Norte and while a Collecting and Disbursing Officer of the aforestated school therefore was holding in trust moneys and/or properties of the government of the Republic of the Philippines and holding in trust public funds with all freedom, intelligence, criminal intent and intent of gain, did then and

there voluntarily, unlawfully, feloniously and without lawful authority appropriate and misappropriate to his own private benefit, public funds he was holding in trust for the Government of the Philippines in the total sum of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS and SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency, which total sum accused failed to account during an audit and failed as well to restitute despite demands by the office of the Provincial Auditor, to the damage and prejudice of the Government equal to the amount misappropriated. "Act contrary to par. 4 of Article 217, of the Revised Penal Code with a penalty of Reclusion Temporal, minimum and medium periods and in addition to penalty of perpetual special disqualification and fine as provided in the same Article." 1 A warrant of arrest was issue, followed by two alias warrants of arrest, but accused-petitioner Ernesto Navallo still then could not be found. Meanwhile, on 10 December 1978, Presidential Decree No. 1606 took effect creating the Sandiganbayan and conferring on it original and exclusive jurisdiction over crimes committed by public officers embraced in Title VII of the Revised Penal Code. On 15 November 1984, Navallo was finally arrested. He was, however, later released on provisional liberty upon the approval of his property bail bond. When arraigned by the Regional Trial Court ("RTC") on 18 July 1985, he pleaded not guilty. On 22 May 1986, upon motion of the prosecution, the RTC transferred the case and transmitted its records to the Sandiganbayan. On 27 January 1989, Special Prosecutor Luz L. Quinones-Marcos opined that since Navallo had already been arraigned before the case was transferred to the Sandiganbayan, the RTC should continue taking cognizance of the case. The matter was referred to the Office of the Ombudsman which held otherwise. The information was docketed (Criminal Case No. 13696) with the Sandiganbayan. A new order for Navallo's arrest was issued by the Sandiganbayan. The warrant was returned with a certification by the RTC Clerk of Court that the accused had posted a bail bond. The bond, having been later found to be defective, on 30 August 1989, a new bond was approved and transmitted to the Sandiganbayan. prcd Navallo filed a motion to quash, contending (1) that the Sandiganbayan had no jurisdiction over the offense and the person of the accused and (2) that since the accused had already been arraigned by the RTC, the attempt to prosecute him before the Sandiganbayan would constitute double jeopardy. On 15 September 1989, the Sandiganbayan issued a resolution denying Navallo's motion. On 20 October 1989, Navallo was arraigned; he pleaded, "not guilty," to the charge. Trial ensued. Evidence for the Prosecution:

On 27 January 1978, the Provincial Auditor of Surigao del Norte, Antonio Espino, made a preliminary audit examination of cash and other accounts of Ernesto Navallo(then Collecting and Disbursing Officer of Numancia National Vocational School). Espino found Navallo to be short of P16,483.62. The auditor, however, was then merely able to prepare a cash count sheet since he still had to proceed to other municipalities. Before departing, Espino sealed the vault of Navallo. On 30 January 1978, Leopoldo a. Dulguime was directed by Espino to complete the preliminary examination and to conduct a final audit. Dulguime broke the seal, opened the vault, and made a new cash count. Dulguime next examined the cashbook of Navallo. Dulguime did not examine the official receipts reflected in the cashbook, said receipts having been previously turned over to the Office of the Provincial Auditor. After the audit, he had the cashbook likewise deposited with the same office. The audit covered the period from July 1976 to January 1978 on the basis of postings and record of collections certified to by Navallo. Dulguime made a Report of Examination and wrote Navallo a letter demanding the restitution of the missing amount. The latter neither complied nor offered any explanation for the shortage. The official receipts and cashbook, together with some other records, were subsequently lost or damaged on account of a typhoon that visited the province. Evidence for the Defense: The accused, Navallo, testified that in 1970, he was a Clerk I in the Numancia National Vocational School. In 1976, he was appointed Collecting and Disbursing Officer of the school. His duties included the collection of tuition fees, preparation of vouchers for salaries of teachers and employees, and remittance of collections exceeding P500.00 to the National Treasury. Even while he had not yet received his appointment papers, he, together with, and upon the instructions of, Cesar Macasemo (the Principal and Navallo's predecessor as Collecting and Disbursing Officer of the school), was himself already doing entries in the cashbook. Navallo and Macasemo thus both used the vault. Navallo said that he stated the job of a disbursement officer in June 1977, and began to discharge in full the duties of his new position (Collection and Disbursement Officer) only in 1978. There was no formal turn over of accountability from Macasemo to Navallo.

Gainsaying the prosecution's evidence, Navallo continued that the charge against him was motivated by a personal grudge on the part of Espino. On 25 January 1978, he said, he was summoned to appear at the Numancia National Vocational School where he saw Espino and Macasemo. The safe used by him and by Macasemo was already open when he arrived, and the cash which was taken out from the safe was placed on top of a table. He did not see the actual counting of the money and no actual audit of his accountability was made by Espino. Navallo signed the cash count only because he was pressured by Macasemo who assured him that he (Macasemo) would settle everything. The collections in 1976, reflected in the Statement of Accountability, were not his, he declared, but those of Macasemo who had unliquidated cash advances. prLL

Navallo admitted having received the demand letter but he did not reply because he was already in Manila looking for another employment. He was in Manila when the case was filed against him. He did not exert any effort to have Macasemo appear in the preliminary investigation, relying instead of Macasemo's assurance that he would settle the matter. He, however, verbally informed the investigating fiscal that the shortage represented the unliquidated cash advance of Macasemo. The Appealed Decision: On 08 November 1990, after evaluation the evidence, the Sandiganbayan reached a decision, and it rendered judgment, thus: "WHEREFORE, the Court finds the accused ERNESTO NAVALLO y GALON GUILTY beyond reasonable doubt as principal of the crime of malversation of public funds defined and penalized under Article 217, paragraph 4, of the Revised Penal Code. "Accordingly and there being no modifying circumstances nor reason negating the application of the Indeterminate Sentence Law, as amended, the Court imposes upon the accused the indeterminate sentence ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to SIXTEEN (160 YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of reclusion temporal as maximum; the penalty of perpetual special disqualification, and a fine in the amount of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS AND SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency. "The Court further orders the accused to restitute the amount malversed to the Government. "SO ORDERED." 2

2.Whether or not double jeopardy set in when petitioner was arraigned by the Regional Trial Court on July 18, 1985. 3.Whether or not petitioner was under custodial investigation when he signed the certification prepared by State Auditing Examiner Leopoldo Dulguime. 4.Whether or not the guilt of petitioner has been established by the prosecution beyond reasonable doubt as to warrant his conviction for the offense imputed against him. Cdpr We see no merit in the petition. On 10 December 1978, Presidential Decree No. 1606 took effect providing, among other things, thusly: "SECTION 4.Jurisdiction. The Sandiganbayan shall have jurisdiction over: "(a)Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379; "(b)Crimes committed by public officers and employees, including those employed in government-owned or controlled corporations, embraced in Title VII of the Revised Penal Code, whether simple or complexed with other crimes; and "(c)Other crimes or offenses committed by public offices or employees, including those employed in government-owned or controlled corporations, in relation to their office." "xxx xxx xxx

Accused-petitioner's motion for reconsideration was denied by the Sandiganbayan in its resolution of 05 February 1991. Hence, the instant petition. Four issues are raised in this appeal 1.Whether or not the Sandiganbayan acquired jurisdiction to try and decide the offense filed against petitioner in spite of the fact that long before the law creating the Sandiganbayan took effect, an Information had already been filed with the then Court of First Instance of Surigao del Norte.

"SECTION 8.Transfer of cases. As of the date of the effectivity of this decree, any case cognizable by the Sandiganbayan within its exclusive jurisdiction where none of the accused has been arraigned shall be transferred to the Sandiganbayan." The law is explicit and clear. A case falling under the jurisdiction of the Sandiganbayan shall be transferred to it so long as the accused has not as yet been properly arraigned elsewhere on the date of effectivity of the law, i.e., on 10 December 1978. The accused is charged with having violated paragraph 4, Article 217, of the Revised Penal Code

"ARTICLE 217.Malversation of public funds or property. Presumption of Malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer: "xxx xxx xxx "4.The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua." an offense which falls under Title VII of the Revised Penal Code and, without question, triable by the Sandiganbayan. Navallo's arraignment before the RTC on 18 July 1985 is several years after Presidential Decree No. 1606, consigning that jurisdiction to the Sandiganbayan, had become effective. Accused-petitioner, invoking Section 7, Rule 117, of the Revised Rules of Court, pleads double jeopardy. We cannot agree. Double jeopardy requires the existence of the following requisites: (1)The previous complaint or information or other formal charge is sufficient in form and substance to sustain a conviction; (2)The court has jurisdiction to try the case; (3)The accused has been arraigned and has pleaded to the charge; and (4)The accused is convicted or acquitted or the case is dismissed without his express consent. When all the above elements are present, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily included in, the first offense charged, can rightly be barred.

In the case at bench, the RTC was devoid of jurisdiction when it conducted an arraignment of the accused which by then had already been conferred on theSandiganbayan. Moreover, neither did the case there terminate with conviction or acquittal nor was it dismissed. Accused-petitioner claims to have been deprived of his constitutional rights under Section 12, Article III, of the 1987 Constitution. 3 Well-settled is the rule that such rights are invocable only when the accused is under "custodial investigation," or is "in custody investigation," 4 which we have since defined as any "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." 5 A person under a normal audit examination is not under custodial investigation. An audit examiner himself can hardly be deemed to be the law enforcement officer contemplated in the above rule. In any case, the allegation of his having been "pressured" to sign the Examination Report prepared by Dulguime appears to be belied by his own testimony. To quote: "Q.How were you pressured? "A.Mr. Macasemo told me to sign the report because he will be the one to settle everything. "xxx xxx xxx "Q.Why did you allow yourself to be pressured when you will be the one ultimately to suffer? "A.Because he told me that everything will be all right and that he will be the one to talk with the auditor. "Q.Did he tell you exactly what you will do with the auditor to be relieved of responsibility? "A.No, your honor. "Q.Why did you not ask him? "A.I was ashamed to ask him, your Honor, because he was my superior." 6 Navallo may have been persuaded, but certainly not pressured, to sign the auditor's report. Furthermore, Navallo again contradicted himself when, in his very petition to this Court, he stated:

"Bearing in mind the high respect of the accused with his superior officer and taking favors that his superior officer has extended him in recommending him the position he held even if he was not an accountant, he readily agreed to sign the auditor's report even if he was not given the opportunity to explain the alleged shortage." 7 Finally, accused-petitioner challenges the sufficiency of evidence against him. Suffice it to say that the law he contravened itself creates a presumption of evidence. Article 217 of the Revised Penal Code states that "(t)he failure of a public officer to have dully forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use." An accountable officer, therefore, may be convicted of malversation even in the absence of direct proof of misappropriation as long as there is evidence of shortage in his accounts which he is unable to explain. 8 Not least insignificant is the evaluation of the evidence of the Sandiganbayan itself which has found thusly: "The claim that the amount of the shortage represented the unliquidated cash advance of Macasemo does not inspire belief. No details whatsoever were given by the accused on the matter such as, for instance, when and for what purpose was the alleged cash advance granted, what step or steps were taken byNavallo or Macasemo to liquidate it. In fact, Navallo admitted that he did not even ask Macasemo as to how he (Navallo) could be relieved of his responsibility for the missing amount when he was promised by Macasemo that everything would be all right. When Navallo was already in Manila, he did not also even write Macasemo about the shortage.

Findings of fact made by a trial court are accorded the highest degree of respect by an appellate tribunal and, absent a clear disregard of the evidence before it that can otherwise affect the results of the case, those findings should not be ignored. We see nothing on record in this case that can justify a deviation from the rule. Cdpr WHEREFORE, the petition is DISMISSED and the decision of respondent Sandiganbayan is AFFIRMED in toto. SO ORDERED.

"As to the collections made in 1976 which Navallo denied having made, the evidence of the prosecution shows that he assumed the office of Collecting and Disbursing Officer in July 1976 and the cashbook which was examined during the audit contained entries from July 1976 to January 1978, which he certified to. Navallo confirmed that indeed he was appointed Collecting and Disbursing Officer in 1976. "Finally, the pretense that the missing amount was the unliquidated cash advance of Macasemo and that Navallo did not collect tuition fees in 1976 was advanced for the first time during the trial, that is, 12 long solid years after the audit on January 30, 1978. Nothing was said about it at the time of the audit and immediately thereafter."

SECOND DIVISION [G.R. No. 133026. February 20, 2001.]

having been positively identified by the prosecution witnesses as the one who stabbed the victim, his bare denial and alibi proves futile and unavailing.

SYLLABUS PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWARD ENDINO (at large) and GERRY GALGARIN alias TOTO, accused. 1.REMEDIAL LAW; EVIDENCE; DEFENSES OF ALIBI AND DENIAL; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. The argument that accused-appellant could not be at the scene of the crime on 16 October 1991 as he was in Antipolo assisting his wife who was giving birth on the 14th of that month, is not persuasive. Alibi is a weak defense. The testimony of Cornelio Tejero Jr. Philippine Airlines Load Controller of the Puerto Princesa City, that the name of "Gerry Galgarin" did not appear on their passenger manifest for the 16 October 1991 Manila-Puerto Princesa flight, could not be relied upon inasmuch as he himself admitted that they could not be sure of their passengers' real identities. The testimonies of accusedappellant's co-workers that he was in Antipolo on 14 October 1991 did not fortify his defense either since these witnesses did not categorically state that they saw him in Antipolo in the evening of 16 October 1991. With accused appellant having been positively identified by the prosecution witnesses as the one who stabbed Dennis, his bare denial proves futile and unavailing. 2.ID.; ID.; ADMISSIONS AND CONFESSIONS; ADMISSION OF APPELLANT'S VIDEOTAPED CONFESSION, PROPER. Apropos the court a quo's admission of accused-appellant's videotaped confession, we find such admission proper. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. Besides, if he had indeed been forced into confessing, he could have easily sought succor from the newsmen who, in all likelihood, would have been sympathetic with him. As the trial court stated in its DecisionFurthermore, accused, in his TV interview (Exh. H), freely admitted that he had stabbed Dennis Aquino, and that Edward Endino had shot him (Aquino). There is no showing that the interview of accused was coerced or against his will. Hence, there is basis to accept the truth of his statements therein. 3.ID.; ID.; ID.; EXTRA JUDICIAL MEDIA CONFESSIONS SHOULD BE THOROUGHLY EXAMINED AND SCRUTINIZED; COURTS SHOULD NOT PRESUME THAT ALL MEDIA CONFESSIONS DESCRIBED AS VOLUNTARY HAVE BEEN FREELY GIVEN. Because of the inherent danger in the use of television as a medium for admitting one's guilt, and the recurrence of this phenomenon in several cases, it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extra judicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line

GERRY GALGARIN alias TOTO, accused-appellant.

Solicitor General for plaintiff-appellee. Atty. Robert Y. Peneyra for accused-appellant.

SYNOPSIS Accused-appellant Gerry Galgarin was convicted of murder qualified by treachery for the killing of a certain Dennis Aquino and was sentenced to suffer the penalty ofreclusion perpetua. In convicting accused, the trial court relied on the videotaped confession made by appellant aired over the TV news program TV Patrol. The trial court admitted the video footages on the strength of the testimony of the police officers that no force or compulsion was exerted on appellant and upon a finding that his confession was made before a group of newsmen that could have dissipated any semblance of hostility towards him. The court gave credence to the arresting officers' assertion that it was even appellant who pleaded with them that he be allowed to air his appeal on national television for Edward to surrender. The alibi of appellant was likewise rejected since there was no convincing evidence to support his allegation that he was not at the locus criminis on the evening of 16 October 1991. In his appeal before the Court, appellant Galgarin assails the trial court for rejecting his alibi and admitting his videotaped confession as evidence against him. The Supreme Court affirmed the decision of the trial court convicting appellant of murder. According to the Court, the trial court's admission of appellant's videotape confession was proper. The interview was recorded on video and it showed appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. If appellant had indeed been forced into confessing, he could have easily sought succor from the newsmen who, in all likelihood, would have been sympathetic with him. There was also no showing that the interview of appellant was coerced or against his will. Hence, the Court concluded there is basis to accept the truth of his statements therein. The Court also ruled that with appellant

between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. A word of counsel then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and determination in separating polluted confessions from untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution. 4.CRIMINAL LAW; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; SHOWN BY SUDDENNESS OF ASSAULT ON UNSUSPECTING VICTIM, WITHOUT SLIGHTEST PROVOCATION FROM HIM WHO HAD NO OPPORTUNITY TO PARRY ATTACK. The question that next presents itself is whether the trial court correctly denominated the crime as murder qualified by treachery. Doubtless, the crime committed is one of murder considering that the victim was stabbed while he was simply standing on the pavement with his girlfriend waiting for a ride, blissfully oblivious of the accused's criminal design. The suddenness of the assault on an unsuspecting victim, without the slightest provocation from him who had no opportunity to parry the attack, certainly qualifies the killing to murder.

was "cardio-respiratory arrest secondary to hypovolemic shock secondary to a stab wound which penetrated the heart." 1 On 18 October 1991, an Information for the murder of Dennis Aquino was filed against Edward Endino and accused-appellant Gerry Galgarin and warrants were issued for their arrest. However, as both accused remained at large, the trial court issued on 26 December 1991 an order putting the case in the archives without prejudice to its reinstatement upon their apprehension. On 19 November 1992, Gerry Galgarin was arrested through the combined efforts of the Antipolo and Palawan police forces at a house in Sitio Sto. Nio, Antipolo, Rizal. He was immediately taken into temporary custody by the Antipolo Police. Early in the evening of the following day, he was fetched from the Antipolo Police Station by PO3 Gaudencio Manlavi and PO3 Edwin Magbanua of the Palawan police force to be taken to Palawan and be tried accordingly. On their way to the airport, they stopped at the ABS-CBN television station where accused Galgarin was interviewed by reporters. Video footages of the interview were taken showing Galgarin admitting his guilt while pointing to his nephew Edward Endino as the gunman. According to Galgarin, after attacking Aquino, they left for Roxas, Palawan, where his sister Langging who is Edward's mother, was waiting. Langging gave them money for their fare for Manila. They took the boat for Batangas, where they stayed for a few days, and proceeded to Manila where they separated, with him heading for Antipolo. Galgarin appealed for Edward to give himself up to the authorities. His interview was shown over the ABS-CBN evening news program TV Patrol.

DECISION

BELLOSILLO, J p: YIELDING to man's brutish instinct for revenge, Edward Endino, with the aid of Gerry Galgarin alias Toto, slew Dennis Aquino in the presence of a lady whose love they once shared. On a busy street in Puerto Princesa City in the evening of 16 October 1991, an emboldened Gerry Galgarin, uncle of accused Edward Endino, suddenly and without warning lunged at Dennis and stabbed him repeatedly on the chest. Dennis' girlfriend Clara Agagas who was with him, stunned by the unexpected attack, pleaded to Galgarin to stop. Dennis struggled and succeeded momentarily to free himself from his attacker. Dennis dashed towards the nearby Midtown Sales but his escape was foiled when from out of nowhere Edward Endino appeared and fired at Dennis. As Dennis staggered for safety, the two (2) assailants fled in the direction of the airport. Meanwhile, Dennis, wounded and bleeding, sought refuge inside the Elohim Store where he collapsed on the floor. He was grasping for breath and near death. Clara with the help of some onlookers took him to the hospital but Dennis expired even before he could receive medical attention. According to the autopsy report of Dr. Josephine Goh-Cruz, cause of death

The case against accused-appellant Gerry Galgarin was established through the testimony of Clara Agagas who said that she was with the victim Dennis Aquino standing outside the Soundlab Recording Studio, a barhouse owned by him, when Galgarin suddenly approached them and without any prior warning stabbed Dennis. Dennis tried to run away, but Edward, a spurned lover who harbored ill-feelings towards her and Dennis, shot Dennis. She recognized Edward and Gerry because the street was sufficiently lighted. 2 The testimony of Clara Agagas was corroborated by Anita Leong, next-door neighbor of Dennis, who testified that a little past six o'clock in the evening of 16 October 1991 Gerry Galgarin together with a companion went to her house looking for Dennis. She instructed them to proceed to the Soundlab Recording Studio as Dennis might still be there. But a few minutes later she heard a Instinctively, she instructed her two (2) young daughters to duck for cover while she anxiously waited for her seven (7)-year old daughter Josephine who was out of the house for an errand for her. Soon enough she heard Josephine knocking at their door. She was crying because she said her Kuya Dennis had been shot and stabbed. 3

Josephine confirmed her mother's testimony and even said that she had seen Gerry Galgarin stab her Kuya Dennis and she could remember Gerry very well because of the mole below his nose. 4 For his part, accused-appellant Gerry Galgarin disclaimed having taking part in the slaying of Dennis. Gerry asserted that on 14 October 1991 he was in Antipolo to help his common-law wife Maria Marasigan give birth to their first born. He stayed with her until the 16th of October when she was discharged from the Pedragoza Maternity Clinic. 5 Clarita Florentino Pedragoza, the midwife who delivered his son, supported the alibi of accused-appellant. However, she admitted that when she registered the child's birth on 13 December 1993 or more than two (2) years after the delivery, she informed the civil registrar that the child's father was "unknown." 6 His story was also confirmed by Dolores Arciaga and Maria Tomenio, his co-workers at the Kainan sa Kubo Sing Along Restaurant, who testified that accused-appellant was fetched by a neighbor from the restaurant in the early afternoon of 14 October with the news that his wife was having labor pains. 7 Accused-appellant disowned the confession which he made over TV Patrol and claimed that it was induced by the threats of the arresting police officers. He asserted that the videotaped confession was constitutionally infirmed and inadmissible under the exclusionary rule provided in Sec. 12, Art. III, of the Constitution. 8 The trial court however admitted the video footages on the strength of the testimony of the police officers that no force or compulsion was exerted on accused-appellant and upon a finding that his confession was made before a group of newsmen that could have dissipated any semblance of hostility towards him. The court gave credence to the arresting officers' assertion that it was even accused-appellant who pleaded with them that he be allowed to air his appeal on national television for Edward to surrender. SETaHC The alibi of Galgarin was likewise rejected since there was no convincing evidence to support his allegation that he was not at the locus criminis on the evening of 16 October 1991. Accordingly, accused-appellant Gerry Galgarin was convicted of murder qualified by treachery 9 and sentenced to reclusion perpetua. Additionally, he was ordered to indemnify the heirs of Dennis Aquino P50,000.00 as compensatory damages and P72,725.35 as actual damages. The case against his nephew and co-accused Edward Endino remained in the archives without prejudice to its reinstatement as soon as he could be arrested. 10 In his Appellant's Brief, Gerry Galgarin assails the trial court for rejecting his alibi and admitting his videotaped confession as evidence against him. The argument that accused-appellant could not be at the scene of the crime on 16 October 1991 as he was in Antipolo assisting his wife who was giving birth on the 14th of that month, is not persuasive. Alibi is a weak defense. The testimony of Cornelio Tejero Jr., 11 Philippine Airlines Load Controller of the Puerto Princesa City, that the name of "Gerry Galgarin" did not

appear on their passenger manifest for the 16 October 1991 Manila-Puerto Princesa flight, could not be relied upon inasmuch as he himself admitted that they could not be sure of their passengers' real identities. The testimonies of accused-appellant's co-workers that he was in Antipolo on 14 October 1991 did not fortify his defense either since these witnesses did not categorically state that they saw him in Antipolo in the evening of 16 October 1991. With accused-appellant having been positively identified by the prosecution witnesses as the one who stabbed Dennis, his bare denial proves futile and unavailing. Josephine Leong's identification of accused-appellant was given in a very categorical and spontaneous manner. Her confidence as to the attacker's identity was clearly shown by her vivid recollection of him having a mole below his nose, which is correct. Moreover, it is inconceivable for Josephine and Anita to implicate accused-appellant, a complete stranger to them, if there was no truth to their assertion. As for Clara, her naming of accused-appellant as her boyfriend's assailant was not done out of spite, but was impelled by her desire to seek justice for Dennis. Corroborating further accused-appellant's guilt, probably with intense incriminating effect, were his immediate flight after the slaying, and his attempt at jailbreak 12revealing a guilty conscience, hence, his persistent effort to evade the clutches of the law. Apropos the court a quo's admission of accused-appellant's videotaped confession, we find such admission proper. The interview was recorded on video and it showed accusedappellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. Besides, if he had indeed been forced into confessing, he could have easily sought succor from the newsmen who, in all likelihood, would have been sympathetic with him. As the trial court stated in its Decision 13 Furthermore, accused, in his TV interview (Exh. H), freely admitted that he had stabbed Dennis Aquino, and that Edward Endino had shot him (Aquino). There is no showing that the interview of accused was coerced or against his will. Hence, there is basis to accept the truth of his statements therein. We agree. However, because of the inherent danger in the use of television as a medium for admitting one's guilt, and the recurrence of this phenomenon in several cases, 14 it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extra-judicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line

between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. A word of counsel then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and determination in separating polluted confessions from untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution. With all the evidence tightly ringed around accused-appellant, the question that next presents itself is whether the trial court correctly denominated the crime as murder qualified by treachery. Doubtless, the crime committed is one of murder considering that the victim was stabbed while he was simply standing on the pavement with his girlfriend waiting for a ride, blissfully oblivious of the accused's criminal design. The suddenness of the assault on an unsuspecting victim, without the slightest provocation from him who had no opportunity to parry the attack, certainly qualifies the killing to murder. 15 WHEREFORE, the Decision of the court a quo finding accused-appellant GERRY GALGARIN alias Toto guilty of Murder qualified by Treachery, sentencing him toreclusion perpetua, and ordering him to indemnify the heirs of Dennis Aquino in the amount of P50,000.00 as compensatory damages and P72,725.35 as actual damages, is AFFIRMED with the MODIFICATION that accused-appellant is further ordered to compensate the decedent's heirs P50,000.00 as moral damages for their emotional and mental anguish. Costs against accusedappellant. SO ORDERED.

EN BANC [G.R. No. 147786. January 20, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. ERIC GUILLERMO y GARCIA, appellant.

The facts, as gleaned from the records, are as follows. The victim, Victor Francisco Keyser, was the owner and manager of Keyser Plastic Manufacturing Corp. (Keyser Plastics for brevity), with principal place of business at Sitio Halang, Lornaville, San Roque, Antipolo City. 5 Keyser Plastics shared its building with Greatmore Corporation, a manufacturer of faucets. 6 Separating the respective spaces being utilized by the two firms in their operations was a wall, the lower portion of which was made of concrete hollow blocks, while the upper portion was of lawanit boards. 7 The part of the wall made of lawanit had two large holes, which could allow a person on one side of the wall to see what was on the other side. 8 On March 22, 1998, prosecution witness Romualdo Campos, a security guard assigned to Greatmore was on duty. At around 8:00 a.m., he saw appellant Eric G. Guillermo enter the premises of Keyser Plastics. Campos ignored Guillermo, as he knew him to be one of the trusted employees of Keyser Plastics. An hour later, he saw Victor F. Keyser arrive. Keyser checked the pump motor of the deep well, which was located in the area of Greatmore, after which he also went inside the part of the building occupied by Keyser Plastics. 9 Campos paid scant attention to Keyser. Later, at around 10:00 a.m., Campos was making some entries in his logbook, when he heard some loud noises ("kalabugan") coming from the Keyser Plastics area. He stopped to listen, but thinking that the noise was coming from the machines used to make plastics, he did not pay much attention to the sound. 10 At around noontime, Campos was suddenly interrupted in the performance of his duties when he saw appellant Guillermo look through one of the holes in the dividing wall. According to Campos, appellant calmly told him that he had killed Victor Keyser and needed Campos' assistance to help him carry the corpse to the garbage dump where he could burn it. 11 Shocked by this revelation, Campos immediately dashed off to telephone the police. The police told him to immediately secure the premises and not let the suspect escape, 12 while a reaction team was being dispatched to the scene. Ten minutes later, a team composed of SPO4 Felix Bautista, SPO1 Carlito Reyes, and Police Aide Jovenal Dizon, Jr., all from the Antipolo Philippine National Police (PNP) Station, arrived at the crime scene. With them was Felix Marcelo, an official police photographer. 13 They were immediately met by Campos, who informed them that Guillermo was still inside the building. The law enforcers tried to enter the premises of Keyser Plastics, but found the gates securely locked. The officers then talked to Guillermo and after some minutes, persuaded him to give them the keys. This enabled the police to open the gate. Once inside, SPO4 Bautista and SPO1 Reyes immediately accosted Guillermo who told them, "Sir, hindi ako lalaban, susuko ako, haharapin ko ito." ("Sir, I shall not fight you, I am surrendering, and I shall face the consequences.") 14 Guillermo was clad only in a pair of shorts, naked from the waist up. SPO1 Reyes then asked him where the body of the victim was and Guillermo pointed to some cardboard boxes. On opening the boxes, the police found the dismembered limbs and

DECISION

QUISUMBING, J p: For automatic review is the judgment 1 of the Regional Trial Court (RTC) of Antipolo City, Branch 73, dated March 7, 2001, in Criminal Case No. 98-14724, finding appellant Eric Guillermo y Garcia guilty of murder and sentencing him to suffer the penalty of death. In an Information dated March 23, 1998, appellant was charged by State Prosecutor Jaime Augusto B. Valencia, Jr., of murdering his employer, Victor Francisco Keyser, committed as follows: That on or about the 22nd day of March 1998, in the Municipality of Antipolo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a piece of wood and a saw, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and hit with a piece of wood and thereafter, cut into pieces using said saw one Victor F. Keyser, thereby inflicting upon the latter mortal injuries which directly caused his death. CONTRARY TO LAW. 2 When arraigned on April 3, 1998, the appellant, assisted by counsel de oficio, pleaded guilty to the charge. 3 On April 23, 1998, however, appellant moved to withdraw his plea of guilty and prayed for a re-arraignment. The trial court granted the motion and on April 28, 1998, he was rearraigned. Assisted by counsel de parte, he entered a plea of not guilty. 4 The case then proceeded to trial.

chopped torso of Victor F. Keyser. The victim's head was found stuffed inside a cement bag. 15 When the police asked how he did it, according to the prosecution witness, Guillermo said that he bashed the victim on the head with a piece of wood, and after Keyser fell, he dismembered the body with a carpenter's saw. He then mopped up the blood on the floor with a plastic foam. Guillermo then turned over to the police a bloodstained, two-foot long piece of coconut lumber and a carpenter's saw. 16 Photographs were taken of the suspect, the dismembered corpse, and the implements used in committing the crime. When asked as to his motive for the killing, Guillermo replied that Keyser had been maltreating him and his co-employees.17 He expressed no regret whatsoever about his actions. 18 The police then brought Guillermo to the Antipolo PNP Station for further investigation. SPO1 Carlos conducted the investigation, without apprising the appellant about his constitutional rights and without providing him with the services of counsel. SPO1 Carlos requested the National Bureau of Investigation (NBI) to conduct a post-mortem examination on Keyser's remains. The Antipolo police then turned over the bloodstained piece of wood and saw, recovered from the locus delicti, to the PNP Crime Laboratory for testing. Dr. Ravell Ronald R. Baluyot, a medico-legal officer of the NBI, autopsied Keyser's remains. He found that the cadaver had been cut into seven (7) pieces. 19 He found that the head had sustained thirteen (13) contusions, abrasions, and other traumatic injuries, 20 all of which had been caused by "forcible contact with hard blunt object," 21 such as a "lead pipe, baseball bat, or a piece of wood." 22 He found the cause of death to be "traumatic head injury." 23 Dr. Baluyot declared that since the amputated body parts had irregular edges on the soft tissues, it was most likely that a sharp-edged, toothed instrument, like a saw, had been used to mutilate the corpse. 24 He further declared that it was possible that the victim was dead when sawn into pieces, due to cyanosis or the presence of stagnant blood in the body, 25but on cross-examination, he admitted that he could not discount the possibility that the victim might still have been alive when mutilated. 26 Dr. Olga Bausa, medico-legal pathologist of the PNP Crime Laboratory, testified that she subjected the bloodstained piece of coco lumber as well as the saw recovered from the crime scene to a biochemical examination to determine if the bloodstains were of human origin. Both tested positive for the presence of human blood. 27 However, she could not determine if the blood was of the same type as that of the victim owing to the insufficient amount of bloodstains on the items tested. 28 Keyser's death shocked the nation. Appellant Guillermo, who was then in police custody, was interviewed on separate occasions by two TV reporters, namely: Augusto "Gus" Abelgas of ABS-CBN News and Kara David of GMA Channel 7. Both interviews were subsequently broadcast nationwide. Appellant admitted to David that he committed the crime and never gave it second thought. 29 He disclosed to David the details of the crime, including how he struck Keyser on the head and cut up his body into pieces, which he placed in sacks and cartons. 30 When asked why he killed his employer, Guillermo stated that Keyser had not

paid him for years, did not feed him properly, and treated him "like an animal." 31 Both Abelgas and David said that Guillermo expressed absolutely no remorse over his alleged misdeed during the course of their respective interviews with him. 32 At the trial, appellant Guillermo's defense consisted of outright denial. He alleged he was a victim of police "frame-up." He testified that he had been an employee of Keyser for more than a year prior to the latter's death. On the date of the incident, he was all alone at the Keyser Plastics factory compound as a "stay-in" employee. Other employees have left allegedly due to Keyser's maltreatment of them. 33 In the morning of March 22, 1998, appellant said Keyser instructed him to report for overtime work in the afternoon. He proceeded to the factory premises at one o'clock in the afternoon, but since his employer was not around, he said, he just sat and waited till he fell asleep. 34 He was awakened sometime later when he heard people calling him from outside. He then looked out and saw persons with firearms, who told him that they wanted to enter the factory. Once inside, they immediately handcuffed him and looked around the premises. When they returned, they were carrying boxes and sacks. He said he was then brought to the police station where he was advised to admit having killed his employer since there was no other person to be blamed. 35 When he was made to face the media reporters, he said the police instructed him what to say. 36 He claimed that he could no longer recall what he told the reporters. The appellant denied having any grudge or ill feelings against his employer or his family.

On cross-examination, appellant admitted that he was the shirtless person in the photographs taken at the crime scene, while the persons with him in the photographs were policemen wearing uniforms. 37 He likewise admitted that the cartons and sacks found by the police inside the factory premises contained the mutilated remains of his employer. 38 He claimed, however, that he was surprised by the contents of said cartons and sacks. 39 Appellant admitted that a bloodstained piece of wood and a saw were also recovered by the police, but he insisted that the police made him hold the saw when they took photographs. 40 The trial court disbelieved appellant's version of the incident, but found the prosecution's evidence against him weighty and worthy of credence. It convicted the appellant, thus: The guilt of the accused has been proven beyond reasonable doubt to the crime of murder as charged in [the] information. WHEREFORE, the accused is meted the maximum penalty and is hereby sentenced to die by lethal injection. The accused is also hereby ordered to pay the mother of the victim, Victor Keyser, the following amounts:

1.Death IndemnityP50,000.00 2.Funeral ExpensesP50,000.00 3.Compensatory DamagesP500,000.00 4.Moral DamagesP500,000.00 5.Exemplary DamagesP300,000.00 6.Attorney's FeesP100,000.00 plusP3,000.00per Court appearance. SO ORDERED. 41 Hence, the case is now before us for automatic review. In his brief, appellant assigns the following errors: I THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME OF MURDER HAS BEEN PROVEN BEYOND REASONABLE DOUBT. II THE COURT A QUO ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH. III THE COURT A QUO GRAVELY ERRED IN AWARDING THE FOLLOWING DAMAGES: DEATH INDEMNITY P50,000.00; FUNERAL EXPENSES P50,000.00; COMPENSATORY DAMAGES P500,000.00; MORAL DAMAGES P500,000.00; EXEMPLARY DAMAGES P300,000.00; AND ATTORNEY'S FEES OF P 100,000.00 PLUS P3,000 PER COURT APPEARANCE. 42

Briefly stated, the issues for resolution concern: (1) the sufficiency of the prosecution's evidence to prove the appellant's guilt beyond .reasonable doubt; (2) the propriety of the death penalty imposed on appellant; and (3) the correctness of the award of damages. Appellant contends that his conviction was based on inadmissible evidence. He points out that there is no clear showing that he was informed of his constitutional rights nor was he made to understand the same by the police investigators. In fact, he says, he was only made to read said rights in printed form posed on the wall at the police precinct. He was not provided with the services of counsel during the custodial investigation, as admitted by SPO1 Reyes. In view of no showing on record that he had waived his constitutional rights, appellant argues that any evidence gathered from him, including his alleged confession, must be deemed inadmissible. For the State, the Office of the Solicitor General (OSG) counters that the evidence clearly shows that the appellant admitted committing the crime in several instances, not just during the custodial investigation. First, he admitted having killed his employer to the security guard, Campos, and even sought Campos' help in disposing of Keyser's body. This admission may be treated as part of the res gestae and does not partake of uncounselled extrajudicial confession, according to the OSG. Thus, OSG contends said statement is admissible as evidence against the appellant. Second, the appellant's statements before members of the media are likewise admissible in evidence, according to the OSG, as these statements were made in response to questions by news reporters, not by police or other investigating officer. The OSG stresses that appellant was interviewed by media on two separate occasions, and each time he made free and voluntary statements admitting his guilt before the news reporters. He even supplied the details on how he committed the crime. Third, the OSG points out that appellant voluntarily confessed to the killing even before the police could enter the premises and even before any question could be posed to him. Furthermore, after the police investigators had entered the factory, the appellant pointed to the place where Keyser's corpse was found. The OSG submits that at these points in time, appellant was not yet under custodial investigation. Rather his statements to the police at the crime scene were spontaneous and voluntary, not elicited through questioning, and hence must be treated as part of the res gestae and thus, says the OSG, admissible in evidence. The OSG contends that not every statement made to the police by a suspect in a crime falls within the ambit of constitutional protection. Hence, if not made under "custodial investigation" or "under investigation for the commission of an offense," the statement is not protected by the Bill of Rights. However, in our view, the confession appellant made while he was under investigation by SPO1 Carlito Reyes for the killing of Keyser at the Antipolo PNP Station, falls short of the protective standards laid down by the Constitution. Under Article III of the Constitution, 43 a confession to be admissible must satisfy the following requisites: (a) the confession must be voluntary; (b) the confession must be made with the assistance of competent and independent counsel; (c) the confession must be express; and (d) the confession must be in writing. 44 In the instant case, the testimony of SPO1 Reyes on cross-examination clearly

shows the cavalier treatment by the police of said constitutional guarantees. This can readily be gleaned from the transcript of Reyes' testimony, which we excerpt: Q:What did you do next upon arriving at the police station? A:When we arrived at the police station, I pointed to him and asked him to read what was written on the wall which was his constitutional rights. Q:Did he read the same? A:Yes, ma'm. Q:Did you ask the accused if he did understand what he read? A:Yes, ma'm. Q:So Mr. Witness, you did continue your investigation at the police station? A:Yes, ma'm. COURT: What did the accused say when you asked him if he understood what was written on the wall which was his constitutional rights? A:He said he understood what was written on the wall and he has no regrets. COURT:

A:There were many people around when I conducted the investigation at the police station. My companions were there but I do not know the other persons who were present. Q:How was the investigation that you conducted at the police station? A:I inquired again from Eric Guillermo why he did it, the reason why he did it. Q:And was your investigation being recorded in the police station? A:No, ma'm. Q:Let me just clarify, I did not mean like a tape recorder. Was it written? A:I only asked him but it was not written down or recorded. Q:During the investigation, was there any lawyer or counsel that was called during the investigation? A:None, ma'm. Q:Did you inform the accused that he has the right to get a counsel during the investigation? A:Yes, ma'm. Q:What did the accused say, Mr. Witness? A:He did not utter any word.

Proceed. DEFENSE COUNSEL: Who were present at the police station during your investigation? Q:During the investigation at the police station, did you exert effort to provide him with counsel before you asked him questions? A:No, ma'm. Q:Why?

A:Because during that time, it was Sunday afternoon and there was no counsel around and because he already admitted that he perpetrated the crime and that was explained to him, his constitutional rights which was on the wall. We did not provide anymore a counsel. Q:I would just like to ask the reason why you made the accused read the written rights that was posted on the wall of your police station? A:So that he would be apprised of his constitutional rights. Q:So, you mean that you made him understand his rights? A:Yes, ma'm. Q:So, you mean to say before you asked him to read his rights, you presumed that he does not understand what his constitutional rights are? A:I think he knows his constitutional rights because he admitted the crime. Q:And did the accused understand his rights? A:I believe he understood because he answered, "wala akong dapat pagsisihan." ("I have nothing to regret."). 45 Appellant's alleged confession at the police station lacks the safeguards required by the Bill of Rights. The investigating officer made no serious effort to make appellant aware of his basic rights under custodial investigation. While the investigating officer was aware of the appellant's right to be represented by counsel, the officer exerted no effort to provide him with one on the flimsy excuse that it was a Sunday. Despite the absence of counsel, the officer proceeded with said investigation. Moreover, the record is bare of any showing that appellant had waived his constitutional rights in writing and in the presence of counsel. As well said inPeople v. Dano, even if the admission or confession of an accused is gospel truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given. 46 The right of a person under interrogation "to be informed" implies a correlative obligation on the part of the police investigator to explain and contemplates an effective communication that results in an understanding of what is conveyed. 47 Absent that understanding, there is a denial of the right "to be informed," as it cannot be said that the person has been truly

"informed" of his rights. Ceremonial shortcuts in the communication of abstract constitutional principles ought not be allowed for it diminishes the liberty of the person facing custodial investigation. Be that as it may, however, the inadmissibility of the appellant's confession to SPO1 Reyes at the Antipolo PNP Station as evidence does not necessarily lead to his acquittal. For constitutional safeguards on custodial investigation (known, also as the Miranda principles) do not apply to spontaneous statements, or those not elicited through questioning by law enforcement authorities but given in an ordinary manner whereby the appellant verbally admits to having committed the offense. The rights enumerated in the Constitution, Article III, Section 12, are meant to preclude the slightest use of the State's coercive power as would lead an accused to admit something false. But it is not intended to prevent him from freely and voluntarily admitting the truth outside the sphere of such power.

The facts in this case clearly show that appellant admitted the commission of the crime not just to the police but also to private individuals. According to the testimony of the security guard, Romualdo Campos, on the very day of the killing the appellant called him to say that he had killed his employer and needed assistance to dispose of the cadaver. Campos' testimony was not rebutted by the defense. As the Solicitor General points out, appellant's statements to Campos are admissible for being part of the res gestae. Under the Rules of Court, 48 a declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal act, the res gestae is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending circumstances. 49 All these requisites are present in the instant case. Appellant had just been through a startling and gruesome occurrence, the death of his employer. His admission to Campos was made while he was still under the influence of said startling occurrence and before he had an opportunity to concoct or contrive a story. His declaration to Campos concerned the circumstances surrounding the killing of Keyser. Appellant's spontaneous statements made to a private security guard, not an agent of the State or a law enforcer, are not covered by the Miranda principles and, as res gestate, admissible in evidence against him. Further, when interviewed on separate occasions by the media, appellant not only agreed to be interviewed by the news reporters, but he spontaneously admitted his guilt to them. He even supplied the details regarding the commission of the crime to reporter Kara David of GMA Channel 7, who testified in court, to wit: PUBLIC PROSECUTOR: Q:Could you tell us what you found out in the interview?

A:The first question I think I asked was, if he admits the crime and he gladly said yes he did it, the details about the crime, how he saw the body and where he put it, and the reason why he did it. xxx xxx xxx COURT:

A:He told me where he put it, like he looked for sacks and cartons, and he told me where he put the head but I could not remember. But I remember him saying he put the head in the bag and he said he asked help from the security guard, Campos. Basically, that's it. And he told me the reason why he did it. Q:Why did he do it?

To what crime did he admit? A:He said he got mad with (sic) his boss, so he got a piece of wood, "dos por dos," he hit his boss in the back and then after that, I think he got a saw and sawed the body to eight pieces. xxx xxx xxx PUBLIC PROSECUTOR: You said the interview was done inside the room of Col. Quintana, how many were you inside the room at that time? A:I really could not remember but I was with my cameraman, an assistant, Col. Quintana and I think two more escorts. I could not remember the others. Q:You mentioned a while ago that he gladly admitted what he did, can you explain gladly admitted? A:Usually when I interview suspects, either they deny or [are] in hysterics, but Eric seems (sic) calm when I interviewed him. I said, "ginawa mo ba ang krimen," and he said, "Oo." "Hindi ka ba nagdalawang isip?" "Hindi." It was kind of eerie. Q:You also mentioned that he gave details of the crime he committed, aside from what you already mentioned like his boss being hit in the head and cut to eight pieces, what did he tell you? A:Because he was not being paid for what he has done and Mr. Keyser treated him like an animal, things like that. He said that what he did was just right, just justice. 50 The TV news reporters' testimonies on record show that they were acting as media professionals when they interviewed appellant. They were not under the direction and control of the police. There was no coercion for appellant to face the TV cameras. The record also shows that the interviews took place on several occasions, not just once. Each time, the appellant did not protest or insist on his innocence. Instead, he repeatedly admitted what he had done. He even supplied details of Keyser's killing. As held in Andan, statements spontaneously made by a suspect to news reporters during a televised interview are voluntary and admissible in evidence. 51 Thus, we have no hesitation in saying that, despite the inadmissibility of appellant's alleged confession to the police, the prosecution has amply proven the appellant's guilt in the killing of Victor F. Keyser. The bare denial raised by the appellant in open court pales in contrast to the spontaneous and vivid out-of-court admissions he made to security guard Campos and the two media reporters, Abelgas and David. The positive evidence, including the instruments of the crime, together with the medical evidence as well as the testimonies of credible prosecution witnesses, leaves us no doubt that appellant killed his employer, Victor Francisco Keyser, in the gruesome manner vividly described before the trial court. But was appellant's offense murder for which appellant should suffer the death penalty, or only homicide for which a lesser penalty is appropriate? Appellant argues that the prosecution failed to prove either treachery or evident premeditation to qualify the killing as murder. He points out that there was not a single eyewitness to show how the crime was committed and hence, absent an eyewitness to show the manner in which the crime was committed, he cannot be held liable for murder. For the appellee, the OSG submits that as recounted by the appellant himself, he repeatedly struck the victim, with a piece of coco lumber (dos por dos), at the back of his head, while the victim's back was turned towards him. The suddenness of the attack, coupled with the

manner in which it was executed clearly indicates treachery. The OSG agrees with appellant, however, that evident premeditation was not adequately established. Hence, we shall now deal only with the disputed circumstance, treachery. Treachery or alevosia is present when the offender commits any crime against persons employing means, methods or forms in the execution thereof, which tend directly and specially to insure its execution without risk to the offender arising from any defense which the offended party might make. 52 Two essential requisites must concur for treachery to be appreciated: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) the said means of execution was deliberately or consciously adopted. 53 A qualifying circumstance like treachery changes the nature of the crime and increases the imposable penalties for the offense. Hence, like the delict itself, it must be proven beyond reasonable doubt. 54 In the instant case, we find insufficient the prosecution's evidence to prove that the attack on the victim came without warning and that he had absolutely no opportunity to defend himself, or to escape. None of the prosecution witnesses could know how the attack was initiated or carried out, simply because there was no eyewitness to the offense. In addition, appellant's narration in his taped interview with Channel 7 is not too clear on this point, thus: ERIC GUILLERMO: Mura pa rin ng mura. Nagtataka ako kung bakit ganoon na lamang kainit ito. Bigla niya akong inano dito sa batok ko tapos itinuturo niya ang dito ko (pointing to his head) itinuturoturo niya ang dito ko. Ayon mura ng mura, hindi ko napigilan ang sarili ko, dinampot ko iyong kahoy. ARNOLD CLAVIO: Sa mga oras na 'yon, nagdilim, napuno ng galit ang kanyang mga mata, nakita niya ang isang dos por dos sa kanyang tabi at agad dinampot habang nakatalikod ang kanyang amo. ERIC GUILLERMO: Nang gawin ko sa sarili ko iyon kalmadong kalmado ako noong ginawa ko 'yon. Nasa sarili ako noong ginawa ko iyon. ARNOLD CLAVIO:

Hawak ang mahabang kahoy, hinampas ni Eric si Mr. Keyser, hinampas hanggang sa mawalan ng malay. Tila hindi pa nakuntento sa kanyang nagawa, napagbalingan naman ni Eric ang isang lagare sa kanyang tabi at isinagawa na ang karumal-dumal na krimen. 55 From the foregoing, all that can be discerned is that the victim was scolding the appellant, and the victim's back was turned towards the appellant when the latter picked up the piece of wood. It does not, however, show that there was any deliberate effort on the part of the appellant to adopt the particular means, method, or form of attack to ensure the commission of the crime without affording the victim any means to defend himself. Dr. Ravell Ronald R. Baluyot, the NBI pathologist who autopsied the victim's body, observed that it was difficult to determine the position of the victim in relation to his assailant. 56 Nor was the expert testimony of Dr. Baluyot definitive as to the relative position of the assailant and the victim, to wit: DEFENSE COUNSEL: I would like also to ask from your medical knowledge thru the blows that the deceased received in his head which caused the head injury, would you be able to ascertain also in what position was the attacker or where the attacker was? A:Based on the location of the injuries at the head, it would be very difficult to determine the relative position of the victim and assailant as well as the position of the victim when he sustained said injury, because there are injuries located at the front, at the left and right portions of the head although there were none located at the back (stress supplied). Based on these injuries, I would say that the position would probably be maybe in front, maybe to the left or the right in order for him to inflict the injuries to the front, to the left and right sides of the head. 57 Noteworthy, Dr. Baluyot pointed out that based on the injuries sustained by the victim, there is an indication that he tried to defend himself against the blows being inflicted upon him, thus:

PUBLIC PROSECUTOR:

Q:The wound that you found at the back of the hand, which is at the back of the right hand, would you characterize this as [a] defense wound? A:It is a defense wound. All injuries especially at the upper extremities they could be tagged as defense wounds to fend off. . . attacks and these upper extremities are usually used to protect the head and the body. 58 The gap in the prosecution's evidence cannot be filled with mere speculation. Treachery cannot be appreciated absent the particulars as to the manner in which the aggression commenced or how the act unfolded and resulted in the victim's demise. 59 Any doubt as to its existence must, perforce, be resolved in favor of appellant. One attendant circumstance, however, is amply proved by the prosecution's evidence which shows that the victim's corpse was sawn by appellant into seven (7) pieces. Under Art. 248 (6) of the Revised Penal Code, "outraging or scoffing at the corpse" is a qualifying circumstance. Dismemberment of a dead body is one manner of outraging or scoffing at the corpse of the victim. 60 In the instant case, the corpse of Victor F. Keyser was dismembered by appellant who sawed off the head, limbs, and torso. The Information categorically alleges this qualifying circumstance, when it stated that the appellant "thereafter, cut into pieces using said saw one Victor F. Keyser." This being the case, as proved by the prosecution, appellant is guilty not just of homicide but of murder. The penalty for murder is reclusion perpetua to death. There being neither aggravating nor mitigating circumstances in the instant case, the lesser penalty ofreclusion perpetua should be imposed upon appellant. 61 Both appellant and appellee claim that the trial court erred in awarding damages. They submit that the trial court's award of P50,000.00 for funeral expenses has insufficient basis, for only receipts amounting to P38,068.00 as proof of funeral expenses were presented in evidence. Thus, this award should be reduced accordingly. Concerning the award of moral damages in the amount of P500,000, compensatory damages also for P500,000 and exemplary damages in the amount of P300,000, appellant submits that these cited sums are exorbitant, and not in accord with prevailing jurisprudence. The OSG agrees, hence modification of said amounts is in order. The amount of moral damages should be reduced to P50,000, pursuant to prevailing jurisprudence, as the purpose for such award is to compensate the heirs of the victim for the injuries to their feelings and not to enrich them. 62 Award of exemplary damages is justified in view of the gruesome mutilation of the victim's corpse, but the amount thereof should also be reduced to only P25,000, following current case law.

The award of P500,000 in compensatory damages lacks proof and ought to be deleted. The victim's mother, Remedios Keyser, testified that the victim was earning around P50,000.00 a month 63 as shown in the receipt issued by Rosetti Electronics Phils. Co. 64 However, said receipt shows that it was made out to her, and not the victim. Moreover, it does not show what period is covered by the receipt. Hence, the actual value of the loss of earning capacity was not adequately established. Awards for the loss of earning capacity partake of the nature of damages, and must be proved not only by credible and satisfactory evidence but also by unbiased proof. 65 Civil indemnity for the victim's death, however, was left out by the trial court, although now it is automatically granted without need of proof other than the fact of the commission of the crime. 66 Hence, conformably with prevailing jurisprudence, the amount of P50,000.00 as civil indemnity should be awarded in favor of the victim's heirs. Nothing on the record shows the actual expenses incurred by the heirs of the victim for attorney's fees and lawyer's appearance fees. Attorney's fees are in the concept of actual or compensatory damages and allowed under the circumstances provided for in Article 2208 of the Civil Code, 67 one of which is when the court deems it just and equitable that attorney's fees should be recovered. 68 In this case, we find an award of P25,000 in attorney's fees and litigation expenses reasonable and equitable. WHEREFORE, the assailed judgment of the Regional Trial Court of Antipolo City, Branch 73, dated March 7, 2001 in Criminal Case No. 98-14724, finding appellant ERIC GUILLERMO y GARCIA GUILTY of the murder of Victor Francisco Keyser is AFFIRMED with MODIFICATION. Appellant's sentence is hereby REDUCED TO RECLUSION PERPETUA. He is also ORDERED to pay the heirs of the victim, Victor Francisco Keyser, the sum of P50,000.00 as civil indemnity, P38,068.00 as actual damages, P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P25,000.00 as attorney's fees, without subsidiary imprisonment in case of insolvency. Costs de oficio. SO ORDERED.

SECOND DIVISION [A.M. No. MTJ-94-989. April 18, 1997.] OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. JUDGE AUGUSTO SUMILANG, INTERPRETER FELICIDAD MALLA, STENOREPORTER EDELITA LAGMAY and STENO-REPORTER NIEVA MERCADO, respondents.

Cayetano T . Santos & Associates for respondents.

however, we ruled that the aforementioned constitutional provision may be invoked only during "custodial investigation" or as in "custody investigation" which has been defined as "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." The investigation is defined as an "investigation conducted by police authorities which will include investigation conducted by the Municipal Police, P.C. (now PNP) and the NBI and such other police agencies in our government." Thus, the Office of the Court Administrator can hardly be deemed to be the law enforcement authority contemplated in the constitutional provision. At any rate, Malla admitted during her testimony that she received the said check from Villarica covering the amount of P240,000.00 payable to Dizon. However, when she tried to deposit it with the Municipal Treasurer, the latter refused because there was no order from Judge Sumilang. Consequently, Villarica entrusted said check to her. It was at this juncture that she used the money for personal purposes. 4.REMEDIAL LAW; EVIDENCE; JUDICIAL CONFESSION; STATEMENT IN AFFIDAVIT REPEATED IN OPEN COURT IS CONVERTED INTO A JUDICIAL CONFESSION. During the investigation, Malla repeated what she basically stated in her affidavit i.e., that she used a substantial amount of the P240,000.00 for her personal needs. This effectively refutes whatever pressure and coercion she claims was employed against her. By repeating her confession in open court, Malla thereby converted it into a judicial confession. 5.POLITICAL LAW; SUPREME COURT ADMINISTRATIVE SUPERVISION OVER COURT PERSONNEL; PROHIBITION AGAINST TAKING COURT RECORDS OUTSIDECOURT PREMISES; CASE AT BENCH. During the investigation, Malla was charged with a second offense for keeping in her custody missing court records containing the technical description of a cadastral survey. Malla never denied this charge, but claimed that they were returned five hours after they were removed. We are not impressed with the remonstration of Malla. It should be stressed that court employees are not allowed to take any court records, papers or documents outside thecourt premises. 6.ID.; ID.; PERSONAL USE OF FUNDS ENTRUSTED TO THE COURT; PROPER PENALTY IN CASE AT BENCH. All these acts call for Malla's dismissal, but this penalty cannot be enforced because she is no longer connected with the MTC of Pila, Laguna. Hence, the appropriate penalty that may be meted against her is the forfeiture of her accrued leave credits, with prejudice to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations. This disciplinary action should serve as a reminder to all court personnel who yield to the temptation of using for their own personal interest funds entrusted to the court, that there is no place in the judiciary for those who cannot meet the exacting standards of judicial conduct and integrity. The fact that Malla returned the whole amount is of no moment because such act will not mitigate her liability. 7.ID.; ID.; QUANTUM OF PROOF REQUIRED IN ADMINISTRATIVE PROCEEDINGS; CASE AT BENCH. Respondents Lagmay and Mercado, on the other hand, vehemently deny knowing that the money they borrowed was money held in trust by Malla. This assertion contradicts the latter's testimony as to the source of the money, lent to the former. Worth stressing is the well-entrenched principle that in administrative proceedings, such as the instant case, the

SYLLABUS 1.LEGAL AND JUDICIAL ETHICS; JUDGES; DISCIPLINE OF JUDGES; DUTY TO MANAGE COURT PROPERLY; IGNORANCE AS TO IRREGULARITIES OCCURRING IN COURT CONSTITUTES SERIOUS BREACH THEREOF; CASE AT BENCH. A judge must always remember that as the administrator of his court, he is responsible for the conduct and management thereof. He has the duty to supervise his court personnel to ensure prompt and efficient dispatch of business in his court. The ignorance of respondent Judge as to the irregularities occurring in his own backyard constitutes serious breach of judicial ethics. Judge Sumilang's excuse, that upon learning of the irregularities being committed by his court personnel, he immediately acted with haste and instructed Malla to turn over the money, is specious and unconvincing. His admission that he had no knowledge regarding the anomalies going on in his court underscores his inefficiency, and incompetence. It clearly demonstrates a lack of control expected of a judge exercising proper office management. 2.POLITICAL LAW; SUPREME COURT ADMINISTRATIVE SUPERVISION OVER COURT PERSONNEL; PAYMENTS MADE BY LITIGANTS IN RELATION TO THEIR CASES SHOULD NOT BE RECEIVED BY COURT INTERPRETER IN HIS PERSONAL CHARGE. The evidence against Malla is equally incriminating. It has been clearly established, and this is not denied by Malla, that she misappropriated for her own use the amount of P240,000.00 which she received from Villarica, the plaintiff in Civil Case No. 858, instead of directing him to deposit said amount with the Municipal Treasurer. A court interpreter should not receive payments made by litigants in relation to their cases in his personal charge. 3.ID.; CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED UNDER CUSTODIAL INVESTIGATION; NOT APPLICABLE TO INVESTIGATIONS BEFORE THE OFFICEOF THE COURT ADMINISTRATOR. Malla further claims that her constitutional rights under Section 12, Article III of the Constitution were violated when she was "pressured" to sign an affidavit dated September 14, 1994 before the Office of the Court Administrator, where she admitted her misdeed. Thus, she concludes that the affidavit is inadmissible in evidence. In People vs. Loveria,

quantum of proof necessary for a finding of guilt is only substantial evidence. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 8.REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; TESTIMONIAL EVIDENCE CARRIES MORE WEIGHT THAN AFFIDAVIT; CASE AT BENCH. The only evidence presented before this Court are the affidavits of Malla, Lagmay and Mercado. Firmly established is the rule that testimonial evidence carries more weight than affidavits. 9.ID.; ID.; ID.; MATTER OF ASSIGNING VALUES THERETO BEST PERFORMED BY INVESTIGATING BODY; EXCEPTION; CASE AT BENCH. In situations such as the one at hand, the matter of assigning values to the testimony of witnesses is best performed by the investigating body because, unlike appellate courts, they can weigh such testimony in light of the demeanor, conduct and attitude of the witnesses at the trial. This rule, however, must be relaxed when certain facts of substance and value have been overlooked which, if considered, might affect the result of the matter. Unfortunately for respondents, no such omission is present here. 10.POLITICAL LAW; SUPREME COURT ADMINISTRATIVE SUPERVISION OVER COURT PERSONNEL; STRICTEST STANDARD OF HONESTY REQUIRED OF THOSE INVOLVED IN THE ADMINISTRATION OF JUSTICE; CASE AT BENCH. We need not belabor jurisprudence that those involved in the administration of justice must live up to the strictest standard of honesty and integrity in the public service. Their conduct must at all times, not only be characterized with propriety and decorum but above all must be above suspicion. For the image of a court of justice is necessarily mirrored in the conduct, official or otherwise, of the men and women thereat, from the judge to the least and lowest of its personnel. By the very nature of the amount involved and considering that Malla was only receiving a salary of P5,000.00 a month with no other source of income, the conduct of the employees involved cast suspicion and tended to diminish the faith of the people in the judiciary. 11.ID.; ID.; APPLICABILITY OF CONSTITUTIONAL TENET THAT PUBLIC OFFICE IS A PUBLIC TRUST IN CASE AT BENCH. In resolving this case, this Courtemphasizes the Constitutional tenet that "(p)ublic office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with outmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives."

With reluctance, the Court once again has to wield its power of imposing disciplinary measures on members of the Bench and employees of the judiciary for failure to live up to the obligations incident to their status as officers of the Court. cdtai Respondents Judge Augusto Sumilang, Felicidad Malla, Edelita Lagmay and Nieva Mercado, court employees of the Metropolitan Trial Court of Pila, Laguna (hereinafter referred to as the lower court), were charged in a memorandum report by the Office of Court Administrator dated August 16, 1994, 1 for misappropriating funds deposited by the plaintiff in Civil Case No. 858, entitled "Spouses Entero Villarica and Felicidad Domingo v. Teodorico Dizon." On October 5, 1994, this Courtissued a resolution treating the aforesaid memorandum report as an administrative complaint which was docketed as Administrative Matter No. MTJ-94-989. 2 In addition, a second complaint was lodged against Malla for removing judicial records outside the court premises. 3 This Court decided to include this matter in the original complaint earlier docketed as A.M. No. MTJ-94-989 in a resolution dated March 6, 1995. 4 The antecedent facts follow: This case arose as an aftermath of an on-the-spot audit examination of the official cashbook and other documents of the lower court. It appears from the evidence that court interpreter Malla who was the officer-in-charge from July 1, 1992 to November 15, 1992, took a maternity leave for one (1) month (November 16, 1992 to December 15, 1992) and reassumed her position on December 16, 1992, until her resignation on August 31, 1993.

On September 1, 1993, Rebecca Avanzado assumed the position of officer in charge. It was during her tenure on August 8, 1994, that an on-the-spot audit examination was conducted by the Fiscal Audit Division of the Office of Court Administrator. In the course of the examination, several anomalous transactions were discovered. One involved a manager's check deposited in the name of Teodorico Dizon in connection with Civil Case No. 858, wherein Entero Villarica, on August 7, 1992 during the tenure of Malla entrusted the amount of P240,000.00 to said respondent instead of handling it over to the Clerk of Court pursuant to Supreme CourtCircular No. 13-92. 5 When asked to explain where the P240,000.00 was, Malla, explained that she deposited it at the Sta. Cruz, Laguna branch of the Philippine National Bank but she and Judge Sumilang later withdrew it allegedly under the belief that the defendant, Dizon, would demand the delivery of the money upon the termination of the case. Upon further questioning by the examining team, however, Malla admitted that she lent the amount of P87,000.00 to steno-reporter Lagmay, P40,000.00 to steno-reporter Mercado, and P81,000.00 to Mrs. Sumilang, wife of Judge Sumilang. She spent P32,000.00 for the hospitalization of her husband and the remaining balance for personal purposes. 6

DECISION

ROMERO, J p:

Later on, she executed an affidavit stating that only Lagmay and Mercado borrowed P55,000.00 and P40,000.00, respectively. On the other hand, she used P100,000.00 for her personal needs. 7 Upon learning that they were being implicated in the anomalous transaction, Lagmay executed an affidavit stating that the amount of P55,000.00 was from the personal account of Malla and not from the P240,000.00 amount deposited before the court and such loan has already been paid. 8 Mercado, on the other hand, claims that the amount of P40,000.00 was borrowed only two weeks before the audit took place, when Malla was no longer employed with the court. 9 Mrs. Sumilang, for her part, denied any involvement in any of the transactions. 10 After carefully studying the records of this case, the Court is convinced that respondents did commit acts prejudicial to the service for which they should be held accountable. The evidence against Judge Sumilang adequately proves his gross negligence in this matter. In his proffered explanation, he averred that his wife did not borrow any money from Malla and that he had no knowledge of the irregularities involving members of his own staff. 11 It bears emphasizing that this is not the first time that respondent judge has been charged with an administrative case. In Arviso v. Sumilang, 12 this Court found him guilty of gross negligence and ordered him to pay a fine of P3,000.00 for his failure to act on a motion to dismiss in an expeditious manner. A judge must always remember that as the administrator of his court, he is responsible for the conduct and management thereof. He has the duty to supervise hiscourt personnel to ensure prompt and efficient dispatch of business in his court. 13 The ignorance of respondent Judge as to the irregularities occurring in his own backyard constitutes serious breach of judicial ethics. 14 Judge Sumilang's excuse, that upon learning of the irregularities being committed by his court personnel, he immediately acted with haste and instructed Malla to turn over the money, 15 is specious and unconvincing. His admission that he had no knowledge regarding the anomalies going on in his court underscores his inefficiency and incompetence. It clearly demonstrates a lack of control expected of a judge exercising proper office management. The evidence against Malla is equally incriminating. It has been clearly established, and this is not denied by Malla, 16 that she misappropriated for her own use the amount of P240,000.00 which she received from Villarica, the plaintiff in Civil Case No. 858, instead of directing him to deposit said amount with the Municipal Treasurer. A court interpreter should not receive payments made by litigants in relation to their cases in his personal charge. 17 In her defense, Malla testified that her uncle Entero Villarica allowed her to use the money on the condition that she should be ready to produce it when necessary. 18Malla, however, never presented Villarica as her witness to bolster her claim which, therefore, has no evidentiary value for being self-serving. Besides, there is a disputable presumption that evidence wilfully suppressed would be adverse if produced during trial. 19

Malla further claims that her constitutional rights under Section 12, Article III of the Constitution 20 were violated when she was " pressured" to sign an affidavit dated September 14, 1994 before the Office of the Court Administrator, where she admitted her misdeed. 21 Thus, she concludes that the affidavit is inadmissible in evidence. cdtech In People v. Loveria, 22 however, we ruled that the aforementioned constitutional provision may be invoked only during "custodial investigation" or as in "custody investigation" which has been defined as "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." 23 The investigation is defined as an "investigation conducted by police authorities which will include investigation conducted by the Municipal Police, P.C. (now PNP) and the NBI and such other police agencies in our government." 24 Thus, the Office of the CourtAdministrator can hardly be deemed to be the law enforcement authority contemplated in the constitutional provision. At any rate, Malla admitted during her testimony that she received the said check from Villarica covering the amount of P240,000.00 payable to Dizon. However, when she tried to deposit it with the Municipal Treasurer, the latter refused because there was no order from Judge Sumilang. Consequently, Villarica entrusted said check to her. It was at this juncture that she used the money for personal purposes. 25 During the investigation, Malla repeated what she basically stated in her affidavit i.e., that she used a substantial amount of the P240,000.00 for her personal needs. This effectively refutes whatever pressure and coercion she claims was employed against her. By repeating her confession in open court, Malla thereby converted it into a judicial confession. 26 During the investigation, Malla was charged with a second offense for keeping in her custody missing court records containing the technical description of a cadastral survey. Malla never denied this charge, 27 but claimed that they were returned five hours after they were removed. We are not impressed with the remonstration of Malla. It should be stressed that court employees are not allowed to take any court records, papers or documents outside the court premises. 28 All these acts call for Malla's dismissal, but this penalty cannot be enforced because she is no longer connected with the MTC of Pila, Laguna. Hence, the appropriate penalty that may be meted against her is the forfeiture of her accrued leave credits, with prejudice to reemployment in any branch or instrumentality of the government, including governmentowned or controlled corporations. This disciplinary action should serve as a reminder to all court personnel who yield to the temptation of using for their own personal interest funds entrusted to the court, that there is no place in the judiciary for those who cannot meet the exacting standards of judicial conduct and integrity. The fact that Malla returned the whole amount is of no moment because such act will not mitigate her liability.

Respondents Lagmay and Mercado, on the other hand, vehemently deny knowing that the money they borrowed was money held in trust by Malla. 29 This assertion contradicts the latter's testimony as to the source of the money lent to the former. Worth stressing is the well-entrenched principle that in administrative proceedings, such as the instant case, the quantum of proof necessary for a finding of guilt is only substantial evidence. 30 Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 31 The only evidence presented before this Court are the affidavits of Malla, Lagmay and Mercado. Firmly established is the rule that testimonial evidence carries more weight than affidavits. 32 On this point, the investigating Justice, 33 reported: "In the instant case, both Mercado and Lagmay are residents of Pila, Laguna, like Malla. All of them were employed with the Municipal Trial Court of Pila, Laguna, Mercado and Lagmay as stenographic reporters and Malla as court interpreter and, for a time, as officer-incharge of the Office of the Clerk of Court. Moreover, being stenographic reporters in the same court where Malla was the court interpreter, the deposit by Villarica of the amount of P240,000.00 could not have been unknown to Mercado and Lagmay. It is not every day that such a huge amount is deposited with a mere Municipal Trial Court of a town in the province. Indeed, Lagmay even admitted, when she testified during the investigation, that she was aware of the deposit of the said amount with the Court as ordered by it. Lagmay admitted when she testified that Malla was receiving only a monthly salary of P5,000.00. The three (3) failed to adduce competent evidence sufficient to prove any other sources of income of Malla except her salary as an employee of the government. Although Malla, Mercado and Lagmay claimed that Malla's husband was an agricultural tenant of a fivehectare parcel of land and a real estate broker and that Malla was the owner of a restaurant managed by her sister, however, they relied solely on their testimonies to buttress their claim. Malla failed to adduce in evidence any business or Mayor's permit to prove that she was the owner and operator of a restaurant and any documentary evidence to prove that her husband was engaged in real estate or that her husband was an agricultural tenant and his income from said business or occupation. On the other hand, when she testified during the investigation, Malla admitted that she used P200,000.00 from the P240,000.00 deposit (T .S .N ., Malla, Page 96, April 21, 1995) for the expansion of her restaurant. In fine, Malla was

in dire need of money. If Malla had other sources of income other than her salary as a government employee, it would not have been necessary for her to use part of the deposit with the RCBC. Neither Lagmay nor Malla adduced any evidence to prove that Malla was granted a loan by the Luzon Development Bank, in March, 1994, in the gargantuan amount of P600,000.00." cdt

In situations such as the one at hand, the matter of assigning values to the testimony of witnesses is best performed by the investigating body because, unlike appellate courts, they can weigh such testimony in light of the demeanor, conduct and attitude of the witnesses at the trial. 34 This rule, however, must be relaxed when certain facts of substance and value have been overlooked which, if considered, might affect the result of the matter. 35 Unfortunately for respondents, no such omission is present here. We need not belabor jurisprudence that those involved in the administration of justice must live up to the strictest standard of honesty and integrity in the public service. Their conduct must at all times, not only be characterized with propriety and decorum but above all must be above suspicion. 36 For the image of a court of justice is necessarily mirrored in the conduct, official or otherwise, of the men and women thereat, from the judge to the least and lowest of its personnel. 37 By the very nature of the amount involved and considering that Malla was only receiving a salary of P5,000.00 a month with no other source of income, the conduct of the employees involved cast suspicion and tended to diminish the faith of the people in the judiciary. In resolving this case, this Court emphasizes the Constitutional tenet that "(p)ublic office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with outmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives." 38 WHEREFORE, respondent Judge Augusto Sumilang is hereby found guilty of gross negligence in the management of his court and ordered to pay a FINE of P20,000.00. Respondent Felicidad Malla is found guilty of misappropriating funds deposited to the court by the plaintiff in Civil Case No. 858 and infidelity in the custody of courtrecords. The Court, therefore, imposes the penalty of FORFEITURE of all retirement benefits and accrued leave credits and with prejudice to re-employment in any branch, agency or instrumentality of the government, including government-owned or controlled corporations, considering that dismissal is no longer feasible in view of her separation from the service. Respondents Edelita Lagmay and Nieva Mercado are likewise found guilty of conduct prejudicial to the best interest of the service, and are hereby ordered to pay a FINE of

P3,000.00 each, with a stem warning that commission of the same or similar acts in the future will be dealt with more severely. cda SO ORDERED.

THIRD DIVISION [G.R. No. 131131. June 21, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABELARDO SALONGA, accused-appellant.

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; CUSTODIAL INVESTIGATION; GUIDELINES TO BE OBSERVED STRICTLY BY LAW ENFORCERS. Applying said provision of the 1973 Constitution, the Court in Morales, Jr. vs. Enrile laid down the guidelines to be observed strictly by law enforcers during custodial investigation: "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." 2.ID.; ID.; ID.; CONSTRUED. The constitutional right to counsel as enunciated in Morales, Jr. vs. Enrile [121 SCRA 538 (1983)] may be invoked only by a person under custodial investigation for an offense. Accused-appellant's extra-judicial confession was properly admitted and considered by the trial court considering that when accused-appellant gave his statement he was not under custodial investigation. Custodial investigation is "the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that lends itself to elicit incriminating statements." Indeed, custodial investigation refers to "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. 3.ID.; ID.; ID.; LEGAL FORMALITIES REQUIRED BY THE CONSTITUTION APPLY ONLY TO THOSE EXTRA-JUDICIAL CONFESSIONS OBTAINED DURING CUSTODIAL INVESTIGATION. In this case, when Arthur Christy Mariano of the spot audit group discovered that there was a discrepancy in the proof sheet brought about by the issuance of a cashier's check numbered 013702 made payable to Firebrake Sales and Services in the amount of Thirty-Six Thousand, Four Hundred Eighty pesos and Thirty centavos (P36,480.30), accused-appellant was summoned to appear before Valentino Elevado, Assistant Accountant, Department of Internal Affairs of Metrobank for questioning. It bears stressing that Elevado is not a police officer or law enforcer but a private person who was a bank officer. In the course of the interview, accused-appellant admitted having issued the subject cashier's check without any legitimate transaction, to his co-accused Amiel Garcia who was then encountering financial difficulties. He also admitted that out of the amount of the check, P8,500.00 went to his personal benefit. His admissions were reduced into writing and offered as Exhibit "B" by the prosecution. It is well-settled that the legal formalities required by the fundamental law of the land apply only to those extra-judicial confessions obtained during custodial investigation.

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

SYNOPSIS Accused-appellant Abelardo Salonga was convicted of qualified theft through falsification of commercial document by the Regional Trial Court of Makati. Appellant appealed to the Court of Appeals. The appellate court affirmed the trial court's decision convicting him of the crime charged; however, it ruled that the penalty imposed was erroneous, and modified the same by increasing the penalty imposed to reclusion perpetua. Having imposed reclusion perpetua on accused-appellant, the Court of Appeals refrained from entering judgment and certified the case to the Supreme Court for review, in conformity with Section 13, Rule 124 of the Rules of Court. In his appeal before the Court, appellant contended that the trial court erred in admitting in evidence his alleged extrajudicial confession/admission which according to him was obtained in violation of his constitutional right to counsel. The Supreme Court affirmed appellant's conviction of qualified theft through falsification of commercial document. The Court, however reduced the penalty ofreclusion perpetua imposed by the appellate court to fourteen (14) years and eight (8) months of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum. The Court rejected appellant's argument that his "so-called extra-judicial confession/admission" taken on January 27, 1987 marked as Exhibit "B" was inadmissible in evidence on the ground that the waiver of his right to counsel was made in violation of his constitutional right to counsel. According to the Court, the constitutional right to counsel may be invoked only by a person under custodial investigation for an offense. Accused-appellant's extra-judicial confession was properly admitted and considered by the trial court considering that when he gave his statement he was not under custodial investigation. The said admission were made in the course of an interview wherein accused-appellant admitted having issued the subject cashier's check without any legitimate transaction, to his co-accused Amiel Garcia who was then encountering financial difficulties. He also admitted that out of the amount of the check, P8,500.00 went to his personal benefit. His admissions were reduced into writing and offered as Exhibit "B" by the prosecution.

4.REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; COURT WILL NOT INTERFERE WITH TRIAL COURT'S ASSESSMENT THEREOF ABSENT ANY INDICATION OR SHOWING THAT TRIAL COURT OVERLOOKED SOME MATERIAL FACTS OR GRAVELY ABUSED ITS DISCRETION. Assistant Accountant Valentino Elevado (Internal Affairs) who investigated the anomalies surrounding the issuance of the check testified that he personally interviewed accusedappellant regarding the matter. Benito T. Cuan testified that he was present during the entire interview and signing of the statement by accused-appellant and that no force or coercion was employed against accused-appellant during the interview. It is a well-entrenched rule that this Court will not interfere with the trial court's assessment of the credibility of the witnesses absent any indication or showing that the trial court has overlooked some material facts or gravely abused its discretion, especially where, as in this case, such assessment is affirmed by the Court of Appeals. Verily, we find that the evidence for the prosecution deserves credence and that the same is sufficient for conviction. 5.CRIMINAL LAW; QUALIFIED THEFT THROUGH FALSIFICATION OF COMMERCIAL DOCUMENT; PENALTY IMPOSED IN CASE AT BAR. We come to the correctness of the penalty imposed. The crime charged is Qualified Theft through Falsification of Commercial Document. The information alleged that the accused took P36,480.30 with grave abuse of confidence by forging the signature of officers authorized to sign the subject check and had the check deposited in the account of Firebrake Sales and Services, a fictitious payee without any legitimate transaction with Metrobank. Theft is qualified if it is committed with grave abuse of confidence. The fact that accused-appellant as assistant cashier of Metrobank had custody of the aforesaid checks and had access not only in the preparation but also in the release of Metrobank cashier's checks suffices to designate the crime as qualified theft as he gravely abused the confidence reposed in him by the bank as assistant cashier. Since the value of the check is P38,480.30, the imposable penalty for the felony of theft is prision mayor in its minimum and medium periods and one year of each additional ten thousand pesos in accordance with Article 309, paragraph 1 of the Revised Penal Code. However, under Article 310 of the Revised Penal Code, the crime of qualified theft is punished by the penalties next higher by two (2) degrees than that specified in Article 309 of the Revised Penal Code. Two (2) degrees higher than prision mayor in its minimum and medium periods is reclusion temporal in its medium and maximum periods. In addition, forging the signatures of the bank officers authorized to sign the subject cashier's check was resorted to in order to obtain the sum of P36,480.30 for the benefit of the accused. As correctly held by the courts a quo, falsification of the subject cashier's check was a necessary means to commit the crime of qualified theft resulting in a complex crime. Hence, we apply Article 48 of the Revised Penal Code, which provides that, ". . . where an offense is a necessary means for committing the other, the penalty for the more serious crime in its maximum period shall be imposed." Considering that qualified Theft is more serious than falsification of bank notes or certificates which is punished under Article 166(2) of the Revised Penal Code with prision mayor in its minimum period, the correct penalty is fourteen (14) years and eight (8) months ofreclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum. CHcETA

GONZAGA-REYES, J p: This case was certified to this Court pursuant to Section 13, Rule 124 1 of the Rules of Court from a decision rendered by the Court of Appeals 2 in CA-G.R. CR NO. 18551 which modified the decision of the Regional Trial Court 3 (RTC) of Makati, Branch 142 in Criminal Case No. 33127, by increasing the penalty imposed on the accused to reclusion perpetua.

Abelardo Salonga, Flaviano Pangilinan, Amiel Garcia and Ricardo Licup were charged with the crime of Qualified Theft through Falsification of Commercial Document in an information 4 that reads: "That on or before the 23rd day of October, 1986, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one another and mutually helping and aiding one another, and as such had access to the preparation of checks in the said Metrobank and Trust Company, with grave abuse of confidence, intent of gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away the total amount of P36,480.30 by forging the signature of officers authorized to sign the said check and have the said check deposited in the account of Firebrake Sales and Services, the supposed payee when in truth and in fact there is no such transaction between Firebrake and Metrobank, thereby causing the preparation and use of a simulated check described as Check No. 013702 in the amount of P36,480.30 making it appear genuine and authorized, through which they succeeded in its encashment, enabling them to gain for themselves the total sum of P36,480.30, to the damage and prejudice of Metrobank and Trust Company in the total amount of P36,480.30. CONTRARY TO LAW." On January 7, 1991, Salonga was arraigned and pleaded not guilty to the crime charged. His co-accused, Flaviano Pangilinan, Amiel Garcia and Ricardo Licup are still at large. On July 19, 1993, the RTC rendered its decision finding Salonga guilty beyond reasonable doubt of Qualified Theft through Falsification of Commercial Document, the dispositive portion of which reads: "WHEREFORE, premises considered, the Court finds the accused Abelardo Salonga GUILTY beyond reasonable doubt of the complex

DECISION

crime of QUALIFIED THEFT THRU FALSIFICATION OF COMMERCIAL DOCUMENT. Absent any circumstance which attended the commission of the crime he is hereby sentenced to suffer an indeterminate prison term of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years of reclusion temporal as maximum." The trial court summarized the evidence for the prosecution, upon which it based its conviction of accused-appellant in this wise: Prosecution: " . . . (T)he Loans and Placement Department of Metropolitan Band and Trust Company (Metrobank) issued Metrobank Cashier's Check No. CC 013702 dated October 23, 1986 in the amount of P36,480.30 which purports to have been signed by Antonio L. Manuel, as manager of the said department and authorized signatory of the check and which had been cleared and encashed (Exhibits "A", "A-1" to "A-4"). On January 20, 1987, Arthur Christy Mariano, lead examiner of Metrobank's Loans and Placement Department, conducted a spot audit of the Loans and Placement Department of Metrobank. The outcome of the spot audit as embodied in the Reports dated February 12, 1987 and March 26, 1987, is as follows: 'Unauthorized Issuance of Cashier's check Test-verification of the daily issuance of cashier's checks by the Loans and Placement Department disclosed the following: AaIDCS 1.There was a cashier's check issued on October 23, 1986 under CC No. 013702 payable to a certain Firebreak Sales and Services for P36,480.30 the xerox copy of which is shown as EXHIBIT A. 2.The signatures of the authorized signatories appearing on the subject cashier's check have an apparent dissimilarity with their genuine

signature particularly that of Mrs. Antonia L. Manuel, Manager of Loans and Placement Department. 3.At the back portion of the Cashier's check, it was traced that the same was deposited to Account No. 30213900-53 maintained at BPI Ayala Ave. Branch. However, we were not able to establish the name/owner of the account at BPI. 4.On the day of issuance of the cashier's check, it was found out that the corresponding debit and credit balances appearing in the proof sheet of Loans and Placement Department are balanced. However, the supporting accounting ticket debiting Accounts payable was short by P36,480.30, the amount of the cashier's check while the credit accounting ticket for the "Cashier's and Gift Checks" account reflects the correct total of issuances for the day but the signature of the Authorized Signature" space is forged as shown in Exhibit B. 5.The Cashier's check in question was properly recorded in the register maintained at the FX/Loans Accounting Section. It passed to the usual clearing procedure except for the signature verification of the authorized signatories. Thus, the unauthorized issuance/dissimilarity of the signatures could not be readily detected. 6.The matter was brought to the attention of the Division Heads concerned who immediately confronted the responsible officers, Mr. Abelardo A. Salonga, Acting Asst. Cashier and

Custodian of the unissued cashier's check at the Loans & Placement Department and Mr. Flaviano M. Pangilinan, Asst. Manager of FX/Loans Accounting Section. Both admitted their participation on the irregularity/unauthorized issuance of said cashier's check. 7.The case was already endorsed to the Department of Internal Affairs by the Controller.' "UNAUTHORIZED ISSUANCE OF CASHIER'S CHECK Except for the unauthorized issuance of Cashier's Check No. 013702 for P36,480.30 on October 23, 1986, we found out that the transactions involving 'Accounts payable' account are in order per verification conducted from October to December 1986. All items lodged under said account were properly accounted for. As have been reported, the perpetrators on this particular scheme are Messrs. Flaviano M. Pangilinan and Abelardo A. Salonga, Assistant Manager and Acting Assistant Cashier, respectively. Mr. Pangilinan made a payment of P17,500.00 on January 28, 1987 under O.R. No. 65696 while no payment was received from Mr. Salonga as of this writing.' (Exhibits "M", "M 1", "N", "N 1") "Antonia Manuel and Arthur Christy Mariano both testified that the signature of the former appearing on the subject check and on Metrobank' Debit (Local) Ticket TR No. 8 dated October 23, 1986 which was prepared by accused Amiel S. Garcia (Exhibits '1', '1-1', '12') corresponding to the subject check, is a forgery after comparison thereof with the genuine signature of Antonia Manuel appearing on the cashier's checks also issued by the Loans and Placement Department of Metrobank (Exhibits 'D', 'D-1', 'D-2', 'E', E-1','E-2'; 'F', 'F-1', 'F-2'; 'G', 'G-1', 'G-2;'H', 'H-1, 'H-2'). "Arthur Mariano declared that while the amount of accounts payable for October 23, 1986 as reflected in the proof sheet of Metrobank's Loans and Placement Department is P97,112.17 (Exhibits 'J', 'J-1', 'J-2'), the total amount of accounts payable by said department for October 23, 1986 under Metrobank Debit (Local) Tickets TR No. 8 both dated October 23, 1986 is P60,631.87

(P60,390.58 + P241.29) (Exhibits 'K', 'K-1', 'K-2'; 'L', 'L-1, 'L-2', respectively), which two amounts under normal circumstances, should be equal. The difference of the two aforesaid amounts totaled P36,480.30 which is equivalent to the amount stated in the subject cashier's check, which allegedly shows that the check was issued bereft of any transaction. "By virtue of the alleged anomaly surrounding the issuance of the subject cashier's check, accused Abelardo Salonga was summoned to appear before Valentino Elevado, Assistant Accountant, Department of Internal Affairs of Metrobank. After allegedly appraising Abelardo Salonga of his constitutional right to remain silent and to counsel, an interview in a question and answer from was conducted. Accused Abelardo Salonga allegedly waived his constitutional rights and submitted himself to the interview. In the course of the interview, accused Abelardo Salonga admitted having issued the subject cashier's check without any legitimate transaction, to accused Amiel Garcia as accused who was then encountering financial difficulties. That out of the amount of the check, P8,500.00 went to the personal benefit of accused Abelardo Salonga. "After the interview, accused Abelardo Salonga executed a written statement which he authenticated by affixing his signature thereon (Exhibits 'B' to 'B-7'). Questions and Answers Nos. 7, 8, 9, 19 and 21 stated in the written statement read as follows: 7.Q:Placement Section, Metrobank, Head Office, Makati, Metro Manila, what are your duties and responsibilities? A:I have the control of the issuance of cashier checks for Loans and placement transactions of Metrobank, and others. 8.Q:In connection with your duties of issuing cashiers checks regarding loans and placement transactions of Metrobank, have you come across Cashier's Check No. CC 013702 dated October 23, 1987, payable to Firebreak Sales and Services in the amount of P36,480.30? A:I issued this check in blank to Mr. Amiel Garcia, messenger on October 23, 1986. acIASE 9.Q:Why did you issue this blank Cashier's check No. 013702 to Mr. Amiel Garcia, was there a legitimate transaction in loans or in placement?

A:There was no legitimate or legal transaction in loans neither in placement, but I issued this to Mr. Garcia because Mr. Flaviano Pangilinan, Assistant Manager, Accounting Department who is my compadre and I have plan to make money and I want to help Mr. Amiel Garcia who is financially handicapped. 19.Q:Was this check cleared by Metrobank? A:Yes, because Mr. Flaviano Pangilinan is the Assistant Manager of the Accounting Section downstairs in the basement, their section cleared this check. 21.Q:Did Mr. Flaviano Pangilinan give you any amount as your share? A:After about three days, at about after lunch, he called me outside the bank, (beside the bank), and he handed me an envelope with P17,000.00 plus, he said ' pare, eto oh', 'ganon lang.' (Exhibits B-8 to B-11). "A letter dated September 15, 1987 was addressed by accused Abelardo Salonga to Atty. Severino Tobias of Metrobank Head Office wherein the former signified his intention to compromise the case (Exhibits 'C' to 'C-3').

examination, then back to the manager for his signature and to the other officer for his counter-signature, the check is then returned to accused Abelardo Salonga for eventual release to the bank's client. "According to Abelardo Salonga, he first learned that he was being accused of the present charge after the audit of his department was concluded. Two persons from the Internal Affairs Department invited him to an investigation. These two persons allegedly forced (him) to go with them and even dragged him into the car and brought him to the Department's Office at PS Bank, Ayala Avenue. "During the investigation, accused Abelardo Salonga's alleged statement was typewritten but he was neither asked any questions nor did the investigators talk to him. He was given an opportunity to read his statement but only for a limited period of time. He allegedly affixed his signature involuntarily on the typewritten statement after the investigators threatened him and hit him on the nape. The investigators never informed him of his right to counsel and neither did they believe this claim of innocence. "Upon learning that a criminal complaint was filed against him, accused Abelardo Salonga sought the assistance of a lawyer and wrote a letter to the Personnel Head of Metrobank. In the said letter, accused Abelardo Salonga admitted his negligence in connection with the subject check because of the threats employed by the investigators and that he has never been employed nor has he any interest whatsoever with Firebreak Sales and Services. "In the letter which accused Abelardo Salonga sent to Atty. Severino Tabios of Metrobank (Exhibit 'C' prosecution), said accused offered to pay the bank the amount of P8,500.00 just to finish the case so that he can earn a living and get a new job." The rebuttal evidence of the prosecution was summarized by the trial court thus: ". . . , Benito Cuan, bank officer of the Department of Internal Affairs of Metrobank, testified that he, together with Valentino Elevado composed the investigating team tasked with the investigation of the cashier's check anomaly. Also present during the investigation were the following: Cristina Cubangay, Susan Trinidad, and Atty. Narciso Belasa. The investigation transpired at the PS Bank building, Ayala Avenue which housed the Department of Internal Affairs of Metrobank.

Upon the other hand, accused-appellant relied on denial as his defense; attributed to simple negligence the loss of the check which was admittedly in his custody and also repudiated his extrajudicial confession. The evidence for the defense was summarized by the trial court as follows: Defense: ". . . Abelardo Salonga testified that from 1973 to 1987, he was employed by Metrobank as an acting assistant cashier. In such capacity, he was in charge of managing money market placements and payments of maturing money placement investments. Before accused Abelardo Salonga may prepare and issue a cashier's check, he must first be instructed by his manager to do so. Then the prepared check will be back to the Accounting Section for

"Benito Cuan declared that upon orders of his superior, he was instructed to go to Metrobank plaza located along Buendia Avenue to invite accused Abelardo Salonga to an interview to shed light on the cashier's check anomaly. The said accused allegedly voluntarily acceded to the invitation and the two then proceeded to PS Bank building. No force or coercion was employed to procure the attendance of Abelardo Salonga in the said investigation. In the contrary, Abelardo Salonga voluntarily and of his own free will accompanied Benito Cuan to PS BANK Building. . . ." (Decision, Criminal Case No. 33127, pp. 2-7)." Giving full credence to the evidence of the prosecution, the trial court convicted accusedappellant of the crime charged. The Court of Appeals affirmed the trial court's Decision convicting accused-appellant, however, the appellate court ruled that the penalty imposed was erroneous and modified the same by increasing the penalty imposed to reclusion perpetua, The Court of Appeals disposed as follows: "WHEREFORE, pursuant to the above-quoted provisions of Rules on Criminal Procedure and Article VIII, Section 5 of the 1987 Constitution of the Philippines and finding Abelardo Salonga guilty beyond reasonable doubt of the crime of Qualified Theft through Falsification of Commercial Document, as defined and penalized under Article 48 in relation to Articles 309, 310 and 172, RPC, as amended with the penalty of reclusion perpetua, We certify this case to the Honorable Supreme Court for final determination and appropriate action (People vs. Demecillo, 186 SCRA 161, 164)." Having imposed reclusion perpetua on accused-appellant, the Court of Appeals as earlier noted, refrained from entering judgment and certified the case to the Supreme Court for review, in conformity with Section 13, Rule 124 of the Rules of Court. Hence, this appeal before this Court. In his Supplemental Brief, accused-appellant adopts the following first and second assigned errors found in the Appellant's Brief dated February 7, 1996 filed with the Court of Appeals, to wit: I THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE ALLEGED EXTRA JUDICIAL CONFESSION/ADMISSION (EXH. 'B') OF THE ACCUSED-APPELLANT ABELARDO SALONGA WHICH WAS OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO COUNSEL.

II THE TRIAL COURT ERRED IN RELYING ON OTHER EVIDENCE WHICH ARE NOT SUFFICIENT TO SUSTAIN CONVICTION BEYOND REASONABLE DOUBT FOR THEY ARE BASED ON SPECULATIONS, CONJECTURES AND PROBABILITIES. with the addition of the following third assigned error: III THE COURT OF APPEALS ERRED IN FINDING ACCUSED-APPELLANT ABELARDO SALONGA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT THROUGH FALSIFICATION OF COMMERCIAL DOCUMENT WITH THE PENALTY OF RECLUSION PERPETUA. The foregoing assignment of errors may be reformulated into these three issues or topics: (1) admissibility of accused-appellant's extra-judicial confession/admission; (2) credibility of the witnesses and sufficiency of the prosecution evidence; (3) propriety of the penalty imposed. First, we reject accused-appellant's argument that his "so-called extra-judicial confession/admission" taken on January 27, 1987 5 marked as Exhibit "B" is inadmissible in evidence on the ground that the waiver of his right to counsel was made without the assistance of counsel in violation of Section 20, Article IV of the 1973 Constitution which mandates that ". . . (a)ny 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. . . . Any confession obtained in violation of this section shall be inadmissible in evidence." Applying said provision of the 1973 Constitution, the Court in Morales, Jr. vs. Enrile 6 laid down the guidelines to be observed strictly by law enforcers during custodial investigation: SDEHCc "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." Clearly, the constitutional right to counsel as enunciated in the aforecited case may be invoked only by a person under custodial investigation for an offense. Accused-appellant's extrajudicial confession was properly admitted and considered by the trial court considering that when accused-appellant gave his statement he was not under custodial investigation. Custodial investigation is "the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that lends itself to elicit incriminating statements." 7 Indeed, custodial investigation refers to "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. 8 In this case, when Arthur Christy Mariano of the spot audit group discovered that there was a discrepancy in the proof sheet brought about by the issuance of a cashier's check numbered 013702 made payable to Firebrake Sales and Services in the amount of Thirty Six Thousand, Four Hundred Eighty pesos and Thirty centavos (P36,480.30), accused-appellant was summoned to appear before Valentino Elevado, Assistant Accountant, Department of Internal Affairs of Metrobank for questioning. It bears stressing that Elevado is not a police officer or law enforcer but a private person who was a bank officer. In the course of the interview, accused-appellant admitted having issued the subject cashier's check without any legitimate transaction, to his co-accused Amiel Garcia who was then encountering financial difficulties. He also admitted that out of the amount of the check, P8,500.00 went to his personal benefit. His admissions were reduced into writing and offered as Exhibit "B" by the prosecution. It is well-settled that the legal formalities required by the fundamental law of the land apply only to those extrajudicial confessions obtained during custodial investigation. 9

We are in accord with the findings of both the trial court and appellate court that the prosecution established beyond reasonable doubt the participation of accused-appellant in the crime charged. It was established that accused-appellant was the custodian of the blank Metrobank cashier's check which was processed and encashed. Arthur Christy Mariano of the spot audit group testified that the amount of accounts payable for October 23, 1986 as reflected in the proof sheet did not tally with the debit tickets of the same date, showing that the check was issued without any transaction. He also testified that after finding basic differences in the signature of bank manager Antonia Manuel appearing on the subject check with other specimens he conferred with the latter who told him that the signature appearing therein was not hers. Manager Antonia Manuel likewise testified that the signature appearing in the cashier's check varies with the way she signs. Significantly, in a letter dated September 15, 1987 to Atty. Severino S. Tabios of Metrobank marked as Exhibit "C", accused-appellant confirmed the statements in his extra-judicial confession and offered to return the amount of P8,500.00, portions of which we quote: "xxx xxx xxx. This is with reference to the bank's criminal case against me, which was filed through your lawyers and is now subject of arraignment at the at the Makati Fiscal's Office, documented as Case No. 87-3791. I will not expound further my involvement in this case as I have already admittingly confessed during the company's investigation. An involvement in which I could not still fathom and still repenting in having so, relinquishing all the years of stay in your company where I've learned a lot and reared my family. . . . . . . . The amount involve is only very minimal (involved is P8,500.00) of which I am willing to pay back the bank by January 1988." Furthermore, Assistant Accountant Valentino Elevado (Internal Affairs) who investigated the anomalies surrounding the issuance of the check testified that he personally interviewed accused-appellant regarding the matter. Benito T. Cuan testified that he was present during the entire interview and signing of the statement by accusedappellant and that no force or coercion was employed against accused-appellant during the interview. It is a well-entrenched rule that this Court will not interfere with the trial court's assessment of the credibility of the witnesses absent any indication or showing that the trial court has overlooked some material facts or gravely abused its discretion, especially where, as in this case, such assessment is affirmed by the Court of Appeals. 10 Verily, we find that the evidence for the prosecution deserves credence and that the same is sufficient for conviction. Lastly, we come to the correctness of the penalty imposed. The crime charged is Qualified Theft through Falsification of Commercial Document. The information alleged that the accused took P36,480.30 with grave abuse of confidence by forging the signature of officers

Second, in view of our ruling on the admissibility of the extra-judicial confession, we must likewise reject accused-appellant's contention that his conviction was based merely on speculations, possibilities, suspicions and conjectures. According to him, while it was established that as Assistant Cashier he had access to the preparation and releasing of Metrobank cashier's checks, there was no evidence that he was seen in the actual act of falsifying the check; releasing it; or encashing the same. He argues further that conspiracy with his co-accused in the commission of the offense was not proved clearly and convincingly. Evidently, accused-appellant's arguments are still premised on the inadmissibility of his written extra-judicial confession which we have already affirmed as admissible. As mentioned earlier, accused-appellant admitted in said extra-judicial confession that he issued the subject cashier's check without a legitimate transaction to Amiel Garcia; that his co-conspirators were Garcia and Pangilinan; and that he got a share of P8,500.00 from the sum encashed.

authorized to sign the subject check and had the check deposited in the account of Firebrake Sales and Services, a fictitious payee without any legitimate transaction with Metrobank. Theft is qualified if it is committed with grave abuse of confidence. 11 The fact that accusedappellant as assistant cashier of Metrobank had custody of the aforesaid checks and had access not only in the preparation but also in the release of Metrobank cashier's checks suffices to designate the crime as qualified theft as he gravely abused the confidence reposed in him by the bank as assistant cashier. Since the value of the check is P38,480.30, the imposable penalty for the felony of theft is prision mayor in its minimum and medium periods and one year of each additional ten thousand pesos in accordance with Article 309, paragraph 1 of the Revised Penal Code. 12 However, under Article 310 of the Revised Penal Code, 13 the crime of qualified theft is punished by the penalties next higher by two (2) degrees than that specified in Article 309 of the Revised Penal Code. Two (2) degrees higher than prision mayor in its minimum and medium periods is reclusion temporal in its medium and maximum periods. In addition, forging the signatures of the bank officers authorized to sign the subject cashier's check was resorted to in order to obtain the sum of P36,480.30 for the benefit of the accused. As correctly held by the courts a quo, falsification of the subject cashier's check was a necessary means to commit the crime of qualified theft resulting in a complex crime. Hence, we apply Article 48 of the Revised Penal Code, which provides that, " . . . where an offense is a necessary means for committing the other, the penalty for the more serious crime in its maximum period shall be imposed." Considering that qualified Theft is more serious than falsification of bank notes or certificates which is punished under Article 166 (2) of the Revised Penal Code with prision mayor in its minimum period, 14 the correct penalty is fourteen (14) years and eight (8) months of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum. WHEREFORE, the decision of the Court of Appeals dated September 4, 1997 is hereby AFFIRMED with the MODIFICATION that the penalty is reduced to fourteen (14) years and eight (8) months of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum. SO ORDERED.

THIRD DIVISION [G.R. No. 86555. November 16, 1993.] PEOPLE OF THE PHILIPPINES, petitioner, vs. AUGUSTO MANZANO Y REYES, respondent.

The Solicitor General for plaintiff-appellee. Teofilo C. Abejo II, Counsel de officio for accused-appellant.

5.ID.; ID.; BUY-BUST OPERATIONS MUST BE EMPLOYED WITH SOLICITUDE; ALLEGED OPERATION IN CASE AT BAR, LAID OUT HAPHAZARDLY. While buy-bust operations have long been recognized as a valid means of apprehending peddlers of drugs, we also did caution, however, that the use of poseur-buyer is to be employed with solicitude being, as it is, easily susceptible to mistake, harassment, extortion and abuse. Considering the severity of the penalty imposed, it behooves the law enforcement agencies in its investigatorial work, the prosecution in its presentation and submission of the evidence, and the courts in its evaluation of the merits of the case, to exercise no less than the extreme care and professionalism demanded in these cases if we are to attain a good degree of success in our drive to curb the drug menace. Unfortunately, the buy-bust operation, assuming that it did take place in this particular instance, has appeared to have been laid out quite haphazardly. Instead of taking that cue for it to excel on its own, the prosecution regrettably has likewise exhibited a lukewarm stance. 6.REMEDIAL LAW; EVIDENCE; GUILT BEYOND REASONABLE DOUBT; NOT ESTABLISHED IN CASE AT BAR. The guilt of the accused must be proved beyond reasonable doubt. The prosecution, on its part, must rely on the strength of its own evidence and must not simply depend on the weakness of the defense. The slightest possibility of an innocent man being convicted for an offense he as never committed, let alone when no less than a capital punishment is imposed, would be far more dreadful than letting a guilty person go unpunished for a crime he may have perpetrated.

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; MAY NOT BE AVAILED WHERE AN ARRESTED PERSON SIGNS A BOOKING SHEET AND ARREST REPORT; REASON. (W)hen an arrested person signs a booking sheet and arrest report at a police station, he does not (thereby) admit the commission of an offense nor confess to any incriminating circumstance. The booking sheet is no more than a record of arrest and a statement on how the arrest is made. It is simply a police report, and it has no probative value as an extrajudicial statement of the person being detained. The signing by the accused of the booking sheet and arrest report is not a part of the custodial investigation which would otherwise require the presence of counsel to ensure the protection of the accused's constitutional rights. 2.CRIMINAL LAW; REPUBLIC ACT 6425, AS AMENDED; ILLEGAL SALE OF DANGEROUS DRUGS; PRESENTATION OF MARIJUANA, INITIALLY MATERIAL. In the prosecution of an accused for an illegal sale of prohibited drugs "what is (initially) material is . . . the presentation in court of the corpus delicti as evidence." The laboratory tests and the chemical microscopic examination, conducted by NBI Forensic Chemist Nova Gamosa, definitely reveal the contents of the plastic bags to be marijuana. The chemistry report, attested to by the forensic chemist, has undoubtedly established the corpus delicti of the crime. 3.ID.; ID.; ID.; ELEMENTS. In any criminal prosecution, it would be imperative to establish the elements of the offense; viz: (1) That the accused had sold and delivered a prohibited drug to another; and (2) That he knew that what he had sold and delivered was a dangerous drug. 4.ID.; ID.; ID.; TERM "DELIVER," DEFINED. Section (2) (f), Article I of the Republic Act No. 6425, as amended, defines the term "deliver," the offense that is charged in the information, as ". . . a person's act of knowingly passing a dangerous drug to another personally or otherwise, and by any means, with or without consideration."

DECISION

VITUG, J p: An information filed on 05 September 1983 before the Regional Trial Court of Manila, charges ". . . AUGUSTO MANZANO Y REYES (with) Violation of Section 4, Article II in relation to Section 2 (i) Article I of Republic Act No. 6425, as amended by P.D. 44, as further amended by P.D. 1675, committed as follows: That on about September 2, 1983, in the City of Manila, Philippines, the said accused, not being authorized by law to sell, deliver, distribute or transport to another any prohibited drug, did then and there willfully and unlawfully sell and deliver for monetary consideration seven (7) tea-bag size plastic containing marijuana flowering tops at P5.00 per tea bag, which is a prohibited drug."

The trial of the case was originally presided over by Hon. Oscar C. Fernandez. When Hon. Romeo J. Callejo assumed the post of Judge Fernandez, he promptly ordered the Court Stenographic Reporters to submit their transcripts of stenographic notes. To his dismay, however, discrepancies were discovered in the transcripts; the transcriptions submitted by one Mercedes Velasquez were incomprehensible; and no stenographic notes were apparently taken during the testimony of defense witness Leonardo Quiambao. Upon motion of the accused's counsel, the incumbent judge ordered the retaking of the testimonies of Pat. Gaudencio Quebuyen and defense witness Leonardo Quiambao and the cross-examination of Pat. Paterno Banawel. Additional documentary evidence was likewise admitted. On 02 October 1987, the court a quo, following the formal submission of evidence, rendered judgment, finding the accused guilty of the crime charged and sentencing him, thus "WHEREFORE, judgment is hereby rendered finding the Accused Augusto Manzano y Reyes, guilty beyond reasonable doubt, as principal, for the crime of violation of Section 4 Article II in relation to Section 2 (e)(i) of Republic Act 6425, as amended and hereby sentences him to the penalty of RECLUSION PERPETUA, with accessory penalties of the law and to pay a fine of P25,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs of the suit. The marijuana subject matter of this case is hereby declared forfeited in favor of the government. The Accused shall be credited for the entire period of his detention during the pendency of this case provided that he undertook in writing, to abide by and comply strictly with the rules and regulations of the City Jail of Manila." In this appeal, the accused claims that "THE LOWER COURT (HAS) GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME CHARGED NOTWITHSTANDING THE FOLLOWING: (a)Inadmissibility of evidence obtained in violation of the accused's rights under the Constitution(; and) (b)Proof of guilt beyond reasonable doubt has not been adequately, positively and convincingly established." The trial court, in convicting the accused-appellant, relied, in main, on the evidence for the prosecution, thus

The Drug Enforcement Section of the Western Police District received information that the accused was engaged in the sale of marijuana. On 02 September 1983, a "trial-buy" operation was conducted by the law enforcement operatives. At five o'clock that afternoon, a civilian poseur-buyer was able to purchase from the accused dried flowering tops of suspected marijuana with cigarette rolling papers contained in three (3) tea-bag sized plastic bags. Each bag sold for P5.00. No arrest was made. At seven o'clock in the evening of the same day, however, a "buy-bust" operation, this time conducted by police officers Sgt. Gaudencio Quebuyen, Pat. Rolando Anza, Pat. Paterno Banawel, Pat. Bernabe Yokingco and Pat. Eriberto Alameda, with Rebecca Avila Reyes, a civilian informer, as poseur-buyer, was set into motion. The team was so positioned as to have a clear view of the transaction that was to take place near an electric post. Not long after, the poseur-buyer gave the accused four (4) P5.00 marked bills. The accused left; moments later, he returned and handed over to the poseurbuyer four (4) plastic bags, tea-bag size, containing marijuana flowering tops and pieces of white rolling paper. Forthwith, the informer gave the pre-arranged signal (by scratching her head). The team promptly moved in and arrested the accused. Only one of the P5.00 marked bills was recovered from him. Accused-appellant firstly anchors his assigned error on the fact that he has been "investigated, interrogated and made to sign an accomplished booking sheet and arrest report without the benefit of counsel." 1 The contention is without merit. This Court has already emphasized that "(w)hen an arrested person signs a booking sheet and arrest report at a police station, he does not (thereby) admit the commission of an offense nor confess to any incriminating circumstance." 2 The booking sheet is no more than a record of arrest and a statement on how the arrest is made. It is simply a police report, and it has no probative value as an extrajudicial statement of the person being detained. 3 The signing by the accused of the booking sheet and arrest report is not a part of the custodial investigation which would otherwise require the presence of counsel to ensure the protection of the accused's constitutional rights. 4 The appellant's plea of innocence on the basis of reasonable doubt, however, deserves serious consideration. In the prosecution of an accused for an illegal sale of prohibited drugs "what is (initially) material is . . . the presentation in court of the corpus delicti as evidence." 5 The laboratory tests and the chemical microscopic examination, conducted by NBI Forensic Chemist Neva Gamosa, definitely reveal the contents of the plastic bags to be marijuana. 6 The chemistry report, attested to by the forensic chemist, has undoubtedly established the corpus delicti of the crime. 7 The other question is whether or not the prosecution has been able to prove the fact of sale and delivery of the prohibited drug by the accused, a matter that must likewise be established beyond reasonable doubt. 8

In any criminal prosecution, it would be imperative to establish the elements of the offense; viz: (1)That the accused had sold and delivered a prohibited drug to another; and (2)That he knew that what he had sold and delivered was a dangerous drug. 9 A tedious and conscientious effort has been made to evaluate the evidence presented by the prosecution; the results every time, however, appear to yield more questions than answers to a number of concerns that has bewildered the Court. First. The prosecution witnesses could not agree on the number of marijuana tea bags taken from the accused. Patrolman Quibuyen 10 testified that three bags were taken from the accused during the buy-bust operation. On the other hand, Patrolman Banawel 11 claimed that four marijuana bags were sold by the accused to the informer. Second. The buy-bust team was supposed to be composed of six members: five members of the police force and a civilian informer. Yet, the name of a sixth police officer kept on cropping up that of Patrolman Borlongan. 12 No effort was made to clarify who this Patrolman Borlongan is. Third. Patrolman Quebuyen 13 testified that only the accused was arrested and that defense witness Leonardo Quiambao (who claimed to have likewise been arrested together with the accused) was not present at the place of the incident. According, however, to Patrolman Anza, 14 the accused was seen with a companion who, in fact, was chased by the police officers. This conflicting versions given by the prosecution itself, again, were not explained. More importantly, the prosecution has missed putting on record any evidence to indicate that the tea bags, supposedly delivered to the poseur-buyer, had beenknown by the accused to contain dangerous drugs. Even the information itself has failed to allege this fact. 15 Section (2)(f), Article I of Republic Act No. 6425, as amended, defines the term "deliver," the offense that is charged in the information, as ". . . a person's act of knowingly passing a dangerous drug to another personally or otherwise, and by any means, with or without consideration." Given all the above, it is readily discernible that the testimony of the poseur-buyer would have been most vital to the prosecution's case. 16 Yet, the prosecution did not even bother to have her take the witness stand. A final remark on the buy-bust operation that simply cannot escape one's attention. The prosecution sought to prove that the accused left the place of the transaction for a few minutes and entered an alleyway to get the marijuana tea bags from an unknown supplier. No attempt was made to find out who this person was, either before or after the accused was apprehended. Then, while it was asserted by the prosecution that the informer gave the

accused four P5.00-marked bills, only one P5.00-marked bill was recovered from the latter when he was arrested. The three other P5.00-marked bills were not accounted for. Too much, indeed, has been left to conjecture. While buy-bust operations have long been recognized as valid means of apprehending peddlers of drugs, 17 we also did caution, however, that the user of poseur-buyer is to be employed with solicitude being, as it is, easily susceptible to mistake, harassment, extortion and abuse.18 Considering the severity of the penalty imposed, it behooves the law enforcement agencies in its investigatorial work, the prosecution in its presentation and submission of the evidence, 19 and the courts in its evaluation of the merits of the case, to exercise no less than the extreme care and professionalism demanded in these cases if we are to attain a good degree of success in our drive to curb the drug menace. Unfortunately, the buy-bust operation, assuming that it did take place in this particular instance, has appeared to have been laid out quite haphazardly. Instead of taking that cue for it to excel on its own, the prosecution regrettably has likewise exhibited a lukewarm stance. The rule is clear: The guilt of the accused must be proved beyond reasonable doubt. 20 The prosecution, on its part, must rely on the strength of its own evidence and must not simply depend on the weakness of the defense. The slightest possibility of an innocent man being convicted for an offense he has never committed, let alone when no less than a capital punishment is imposed, would be far more dreadful than letting a guilty person go unpunished for a crime he may have perpetrated. cdll WHEREFORE, the decision of the trial court is REVERSED and SET ASIDE and the accused is hereby ACQUITTED of the offense charged. SO ORDERED

EN BANC [G.R. No. 145566. March 9, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. DINDO "BEBOT" MOJELLO, appellant.

On January 21, 1999, the trial court rendered judgment finding appellant guilty beyond reasonable doubt of the crime of rape with homicide, and sentencing him to suffer the death penalty. From the facts found by the court a quo, it appears that on December 15, 1996, at or around 9:00 p.m., Rogelio Rayco was having some drinks with a group which included Roger Capacito and his wife and the spouses Borah and Arsolin Illustrismo at the Capacito residence located at Barangay Talisay, Sta. Fe, Cebu. 3 Rogelio Rayco left the group to go home about an hour later. On his way home, he saw his niece, Lenlen Rayco, with appellant Dindo Mojello, a nephew of Roger Capacito, walking together some thirty meters away towards the direction of Sitio Kota. 4 Since he was used to seeing them together on other occasions, he did not find anything strange about this. He proceeded to his house. 5 On December 16, 1996, between 5:00 to 6:00 a.m., the Rayco family was informed that the body of Lenlen was found at the seashore of Sitio Kota. Rogelio Rayco immediately proceeded to the site and saw the lifeless, naked and bruised body of his niece. Rogelio was devastated by what he saw. A remorse of conscience enveloped him for his failure to protect his niece. He even attempted to take his own life several days after the incident. 6 Appellant was arrested at Bantayan while attempting to board a motor launch bound for Cadiz City. On an investigation conducted by SPO2 Wilfredo Giducos, he admitted that he was the perpetrator of the dastardly deed. Appellant was assisted by Atty. Isaias Giduquio during his custodial interrogation. His confession was witnessed by Barangay Captains Wilfredo Batobalonos and Manolo Landao. Batobalonos testified that after it was executed, the contents of the document were read to appellant who later on voluntarily signed it. 7 Appellant's extrajudicial confession was sworn before Judge Cornelio T. Jaca of the Municipal Circuit Trial Court (MCTC) of Sta. Fe-Bantayan. 8 On December 21, 1996, an autopsy was conducted on the victim's cadaver by Dr. Nestor Sator of the Medico-Legal Branch of the PNP Crime Laboratory, Region VII. 9 Dr. Sator testified that the swelling of the labia majora and hymenal lacerations positively indicate that the victim was raped. 10 He observed that froth in the lungs of the victim and contusions on her neck show that she was strangled and died of asphyxia. 11 He indicated the cause of death as cardio-respiratory arrest due to asphyxia by strangulation and physical injuries to the head and the trunk. 12 In this automatic review, appellant raises two issues: whether the extrajudicial confession executed by appellant is admissible in evidence; and whether appellant is guilty beyond reasonable doubt of the crime of rape with homicide. We now resolve.

DECISION

YNARES-SANTIAGO, J p: On automatic review is a decision of the Regional Trial Court (RTC) of Bogo, Cebu, Branch 61, finding appellant Dindo "Bebot" Mojello guilty beyond reasonable doubt of the crime of rape with homicide defined and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, and sentencing him to the supreme penalty of death. 1 Appellant Dindo Mojello, alias "Bebot" was charged with the crime of rape with homicide in an Information dated May 22, 1997, as follows: 2 That on the 15th day of December 1996, at about 11:00 oclock in the evening, at Sitio Kota, Barangay Talisay, Municipality of Santa Fe, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd design and by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously succeed in having carnal knowledge with Lenlen Rayco under twelve (12) years of age and with mental deficiency, against her will and consent, and by reason and/or on the occasion thereof, purposely to conceal the most brutal act and in pursuance of his criminal design, the above-named accused, did then and there willfully, unlawfully and feloniously with intent to kill, treacherously and employing personal violence, attack, assault and kill the victim Lenlen Rayco, thereby inflicting upon the victim wounds on the different parts of her body which caused her death. CONTRARY TO LAW. Appellant was arraigned on July 24, 1997, entering a plea of "not guilty." Trial followed.

Appellant alleges that the lower court gravely erred in admitting in evidence the alleged extrajudicial confession which he executed on December 23, 1996. In his Brief, appellant avers that the confession which he executed was not freely, intelligently and voluntarily entered into. 13 He argues that he was not knowingly and intelligently apprised of his constitutional rights before the confession was taken from him. 14 Hence, his confession, and admissions made therein, should be deemed inadmissible in evidence, under the fruit of the poisonous tree doctrine. We are not convinced. At the core of the instant case is the application of the law on custodial investigation enshrined in Article III, Section 12, paragraph 1 of the Constitution, which provides: 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. The above provision in the fundamental Charter embodies what jurisprudence has termed as "Miranda rights" stemming from the landmark decision of the United States Supreme Court, Miranda v. Arizona. 15 It has been the linchpin of the modern Bill of Rights, and the ultimate refuge of individuals against the coercive power of the State. The Miranda doctrine requires that: (a) any person under custodial investigation has the right to remain silent; (b) anything he says can and will be used against him in a court of law; (c) he has the right to talk to an attorney before being questioned and to have his counsel present when being questioned; and (d) if he cannot afford an attorney, one will be provided before any questioning if he so desires. In the Philippines, the right to counsel espoused in the Miranda doctrine was based on the leading case of People v. Galit 16 and Morales, Jr. v. Enrile, 17 rulings subsequently incorporated into the present Constitution. The Miranda doctrine under the 1987 Charter took on a modified form where the right to counsel was specifically qualified to mean competent and independent counsel preferably of the suspects own choice. Waiver of the right to counsel likewise provided for stricter requirements compared to its American counterpart; it must be done in writing, and in the presence of counsel. Verily, it may be observed that the Philippine law on custodial investigation has evolved to provide for more stringent standards than what was originally laid out inMiranda v. Arizona. The purpose of the constitutional limitations on police interrogation as the process shifts from the investigatory to the accusatory seems to be to accord even the lowliest and most

despicable criminal suspects a measure of dignity and respect. The main focus is the suspect, and the underlying mission of custodial investigation to elicit a confession. The extrajudicial confession executed by appellant on December 23, 1996, applying Art. III, Sec. 12, par. 1 of the Constitution in relation to Rep. Act No. 7438, Sec. 2 complies with the strict constitutional requirements on the right to counsel. In other words, the extrajudicial confession of the appellant is valid and therefore admissible in evidence. As correctly pointed out by the Solicitor General, appellant was undoubtedly apprised of his Miranda rights under the Constitution. 18 The court a quo observed that the confession itself expressly states that the investigating officers informed him of such rights. 19 As further proof of the same, Atty. Isaias Giduquio testified that while he was attending a Sangguniang Bayan session, he was requested by the Chief of Police of Sta. Fe to assist appellant. 20 Appellant manifested on record his desire to have Atty. Giduquio as his counsel, with the latter categorically stating that before the investigation was conducted and appellants statement taken, he advised appellant of his constitutional rights. Atty. Giduquio even told appellant to answer only the questions he understood freely and not to do so if he was not sure of his answer. 21 Atty. Giduquio represented appellant during the initial stages of the trial of the present case. Atty. Giduquio was a competent and independent counsel of appellant within the contemplation of the Constitution. No evidence was presented to negate his competence and independence in representing appellant during the custodial investigation. Moreover, appellant manifested for the record that Atty. Giduquio was his choice of counsel during the custodial proceedings. The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise the tempo of custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest.22 We ruled in People v. Continente 23 that while the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel or where the preferred lawyer is not available is naturally lodged in the police investigators, the suspect has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection against the counsels appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer. 24

The right to counsel at all times is intended to preclude the slightest coercion as would lead the accused to admit something false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth. In People v. Dumalahay, 25 this Court held: The sworn confessions of the three accused show that they were properly apprised of their right to remain silent and right to counsel, in accordance with the constitutional guarantee. At 8:00 in the morning of the next day, the three accused proceeded to the office of Atty. Rexel Pacuribot, Clerk of Court of the Regional Trial Court of Cagayan de Oro City. All of the three accused, still accompanied by Atty. Ubay-ubay, subscribed and swore to their respective written confessions. Before administering the oaths, Atty. Pacuribot reminded the three accused of their constitutional rights under the Miranda doctrine and verified that their statements were voluntarily given. Atty. Pacuribot also translated the contents of each confession in the Visayan dialect, to ensure that each accused understood the same before signing it. aIcSED No ill-motive was imputed on these two lawyers to testify falsely against the accused. Their participation in these cases merely involved the performance of their legal duties as officers of the court. Accused-appellant Dumalahays allegation to the contrary, being self-serving, cannot prevail over the testimonies of these impartial and disinterested witnesses. More importantly, the confessions are replete with details which could possibly be supplied only by the accused, reflecting spontaneity and coherence which psychologically cannot be associated with a mind to which violence and torture have been applied. These factors are clear indicia that the confessions were voluntarily given. When the details narrated in an extrajudicial confession are such that they could not have been concocted by one who did not take part in the acts narrated, where the claim of maltreatment in the extraction of the confession is unsubstantiated and where abundant evidence exists showing that the statement was voluntarily executed, the confession is admissible against the declarant. There is greater reason for finding a confession to be voluntary where it is corroborated by evidence aliunde which dovetails with the essential facts contained in such confession. The confessions dovetail in all their material respects. Each of the accused gave the same detailed narration of the manner by which

Layagon and Escalante were killed. This clearly shows that their confessions could not have been contrived. Surely, the three accused could not have given such identical accounts of their participation and culpability in the crime were it not the truth. Concededly, the December 17, 1996 custodial investigation upon appellant's apprehension by the police authorities violated the Miranda doctrine on two grounds: (1) no counsel was present; and (2) improper waiver of the right to counsel as it was not made in writing and in the presence of counsel. However, the December 23, 1996 custodial investigation which elicited the appellants confession should nevertheless be upheld for having complied with Art. III, Sec. 12, par. 1. Even though improper interrogation methods were used at the outset, there is still a possibility of obtaining a legally valid confession later on by properly interrogating the subject under different conditions and circumstances than those which prevailed originally. 26 The records of this case clearly reflect that the appellant freely, voluntarily and intelligently entered into the extrajudicial confession in full compliance with theMiranda doctrine under Art. III, Sec. 12, par. 1 of the Constitution in relation to Rep. Act No. 7438, Sec. 2. SPO2 Wilfredo Abello Giducos, prior to conducting his investigation, explained to appellant his constitutional rights in the Visayan dialect, notably Cebuano, a language known to the appellant, viz: 27 PASIUNA (PRELIMINARY): Ikaw karon Dindo Mojello ubos sa usa ka inbestigasyon diin ikaw gituhon nga adunay kalabutan sa kamatayon ni LENLEN RAYCO ug nahitabong paglugos kaniya. Ubos sa atong Batakang Balaod, ikaw adunay katungod sa pagpakahilom ning maong inbestigasyon karon kanimo ug aduna usab ikaw ug katungod nga katabangan ug usa ka abogado nga motabang karon kanimo ning maong inbestigasyon. Imo ba nasabtan kining tanan? (DINDO MOJELLO, you are hereby reminded that you are under investigation in which you were suspected about the death and raping of LENLEN RAYCO. Under the Constitution you have the right to remain silent about this investigation on you now and you have also the right to have counsel of your own choice to assist you in this investigation now. Have you understood everything?) TUBAG (ANSWER): Oo, sir. (Yes, sir.)

PANGUTANA (QUESTION): Human ikaw sayri sa imong katungod ubos sa atong Batakang Balaod sa pagpakahilom, gusto ba nimo nga ipadayon nato kining inbestigasyon karon kanimo? (After you have been apprised of your rights under our Constitution to remain silent, do you want to proceed this investigation on you now?) TUBAG (QUESTION): Oo, sir. (Yes, sir.) PANGUTANA (QUESTION): Gusto ba usab nimo ug abogado nga makatabang kanimo ning maong inbestigasyon? (Do you want counsel to assist you in this said investigation?) TUBAG (ANSWER): Oo, sir. (Yes, sir.) APPEARANCE: Atty. Isaias Giduquio is appearing as counsel of the affiant. PANGUTANA (QUESTION): Ako usab ikaw pahinumdoman nga unsa man ang imo isulti karon dinhi magamit pabor o batok kanimo sa Hukmanan, nasabtan ba nimo kining tanan mo nga mga katungod nga walay naghulga, nagpugos o nagdagmal kanimo o nagsaad ba ug ganti sa kaulihan? (You are also hereby reminded that all your statements now will be used as evidence against or in your favor in any court of justice. Have you understood all your rights with nobody coercing or forcing you, or mauling or promising a reward in the end?) TUBAG (ANSWER):

Oo (Yes.) PANGUTANA (QUESTION): Andam ka nga mohatag ug libre ug boluntaryo nga pamahayag? (Are you now ready to give your free and voluntary statement?) TUBAG (ANSWER): Oo, sir. (Yes, sir.) xxx xxx xxx (START OF CUSTODIAL INVESTIGATION) xxx xxx xxx The trial court observed that as to the confession of appellant, he was fully apprised of his constitutional rights to remain silent and his right to counsel, as contained in such confession. 28 Appellant was properly assisted by Atty. Isaias Giduquio. The extrajudicial confession of appellant was subscribed and sworn to before Judge Cornelio T. Jaca, Municipal Judge of Medellin-Daanbantayan and acting Judge of MCTC Sta. Fe-Bantayan and Madredijos. Judge Jaca declared that he explained to the appellant the contents of the extrajudicial confession and asked if he understood it. He subsequently acknowledged that when appellant subscribed to his statement, Atty. Giduquio, witness Batobalonos and his Clerk of Court were present as well as other people. 29 The extrajudicial confession executed by the appellant followed the rigid requirements of the Miranda doctrine; consequently, it is admissible as evidence. The lower court was correct in giving credence to the extrajudicial confession of the appellant. On cross-examination, appellant Mojello claimed his life was threatened, thereby inducing him to execute an extrajudicial confession, yet he neither filed any case against the person who threatened him, nor did he report this to his counsel. He further claimed that he did not understand the contents of the confession which was read in the Visayan dialect, yet he admits that he uses the Visayan dialect in his daily discourse. In People v. Pia, 30 we held that where appellants did not present evidence of compulsion or duress or violence on their persons; where they failed to complain to officers who administered the oaths; where they did not institute any criminal or administrative action against their alleged maltreatment; where there appears no marks of violence on their bodies and where they did not have themselves examined by a reputable physician to buttress their

claim, all these should be considered as factors indicating voluntariness of confessions. The failure of the appellant to complain to the swearing officer or to file charges against the persons who allegedly maltreated him, although he had all the chances to do so, manifests voluntariness in the execution of his confessions. 31 To hold otherwise is to facilitate the retraction of his statements at the mere allegation of threat, torture, coercion, intimidation or inducement, without any proof whatsoever. People v. Enanoria further declared that another indicium of voluntariness is the disclosure of details in the confession which could have been known only to the declarant. 32 The confessant bears the burden of proof that his confession is tainted with duress, compulsion or coercion by substantiating his claim with independent evidence other than his own self-serving claims that the admissions in his affidavit are untrue and unwillingly executed. 33 Bare assertions will certainly not suffice to overturn the presumption. 34 The test for determining if a confession is voluntary is whether the defendant's will was overborne at the time he confessed. 35 In cases where the Miranda warnings have been given, the test of voluntariness should be subsequently applied in order to determine the probative weight of the confession. Accordingly, the presumption of voluntariness of appellants confession remains unrebutted by his failure to present independent evidence that the same was coerced. It cannot be gainsaid that the constitutional duty of law enforcement officers is to ensure that a suspect has been properly apprised of his Miranda rights, including the right to counsel. It is in the paramount public interest that the foundation of an effective administration of criminal justice relies on the faithful adherence to theMiranda doctrine. Compliance with Art. III, Sec. 12, par. 1 by police authorities is central to the criminal justice system; Miranda rights must in every case be respected, without exception.

to no other conclusion than that of appellants guilt for the rape of Lenlen Rayco on December 15, 1996. It passes the test of moral certainty and must therefore be sustained. However, the records do not adequately show that appellant admitted to killing the victim. Neither is the circumstantial evidence sufficient to establish that by reason or on the occasion of the rape a homicide was committed by the appellant. The lack of physical evidence further precludes us from connecting the slaying of the victim to her sexual assault, given the quantum of proof required by law for conviction. No estimated time of death was given, which is essential in making a connection with the appellant's story that he went home after a night of drinking. The time when he and the victim were headed towards the seashore at or about 9:00 to 10:00 p.m. of December 15, 1996 until the time when the victims lifeless body was found at or about 4:00 a.m. of December 16, 1996 had a time variance of between six to seven hours. Although the circumstances may point to the appellant as the most likely perpetrator of the homicide, the same do not constitute an unbroken chain of events which would lead us to a reasonable conclusion that appellant was guilty of killing the victim. In other words, there are gaps in the reconstruction of facts and inferences surrounding the death of Lenlen. Appellant only admitted to boxing the victim when she shouted, then hurriedly ran away. The cause of death of Lenlen was cardio-respiratory attack due to asphyxiation and physical injuries; she was strangled to death and left on the seashore as manifested by the frothing in her lungs. No physical, scientific or DNA evidence was presented to pinpoint appellant as the person who killed the victim. Fingerprints, if available, would have determined who committed the homicide. Thus, appellant cannot be convicted of rape with homicide considering the insufficiency of evidence which thereby created a reasonable doubt as to his guilt for the said special complex crime. Appellant should instead be held liable only for the crime of statutory rape, the victim Lenlen Rayco being then eleven years old. The sexual assault was necessarily included in the special complex crime charged in the Information dated May 22, 1997. The trial court should have awarded damages to the heirs of the victim. Civil indemnity in the amount of P50,000.00 is awarded upon the finding of the fact of rape. 36Moral damages in the amount of P50,000.00 may likewise be given to the heirs of the victim without need of proof in accordance with current jurisprudence. 37 WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Bogo, Cebu, Branch 61 in Criminal Case No. B-00224 is AFFIRMED with MODIFICATION. Appellant Dindo Mojello is found guilty beyond reasonable doubt of the crime of statutory rape and sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay the heirs of the victim, Lenlen Rayco, P50,000.00 as civil indemnity and P50,000.00 as moral damages. Costs de oficio. SO ORDERED.

Thus, the confession, having strictly complied with the constitutional requirements under Art. III, Sec. 12, par. 1, is deemed admissible in evidence against appellant. It follows that the admission of culpability made therein is admissible. It is therefore not '"fruit of the poisonous tree" since the tree itself is not poisonous. Appellant also alleges that the lower court gravely erred in holding him guilty beyond reasonable doubt of the crime of rape with homicide, thereby sentencing him to suffer the death penalty despite the glaring insufficiency of circumstantial evidence against him. In his Brief, he argues that the evidence against him is insufficient to warrant his conviction of rape with homicide. The categorical admission of the appellant to the crime of rape, coupled with the corpus delicti as established by the Medico-Legal Report and the testimony of Rogelio Rayco, leads us

FIRST DIVISION [G.R. No. 109143. October 11, 2000.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO G. TALIMAN, BASILIO M. BAYBAYAN, AMADO B. BELANO, DANILO OBENIA and RUFINO VALERA, JR., accused.

PEDRO G. TALIMAN, BASILIO M. BAYBAYAN and AMADO B. BELANO, accused-appellants.

2.ID.; EVIDENCE; ADMISSIBILITY; EXTRAJUDICIAL CONFESSION; A MAYOR IS NOT AN INDEPENDENT COUNSEL FOR ACCUSED DURING CUSTODIAL INVESTIGATION; CASE AT BAR. Mayor Pardo cannot be considered as an independent counsel for accused during their custodial investigation. In People v. Culala, we held that the extrajudicial confession of the accused-appellant was inadmissible as he was "assisted" by the incumbent municipal attorney. In People vs. Bandula, we held that a municipal attorney could not be an independent counsel as required by the Constitution. We reasoned that as legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order. It is therefore seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Besides, lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are suspects. In many areas, even less obvious than that obtaining in the present case, the relationship between lawyers and law enforcement authorities can be symbiotic. 3.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; WAIVER THEREOF MUST BE IN WRITING AND IN THE PRESENCE OF COUNSEL; CASE AT BAR. Even assuming that the right to counsel was orally waived during custodial investigation, still the defect was not cured. The Constitution expressly provides that the waiver must be in writing and in the presence of counsel. This, accused-appellants did not do. 4.REMEDIAL LAW; EVIDENCE; PROOF BEYOND REASONABLE DOUBT; SUFFICIENCY OF EVIDENCE TO CONVICT THE ACCUSED BY CIRCUMSTANTIAL EVIDENCE; CASE AT BAR. While we agree that the extrajudicial statements of the accused are inadmissible in evidence, we find that there is still sufficient evidence to convict. While no one saw the actual killing of Renato, circumstantial evidence proved its commission. Resort to circumstantial evidence is essential, when to insist on direct testimony would set felons free. . . . In the present case, we find the circumstances provided under Rule 133, Section 4 of the 1989 Revised Rules on Evidence. 5.CRIMINAL LAW; REVISED PENAL CODE; QUALIFYING CIRCUMSTANCES; TREACHERY; NOT PRESENT WHERE THE MANNER OF KILLING WAS NOT SHOWN; CASE AT BAR. However, while Renato's death in the hands of accused-appellants was proven, we find that the manner of killing was not so evidenced. There was no showing of treachery. Treachery exists when the accused employs means, methods, and forms which directly and specially ensure its execution, without risk to himself arising from the defense which the offended party might make. Treachery, like the crime itself, must be proved beyond reasonable doubt. In the absence of proof as to how the killing was perpetrated, the crime committed was homicide. SAHITC 6.CIVIL LAW; DAMAGES; ACTUAL DAMAGES; CLAIM THEREFOR MUST BE SUPPORTED BY RECEIPTS; CASE AT BAR. The trial court awarded the heirs of Renato Cuao one million forty six thousand pesos (P1,046,000.00) as actual damages for unrealized income. We delete this award as it is not supported by receipts. The testimony of Renato's father as to how much Renato was earning at the time of his death is self-serving and hearsay. The trial court's award of actual damages for funeral expenses in the amount of ten thousand (P10,000.00) pesos is

The Solicitor General for plaintiff-appellee. Ariel J.B. Arias for accused-appellant.

SYNOPSIS The appellants assailed the trial court's decision finding them guilty beyond reasonable doubt of murder. At the outset, the Supreme Court held that the benefit of appeal can only be accorded appellants who were arraigned and not the two other accused who remained at large. On the merits, the Supreme Court, however upheld the appellants' conviction, for while their extrajudicial confessions were inadmissible as they were "assisted" by a mayor who could not be considered an independent counsel as required by the Constitution, circumstances provided under Rule 133, Section 4 of the 1989 Revised Rules on Evidence, were attendant and they sufficiently proved the commission of the crime by the appellants.

SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL; REMEDY ACCORDED ONLY TO ACCUSED WHO HAD BEEN ARRAIGNED; CASE AT BAR. We state at the onset that while counsel for accused represents all five accused in this appeal, the benefit of this appeal is only accorded accused-appellants Pedro G. Taliman, Basilio M. Baybayan and Amado B. Belano. The other two accused Danilo Obenia and Rufino Valera, Jr., were not arraigned. Thus, the trial court did not acquire jurisdiction over their persons. The rule on trial in absentia cannot apply to Danilo Obenia and Rufino Valera, Jr. In People v. Salas, the Court declared that one of the requisites for trial to proceed in absentia is that the accused had been arraigned.

likewise deleted. The claim is not supported by any receipt. The rule is that every pecuniary loss must be established by credible evidence before it may be awarded.

22, 90 inaasahan po namin ang iyong pakikipakaupira at inaasahan po namin na walang ibang makakaalam. "Okey salamat sigi po maghihintay kami alas 4:00 mamaya.

DECISION

PARDO, J p: The case is an appeal from the decision of the Regional Trial Court, Camarines Norte, Branch 40, Daet 1 finding accused Pedro Taliman, Basilio Baybayan and Amado Belano guilty beyond reasonable doubt of murder, sentencing each of them to reclusion perpetua and ordering them to pay the heirs of the victim, Renato Cuao, indemnity of fifty thousand pesos (P50,000.00), funeral expenses of ten thousand pesos (P10,000.00) and actual damages for unrealized income in the amount of one million forty six thousand pesos (P1,046,000.00). The trial court also ordered that alias warrants of arrest be issued against accused Danilo Obenia and Rufino Valera, Jr. who are at large. 2 We state the facts. The victim was Renato Cuao (hereinafter referred to as "Renato"). Prosecution witness Ernesto Lacson (hereinafter referred to as "Lacson") was the uncle and employer of Renato, who was the caretaker of his gravel and sand truck. 3 IAaCST On July 21, 1990, Renato came to see Lacson and informed him that armed and hooded persons 4 were asking for money amounting to six thousand pesos (P6,000.00). The amount was reduced to six hundred pesos (P600.00) and finally to two hundred pesos (P200.00). 5 On July 22, 1990, Lacson arrived home from church. His wife handed him a letter delivered to her by a child. In the letter, purportedly members of the N.P.A. demanded eight thousand pesos (P8,000.00) from him. 6 We quote the letter: 7 "Sayo TaTay Erning "Rebolusyonaryong pagbati sa yo/sa inyo layunin ng sulat kong ito upang ipahiwatig sa yo na ang pakikibaka pang kalawakang pakikibaka ay humihingi ng tulong sa iyo Tay "Erning" Siguro alam mo na ang aming pakay lalo na sa aming pangangailangan pinansyal upang magamit sa kilusan bigyan mo po kami ng halagang 8,000.00 at ito po ang aming inaasahan "okey" inaasahan ko po at maghihintay kami doon sa kabilang ilog papuntang nalisbitan dalhin mo ang "jeep" mo iyan ang aming palatandaan alas 4:00 p.m. July "MABUHAY ANG N.P.A."

" M E L C O G R O U P " K A B O N G

On the same day, at around eight o'clock in the morning (8:00 a.m.), Lacson instructed Renato to take his passenger jeep and to proceed to his "gold field" in Nalisbitan to get his collectibles from the field. This was the last time Lacson saw Renato alive. 8 Also on the same day, Lacson told his employee, 9 prosecution witness Elizer Obregon (hereinafter referred to as "Elizer"), to go to the crossing of Nalisbitan, 10 the place mentioned in the letter to investigate who the persons demanding money were. 11 Elizer complied and reached the place at around five o'clock in the afternoon (5:00 p.m.) of the same day. Upon reaching the place, Elizer saw Renato and spoke with him. In the vicinity, Elizer saw accused Basilio Baybayan, Pedro Taliman and Amado Belano. At that time, accused Sgt. Pedro Taliman and C1C Basilio M. Baybayan were members of the Camarines Norte

Constabulary/Integrated National Police Command. 12 Elizer saw two other civilians in their company. 13 Elizer then saw accused Pedro Taliman and Basilio Baybayan take Renato 14 to a hilltop, where he was guarded by accused who were armed. Elizer heard one of the accused say that Renato must be taken as "he must be acting as a lookout (for Lacson)." 15 Elizer then proceeded to Bagong Silang and reported to Lacson that Renato was taken by accused Pedro Taliman, Basilio Baybayan and Amado Belano. A custodial investigation was conducted. EcATDH On July 23, 1990, Attorney Nicolas V. Pardo was mayor of Labo, Camarines Norte. He went to the police station upon invitation of police corporal Cereno to "assist" accused during their custodial investigation. 16 Accused executed extrajudicial statements, confessing to the commission of the crime. It was during this custodial investigation that accused Basilio Baybayin confessed to prosecution witness Sgt. Bonifacio Argarin that he participated in the killing of Renato because Renato did not give them the money they were demanding. This confession was given without the assistance of counsel and was not reduced to writing. 17 On July 23, 1990, police authorities, accompanied by accused Basilio Baybayan went to the place indicated in a sketch prepared by accused Pedro Taliman. 18 It was in the place indicated that they found the cadaver of Renato. 19 This was the same place or hilltop where prosecution witness Elizer saw Renato being guarded. 20

"That on or about 5:00 o'clock in the afternoon of July 22, 1990, at Crossing of sitio Malisbitan, Brgy. Exiben, municipality of Labo, province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously, with deliberate intent to kill, with treachery, evident premeditation and taking advantage of superior strength, assault, attack, stab and shoot one RENATO CUAO alias LAPOY, thereby inflicting upon the latter gunshot wound and multiple stab wounds on the different parts of his body, and which injuries were the proximate cause of the death of said Renato Cuao alias Lapoy, to the damage and prejudice of the heirs of the victim. "CONTRARY TO LAW." 22 On February 26, 1991, accused Pedro G. Taliman, Basilio M. Baybayan and Amado B. Belano were arraigned. They pleaded "not guilty." 23 Accused Danilo Obenia 24and Rufino Valero, Jr. were not arraigned because they remained at large. On March 21, 1991, accused waived the pre-trial conference 25 and trial ensued. 26 On May 29, 1992, the trial court declared the case submitted for decision. 27 On September 24, 1992, the trial court rendered a decision, the decretal portion of which provides: "WHEREFORE, in view of the foregoing, the accused Pedro Taliman, Basilio Baybayan and Amado Delano are all found guilty beyond reasonable doubt of the crime of Murder as charged, and are hereby each sentence (sic) to suffer the penalty of reclusion perpetua (or life imprisonment) (sic). The accused are furthermore jointly and severally ordered to pay the heirs of the victim for his death the amount of fifty thousand pesos (P50,000.00) and for funeral expenses the amount of ten thousand (P10,000.00) pesos, and considering that the deceased victim was only 27 years old when killed and applying the formula (2/3 x [80-27] life expectancy of the American Table of Mortality, said deceased victim has still 44 years more to live were he not killed by the accused. Therefore, since he was employed and receiving monthly salary of P2,000.00 his unrealized income for the 44 more years of his life is P1,046,000.00 for which the accused likewise are jointly and severally ordered to pay.

On July 24, 1990, a medical officer of Labo, Camarines Norte issued a certificate of death of Renato Lacson Cuao, stating as cause of death, the following: 21 "Immediate cause:a. Irreversible shock due to massive hemorrhages "Antecedent cause:b. Internal and External secondary to "Underlying cause:c. Gunshot wound and multiple stab wounds." On December 18, 1990, Provincial Prosecutor Pascualita Duran-Cereno filed with the Regional Trial Court, Camarines Norte an information for murder against accused Pedro Taliman, Basilio Baybayan, Amado Belano, Danilo Obenia and Rufino Valera, Jr. alleging:

"Considering that accused Danilo Obenis and Rufino Valera, Jr., are still at large, let an alias Warrant of Arrest be issued against them. In the meantime, let the records of the case be archived and reinstated as soon as they are apprehended. "SO ORDERED." 28 On October 28, 1992, the decision was promulgated. 29 However, accused Basilio M. Baybayan was not present, 30 despite due notice. 31 On October 30, 1992, the trial court issued a warrant for the arrest of accused Basilio M. Baybayan. 32 The warrant of arrest was returned unserved as he could not be found. 33 On November 11, 1992, accused Pedro G. Taliman filed a notice of appeal with the trial court. 34 On May 26, 1993, we resolved to accept the appeal. 35 We state at the onset that while counsel for accused represents all five accused in this appeal, the benefit of this appeal is only accorded accused-appellants Pedro G. Taliman, Basilio M. Baybayan 36 and Amado B. Belano. The other two accused Danilo Obenia and Rufino Valera, Jr., were not arraigned. 37 Thus, the trial court did not acquire jurisdiction over their persons. The rule on trial in absentia cannot apply to Danilo Obenia and Rufino Valera, Jr. In People v. Salas, 38 the Court declared that one of the requisites for trial to proceed in absentia is that the accused had been arraigned. Now, the merits. Accused-appellants submit that the extra-judicial confessions on which the trial court relied were inadmissible in evidence because they were obtained in violation of their constitutional rights. 39 We agree with accused-appellants on this point. The extra-judicial statements alone cannot be a basis for conviction. Article III, Section 12 (1) of the Constitution provides: AEDCHc "Any person under custodial 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 (italics supplied)." Mayor Pardo cannot be considered as an independent counsel for accused during their custodial investigation. In People v. Culala, 40 we held that the extra-judicial confession of the accused-appellant was inadmissible as he was "assisted" by the incumbent municipal attorney. In People vs. Bandula, 41 we held that a municipal attorney could not be an independent counsel as required by the Constitution. We reasoned that as legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order. It is therefore seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Besides, lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are suspects. In many areas, even less obvious than that obtaining in the present case, the relationship between lawyers and law enforcement authorities can be symbiotic. 42 If in the aforecited cases, we disregarded the extra-judicial statements of the accused, how much more must we do so now, given that it was the mayor himself, and not just the provincial attorney, that assisted accused-appellants? Even assuming that the right to counsel was orally waived during custodial investigation, 43 still the defect was not cured. The Constitution expressly provides that the waiver must be in writing and in the presence of counsel. 44 This, accused-appellants did not do. However, while we agree that the extra-judicial statements of the accused are inadmissible in evidence, we find that there is still sufficient evidence to convict. While no one saw the actual killing of Renato, circumstantial evidence proved its commission. Resort to circumstantial evidence is essential, when to insist on direct testimony would set felons free. 45 Rule 133, Section 4 of the 1989 Revised Rules on Evidence provides: 46 "SEC. 4.Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction if: "(a)There is more than one circumstance;

"(b)The facts from which the inferences are derived are proven; and "(c)The combination of all the circumstances is such as to produce conviction beyond reasonable doubt." In the present case, we find the following circumstances attendant: First, Renato was last seen alive in the company of accused-appellants. This was the substance of Elizer's testimony. The trial court did not find reason not to believe him. Neither do we. It is the trial court and not this Court that had the opportunity to observe Elizer's manner of testifying, his furtive glances, his calmness, sighs or the scant or full realization of his oath. 47 The trial court's assessment of the credibility of witnesses is entitled to respect. 48 Second, accused-appellants, two other civilians, Renato and Elizer were the only persons present at the Nalisbitan crossing, on July 22, 1990, at five o'clock in the afternoon. The place and the time are significant. This was the very place, the very date and more or less the time of day indicated in the letter of demand that Lacson received. 49 While Renato's and Elizer's presence in the area was explained, the presence of accused-appellants in that area and during that crucial time can be only explained by the fact that accused-appellants were the very ones demanding money from Lacson. "Facts or circumstances which are not only consistent with the guilt of the accused but also inconsistent with his innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court." 50 Third, motive is apparent. Renato was first approached by accused-appellants with an oral demand. Renato relayed the demand to Lacson. 51 The oral demand was followed up with a written demand. 52 When Renato passed through the Nalisbitan crossing, he was driving Lacson's jeepney. This was the very jeepney indicated in the letter. The letter instructed Lacson to bring money and to drive a specific jeepney to Nalisbitan. Yet, when accused-appellants confronted Renato, he did not have the money they demanded. The fact that Renato was the driver of the jeepney indicated in the letter can explain accusedappellants' reason for killing him. This conclusion is supported by Elizer's testimony. We quote the pertinent portions: 53 "q.Now, you said you were requested by Mr. Lacson to proceed to that crossing of Nalisbitan for you to see the person who

was demanding money and identified themselves as members of NPA. Were you able to go to that place? a.Yes, sir. q.What time was that? a.I reached the place more or less 5:00 o'clock in the afternoon of that same date July 22, 1990, sir. q.What did you do when you reached that Nalisbitan Crossing? a.Upon reaching the place at the crossing of Nalisbitan I have talked with Renato Cuao who asked where I was going. I have not confided to him that I was doing surveillance work on the person demanding money from Ernesto Lacson and so I proceeded. I walked and upon reaching a point I have seen Basilio Naybayan in the company of two (2) civilians and I continued with my walk and ahead of them I saw Mr. Taliman with Belano and I did not notice that I was followed by Mr. Renato Cuao.

xxx xxx xxx a.I saw, sir, Renato Cuao was taken by Mr. Taliman and Belano, sir. xxx xxx xxx q.Now, when you go back taking the same route what did you see if any? a.When I was on my way back taking the same route my way was blocked by Belano and Taliman accompanied by civilian and inquired from me whether I was the driver of the jeep. q.What was your answer if any? a.I denied being the driver of the jeep, sir.

q.Why did you deny being the driver of the jeep? a.I denied being the driver of the jeep because I saw already Renato Cuao on top of the hill on a cut guarded by Baybayan with a civilian in their company, sir. xxx xxx xxx q.The question of this Court is why did you say that this Renato Cuao is being guarded? a.They are guarding Renato Cuao, sir, because that is the person they have conferred with to whom they have relayed the demand of money and he is the driver of the jeep. He is the one who pretended to be the driver of the jeep. xxx xxx xxx q.Now, when Amado Belano asked you whether you know Renato Cuao and you denied it, what more did Amado Belano ask you if any? a.Amado Belano further made a statement that it is better for them to take along that man, referring to Renato Cuao, because Renato Cuao might be acting as a lookout." The letter 54 provided that "no one else should know" 55 about the demand. Thus, Renato's presence would naturally alarm accused-appellants. Motive is a key element when establishing guilt through circumstantial evidence. 56 Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction. 57 Fourth, Renato's corpse was discovered in the same place where he was held and guarded by accused-appellants. 58 Fifth is the fact of death of Renato, which is the corpus delicti of the crime. However, while Renato's death in the hands of accused- appellants was proven, we find that the manner of killing was not so evidenced. There was no showing of treachery. TcIHDa

Treachery exists when the accused employs means, methods, and forms which directly and specially ensure its execution, without risk to himself arising from the defense which the offended party might make. 59 Treachery, like the crime itself, must be proved beyond reasonable doubt. 60 In the absence of proof as to how the killing was perpetrated, the crime committed was homicide. 61 The imposable penalty for homicide is reclusion temporal. In the absence of any mitigating or aggravating circumstances, the penalty is imposed in its medium period.62 The Indeterminate Sentence Law applies. The trial court awarded the heirs of Renato Cuao one million forty six thousand pesos (P1,046,000.00) as actual damages for unrealized income. We delete this award as it is not supported by receipts. The testimony of Renato's father as to how much Renato was earning at the time of his death is self-serving and hearsay. The trial court's award of actual damages for funeral expenses in the amount of ten thousand (P10,000.00) pesos is likewise deleted. The claim is not supported by any receipt. The rule is that every pecuniary loss must be established by credible evidence before it may be awarded. 63 An award of moral damages in the amount of fifty thousand pesos (P50,000.00) is proper. 64 Renato's father testified that because of his son's death, he felt "great pain" and his wife suffered some "sleepless nights" and "cried for several days." 65 The trial court's award of fifty thousand pesos (P50,000.00) as civil indemnity for wrongful death is affirmed. This can be awarded without need of proof other than the death of the victim. 66 WHEREFORE, the decision of the Regional Trial Court, Camarines Norte, Branch 40, Daet, dated September 24, 1992 is AFFIRMED with MODIFICATION. Accused-appellants Pedro G. Taliman, Basilio M. Baybayab and Amado B. Belano are found guilty beyond reasonable doubt of HOMICIDE, defined and penalized under Article 249 of the Revised Penal Code, and in the absence of any modifying circumstance, are sentenced to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. Accused-appellants are jointly and severally ordered to pay the heirs of Renato Cuao, moral damages in the amount of fifty thousand pesos (P50,000.00) and civil indemnity in the amount of fifty thousand pesos (P50,000.00). The award of actual damages for funeral expenses and unrealized income is DELETED.

The case is archived as to accused Danilo Obenis and Rufino Valera, Jr., until their arrest and submission to the jurisdiction of the trial court. Costs against accused-appellants. SO ORDERED. aEHIDT

SECOND DIVISION [G.R. No. 133188. July 23, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. ELIZAR TOMAQUIN, appellant.

On arraignment, appellant pleaded "not guilty" to the charge, 2 and trial thereafter ensued. There were no eyewitnesses to the incident, and the prosecution's evidence, aside from appellant's extrajudicial confession, was mainly circumstantial. As presented by the prosecution, the facts are as follows: At around 11:00 in the evening of December 14, 1996, appellant Elizar Tomaquin @ Hapon, together with Rico and Romy Magdasal, Noel Labay, and a certain Cardo, were drinking "Red Horse" beer in Itom Yuta, Lorega, Cebu City. Appellant left the group at around 1:00 in the morning, saying he has a headache. At the behest of Rico Magdasal, the group transferred to Lorega proper. A few minutes later, they heard Rustica Isogan shouting for help as the latter heard Jaquelyn 3 Tatoy, her goddaughter, asking for help. Isogan got two flashlights and they proceeded upstairs to Jaquelyn's house. The first to go up was a certain Moises, followed by the brothers Rico and Romy Magdasal, while Noel and Cardo remained downstairs. Rico noticed that the hinge and the "walling" of the main door were damaged, as if it were kicked open, and only the light in the kitchen was turned on. Rico also saw a black shoe on the stairs and another in the sala, which he claims belong to appellant. When they went into the kitchen, they saw Jaquelyn bloodied and sprawled face-up on the floor, with her head inside a plastic container. Jaquelyn was brought to the hospital, where she expired. A neighbor later found a tres cantos with blood on it by the stairs, which Rico also identified to be appellant's. 4 A certain Rey got the black pair of shoes and tres cantos for safekeeping which were later turned over to Policeman Tariao of the Homicide Section, Ramos Police Station. The person who turned over the objects to Policeman Tariao was not identified. 5 At around 12:00 in the afternoon of December 15, 1996, barangay tanods Julius Yosores and Armando Zabate of Lorega, Cebu City, searched for appellant because of the information given by Rico Magdasal that the shoes and tres cantos found in the scene of the crime belonged to appellant. Together with Rico, they went to the house of Wilson Magdasal where appellant was temporarily staying, and found him sleeping. Appellant was wearing a bloodstained maong shorts. The tanods told appellant that he is a suspect in the killing of Jaquelyn, and brought him to the house of barangay captain Atty. Fortunato Parawan. There, appellant was asked about the shirt he was wearing and he told them that it was in Wilson Magdasal's house. It was Edgar Magdasal who found his shirt, wet and bloodstained, among the soiled clothes. Atty. Parawan then told his tanods to take appellant to the police station. 6 In the morning of the next day, December 16, 1996, appellant was investigated by SPO2 Mario Monilar of the Homicide Section, Ramos Police Station in Cebu City. After being apprised of his constitutional rights, appellant told SPO2 Monilar that he was willing to confess and asked for Atty. Parawan, the barangay captain, to assist him. SPO2 Monilar called Atty. Parawan but the latter told him that he will be available in the afternoon. When Atty. Parawan arrived at 2:00 in the afternoon, he conferred with appellant for around fifteen minutes. Atty. Parawan then called SPO2 Monilar and told him that appellant was ready to give his statement. 7Appellant's extrajudicial confession, which was taken down completely in the Cebuano dialect, 8 reads:

DECISION

AUSTRIA-MARTINEZ, J p: Once again, the Court is confronted with the issue of the admissibility of an extrajudicial confession. This appeal particularly involves the question of whether abarangay captain who is a lawyer can be considered an independent counsel within the purview of Section 12, Article III of the 1987 Constitution. On December 17, 1996, the Cebu City Prosecutor filed an Information charging appellant with Murder, committed as follows: That on or about the 15th day of December, 1996, about 2:30 a.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a bladed instrument (tres cantos), with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there suddenly and unexpectedly attack, assault and use personal violence upon one Jaquelyn Luchavez Tatoy, by stabbing her with said bladed instrument, hitting her on the vital parts of her body, thereby inflicting upon her physical injuries causing: "CARDIO RESPIRATORY ARREST DUE TO SHOCK & HEMORRHAGE SEC. TO STAB WOUNDS TO THE TRUNK (POSTERIOR ASPECT)" as a consequence of which, Jaquelyn Luchavez Tatoy died almost instantaneously. CONTRARY TO LAW. 1

Pasiuna: Mr. ELIZAR TOMAQUIN, pahibaloon ko ikaw nga ubos sa atong batakang balaod (Constitution) aduna kay katungod nga pahibaloon sa imong mga katungod, sama sa imong katungod sa pagpakahilum, ingon man duna kay katungod sa pagdamgop/pagpilig sa abogado o manlalaban aron motabang kanimo niining maong imbestighasyon nga may kalabutan sa kamatayon ni Jaqueline Tatoy niadtong mga alas 2:30 sa kaadlawon kapin kongkulang niadtong petsa 15 sa bulan sa Disyembre 1996, didto sa Brgy. Lorega proper, Siyudad sa Sugbo. Kong ugaling dili ka maka-abot pagbayad o pagpangitago abogado aron motabang kanimo karon, ako isip negrepresenttar sa Estado mohatag akong abogado kanimo. Nasabtan ba kini nimo? Tubag: OO, nasabtan ka ang akong katungod? Pangutana: Pahabloon ko usab ikaw nga sumala usab sa atong Batakang Balaod, ang tanan nga imong isulti karon dinhi, mahimong magamit ebedensya pabor o batok kanimo sa bisan asaing husgado sa atong nasud. Nasabtan be usab kini nimo? Tubag: OO, nasabtan ko usab kanang taan. Pangutana: Tinuod ba gayod nga nasabtan pag-ayo nimo ang mao nimong mga katungod ug anadam ka ba nga moperma karon dinhi timailhan sa imong tina-aw nga nga pagsabut? ingon man andam ka ba sa pagsulti sa matuod walay lain kon kili ang matuod lamang gayud? Tubag:

O Tubag: Oo, andam ako nga mapemar Sir ug ania karon dinhi ai Atty Parawan ang among Brgy Captain nga maoy akong giisip nga abogado nga akong pinili nga maoy motabang kanako karon. Aron sa pagmatuod, ako kining pirmahan ning ika petsa 16 sa bulan sa Disyembre 1996. xxx xxx xxx Pangutana: Sunlion ko, andama bas a pagsulti sa matuod Elizar Tomaquin kon dili ang matuod lamang gayud? Ingon man andam ka ba nga modawat sa resulta o linugdangan niini? Tubag: Oo, andam gyud ako. Pangutana: Palihog isulti ang imong ngalan inong man ang tanan nga circumstacia o may kalambigitan sa imong pagkatawo, sa imong grado, imong trabaho, imong pinuy-anan ug uban pa? Tubag: Ako si Elizar Tomaquin kinsa nagdala sa bansagon o apelyedo sa akong mama sanglit dili man kasado and akong mama ug papa. Ang apelyedo sa akong papa, Cabagui ug ang akon angga Hapon. Ako 19 anyos ang panuigon, ulitawo ug kasamtangan nga nagpuyo sa Brgy Lorega proper duol sa kapilaya San Roque apan ako lumad nga taga Bo. Tunga, Moalboal, Cebu diin didto ano nakatungha sa grade six. Pangutana:

Niadtong kaadlawon sa petsa 15 sa bulan sa Disyembre 1996, diin ka man? Tubag: Sa sinugdanan nianang mga ala una kapin kon kulang kauba ko sa pag-inom si Rico Magdasal didito sa Brgy Lorega Proper ug taodtaod niadto nilakaw ako libot sa sitio Itom Tuta ug dayon nakong saka sa balay nila ni Jaqueline Tatoy sa Brgy Lorega nianang pagka mga alas 2:20 sa maong petsa/kadlawon agii sa aberto nga bentana sa akong tuyo sa pagkawat sa ilang colored nga TV. Pangutana:

Tres Kantos nga nakit-an didto sa patyang lawas nga Jaqueline Tatoy). Pangutana: Kapila nimo dunggaba ug diin maigo si Jaqueline Totay? Tubag: Dili na ko nakahinumdom, ingon man dili ba ko makahinumdom kon diin to siya maigo. Basta manadaghan to nako siya dunggaba ginamit ko ang akong Tres kantos. Pangutana:

Nganong nakahibawo ka man na duna silay TV nga colored? Tubag: Suweto man ko kay permi ko magtan-awan sa ilang colored TV. Pangutana: Niadtong niagi ka sa ilang bentana aron pagkawat sa ilang TV, diin ka man punta deretso. Tubag: Deretso ako sa may lamesa sa ilang sala diin didto gibutang ilang TV. Pangutana: Nakuha ba gayod nimo ang maong TV? Tubag: Wala, kay sa akong pag-alsa sa among TV nisyagit man si Jaqueline Tatoy nga naghidga sa ilang may terrace ug nidagan siya padulong sa kusina nila ug diha-diha akong siyang ginsunod, gilayog ug gidunggab makadaghan pinaagi sa akong tres kantos nga hinagiban (Gidtudo ni Eliza rang Gawas nga imo to siyang gidunggab, wala ba nimo pahimudsi and iyang pagkababaye o wala ka bay plano sa pag rape kaniya niadtong higayona? Tubag: Wala gyud to nako siya pahimudsi og wala gyud koy tuyo sa pag rape niya. Ang ako ra gyud nga tuyo mao ra gyud and pagkawat sa ilang TV apan kay nisiyagit man siyang nakaila man kayo siya nako, nahadlok kong mahibaw-an sa ako untang pagkawat sa ilang TV, hinungdan nga ako siyang gilayog ug gidunggab makadaghan. Pangutana: Nganog nakahibawo or nakaila ka man nga si Jaqueline Tatoy tong naisiyagit ug imong gidunggab? Tubag: Duna ma hayag nga suga sa elektresidad sa ilang may kusina. Pangutana: Kaila ba nimong daan si Jaqueline Tatoy?

Tubag: Oo, Sir ka saw ala pa ang among hitabo permi man kong nagtanawan sa ilang TV. Pangutana: Human nim dunggaba si Jaqueline Tatoy unsa may sunod nimonh gibuhat? Tubag: Dihang sa akong pagtoo nga patay na siya, ako naidagan agi sa pultahan nga akong gisikaran dayon kanaog subay sa hagdan didto nabiyaan nako ang akong sapatos. Pangutana: Diin ka man paduiong dagan? Tubag:

Ngano ug unsa may diay kalabutan niadtong maong sleeveless white shirt nimo? Tubag: Mao na ang akong gisul-ob dihang akog kawaton unta ang TV nila ni Jaqueline ug sa iyang pagsiyagit ako siyang gidunggabdunggab patay. (Elizar Yomaquin postivo nga nitudlo ug niangkon sa maong whitel sleeveless shirt) Pangutana: Kinign nia karon dinhi nga sapatos itom nga nakuha didto so hagdan sa balay nila ni Jaqueline Tatoy human siya nakit-i nga patay, unsa may imong ikasulti niini? Tubag: Mao kana ang akong sapatos nga nabiyaan didto sa ilang hagdan human sa hitabo ug gain sa akong pagdagan akong napatiran kadtong ilang container.HIEASa Pangutana:

Didto ako padulong sa akong gipuya-an sa ilang Wilson Magdasal sa maong Brgy. Pangutana: Unya unsa may sunod nimonh gibuhat og nahibaw-an?

Sa pagkakaron, wala na akoy ipangutana kanimo. Ikay aduna ka pa bay ikasul ti o bakwion ba hinoon sa mao nimong gipamahayag nga naglangkob sa duha ka pahina lakip niining maong pahina? Tubag:

Tubag: Niadtong hapon sa petsa 15 sa bulan sa Disyembre 1996, didtoy mga Brgy. Tanods sa balay ni Wilson Magdasal diin ila akong gipangutaan tali sa maong hitabo og igo lan ako nitudlo sa akong white Slave shirt nga akong gihumulan ug tubig sa planggana sa tumong nga makuha ang mansa sa dugo nga pinisik sa akong paggdunggab patay ni Jaqueline Tatoy. Wala na akoy ikadugang pagsulti ni bakwion ba hinnon. Nao kana ang tanan. Pangutana: Andam ka ba pagperme niini sa pagmatuod nga wlay tawo nga nagpugos, naghulga, nagsaad ug gnate o nag hadlok ba hinoon kon dili sa imong kaugalingon nga kabubut-on lamang. Tubag:

Pangutana:

Oo, andam ako pageram. Aron matuoron kining tanan kini akong permahan ning petsa 16 sa Disyembre 1996, Siyudad Sugbo, Pilipinas. 9 On the witness stand, appellant did not deny that he had a drinking spree with Rico Magdasal and three other persons. His version of the incident is that it was Rico who committed the crime and not him. Appellant testified that Rico asked his help in stealing the television set from the Tatoys residence. When Jacquelyn saw them, she ran towards the kitchen but she did not reach it as Rico had stabbed her on the back with the tres cantos. Appellant claims that it was Rico who owns the tres cantos, as well as the pair of shoes, left inside Tatoys house. Afraid of what happened, appellant went home to Wilson Magdasals house and slept there. He was awakened the next morning by barangay tanod Julius Yosores who kicked him. Yosores also boxed and poked a gun at him. Appellant claims that Rico and Edgar Magdasal maltreated him in the presence of barangay captain Atty. Fortunato Parawan when he was brought to the latters house. He was made to admit committing the crime because Rico has a family while he is single. 10 Appellant also repudiated his extrajudicial confession, saying that Atty. Parawan merely asked him to sign a blank sheet of paper and in exchange, Atty. Parawan promised to assist and help him with his expenses. 11 After trial, the Regional Trial Court of Cebu City (Branch 18) (RTC for brevity) rendered its decision on October 24, 1997, convicting appellant of the crime of Murder, to wit: WHEREFORE, in view of all the foregoing considerations, accused Elizar Tomaquin is found guilty beyond reasonable doubt of the crime of Murder and is hereby imposed the penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to indemnify the heirs of Jaquelyn Tatoy in the sum of P50,000.00 and to pay the costs. The accused is, however, credited in full during the whole period of his detention provided he will signify in writing that he will abide by all the rules and regulations of the penitentiary. SO ORDERED. 12 Hence, this appeal. In his Brief, appellant raises the following Assignment of Errors: 1.THE TRIAL COURT ERRED WHEN SHE (SIC) CONVICTED ACCUSEDAPPELLANT BASED ON HIS UNCOUNSELLED CONFESSION;

2.THE TRIAL COURT LIKEWISE ERRED WHEN SHE (SIC) GAVE FULL CREDENCE AND FULL FAITH ON THE TESTIMONY OF THE PROSECUTION WITNESSES; 13 Appellants extrajudicial confession was taken and transcribed entirely in the Cebuano dialect. Rule 132, Section 33 of the Revised Rules on Evidence provides: Sec. 33.Documentary evidence in an unofficial language. Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. The rule is that when there is presented in evidence an exhibit written in any language other than the official language (Filipino or English), if there is an appeal, that exhibit should be translated by the official interpreter of the court, or a translation should be agreed upon by the parties, and both original and translation sent to this court. 14 In this case, there is no official translation of appellants extrajudicial confession in the Filipino or English language. If the Court were to strictly follow the rule, then appellants extrajudicial confession should not have been admitted by the trial court as evidence for the prosecution. Nevertheless, considering that appellant did not interpose any objection thereto, and the parties and the judicial authorities or personnel concerned appeared to be familiar with or knowledgeable of Cebuano in which the document was written, 15 such extrajudicial confession was appropriately considered by the trial court as evidence for the prosecution. As stated at the outset, the crucial issue in this case is whether or not the extrajudicial confession executed by appellant, with the assistance of Atty. Fortunato Parawan, is admissible in evidence against him. There is no need at this point to secure an official translation of the confession to English. Section 12, Article III of the 1987 Constitution provides: (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. The words competent and independent counsel in the constitutional provision is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer. 16

As heretofore stated, Atty. Fortunato Parawan, at that time, was the barangay captain of Barangay Lorega, Cebu City. Under the 1991 Local Government Code, abarangay captain performs the following duties and functions: (a)The punong barangay, as the chief executive of the barangay government, shall exercise such powers and perform such duties and functions, as provided by this Code and other laws. (b)For efficient, effective and economical governance, the purpose of which is the general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall: (1)Enforce all laws and ordinances which are applicable within the barangay; xxx xxx xxx (3)Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal mayor and the sanggunian members in the performance of their duties and functions; . . . 17 Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the law and ordinances in his barangay and ensure peace and order at all times. In fact, as barangaycaptain, Atty. Parawan is deemed a person in authority under Article 152 of the Revised Penal Code, to wit: ART. 152.Persons in authority and agents of persons in authority. Who shall be deemed as such. In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority. On these bases, it is not legally possible to consider Atty. Parawan as an independent counsel of appellant. In People vs. Culala, 18 the Court reiterated the rule that a municipal attorney cannot be an independent counsel because as a legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order, and it was seriously

doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Thus, the Court held that he is no better than a fiscal or a prosecutor who cannot represent the accused during custodial investigations. 19 This is reiterated in People vs. Taliman, 20 and People vs. Velarde, 21 where we further ruled that a municipal mayor cannot likewise be an independent counsel as required by the Constitution. Similarly in this case, considering that Atty. Parawans role as a barangay captain, was a peacekeeping officer of his barangay and therefore in direct conflict with the role of providing competent legal assistance to appellant who was accused of committing a crime in his jurisdiction, Atty. Parawan could not be considered as an independent counsel of appellant, when the latter executed his extrajudicial confession. What the Constitution requires is the presence of an independent and competent counsel, one who will effectively undertake his clients defense without any intervening conflict of interest. 22 Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective and vigilant counsel. An effective and vigilant counsel necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. As held in People vs. Velarde: 23 . . . The competent and independent lawyer so engaged should be present at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. 24

Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent. 25 The assistance rendered by Atty. Parawan to appellant cannot be fittingly described as effective and vigilant. As testified by Atty. Parawan, hereinbelow quoted verbatim, this was what transpired when he went to the Ramos police station to assist appellant during the investigation:

QWhat happened when you arrived at the Ramos Police Station at around 2:00 oclock in the afternoon of December 16, 1996? AI go (sic) to the room where Policeman Monilar and the accused and had a conversation with the accused. QWhat transpired during that conversation with the accused.

QAnd so what transpired next? ASo I told him are you willing now to give your confession, then policeman Monilar went inside the room and we had that investigation. QNow how was the investigation of the accused done? AIt was made in a question and answer form.

AI asked him. Are you going to get me as your lawyer? QAnd in what language were the questions framed? QAnd may we know what did he answer? AIn the vernacular, vesaya. AYes, Cap. Okay Cap. QWhen you said Cap what did he mean by that word Cap. ABeing a Barangay Captain. QAfter the accused told you that you were his counsel of choice. What did you do next if any? AI informed Elizar Tomaquin that do you know what will be the implication of your admission, you will be imprisoned. QAfter you asked him whether he knew of the implication of his confession that could be . . . because of that confession. What was his reaction? AYes Cap. I know. And then I told him as follows: Because of this confession you will be imprisoned. QAnd what did he say after you told him again that if he would execute that affidavit of confession he would surely be imprisoned? ANo I even continue that why did he do that? QAnd what did he answer? AHe answered to me that he was drunk at that time. QWhat did you do during the question and answer form of investigation? AI just observed them. QBut did you stay there until the whole taking of the confession was over? AYes I was there in the presence of two persons coming from my Barangay. xxx xxx xxx QWhen you arrived and saw Mr. Monilar with the accused as an Attorney did you immediately inquire what had happened before you arrived like; Did you start the investigation? did you inquire from that from Mr. Monilar? AHe was already preparing this top portion here. INTERPRETER: QWitness pointing to the upper portion of the certification up to the signature to that portion above the names typewritten thereon. xxx xxx xxx

QAnd that means to say that when he prepared this from the top most portion to that portion immediately right before the typewritten name Elizar Tomaquin and Atty. Fortunato Parawan you were not around. Correct? AI was not around but we have already a conversation earlier with Monilar. 26 Records also show that appellant was presented to SPO2 Monilar in the morning of December 16, 1996. When appellant intimated that he was willing to confess and requested the presence of Atty. Parawan, SPO2 Monilar called up Atty. Parawan and informed him of appellants decision. Atty. Parawan arrived at the Ramos Police Station only at 2:00 in the afternoon. 27 By the time Atty. Parawan arrived, the investigation had already started and SPO2 Monilar had already asked and elicited information from appellant. Worse, Atty. Parawan merely observed during the entire investigation and failed to advise or explain to appellant the questions being propounded by SPO2 Monilar. He did not even bother to ask appellant if the extrajudicial confession he was about to execute was being voluntarily given. Moreover, that Atty. Parawan is not an effective and vigilant counsel is bolstered by his own testimony that he already suspected appellant as having committed the crime when the latter was brought to his house by the barangay tanods, viz.: QBeing an attorney naturally your first question to your arresting tanods was where was he arrested and how was he arrested and what is the reason why he was arrested. Correct? AYes. xxx xxx xxx QYou are telling this Court now Atty. Parawan that before the Barangay Tanods could explain to you the circumstances of his arrest you already started to ask questions like; Why did you have blood in your pants. Where is your tshirt you wore. Where did you get that information since you were not in the house of Jaqueline Tatoy when she was killed? AIt was like this. I heard that the victim suffered multiple stab wounds. So when I saw blood stains with all probability it might come from the victim. It was conclusion something like when I saw that t-shirt stained with blood.

QSo you mean to this Court that you already reached the conclusion of mine (sic) that Elizar Tomaquin one of your constituents in the Barangay was already on your conclusion in mine (sic) the killer of Jacquilyn Tatoy before your tanods turned it over to the police for investigation. Is that what you are telling Atty. Parawan? AIt is somewhat like that. That is why I ordered my tanod to bring him to the Homicide. 28 The Court cannot imagine how Atty. Parawan could have effectively safeguarded appellants rights as an accused during the investigation when he himself entertained the suspicion that appellant is guilty of the crime charged, and naturally, he would want appellant to admit having committed it. It was posited that appellant cannot challenge Atty. Parawans qualification as a competent and independent counsel because he was his choice. As provided in Section 12, Article III of the 1987 Constitution, (A)ny person under investigation for the commission of an offense shall have the right . . . to have competent and independent counsel preferably of his own choice. Ideally, the lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning, but the word "preferably" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. 29 What is imperative is that the counsel should be competent and independent. That appellant chose Atty. Parawan does not estop appellant from complaining about the latters failure to safeguard his rights. It appears that appellant chose Atty. Parawan because he was the barangay captain of Brgy. Lorega where appellant resides, and apparently, appellant trusts Atty. Parawan to protect his rights. The latter, however, fell short in tending to the trust reposed on him. Appellant did not finish Grade 1 and does not know how to read and write. 30 As between him and Atty. Parawan who presumably knows the intricacies of the law and appellants predicament, Atty. Parawan should have known better and exercised his sound judgment before conceding to appellants choice. But it did not occur to him to inhibit himself from acting as appellants counsel and instead, he even let appellant go through the investigation and execute the extrajudicial confession knowing fully well that he was biased as regards appellants innocence. Quoted verbatim, Atty. Parawan testified thus: QAtty. Parawan comparing yourself to the accused who is a graduate of Batchelor (sic) of Law compared to your constituent who is jobless, illiterate [and] of low intelligence. The question is this: It did not occur to your mine (sic) to inhibit yourself despite the request by telling the accused as barangay Captain there could be a conflict of interest

and bias that I would not be in (sic) effective counsel or assistance to you. Did it not occur toy our mine (sic) or not? AIt did not occur to my nime (sic).

Without appellants extrajudicial confession, the prosecutions case now teeters precariously on circumstantial evidence, namely: (1)Rico Magdasals testimony that:

xxx xxx xxx QBut as experienced attorney you know very well that when you assist a suspect in the police station and the circumstances he was arrested the best assistance a lawyer could give is would be to tell the accused to remain silent. Would you agree? xxx xxx xxx AIt did not occur to my mine (sic) that time. 31 Clearly, Atty. Parawan failed to meet the exacting standards of an independent and competent counsel as required by the Constitution. Thus, the extrajudicial confession executed by appellant, even if gospel truth, is deemed an uncounselled confession and therefore, inadmissible in evidence. In this regard, it may not be amiss to repeat the declaration of the Court in People vs. Deniega, 32 stressing the role of the courts in ascertaining that extrajudicial confessions meet the exacting standards of the Constitution: Every so often, courts are confronted with the difficult task of taking a hard look into the sufficiency of extra-judicial confessions extracted by law enforcement authorities as the sole basis for convicting accused individuals. In cases of crimes notable for their brutality and ruthlessness, the impulse to find the culprits at any cost occasionally tempts these agencies to take shortcuts and disregard constitutional and legal safeguards intended to bring about a reasonable assurance that only the guilty are punished. Our courts, in the process of establishing guilt beyond reasonable doubt, play a central role in bringing about this assurance by determining whether or not the evidence gathered by law enforcement agencies scrupulously meets exacting standards fixed by the Constitution. If the standards are not met, the Constitution provides the corresponding remedy by providing a strict exclusionary rule, i.e., that "[a]ny confession or admission obtained in violation of (Article III, Section 12(1) . . . hereof shall be inadmissible in evidence." (a)appellant left their drinking session at 1:00 in the morning of December 16, 1996; (b)the tres cantos and pair of shoes found inside Jaquelyns residence belongs to appellant; and (c)appellant was wearing a pair of maong shorts and white sando shirt on the night of the crime, which bloodstained shirt was found among the soiled clothes in Wilson Magdasals house; (2)Medical Technologist Jude Daniel Mendozas testimony that the blood stains on appellants sando shirt and the tres cantos was of human origin. 33 These circumstances, however, are not sufficient to demonstrate positively and convincingly that it was appellant who killed Jaquelyn. Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 34 As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proven 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. 35 The circumstantial evidence in this case does not constitute an unbroken chain leading to one fair and reasonable conclusion that appellant is the guilty person. For one, appellants act of leaving the drinking session at 1:00 in the morning does not establish appellants whereabouts at the time the crime was committed. There is nothing in the testimony of Rico Magdasal and the other prosecution witnesses that will show if appellant indeed went to Jaquelyns house after he left the group. No one saw him enter or

leave her residence. If at all, what was proved is that appellant was found by the barangay tanods sleeping at home in the afternoon of the same day. Added to that is the prosecutions failure to establish the chain of custody of these valuable pieces of evidence. Prosecution witness Armando Zabate testified that the pair of black shoes and tres cantos were given to a certain Rey for safekeeping. These were later turned over to a Policeman Tariao of the Ramos Police Station. Zabate, however, did not identify the person who turned over the objects to the police. 36 There was no showing who turned over those articles to the police and Rey was not presented to identify if these were the same pair of shoes and tres cantos found in Jaquelyns house and turned over to the police. Policeman Tariao was not called to the witness stand so as to confirm if those articles were the same evidence turned over to him and later presented in court. Ordinarily, it would not be indispensable for the prosecution to allege and prove every single fact of the case. But in this case, the pieces of evidence are crucial to the prosecutions case. Also, the fact that a civilian obtained and received the evidence, the possibility that the integrity of these articles could have been compromised cannot be ignored. The Court even noted that during his direct examination, SPO2 Monilar was confused as to whether the pair of shoes presented in court was the same ones that were turned over to the police. It turned out that the marking he made on the shoes were washed off because at one time, the shoes fell in the canal located in front of the police station and they had to clean and wash the shoes! 37 Such sloppy handling renders the chain of custody of those pieces of evidence dubious, and damaging to the prosecutions case. And even if appellant did own the pair of shoes and tres cantos, the fact that it was found in the scene of the crime merely proved that he was in the residence of Jaquelyn at some point in time. But it does not prove when particularly he was there, his authorship of the crime or his motive for being there. While the motive of an accused in a criminal case is generally held to be immaterial, not being an element of the crime, motive becomes important when, as in this case, the evidence of the commission of the crime is purely circumstantial. 38 The prosecutions evidence that is perceived to be conclusive of appellants guilt is mainly the testimony of Rico Magdasal. Such testimony, however, is uncorroborated. The rule is that the testimony of one witness is sufficient to sustain a conviction, if such testimony positively establishes the guilt of the accused beyond reasonable doubt. 39 Moreover, the doctrine of long standing that the testimony of a lone witness, if credible and positive, is sufficient to convict an accusedapplies only to eyewitnesses. Thus, an uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in serious doubt. 40Ricos lone testimony is not sufficient to establish appellants guilt beyond reasonable doubt. In addition, appellant vehemently denied Ricos allegations. According to appellant, it was Rico who actually owns the pair of shoes and tres cantos; that it was he who bid appellant to go to the Tatoys residence and lift their TV set; and that it was Rico who stabbed Jaquelyn.

Considering appellants denial and his different version of the incident, it became incumbent upon the prosecution to rebut appellant's allegations with further evidence to corroborate the statement of Rico. It must be noted that there were other persons present during their drinking spree, namely, Romy Magdasal, Noel Labay, and a certain Cardo. These persons could have been presented as witnesses to back up Ricos claim but the prosecution did not do so. Rico testified that appellant owned the tres cantos found by the stairs; but Rico also stated he only heard that the tres cantos was found by the stairs. 41 Who found the tres cantos that was supposed to have been used to stab Jaquelyn? The neighbor who allegedly found it by the stairs was not presented in court to identify if the tres cantos presented by the prosecution was the alleged weapon in the stabbing of Jaquelyn. Such failure of the prosecution to corroborate the material points of Ricos testimony weakened their case. The Court also has serious misgivings on the probative value of the white sando shirt that appellant was allegedly wearing at the time of stabbing Jaquelyn, which Edgar Magdasal later found bloodstained among the soiled clothes. First, when appellant was asked by the barangay tanods about the shirt he was wearing, he told them that it was in Wilson Magdasals house. According to barangay tanod Armando Zabate, it was Edgar Magdasal who found the shirt, somewhat wet and bloody, among the soiled clothes. 42 Edgar Magdasal, however, was not presented to testify as to where he found the shirt, the state the shirt was in when he found it, and how he knew that it was the shirt worn by appellant. Second, Medical Technologist Jude Daniel Mendoza testified that the bloodstains on appellants sando shirt, as well as the tres cantos, were human blood. 43Mendoza, however, did not conduct further tests to ascertain the type of blood found on these pieces of evidence nor did he match it with the victims blood type, 44hence, it does not connect the bloodstains to the herein victim. In People vs. Rodriguez, the Court ruled that the maong pants allegedly belonging to appellant and found positive of type O blood has no probative value since the blood type of appellant and the victim were not taken for purposes of comparison. 45 The same ruling applies with regard to the bloodstains found on the tres cantos. Appellant enjoys in his favor the presumption of innocence until the contrary is proven. Proof of the guilt of the accused should not be tainted with ambiguity. Although appellants defense is weak, conviction must come from the strength of the prosecution's evidence and not from the weakness of the defense. In this case, the prosecutions evidence is not strong enough to justify a finding of guilt beyond reasonable doubt. 46 Acquittal, therefore, is inevitable. WHEREFORE, appellant Elizar Tomaquin is hereby ACQUITTED and ordered RELEASED immediately, unless he is being detained for some other legal cause. SCADIT The Director of the Bureau of Corrections is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of the

date of his release, or the ground for his continued confinement, within ten (10) days from notice of herein decision. Costs de oficio. SO ORDERED.

FIRST DIVISION [G.R. No. 82604. December 10, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCOS P. JIMENEZ and ROBERT JIMENEZ, accused-appellants.

Judge Jabagat was not present at the critical time that interrogation of Marcos Jimenez by the police was actually taking place. She came only after the questioning had been completed, and the handwritten record of Marcos Jimenez' answers already typewritten; and all she did was to show the typewritten document to Marcos and ask him if he had voluntarily given the statements therein contained. This is far from being even substantial compliance with the constitutional duty of police investigators during custodial interrogation, supra. It follows that neither the handwritten summary of Marcos Jimenez' answers made by two investigating officers nor the typewritten statement based thereon is admissible. 4.ID.; ID.; ID.; WAIVER OF RIGHT, VOID WHERE STATEMENTS MADE IN CONFESSION WERE EXPRESSLY REJECTED BY ACCUSED. The typewritten confession is, in any event, unsigned, as are the handwritten notes from which the former was derived. The confession was in fact expressly rejected by Marcos Jimenez as not reflective of his own perceptions and recollection, but as containing only what his uncle, Marcos Jimenez, had instructed him to tell the police "under threat of punishment." Hence, the supposed waiver made therein of his constitutional right to counsel of his own choice, is void. 5.REMEDIAL LAW; EVIDENCE; CONFESSION OBTAINED WITHOUT ASSISTANCE OF COUNSEL AND WITH NO VALID WAIVER OF SAID RIGHT, INADMISSIBLE. The interrogation of Marcos Jimenez having been conducted without the assistance of counsel, and no valid waiver of said right to counsel having been made, not only the confession but also any admission obtained in the course thereof are inadmissible against Marcos Jimenez. This, too, is the explicit mandate of the Constitution: any confession or admission obtained in violation among others of the rights guaranteed in custodial investigations shall be inadmissible in evidence against the person making the confession or admission. This is so even if it be shown that the statements attributed to the accused were voluntarily made or are afterwards confirmed to be true by external circumstances. 6.ID.; ID.; ADMISSION; CONFESSION EXECUTED BY ONE ACCUSED, INADMISSIBLE AGAINST HIS CO-ACCUSED; RATIONALE. Equally obvious is that any confession or admission ascribed to Marcos Jimenez in the premises is inadmissible against his brother, his co-accused, Robert Jimenez, not only because obtained in violation of the Constitution and therefore void, but also because of the familiar principle of res inter alios acta. "The rights of a party cannot be prejudiced by an act, declaration, or omission of another"; the confession of an accused is admissible only against him, but not against his co-defendants. 7.ID.; ID.; HEARSAY; INFORMATION NOT TESTIFIED INTO IN COURT, INADMISSIBLE. The information gathered by the police to the effect that Marcos and Robert Jimenez had been seen by neighbors bathing at the artesian well at midnight of the day of the crime, ostensibly washing away blood from their bodies and clothing, is patently speculative and arrant hearsay. Not one of the persons who had supposedly seen the appellants washing themselves ever took the witness stand to affirm this. 8.ID.; ID.; GUILT BEYOND REASONABLE DOUBT; NOT MET IN CASE AT BAR. The failure of the police authorities to observe the constitutional safeguards governing custodial

The Solicitor General for plaintiff-appellee. Sisenando Y. Famoso for accused-appellants.

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; COUNSEL MUST BE THE CHOICE OF THE ACCUSED AND NOT THE POLICE OFFICERS' CHOICE. The Constitution explicitly declares that a person being investigated by the police as a suspect in an offense has the right, among others, "to have competent and independent counsel preferably of his own choice" and if he "cannot afford the services of counsel, he must be provided with one"; and that said right "cannot be waived except in writing and in the presence of counsel." The lawyer who assists the suspect under custodial investigation should be of the latter's own choice, not one foisted on him by the police investigators or other parties. In this case, former Judge Jabagat was evidently not of Marcos Jimenez' own choice; she was the police officers' choice; she did not ask Marcos if he was willing to have her represent him; she just told him: "I am here because I was summon (ed) to assist you and I am going to assist you." This is not the mode of solicitation of legal assistance contemplated by the Constitution. 2.REMEDIAL LAW; EVIDENCE; CONFESSION EXECUTED BY ACCUSED ASSISTED BY COUNSEL NOT OF HIS OWN CHOICE, INADMISSIBLE. In one case, the confession of an accused was rejected there being no showing that the lawyer of the Citizens' Legal Assistance Office (CLAO) called by the National Bureau of Investigation to assist the accused was his counsel of choice. In another case, the confession given during custodial investigation was invalidated where it appeared that the lawyers called to be present at the interrogation were members of the police organization investigating the suspects and did not actively assist and advise them, being there merely to give a semblance of legality to the proceedings. In still another case, the confession of the defendant was disregarded upon a showing that he had been assisted by an assistant fiscal (public prosecutor), who "cannot exercise the function of defense counsel even during custodial investigation," and to allow such a practice "would render illusory the protection given to the accused." 3.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; COUNSEL MUST BE PRESENT AT THE CRITICAL TIME OF INTERROGATION; CASE AT BAR. The evidence discloses that

interrogation impels rejection of the extrajudicial confession ascribed to one of the appellants and consequent reversal of the Trial Court's verdict of conviction chiefly based thereon. Now, without the confession or the admissions imputed to Marcos Jimenez, the rest of the evidence of the prosecution is inadequate to overcome the presumption of innocence raised by the fundamental law in favor of both the accused. In fine, all the evidence considered, it appears that the prosecution has failed to demonstrate the guilt of the appellants of the crime with which they are charged beyond reasonable doubt, WHEREFORE, the decision of the Trial Court dated November 21, 1986 is reversed, and the appellants, Marcos P. Jimenez and Robert Jimenez, are ACQUITTED, With costs de oficio.

residence to the cliff by the balite tree where he was ultimately found; that at some point the trail of blood was interrupted by a patch of freshly plowed soil, and Robert Jimenez said that it was he who had plowed that part of the field and before doing so, had indeed noticed some blood on the ground but had attached no significance to it; that midway between Pelagio's house and the cliff, there were signs as of a body having been dragged through some bushes; that the brothers, Marcos and Robert Jimenez, were seen by neighbors bathing at the artesian well in that place at midnight, "as if washing away stains of blood;" and that Pelagio Jimenez often had violent quarrels with his children, and had been known to complain that there were even occasions when he had been boxed and hit by his children, particularly Marcos and Robert, who had been accused of surreptitiously selling copra belonging to their father's brother, a Dr. Mario Jimenez. On the 16th of September, 1985, the police invited Pelagio's widow, Albina Jimenez, and her sons, Marcos and Robert Jimenez, for questioning about their father's killing. The circumstances attendant upon and subsequent to the questioning of Marcos Jimenez are succinctly narrated in the People's brief as follows:

DECISION

NARVASA, C.J p: The failure of the police authorities to observe the constitutional safeguards governing custodial interrogation impels rejection of the extrajudicial confession ascribed to one of the appellants and consequent reversal of the Trial Court's verdict of conviction chiefly based thereon. On August 13, 1985 the police officers at the Ginatilan, Cebu station received a report that one Pelagio Jimenez had been found dead at barangay Guiwanon, "below the cliff near the balite tree." Without much loss of time, Pat. Reynaldo Cinco and other policemen went to the scene to conduct an investigation. The Municipal Circuit Judge of Ginatilan, Hon. Palmacio Calderon, accompanied them, as did Dr. Trifina M. Ferraren. They came upon the lifeless body of Pelagio Jimenez at the place indicated, with stab and lacerated wounds on the head and leg; and apparently the corpse was beginning to decompose since there were maggots crawling over the face, arms, hands and feet. The police investigators learned that the deceased Pelagio Jimenez had been living separately from his family; that in the early morning of August 12, 1985, Marcos Jimenez, who was wont to spend the night at his father's house, told his mother that Pelagio Jimenez had not come home the previous night; that inquiries were immediately made about Pelagio and a search for him undertaken by his relatives and friends; that although the search lasted the whole day and proceeded well into the night of the 12th, it proved unsuccessful, and it was not until the morning of the following day, August 13, 1985, that Pelagio Jimenez was finally found, murdered, the searchers having been led to the place where he lay by the foul odor already being exuded by his corpse. prLL The investigators also learned from the persons that they interviewed of other circumstances that drew their suspicion to the sons of Pelagio Jimenez, Marcos and Robert, viz.: that there was a trail of drops of dried blood leading from the porch (pantawan) of the dead person's

". . . At first, . . . (Marcos) denied any participation on the death of his father. However, after Lt. Bancog confronted Marcos Jimenez of his observations during the ocular inspection (id. [TSN, May 26, 1986], p. 23) the latter admitted that it was his brother Roberto who hacked their father on the right leg. Thereafter, they (Marcos and Roberto) carried their father near the balite tree by the cliff and left him there (id., p. 30). Initially, Lt. Bancog took down appellant's confession in a piece of paper (Exh. 'C') (id., p. 24; Tsn, December 19, 1985, p. 7). Thereafter, Lt. Bancog gave the draft (Exh. 'C') to Pat. Cavalida to enable the latter to type the same (id., p. 47). "Pat. Cavalida continued the investigation conducted by Lt. Bancog (Tsn, March 6, 1986, p. 8) in the presence of Ex-Judge Jabagat who acted as counsel for appellant Marcos Jimenez (id., pp. 10-11; Tsn, May 26, 1986, p. 22). He typed appellant's confession (Exh. 'B') which was contained in the draft (Exh. 'C') prepared by Lt. Bancog while at the same time, injecting some questions of his own (ibid., pp. 4-5). Appellant was unable to sign his confession (Exh. 'B') since Judge Calderon, before whom the confession was supposed to be sworn to and signed, had earlier left (id., p. 6). Hence, appellant agreed to come back the next day to sign his statement (Exh. 'B') (id., p. 7). "The next day, appellant Marcos Jimenez failed to come back as promised, and the authorities were unsuccessful in fetching him since they were informed that appellant had left for Cebu City (id.,p.

7). Marcos Jimenez returned thereafter, but refused to sign his statement (Exh. 'B') (id., p. 8). "At about 6:00 o'clock in the evening of August 16, 1985 (Tsn, March 7, 1987, p. 4) Manolita Castaares, a relative of appellants, overheard a conversation between appellant Marcos Jimenez and his mother Albina, while they were on their way toward the house of Dr. Jimenez (ibid). She heard Albina tell Marcos that the way he answered the questions during the examination before the authorities were wrong. Marcos replied, 'It is just the same because if I don't admit, you will be the one pressured' (id., pp. 4-5). Albina remarked, 'You should have denied about the circumstances why it happened like that' (id., p. 5). Marcos answered, '(I)t is just the same. Had somebody seen the one mentioned in the affidavit when I admitted?' (id.)." Lt. Bancog asked a policeman to invite ex-Judge Pacita Jabagat so that, to use her own words, she could "assist the accused whose confession has been taken before the Office of the Chief of Police." According to Judge Jabagat, when she arrived at the station, what happened was, again in her own language, Marcos Jimenez ". . . was asked about the written confession, and it was read to him. He was (also) apprise (sic) of his Constitutional right, and I ask him about the contains (sic) of his written confession, I said to him 'are these true?' and he said, Yes, alright I said, you sign. I am here to assist you, but if you think you are hesitant to sign it, you think it over and ask me (for) time, (saying) I would like to confer with my uncle Engineer Marcos Jimenez and that we summon (sic) his uncle who was just around, and after that, he told me he was not going to sign the confession and I ask (sic) him, if you will not sign, you have the privilege not to sign, if you don't like to sign its' (sic) just OK." Subsequently, an information dated October 22, 1985 was filed by the Provincial Fiscal of Cebu with the Regional Trial Court accusing Pelagio's widow, Albina Jimenez, and her sons by Pelagio, Marcos, Robert, and Wilkins, of the felony of parricide in that. cdrep ". . . on or about August 11, 1985 at around 8'clock P.M. at barangay Guiwanon, Ginatilan, Cebu, . . . said accused, confederating together and helping one another, with intent to kill and during nighttime, and without just cause, did then and there wilfully, unlawfully and feloniously attack, assault and hack Pelagio Jimenez . . . with a bolo, inflicting upon the said Pelagio Jimenez mortal injuries on various parts of his body, that soon caused his death thereafter."

All the accused entered a plea of innocent when arraigned. At the trial, the prosecution presented eight (8) witnesses whose evidence established substantially the facts above summarized. The four defendants took the witness stand and gave evidence in their behalf. They all maintained their innocence of the crime. Marcos Jimenez' testimony, substantially corroborated by his brother, Robert, is outlined by the Trial Court as follows: ". . . that on August 11, 1985, he was at the house of his uncle, Dr. Marcos Jimenez. His mother (Albina) and his two brothers, (Robert & Wilkins) were also there. He claims that they were overseeing the house of their uncle. At about 6. P.M. of that day, his father came and asked for dry coconut leaves to light his way in going home. At past 9 P.M., he went home while the rest stayed behind. When he arrived home, he did not see his father. He slept until the following morning. When he still did not see his father the following morning, he went back to his uncle's house to inform his mother and brothers that their father did not arrive home that night. So, they agreed to look for him. They looked for him in the bushes and towards the sea the whole day and the following day until the body was found near the cliff. It was then that he went to the poblacion to notify the authorities about the death of his father. Continuing . . . (Marcos) admitted having been investigated by Lt. Bancog on August 16. They were only two in the room. He likewise admitted that Judge Jabagat arrived but only after his statement had been typed by Pat. Cavalida. He admitted that Lt. Bancog wrote down what he stated, and this handwritten statement was handed to Pat. Cavalida . . . (He also) admitted the existence of blood near the house and plenty of it in the bushes . . .; the existence of blood in the plowed area . . . (and) it was he and Robert who plowed the same. In the matter of his confession (Exh. 'B'), he claims that what is stated there is in accordance with what his uncle, Marcos Jimenez, wanted him to tell, that he was pressured to admit the crime under threat of punishment." Cdpr The defense rested its case on July 21, 1986, at which time the Trial Court gave the parties thirty (30) days "from receipt of the stenographic notes within which to submit simultaneous memoranda." The Court, declaring that it was "cognizant of the fact that the accused had been incarcerated and detained for almost one year," also issued the following Order absolving, for lack of proof, Albina Jimenez and her son, Wilkins, from liability under the indictment, viz.: "The Court after appreciating all the facts and the law in this case, finds no evidence whether direct or circumstantial that may tend to

establish the guilt of two of the accused in this case, namely: Albina Jimenez and Wilkins Jimenez. Considering the rule that judgment of conviction should be imposed only after the guilt of the accused has been proven beyond reasonable doubt, the said two accused should be acquitted. Wherefore, without prejudice to an extended decision, the Court finds the said two (2) accused: Albina Jimenez and Wilkins Jimenez NOT GUILTY of the charge against them. Accordingly, they are hereby ordered released from custody unless there are other causes which would warrant their further detention. This Order serves as a partial decision in this case. The Court, aware of the long detention suffered by the said accused, hereby orders the promulgation of this judgment upon the two accused immediately in open Court." Then on December 19, 1986, the Trial Court promulgated its Decision (dated November 21, 1986) finding "the defendants Marcos Jimenez and Robert Jimenez guilty beyond reasonable doubt of the crime of parricide as defined and penalized under Article 246 of the Revised Penal Code," and condemning "the said defendants to suffer the penalty of reclusion perpetua." The Trial Court stressed that "the revelations . . . in the confession all tally with the evidences adduced during the trial, viz.: the hacking by Robert of his father with a bolo is confirmed by the doctor who examined the cadaver; the carrying of the body from the house to the cliff is confirmed by the evidences of the bloodstains found along the way from the house to the cliff and of the signs of a body being dragged along the bushes." The Court then made the following legal pronouncements: "The Court agrees with the . . . prosecution that a confession, although unsigned and/or involuntarily given, is admissible as evidence if in consequence of such confession facts are discovered which confirm it. As correctly pointed out, jurisprudence sustains the admission of such an involuntary confession (People v. Fontanilla [CA] O.G. 1313), and where details as described in such confession is corroborated by evidence aliunde which dovetails with the essential fact contained in the confession (People v. Elizaga, 23 SCRA 449). "The evidence, likewise, show conspiracy on the part of both accused, Marcos and Robert. While an extrajudicial confession is, under certain conditions, admissible only as against the person who made it and not as against his co-defendants, it becomes admissible as corroborative evidence of other facts that stand to establish the guilt of his co-defendants (People v. Simbajon, et al., L-18073-75, Sept. 20, 1965)."

From this judgment the defendants have taken an appeal to this Court and here ascribe the following errors to the Trial Court, to wit: 1)"not giving credit to the claim of accused Marcos Jimenez that what he stated in the alleged confession is in accordance with what his uncle, Marcos Jimenez, wanted him to tell and that he was pressured to admit the crime under threat of punishment; " 2)"not giving credence to the testimony of accused Robert Jimenez to the effect that he had nothing to do with the death of his father . . .;"

3)"holding that Pelagio Jimenez was found in the house near the cliff on August 13, 1985;"LLphil 4)"giving credence to the testimony of ex-Judge Pacita Jabagat to the effect that she was in the office of the Station Commander of Ginatilan, Cebu, in the afternoon of August 16, 1985 and she was then the counsel of accused Marcos Jimenez for the purpose of the confession and that she read the confession to him and when asked whether he admitted to be true all the allegations as stated in the confession, confirmed that everything is true;" 5)"holding that the evidence shows conspiracy on the part of both accused . . .;" and 6)"finding and holding both accused . . . guilty beyond reasonable doubt of the crime of parricide by mere circumstantial evidence, there being no eyewitness available." The Constitution explicitly declares that a person being investigated by the police as a suspect in an offense has the right, among others, 'to have competent and independent counsel preferably of his own choice" and if he "cannot afford the services of counsel, he must be provided with one;" and that said right "cannot be waived except in writing and in the presence of counsel. 1 The lawyer who assists the suspect under custodial investigation should be of the latter's own choice, not one foisted on him by the police investigators or other parties. In this case, former Judge Jabagat was evidently not of Marcos ,Jimenez' own choice; she was the police officers' choice; she did not ask Marcos if he was willing to have her represent him; she just told him: "I am here because I was summon(ed) to assist you and I am going to assist you." This is not the mode of solicitation of legal assistance contemplated by the Constitution. In one case, the confession of an accused was rejected there being no showing that the lawyer of the Citizens' Legal Assistance Office (CLAO) called by the National Bureau of Investigation to assist the accused was his counsel of choice. 2 In another case, the confession given during custodial investigation was invalidated where it appeared that the lawyers called to be present at the interrogation were members of the police organization investigating the suspects and did not actively assist and advise them, being there merely to give a semblance

of legality to the proceedings. 3 In still another case, the confession of the defendant was disregarded upon a showing that he had been assisted by an assistant fiscal (public prosecutor), who "cannot exercise the function of defense counsel even during custodial investigation," and to allow such a practice "would render usury the protection given to the accused." 4 Furthermore, the evidence discloses that Judge Jabagat was not present at the critical time that interrogation of Marcos Jimenez by the police was actually taking place. She came only after the questioning had been completed, and the handwritten record of Marcos Jimenez' answers already typewritten- and all she did was to show the typewritten document to Marcos and ask him if he had voluntarily given the statements therein contained. This is far from being even substantial compliance with the constitutional duty of police investigators during custodial interrogation, supra. It follows that neither the handwritten summary of Marcos Jimenez' answers made by two investigating officers for the typewritten statement based thereon is admissible. The typewritten confession is, in any event, unsigned, as are the handwritten notes from which the former was derived. The confession was in fact expressly rejected by Marcos Jimenez as not reflective of his own perceptions and recollection, but as containing only what his uncle, Marcos Jimenez, had instructed him to tell the police "under threat of punishment." Hence, the supposed waiver made therein of his constitutional right to counsel of his own choice is void. The interrogation of Marcos Jimenez having been conducted without the assistance of counsel, and no valid waiver of said right to counsel having been made, not only the confession but also any admission obtained in the course thereof are inadmissible against Marcos Jimenez. This, too, is the explicit mandate of the Constitution: any confession or admission obtained in violation among others of the rights guaranteed in custodial investigations shall be inadmissible in evidence against the person making the confession or admission. This is so even if it be shown that the statements attributed to the accused were voluntarily made, or are afterwards confirmed to be true by external circumstances. Cdpr Equally obvious is that any confession or admission ascribed to Marcos Jimenez in the premises is inadmissible against his brother, his co-accused, Robert Jimenez, not only because obtained in violation of the Constitution and therefore void, but also because of the familiar principle of res inter alios acta. 5 "The rights of a party cannot be prejudiced by an act, declaration, or omission of another;" 6 the confession of an accused is admissible only against him, but not against his co-defendants.7 Now, without the confession or the admissions imputed to Marcos Jimenez, the rest of the evidence of the prosecution is inadequate to overcome the presumption of innocence raised by the fundamental law in favor of both the accused. For instance, proof of the presence of the appellants at or near the place of the commission of the crime is innocuous. They were after all children of the deceased, one of whom usually

slept in the same house as the latter. And the fact that there might have been some animosity and quarrels between the deceased, on the one hand, and his wife and children, on the other, would indicate at the most that the latter might have reason to wish him ill, but would not be proof that they actually attacked and killed him. Furthermore, the witnesses who gave evidence of said quarrels were close relatives of the deceased, i.e., his brothers, a sister-inlaw, his cousins, who were not themselves on good terms with at least one of the appellants. Eng. Marcos Jimenez, brother of the victim, was the one who requested Lt. Bancog, the Police Chief of another town, to investigate close members of the victim's family on the basis, according to him of "rumors" and "gossips" 8 circulating in the barrio. Another brother of the victim, Dr. Mario Jimenez, who together with Eng. Jimenez, testified as to previous quarrels between the deceased and appellant, had a previous misunderstanding with appellants concerning the latter's unauthorized sale of the former's copra. Jacinta Jimenez who testified to a recent quarrel between the victim and his wife and sons Marcos and Robert, is the wife of Eng. Marcos Jimenez. Another relative of the deceased, Manolita Castaares, testified to having heard a conversation between the victim's wife Albina and the latter's son Marcos wherein the mother chided her son for giving wrong answers during the investigation. The information gathered by the police to the effect that Marcos and Robert Jimenez had been seen by neighbors bathing at the artesian well at midnight of the day of the crime, ostensibly washing away blood from their bodies and clothing, is patently speculative and arrant hearsay. Not one of the persons who had supposedly seen the appellants washing themselves ever took the witness stand to affirm this. It is not correct to say, as the Trial Court does in its judgment under review, that the appellants had tried to cover up the commission of the crime by not reporting it immediately to the authorities and by attempting, during the search for the deceased, to prevent others from going to the precise spot where the slain man was eventually found. That the appellants did not immediately notify the authorities that Pelagio Jimenez was missing cannot be taken as an inculpatory circumstance against them. The truth is that the victim's family and neighbors first looked everywhere for him, and when he was finally found after a day's search, Marcos Jimenez forthwith reported his father's death to the police. The truth is, too, that as disclosed by the evidence, Robert Jimenez had indeed conducted a search for his father in the vicinity of the cliff near the balite tree where his father's body was found the following day. Marcos Jimenez knew this, and this is why he afterwards told other persons involved in the search not to proceed to that place any more. It bears stressing that the area covered by the search has been described as a "vast" area, and there were many large boulders and thick bushes about the balite tree. This might explain why the corpse could not be immediately located. In fact, were it not for the foul odor emanating from the direction of the balite tree, the searchers would not have proceeded thereto as the place was so secluded. prcd In fine, all the evidence considered, it appears that the prosecution has failed to demonstrate the guilt of the appellants of the crime with which they are charged beyond reasonable doubt.

WHEREFORE, the decision of the Trial Court dated November 21, 1986 is REVERSED, and the appellants, Marcos P. Jimenez and Robert Jimenez, are ACQUITTED, with costs de oficio. SO ORDERED

SECOND DIVISION [G.R. No. 97936. May 29, 1995.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO LUCERO y CORTEL, accused-appellant.

counsel but effective and vigilant counsel. The circumstances in the case at bench clearly demonstrate that appellant received no effective counselling from Atty. Peralta. In People v. de Guzman, we held that in custodial investigation, the right to counsel attaches from the moment the investigation starts, i.e., when the investigating officer starts to ask questions to elicit information and confessions or admissions from the accused. In this case, at the crucial point when the interrogation was just starting, Atty. Peralta left appellant to attend the wake of a friend. At that critical stage, appellant gave his uncounselled extra-judicial confession. Surely, such a confession where appellant was unprotected from mischief cannot convict. 4.REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; CONVICTION MUST NOT BE BASED ON THE WEAKNESS OF THE DEFENSE BUT ON THE STRENGTH OF THE PROSECUTION EVIDENCE. Neither can the trial court convict appellant on the ground that alibi is inherently a weak defense. Chiseled in our jurisprudence is the rule that the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. Given the uncertainty of appellant's identification and the inadmissibility of his uncounselled confession, there is no thread of evidence to criminally inculpate appellant.

SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; ADVERSELY AFFECTED WHERE COMPLAINANT IDENTIFIED THE ACCUSED ONLY AFTER THE LATTER HAD TO PARTICIPATE AT THE POLICE LINEUP FOUR (4) TIMES. The credibility of the main prosecution eyewitness, Dr. Demetrio Madrid who identified appellant, is seriously open to doubt. It stands unrebutted on the record that appellant had to participate at the police line-up four (4) times before he was finally identified by Dr. Madrid. There is no reason for the ambivalence. The robbery took place in broad daylight and the three malefactors wore no mask. They drove them around for three (3) hours. Considering these circumstances, there is no reason for Dr. Madrid's failure to immediately identify appellant. We are also disconcerted by the vacillating testimony of Dr. Madrid during the trial. Initially, Dr. Madrid claimed that he could identify only one of the robbers who staged the hold-up. At another point, Dr. Madrid said he could identify two of the malefactors. In his Affidavit, Dr. Madrid represented he could identify all three. Appellant's conviction cannot made to rest on this nebulous identification by Dr. Madrid. 2. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; DENIED WHERE COUNSEL WHO WAS NOT THE CHOICE OF APPELLANT LEFT AT THE START OF THE PRELIMINARY INVESTIGATION WHERE APPELLANT GAVE AN UNCOUNSELLED CONFESSION. The records show that Atty. Peralta, who was not the counsel of choice of appellant, arrived at the CIS Office on the second night of appellant's detention. More exactly, he arrived at the CIS Office at around 9:00 p.m. and talked with appellant about his rights. Atty. Peralta himself admitted he received no reaction from appellant although his impression was that appellant understood him. Worse, Atty. Peralta left appellant in the custody of the CIS agents when his real interrogation started. He said he had to attend the wake of a friend. His attitude did not speak well of the importance he gave to his role as counsel to a person under custodial interrogation for the commission of a very serious offense. It was during his absence that appellant gave an uncounselled confession. They tried to cure his uncounselled confession for the next day, appellant was brought by two (2) CIS agents to Atty. Peralta's house. In the presence of these agents, Atty. Peralta asked appellant if he understood the statements he gave and if he signed it voluntarily, appellant, of course, affirmed the voluntariness of the execution of the confession. Atty. Peralta was satisfied and the trial court ruled that appellant's right to counsel was not abridged. We disagree. 3. ID.; ID.; ID.; RIGHT REQUIRES AN EFFECTIVE AND VIGILANT COUNSEL; CASE AT BAR. We hold that when the Constitution requires the right to counsel, it did not mean any kind of

DECISION

PUNO, J p: If the Constitution has any value, it is because it stands up for those who cannot stand up for themselves. Thus, it protected those under custodial investigation with the all-important right to counsel. We hold that the right to counsel cannot be diluted without tampering the scales of justice. For denial of his right to counsel, we acquit accused-appellant. Alejandro Lucero, Bienvenido Echavez, Balbino Echavez, Peter Doe, Richard Doe and John Doe were charged with the crime of robbery with homicide. The Information against them reads: LLphil "That on or about the 7th day of May, 1988, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another, did then and there, wilfully, unlawfully and feloniously rob one DR. DEMETRIO Z. MADRID, in the manner as follows: on the date and in the place aforementioned, the said accused, one armed with handgun, pursuant to their conspiracy blocked the way of the said complainant who was on board a Mercedes Benz cruising along Road 14 near (the) corner (of) Mindanao Avenue, Pag-asa, this City, and did then and there, by means of violence and intimidation against persons, take, rob and

carry away his cash money amounting to P6,600.00; one gold necklace with cross pendant, 7 karat, worth P45,000.00; one (1) gold Rolex watch worth P155,000.00; one (1) 3 karat gold ring worth P80,000.00; one 2 karat gold ring, domino style, worth P27,000.00; one (1) solid gold bracelet worth P50,000.00; all worth P363,600.00, Philippine Currency, belonging to said DR. DEMETRIO Z. MADRID, to the damage and prejudice of the said offended party in the total amount aforementioned; that on the occasion of the robbery and pursuant to their conspiracy, the above-named accused, with intent to kill, and taking advantage of the(ir) superior strength, with the use of handgun, shot LORENZO BERNALES y ALERIA, a driver of the said offended party, thus inflicting upon him serious and mortal wounds which resulted to the insta(n)taneous death of the said LORENZO BERNALES y, ALERIA, to the damage and prejudice of the heirs of said LORENZO BERNALES y ALERIA in such amount as may be awarded to them under the provisions of the Civil Code. "Contrary to law." 1 Only the accused Echavez brothers and Alejandro Lucero were apprehended. The others remained at large. Trial proceeded only as against the three. The evidence on record shows that on May 6, 1988, private complainant DR. DEMETRIO Z. MADRID spent the night at his boarding house, located at #35 Ilocos Norte Street, Bago-Bantay, Quezon City. He wanted to return that night to his residence at Project 6, Quezon City. However, his driver, Lorenzo Bernales, advised him not to leave that night for Bernales overheard that the group of Balbino and Bienvenido Echavez would rob him on his way home. He heeded the advice. cdphil It was around 7:00 a.m., the next day, that Dr. Madrid again asked his driver to bring him to his main residence in Project 6, Quezon City. While traversing Road 14, a gray-reddish car overtook the Mercedes Benz he was riding and blocked their way. Three (3) men swiftly alighted from the car blocking them and barged into his Benz. The first grabbed the driver's seat and pushed his driver to the other side of the seat. The second occupied the right side of his driver. The third sat beside Dr. Madrid at the back seat and punched him. Simultaneously, the man at the right side of his driver pulled out his gun and announced a hold-up. 2 The man beside Dr. Madrid divested him of the following: a gold Rolex watch, studded with diamonds, worth P155,000.00, a three (3) carat diamond ring worth P80,000.00, another two (2) carat domino-style ring, surrounded with diamonds worth P27,000.00, a necklace worth P27,000.00, a bracelet worth P50,000.00, and his wallet containing P6,600.00. 3 After driving them around the area for a couple of hours, the malefactors stopped his car and alighted. The worst came. The man at the right side of his driver shot the latter at the chest before fleeing. Dr. Madrid and his driver were rushed by concerned citizens to the Veterans Memorial Hospital. Two hours later, his driver died of hemorrhage as a result of the gunshot wound he sustained.4 Dr. Madrid

survived. 5 He reported the incident to the Quezon City police. When no action was taken on his case, he filed his complaint with the Special Operations Group of the Central Intelligence Service (CIS). 6 Two months later, the CIS' efforts paid-off. On July 23, 1988, the Special Operations Group headed by Capt. Raul Boac, after a surveillance of the suspects, interrogated Bienvenido Echavez in Camp Crame. Two days later, they apprehended Balbino Echavez and Alejandro Lucero. They turned them over to the Investigation Department of the CIS. 7 Pfc. Alberto Pursal was assigned to conduct the investigation of the suspects. He declared that even before the investigation started, Lucero verbally admitted his participation in the crime and that he was the one who shot Bernales, the driver of Dr. Madrid. 8 In any event, Pfc. Pursal went thru the motions of investigation. He informed Lucero of his constitutional rights to remain silent and to counsel. When Lucero told him that he had no lawyer, Pursal informed the CIS Legal Department about Lucero's need for a lawyer.9 In due time, Atty. Diosdado Peralta appeared at the investigator's office at around 9:00 p.m. He identified himself as the lawyer who was requested to assist Lucero and inquired about the latter's whereabouts. He was then directed to where Lucero was. prLL

Atty. Peralta conferred with Lucero. He also apprised Lucero of his constitutional rights. He explained to Lucero that he has the right to remain silent, that he is not obliged to give any statement to the investigators, and that even if he has already given a statement, he may refuse to sign it. He observed no reaction from Lucero. Nonetheless, Atty. Peralta gathered the impression that Lucero understood his advice. Thereafter, the CIS investigator began taking down Lucero's statement. When the investigator started asking the preliminary questions, Atty. Peralta left to attend the wake of his friend, Capt. Emilio Dacanay, at Fort Bonifacio . He gave word that in case of need, he could be reached at his residence. The next morning, Lucero was accompanied by two (2) CIS agents to Atty. Peralta's house. The extrajudicial statement of Lucero (Exhibit "C"), was presented to Atty. Peralta. It was already signed by Lucero. In the presence of the two (2) CIS agents, Atty. Peralta examined Exhibit "C" and explained to Lucero its legal implications. He asked Lucero whether he gave the statements voluntarily. Lucero replied in the affirmative. Atty. Peralta then signed Exhibit "C." 10 The three (3) accused denied complicity in the crime charged. Appellant Lucero's defense is alibi. He testified that on May 7, 1988, he was at his house in Caloocan City. He woke up at 6:30 a.m., stayed at his house the whole day repairing the upholstery of a customer's chair. He was then with his cousin Marcelino Seneta and his wife Mylen Lucero. He worked until 5 p.m. that day.

Lucero was apprehended on July 25, 1988, more than two (2) months after the commission of the crime. He said he was surprised when several unidentified men accosted him while he was walking towards his house. They chased him, handcuffed and blindfolded him and pushed him into a jeep. He was blindfolded the whole night and did not know where he was taken. The men turned out to be police officers. Later, he identified one of the men to be Capt. Boak, head of the CIS Special Operations Group. The next day, he learned he was in Camp Crame. He claimed that he was tortured. He was not informed of the offense for which he was being investigated. Neither did they reveal the identity of the complainant. A couple of days lapsed and a CIS agent brought him to a clinic inside Camp Crame. The doctor saw the contusions on his body. He advised that he be treated. The CIS agent refused and they left the clinic. Lucero denied knowing Dr. Madrid, the Echavez brothers and the other accused in this case. He said he only met Dr. Madrid at the CIS Office during the police line-up. He was made to line-up four (4) times before Dr. Madrid finally identified him on the fourth time. Lucero also claimed he signed the extrajudicial confession (Exhibit "C")11 under duress. He denied engaging the services of Atty. Peralta. He likewise confirmed that Atty. Peralta was not present during his actual custodial interrogation. 12 After trial, the court a quo acquitted the Echavez brothers for insufficient evidence. The trial court, however, convicted accused Lucero. The dispositive portion of the Decision 13 reads: LLphil "ACCORDINGLY, judgment is hereby rendered as follows: "1.The accused brothers BIENVENIDO ECHAVEZ y VALIDA and BALBINO ECHAVEZ y VALIDA are hereby ACQUITTED for insufficiency of evidence; and "2.Accused ALEJANDRO LUCERO y CORTEL is hereby found GUILTY beyond reasonable doubt as principal by direct participation of Robbery with Homicide. Alejandro Lucero is hereby sentenced to suffer an imprisonment term of RECLUSION PERPETUA. "On the civil aspect, Alejandro Lucero is hereby ordered a) to pay the heirs of the deceased victim Lorenzo Bernales y Aleria the sum of P30,000.00 as actual damages and P50,000.00 as moral damages for the mental anguish suffered by his family; and b) to pay Dr. Demetrio Z. Madrid the sum of P363,600.00 representing the cash money, and money value of the jewelries and wristwatch he lost due to the robbery at bar. "SO ORDERED." 14

Hence this appeal by Lucero, raising the following assignments of error: 1.THE LOWER COURT ERRED IN GIVING MORE WEIGHT TO THE EVIDENCES (SIC) OF THE PROSECUTION WHICH WERE INCONSISTENT, NOT CREDIBLE, UNRELIABLE, DOUBTFUL AND INSUFFICIENT TO SUPPORT ACCUSED-APPELLANT'S CONVICTION BEYOND REASONABLE DOUBT. 2.THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSEDAPPELLANT OF THE ALLEGED CRIME OF ROBBERY WITH HOMICIDE INSPITE OF THE FACT THAT CONSPIRACY WAS NOT PROVEN IN THIS CASE. 3.THAT THE LOWER COURT ERRED IN CONVICTING ACCUSEDAPPELLANT OF THE CRIME CHARGED ON THE BASIS OF HIS ALLEGED EXTRAJUDICIAL CONFESSION (MADE IN CUSTODIAL INVESTIGATION) WHICH WAS OBTAINED THRU FORCE, VIOLENCE AND WITHOUT THE PRESENCE OF COUNSEL OF HIS OWN CHOICE OR ENGAGED BY ANY PERSON ON HIS BEHALF OR APPOINTED BY THE LOWER COURT AND THEREFORE SUFFERED CONSTITUTIONAL INFIRMITIES. 4.THAT THE LOWER COURT ERRED IN CONVICTING ACCUSEDAPPELLANT OF THE CRIME CHARGED INSPITE OF THE FACT THAT THE ACCUSED-APPELLANT WAS NOT POSITIVELY IDENTIFIED WITH CERTITUDE BY THE PROSECUTION. 5.THAT THE LOWER COURT ERRED IN CONVICTING ACCUSEDAPPELLANT OF THE CRIME CHARGED PRIMARILY ON THE BASIS OF THE WEAKNESS OF HIS DEFENSE OF ALIBI AND NOT ON THE STRENGTH OF THE PROSECUTION EVIDENCE; AND INSPITE OF THE LACK OF POSITIVE IDENTIFICATION OF ACCUSED-APPELLANT. 6.THAT THE LOWER COURT ERRED IN CONVICTING ACCUSEDAPPELLANT AND NOT ACQUITTING HIM LIKE HIS CO-ACCUSED AND ALLEGED CO-CONSPIRATORS [THE ECHAVEZ BROTHERS] OF THE CRIME CHARGED. We find the appeal meritorious. The conviction of appellant rests on two (2) facts: (a) his positive identification by the complainant, and (b) his extra-judicial confession admitting his participation in the crime. We find that the evidence proving these facts cannot stand scrutiny.

Firstly, the credibility of the main prosecution eyewitness, Dr. Demetrio Madrid who identified appellant, is seriously open to doubt. It stands unrebutted on the record that appellant had to participate at the police line-up four (4) times before he was finally identified by Dr. Madrid. There is no reason for the ambivalence. The robbery took place in broad daylight and the three malefactors wore no mask. They drove them around for three (3) hours. Considering these circumstances, there is no reason for Dr. Madrid's failure to immediately identify appellant. llcd We are also disconcerted by the vacillating testimony of Dr. Madrid during the trial. Initially, Dr. Madrid claimed that he could identify only one of the robbers who staged the hold-up.15 At another point, Dr. Madrid said he could identify two of the malefactors. 16 In his Affidavit, Dr. Madrid represented he could identify all three.17 Appellant's conviction cannot be made to rest on this nebulous identification by Dr. Madrid. Secondly, appellant's conviction cannot be based on his extra-judicial confession. The 1987 Constitution 18 requires that a person under investigation for the commission of a crime should be provided with counsel. We have constitutionalized the right to counsel because of our hostility against the use of duress and other undue influence in extracting confessions from a suspect. Force and fraud tarnish confessions and render them inadmissible. 19 We take pride in constitutionalizing this right to counsel even while other countries have desisted from elevating this right to a higher pedestal. We have sustained the inviolability of this precious right with vigor and without any apology. The trial court did not display the required sensitivity to appellant's right to counsel. Indeed, it did not impose a rigorous respect for the right. It was satisfied that there was "substantial" compliance with the requirements of right to counsel. This is far from the intent of the Constitution. The records show that Atty. Peralta, who was not the counsel of choice of appellant, arrived at the CIS Office on the second night of appellant's detention. More exactly, he arrived at the CIS Office at around 9:00 p.m. and talked with appellant about his rights. Atty. Peralta himself admitted he received no reaction from appellant although his impression was that appellant understood him. 20 Worse, Atty. Peralta left appellant in the custody of the CIS agents when his real interrogation started. He said he had to attend the wake of a friend. His attitude did not speak well of the importance he gave to his role as counsel to a person under custodial interrogation for the commission of a very serious offense. It was during his absence that appellant gave an uncounselled confession. They tried to cure his uncounselled confession for the next day, appellant was brought by two (2) CIS agents to Atty. Peralta's house. In the presence of these agents, Atty. Peralta asked appellant if he understood the statements he gave and if he signed it voluntarily. Appellant, of course, affirmed the voluntariness of the execution of the confession. Atty. Peralta was satisfied and the trial court ruled that appellant's right to counsel was not infringed. We disagree. LLphil We hold that when the Constitution requires the right to counsel, it did not mean any kind of counsel but effective and vigilantcounsel. The circumstances in the case at bench clearly demonstrate that appellant received no effective counseling from

Atty. Peralta. InPeople v. De Guzman,21 we held that in custodial investigation, the right to counsel attaches from the moment the investigation starts, i.e., when the investigating officer starts to ask questions to elicit information and confessions or admissions from the accused. In this case, at the crucial point when the interrogation was just starting, Atty. Peralta left appellant to attend the wake of a friend. At that critical stage, appellant gave his uncounselled extrajudicial confession. Surely, such a confession where appellant was unprotected from mischief cannot convict.

Neither can the trial court convict appellant on the ground that alibi is inherently a weak defense. Chiseled in our jurisprudence is the rule that the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. Given the uncertainty of appellant's identification and the inadmissibility of his uncounselled confession, there is no thread of evidence to criminally inculpate appellant. IN VIEW WHEREOF, the Decision in Criminal Case No. Q-88-201 of the Regional Trial Court of Quezon City, Branch CIII, convicting appellant Alejandro Lucero y Cortel of robbery with homicide is hereby REVERSED AND SET ASIDE. SO ORDERED.