G.R. No.

85215 July 7, 1989

2-8-86

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.

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 P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE
IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.es

Nelson Lidua for private respondent.

NARVASA, J.:
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, 1the 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 notes 3 reading as follows:

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 x x 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, 6which 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 x x given on February 8, 1986,"
also above referred to, which had been marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s
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 x x 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 x x for the same
reason stated in the exclusion of Exhibit 'A' since it does not appear that
the accused was assisted by counsel when he made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied,
by Order dated September 14, 1988. 10 In justification of said Order,
respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan
Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA
467, People. v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA
496, among others, to the effect that "in custodial investigations the right to
counsel may be waived but the waiver shall not be valid unless made with
the assistance of counsel," and the explicit precept in the present
Constitution that the rights in custodial investigation "cannot be waived
except in writing and in the presence of counsel." He pointed out that the
investigation of Felipe Ramos at the PAL Baguio Station was one "for the
offense of allegedly misappropriating the proceeds of the tickets issued to
him' and therefore clearly fell "within the coverage of the constitutional
provisions;" and the fact that Ramos was not detained at the time, or the
investigation was administrative in character could not operate to except
the case "from the ambit of the constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now
assailed in the petition for certiorari and prohibition at bar, filed in this
Court by the private prosecutors in the name of the People of the
Philippines. By Resolution dated October 26, 1988, the Court required
Judge Ayson and Felipe Ramos to comment on the petition, and directed
issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the

respondents from proceeding further with the trial and/or hearing of

Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the
issuance of any order, decision or judgment in the aforesaid case or on
any matter in relation to the same case, now pending before the Regional
Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also
subsequently required the Solicitor General to comment on the petition.
The comments of Judge Ayson, Felipe Ramos, and the Solicitor General
have all been filed. The Solicitor General has made common cause with
the petitioner and prays "that the petition be given due course and
thereafter judgment be rendered setting aside respondent Judge's Orders .
. . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The
Solicitor General has thereby removed whatever impropriety might have
attended the institution of the instant action in the name of the People of
the Philippines by lawyers de parte of the offended party in the criminal
action in question.
The Court deems that there has been full ventilation of the issue of
whether or not it was grave abuse of discretion for respondent Judge to
have excluded the People's Exhibits A and K. It will now proceed to resolve
it.
At the core of the controversy is Section 20, Article IV of the 1973
Constitution, 11 to which respondent Judge has given a construction that is
disputed by the People. The section reads as follows:
SEC. 20. No person shall be compelled to be a witness against himself
Any person under investigation for the commission of an offense shall
have the right to remain silent and to counsel, and to be informed of such
right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in
violation of this section shall be inadmissible in evidence.
It should at once be apparent that there are two (2) rights, or sets of rights,
dealt with in the section, namely:

1) the right against self-incrimination i.e., the right of a person not to be

compelled to be a witness against himself set out in the first sentence,
which is a verbatim reproduction of Section 18, Article III of the 1935
Constitution, and is similar to that accorded by the Fifth Amendment of the
American Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights of every
suspect "under investigation for the commission of an offense."
Parenthetically, the 1987 Constitution indicates much more clearly the
individuality and disparateness of these rights. It has placed the rights in
separate sections. The right against self- incrimination, "No person shall
be compelled to be a witness against himself," is now embodied in Section
17, Article III of the 1987 Constitution. The lights 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 refue 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.

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

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

1) he shall have the right to remain silent and to counsel, and to be

informed of such right, 21

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 selfincrimination which, as aforestated, indiscriminately applies to any person
testifying in any proceeding, civil, criminal, or administrative.

Section 20 states that whenever any person is "under investigation for the
commission of an offense"--

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 x x (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.

This provision granting explicit rights to persons under investigation for an

offense was not in the 1935 Constitution. It is avowedly derived from the

The objective is to prohibit "incommunicado interrogation of individuals in a

police-dominated atmosphere, resulting in self-incriminating statement
without full warnings of constitutional rights." 25

compliance with the constitutional procedure on custodial interrogation not

being exigible under the circumstances.
Rights of Defendant in Criminal Case

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 tanned 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,

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 self- incrimination set out in the first
sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to
refuse to answer a specific incriminatory question at the time that it is put
to him. 30
Additionally, the accused in a criminal case in court has other rights in the
matter of giving testimony or refusing to do so. An accused "occupies a
different tier of protection from an ordinary witness." Under the Rules of
Court, in all criminal prosecutions the defendant is entitled among others-

1) to be exempt from being a witness against himself, 31 and 2) to testify as

witness in his own behalf; but if he offers himself as a witness he may be
cross-examined as any other witness; however, his neglect or refusal to be
a witness shall not in any manner prejudice or be used against him. 32

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.

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

In fine, a person suspected of having committed a crime and subsequently

charged with its commission in court, has the following rights in the matter
of his testifying or producing evidence, to wit:

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 cross-examined as to any matters stated in his
direct examination, or connected therewith . 36 He may not on crossexamination 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.

a) to refuse to be a witness;

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

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

b) not to have any prejudice whatsoever result to him by such refusal;

c) to testify in 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 crime other than that for which he is then
prosecuted.
It should by now be abundantly apparent that respondent Judge has
misapprehended the nature and import of the disparate rights set forth in
Section 20, Article IV of the 1973 Constitution. He has taken them as

applying to the same juridical situation, equating one with the other. In so
doing, he has grossly erred. To be sure, His Honor sought to substantiate
his thesis by arguments he took to be cogent and logical. The thesis was
however so far divorced from the actual and correct state of the
constitutional and legal principles involved as to make application of said
thesis to the case before him tantamount to totally unfounded, whimsical
or capricious exercise of power. His Orders were thus rendered with grave
abuse of discretion. They should be as they are hereby, annulled and set
aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not
in any sense under custodial interrogation, as the term should be properly
understood, prior to and during the administrative inquiry into the
discovered irregularities in ticket sales in which he appeared to have had a
hand. The constitutional rights of a person under custodial interrogation
under Section 20, Article IV of the 1973 Constitution did not therefore
come into play, were of no relevance to the inquiry. It is also clear, too, that
Ramos had voluntarily answered questions posed to him on the first day of
the administrative investigation, February 9, 1986 and agreed that the
proceedings should be recorded, the record having thereafter been
marked during the trial of the criminal action subsequently filed against him
as Exhibit A, just as it is obvious that the note (later marked as Exhibit K)
that he sent to his superiors on February 8,1986, the day before the
investigation, offering to compromise his liability in the alleged
irregularities, was a free and even spontaneous act on his part. They may
not be excluded on the ground that the so-called "Miranda rights" had not
been accorded to Ramos.
His Honor adverts to what he perceives to be the "greater danger x x (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 over-eagerness or zealousness bear heavily on

their hapless suspects, whether employees or not, to give statements

under an atmosphere of moral coercion, undue ascendancy and undue
influence." It suffices to draw attention to the specific and peremptory
requirement of the law that disciplinary sanctions may not be imposed on
any employee by his employer until and unless the employee has been
accorded due process, by which is meant that the latter must be informed
of the offenses ascribed to him and afforded adequate time and
opportunity to explain his side. The requirement entails the making of
statements, oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the assistance of
counsel, or his colleagues and friends. The employee may, of course,
refuse to submit any statement at the investigation, that is his privilege.
But if he should opt to do so, in his defense to the accusation against him,
it would be absurd to reject his statements, whether at the administrative
investigation, or at a subsequent criminal action brought against him,
because he had not been accorded, prior to his making and presenting
them, his "Miranda rights" (to silence and to counsel and to be informed
thereof, etc.) which, to repeat, are relevant only in custodial investigations.
Indeed, it is self-evident that the employee's statements, whether called
"position paper," "answer," etc., are submitted by him precisely so that they
may be admitted and duly considered by the investigating officer or
committee, in negation or mitigation of his liability.
Of course the possibility cannot be discounted that in certain instances the
judge's expressed apprehensions may be realized, that violence or
intimidation, undue pressure or influence be brought to bear on an
employee under investigation or for that matter, on a person being
interrogated by another whom he has supposedly offended. In such an
event, any admission or confession wrung from the person under
interrogation would be inadmissible in evidence, on proof of the vice or
defect vitiating consent, not because of a violation of Section 20, Article IV
of the 1973 Constitution, but simply on the general, incontestable
proposition that involuntary or coerced statements may not in justice be

received against the makers thereof, and really should not be accorded
any evidentiary value at all.
WHEREFORE, the writ of certiorari is granted annulling and setting aside
the Orders of the respondent Judge in Criminal Case No. 3488-R, dated
August 9, 1988 and September 14, 1988, and he is hereby ordered to
admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal
Case No. 3488-R, and thereafter proceed with the trial and adjudgment
thereof. The temporary restraining order of October 26, 1988 having
become functus officio, is now declared of no further force and effect.

G.R. No. 95604 April 29, 1994

LUCIANO KIMPO y NIANUEVO, petitioner,
vs.
THE SANDIGANBAYAN AND PEOPLE OF THE
PHILIPPINES, respondents.
Augusto S. Sanchez & Associates Law Firm for petitioner.
The Solicitor General for the People of the Philippines.

VITUG, J.:

Petitioner Luciano Kimpo y Nianuevo, a Special Collecting Officer of the

Bureau of Domestic Trade at General Santos City, was found guilty
beyond reasonable doubt by the Sandiganbayan of malversation of public
funds. He appealed to this Court.
The case was initiated by Special Prosecution Officer Mothalib C. Onos
who, on 29 March 1989, filed with the Sandiganbayan an information
charging petitioner with having committed the following offense:
That on or about April 30, 1985 and/or sometime prior thereto, in General
Santos city, and within the jurisdiction of this Honorable Court, accused
Luciano Kimpo, a public officer, being the Special Collecting Officer,
Bureau of Domestic Trade, General Santos City, and as such is an
accountable officer responsible for the funds collected by him by reason of
the duties of his office, did then and there wilfully, unlawfully and
feloniously, with grave abuse of confidence, appropriate, embezzle and
convert to his personal use and benefit the sum of Fifteen Thousand Three
Hundred Nine Pesos (P15,309.00), which amount constitutes his
collection, to the damage and prejudice of the Government in the aforesaid
amount.

2. That an audit-examination of the cash and accounts of the accused was

conducted on April 30, 1985; that the corresponding Report of Examination
(Exhibit B), Statement of Accountability for Accountable Forms without
Money Value (Exhibit B-1), and Reconciliation Statement of Accountability
(Exhibit B-3) were made and signed, and that the signatures appearing on
the dorsal side of Exhibits B and B-1 are those of the accused, all these
admissions being subject to the qualification that the accused is
questioning the validity of the audit examination and the accuracy of the
results thereof on constitutional grounds;
3. The existence of Exhibits C, E, F, M and M-1, including the fact that they
are faithful copies of the originals, subject to the same qualification made
with respect to Exhibits B, B-1 and B-2;
4. The existence of Exhibits D and D-1, including the fact that they are
correct copies of the originals, but not their relevance;
5. Exhibit H as the Official Cash Book of the accused and his signatures
appearing between the entries therein beginning August 1, 1984 and up to
April 31, 1985, with the qualification that the said entries were not made by
him;

Contrary to law.
1

When arraigned, petitioner, assisted by counsel, pleaded, "not guilty."

At the pre-trial inquest conducted by the Sandiganbayan, the following
exhibits were admitted:
1. Exhibits A and A-1, as well as the fact that they are faithful reproductions
of the originals. In connection therewith, the accused admitted that he was
on or before April 30, 1985, Special Collecting Officer, Bureau of Trade,
General Santos City;

6. The existence of Exhibits I, I-1 to I- 40, J, J-1 to J-95, K,

K-1 to K-26, and L, L-1 to L-44 (carbon copies of official receipts) and his
signatures thereon, subject to the qualification that the entries therein were
not made by him;
7. Exhibit N, subject to the qualification that the data mentioned therein
were based on the results of the audit examination, the validity and
accuracy of which are questioned;
8. Exhibits A 1-1, N 2-2, T 2-1, L 3-1, F 4-2, A 5, L 7, N 7-1, U 7-2, B 8-1, C 8, D 8,
E 8, G 8, G 8, H 8, M 8-2, Y 8-2 AND Y 8-2 AND Y 8-3 (xerox copies of official

10

receipts), including the fact that they are faithful reproductions of the
originals;
9. Exhibits J 8 to O 8, as well as the signatures appearing on the last page
of each exhibit and the fact that they are true copies of the originals.
The testimonial evidence consisted of the testimonies of Lydia Mendoza,
State Audit Examiner of the Commission on Audit, for the prosecution, and
of Milda de la Pea, Trade and Industry Analyst of the Department of
Trade and Industry at its South Cotabato Provincial Office, as well as that
of petitioner Kimpo himself, for the defense.
From all the evidence adduced, the Sandiganbayan concluded, thus:
Accused herein having admitted his public position as alleged in the
information and the existence of a shortage of P15,309.00 upon audit
examination of his accountabilities, then what remains to be resolved only
is whether any criminal liability is attributable to him by reason of such
shortage. As can be deduced from the defense evidence, testimonial and
documentary, accused lays the blame for the shortage on one Yvette
Samaranos, whom he admitted to have been retained by him as his
unofficial clerk/collector in his office and who attended to the receipt of
payments for the registration of business names and issuance of
certifications and official receipts for such payments, including penalties,
and fees for repair shop establishments. While the certifications and
official receipts were pre-signed by him, the collections thereunder were
made by Samaranos, who also entered the amounts collected by her in
accused's cashbook.
The amounts collected between the period from July 17, 1984 to April 30,
1985 totalled P100,486.50, from which should be deducted total
remittances of P85,177.50, leaving a balance of P16,221.50. An Inventory
of Cash and/or allowed Cash Items produced P912.50, leaving a shortage
of P15,309.00 which was determined by Auditor Lydia R. Mendoza as the

difference between the amounts appearing in the originals of the Official

Receipts/Letter of Confirmation and the duplicate Official Receipts. In
other words, what were collected and reflected in the duplicate ORs were
not the correct amounts appearing in the original ORs issued to the
payees and which were verified and confirmed later by the payees.
Auditor Mendoza supported her findings of a shortage and the reasons for
such shortage thru a formal "Comparison of Duplicate Official Receipts of
P2.00 per Report of Collections with the Confirmation Letter and/or
Original Official Receipts" for the period from July 17, 1984 to April 30,
1985. Therein, it clearly appeared that while the amounts to be officially
collected should be P110.00 or P112.00, the amounts reported to have
been collected and which were reflected in the duplicate ORs were only
P2.00. The unreported and unrecorded collections of P108.00 or P110.00
from individual payees were reflected in the original ORs which were
confirmed by said payees through confirmation letters and which totalled
P15,309.00.
After the cash count made by Auditor Mendoza as a prelude to her Report
of Examination and subsequent verification/confirmation, she sent a letter
of demand to the accused on October 14, 1985, which the accused
received on the same date. Therein, he was required to produce
immediately the balance of P3,418.50, due to the fact that he had made
deposits amounting to P11,890.50, "after cash count and confirmed by us
(Please see Scheduled 2)." On October 17, 1985, accused submitted his
letter-explanation to Auditor Mendoza wherein he laid the blame for the
shortage on his office clerk whom he had already relieved and alleged that
he had not benefited, directly or indirectly, from the missing funds. On
October 18, 1985 and November 7, 1985, accused "restituted and
deposited with the Bureau of Treasury thru PNB, GSC" the amounts of
P2,933.50 and P485.00, respectively, which, if added to his previous
deposits from June 2, 1985 to August 23, 1985 amounting to P11,890.50,
would total P15,309.50.

11

There being no dispute, therefore, as to the existence of the shortage in

the accounts of the accused, as found by Auditor Mendoza as of April 30,
1985, amounting to P15,309.00 and the fact of accused's settlement for
such shortage through installments deposited with the PNB, General
Santos City between June 2, 1985 to November 7, 1985, then it behooves
the Court to determine if accused herein had rendered himself liable or not
under Article 217 of the Revised Penal Code by reason of such shortage.
Such determination must perforce go into the merits of his claim that the
responsibility for such shortage should be laid on the doorstep of Yvette
Samaranos, a private individual, whom he inherited from his predecessor
who had allowed her to work in the office as clerk-collector and whom he
retained for the following reasons: (1) the Office of the Bureau of Domestic
Trade at General Santos City, of which he was the Provincial Trade
Development Officer, was a one-man operation, hence, understaffed; (2)
he had to go out to the field to campaign for increased registration of
business names, hold symposiums of consumers' groups, conduct
meetings for retailers and consumers and repair shop establishments; (3)
he occasionally goes out to attend raffles conducted by private
establishments as representative of the Bureau of Domestic Trade; and (4)
he had to leave someone in the office to attend to the general public in the
registration and/or renewal of business names and the issuance of
certifications and official receipts for the collection of the proper fees. For
the reason that he was out in the field for days at times, he pre-signed
official receipts in blank, as well as certifications, which he entrusted to
Samaranos who then fills up the said receipts and certifications and makes
the corresponding entries in his cashbook. As it turned out, however,
Samaranos collected the proper official fees, issued the original receipts
with the proper amounts, filled up the duplicates thereof with reduced
amounts, made the corresponding entries in the cashbook based on the
amounts reflected in the duplicates and made the proper remittances
based on the improper entries.
Accused's defense cannot be accepted, nor can it absolve him from
criminal liability for the missing public funds which the audit examination

on his accountabilities as of April 30, 1985 had revealed. As Special

Disbursing Officer, he was the primary accountable officer for such funds
and the fact, which was not definitely or conclusively established by his
evidence, that another person, albeit a private individual, was responsible
for the misappropriation thereof, cannot be considered in exculpation or
justification of such primary accountability.
xxx xxx xxx
Consequently, accused herein cannot blame anyone else for the
predicament that he found himself in. First of all, he should not have
allowed Yvette Samaranos, who did not possess any appointment, to
perform official acts which he was ordained to do. Secondly, since the
collection of official fees was a sensitive area, he should have refrained
from pre-signing official receipts and certifications. Thirdly, if he were that
desirous of rendering conscientious public service, he should have
ensured that the collection of official fees was properly made, recorded
and remitted. Fourthly, his admission that he had to pay the salaries of
Samaranos through honoraria received by him from raffles is fatal to his
cause since he should have realized that, under such circumstance,
Samaranos would be subject to the most severe temptation to fool around
with the agency's collections. Apparently, accused was more interested in
conducting field trips and raffles whereby he would be able to collect per
diems, travelling allowances and honoraria from private firms. To allow
public accountable officers to adopt the practice resorted to by the
accused in allowing private individuals to perform public functions would
lead to chaos and anarchy and would render nugatory all applicable norms
of public trust and accountability. His bare and unsupported claim that,
after discovery of the shortage upon audit examination, he took steps to
charge Yvette Samaranos for Estafa Thru Falsification of Public
Documents does not, in any way, erase his criminal liability which could be
characterized as malversation of Public Funds through negligence. In his
case, such negligence may be described as gross and inexcusable,

12

amounting to a definite laxity resulting in the deliberate non-performance

of his duties.
On the basis of the above findings, judgment was rendered by the
Sandiganbayan convicting petitioner Kimpo and sentencing him,
accordingly:
WHEREFORE, judgment is hereby rendered finding accused Luciano
Kimpo y Nianuevo GUILTY beyond reasonable doubt of the offense of
Malversation of Public Funds, as defined and penalized under Article 217,
paragraph 4 of the Revised Penal Code, and favorably appreciating the
mitigating circumstances of voluntary surrender and full restitution, after
applying the Indeterminate Sentence Law, hereby sentences him to suffer
an indeterminate penalty ranging from SEVEN (7) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of prision mayor as the minimum, to ELEVEN
(11) YEARS, SIX (6) MONTHS and TWENTY-ONE (21) DAYS, likewise
of prision mayor as the maximum; to further suffer perpetual special
disqualification; to pay a fine of P15,309.00 equal to the amount malversed
and to pay the costs of this action. No civil liability is awarded in view of
the full restitution of the amount involved.

II
THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED
OVER PETITIONER'S OBJECTIONS ALLEGED CONFIRMATION
LETTERS NOT SIGNED OR NOT PROPERLY IDENTIFIED, AS
EVIDENCE TO PROVE ALLEGED SHORTAGE.
III
THE RESPONDENT COURT ERRED IN LAW WHEN IT RULED THAT
ACCUSED IS PRESUMED TO HAVE MALVERSED P15,309.00
BECAUSE HE FAILED TO HAVE THE AMOUNT FORTHCOMING UPON
DEMAND.
IV
THE RESPONDENT COURT ERRED IN LAW IN HOLDING ACCUSED
LIABLE FOR MALVERSATION OF PUBLIC FUNDS THROUGH
NEGLIGENCE.
The appeal has no merit.

SO ORDERED.
In this appeal, petitioner submitted the following assignment of errors: That

I
THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED
EXHIBITS B TO B-3 AGAINST THE ACCUSED OVER ACCUSED'S
OBJECTIONS ANCHORED ON ARTICLE III, SECTIONS 12 & 17 OF THE
1987 CONSTITUTION.

Petitioner faults the Sandiganbayan for having considered Exhibits "B" to

"B-3," inclusive, despite what he claims to be an impairment of his
constitutional rights under Article III, Section 12 paragraphs (1) and (3),
and Section 17,2 of the 1987 Constitution. We cannot agree. The
questioned exhibits pertain to the Report of Examination, the Statement of
Accountability for Accountable Forms without Money Value, and a
Reconciliation Statement of Accountability, which are official forms
prepared and accomplished in the normal course of audit regularly
conducted by the Commission on Audit. Petitioner, not being at the time
under investigation for the commission of a criminal offense, let alone
under custodial investigation, clearly cannot be said to have been deprived

13

of the constitutional prerogatives he invokes (Villaroza vs. Sandiganbayan,

G.R. No. 79636, 17 December 1987; People vs. Olivares, 186 SCRA 536).

1. The penalty of prision correccional in its medium and maximum periods,

if the amount involved in the misappropriation or malversation does not
exceed two hundred pesos.

On the so-called confirmatory letters, respondent court concluded thus

III. The Letters of Confirmation (Exhibits Z to II, JJ to SS, TT to GGG, HHH
to WWW, XXX to ZZZZ, AAAA to JJJJJ, KKKKK to KKKKKKK to JJJJJJJJ
and JJJJJJJJ) were not the primary evidence presented by the
prosecution to prove the manipulations and irregularities in question but
theoriginals and duplicates of the Official Receipts (Exhibits L to I-40, J to
J-95, K to K-26 and L to L-44), all of which were admittedly signed by the
accused, wherein it could clearly be seen that payments for P110.00 were
reflected as P2.00 only. Thus, the Letters of Confirmation are only
secondary evidence to support and prove the principal facts in issue.
Accused had not, REPEAT, had not, denied that the above-mentioned
official receipts, originals and duplicates, are genuine and correctly reflect
the amounts which appear to be listed therein.
Hardly can the above findings be validly challenged. Indeed, considering
all the evidence on record, there is not much that the questioned letters
could have lent to augment the case for the prosecution.
Petitioner has been charged with having violated Article 217 of the
Revised Penal Code, which, in full, reads:
Art. 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 the
misappropriation or malversation of such funds or property shall suffer:

2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than two hundred pesos but does not exceed six
thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than six
thousand pesos but is less than twelve thousand pesos.
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.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the
funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly 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.
The validity and constitutionality of the presumption of evidence provided
in the above Article, which petitioner questions, has long been settled
affirmatively in a number of cases heretofore decided by this Court; 3 that
point need not again be belabored.
Even while an information charges willful malversation, conviction for
malversation through negligence may, nevertheless, be adjudged as the

14

evidence so yields. Malversation, unlike other felonies punished under the

Revised Penal Code, is consummated, and the same penalty is imposed,
regardless of whether the mode of commission is with intent or due to
negligence. 4
Petitioner argues that the restitution made by him of the full amount should
exonerate him from criminal liability. The argument not only is an
inappropriate defense in criminal cases but it also even at times tightens a
finding of guilt. In malversation of public funds, payment, indemnification,
or reimbursement of funds misappropriated, after the commission of the
crime, does not extinguish the criminal liability of the offender which, at
most, can merely affect the accused's civil liability thereunder 5 and be
considered a mitigating circumstance being analogous to voluntary
surrender. 6
WHEREFORE, the petition is DISMISSED, and the appealed decision of
respondent Sandiganbayan is AFFIRMED in toto.
SO ORDERED.

15

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 o'clock 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.
G.R. No. 145566

March 9, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
DINDO "BEBOT" MOJELLO, appellant.
YNARES-SANTIAGO, J.:
On automatic review is a decision of the Regional Trial Court (RTC) of
Bogo, Cebu, Branch 61, finding appellant Dindo "Bebot" Mojello guilty

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

16

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 Batobalanos and Manolo Landao. Batobalanos 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.
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

17

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. Galit16 and Morales, Jr. v.
Enrile,17 rulings subsequently incorporated into the present Constitution.
TheMiranda 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 suspect's 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 in Miranda 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 appellant's 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. Continente23 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 counsel's 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.

18

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.
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. Accusedappellant Dumalahay's 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 appellant's 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 the Miranda 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
inbesigasyon 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

19

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.)
(START OF CUSTODIAL INVESTIGATION)
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. FeBantayan 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 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

20

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 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 to no other conclusion than that of
appellant's guilt for the rape of Lenlen Rayco on December 15, 1996. It
passes the test of moral certainty and must therefore be sustained.

The test for determining whether 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.

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 victim's 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.

Accordingly, the presumption of voluntariness of appellant's 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 the Mirandadoctrine. 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.
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.

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.

21

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.36 Moral 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.

G.R. No. 207950, September 22, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARK JASON
CHAVEZ Y BITANCOR ALIAS NOY, Accused-Appellant.
DECISION
LEONEN, J.:
Every conviction for any crime must be accompanied by the required
moral certainty that the accused has committed the offense charged
beyond reasonable doubt. The prosecution must prove the

offenders intent to take personal property before the killing, regardless of

the time when the homicide [was] actually carried out1 in order to convict
for the crime of robbery with homicide. The accused may nevertheless be
convicted of the separate crime of homicide once the prosecution
establishes beyond reasonable doubt the accuseds culpability for the
victims death.
In the information dated November 8, 2006, Mark Jason Chavez y
Bitancor (Chavez) was charged with the crime of robbery with
homicide:ChanRoblesVirtualawlibrary
That on or about October 28, 2006, in the City of Manila, Philippines, the
said accused, did then and there wilfully, unlawfully and feloniously, with
intent of gain and means of force, violence and intimidation upon the
person of ELMER DUQUE y OROS, by then and there, with intent to kill,
stabbing the latter repeatedly with a kitchen knife, thereby inflicting upon
him mortal stab wounds which were the direct and immediate cause of his
death thereafter, and on the said occasion or by reason thereof, accused
took, robbed and carried away the following:
One (1) Unit Nokia Cellphone
One (1) Unit Motorola Cellphone
Six (6) pcs. Ladies Ring
Two (2) pcs. Necklace
One (1) pc. Bracelet
All of undetermined value and undetermined amount of money, all
belonging to said ELMER DUQUE y OROS @ BARBIE to the damage and
prejudice of the said owner/or his heirs, in the said undetermined amount
in Philippines currency.
Contrary to law.2
Chavez pleaded not guilty during his arraignment on December 4, 2006.
The court proceeded to trial. The prosecution presented Angelo
Peamante (Peamante), P/Chief Inspector Sonia Cayrel (PCI Cayrel),
SPO3 Steve Casimiro (SPO3 Casimiro), Dr. Romeo T. Salen (Dr. Salen),
and Raymund Senofa as witnesses. On the other hand, the defense
presented Chavez as its sole witness.3cralawred
The facts as found by the lower court are as follows.

22

On October 28, 2006, Peamante arrived home at around 2:45 a.m.,

coming from work as a janitor in Eastwood City.4 When he was about to
go inside his house at 1326 Tuazon Street, Sampaloc, Manila, he saw a
person wearing a black, long-sleeved shirt and black pants and holding
something while leaving the house/parlor of Elmer Duque (Barbie) at 1325
Tuazon Street, Sampaloc, Manila, just six meters across Peamantes
house.5cralawred
There was a light at the left side of the house/parlor of Barbie, his favorite
haircutter, so Peamante stated that he was able to see the face of
Chavez and the clothes he was wearing. 6cralawred
Chavez could not close the door of Barbies house/parlor so he simply
walked away. However, he dropped something that he was holding and
fell down when he stepped on it.7 He walked away after, and Peamante
was not able to determine what Chavez was holding. 8 Peamante then
entered his house and went to bed.9cralawred
Sometime after 10:00 a.m., the Scene of the Crime Office (SOCO) team
arrived, led by PCI Cayrel. She was joined by PO3 Rex Maglansi
(photographer), PO1 Joel Pelayo (sketcher), and a fingerprint
technician.10 They conducted an initial survey of the crime scene after
coordinating with SPO3 Casimiro of the Manila Police District Homicide
Section.11cralawred
The team noted that the lobby and the parlor were in disarray, and they
found Barbies dead body inside.12 They took photographs and collected
fingerprints and other pieces of evidence such as the 155 pieces of hair
strands found clutched in Barbies left hand.13 They documented the
evidence then turned them over to the Western Police District Chemistry
Division. Dr. Salen was called to conduct an autopsy on the
body.14cralawred
At around 11:00 a.m., Peamantes landlady woke him up and told him
that Barbie was found dead at 9:00 a.m. He then informed his landlady
that he saw Chavez leaving Barbies house at 2:45 a.m. 15cralawred

found that the time of death was approximately 12 hours prior to

examination.16 There were 22 injuries on Barbies body 21 were stab
wounds in various parts of the body caused by a sharp bladed instrument,
and one incised wound was caused by a sharp object. 17 Four (4) of the
stab wounds were considered fatal.18cralawred
The next day, the police invited Peamante to the Manila Police Station to
give a statement. Peamante described to SPO3 Casimiro the physical
appearance of the person he saw leaving Barbies parlor.19cralawred
Accompanied by his mother, Chavez voluntarily surrendered on November
5, 2006 to SPO3 Casimiro at the police station.20 Chavez was then 22
years old.21 His mother told the police that she wanted to help her son
who might be involved in Barbies death.22cralawred
SPO3 Casimiro informed them of the consequences in executing a written
statement without the assistance of a lawyer. However, Chavezs mother
still gave her statement, subscribed by Administrative Officer Alex
Francisco.23 She also surrendered two cellular phones owned by Barbie
and a baseball cap owned by Chavez.24cralawred
The next day, Peamante was again summoned by SPO3 Casimiro to
identify from a line-up the person he saw leaving Barbies house/parlor
that early morning of October 28, 2006.25 Peamante immediately pointed
to and identified Chavez and thereafter executed his written statement. 26
There were no issues raised in relation to the line-up.
On the other hand, Chavez explained that he was at home on October 27,
2006, exchanging text messages with Barbie on whether they could talk
regarding their misunderstanding.27 According to Chavez, Barbie
suspected that he was having a relationship with Barbies boyfriend,
Maki.28 When Barbie did not reply to his text message, Chavez decided to
go to Barbies house at around 1:00 a.m. of October 28, 2006. 29 Barbie
allowed him to enter the house, and he went home after.30cralawred
On August 19, 2011, the trial court31 found Chavez guilty beyond
reasonable doubt of the crime of robbery with
homicide:ChanRoblesVirtualawlibrary

At around 1:00 p.m., Dr. Salen conducted an autopsy on the body and

23

WHEREFORE, in view of the foregoing, this Court finds accused MARK

JASON CHAVEZ y BITANCOR @ NOY GUILTY beyond reasonable doubt
of the crime of Robbery with Homicide and hereby sentences him to
suffer the penalty of reclusion perpetua without eligibility for parole.
Further, he is ordered to pay to the heirs of the victim, Elmer Duque y Oros
the sum of P75,000.00 as death indemnity and another P75,000 for moral
damages.
SO ORDERED.32
On February 27, 2013, the Court of Appeals33 affirmed the trial courts
decision.34 Chavez then filed a notice of appeal pursuant to Rule 124,
Section 13(c) of the Revised Rules of Criminal Procedure, as amended,
elevating the case with this court.35cralawred
This court notified the parties to simultaneously submit supplemental briefs
if they so desire. Both parties filed manifestations that they would merely
adopt their briefs before the Court of Appeals.36cralawred
In his brief, Chavez raised presumption of innocence, considering that the
trial court overlooked and misapplied some facts of substance that could
have altered its verdict.37 He argued that since the prosecution relied on
purely circumstantial evidence, conviction must rest on a moral certainty of
guilt on the part of Chavez.38 In this case, even if Peamante saw him
leaving Barbies house, Peamante did not specify whether Chavez was
acting suspiciously at that time.39cralawred
As regards his mothers statement, Chavez argued its inadmissibility as
evidence since his mother was not presented before the court to give the
defense an opportunity for cross-examination.40 He added that affidavits
are generally rejected as hearsay unless the affiant appears before the
court and testifies on it.41cralawred
Chavez argued that based on Dr. Salens findings, Barbies wounds were
caused by two sharp bladed instruments, thus, it was possible that there
were two assailants.42 It was also possible that the assailants committed
the crime after Chavez had left Barbies house.43 Given that many
possible explanations fit the facts, that which is consistent with the

innocence of Chavez should be favored.44cralawred

On the other hand, plaintiff-appellee argued that direct evidence is not
indispensable when the prosecution is establishing guilt beyond
reasonable doubt of Chavez.45 The circumstantial evidence presented
before the trial court laid down an unbroken chain of events leading to no
other conclusion than Chavezs acts of killing and robbing
Barbie.46cralawred
On the argument made by Chavez that his mothers statement was
inadmissible as hearsay, plaintiff-appellee explained that the trial court did
not rely on, and did not even refer to, any of the statements made by
Chavezs mother.47cralawred
Finally, insofar as Chavezs submission that Dr. Salen testified on the
possibility that there were two assailants, Dr. Salen equally testified on the
possibility that there was only one.48cralawred
The sole issue now before us is whether Chavez is guilty beyond
reasonable doubt of the crime of robbery with homicide.
We reverse the decisions of the lower courts, but find Chavez guilty of the
crime of homicide.
I
Chavez was found guilty of the special complex crime of robbery with
homicide under the Revised Penal Code:ChanRoblesVirtualawlibrary
Art. 294. Robbery with violence against or intimidation of persons
Penalties. Any person guilty of robbery with the use of violence against
or intimidation of any person shall suffer:ChanRoblesVirtualawlibrary
1) The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed.
. . .49
Chavez invokes his constitutional right to be presumed innocent,
especially since the prosecutions evidence is purely circumstantial and a

24

conviction must stand on a moral certainty of guilt.50cralawred

The Rules of Court expressly provides that circumstantial evidence may
be sufficient to establish guilt beyond reasonable doubt for the conviction
of an accused:ChanRoblesVirtualawlibrary
SEC. 4. Circumstantial evidence, when sufficient. Circumstantial
evidence is sufficient for conviction if:ChanRoblesVirtualawlibrary
(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.51
The lower courts found that the circumstantial evidence laid down by the
prosecution led to no other conclusion than the commission by Chavez of
the crime charged:ChanRoblesVirtualawlibrary
In the instant case, while there is no direct evidence showing that the
accused robbed and fatally stabbed the victim to death, nonetheless, the
Court believes that the following circumstances form a solid and unbroken
chain of events that leads to the conclusion, beyond reasonable doubt,
that accused Mark Jason Chavez y Bitancor @ Noy committed the crime
charged, vi[z]: first, it has been duly established, as the accused himself
admits, that he went to the parlor of the victim at around 1:00 oclock in the
morning of 28 October 2006 and the accused was allowed by the victim to
get inside his parlor as it serves as his residence too; second, the victims
two (2) units of cellular phones (one red Nokia with model 3310 and the
other one is a black Motorola) without sim cards and batteries, which were
declared as part of the missing personal belongings of the victim, were
handled to SPO3 Steve Casimiro by the mother of the accused, Anjanette
C. Tobias on 05 November 2006 when the accused voluntarily
surrendered, accompanied by his mother, at the police station: third, on 28
October 2006 at about 2:45 oclock in the morning, witness Angelo
Peamante, who arrived from his work, saw a person holding and/or
carrying something and about to get out of the door of the house of the
victim located at 1325 G. Tuazon Street, Sampaloc, Manila, and trying to
close the door but the said person was not able to successfully do so. He
later positively identified the said person at the police station as MARK

JASON CHAVEZ y BITANCOR @ NOY, the accused herein;

and finally, the time when the accused decided on 27 October 2006 to
patch up things with the victim and the circumstances (Dr. Salens
testimony that the body of the victim was dead for more or less twelve (12)
hours) when the latter was discovered fatally killed on 28 October 2006 is
not a co-incidence.
The prosecution has equally established, based on the same
circumstantial evidence, that the accused had indeed killed the victim. 52
Factual findings by the trial court on its appreciation of evidence presented
by the parties, and even its conclusions derived from the findings, are
generally given great respect and conclusive effect by this court, more so
when these factual findings are affirmed by the Court of
Appeals.53cralawred
Nevertheless, this court has held that [w]hat is imperative and essential
for a conviction for the crime of robbery with homicide is for the
prosecution to establish the offenders intent to take personal
property before the killing, regardless of the time when the homicide is
actually carried out.54 In cases when the prosecution failed to
conclusively prove that homicide was committed for the purpose of robbing
the victim, no accused can be convicted of robbery with
homicide.55cralawred
The circumstantial evidence relied on by the lower courts, as quoted
previously, do not satisfactorily establish an original criminal design by
Chavez to commit robbery.
At most, the intent to take personal property was mentioned by Chavezs
mother in her statement as follows:ChanRoblesVirtualawlibrary
Na si Noy na aking anak ay nagtapat sa akin tungkol sa kanyang
kinalaman sa pagkamatay ni Barbie at kasabay ang pagbigay sa akin ng
dalawang (2) piraso ng cellular phones na pag/aari [sic] ni Barbie na
kanyang kinuha pagka/tapos [sic] ng insidente.
Na ipinagtapat din sa akin ni Noy na ang ginamit na panaksak na isang
kutsilyo na gamit namin sa bahay ay inihulog niya sa manhole sa tapat ng

25

aming bahay matapos ang insidente.

these purposes.

At ang isang piraso ng kwintas na kinuha rin nya mula kay Barbie ay
naisanla niya sa isang sanglaan sa Quezon City.

The sheer number of stab wounds inflicted on Barbie makes it difficult to

conclude an original criminal intent of merely taking Barbies personal
property.

Na ang suot niyang tsinelas ay nag/iwan [sic] ng bakas sa pinangyarihan

ng insidente. At sya rin ang nakasugat sa kanyang sariling kamay ng [sic]
maganap ang insidente.
Na sinabi niya sa akin na wala siyang intensyon na patayin [sic] si
Barbie kundi ay pagnakawan lamang.56 (Emphasis supplied)
However, this statement is considered as hearsay, with no evidentiary
value, since Chavezs mother was never presented as a witness during
trial to testify on her statement.57cralawred
An original criminal design to take personal property is also inconsistent
with the infliction of no less than 21 stab wounds in various parts of
Barbies body.58cralawred
The number of stab wounds inflicted on a victim has been used by this
court in its determination of the nature and circumstances of the crime
committed.
This may show an intention to ensure the death of the victim. In a case
where the victim sustained a total of 36 stab wounds in his front and back,
this court noted that this number of stab wounds inflicted on the victim is a
strong indication that appellants made sure of the success of their effort to
kill the victim without risk to themselves.59cralawred
This court has also looked into the number and gravity of the wounds
sustained by the victim as indicative of the accuseds intention to kill the
victim and not merely to defend himself or others.60cralawred
In the special complex crime of robbery with homicide, homicide is
committed in order (a) to facilitate the robbery or the escape of the culprit;
(b) to preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or (d) to eliminate witnesses
to the commission of the crime.61 21 stab wounds would be overkill for

In People v. Sanchez,62 this court found accused-appellant liable for the

separate crimes of homicide and theft for failure of the prosecution to
conclusively prove that homicide was committed for the purpose of robbing
the victim:ChanRoblesVirtualawlibrary
But from the record of this case, we find that the prosecution palpably
failed to substantiate its allegations of the presence of criminal design to
commit robbery, independent of the intent to commit homicide. There is no
evidence showing that the death of the victim occurred by reason or on the
occasion of the robbery. The prosecution was silent on accusedappellants primary criminal intent. Did he intend to kill the victim in order
to steal the cash and the necklace? Or did he intend only to kill the victim,
the taking of the latters personal property being merely an afterthought?
Where the homicide is not conclusively shown to have been committed for
the purpose of robbing the victim, or where the robbery was not proven at
all, there can be no conviction for robo con homicidio.63cralawred
II
This court finds that the prosecution proved beyond reasonable doubt the
guilt of Chavez for the separate crime of homicide.
First, the alibi of Chavez still places him at the scene of the crime that
early morning of October 28, 2006.
The victim, Elmer Duque, went by the nickname, Barbie, and he had a
boyfriend named Maki. Nevertheless, Chavez described his friendship
with Barbie to be [w]ere like brothers.64 He testified during crossexamination that he was a frequent visitor at Barbies parlor that he cannot
recall how many times he had been there.65 This speaks of a close
relationship between Chavez and Barbie.
Chavez testified that he went to Barbies house at 1:00 in the morning of

26

October 28, 2006 to settle his misunderstanding with Barbie who

suspected him of having a relationship with Barbies
boyfriend:ChanRoblesVirtualawlibrary
MARK JASON CHAVEZ was a friend to the victim, Barbie, for almost three
(3) years and the two (2) treated each other like brothers. The latter,
however, suspected Mark Jason of having a relationship with Maki Aover,
Barbies boyfriend for six (6) months, which resulted in a misunderstanding
between them. Mark Jason tried to patch things up with Barbie so thru a
text message he sent on the evening of 27 October 2006, he asked if they
could talk. When Barbie did not reply, he decided to visit him at his parlor
at around 1:00 oclock in the morning. Barbie let him in and they tried to
talk about the situation between them. Their rift, however, was not fixed so
he decided to go home. Later on, he learned that Barbie was already
dead.66
This court has considered motive as one of the factors in determining the
presence of an intent to kill,67 and a confrontation with the victim
immediately prior to the victims death has been considered as
circumstantial evidence for homicide.68cralawred
Second, the number of stab wounds inflicted on Barbie strengthens an
intention to kill and ensures his death. The prosecution proved that there
was a total of 22 stab wounds found in different parts of Barbies body and
that a kitchen knife was found in a manhole near Chavezs house at No.
536, 5thStreet, San Beda, San Miguel, Manila.69cralawred
The Court of Appeals recitation of facts quoted the statement of Chavezs
mother. This provides, among others, her sons confession for stabbing
Barbie and throwing the knife used in a manhole near their
house:ChanRoblesVirtualawlibrary
Na si Noy na aking anak ay nagtapat sa akin tungkol sa kanyang
kinalaman sa pagkamatay ni Barbie at kasabay ang pagbigay sa akin ng
dalawang (2) piraso ng cellular phones na pag/aari [sic] ni Barbie na
kanyang kinuha pagka/tapos [sic] ng insidente.
Na ipinagtapat din sa akin ni Noy na ang ginamit na panaksak na isang
kutsilyo na gamit namin sa bahay ay inihulog niya sa manhole sa tapat ng

aming bahay matapos ang insidente.

At ang isang piraso ng kwintas na kinuha rin nya mula kay Barbie ay
naisanla niya sa isang sanglaan sa Quezon City.
Na ang suot niyang tsinelas ay nag/iwan [sic] ng bakas sa pinangyarihan
ng insidente. At sya rin ang nakasugat sa kanyang sariling kamay ng [sic]
maganap ang insidente.
Na sinabi niya sa akin na wala siyang intensyon na patayin [sic] si Barbie
kundi ay pagnakawan lamang.70 (Emphasis supplied)
Even if this statement was not taken into account for being hearsay, further
investigation conducted still led to the unearthing of the kitchen knife with a
hair strand from a manhole near Chavezs house.71cralawred
Third, no reason exists to disturb the lower courts factual findings giving
credence to 1) Peamantes positive identification of Chavez as the
person leaving Barbies house that early morning of October 28,
200672 and 2) the medico-legals testimony establishing Barbies time of
death as 12 hours prior to autopsy at 1:00 p.m., thus, narrowing the time of
death to approximately 1:00 a.m. of the same day, October 28,
2006.73cralawred
All these circumstances taken together establish Chavezs guilt beyond
reasonable doubt for the crime of homicide.
III
There is a disputable presumption that a person found in possession of a
thing taken in the doing of a recent wrongful act is the taker and the doer
of the whole act; otherwise, that thing which a person possesses, or
exercises acts of ownership over, are owned by him. 74 Thus, when a
person has possession of a stolen property, he can be disputably
presumed as the author of the theft.75cralawred
Barbies missing cellular phones were turned over to the police by
Chavezs mother, and this was never denied by the defense. 76 Chavez
failed to explain his possession of these cellular phones. 77 The Court of

27

Appeals discussed that a cellular phone has become a necessary

accessory, no person would part with the same for a long period of time,
especially in this case as it involves an expensive cellular phone unit, as
testified by Barbies kababayan, witness Raymond Seno[f]a.78cralawred
However, with Chavez and Barbies close relationship having been
established, there is still a possibility that these cellphones were lent to
Chavez by Barbie.
The integrity of these cellphones was also compromised when SPO3
Casimiro testified during cross-examination that the police made no
markings on the cellphones, and their SIM cards were removed.

necklace, and one bracelet.

At most, prosecution witness Raymund Senofa, a town mate of Barbie,
testified that he could not remember the model of the Motorola flip-type
cellphone he saw used by Barbie but that he knew it was worth
P19,000.00 more or less.82 This amounts to hearsay as he has no
personal knowledge on how Barbie acquired the cellphone or for how
much.
These circumstances create reasonable doubt on the allegation that
Chavez stole the missing personal properties of Barbie.
IV

Q:
But you did not place any marking on the cellphone, Mr. witness?
A:
No, sir.
Atty. Villanueva: No further questions, Your Honor.
Court: When you received the items, there were no markings also?
Witness: No, Your Honor.
Court: The cellular phones, were they complete with the sim cards and the
batteries?
A:
Theres no sim card, Your Honor.
Q:
No sim card and batteries?
A:
Yes, Your Honor.
Q:
No markings when you received and you did not place markings
when these were turned over to the Public Prosecutor, no
markings?
A:
No markings, Your Honor.79
The other missing items were no longer found, and no evidence was
presented to conclude that these were taken by Chavez. The statement of
Chavezs mother mentioned that her son pawned one of Barbies
necklaces [At ang isang piraso ng kwintas na kinuha rin nya mula kay
Barbie ay naisanla niya sa isang sanglaan sa Quezon City80], but, as
earlier discussed, this statement is mere hearsay.
In any case, the penalty for the crime of theft is based on the value of the
stolen items.81 The lower court made no factual findings on the value of
the missing items enumerated in the information one Nokia cellphone
unit, one Motorola cellphone unit, six pieces ladies ring, two pieces

It is contrary to human nature for a mother to voluntarily surrender her own

son and confess that her son committed a heinous crime.
Chavez was 22 years old, no longer a minor, when he voluntarily went to
the police station on November 5, 2006 for investigation, 83 and his mother
accompanied him. SPO3 Casimiro testified that the reason she
surrendered Chavez was because she wanted to help her son 84 and
perhaps the accused felt that [the investigating police] are getting nearer
to him.85 Nevertheless, during cross-examination, SPO3 Casimiro
testified:ChanRoblesVirtualawlibrary
Q:
A:
Q:
A:
Q:
A:

Regarding the mother, Mr. witness, did I get you right that when the
mother brought her son, according to you she tried to help her son,
is that correct?
That is the word I remember, sir.
Of course, said help you do not know exactly what she meant by
that?
Yes, sir.
It could mean that she is trying to help her son to be cleared from
this alleged crime, Mr. witness?
Maybe, sir.86

Chavezs mother turned-over (2) units of Cellular-phones and averred that

her son Mark Jason told her that said cellphones belong[ed] to victim
Barbie. . . [that] NOY was wounded in the incident and that the fatal

28

weapon was put in a manhole infront [sic] of their residence. 87 The

records are silent on whether Chavez objected to his mothers
statements. The records also do not show why the police proceeded to
get his mothers testimony as opposed to getting Chavezs testimony on
his voluntary surrender.
At most, the lower court found that Chavezs mother was informed by the
investigating officer at the police station of the consequences in executing
a written statement without the assistance of a lawyer.88 She proceeded to
give her statement dated November 7, 2006 on her sons confession of the
crime despite the warning.89 SPO3 Casimiro testified during his crossexamination:ChanRoblesVirtualawlibrary
Q:

Do you remember if anybody assisted this Anjanette Tobias when

she executed this Affidavit you mentioned?
A:
She was with some neighbors.
Atty. Villanueva
Q:
How about a lawyer, Mr. Witness?
A:
None, sir.
Q:
So, in other words, no lawyer informed her of the consequence of
her act of executing an Affidavit?
A:
We somehow informed her of what will be the consequences of
that statement, sir.
Q:
So, you and your police officer colleague at the time?
A:
Yes, sir.90
The booking sheet and arrest report states that when [the accused was]
appraised [sic] of his constitutional rights and nature of charges imputed
against him, accused opted to remain silent.91 This booking sheet and
arrest report is also dated November 7, 2006, or two days after Chavez,
accompanied by his mother, had voluntarily gone to the police station.
The right to counsel upon being questioned for the commission of a crime
is part of the Miranda rights, which require
that:ChanRoblesVirtualawlibrary
. . . (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.92
The Miranda rights were incorporated in our Constitution but were
modified to include the statement that any waiver of the right to counsel
must be made in writing and in the presence of counsel.93cralawred
The invocation of these rights applies during custodial investigation, which
begins when 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 starts the interrogation and propounds
questions to the person to elicit incriminating statements. 94cralawred
It may appear that the Miranda rights only apply when one is taken into
custody by the police, such as during an arrest. These rights are
intended to protect ordinary citizens from the pressures of a custodial
setting:ChanRoblesVirtualawlibrary
The purposes of the safeguards prescribed by Miranda are to ensure that
the police do not coerce or trick captive suspects into confessing, to
relieve the inherently compelling pressures generated by the custodial
setting itself, which work to undermine the individuals will to resist, and
as much as possible to free courts from the task of scrutinizing individual
cases to try to determine, after the fact, whether particular confessions
were voluntary. Those purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanours as they are by
questioning of persons suspected of felonies.95 (Emphasis supplied)
Republic Act No. 743896 expanded the definition of custodial investigation
to include the practice of issuing an invitation to a person who is
investigated in connection with an offense he is suspected to have
committed, without prejudice to the liability of the inviting officer for any
violation of law.97cralawred
This means that even those who voluntarily surrendered before a police
officer must be apprised of their Miranda rights. For one, the same
pressures of a custodial setting exist in this scenario. Chavez is also
being questioned by an investigating officer in a police station. As an

29

additional pressure, he may have been compelled to surrender by his

mother who accompanied him to the police station.

with four-fifths of the time during which he has undergone preventive

imprisonment.

This court, thus, finds that the circumstantial evidence sufficiently proves
beyond reasonable doubt that Chavez is guilty of the crime of homicide,
and not the special complex crime of robbery with homicide.

Credit for preventive imprisonment for the penalty of reclusion perpetua

shall be deducted from thirty (30) years.

On the service of Chavezs sentence, the trial court issued the order dated
November 14, 2006 in that as prayed for, the said police officer is hereby
ordered to immediately commit accused, Mark Jason Chavez y Bitancor @
Noy to the Manila City Jail and shall be detained thereat pending trial of
this case and/or until further orders from this court.98 The order of
commitment dated September 28, 2011 was issued after his trial court
conviction in the decision dated August 19, 2011.
Chavez has been under preventive detention since November 14, 2006,
during the pendency of the trial. This period may be credited in the service
of his sentence pursuant to Article 29 of the Revised Penal Code, as
amended:ChanRoblesVirtualawlibrary
ART. 29. Period of preventive imprisonment deducted from term of
imprisonment. Offenders or accused who have undergone preventive
imprisonment shall be credited in the service of their sentence consisting
of deprivation of liberty, with the full time during which they have
undergone preventive imprisonment if the detention prisoner agrees
voluntarily in writing after being informed of the effects thereof and with the
assistance of counsel to abide by the same disciplinary rules imposed
upon convicted prisoners, except in the following
cases:ChanRoblesVirtualawlibrary
1. When they are recidivists, or have been convicted previously twice or
more times of any crime; and
2. When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, he shall do so in writing with the
assistance of a counsel and shall be credited in the service of his sentence

Whenever an accused has undergone preventive imprisonment for a

period equal to the possible maximum imprisonment of the offense
charged to which he may be sentenced and his case is not yet terminated,
he shall be released immediately without prejudice to the continuation of
the trial thereof or the proceeding on appeal, if the same is under review.
Computation of preventive imprisonment for purposes of immediate
release under this paragraph shall be the actual period of detention with
good conduct time allowance: Provided, however, That if the accused is
absent without justifiable cause at any stage of the trial, the court may
motu proprio order the rearrest of the accused: Provided, finally, That
recidivists, habitual delinquents, escapees and persons charged with
heinous crimes are excluded from the coverage of this Act. In case the
maximum penalty to which the accused may be sentenced is destierro, he
shall be released after thirty (30) days of preventive
imprisonment.99cralawred
V
Finally, this court laments that object evidence retrieved from the scene of
the crime were not properly handled, and no results coming from the
forensic examinations were presented to the court. There was no
examination of the fingerprints found on the kitchen knife retrieved from
the manhole near the house of Chavez.100 There were no results of the
DNA examination done on the hair strands found with the knife and those
in the clutches of the victim. Neither was there a comparison made
between these strands of hair and Chavezs. There was no report
regarding any finding of traces of blood on the kitchen knife recovered,
and no matching with the blood of the victim or Chavezs. The results of
this case would have been rendered with more confidence at the trial court
level had all these been done. In many cases, eyewitness testimony may
not be as reliable or would have been belied had object evidence
been properly handled and presented.

30

We deal with the life of a person here. Everyones life whether it be the
victims or the accuseds is valuable. The Constitution and our laws
hold these lives in high esteem. Therefore, investigations such as these
should have been attended with greater professionalism and more
dedicated attention to detail by our law enforcers. The quality of every
conviction depends on the evidence gathered, analyzed, and presented
before the courts. The publics confidence on our criminal justice system
depends on the quality of the convictions we promulgate against the
accused. All those who participate in our criminal justice system should
realize this and take this to heart.
WHEREFORE, the judgment of the trial court is MODIFIED. Accusedappellant Mark Jason Chavez y Bitancor alias Noy is hereby
declared GUILTY beyond reasonable doubt of the separate and distinct
crime of HOMICIDE. Inasmuch as the commission of the crime was not
attended by any aggravating or mitigating circumstances, accusedappellant Chavez is hereby SENTENCED to suffer an indeterminate
penalty ranging from eight (8) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion
temporal, as maximum.
Accused-appellant Chavezs period of detention shall be deducted if
consistent with Article 29 of the Revised Penal Code.
SO ORDERED.cralawlaw library

31

CORTES, J.:
The accused Felino Aleta, Orlando Tonil, Felipe Zurbito, Vicente Alvarez,
Rogelio Pagayonan alias "Sinco" and Wilfredo "Tolendoy" Blancaflor were
charged with the offense of robbery with homicide and physical injuries
before the Regional Trial Court of Masbate in an information filed on
February 27, 1981 which reads:

G.R. No. 70446 January 31, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICENTE ALVAREZ, WILFREDO BLANCAFLOR, FELINO ALETA,
ORLANDO TONIL, FELIPE ZURBITO and ROGELIO PAGAYONAN,
defendants, VICENTE ALVAREZ and WILFREDO "TOLENDOY"
BLANCAFLOR,defendants-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Off we for defendants-appellants.

... on or about July 3, 1978, in the evening thereof, at

Barangay Guinlothangan Municipality of Milagros,
Province of Masbate, Philippines, within the jurisdiction of
this court, the said accused confederating together and
helping one another, with intent of gain (sic)', and by
means of violence and intimidation, armed with guns, did
then and there wilfully, unlawfully and feloniously enter the
house of Roberto Beloso, hogtie the latter, and one Victor
Javar, and with intent to kill fired their guns at one
Severino Malapitan Jr., hitting the latter on the different
parts of the body which directly caused his instantaneous
death; that as a result of said firings (sic) one Evelyn
Bacaresas was hit inflicting upon the latter physical
injuries which will require and have required mechanical
attendance for a period as prescribed by the doctor
issuing the medical certificate, and will incapacitate and
have incapacitated her from performing her customary
labor for the same period of time; did then and there
wilfully, unlawfully and feloniously take, steal and carry
away cash amount of P14,000.00 and jewelries worth
P620.00, all belonging to spouses Roberto Beloso and
Nora M. Beloso, to the damage and prejudice of the latter
in the total sum of P14,620.00, Philippine currency. [Rollo,
p. 15]

32

Only accused Vicente Alvarez, Tolendoy Blancaflor, and Rogelio

Pagayonan were placed under custody. Alvarez and Blancaflor pleaded
not guilty. Pagayonan was not arraigned as he was then sick but before he
could be arraigned, he escaped from the Provincial Jail and he has been
at large since then. The other accused are also still at large.
After trial, the lower court rendered judgment convicting the accused, the
dispositive portion of the amended decision reading as follows:
XXX
WHEREFORE, premises considered, the Court finds the
accused VICENTE ALVAREZ and WILFREDO
"TOLENDOY" BLANCAFLOR guilty of the offense of
Robbery in Band** with Homicide and Physical Injuries,
and considering the aggravating circumstance of band
and the mitigating circumstance of voluntary surrender
hereby imposes on each of the said accused the penalty
ofRECLUSION PERPETUA to render restitution to the
spouses Roberto Beloso and Nora Morado Beloso, jointly
and severally in the amount of P14,815.00,to indemnify
the heirs of victim Severino Malapitan, Jr., in the amount
of P30,000.00 and to pay the costs of the suit.
The case against accused FELINO ALETA, ORLANDO
TONIL, FELIPE ZURBITO and ROGELIO PAGAYONAN,
who are still at large and against whom alias warrants of
arrest had been issued, are hereby ordered ARCHIVED.
IT IS SO ORDERED. [Rollo, pp- 22-23.]
The case was brought on appeal to this Court on the sole issue of whether
trial court erred in convicting accused-appellants of the crime charged

notwithstanding the alleged insufficiency of evidence adduced by the

prosecution.
In ruling against the accused-appellants, the court found the following
facts:
At about 7:00 to 8:00 o'clock in the evening of July 3,
1978, in Barangay Guinlothangan, Milagros, Masbate,
seven (7) armed men staged a robbery in the house of
Roberto Beloso, the then Barangay Captain of the said
barangay, while said Roberto Beloso was about to have
dinner with his family and a guest named Victor Jabar.
Three of the armed men, later Identified as Vicente
Alvarez, Tolendoy Blancaflor and Felino Aleta, entered the
house and announced that it was a hold-up. The one
identified as Vicente Alvarez announced in a mixture of
Tagalog and Cebuano, "Hold-up, so don't shout otherwise
we will kill you."
Roberto Beloso and Victor Jabar were tied up and made
to lie face down on the floor and the formers wife, Nora
Morado Beloso, and one of their small children were
brought upstairs by the said Vicente Alvarez and the one
identified as Tolendoy Blancaflor. The one Identified as
Felino Aleta was left downstairs to guard those who were
left behind. Taken by the robbers upstairs after ransacking
it were cash amounting to P12,000.00, coins in the piggy
bank amounting to P2,000.00, jewelries worth P600.00, a
pair of pants worth P160.00 and a travelling bag worth
P55.00.
Meanwhile, as Mrs. Beloso and her child were being
brought upstairs, Evelyn Bacaresas, a maid in the
household, fled from the house and an she ran outside

33

she was shot by Tolendoy Blancaflor and hit at the back

felling her. She identified two of the robbers who entered
the house as Vicente Alvarez and Tolendoy Blancaflor.
As the robbers, with Mrs. Beloso and her child, were ping
downstairs, after ransacking the upper floor, Severino
Malapitan, Jr., a cousin of Roberto Beloso who was earlier
in the house drinking beer with Roberto Beloso, suddenly
made his appearance having heard a shot coming from
the house and he was shot by those armed companions of
the robbers left on the yard outside the house. He died
from the gunshot wounds inflicted on him by the said
armed robbers.
The robbers then left the scene as church bells rang
warning the people of danger with Mrs. Beloso and her
child as hostage and keeping by (sic) the people attracted
by the ringing of bells and shots at bay with threats on the
hostages proceeded to the shore where they fled on board
a motorboat, leaving their hostage Nora Morado Beloso in
waist deep water, firing their guns as they left. ...
[Rollo, pp. 16-18.]
The thrust of the instant appeals is that the Identities of the appellants as
the perpetrators of the crime have not been positively proven.
Upon a thorough evaluation and review of the evidence on record, the
Court finds that the identification of the appellants as the perpetrators of
the crime has been sufficiently established. In their testimonies before the
courta quo the prosecution witnesses unhesitatingly pinpointed the
appellants as the robbers who entered the house on that fateful night.
Considering the uncontested facts that during the robbery, the inside of the
house was well-lighted with kerosene lamps [TSN, March 16, 1982, p. 47]

and that the three men who entered the house wore no masks nor made
any effort to conceal their faces nor did they put out the light [TSN,
September 4, 1981, p. 31], it is no wonder that the victims were able to
recognize the faces of the malefactors. Thus when the appellants upon
their voluntary surrender, were brought to the municipal hall of Milagros,
Masbate, together with other apprehended suspects, a few days after the
incident, the Beloso couple readily pointed to the appellants as the
malefactors [Rollo, p. 18.] Thus:
While evidence as to the Identity of the accused as the
person who committed the crime should be carefully
analyzed, the Court has consistently held that "where
conditions of visibility are favorable and the witness does
not appears to be biased against the man on the dock, his
or her assertions as to the Identity of the malefactor
should normally be accepted. And this is more so where
the witness is the victim or his near- relative, as in this
case, because these (people) usually strive to remember
the faces of the assailants" [People v. Bernat, G.R. No.
55176, February 28, 1983, 120 SCRA 918, 924 citing
People v. Zapanta, 45 O.G. 1312; Emphasis supplied.]
Appellants, citing inconsistencies in the testimonies of the complainants,
claim that the witnesses for the prosecution have seriously contradicted
themselves on crucial and material points. While Nora Morado Beloso
testified that Tolendoy Blancaflor was among those who entered the
house, yet her husband categorically stated on cross-examination that he
did not see Tolendoy Blancaflor in the house during the armed robbery.
Also, as regards the claim of Evelyn Bacaresas that it was Tolendoy
Blancaflor who shot her when she ran outside, the defense insists that the
same is not worthy of credence as she herself admitted on crossexamination that since it was dark, she did not see the person who shot
her [Brief for Accused-Appellant, p. 11; Rollo, p. 26.]

34

These inconsistencies, though do not detract from the positiveness of the

Identification of the appellants. Nora Beloso, when confronted by the trial
court with the fact that her husband had earlier testified that Tolendoy
Blancaflor was not one of the three robbers who entered the house gave a
convincing explanation. According to her, her husband and Victor Jabar
were hogtied and made to lie with their faces down on the floor.
Afterwards, appellants Alvarez and Blancaflor, brought Nora Beloso and
her child upstairs [TSN, September 4, 1981, p. 38.] Roberto Beloso's
admission that he was not able to identify the other robbers lends greater
credence to the version of the facts as narrated by the prosecution. For in
view of his position and the fact that Alvarez and Blancaflor immediately
went upstairs, it is highly probable that Roberto Beloso had no chance to
identify Blancaflor with accuracy. As to appellant Vicente Alvarez, it is not
surprising that Roberto Beloso was able to identify him as he was the one
who, upon entry to the house, said "Hold up, so don't shout otherwise, we
will kill you" [TSN, September 3, 1981, p. 8.]
The lower court properly gave full faith and credit to the testimony of
Evelyn Bacaresas that Tolendoy Blancaflor was her assailant. Indeed, she
did not actually see who shot her inasmuch as her assailant was behind
her and she was shot at the back. But she was able to establish during the
cross-examination that it was Tolendoy Blancaflor who, upon seeing her
run away from inside the house, chased her up to the window garden
where she was shot. Evelyn Bacaresas could not have been mistaken in
the Identity of Tolendoy. When the robbers, without tying her hands,
ordered her to sit beside Roberto Beloso, she kept staring at their faces
which she fully saw as they were not wearing any masks and the room
was brightly illuminated [TSN, March 16, 1982, pp- 50 and 78.]
Even if the trial court disbelieved Bacaresas' identification of Blancaflor as
the one who shot her, it does not follow that her entire testimony should be
discredited. For the testimony of a witness can be believed as to some
facts and disbelieved as to others' [People v. Pacada, Jr. G.R. Nos. 45,
July 7, 1986, 142 SCRA 427.] The categorical declaration of Evelyn

Bacaresas that appellants Alvarez and Blancaflor were two of the robbers
who entered the house on that fateful night, which is corroborated by the
testimony on Nora Beloso, is worthy of belief.
Even assuming that Evelyn Bacaresas mistook Blancaflor as her assailant,
the latter will not be absolved from any liability. Since Evelyn Bacaresas
was able to establish in her testimony that Blancaflor was one of the
robbers who entered the house, it does not matter now if it was actually
one of his companions and not he, who shot Bacaresas since in a
conspiracy, the act of one is the act of all. Thus, it was ruled in People v.
Trinidad [G.R. No, L-38930, June 28, 19881 that where conspiracy has
been proven, a showing as to who inflicted the fatal blow is not required.
The next inquiry then is whether conspiracy in the commission of the
robbery was duly proven in the instant case.
It is settled that conspiracy need not be established by direct evidence but
may be proven through a series of acts done in pursuance of a common
unlawful purpose [People v. Cadag, G.R. No. L- 13830, May 31, 1961, 2
SCRA 388; People v. Cruz, G.R. No. L-15369, April 26, 1962, 4 SCRA
1114; People Y. Alcantara, G.R. No. L-26367, June 30, 1970, 33 SCRA
812.] The facts proven by the prosecution clearly indicate a conspiracy to
rob the Beloso family. Indeed, in order that conspiracy may properly be
appreciated, it is enough that at the time the offense was committed, the
participants had the same purpose and were united in its execution as
may be inferred from the attendant circumstances [People v. Masangkay,
G.R No. 73461, October 27, 1987, 155 SCRA 113.] That the appellants
were united in purpose and in the execution of their criminal designs has
been amply proven in the instant case. Here, the existence of a conspiracy
can be gleaned from the concerted acts of the appellants in going together
inside the Beloso house and robbing the occupants while their other
companions stood guard outside the house. Then after the appellants had
ransacked the house, appellants and their companions fled together to the
seashore and rode in a motorboat away from the scene of the crime.

35

Accordingly, since the rule in conspiracy is that every conspirator is

responsible for the acts of others done in pursuance of the conspiracy
[People v. Pareja, G.R. No. L-2937, November 29, 1969, 30 SCRA 693],
Alvarez and Blancaflor can be held liable for the act of the robber who shot
Evelyn Bacaresas, thereby inflicting upon the latter serious physical
injuries. Likewise, they should be held accountable for the act of another
robber whose identity however was not established, in shooting Severino
Malapitan, Jr., resulting in the latter's death. For when a group of
malefactors conspire to commit robbery and arm themselves for the
purpose, no member of the group may disclaim responsibility for any act of
violence that is perpetrated by reason or on occasion of the robbery. Such
violence is always reasonably to be expected, either to overcome active
opposition or to forestall it altogether by disabling the victim at the very
outset, or even to silence him completely thereafter [People v. Espejo,
G.R. No. L-27708, December 19, 1970, 36 SCRA 400.]
In sum, the appellants' attempt at casting doubt upon their identification by
the prosecution witnesses as the malefactors is futile. This Court has
already ruled that despite the suddenness of the robbery and the absence
of a showing as to its duration or the number of times the robbers were
seen by the eyewitnesses, the latter's identification of the malefactors can
be given credence. For the victim or his relatives who actually witnessed
the robbery would strive to remember the uncovered faces of the
malefactors [People v. Cruz, GIL No. L-37173, November 29, 1984, 133
SCRA 426.]
On the other hand, appellants defense is anchored primarily on alibi, an
inherently weak defense. Appellants claimed that on the particular date
and time when the robbery took place, they were in Gigatanga, Mabini,
Nabal, Leyte. According to the appellants, they left for Gigatangan on June
27, 1978 on board a pump boat owned by Alvarez which was hired by one
Rudy Salut to fetch his parents. However, they were not able to bring with
them the parents of Salut when they left the place on July 5, 1978. They
admitted, though that on said date, they spent the night in Naro, Diot,

Cawayan, Masbate due to engine trouble. According to them, it was there

that they came to know of the robbery as the people there suspected them
of being the robbers [TSN, August 17, 1973, p. 65.]
It is elementary that in cases of positive identification of the culprit by
reliable witnesses, the defense of alibi must be established by "full, clear
and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v.
Pascua, 29 Phil. 587 (1915); People v. Pili, 51 Phil. 965 (1926).] The
evidence presented by the defense on their alibi is far from being "full,
clear and satisfactory'. On this point, the trial court said:
xxx
Passing on the defense of alibi by both accused, the court
cannot help but find it a convenient coincidence that of the
seven accused the only two accused who are under
custody and under trial are together in the same alibi.
Another coincidence which makes one wonder is the fact
that the defense witness supplying alibi to the two
accused has the same surname as the accused who
escaped from the custody of the Court, namely,
PAGAYONAN [Rollo, p. 21.]
This Tribunal has laid down the rule that for the defense of alibi to prosper,
it is not enough to prove that the accused was somewhere else when the
crime was committed but he must likewise demonstrate that it was
physically impossible for him to have been at the scene of the crime
[People v. Benaraba, G.R. No. L-32865, May 18, 1984, 129 SCRA 266.] In
this case, the appellants failed to show such physical impossibility. On the
contrary, defense witness Emma Pagayonan testified that it takes only
eight to nine hours to travel by motorboat from Gigatangan, Leyte to
Milagros, Masbate [TSN, August 17, 1983, p. 15.]

36

Even if we grant the truth of the appellants' story that they were in Leyte
since June 27, 1978, it is not physically impossible for them to have gone
to Milagros Masbate on July 3, 1978 considering that they had an
available means of transportation, i.e., the motorboat owned by Alvarez. It
should be pointed out that according to the testimony of the prosecution
witnesses, the robbers in this case fled from the scene using a motorboat
[T.S.N., September 4, 198 1, p. 14.]
To corroborate appellants' claim that they were in Leyte at the time of the
incident, the defense presented Emma Salut Pagayonan, sister of Rudy
Salut, the person who hired Alvarez' boat for use in Leyte. Her testimony,
however was shown to be unreliable upon a rigid cross-examination by the
prosecuting fiscal. The fiscal was able to elicit an admission that Emma
Pagayonan is a resident of Salvacion, Balud, Masbate and that she had no
other evidence to show that she had resided in Gigatangan, Mabini, Nabal,
Leyte in 1978, except her birth certificate, which however was never
presented to the trial court for confirmation of her claim [TSN, August 17,
1983, p. 33.]
Granting for the sake of argument the veracity of her claim that appellants
stayed in Gigatangan from June 27, to July 5, 1978, the defense of alibi
must nevertheless fail. Emma Pagayonan was not able to satisfactorily
and clearly account for the whereabouts of the appellants on the particular
date and time when the crime was perpetrated. All that she testified to was
that the appellants stayed in their place during the designated period but
she never claimed knowledge of what exactly the appellants were doing,
or where the appellants were, on the night in question.
Aside from Emma Pagayonan, the other persons, like Rudy Salut, who
could have corroborated their alibi were not presented to the witness stand
for no apparent reason at all. This Tribunal had occasion to state in People
v. Mendoza [100 Phil. 811 (1957)] that the defense of alibi merits outright
rejection where it could have been corroborated by other persons and yet,
no such corroborating evidence was presented.

Appellants sought to exculpate themselves by presenting the sworn

statement of a certain Lino Fenis,*** marked as Exhibit "4' after having
been properly identified by at. Winnie Ruga of the INP Mandaon Police
Station, attesting to the fact that another group was responsible for the
robbery [See Original records, p. 122, et seq. ] However, the same has no
probative value. An affidavit is inadmissible under the hearsay rule unless
the affiant is presented on the witness stand to testify thereon [People v.
Villeza, GIL No. 56113, January 31, 1984, 127 SCRA 349.] Here, said Lino
Fenis was never called to the witness stand.
The inadmissible statements of Fenis cannot diminish the greater
plausibility of the prosecution's version of the facts surrounding the
commission of the crime. No cogent reason exists to warrant disbelief in
the prosecution's narration of the incident. It is worth noting the
uncontroverted fact that the principal prosecution witnesses in this case,
the Belosos, are a well-respected couple and have a high social standing
in their community inasmuch as Roberto Beloso had been the Barrio
Captain of Guinlothangan, Milagros, Masbate since 1971. No ulterior
motive for testifying falsely against the appellants, who were not previously
known to the victims, was imputed to the prosecution witnesses and so
they are presumed not to have been actuated by any improper motives.
Their testimonies thus deserve full faith and credit [People v. Detuya, G.R
No. L-39300, September 30, 1987, 154 SCRA 410 citing People v.
Canamo, G.R. No. 62043, August 13, 1985, 138 SCRA 141; People v. Asil,
G.R. No. L-32102, February 10, 1986, 141 SCRA 286.]
As all the elements of robbery, namely, intent to gain, unlawful taking of
personal property belonging to another and violence against or intimidation
of any person [Article 293, Revised Penal Code] have been duly proved in
the instant case, the crime committed is robbery complexed with homicide
(the death of Severino Malapitan, Jr.) and serious physical injuries
(committed against the maid, Evelyn Bacaresas, who was hospitalized for
41 days because of her injuries). However, the physical injuries inflicted
upon Evelyn Bacaresas as wen as the killing of Severino Malapitan, Jr.

37

should be merged in the composite, integrated whole, that is robbery with

homicide, it being evident that the killing and the physical injuries were
perpetrated with the sole end in view of eliminating opposition to the
robbery or oppressing the evidence, or both [People v. Genoguin, G.R. No.
L-23019, March 28, 1974, 56 SCRA 181.] Here, the offense was
committed by a band as defined in Article 296 of the Revised Penal Code
which states: "When more than three armed malefactors take part in the
commission of robbery, it shall be deemed to have been committed by a
band. . . ." The Beloso spouses testified that the three robbers who
entered the house were all armed while another prosecution witness,
Nonilon Ritos, was able to prove that the four other robbers left outside the
house as guards were likewise armed [TSN, March 17, 1982, p. 60.]
Under the prevailing jurisprudence, if robbery with homicide is committed
by a band, the offense is denominated as " robbery with homicide" under
Article 294(l) of the Revised Penal Code with the element of band as an
ordinary aggravating circumstance [People v. Cruz, supra, p. 436.] Since
the death penalty can not presently be imposed under the 1987
Constitution, the penalty for robbery with homicide under Article 294 (1) of
the Revised Penal Code is now only reclusion perpetua. Despite the
existence of a mitigating circumstance of voluntary surrender in favor of
the appellants and an aggravating circumstance of band, the same cannot
be considered for purposes of meting out the appropriate penalty in this
case. Article 63 of the Revised Penal Code mandates that in all cases in
which the law prescribes a single indivisible penalty such as reclusion
perpetua for robbery with homicide, it shall be applied by the courts
regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed.
WHEREFORE, the instant appeal is hereby DISMISSED and judgment of
the Regional Trial Court is AFFIRMED with modification as to the
denomination of the crime committed which should be "robbery with
homicide" under Article 294 (1) of the Revised Penal Code.

SO ORDERED.

G.R. No. 70446 January 31, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICENTE ALVAREZ, WILFREDO BLANCAFLOR, FELINO ALETA,
ORLANDO TONIL, FELIPE ZURBITO and ROGELIO PAGAYONAN,

38

defendants, VICENTE ALVAREZ and WILFREDO "TOLENDOY"

BLANCAFLOR,defendants-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Off we for defendants-appellants.

CORTES, J.:
The accused Felino Aleta, Orlando Tonil, Felipe Zurbito, Vicente Alvarez,
Rogelio Pagayonan alias "Sinco" and Wilfredo "Tolendoy" Blancaflor were
charged with the offense of robbery with homicide and physical injuries
before the Regional Trial Court of Masbate in an information filed on
February 27, 1981 which reads:
... on or about July 3, 1978, in the evening thereof, at
Barangay Guinlothangan Municipality of Milagros,
Province of Masbate, Philippines, within the jurisdiction of
this court, the said accused confederating together and
helping one another, with intent of gain (sic)', and by
means of violence and intimidation, armed with guns, did
then and there wilfully, unlawfully and feloniously enter the
house of Roberto Beloso, hogtie the latter, and one Victor
Javar, and with intent to kill fired their guns at one
Severino Malapitan Jr., hitting the latter on the different
parts of the body which directly caused his instantaneous
death; that as a result of said firings (sic) one Evelyn
Bacaresas was hit inflicting upon the latter physical
injuries which will require and have required mechanical
attendance for a period as prescribed by the doctor
issuing the medical certificate, and will incapacitate and

have incapacitated her from performing her customary

labor for the same period of time; did then and there
wilfully, unlawfully and feloniously take, steal and carry
away cash amount of P14,000.00 and jewelries worth
P620.00, all belonging to spouses Roberto Beloso and
Nora M. Beloso, to the damage and prejudice of the latter
in the total sum of P14,620.00, Philippine currency. [Rollo,
p. 15]
Only accused Vicente Alvarez, Tolendoy Blancaflor, and Rogelio
Pagayonan were placed under custody. Alvarez and Blancaflor pleaded
not guilty. Pagayonan was not arraigned as he was then sick but before he
could be arraigned, he escaped from the Provincial Jail and he has been
at large since then. The other accused are also still at large.
After trial, the lower court rendered judgment convicting the accused, the
dispositive portion of the amended decision reading as follows:
XXX
WHEREFORE, premises considered, the Court finds the
accused VICENTE ALVAREZ and WILFREDO
"TOLENDOY" BLANCAFLOR guilty of the offense of
Robbery in Band** with Homicide and Physical Injuries,
and considering the aggravating circumstance of band
and the mitigating circumstance of voluntary surrender
hereby imposes on each of the said accused the penalty
ofRECLUSION PERPETUA to render restitution to the
spouses Roberto Beloso and Nora Morado Beloso, jointly
and severally in the amount of P14,815.00,to indemnify
the heirs of victim Severino Malapitan, Jr., in the amount
of P30,000.00 and to pay the costs of the suit.

39

The case against accused FELINO ALETA, ORLANDO

TONIL, FELIPE ZURBITO and ROGELIO PAGAYONAN,
who are still at large and against whom alias warrants of
arrest had been issued, are hereby ordered ARCHIVED.

left behind. Taken by the robbers upstairs after ransacking

it were cash amounting to P12,000.00, coins in the piggy
bank amounting to P2,000.00, jewelries worth P600.00, a
pair of pants worth P160.00 and a travelling bag worth
P55.00.

IT IS SO ORDERED. [Rollo, pp- 22-23.]

The case was brought on appeal to this Court on the sole issue of whether
trial court erred in convicting accused-appellants of the crime charged
notwithstanding the alleged insufficiency of evidence adduced by the
prosecution.
In ruling against the accused-appellants, the court found the following
facts:
At about 7:00 to 8:00 o'clock in the evening of July 3,
1978, in Barangay Guinlothangan, Milagros, Masbate,
seven (7) armed men staged a robbery in the house of
Roberto Beloso, the then Barangay Captain of the said
barangay, while said Roberto Beloso was about to have
dinner with his family and a guest named Victor Jabar.
Three of the armed men, later Identified as Vicente
Alvarez, Tolendoy Blancaflor and Felino Aleta, entered the
house and announced that it was a hold-up. The one
identified as Vicente Alvarez announced in a mixture of
Tagalog and Cebuano, "Hold-up, so don't shout otherwise
we will kill you."
Roberto Beloso and Victor Jabar were tied up and made
to lie face down on the floor and the formers wife, Nora
Morado Beloso, and one of their small children were
brought upstairs by the said Vicente Alvarez and the one
identified as Tolendoy Blancaflor. The one Identified as
Felino Aleta was left downstairs to guard those who were

Meanwhile, as Mrs. Beloso and her child were being

brought upstairs, Evelyn Bacaresas, a maid in the
household, fled from the house and an she ran outside
she was shot by Tolendoy Blancaflor and hit at the back
felling her. She identified two of the robbers who entered
the house as Vicente Alvarez and Tolendoy Blancaflor.
As the robbers, with Mrs. Beloso and her child, were ping
downstairs, after ransacking the upper floor, Severino
Malapitan, Jr., a cousin of Roberto Beloso who was earlier
in the house drinking beer with Roberto Beloso, suddenly
made his appearance having heard a shot coming from
the house and he was shot by those armed companions of
the robbers left on the yard outside the house. He died
from the gunshot wounds inflicted on him by the said
armed robbers.
The robbers then left the scene as church bells rang
warning the people of danger with Mrs. Beloso and her
child as hostage and keeping by (sic) the people attracted
by the ringing of bells and shots at bay with threats on the
hostages proceeded to the shore where they fled on board
a motorboat, leaving their hostage Nora Morado Beloso in
waist deep water, firing their guns as they left. ...
[Rollo, pp. 16-18.]

40

The thrust of the instant appeals is that the Identities of the appellants as
the perpetrators of the crime have not been positively proven.
Upon a thorough evaluation and review of the evidence on record, the
Court finds that the identification of the appellants as the perpetrators of
the crime has been sufficiently established. In their testimonies before the
courta quo the prosecution witnesses unhesitatingly pinpointed the
appellants as the robbers who entered the house on that fateful night.
Considering the uncontested facts that during the robbery, the inside of the
house was well-lighted with kerosene lamps [TSN, March 16, 1982, p. 47]
and that the three men who entered the house wore no masks nor made
any effort to conceal their faces nor did they put out the light [TSN,
September 4, 1981, p. 31], it is no wonder that the victims were able to
recognize the faces of the malefactors. Thus when the appellants upon
their voluntary surrender, were brought to the municipal hall of Milagros,
Masbate, together with other apprehended suspects, a few days after the
incident, the Beloso couple readily pointed to the appellants as the
malefactors [Rollo, p. 18.] Thus:
While evidence as to the Identity of the accused as the
person who committed the crime should be carefully
analyzed, the Court has consistently held that "where
conditions of visibility are favorable and the witness does
not appears to be biased against the man on the dock, his
or her assertions as to the Identity of the malefactor
should normally be accepted. And this is more so where
the witness is the victim or his near- relative, as in this
case, because these (people) usually strive to remember
the faces of the assailants" [People v. Bernat, G.R. No.
55176, February 28, 1983, 120 SCRA 918, 924 citing
People v. Zapanta, 45 O.G. 1312; Emphasis supplied.]
Appellants, citing inconsistencies in the testimonies of the complainants,
claim that the witnesses for the prosecution have seriously contradicted

themselves on crucial and material points. While Nora Morado Beloso

testified that Tolendoy Blancaflor was among those who entered the
house, yet her husband categorically stated on cross-examination that he
did not see Tolendoy Blancaflor in the house during the armed robbery.
Also, as regards the claim of Evelyn Bacaresas that it was Tolendoy
Blancaflor who shot her when she ran outside, the defense insists that the
same is not worthy of credence as she herself admitted on crossexamination that since it was dark, she did not see the person who shot
her [Brief for Accused-Appellant, p. 11; Rollo, p. 26.]
These inconsistencies, though do not detract from the positiveness of the
Identification of the appellants. Nora Beloso, when confronted by the trial
court with the fact that her husband had earlier testified that Tolendoy
Blancaflor was not one of the three robbers who entered the house gave a
convincing explanation. According to her, her husband and Victor Jabar
were hogtied and made to lie with their faces down on the floor.
Afterwards, appellants Alvarez and Blancaflor, brought Nora Beloso and
her child upstairs [TSN, September 4, 1981, p. 38.] Roberto Beloso's
admission that he was not able to identify the other robbers lends greater
credence to the version of the facts as narrated by the prosecution. For in
view of his position and the fact that Alvarez and Blancaflor immediately
went upstairs, it is highly probable that Roberto Beloso had no chance to
identify Blancaflor with accuracy. As to appellant Vicente Alvarez, it is not
surprising that Roberto Beloso was able to identify him as he was the one
who, upon entry to the house, said "Hold up, so don't shout otherwise, we
will kill you" [TSN, September 3, 1981, p. 8.]
The lower court properly gave full faith and credit to the testimony of
Evelyn Bacaresas that Tolendoy Blancaflor was her assailant. Indeed, she
did not actually see who shot her inasmuch as her assailant was behind
her and she was shot at the back. But she was able to establish during the
cross-examination that it was Tolendoy Blancaflor who, upon seeing her
run away from inside the house, chased her up to the window garden
where she was shot. Evelyn Bacaresas could not have been mistaken in

41

the Identity of Tolendoy. When the robbers, without tying her hands,
ordered her to sit beside Roberto Beloso, she kept staring at their faces
which she fully saw as they were not wearing any masks and the room
was brightly illuminated [TSN, March 16, 1982, pp- 50 and 78.]
Even if the trial court disbelieved Bacaresas' identification of Blancaflor as
the one who shot her, it does not follow that her entire testimony should be
discredited. For the testimony of a witness can be believed as to some
facts and disbelieved as to others' [People v. Pacada, Jr. G.R. Nos. 45,
July 7, 1986, 142 SCRA 427.] The categorical declaration of Evelyn
Bacaresas that appellants Alvarez and Blancaflor were two of the robbers
who entered the house on that fateful night, which is corroborated by the
testimony on Nora Beloso, is worthy of belief.
Even assuming that Evelyn Bacaresas mistook Blancaflor as her assailant,
the latter will not be absolved from any liability. Since Evelyn Bacaresas
was able to establish in her testimony that Blancaflor was one of the
robbers who entered the house, it does not matter now if it was actually
one of his companions and not he, who shot Bacaresas since in a
conspiracy, the act of one is the act of all. Thus, it was ruled in People v.
Trinidad [G.R. No, L-38930, June 28, 19881 that where conspiracy has
been proven, a showing as to who inflicted the fatal blow is not required.
The next inquiry then is whether conspiracy in the commission of the
robbery was duly proven in the instant case.
It is settled that conspiracy need not be established by direct evidence but
may be proven through a series of acts done in pursuance of a common
unlawful purpose [People v. Cadag, G.R. No. L- 13830, May 31, 1961, 2
SCRA 388; People v. Cruz, G.R. No. L-15369, April 26, 1962, 4 SCRA
1114; People Y. Alcantara, G.R. No. L-26367, June 30, 1970, 33 SCRA
812.] The facts proven by the prosecution clearly indicate a conspiracy to
rob the Beloso family. Indeed, in order that conspiracy may properly be
appreciated, it is enough that at the time the offense was committed, the

participants had the same purpose and were united in its execution as
may be inferred from the attendant circumstances [People v. Masangkay,
G.R No. 73461, October 27, 1987, 155 SCRA 113.] That the appellants
were united in purpose and in the execution of their criminal designs has
been amply proven in the instant case. Here, the existence of a conspiracy
can be gleaned from the concerted acts of the appellants in going together
inside the Beloso house and robbing the occupants while their other
companions stood guard outside the house. Then after the appellants had
ransacked the house, appellants and their companions fled together to the
seashore and rode in a motorboat away from the scene of the crime.
Accordingly, since the rule in conspiracy is that every conspirator is
responsible for the acts of others done in pursuance of the conspiracy
[People v. Pareja, G.R. No. L-2937, November 29, 1969, 30 SCRA 693],
Alvarez and Blancaflor can be held liable for the act of the robber who shot
Evelyn Bacaresas, thereby inflicting upon the latter serious physical
injuries. Likewise, they should be held accountable for the act of another
robber whose identity however was not established, in shooting Severino
Malapitan, Jr., resulting in the latter's death. For when a group of
malefactors conspire to commit robbery and arm themselves for the
purpose, no member of the group may disclaim responsibility for any act of
violence that is perpetrated by reason or on occasion of the robbery. Such
violence is always reasonably to be expected, either to overcome active
opposition or to forestall it altogether by disabling the victim at the very
outset, or even to silence him completely thereafter [People v. Espejo,
G.R. No. L-27708, December 19, 1970, 36 SCRA 400.]
In sum, the appellants' attempt at casting doubt upon their identification by
the prosecution witnesses as the malefactors is futile. This Court has
already ruled that despite the suddenness of the robbery and the absence
of a showing as to its duration or the number of times the robbers were
seen by the eyewitnesses, the latter's identification of the malefactors can
be given credence. For the victim or his relatives who actually witnessed
the robbery would strive to remember the uncovered faces of the

42

malefactors [People v. Cruz, GIL No. L-37173, November 29, 1984, 133
SCRA 426.]
On the other hand, appellants defense is anchored primarily on alibi, an
inherently weak defense. Appellants claimed that on the particular date
and time when the robbery took place, they were in Gigatanga, Mabini,
Nabal, Leyte. According to the appellants, they left for Gigatangan on June
27, 1978 on board a pump boat owned by Alvarez which was hired by one
Rudy Salut to fetch his parents. However, they were not able to bring with
them the parents of Salut when they left the place on July 5, 1978. They
admitted, though that on said date, they spent the night in Naro, Diot,
Cawayan, Masbate due to engine trouble. According to them, it was there
that they came to know of the robbery as the people there suspected them
of being the robbers [TSN, August 17, 1973, p. 65.]
It is elementary that in cases of positive identification of the culprit by
reliable witnesses, the defense of alibi must be established by "full, clear
and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v.
Pascua, 29 Phil. 587 (1915); People v. Pili, 51 Phil. 965 (1926).] The
evidence presented by the defense on their alibi is far from being "full,
clear and satisfactory'. On this point, the trial court said:
xxx
Passing on the defense of alibi by both accused, the court
cannot help but find it a convenient coincidence that of the
seven accused the only two accused who are under
custody and under trial are together in the same alibi.
Another coincidence which makes one wonder is the fact
that the defense witness supplying alibi to the two
accused has the same surname as the accused who
escaped from the custody of the Court, namely,
PAGAYONAN [Rollo, p. 21.]

This Tribunal has laid down the rule that for the defense of alibi to prosper,
it is not enough to prove that the accused was somewhere else when the
crime was committed but he must likewise demonstrate that it was
physically impossible for him to have been at the scene of the crime
[People v. Benaraba, G.R. No. L-32865, May 18, 1984, 129 SCRA 266.] In
this case, the appellants failed to show such physical impossibility. On the
contrary, defense witness Emma Pagayonan testified that it takes only
eight to nine hours to travel by motorboat from Gigatangan, Leyte to
Milagros, Masbate [TSN, August 17, 1983, p. 15.]
Even if we grant the truth of the appellants' story that they were in Leyte
since June 27, 1978, it is not physically impossible for them to have gone
to Milagros Masbate on July 3, 1978 considering that they had an
available means of transportation, i.e., the motorboat owned by Alvarez. It
should be pointed out that according to the testimony of the prosecution
witnesses, the robbers in this case fled from the scene using a motorboat
[T.S.N., September 4, 198 1, p. 14.]
To corroborate appellants' claim that they were in Leyte at the time of the
incident, the defense presented Emma Salut Pagayonan, sister of Rudy
Salut, the person who hired Alvarez' boat for use in Leyte. Her testimony,
however was shown to be unreliable upon a rigid cross-examination by the
prosecuting fiscal. The fiscal was able to elicit an admission that Emma
Pagayonan is a resident of Salvacion, Balud, Masbate and that she had no
other evidence to show that she had resided in Gigatangan, Mabini, Nabal,
Leyte in 1978, except her birth certificate, which however was never
presented to the trial court for confirmation of her claim [TSN, August 17,
1983, p. 33.]
Granting for the sake of argument the veracity of her claim that appellants
stayed in Gigatangan from June 27, to July 5, 1978, the defense of alibi
must nevertheless fail. Emma Pagayonan was not able to satisfactorily
and clearly account for the whereabouts of the appellants on the particular
date and time when the crime was perpetrated. All that she testified to was

43

that the appellants stayed in their place during the designated period but
she never claimed knowledge of what exactly the appellants were doing,
or where the appellants were, on the night in question.
Aside from Emma Pagayonan, the other persons, like Rudy Salut, who
could have corroborated their alibi were not presented to the witness stand
for no apparent reason at all. This Tribunal had occasion to state in People
v. Mendoza [100 Phil. 811 (1957)] that the defense of alibi merits outright
rejection where it could have been corroborated by other persons and yet,
no such corroborating evidence was presented.
Appellants sought to exculpate themselves by presenting the sworn
statement of a certain Lino Fenis,*** marked as Exhibit "4' after having
been properly identified by at. Winnie Ruga of the INP Mandaon Police
Station, attesting to the fact that another group was responsible for the
robbery [See Original records, p. 122, et seq. ] However, the same has no
probative value. An affidavit is inadmissible under the hearsay rule unless
the affiant is presented on the witness stand to testify thereon [People v.
Villeza, GIL No. 56113, January 31, 1984, 127 SCRA 349.] Here, said Lino
Fenis was never called to the witness stand.
The inadmissible statements of Fenis cannot diminish the greater
plausibility of the prosecution's version of the facts surrounding the
commission of the crime. No cogent reason exists to warrant disbelief in
the prosecution's narration of the incident. It is worth noting the
uncontroverted fact that the principal prosecution witnesses in this case,
the Belosos, are a well-respected couple and have a high social standing
in their community inasmuch as Roberto Beloso had been the Barrio
Captain of Guinlothangan, Milagros, Masbate since 1971. No ulterior
motive for testifying falsely against the appellants, who were not previously
known to the victims, was imputed to the prosecution witnesses and so
they are presumed not to have been actuated by any improper motives.
Their testimonies thus deserve full faith and credit [People v. Detuya, G.R
No. L-39300, September 30, 1987, 154 SCRA 410 citing People v.

Canamo, G.R. No. 62043, August 13, 1985, 138 SCRA 141; People v. Asil,
G.R. No. L-32102, February 10, 1986, 141 SCRA 286.]
As all the elements of robbery, namely, intent to gain, unlawful taking of
personal property belonging to another and violence against or intimidation
of any person [Article 293, Revised Penal Code] have been duly proved in
the instant case, the crime committed is robbery complexed with homicide
(the death of Severino Malapitan, Jr.) and serious physical injuries
(committed against the maid, Evelyn Bacaresas, who was hospitalized for
41 days because of her injuries). However, the physical injuries inflicted
upon Evelyn Bacaresas as wen as the killing of Severino Malapitan, Jr.
should be merged in the composite, integrated whole, that is robbery with
homicide, it being evident that the killing and the physical injuries were
perpetrated with the sole end in view of eliminating opposition to the
robbery or oppressing the evidence, or both [People v. Genoguin, G.R. No.
L-23019, March 28, 1974, 56 SCRA 181.] Here, the offense was
committed by a band as defined in Article 296 of the Revised Penal Code
which states: "When more than three armed malefactors take part in the
commission of robbery, it shall be deemed to have been committed by a
band. . . ." The Beloso spouses testified that the three robbers who
entered the house were all armed while another prosecution witness,
Nonilon Ritos, was able to prove that the four other robbers left outside the
house as guards were likewise armed [TSN, March 17, 1982, p. 60.]
Under the prevailing jurisprudence, if robbery with homicide is committed
by a band, the offense is denominated as " robbery with homicide" under
Article 294(l) of the Revised Penal Code with the element of band as an
ordinary aggravating circumstance [People v. Cruz, supra, p. 436.] Since
the death penalty can not presently be imposed under the 1987
Constitution, the penalty for robbery with homicide under Article 294 (1) of
the Revised Penal Code is now only reclusion perpetua. Despite the
existence of a mitigating circumstance of voluntary surrender in favor of
the appellants and an aggravating circumstance of band, the same cannot
be considered for purposes of meting out the appropriate penalty in this

44

case. Article 63 of the Revised Penal Code mandates that in all cases in
which the law prescribes a single indivisible penalty such as reclusion
perpetua for robbery with homicide, it shall be applied by the courts
regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed.
WHEREFORE, the instant appeal is hereby DISMISSED and judgment of
the Regional Trial Court is AFFIRMED with modification as to the
denomination of the crime committed which should be "robbery with
homicide" under Article 294 (1) of the Revised Penal Code.
SO ORDERED.

G.R. No. 176229

October 19, 2011

HO WAI PANG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
Infraction of the rights of an accused during custodial investigation or the
so-called Miranda Rights render inadmissible only the extrajudicial
confession or admission made during such investigation. 1 "The
admissibility of other evidence, provided they are relevant to the issue and
is not otherwise excluded by law or rules, is not affected even if obtained
or taken in the course of custodial investigation." 2
Petitioner Ho Wai Pang (petitioner) in this present recourse assails the
June 16, 2006 Decision3 of the Court of Appeals (CA) in CA-G.R. CR-H.C.
No. 01459 affirming the April 6, 1995 Decision4 of the Regional Trial Court
(RTC), Branch 118 of Pasay City in Criminal Case No. 91-1592, finding
him and his co-accused, namely, Law Ka Wang, Chan Chit Yue, 5 Wu Hing
Sum, Tin San Mao6 and Kin San Ho7 guilty beyond reasonable doubt for
violation of Section 15, Article III8 of Republic Act (R.A.) No. 6425
otherwise known as the Dangerous Drugs Act of 1972. Also assailed is the
January 16, 2007 CA Resolution9 denying the motion for reconsideration
thereto.
Factual Antecedents

45

On September 6, 1991, at around 11:30 in the evening, United Arab

Emirates Airlines Flight No. 068 from Hongkong arrived at the Ninoy
Aquino International Airport (NAIA). Among the passengers were 13
Hongkong nationals who came to the Philippines as tourists. At the arrival
area, the group leader Wong Kwok Wah (Sonny Wong) presented a
Baggage Declaration Form to Customs Examiner Gilda L. Cinco (Cinco),
who was then manning Lane 8 of the Express Lane. Cinco examined the
baggages of each of the 13 passengers as their turn came up. From the
first traveling bag, she saw few personal belongings such as used clothing,
shoes and chocolate boxes which she pressed. When the second bag was
examined, she noticed chocolate boxes which were almost of the same
size as those in the first bag. Becoming suspicious, she took out four of
the chocolate boxes and opened one of them. Instead of chocolates, what
she saw inside was white crystalline substance contained in a white
transparent plastic. Cinco thus immediately called the attention of her
immediate superiors Duty Collector Alalo and Customs Appraiser Nora
Sancho who advised her to call the Narcotics Command (NARCOM) and
the police. Thereupon, she guided the tourists to the Intensive Counting
Unit (ICU) while bringing with her the four chocolate boxes earlier
discovered.
At the ICU, Cinco called the tourists one after the other using the
passenger manifest and further examined their bags. The bag of Law Ka
Wang was first found to contain three chocolate boxes. Next was
petitioners bag which contains nothing except for personal effects. Cinco,
however, recalled that two of the chocolate boxes earlier discovered at the
express lane belong to him. Wu Hing Sums bag followed and same
yielded three chocolate boxes while the baggages of Ho Kin San, Chan
Chit Yue and Tin San Mao each contained two or three similar chocolate
boxes. All in all, 18 chocolate boxes were recovered from the baggages of
the six accused.
NARCOM Agent Neowillie de Castro corroborated the relevant testimony
of Cinco pertaining to the presence of the chocolate boxes. According to

him, he conducted a test on the white crystalline substance contained in

said chocolate boxes at the NAIA using the Mandelline Re-Agent
Test.10 The result of his examination11 of the white crystalline substance
yielded positive for methamphetamine hydrochloride or shabu. Thereafter,
the chocolate boxes were bundled together with tape, placed inside a
plastic bag and brought to the Inbond Section.
The following day, September 7, 1991, the 13 tourists were brought to the
National Bureau of Investigation (NBI) for further questioning. The
confiscated stuff were turned over to the Forensic Chemist who weighed
and examined them. Findings show that its total weight is 31.1126
kilograms and that the representative samples were positive for
methamphetamine hydrochloride.12 Out of the 13 tourists, the NBI found
evidence for violation of R.A. No. 6425 only as against petitioner and his
five co-accused.
Accordingly, six separate Informations all dated September 19, 1991 were
filed against petitioner and his co-accused. These Informations were
docketed as Criminal Case Nos. 91-1591 to 97. Subsequently, however,
petitioner filed a Motion for Reinvestigation13 which the trial court granted.
The reinvestigation conducted gave way to a finding of conspiracy among
the accused and this resulted to the filing of a single Amended
Information14under Criminal Case No. 91-1592 and to the withdrawal of the
other Informations.15 The Amended Information reads:
That on or about September 6, 1991 in Pasay City, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, did, then and
there, willfully, unlawfully and feloniously carry and transport into the
country without lawful authority, 31.112 kilograms, more or less, of
Methamphetamine Hydrochloride, also popularly known as "SHABU", a
regulated drug.
CONTRARY TO LAW.16

46

After pleading not guilty to the crime charged,17 all the accused testified
almost identically, invoking denial as their defense. They claimed that they
have no knowledge about the transportation of illegal substance (shabu)
taken from their traveling bags which were provided by the travel agency.
Ruling of the Regional Trial Court
On April 6, 1995, the RTC rendered a Decision18 finding all the accused
guilty of violating Section 15, Article III of R.A. No. 6425, as amended, the
decretal portion of which reads:
WHEREFORE, all the foregoing considered, the Court finds the accused
LAW KA WANG, CHAN CHIT yue, ho wai pang, wu hing sum, tin sun mao,
and kin san ho (ho kin san) guilty of Conspiracy in violating Section 15,
Article III, Republic Act No. 6425, as amended for having conspired to
transport into the Philippines 31.112 kilograms of methamp[h]etamine
hydrochloride, locally known as Shabu, and they are hereby sentenced to
suffer the PENALTY OF IMPRISONMENT OF SIX (6) [sic] RECLUSION
PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30)
THOUSAND PESOS (p30,000.00) each as FINE, the penalty of reclusion
perpetua is being imposed pursuant to Republic Act No. 7659 considering
its applicability to the accused though retroactively for having a less stricter
penalty than that of life imprisonment provided in Republic Act No. 6425.
The fine ofP30,000.00 for each accused is imposed pursuant to R.A. No.
6425 it being more favorable to the accused [than] that provided in R.A.
No. 7659 WITH IMMEDIATE DEPORTATION AFTER SERVICE OF
SENTENCE. The penalty of death cannot be imposed since the offense
was committed prior to the effectivity of R.A. No. 7659.
Let an alias warrant of arrest be issued against accused WONG KOK
WAH @ SONNY WONG, CHAN TAK PIU, HO WAI LING AND
INOCENCIA CHENG.

From this judgment, all the accused appealed to this Court where the case
records were forwarded to per Order of the RTC dated May 10,
1995.20 Later, all the accused except for petitioner, filed on separate dates
their respective withdrawal of appeal.21 This Court, after being satisfied
that the withdrawing appellants were fully aware of the consequences of
their action, granted the withdrawal of their respective appeals through a
Resolution dated June 18, 1997.22 Per Entry of Judgment, 23 said
Resolution became final and executory on July 7, 1997. Consequently,
petitioner was the only one left to pursue his appeal.
Petitioner filed his Brief24 on April 6, 1998 while the brief25 for the
respondent People of the Philippines was filed on August 27, 1998 through
the Office of the Solicitor General (OSG). Per Resolution 26 dated August
30, 2004, this Court referred the appeal to the CA for proper disposition
and determination pursuant to this Courts ruling in People v. Mateo. 27
Ruling of the Court of Appeals
On June 16, 2006, the CA denied the appeal and affirmed the Decision of
the RTC. While conceding that petitioners constitutional right to counsel
during the custodial investigation was indeed violated, it nevertheless went
on to hold that there were other evidence sufficient to warrant his
conviction. The CA also rebuked petitioners claim that he was deprived of
his constitutional and statutory right to confront the witnesses against him.
The CA gave credence to the testimonies of the prosecution witnesses
and quoted with favor the trial courts ratiocination regarding the existence
of conspiracy among the accused.
Undeterred, petitioner filed a Motion for Reconsideration 28 which the CA
denied in its Resolution29 dated January 16, 2007.
Hence, this petition for review on certiorari anchored on the following
grounds:

SO ORDERED.19

47

I
WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED
OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS UNDER
CUSTODIAL INVESTIGATION BOTH BY THE CUSTOMS
OFFICIALS AND BY THE NBI INVESTIGATORS, THE
HONORABLE COURT OF APPEALS ERRED IN NOT
EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL
INVESTIGATION.
II
THE HONORABLE COURT OF APPEALS ERRED IN NOT
CONSIDERING THAT PETITIONER WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES
AGAINST HIM.
III
THE HONORABLE COURT OF APPEALS ERRED IN NOT
FINDING THAT THE PROSECUTIONS EVIDENCE FAILED TO
ESTABLISH THE EXISTENCE OF A CONSPIRACY.
IV
THE HONORABLE COURT OF APPEALS ERRED IN NOT
FINDING THAT THE PROSECUTION FAILED TO PRESENT
PROOF BEYOND REASONABLE DOUBT AS TO OVERTURN
THE PRESUMPTION OF INNOCENCE ACCORDED TO
PETITIONER BY THE CONSTITUTION.30
OUR RULING

The petition lacks merit.

Section 12, Article III of the Constitution prohibits as evidence only
confessions and admissions of the accused as against himself.
Anent the error first assigned, petitioner takes issue on the fact that he
was not assisted by a competent and independent lawyer during the
custodial investigation. He claimed that he was not duly informed of his
rights to remain silent and to have competent counsel of his choice.
Hence, petitioner faults the CA in not excluding evidence taken during
such investigation.
While there is no dispute that petitioner was subjected to all the rituals of a
custodial questioning by the customs authorities and the NBI in violation of
his constitutional right under Section 1231 of Article III of the Constitution,
we must not, however, lose sight of the fact that what said constitutional
provision prohibits as evidence are only confessions and admissions of the
accused as against himself. Thus, in Aquino v. Paiste,32 the Court
categorically ruled that "the infractions of the so-called Miranda rights
render inadmissible only the extrajudicial confession or admission made
during custodial investigation. The admissibility of other evidence,
provided they are relevant to the issue and [are] not otherwise excluded by
law or rules, [are] not affected even if obtained or taken in the course of
custodial investigation."
In the case at bench, petitioner did not make any confession or admission
during his custodial investigation. The prosecution did not present any
extrajudicial confession extracted from him as evidence of his guilt.
Moreover, no statement was taken from petitioner during his detention and
subsequently used in evidence against him. Verily, in determining the guilt
of the petitioner and his co-accused, the trial court based its Decision on
the testimonies of the prosecution witnesses and on the existence of the
confiscated shabu. As the Court held in People v. Buluran, 33 "[a]ny
allegation of violation of rights during custodial investigation is relevant and

48

material only to cases in which an extrajudicial admission or confession

extracted from the accused becomes the basis of their conviction." Hence,
petitioners claim that the trial court erred in not excluding evidence taken
during the custodial investigation deserves scant consideration.
Petitioner cannot take refuge in this Courts ruling in People v. Wong
Chuen Ming34 to exculpate himself from the crime charged. Though there
are semblance in the facts, the case of Ming is not exactly on all fours with
the present case. The disparity is clear from the evidence adduced upon
which the trial courts in each case relied on in rendering their respective
decisions. Apparently in Ming, the trial court, in convicting the accused,
relied heavily on the signatures which they affixed on the boxes of Alpen
Cereals and on the plastic bags. The Court construed the accuseds act of
affixing their signatures thereon as a tacit admission of the crime charged.
And, since the accused were not informed of their Miranda rights when
they affixed their signatures, the admission was declared inadmissible
evidence for having been obtained in violation of their constitutional rights.
In ruling against the accused, the trial court also gave credence to the sole
testimony of the customs examiner whom it presumed to have performed
his duties in regular manner. However, in reversing the judgment of
conviction, the Court noted that said examiners testimony was not
corroborated by other prosecution witnesses.
On the other hand, petitioners conviction in the present case was on the
strength of his having been caught inflagrante delicto transporting shabu
into the country and not on the basis of any confession or admission.
Moreover, the testimony of Cinco was found to be direct, positive and
credible by the trial court, hence it need not be corroborated. Cinco
witnessed the entire incident thus providing direct evidence as eyewitness
to the very act of the commission of the crime. As the Court held in People
v Dela Cruz,35 "[n]o rule exists which requires a testimony to be
corroborated to be adjudged credible. x x x Thus, it is not at all uncommon
to reach a conclusion of guilt on the basis of the testimony of a single
witness despite the lack of corroboration, where such testimony is found

positive and credible by the trial court. In such a case, the lone testimony
is sufficient to produce a conviction."
Indeed, a ruling in one case cannot simply be bodily lifted and applied to
another case when there are stark differences between the two cases.
Cases must be decided based on their own unique facts and applicable
law and jurisprudence.
Petitioner was not denied of his right to confrontation.
Turning now to the second assigned error, petitioner invokes the pertinent
provision of Section 14(2) of Article III of the 1987 Philippine Constitution
providing for the right to confrontation, viz:
Section 14. x x x
(2) In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable.
Petitioner asserts that he was deprived of his right to know and understand
what the witnesses testified to. According to him, only a full understanding
of what the witnesses would testify to would enable an accused to
comprehend the evidence being offered against him and to refute it by
cross-examination or by his own countervailing evidence.

49

In refutation, the OSG countered that petitioner was given the opportunity
to confront his accusers and/or the witnesses of the prosecution when his
counsel cross-examined them. It is petitioners call to hire an interpreter to
understand the proceedings before him and if he could not do so, he
should have manifested it before the court. At any rate, the OSG contends
that petitioner was nevertheless able to cross-examine the prosecution
witnesses and that such examination suffices as compliance with
petitioners right to confront the witnesses against him.
We agree with the OSG.
As borne out by the records, petitioner did not register any objection to the
presentation of the prosecutions evidence particularly on the testimony of
Cinco despite the absence of an interpreter. Moreover, it has not been
shown that the lack of an interpreter greatly prejudiced him. Still and all,
the important thing is that petitioner, through counsel, was able to fully
cross-examine Cinco and the other witnesses and test their credibility. The
right to confrontation is essentially a guarantee that a defendant may
cross-examine the witnesses of the prosecution. In People v. Libo-on, 36 the
Court held:
The right to confrontation is one of the fundamental rights guaranteed by
the Constitution to the person facing criminal prosecution who should
know, in fairness, who his accusers are and must be given a chance to
cross-examine them on their charges. The chief purpose of the right of
confrontation is to secure the opportunity for cross-examination, so that if
the opportunity for cross-examination has been secured, the function and
test of confrontation has also been accomplished, the confrontation being
merely the dramatic preliminary to cross-examination.
Under the circumstances obtaining, petitioners constitutional right to
confront the witnesses against him was not impaired.
Conspiracy among the accused was duly established.

Respecting the third assigned error, we uphold the trial courts finding of
conspiracy which was quoted by the appellate court in its assailed
Decision, and which we once again herein reproduce with approval:
On the allegation of conspiracy, the Court finds [no] direct evidence to
conclude conspiracy. However, just like in other cases where conspiracy is
not usually established by direct evidence but by circumstantial evidence,
the Court finds that there are enough circumstantial evidence which if
taken together sufficiently prove conspiracy. First, it cannot be denied that
the accused somehow have known each other prior to their [departure] in
Hong Kong for Manila. Although Law Ka Wang denied having known any
of the accused prior to the incident in NAIA, accused Ho Wai Pang
identified him as the one who assisted him in the supposed tour in the
Philippines to the extent of directly dealing with the travel agency and [that]
Law Ka Wang was the one who received the personal things of Ho Wai
Pang allegedly to be place[d] in a bag provided for by the travel agency.
Accused Wu Hing Sum has been known to accused Ho Kin San for about
two to three years as they used to work as cooks in a restaurant in Hong
Kong. Accused Ho Wai Ling, who is still at large, is know[n] to accused
Chan Chit Yue, Wu Hing Sum and Ho Kin San. These relationships in a
way can lead to the presumption that they have the capability to enter into
a conspiracy. Second, all the illegal substances confiscated from the six
accused were contained in chocolate boxes of similar sizes and almost the
same weight all contained in their luggages. The Court agrees with the
finding of the trial prosecutor that under the given circumstances, the
offense charged [c]ould have been perpetrated only through an elaborate
and methodically planned conspiracy with all the accused assiduously
cooperating and mutually helping each other in order to ensure its
success.37
We find no cogent reason to reverse such findings.
"Conspiracy is [the] common design to commit a felony." 38 "[C]onspiracy
which determines criminal culpability need not entail a close personal

50

association or at least an acquaintance between or among the participants

to a crime."39 "It need not be shown that the parties actually came together
and agreed in express terms to enter into and pursue a common
design."40 "The assent of the minds may be and, from the secrecy of the
crime, usually inferred from proof of facts and circumstances which, taken
together, indicate that they are parts of some complete whole" as we ruled
in People v. Mateo, Jr.41 Here, it can be deduced from petitioner and his
co-accuseds collective conduct, viewed in its totality, that there was a
common design, concerted action and concurrence of sentiments in
bringing about the crime committed.
Petitioners guilt was proved beyond reasonable doubt.
Finally, petitioner asserts that the prosecution failed to prove his guilt
beyond reasonable doubt. He makes capital on the contention that no
chocolate boxes were found in his traveling bag when it was examined at
the ICU. He claimed that it was his co-accused Sonny Wong who took
charge in ascribing upon him the possession of the two chocolate boxes.
Petitioners contentions fail to persuade.
True, when principal prosecution witness Cinco first testified on June 3,
1992, she declared that she did not see any chocolate boxes but only
personal effects in petitioners bag.42 Nonetheless, she clarified in her
succeeding testimony that she recalls taking the two chocolate boxes from
petitioners bag when they were still at the counter. This sufficiently
explained why Cinco did not find any chocolate boxes from petitioners bag
when they were at the ICU.43 To us, this slight clash in Cincos statements
neither dilute her credibility nor the veracity of her testimony.
The trial courts words on this matter when it resolved petitioners
Demurrer to Evidence in its Order44 of February 16, 1993 is quite
enlightening. Thus

In claiming that the evidences [sic] presented by the prosecution is

insufficient to command conviction, the Demurrer went on to say that the
testimony of Hilda Cinco is either conjectural or hearsay and definitely
missed its mark in incriminating accused, Ho Wai Pang, because she even
testified that she found nothing inside the hand-carried luggage of Ho Wai
Pang (pp. 48-49, TSN, June 3, 1992). But that was when investigation was
going on at the Intensive Counting Unit (ICU). However, the same Hilda
Cinco later on testified that from the express lane in going to the ICU, after
the discovery of shabu, she was already carrying with her four (4)
chocolate boxes, two of [which] taken from the bag of Tin Sun Mau and the
other two retrieved from the luggage of herein movant, Ho Wai Pang.
Categorically, Cinco admitted it was the reason that at the ICU, Ho Wai
Pangs bag was already empty (pp. 53-54, TSN, June 3, 1992), but she
nonetheless recognized the bag and could recall the owner thereof,
pointing to Ho Wai Pang. Such testimony is not hearsay evidence. They
are facts from the personal perception of the witness and out of her
personal knowledge. Neither is it conjectural.45
Jurisprudence teaches that in assessing the credibility of a witness, his
testimony must be considered in its entirety instead of in truncated parts.
The technique in deciphering a testimony is not to consider only its
isolated parts and anchor a conclusion on the basis of said parts. "In
ascertaining the facts established by a witness, everything stated by him
on direct, cross and redirect examinations must be calibrated and
considered."46 Also, where there is nothing in the records which would
show a motive or reason on the part of the witnesses to falsely implicate
the accused, identification should be given full weight. Here, petitioner
presented no evidence or anything to indicate that the principal witness for
the prosecution, Cinco, was moved by any improper motive, hence her
testimony is entitled to full faith and credit.1avvphi1
Verily, the evidence adduced against petitioner is so overwhelming that
this Court is convinced that his guilt has been established beyond
reasonable doubt. Nothing else can speak so eloquently of his culpability

51

than the unassailable fact that he was caught red-handed in the very act of
transporting, along with his co-accused, shabu into the country. In stark
contrast, the evidence for the defense consists mainly of denials.
Petitioner tried to show that he was not aware of the shabu inside his
luggage considering that his bag was provided by the travel agency.
However, it bears stressing that the act of transporting a prohibited drug is
a malum prohibitum because it is punished as an offense under a special
law. As such, the mere commission of the act is what constitutes the
offense punished and same suffices to validly charge and convict an
individual caught committing the act so punished regardless of criminal
intent. Moreover, beyond his bare denials, petitioner has not presented
any plausible proof to successfully rebut the evidence for the prosecution.
"It is basic that affirmative testimony of persons who are eyewitnesses of
the events or facts asserted easily overrides negative testimony." 47
All told, we are convinced that the courts below committed no error in
adjudging petitioner guilty of transporting methamphetamine hydrochloride
or shabu into the country in violation of Section 15, Article III of R.A. No.
6425, as amended.
Penalty
As to the penalties imposed by the trial court and as affirmed by the
appellate court, we find the same in accord with law and jurisprudence. It
should be recalled that at the time of the commission of the crime on
September 6, 1991, Section 15 of R.A. No. 6425 was already amended by
Presidential Decree No. 1683.48 The decree provided that for violation of
said Section 15, the penalty of life imprisonment to death and a fine
ranging from P20,000.00 to P30,000.00 shall be imposed. Subsequently,
however, R.A. No. 765949 further introduced new amendments to Section
15, Article III and Section 20, Article IV of R.A. No. 6425, as amended.
Under the new amendments, the penalty prescribed in Section 15 was
changed from "life imprisonment to death and a fine ranging

from P20,000.00 to P30,000.00" to "reclusion perpetua to death and a fine

ranging from P500,000.00 to P10 million". On the other hand, Section 17
of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that
the new penalty provided by the amendatory law shall be applied
depending on the quantity of the dangerous drugs involved.
The trial court, in this case, imposed on petitioner the penalty of reclusion
perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating
that R.A. No. 7659 could be given retroactive application, it being more
favorable to the petitioner in view of its having a less stricter punishment.
We agree. In People v. Doroja,50 we held:
In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled
(a) that the amendatory law, being more lenient and favorable to the
accused than the original provisions of the Dangerous Drugs Act, should
be accorded retroactive application, x x x.
And, since "reclusion perpetua is a lighter penalty than life imprisonment,
and considering the rule that criminal statutes with a favorable effect to the
accused, have, as to him, a retroactive effect",51 the penalty imposed by
the trial court upon petitioner is proper. Consequently, the Court sustains
the penalty of imprisonment, which is reclusion perpetua, as well as the
amount of fine imposed by the trial court upon petitioner, the same being
more favorable to him.
WHEREFORE premises considered, the petition is DENIED and the
assailed June 16, 2006 Decision and January 16, 2007 Resolution of the
Court of Appeals in CA-G.R. CR-H.C. No. 01459 are AFFIRMED.
SO ORDERED.

52

The Facts
In an Information dated 21 September 2000,2 the appellant was accused
of the crime of QUALIFIED RAPE allegedly committed as follows:
That on or about the 15th day of March 2000, in the evening, at Barangay
xxx, municipality of xxx, province of Bukidnon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being the
father of AAA with lewd design, with the use of force and intimidation, did
then and there, willfully, unlawfully and criminally have carnal knowledge
with his own daughter AAA, a 13 year[s]old minor against her will. 3

G.R. No. 186228

On 12 October 2000, appellant entered a plea of not guilty.4 During the

pre-trial conference, the prosecution and the defense stipulated and
admitted: (a) the correctness of the findings indicated in the medical
certificate of the physician who examined AAA; (b) that AAA was only
thirteen (13) years old when the alleged offense was committed; and (c)
that AAA is the daughter of the appellant.5 On trial, three (3) witnesses
testified for the prosecution, namely: victim AAA;6 her brother BBB;7 and
one Moises Boy Banting,8 a "bantay bayan" in the barangay. Their
testimonies revealed the following:

March 15, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ANTONIO LAUGA Y PINA ALIAS TERIO, Accused-Appellant.
DECISION
PEREZ, J.:
Before Us for final review is the trial courts conviction of the appellant for
the rape of his thirteen-year old daughter.
1

Consistent with the ruling of this Court in People v. Cabalquinto, the real
name and the personal circumstances of the victim, and any other
information tending to establish or compromise her identity, including those
of her immediate family or household members, are not disclosed in this
decision.

In the afternoon of 15 March 2000, AAA was left alone at home. 9 AAAs
father, the appellant, was having a drinking spree at the neighbors
place.10 Her mother decided to leave because when appellant gets drunk,
he has the habit of mauling AAAs mother.11 Her only brother BBB also
went out in the company of some neighbors.12
At around 10:00 oclock in the evening, appellant woke AAA up; 13 removed
his pants, slid inside the blanket covering AAA and removed her pants and
underwear;14 warned her not to shout for help while threatening her with
his fist;15 and told her that he had a knife placed above her head. 16 He
proceeded to mash her breast, kiss her repeatedly, and "inserted his penis
inside her vagina."17

53

Soon after, BBB arrived and found AAA crying.18 Appellant claimed he
scolded her for staying out late.19 BBB decided to take AAA with
him.20 While on their way to their maternal grandmothers house, AAA
recounted her harrowing experience with their father.21 Upon reaching their
grandmothers house, they told their grandmother and uncle of the
incident,22 after which, they sought the assistance of Moises Boy Banting. 23
Moises Boy Banting found appellant in his house wearing only his
underwear.24 He invited appellant to the police station,25 to which appellant
obliged. At the police outpost, he admitted to him that he raped AAA
because he was unable to control himself.26
The following day, AAA submitted herself to physical examination. 27 Dra.
Josefa Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued
the Medical Certificate, which reads:
hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated hymen; (+)
minimal to moderate bloody discharges 2 to an alleged raping incident 28
On the other hand, only appellant testified for the defense. He believed
that the charge against him was ill-motivated because he sometimes
physically abuses his wife in front of their children after engaging in a
heated argument,29 and beats the children as a disciplinary measure.30 He
went further to narrate how his day was on the date of the alleged rape.
He alleged that on 15 March 2000, there was no food prepared for him at
lunchtime.31 Shortly after, AAA arrived.32 She answered back when
confronted.33 This infuriated him that he kicked her hard on her buttocks. 34
Appellant went back to work and went home again around 3 oclock in the
afternoon.35 Finding nobody at home,36he prepared his dinner and went to
sleep.37

Later in the evening, he was awakened by the members of the "Bantay

Bayan" headed by Moises Boy Banting.38They asked him to go with them
to discuss some matters.39 He later learned that he was under detention
because AAA charged him of rape.40
On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay City,
Bukidnon, rendered its decision41 in Criminal Case No. 10372-0, finding
appellant guilty of rape qualified by relationship and minority, and
sentenced him to suffer the penalty of reclusion perpetua. 42 It also ordered
him to indemnify AAA P50,000.00 as moral damages, and P50,000.00 as
civil indemnity with exemplary damages of P25,000.00.43
On 30 September 2008, the decision of the trial court was AFFIRMED with
MODIFICATIONS44 by the Court of Appeals in CA-G.R. CR HC No. 00456MIN.45 The appellate court found that appellant is not eligible for parole
and it increased both the civil indemnity and moral damages
from P50,000.00 to P75,000.00.46
On 24 November 2008, the Court of Appeals gave due course to the
appellants notice of appeal.47 This Court required the parties to
simultaneously file their respective supplemental briefs, 48 but both
manifested that they will no longer file supplemental pleadings. 49
The lone assignment of error in the appellants brief is that, the trial court
gravely erred in finding him guilty as charged despite the failure of the
prosecution to establish his guilt beyond reasonable doubt, 50 because: (1)
there were inconsistencies in the testimonies of AAA and her brother
BBB;51 (2) his extrajudicial confession before Moises Boy Banting was
without the assistance of a counsel, in violation of his constitutional
right;52 and (3) AAAs accusation was ill-motivated.53
Our Ruling

54

Appellant contests the admissibility in evidence of his alleged confession

with a "bantay bayan" and the credibility of the witnesses for the
prosecution.
Admissibility in Evidence of an Extrajudicial Confession before a
"Bantay Bayan"
Appellant argues that even if he, indeed, confessed to Moises Boy
Banting, a "bantay bayan," the confession was inadmissible in evidence
because he was not assisted by a lawyer and there was no valid waiver of
such requirement.54
The case of People v. Malngan55 is the authority on the scope of the
Miranda doctrine provided for under Article III, Section 12(1) 56 and (3)57 of
the Constitution. In Malngan, appellant questioned the admissibility of her
extrajudicial confessions given to the barangay chairman and a neighbor
of the private complainant. This Court distinguished. Thus:
Arguably, the barangay tanods, including the Barangay Chairman, in this
particular instance, may be deemed as law enforcement officer for
purposes of applying Article III, Section 12(1) and (3), of the Constitution.
When accused-appellant was brought to the barangay hall in the morning
of 2 January 2001, she was already a suspect, actually the only one, in the
fire that destroyed several houses x x x. She was, therefore, already under
custodial investigation and the rights guaranteed by x x x [the] Constitution
should have already been observed or applied to her. Accused-appellants
confession to Barangay Chairman x x x was made in response to the
interrogation made by the latter admittedly conducted without first
informing accused-appellant of her rights under the Constitution or done in
the presence of counsel. For this reason, the confession of accusedappellant, given to Barangay Chairman x x x, as well as the lighter found x
x x in her bag are inadmissible in evidence against her x x x.1avvphi1

[But such does] not automatically lead to her acquittal. x x x [T]he

constitutional safeguards during custodial investigations do not apply to
those not elicited through questioning by the police or their agents but
given in an ordinary manner whereby the accused verbally admits x x x as
x x x in the case at bar when accused-appellant admitted to Mercedita
Mendoza, one of the neighbors x x x [of the private
complainant].58 (Emphasis supplied)
Following the rationale behind the ruling in Malngan, this Court needs to
ascertain whether or not a "bantay bayan" may be deemed a law
enforcement officer within the contemplation of Article III, Section 12 of the
Constitution.
In People of the Philippines v. Buendia,59 this Court had the occasion to
mention the nature of a "bantay bayan," that is, "a group of male residents
living in [the] area organized for the purpose of keeping peace in their
community[,which is] an accredited auxiliary of the x x x PNP." 60
Also, it may be worthy to consider that pursuant to Section 1(g) of
Executive Order No. 309 issued on 11 November 1987, as amended, a
Peace and Order Committee in each barangay shall be organized "to
serve as implementing arm of the City/Municipal Peace and Order Council
at the Barangay level."61 The composition of the Committee includes,
among others: (1) the Punong Barangay as Chairman; (2) the Chairman of
the Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa;
(4) a Barangay Tanod; and (5) at least three (3) Members of existing
Barangay-Based Anti-Crime or neighborhood Watch Groups or a Non
Government Organization Representative well-known in his community.62
This Court is, therefore, convinced that barangay-based volunteer
organizations in the nature of watch groups, as in the case of the "bantay
bayan," are recognized by the local government unit to perform functions
relating to the preservation of peace and order at the barangay level.
Thus, without ruling on the legality of the actions taken by Moises Boy

55

Banting, and the specific scope of duties and responsibilities delegated to

a "bantay bayan," particularly on the authority to conduct a custodial
investigation, any inquiry he makes has the color of a state-related
function and objective insofar as the entitlement of a suspect to his
constitutional rights provided for under Article III, Section 12 of the
Constitution, otherwise known as the Miranda Rights, is concerned.
We, therefore, find the extrajudicial confession of appellant, which was
taken without a counsel, inadmissible in evidence.
Be that as it may, We agree with the Court of Appeals that the conviction of
the appellant was not deduced solely from the assailed extrajudicial
confession but "from the confluence of evidence showing his guilt beyond
reasonable doubt."63
Credibility of the Witnesses for the Prosecution
Appellant assails the inconsistencies in the testimonies of AAA and her
brother BBB. AAA testified that BBB accompanied her to the house of their
grandmother. Thereafter, they, together with her relatives, proceeded to
look for a "bantay bayan." On the other hand, BBB testified that he brought
her sister to the house of their "bantay bayan" after he learned of the
incident.
Citing Bartocillo v. Court of Appeals,64 appellant argues that "where the
testimonies of two key witnesses cannot stand together, the inevitable
conclusion is that one or both must be telling a lie, and their story a mere
concoction."65
The principle, however, is not applicable in the case at bar. In Bartocillo,
the two testimonies could not simply stand together because:

On one hand, if we are to believe Susan, Orlando could not have possibly
seen the hacking incident since he had accompanied Vicente home. On
the other hand, if we are to accept the testimony of Orlando, then Susan
could not have possibly witnessed the hacking incident since she was with
Vicente at that time.
Here, the testimony of AAA does not run contrary to that of BBB. Both
testified that they sought the help of a "bantay bayan." Their respective
testimonies differ only as to when the help was sought for, which this Court
could well attribute to the nature of the testimony of BBB, a shortcut
version of AAAs testimony that dispensed with a detailed account of the
incident.
At any rate, the Court of Appeals is correct in holding that the assailed
inconsistency is too trivial to affect the veracity of the testimonies. 66 In fact,
inconsistencies which refer to minor, trivial or inconsequential
circumstances even strengthen the credibility of the witnesses, as they
erase doubts that such testimonies have been coached or rehearsed. 67
Appellants contention that AAA charged him of rape only because she
bore grudges against him is likewise unmeritorious. This Court is not
dissuaded from giving full credence to the testimony of a minor
complainant by motives of feuds, resentment or revenge. 68 As correctly
pointed out by the Court of Appeals:
Indeed, mere disciplinary chastisement is not strong enough to make
daughters in a Filipino family invent a charge that would not only bring
shame and humiliation upon them and their families but also bring their
fathers into the gallows of death.69 The Supreme Court has repeatedly
held that it is unbelievable for a daughter to charge her own father with
rape, exposing herself to the ordeal and embarrassment of a public trial
and subjecting her private parts to examination if such heinous crime was
not in fact committed.70 No person, much less a woman, could attain such
height of cruelty to one who has sired her, and from whom she owes her

56

very existence, and for which she naturally feels loving and lasting
gratefulness.71 Even when consumed with revenge, it takes a certain
amount of psychological depravity for a young woman to concoct a story
which would put her own father to jail for the most of his remaining life and
drag the rest of the family including herself to a lifetime of shame. 72 It is
highly improbable for [AAA] against whom no proof of sexual perversity or
loose morality has been shown to fake charges much more against her
own father. In fact her testimony is entitled to greater weight since her
accusing words were directed against a close relative.73
Elements of Rape
Having established the credibility of the witnesses for the prosecution, We
now examine the applicability of the Anti-Rape Law of 1997 74 to the case at
bar.
The law provides, in part, that rape is committed, among others, "[b]y a
man who shall have carnal knowledge of a woman" "through force, threat
or intimidation."75 The death penalty shall be imposed if it is committed with
aggravating/qualifying circumstances, which include, "[w]hen the victim is
under eighteen (18) years of age and the offender is a parent." 76
The consistent and forthright testimony of AAA detailing how she was
raped, culminating with the penetration of appellants penis into her
vagina, suffices to prove that appellant had carnal knowledge of her. When
a woman states that she has been raped, she says in effect all that is
necessary to show that rape was committed.77Further, when such
testimony corresponds with medical findings, there is sufficient basis to
conclude that the essential requisites of carnal knowledge have been
established.78

intimidation.79 At any rate, AAA was actually threatened by appellant with

his fist and a knife allegedly placed above AAAs head. 80
It may be added that the self-serving defense of appellant cannot prevail
over the positive and straightforward testimony of AAA. Settled is the rule
that, "alibi is an inherently weak defense that is viewed with suspicion
because it is easy to fabricate."81 "Alibi and denial must be supported by
strong corroborative evidence in order to merit credibility." 82 Moreover, for
the defense of alibi to prosper, the accused must establish two elements
(1) he was not at the locus delicti at the time the offense was committed;
and (2) it was physically impossible for him to be at the scene at the time
of its commission.83 Appellant failed in this wise.
Aggravating/Qualifying Circumstances
The presence of the qualifying circumstances of minority and relationship
with the offender in the instant case has likewise been adequately
established. Both qualifying circumstances were specifically alleged in the
Information, stipulated on and admitted during the pre-trial conference,
and testified to by both parties in their respective testimonies. Also, such
stipulation and admission, as correctly pointed out by the Court of Appeals,
are binding upon this Court because they are judicial admissions within the
contemplation of Section 4, Rule 129 of the Revised Rules of Court. It
provides:
Sec. 4. Judicial admissions. - An admission, verbal or written, made by a
party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission was made.
Penalty

The Court of Appeals pointed out that the element of force or intimidation
is not essential when the accused is the father of the victim, inasmuch as
his superior moral ascendancy or influence substitutes for violence and

57

Finally, in increasing the amount of civil indemnity and damages each

from P50,000.00 to P75,000.00, the Court of Appeals correctly considered
controlling jurisprudence to the effect that where, as here, the rape is
committed with any of the qualifying/aggravating circumstances warranting
the imposition of the death penalty, the victim is entitled to P75,000.00 as
civil indemnity ex delicto84 and P75,000.00 as moral damages.85 However,
the award of exemplary damages should have been increased
from P25,000.00 to P30,000.00.86 Also, the penalty of reclusion perpetua
in lieu of death was correctly imposed considering that the imposition of
the death penalty upon appellant would have been appropriate were it not
for the enactment of Republic Act No. 9346, or An Act Prohibiting the
Imposition of Death Penalty in the Philippines.87 We further affirm the ruling
of the Court of Appeals on appellants non-eligibility for parole. Sec. 3 of
Republic Act No. 9346 clearly provides that "persons convicted of offenses
punished with reclusion perpetua, or whose sentences will be reduced
to reclusion perpetuaby reason of the law, shall not be eligible for parole."
WHEREFORE, the Decision of the Court of Appeals dated 30 September
2008 in CA-G.R. CR HC No. 00456-MIN is hereby AFFIRMED. Appellant
Antonio Lauga is GUILTY beyond reasonable doubt of qualified rape, and
is hereby sentenced to suffer the penalty of reclusion perpetua without
eligibility for parole and to pay AAAP75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary
damages.
SO ORDERED.

58

59

G.R. No. L-51770 March 20, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO GALIT, defendant-appellant.

CONCEPCION, JR., J:
1. The prisoner was arrested for killing the victim oil the occasion of a
robbery. He had been detained and interrogated almost continuously for
five days, to no avail. He consistently maintained his innocence. There
was no evidence to link him to the crime. Obviously, something drastic had
to be done. A confession was absolutely necessary. So the investigating
officers began to maul him and to torture him physically. Still the prisoner
insisted on his innocence. His will had to be broken. A confession must be
obtained. So they continued to maltreat and beat him. 'They covered his
face with a rag and pushed his face into a toilet bowl full of human waste.

60

The prisoner could not take any more. His body could no longer endure
the pain inflicted on him and the indignities he had to suffer. His will had
been broken. He admitted what the investigating officers wanted him to
admit and he signed the confession they prepared. Later, against his will,
he posed for pictures as directed by his investigators, purporting it to be a
reenactment.
2. This incident could have happened in a Russian gulag or in Hitler's
Germany. But no it did not. It happened in the Philippines. In this case
before Us.
3. The Revised Penal Code punishes the maltreatment of prisoners as
follows:
ART. 235. Maltreatment of prisoners. The penalty of arresto mayor in its
medium period to prision correccional in its minimum period, in addition to
his liability for the physical injuries or damage caused, shall be imposed
upon any public officer or employee who shall over do himself in the
correction or handling of a prisoner or detention prisoner under his charge,
by the imposition of punishments in a cruel and humiliating manner.
If the purpose of the maltreatment is to extort a confession, or to obtain
some information from the prisoner, the offender shall be punished
by prision correccional in its minimum period, temporary special
disqualification and a fine not exceeding 500 pesos, in addition to his
liability for the physical injuries or damage caused.
4. This Court in a long line of decisions over the years, the latest being the
case of People vs. Cabrera, 1 has consistently and strongly condemned
the practice of maltreating prisoners to extort confessions from them as a
grave and unforgivable violation of human rights. But the practice persists.
Fortunately, such instances constitute the exception rather than the
general rule.
5. Before Us for mandatory review is the death sentence imposed upon
the accused Francisco Galit by the Circuit Criminal Court of Pasig, Rizal,
in Crim. Case No. CCC-VII-2589 of said court.

6. The record shows that in the morning of August 23, 1977, Mrs.
Natividad Fernando, a widow, was found dead in the bedroom of her
house located at Barrio Geronimo, Montalban, Rizal, as a result of seven
(7) wounds inflicted upon different parts of her body by a blunt
instrument. 2 More than two weeks thereafter, police authorities of
Montalban picked up the herein accused, Francisco Galit, an ordinary
construction worker (pion) living in Marikina, Rizal, on suspicion of the
murder. On the following day, however, September 8, 1977, the case was
referred to the National Bureau of Investigation (NBI) for further
investigation in view of the alleged limited facilities of the Montalban police
station. Accordingly, the herein accused was brought to the NBI where he
was investigated by a team headed by NBI Agent Carlos Flores. 3 NBI
Agent Flores conducted a preliminary interview of the suspect who
allegedly gave evasive answers to his questions. 4 But the following day,
September 9, 1977, Francisco Galit voluntarily executed
aSalaysay admitting participation in the commission of the crime. He
implicated Juling Dulay and Pabling Dulay as his companions in the
crime. 5 As a result, he was charged with the crime of Robbery with
Homicide, in an information filed before the Circuit Criminal Court of Pasig,
Rizal, committed as follows:
That on or about the 23rd day of August 1977 in the municipality of
Montalban, province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together with Juling Doe and Pabling Doe, whose true Identities and
present whereabouts are still unknown and three of them mutually helping
and aiding one another, with intent of gain and by means of force,
intimidation and violence upon the person of one Natividad Fernando while
in her dwelling, did, then and there wilfully, unlawfully, and feloniously take,
steal and carry away from the person of said Natividad Fernando, cash
money of an undetermined amount, belonging to said Natividad Fernando,
thereby causing damage and prejudice to the latter in an undetermined
amount; that by reason or on the occasion of said robbery, and for purpose
of enabling them (accused) to take, steal and carry away the said cash
money in pursuance of their conspiracy and for the purpose of insuring the
success of their criminal act, with intent to kill, did, then and there wilfully,
unlawfully, and feloniously attack, assault and stab with a dagger said
Natividad Fernando on the different parts of her body, thereby inflicting
multiple injuries on the head and extremities, which directly caused her

61

death, and the total amount of the loss is P10,000.00 including valuables
and cash.
Trial was held, and on August 11, 1978, immediately after the accused had
terminated the presentation of his evidence, the trial judge dictated his
decision on the case in open court, finding the accused guilty as charged
and sentencing him to suffer the death penalty; to indemnify the heirs of
the victim in the sum of P110,000.00, and to pay the costs. Hence, the
present recourse.
7. The incriminatory facts of the case, as found by the trial court, are as
follows:
From the evidence adduced in this case, it was gathered that in the early
morning of August 23, 1977, a 70-year old woman named Natividad
Fernando, widow, in the twilight of her life, was robbed and then hacked to
death by the accused and two others in her (victim's) own residence at
Montalban, Rizal.
Prosecution witness Florentino Valentino testified that he heard accused
Francisco Galit and his wife having an argument in connection with the
robbery and killing of the victim, Natividad Fernando. It appears that on
August 18, 1977, accused Galit and two others, namely, Juling Dulay and
a certain "Pabling" accidentally met each other at Marikina, Rizal, and in
their conversation, the three agreed to rob Natividad Fernando; that it was
further agreed among them to enter the premises of the victim's house at
the back yard by climbing over the fence; that once inside the premises,
they will search every room, especially the aparador and filing cabinets,
with the sole aim of looking for cash money and other valuables.
Witness Valentino further testified that on August 22, 1977, at around 6:00
o'clock in the afternoon, accused Francisco Galit and his two companions,
Juling Dulay and Pabling, as per their previous agreement, met at the
place where they formerly saw each other in Mariquina, Rizal; that the
three conspirators took a jeepney for Montalban and upon passing the
Montalban Municipal Building, they stopped and they waited at the side of
the road until the hour of midnight; that at about 12:00 o'clock that night,
the three repaired to the premises of the victim, Natividad Fernando; that

they entered the said premises through the back wall of the house; that
while entering the premises of said house, Juling Dulay saw a bolo, lying
near the piggery compound, which he picked up and used it to destroy the
back portion of the wall of the house; that it was Juling Dulay who first
entered the house through the hole that they made, followed by the
accused Galit and next to him was "Pabling", that it was already early
dawn of August 23, 1977 when the three were able to gain entrance into
the house of the victim; as the three could not find anything valuable inside
the first room that they entered, Juling Dulay destroyed the screen of the
door of the victim, Natividad Fernando; that upon entering the room of the
victim, the three accused decided to kill first the victim, Natividad
Fernando, before searching the room for valuables; that Juling Dulay, who
was then holding the bolo, began hacking the victim, who was then
sleeping, and accused Galit heard a moaning sound from the victim; that
after the victim was killed, the three accused began searching the room for
valuables; that they helped each other in opening the iron cabinet inside
the room of the victim, where they found some money; that when the three
accused left the room of the victim, they brought with them some papers
and pictures which they threw outside; that after killing and robbing the
victim, the three accused went out of the premises of the house, using the
same way by which they gained entrance, which was through the back
portion of the wall; that the three accused walked towards the river bank
where they divided the loot that they got from the room of the victim; that
their respective shares amount to P70.00 for each of them; and that after
receiving their shares of the loot, the three accused left and went home.
When witness Florentino Valentino was in his room, which was adjoining
that of accused Francisco Galit, he overheard accused Galit and his wife
quarreling about the intention of accused Galit to leave their residence
immediately; that he further stated that he overheard accused Galit saying
that he and his other two companions robbed and killed Natividad
Fernando.
As a result of the killing, the victim, Natividad Fernando, suffered no less
than seven stab wounds. There was massive cerebral hemorrhage and
the cause of death was due to shock and hemorrhage, as evidenced by
the Medico-Legal Necropsy Report (Exhs. 'C' and 'C-2'), and the pictures
taken of the deceased victim (Exhs. 'E', 'E-1' and 'E-2').

62

8. The accused, upon the other hand, denied participation in the

commission of the crime. He claimed that he was in his house in Marikina,
Rizal, when the crime was committed in Montalban, Rizal. He also
assailed the admissibility of the extra-judicial confession extracted from
him through torture, force and intimidation as described earlier, and
without the benefit of counsel.
9. After a review of the records, We find that the evidence presented by the
prosecution does not support a conviction. In fact, the findings of the trial
court relative to the acts attributed to the accused are not supported by
competent evidence. The principal prosecution witness, Florentino
Valentino merely testified that he and the accused were living together in
one house in Marikina, Rizal, on August 23, 1977, because the mother of
his wife is the wife of the accused; that when he returned home at about
4:00 o'clock in the morning from the police station of Marikina, Rizal, the
accused and his wife were quarreling (nagtatalo); that he heard that the
accused was leaving the house because he and his companions had
robbed "Aling Nene", the owner of a poultry farm and piggery in
Montalban, Rizal; that the wife of the accused was imploring him not to
leave, but the latter was insistent; that he saw the accused carrying a bag
containing about two handfuls (dakot) of coins which he had taken from
Aling Nene; that upon learning of what the accused had done, he went to
the Montalban police the next day and reported to the police chief about
what he had heard; and that a week later, Montalban policemen went to
their house and arrested the accused. 6
10. This Court, in the case of Morales vs. Ponce Enrile, 7 laid down the
correct procedure for peace officers to follow when making an arrest and
in conducting a custodial investigation, and which We reiterate:
7. At the time a person is arrested, it shall be the duty of the arresting
officer to inform him of the reason for the arrest and he must be shown the
warrant of arrest, if any. He shall be informed of his constitutional rights to
remain silent and to counsel, and that any statement he might make could
be used against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the
most expedient means by telephone if possible or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it

that this is accomplished. No custodial investigation shall be conducted

unless it be in the presence of counsel engaged by the person arrested, by
any person on his behalf, or appointed by the court upon petition either of
the detainee himself or by anyone on his behalf. The right to counsel may
be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole
or in part, shall be inadmissible in evidence.
11. There were no eyewitnesses, no property recovered from the accused,
no state witnesses, and not even fingerprints of the accused at the scene
of the crime. The only evidence against the accused is his alleged
confession. It behooves Us therefore to give it a close scrutiny. The
statement begins as follows:

I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mga karapatan sa ilalim ng SaligangPilipinas na kung inyong nanaisin ay maaaring hindi kayo magbigay ng isang salaysay, na h
kayo maaaring pilitin o saktan at pangakuan upang magbigay ng naturang salaysay, na anu
inyong sasabihin sa pagsisiyasat na ito ay maaaring laban sa inyo sa anumang usapin na m
ilahad sa anumang hukuman o tribunal dito sa Pilipinas, na sa pagsisiyasat na ito ay maaar
katulungin mo ang isang manananggol at kung sakaling hindi mo kayang bayaran ang isang
manananggol ay maaaring bigyan ka ng isa ng NBI. Ngayon at alam mo na ang mga ito nak
ka bang magbigay ng isang kusang-loob na salaysay sa pagtatanong na ito?

SAGOT: Opo.
12. Such a long question followed by a monosyllabic answer does not
satisfy the requirements of the law that the accused be informed of his
rights under the Constitution and our laws. Instead there should be several
short and clear questions and every right explained in simple words in a
dialect or language known to the person under investigation. Accused is
from Samar and there is no showing that he understands Tagalog.
Moreover, at the time of his arrest, accused was not permitted to
communicate with his lawyer, a relative, or a friend. In fact, his sisters and
other relatives did not know that he had been brought to the NBI for

63

investigation and it was only about two weeks after he had executed
the salaysay that his relatives were allowed to visit him. His statement
does not even contain any waiver of right to counsel and yet during the
investigation he was not assisted by one. At the supposed reenactment,
again accused was not assisted by counsel of his choice. These constitute
gross violations of his rights.
13. The alleged confession and the pictures of the supposed re-enactment
are inadmissible as evidence because they were obtained in a manner
contrary to law.
14. Trial courts are cautioned to look carefully into the circumstances
surrounding the taking of any confession, especially where the prisoner
claims having been maltreated into giving one. Where there is any doubt
as to its voluntariness, the same must be rejected in toto.
15. Let a copy of this decision be furnished the Minister of Justice for
whatever action he may deem proper to take against the investigating
officers.
16. WHEREFORE, the judgment appealed from should be, as it is hereby,
SET ASIDE, and another one entered ACQUITTING the accused
Francisco Galit of the crime charged. Let him be released from custody
immediately unless held on other charges. With costs de oficio.

G.R. No. 71092 September 30, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANACLETO Q. OLVIS, Acquitted, ROMULO VILLAROJO, LEONARDO
CADEMAS and DOMINADOR SORELA, accused-appellants.

17. SO ORDERED.
SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court to
Zamboanga Del Norte sitting in Dipolog City. 1The case was certified to
this Court on January 19, 1985 following the death sentences imposed on
each of the three accused-appellants, Romulo Villarojo, Leonardo
Cademas, and Dominador Sorela (the accused first-named, Anacleto
Olvis, was acquitted), over which, under the Constitution then in
force, 2 we exercised exclusive appellate jurisdiction. 3 With the

64

promulgation of the 1987 Charter, abolishing the death penalty and

commuting death penalties already imposed to reclusion perpetua 4 we, on
May 14, 1987, issued a death penalty abolition resolution requiring the
three accused-appellants to file a statement, personally signed by them
with the assistance of counsel, stating whether or not they wished to
continue with the case as an appealed case. 5 We have since observed
this procedure with respect to all pending capital cases.
In compliance with our resolution, the three accused-appellants, on May
28, 1987, filed a statement informing us that they desire to continue with
this case as an appealed case. 6

evident premeditation, and for a consideration of a price or

reward, did, then and there willfully, unlawfully and
feloniously attack, assault, hack and stab one DISCREDIT
BAGON, thereby inflicting upon him multiple inc. (hack)
and stab wounds which caused his instantaneous death.
CONTRARY TO LAW, with the qualifying circumstances of
treachery and evident premeditation and the generic
aggravating circumstances of superior strength, nighttime
and in consideration of a price or reward. 7
xxx xxx xxx

This appeal stemmed from an information dated November 11, 1976

charging all four accused with the murder of Discredit Bagon. The same
reads as follows:
xxx xxx xxx
The undersigned First Assistant Provincial Fiscal accuses
ANACLETO Q. OLVIS, as principal by inducement,
ROMULO VILLAROJO, LEONARDO CADEMAS and
DOMINADOR SORELA, as principals by direct
participation, of the crime of murder, committed as follows:
That in the evening on or about the 7th day of September
1975, in title Municipality of Polanco, Zamboanga del
Norte, within the jurisdiction of this Honorable Court, the
above-named accused, consprising and confederating
with one another and acting upon the direction and
instruction of ANACLETO Q. OLVIS who mastermind the
bizarre plot and directly induced ROMULO VILLAROJO,
LEONARDO CADEMAS and DOMINADOR SORELA to
execute the conspiracy and who, armed with boloes and a
hunting knife, with intent to kill by means of treachery and

The four accused entered Identical "not guilty" pleas.

After trial, the court a quo rendered the decision under appeal, the
dispositive portion whereof reads as follows:
FOREGOING CONSIDERED, and on the part of accused
ANACLETO Q. OLVIS, SR., there being no evidence,
direct or indirect, whether testimonial, documentary or
physical evidence, that tend to establish his complicity in
this case, said accused has to be, as he hereby is,
ACQUITTED.
On the part of the three (3) remaining accused ROMULO
VILLAROJO, LEONARDO CADEMAS, and DOMINADOR
SORELA, the degree of moral, certainty establishing their
authorship of the crime is irreversibly positive. The three
(3) accused conspired and confederated with one another
to successfully achieve their ghastly, evil ends. Their guilt
has been proved beyond reasonable doubt.

65

Treachery and evident premeditation are qualifying

circumstances in this case of MURDER. But said offense
was attended by the aggravating circumstances of
superior strength and nighttime. No mitigating
circumstance has been shown to offset the two (2)
aggravating circumstances, as a consequence of which,
the Court hereby renders judgment sentencing the
accused ROMULO VILLAROJO, LEONARDO CADEMAS,
and DOMINADOR SORELA, to suffer the maximum
penalty of DEATH.

We come to the facts.

Sorela bore several scratches on his face, neck and arms when the police
found him. According to him, he sustained those wounds while clearing his
ricefield. Apparently unconvinced. Captain Encabo had Sorela take them
to the ricefield where he sustained his injuries. But half way there, Sorela
illegally broke down, and, in what would apparently crack the case for the
police, admitted having participated in the killing of the missing Bagon. By
then, the police of Polanco knew that they had a murder case in their
hands. Sorela allegedly confessed having been with Deosdedit Bagon, a
friend of his, in the evening of September 7, 1976 in Sitio Sebaca after
some marketing. They were met by Romulo Villarojo and Leonardo
Cademas, Sorela's co-accused herein and likewise friends of the
deceased, who led them to a secluded place in the ricefields. It does not
appear from the records how the three were able to have the deceased
join them.

On September 9, 1975, Alfredo and Estrella Bagon, brother and sister,

arrived at the local Integrated National Police station of Barrio Polanco, in
Zamboanga del Norte, to report their brother, Deosdedit Bagon, missing.
The station commander, Captain Ruperto Encabo, received their report.

It was then that Villarojo allegedly attacked Bagon with a bolo, hacking him
at several parts of the body until he, Bagon, was dead. Moments later,
Sorela fled, running into thick cogon grasses where he suffered facial and
bodily scratches.

Bagon had been in fact missing since two days before. He was last seen
by his wife in the afternoon of September 7, 1975, on his way home to
Sitio Sebaca where they resided. She did three probable places, but her
efforts were in vain.

The police soon picked up Villarojo and Cademas. Together with Sorela,
they were turned over to the custody of Captain Encabo.

SO ORDERED. 8

It was Captain Encabo himself who led a search party to mount an inquiry.
As a matter of police procedure, the team headed off to Sitio Sebaca to
question possible witnesses. There, Captain Encabo's men chanced upon
an unnamed volunteer, who informed them that Deosdedit Bagon was last
seen together with Dominador Sorela, one of the accused herein.
Encabo then instructed one of his patrolmen to pick up Sorela.

The police thereafter made the three re-enact the crime. Patrolman
Dionisio Capito directed Sorela to lead them to the grounds where
Discredit Bagon was supposed to have been buried. But it was Villarojo
who escorted them to a watery spot somewhere in the ricefields, where
the sack-covered, decomposing cadaver of Bagon lay in a shallow grave.
The actual exhumation of the body of the victim was witnessed by Polanco
policemen and Civilian Home Defense Forces volunteers, numbering
about thirty. The body was transported to the Polanco municipal hand the
following day, September 10, 1975. It was displayed, morbidly, in front of
the building where Mrs. Catalina Bagon, widow of the deceased, and her

66

four children viewed it. The exhumation, as well as the transfer of Bagon's
cadaver, were captured by the lens of a photographer. (Exhibits "I", "J",
"K", its "L", "M", and "N").
The "ceremonies" continued in the parish church of the Polanco, where
the body of the victim was transferred. It was laid on the altar, in full public
view. Again the proceedings were recorded by the camera of a
photographer. (Exhibits "R", "S".)
But it was only later on that the body itself was uncovered from the sack
that had concealed it. (Exhibits "T", "U", "VIP.) Thereupon, it was readied
for autopsy.
The necropsy report prepared by the provincial health officer disclosed
that the deceased suffered twelve stab and hack wounds, six of which
were determined to be fatal.
In the re-enactment, the suspects, the three accused herein, demonstrated
how the victim was boloed to death. Exhibit "Y," a photograph, shows the
appellant Villarojo in the posture of raising a bolo as if to strike another,
while Solero and Cademas look on. Exhibit "X", another photograph,
portrays Villarojo in the act of concealing the murder weapon behind a
banana tree, apparently after having done the victim in.
The investigation yielded several effects of the offense: a twenty-inch long
bolo, the shovel used to inter the victim's remains, a nylon rope with which
the dead body was tied, and the sack itself.
Initial findings of investigators disclosed that the threesome of Solero,
Villarojo, and Cademas executed Discredit Bagon on orders of Anacleto
Olvis, then Polanco municipal mayor, for a reward of P3,000.00 each.

While in custody, the three executed five separate written confessions

each. The first confessions were taken on September 9, 1975 in the local
Philippine Constabulary headquarters. The second were made before the
Polanco police. On September 18, 1975, the three accused reiterated the
same confessions before the National Bureau of Investigation Dipolog City
sub-office. On September 21, 1975 and September 25, 1975, they
executed two confessions more, again before the Philippine Constabulary
and the police of Polanco.
In their confessions of September 9, 1975, September 14, 1975,
September 21, 1975, and September 25, 1975, the said accused again
pointed to the then accused Anacleto Olvis as principal by inducement,
who allegedly promised them a reward of P3,000.00 each.
In their confessions of September 18, 1975, sworn before agents of the
National Bureau of Investigation, however, they categorically denied Olvis'
involvement in the knowing. We note that the three were transported to the
Dipolog City NBI sub-office following a request on September 10, 1975 by
Mrs. Diolinda O. Adaro daughter of Olvis, and upon complaint by her of
harassment against her father by his supposed political enemies.
Based on these subsequent statements, the court a quo rendered
separate verdicts on the three accused on the one hand, and Anacleto
Olvis on the other. As earlier stated Olvis was acquitted, while the three
were all sentenced to die for the crime of murder.
In acquitting Olvis, the trial court rejected the three accused's earlier
confessions pointing to him as the mastermind, and denied the
admissibility thereof insofar as far as he was concerned. It rejected claims
of witnesses that the three accused-appellants would carry out Olvis'
alleged order to kill Bagon upon an offer of a reward when in fact no
money changed hands. It likewise noted that Olvis had, two days after the
murder, been in Cebu City, and who, upon arriving in Dipolog City, was in
fact informed by the Philippine Constabulary that he was a "wanted" man,

67

"to which said accused (Olvis) meekly complied" 9 (that is, he assented,
ambiguously, to the remark). According to the court, this was inconsistent
with a guilty mind.
The court repudiated claims that Olvis had motives to do away with the
deceased arising from alleged attempts on his (Olvis') part to eject the
deceased from his landholding (the deceased having been a tenant of his),
the case in fact having reached the then Ministry of Agrarian Reform. It
dismissed insinuations that his children had a score to settle with the
victim, who had earlier brought a physical injuries suit against the former,
that case having been dismissed. It observed, furthermore, that he was not
questioned by the police after the killing, notwithstanding efforts by the
three herein accused-appellants to implicate him. It relied, finally, on the
retraction of the accused themselves, absolving Olvis of any liability. It was
satisfied, overall, that he had a "clean bill of health" 10 in connection with
the murder case.
With the acquittal of Olvis, we are left with the murder cases against the
three accused-appellants. The accused-appellants subsequently
repudiated their alleged confessions in open court alleging threats by the
Polanco investigators of physical harm if they refused to "cooperate" in the
solution of the case. They likewise alleged that they were instructed by the
Polanco police investigators to implicate Anacieto Olvis in the case. They
insisted on their innocence. The acused Romulo Villarojo averred,
specifically, that it was the deceased who had sought to kill him, for which
he acted in self-defense.

We hold that, based on the recorded evidence, the three accusedappellants' extrajudicial confessions are inadmissible in evidence.
It was on May 7, 1987 that we promulgated People v. Decierdo.11 In that
decision, we laid down the rule with respect to extrajudicial confessions:
xxx xxx xxx
... Prior to any questioning, the person must be warned
that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either
retained or appointed. The defendant, may waive
effectuation of indicates in any manner and at any stage of
the process that he wishes to consult with an attorney
before speaking, there can be no questioning. Likewise, if
the individual is alone and indicates in any manner that he
does not wish to be interrogated, the police may not
question him The mere fact that he may have answered
some questions or volunteered some statements on his
own does not deprive him of the right to refrain from
answering any further inquiries until he has converted with
an attorney and thereafter consent to be questioned.
xxx xxx xxx
In People v. Duero, we added:

The murder of Deosdedit Bagon was witnessed by no other person. The

police of Polanco had but the three accused-appellants' statements to
support its claiming. The fundamental issue then is whether or not these
statements, as any extrajudicial confession confronting us, can stand up in
court.

xxx xxx xxx

At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and
unequivocal terms that he has the right to remain silent.

68

For those unaware of the privilege, the warning is needed

simply to make them aware of the threshold
requirement for an intelligent decision as to its exercise.
More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the
interrogation atmosphere
Further, the warning will show the individual that his
interrogators are prepared to recognize his privilege
should he choose to exercise it . . .
The warning of the right to remain silent must be
accompanied by the explanation that anything said can
and WW be used against the individual in court. This
warning is needed in order to make him aware not only of
the privilege, but also of the consequences of foregoing it .
..
An individual need not make a pre-interrogation request
for a lawyer. While such request affirmatively secures his
right to have one, his failure to ask for a lawyer does not
constitute a waiver. No effective waiver of the right to
counsel during interrogation can be recognized unless
specifically made after the warnings we here delineate
have been given. The accused who does not know his
rights and therefore does not make a request may be the
person who most needs Counsel
If an individual indicates that he wishes the assistance of
counsel before any interrogation occurs, the authorities
cannot rationally ignore or deny his request on the basis
that the individual does not have or cannot afford a
retained attorney . . .

In order fully to apprise a person interrogated of the extent

of his rights under this system then, it is necessary to warn
him not only that he has the right to consult with an
attorney, but also that ff. he is indigent a lawyer will be
appointed to represent him . . .
Once warnings have been given, the subsequent
procedure is clear, If the individual indicates in any
manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation impose cease. . .
If the individual cannot obtain an attorney and he indicates
that he wants one before speaking to policy, they must
respect his decision to remain silent . . .
If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden rests
on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against
self-incriminate tion and his right to retained or appointed
counsel ... 12
xxx xxx xxx
Like the Decierdo confessions, the confessions in the case at bar suffer
from a Constitutional infirmity. In their supposed statements dated
September 9, 14, and 21, 1975, the accused-appellants were not assisted
by counsel when they "waived" their rights to counsel. As we said in
Decierdo, the lack of counsel "makes [those] statement[s], in
contemplation of law, 'involuntary,' even if it were otherwise voluntary,
technically." 13
With reset to the confessions of September 18, 197 5, while it is stated
therein that this Office had just requested the services of Atty. NARVARO
VELAR NAVARRO of the Citizens Legal Assistance Office, Department of

69

Justice, Dipolog District Office, are you wining to accept the legal
assistance of Atty. NAVARRO to handle your case, 14 the same
nonetheless call for a similar rejection. There is nothing there that would
show that Atty. Navarro was the accused-appellants' counsel of choice
(specifically, the appellant Romulo Villarojo who admitted therein having
been the bolo-wielder). On the contrary, it is clear therefrom that Atty.
Navarro was summoned by the NBI. He cannot therefore be said to have
been acting on behalf of the accused-appellants when he lent his
presence at the confession proceedings. What we said in People v.
Galit, 15 applies with like force here:
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 dead 16 trainee himself or
by anyone on his behalf. 16
We cast aside, for the same reason, the confessions of September 25,
1975.
But the accused-appellants were denied their right to counsel not once,
but twice. We refer to the forced re-enactment of the crime the three
accused were made to perform shortly after their apprehension.
Forced re-enactments, like uncounselled and coerced confessions come
within the ban against self- incrimination. The 1973 Constitution, the
Charter prevailing at the time of the proceedings below, says:
No person shall be compelled to be a witness against
himself. 17
This constitutional privilege has been defined as a protection against
testimonial compulsion, 18 but this has since been extended to any

evidence "communicative in nature" 19 acquired under circumstances of

duress. Essentially, the right is meant to "avoid and prohibit positively the
repetition and recurrence of the certainly inhuman procedure of competing
a person, in a criminal or any other case, to furnish the missing evidence
necessary for his conviction." 20 This was the lesson learned from the
ancient days of the inquisition in which accusation was equivalent to
guilt. 21 Thus, an act, whether testimonial or passive, that would amount to
disclosure of incriminatory facts is covered by the inhibition of the
Constitution.
This should be distinguished, parenthetically, from mechanical acts the
accused is made to execute not meant to unearth undisclosed facts but to
ascertain physical attributes determinable by simple observation. This
includes requiring the accused to submit to a test to extract virus from his
body, 22 or compelling him to expectorate morphine from his mouth 23 or
making her submit to a pregnancy test 24 or a footprinting test, 25 or
requiring him to take part in a police lineup in certain cases." In each case,
the accused does not speak his guilt. It is not a prerequisite therefore that
he be provided with the guiding hand of counsel.
But a forced re-enactment is quite another thing. Here, the accused is not
merely required to exhibit some physical characteristics; by and large, he
is made to admit criminal responsibility against his will. It is a police
procedure just as condemnable as an uncounselled confession.
Accordingly, we hold that all evidence based on such a re-enactment to be
in violation of the Constitution and hence, incompetent evidence.
It should be furthermore observed that the three accused-appellants were
in police custody when they took part in the re-enactment in question. It is
under such circumstances that the Constitution holds a strict application.
As for the accused Dominador Sorela, we cannot accept the trial judge's
finding that he acted "with unexpected spontaneity" 27 when he allegedly
"spilled the beans 28 before the law enforcers on September 9, 1975. What

70

is to be borne in mind is that Sorela was himself under custody. Any

statement he might have made thereafter is therefore subject to the
Constitutional guaranty.
By custodial interrogation, we mean questioning initiated
by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action
in any significant way. 29
We indeed doubt whether Sorela's admissions, under the circumstances,
were truly his voluntary statementsChavez v. Court of Appeals 30 tells us:
Compulsion as it is understood here does not necessarily
connote the use of violence; it may be the product of
unintentional statements. Pressure which operates to
overbear his will disable him from making a free and
rational choice, or impair his capacity for rational judgment
would in our opinion be sufficient. So is moral coercion
"tending to force testimony from the unwilling lips of the
defendant. 31
In such a case, he should have been provided with counsel.
Indeed, the three accused-appellants had languished in jail for one year
and two months before the information was filed, and only after they had
gone to court on an application for habeas corpus. For if the authorities
truly had a case in their hands, we are puzzled why they, the accused, had
to be made to suffer preventive imprisonment for quite an enormous length
of time.
What is more, there are striking aspects in the case that we find
distressing. For one, there was no trace of grief upon the faces of the
deceased's bereaved relatives, more so his widow and children, upon

witnessing his cadaver-wrapped in a sack and all although it was

supposedly the first time that they saw his remains after two days of frantic
search. 32 Exhibits "K", "L", "M", "N", and "R", for another, depict the
deceased's relatives in fixed poses, while the deceased's corpse lay in the
foreground. 33
Moreover, the victim was transferred to the municipal hand building and
then subsequently, to the parish church, again, for a photographing
session unusual procedure when the perfunctory police procedure
should have been to bring the corpse to the health officer for autopsy.
It was in fact only on September 10, 1975 that Discredit Bagon's remains
were unwrapped, at the parish church at that, as if pursuant to a script or
as part of some eerie ceremony.
To the mind of, this Court, the disposition of the case was characterized by
unusual grandstanding, for reasons as yet unclear to us. It leaves us with
an uncomfortable impression that each scene was an act in some
contrived tragedy.
We likewise find the authorities' haste in securing the accused Anacleto
Olvis' acquittal, at the expense of the present three accused, quite
disconcerting. It should be noted that the three appellants had initially
implicated Olvis as the mastermind. Yet, Olvis was never invited for the
usual questioning.
To us, there is more to Exhibit "20," the request to transfer Olvis' case to
the jurisdiction of the National Bureau of Investigation for reinvestigation,
than meets the eye. As it happened, happily for Olvis, the three accusedappellants while under NBI custody, retracted their earlier statements
indicting him as a co-conspirator. Why the NBI should intervene in the
case when the Polanco police had apparently "solved" it, is, in the first
place, suspicious enough, but why the three appellants should, in an
instant, make a turn-about there leaves us even more disturbed.

71

While we do not challenge the verdict by acquittal rendered in favor of

Olvis, for it is not within our power to overturn acquittals, 34 what is our
concern is the apparent design to use three ill-lettered peasants, 35 the
three herein accused, as fall guys in an evident network of political
intrigue.
Still, we are not prepared to hand down a judgment of acquittal upon all
the three accused-appellants.

WHEREFORE, judgment is hereby rendered modifying the Decision dated

November 30, 1984. The accused-appellants Leonardo Cademas and
Dominador Sorela are ACQUITTED on the ground of reasonable doubt.
The accused-appellant Romulo Villarojo is found guilty of homicide, and is
sentenced to suffer an indeterminate penalty of eight years and one day
of prision mayor as minimum, to fourteen years, eight months, and one
day ofreclusion temporal, as maximum. He is furthermore ordered to
indemnify the heirs of Discredit Bagon in the sum of P30,000.00. No
special pronouncement as to costs.

In his counter-affidavit, 36 marked as Exhibit "44-A" for the defense, the

accused Romulo Villarojo admitted hacking the victim to death with a bolo.
He stressed, however, that he did so in self- defense. He pulled out a
hunting knife in order to stab me and in order also to defend my body, I
hack[ed] him." 37 He completely absolved his co-accused Dominador
Sorela and Leonardo Cademas from any liability.
Villarojo's admission inflicting the fatal wounds upon the deceased is
binding on him. 38 But it is still our business to see whether his defense can
stand scrutiny.
The records will disclose that the deceased suffered twelve assorted
wounds caused by a sharp instrument. The assault severed his right hand
and left his head almost separated from his body. This indicates a serious
intent to kill, rather than self-defense. 39
In finding that Villarojo did take the life of the victim, we cannot, however,
appreciate superior strength or nocturnity. These qualifying circumstances
were considered by the court a quo on the basis of the extrajudicial
statements executed by the accused, statements we reject for the reasons
earlier discussed. In the absence of any other proof, the severity and
number of wounds sustained by the deceased are not, by themselves,
sufficient proof to warrant the appreciation of the generic aggravating
circumstance of abuse of superior strength. Hence, Villarojo should be
liable for plain homicide.

72

B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT.

DANILO PIZARRO, CAPT. MANUEL ISON, COL. LUISITO
SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC.
RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON
AURELIO, LTC. JACINTO LIGOT LTC. FRANKLIN BRAWNER, MAJ.
ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA, MAJ. LEUVINO
VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO,
CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL
NACINO, and LT. JOEY SARROZA, petitioners,
vs.
GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI
INVESTIGATING PANEL COMPOSED OF: COL. MANUEL S.
MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ. FELIX V.
BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL
COURT-MARTIAL NO. 14 COMPOSED OF: B/GEN. DEMETRIO
CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU,
COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A.
VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents.
No. 95020 August 2, 1991
B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL.
ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO,
COL. DIONY A. VENTURA, and CAPT. FRANCISCO T.
MALLILLIN, petitioners,
vs.
HON. MIANO C. ASUNCION, Presiding Judge, Branch 104,
REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT
PA., respondents.
No. 96948 August 2, 1991
G.R. No. 93177 August 2, 1991

73

B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT.

DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO
GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ
PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA,
LTC. JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ.
ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PENA PN (M): MAJ.
LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT.
JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON
PAF CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners,
vs.
B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL.
ERNESTO B. YU, COL. ROMEO ODI COL. WILLY FLORENDO,
COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN
PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO.
14, respondents.

Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito

Sanchez, Tiburcio Fusillero, Ericson Aurelio, Levino Valencia, Danilo
Arnon Vergel Nacino, Florencio Flores, Benigno Junio and Joey
Sarroza.
Manuel Q. Malvar for Rafael Galvez and Danny Lim.
Manuel E. Valenzuela for Arsenio Tecson
Mariano R. Santiago for Alfredo Oliveros.
Ricardo J.M. Rivera for Manuel Ison.
Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.
Alfredo Lazaro for Romelino Gojo.

No. 97454 August 2, 1991

Manuel A. Barcelona, Jr. for Jose Comendador.
AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY
CHIEF OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP
DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT.
COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP
Detention Center/Jail, petitioners,
vs.
HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial
Court, Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL,
1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ
PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO
PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM
2LT JOSELITO CABREROS PMM 2LT MEMEL ROJAS PN(M) and
2LT HERMINIO L. CANTACO PC, respondents.

Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando.

Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.
Efren C. Moncupa for All Tecson.
M.M. Lazaro & Associates for respondents Ligot and Ison .
Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot.
Salvador B. Britanico for Cesar de la Pena.
Gilbert R.T. Reyes for Danilo Pizarro.

74

Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R.

No. 93177.

In G.R. No. 96948, the petitioners, besides challenging the legality of

GCM No. 14, seek certiorari against its ruling denying them the right to
peremptory challenge as granted by Article 18 of Com. Act No. 408.

The Solicitor General for respondents.

CRUZ, J.:p
These four cases have been consolidated because they involve
practically the same parties and related issues arising from the same
incident.
The petitioners in G.R. Nos. 93177 and 96948 and the private
respondents in G.R. Nos. 95020 and 97454 are officers of the Armed
Forces of the Philippines facing prosecution for their alleged
participation in the failed coup d' etat that took place on December 1 to
9, 1989.
The charges against them are violation of Articles of War (AW) 67
(Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman)
and AW 94 (Various Crimes) in relation to Article 248 of the Revised
Penal Code (Murder).
In G.R. No. 93177, which is a petition for certiorari, prohibition
and mandamus, they are questioning the conduct of the Pre-Trial
Investigation PTI Panel constituted to investigate the charges against
them and the creation of the General Court Martial GCM convened to
try them.

In G.R. No. 95020, the orders of the respondent judge of the Regional
Trial Court of Quezon City are assailed oncertiorari on the ground that
he has no jurisdiction over GCM No. 14 and no authority either to set
aside its ruling denying bail to the private respondents.
In G.R. No. 97454, certiorari is also sought against the decision of the
Regional Trial Court of Quezon City in a petition for habeas
corpus directing the release of the private respondents. Jurisdictional
objections are likewise raised as in G.R. No. 95020.
I
Before the charges were referred to GCM No. 14, a Pre-Trial
Investigation PTI Panel had been constituted pursuant to Office Order
No. 16 dated January 14, 1990, to investigate the petitioners in G.R.
Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena
dated January 30, 1990, individually addressed to the petitioners, to
wit:
You are hereby directed to appear in person before the undersigned
Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall,
Camp Crame Quezon City, then and there to submit your counteraffidavit and the affidavits of your witnesses, if any, in the pre-trial
investigation of the charge/charges against you for violence of AWs
_______________. DO NOT SUBMIT A MOTION TO DISMISS.

75

Failure to submit the aforementioned counter-affidavits on the date

above specified shall be deemed a waiver of your right to submit
controverting evidence.
On the same date, the petitioners acknowledged receipt of a copy of
the charge sheet, sworn statements of witnesses, and death and
medical certificates of victims of the rebellion.
At the first scheduled hearing, the petitioners challenged the
proceedings on various grounds, prompting the PTI Panel to grant
them 10 days within which to file their objections in writing This was
done through a Motion for Summary Dismissal dated February 21,
1990.
In a resolution dated February 27,1990, the PTI Panel denied the
motion and gave the petitioners 5 days from notice to submit their
respective counter-affidavits and the affidavits of their witnesses.
On March 7, 1990, the petitioners verbally moved for reconsideration
of the foregoing denial and the PTI Panel gave them 7 days within
which to reduce their motion to writing. This was done on March
14,1990.
The petitioners now claim that there was no pre-trial investigation of
the charges as mandated by Article of War 71, which provides:
Art. 71. Charges Action upon. Charges and specifications must be
signed by a person subject to military law, and under the oath either
that he has personal knowledge of, or has investigated, the matters set
forth therein and that the same are true in fact, to the best of his
knowledge and belief.

No charge will be referred to a general court-martial for trial until after a

thorough and impartial investigation thereof shall have been made.
This investigation will include inquiries as to the truth of the matter set
forth in said charges, form of charges, and what disposition of the case
should be made in the interest of justice and discipline. At such
investigation full opportunity shall be given to the accused to crossexamine witnesses against him if they are available and to present
anything he may desire in his own behalf, either in defense or
mitigation, and the investigating officer shall examine available
witnesses requested by the accused. If the charges are forwarded
after such investigation, they shall be accompanied by a statement of
the substance of the testimony taken on both sides. (Emphasis
supplied.)
They also allege that the initial hearing of the charges consisted merely
of a roll call and that no prosecution witnesses were presented to
reaffirm their affidavits. while the motion for summary dismissal was
denied, the motion for reconsideration remains unresolved to date and
they have not been able to submit their counter-affidavits.
At the hearing of May 15, 1990, the petitioners in G.R. No. 96948
manifested that they were exercising their right to raise peremptory
challenges against the president and members of GCM No.14. They
invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14
ruled, however, that peremptory challenges had been discontinued
under P.D. No. 39.
In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990,
but the application was denied by GCM No.14. He thereupon filed with
the Regional Trial Court of Quezon City a petition
for certiorari and mandamuswith prayer for provisional liberty and a writ
of preliminary injunction. After considering the petition and the answer

76

thereto filed by the president and members of GCM No.14, Judge

Maximiano C. Asuncion issued an order granting provisional liberty to
Ligot.
On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the
order for his release and to declare in contempt the commanding
officer of the PC/INP Jail for disobey 'ng the said order. He later also
complained that Generals De Villa and Aguirre had refused to release
him "pending final resolution of the appeal to be taken" to this Court.
After hearing, the trial court reiterated its order for the provisional
liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col.
Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional
intervenors Ltc Romelino Gojo and Capt. Manuel Ison.

Pending the proceedings on the applications for bail before General

Court-Martial No. 14, this Court reiterates its orders of release on the
provisional liberty of petitioner Jacinto Ligot as well as intervenors
Franklin Brawner and Arsenio Tecson.
On February 18, 1991, the private respondents in G.R. No. 97454 filed
with this Court a petition for habeas corpus on the ground that they
were being detained in Camp Crame without charges. The petition was
referred to the Regional Trial Court of Quezon City, where it was raffled
to respondent Judge Antonio P. Solano. Finding after hearing that no
formal charges had been filed against the petitioners after more than a
year after their arrest, the trial court ordered their release.
II

On August 22, 1990, the trial court rendered judgment inter alia:

The Court has examined the records of this case and rules as follows.

(a) Declaring, that Section 13, Article III of the Constitution granting the
right to bail to all persons with the defined exception is applicable and
covers all military men facing court-martial proceedings. Accordingly,
the assailed orders of General Court- Martial No. 14 denying bail to
petitioner and intervenors on the mistaken assumption that bail does
not apply to military men facing court-martial proceedings on the
ground that there is no precedent, are hereby set aside and declared
null and void. Respondent General Court-Martial No. 14 is hereby
directed to conduct proceedings on the applications of bail of the
petitioner, intervenors and which may as well include other persons
facing charges before General Court-Martial No. 14.

It appears that the petitioners in G.R. Nos. 93177 and 96948 were
given several opportunities to present their side at the pre-trial
investigation, first at the scheduled hearing of February 12, 1990, and
then again after the denial of their motion of February 21, 1990, when
they were given until March 7, 1990, to submit their counter-affidavits.
On that date, they filed instead a verbal motion for reconsideration
which they were again asked to submit in writing. This they did on
March 13, 1990. The motion was in effect denied when the PTI Panel
resolved to recommend that the charges be referred to the General
Court Martial for trial.
The said petitioners cannot now claim they have been denied due
process because the investigation was resolved against them owing to
their own failure to submit their counter-affidavits. They had been
expressly warned In the subpoena sent them that "failure to submit the

77

aforementioned counter-affidavits on the date above specified shall be

deemed a waiver of (their) right to submit controverting evidence."
They chose not to heed the warning. As their motions appeared to be
dilatory, the PTI Panel was justified in referring the charges to GCM
No. 14 without waiting for the petitioners to submit their defense.
Due process is satisfied as long as the party is accorded an
opportunity to be heard. If it is not availed of, it is deemed waived or
forfeited without violation of the Bill of Rights.
There was in our view substantial compliance with Article of War 71 by
the PTI Panel. Moreover, it is now settled that "even a failure to
conduct a pre-trial investigation does not deprive a general courtmartial of jurisdiction." We so held in Arula v. Espino, 1 thus:
xxx xxx xxx
But even a failure to conduct a pre-trial investigation does not deprive
a general court-martial of jurisdiction.
The better accepted concept of pre-trial investigation is that it is
directory, not mandatory, and in no way affects the jurisdiction of a
court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949),
the Court said:
We do not think that the pre-trial investigation procedure by Article 70
(The Philippine counter-part is article of war 71, Commonwealth Act
408) can properly be construed as an indispensable pre-requisite to
the exercise of the Army General court martial jurisdiction.. The Article
does serve important functions in the administration of court-martial
procedures and does provide safeguards to an accused. Its language
is clearly such that a defendant could object to trial in the absence of

the required investigation. In that event the court-martial could itself

postpone trial pending the investigation. And the military reviewing
authorities could consider the same contention, reversing a courtmartial conviction where failure to comply with Article 70 has
substantially injured an accused. But we are not persuaded that
Congress intended to make otherwise valid court-martial judgments
wholly void because pre-trial investigations fall short of the standards
prescribed by Article 70. That Congress has not required analogous
pre-trial procedure for Navy court-martial is an indication that the
investigatory plan was not intended to be exalted to the jurisdictional
level.
xxx xxx xxx
Shortly after enactment of Article 70 in 1920 the Judge Advocate
General of the Army did hold that where there had been no pre-trial
investigation, court-martial proceedings were void ab initio. But this
holding has been expressly repudiated in later holdings of the Judge
Advocate General. This later interpretation has been that the pre-trial
requirements of Article 70 are directory, not mandatory, and in no way
effect the jurisdiction of a court-martial. The War Department's
interpretation was pointedly called to the attention of Congress in 1947
after which Congress amended Article 70 but left unchanged the
language here under consideration. compensable pre-requisite to the
exercise of Army general court-martial jurisdiction
A trial before a general court-martial convened without any pretrial
investigation under article of war 71 would of course be altogether
irregular but the court-martial might nevertheless have jurisdiction.
Significantly, this rule is similar to the one obtaining in criminal
procedure in the civil courts to the effect that absence of preliminary

78

investigation does not go into the jurisdiction of the court but merely to
the regularity of the proceedings.
As to what law should govern the conduct of the preliminary
investigation, that issue was resolved more than two years ago
in Kapunan v. De Villa, 2 where we declared:

The Court finds that, contrary to the contention of petitioners, there

was substantial compliance with the requirements of law as provided in
the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The
amended charge sheets, charging petitioners and their co-respondents
with mutiny and conduct unbecoming an officer, were signed by Maj.
Antonio Ruiz, a person subject to military law, after he had investigated
the matter through an evaluation of the pertinent records, including the
reports of respondent AFP Board of Officers, and was convinced of the
truth of the testimonies on record. The charge sheets were sworn to by
Maj. Ruiz, the "accuser," in accordance with and in the manner
provided under Art. 71 of the Articles of War. Considering that P.D. No.
77, as amended by P.D. No. 911, is only of suppletory application, the
fact that the charge sheets were not certified in the manner provided
under said decrees, i.e., that the officer administering the oath has
personally examined the affiant and that he is satisfied that they
voluntarily executed and understood its affidavit, does not invalidate
said charge sheets. Thereafter, a "pretrial investigation" was conducted
by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as
amended by P.D. No. 911, petitioners were subpoenaed and required
to file their counter-affidavit. However, instead of doing so, they filed an
untitled pleading seeking the dismissal of the charges against them.
That petitioners were not able to confront the witnesses against them
was their own doing, for they never even asked Maj. Baldonado to
subpoena said witnesses so that they may be made to answer
clarificatory questions in accordance with P. D, No. 77, as amended by
P.D. No. 911.
The petitioners also allege that GCM No. 14 has not been constitute in
accordance with Article 8 of the Articles of War because General Order
No. M-6, which supposedly convened the body, was not signed by
Gen. Renato de Villa as Chief of Staff.

79

Article of War No. 8 reads:

Art. 8. General Courts-Martial. The President of the Philippines, the
Chief of Staff of the Armed Forces of the Philippines, the Chief of
Constabulary and, when empowered by the President, the
commanding officer of a major command or task force, the
commanding officer of a division, the commanding officer of a military
area, the superintendent of the Military Academy, the commanding
officer of a separate brigade or body of troops may appoint general
courts-martial; but when any such commander is the accuser or the
prosecutor of the person or persons to be tried, the court shall be
appointed by superior competent authority. ...
While it is true that General Order No. M-6 was not signed by Gen. De
Villa, there is no doubt that he authorized it because the order itself
said it was issued "By Command of General De Villa" and it has not
been shown to be spurious. As observed by the Solicitor General, the
Summary Disposition Form showed that Gen. De Villa, as Chief of
Staff, AFP, actually constituted GCM No. 14 and appointed its
president and members. It is significant that General De Villa has not
disauthorized or revoked or in any way disowned the said order, as he
would certainly have done if his authority had been improperly invoked.
On the contrary, as the principal respondent in G.R. No. 93177, he
sustained General Order No. M 6 in the Comment filed for him and the
other respondents by the Solicitor General.
Coming now to the right to peremptory challenge, we note that this was
originally provided for under Article 18 of Com. Act No. 408 (Articles of
War), as amended by Rep. Act No. 242, on June 12, 1948, to wit:
Art. 18. Challenges. Members of general or special courts-martial
may be challenged by the accused or the trial judge advocate for

cause stated to the court. The court shall determine the relevancy and
validity thereof, and shall not receive a challenge to more than one
member at a time. Challenges by the trial judge advocate shall
ordinarily be presented and decided before those by the accused are
offered. Each side shall be entitled to the peremptory challenge, but
the law member of the court shall not be challenged except for cause.
The history of peremptory challenge was traced in Martelino v.
Alejandro, 3 thus:
In the early formative years of the infant Philippine Army, after the
passage in 1935 of Commonwealth Act No. 1 (otherwise known as the
National Defense Act), except for a handful of Philippine Scout officers
and graduates of the United States military and naval academies who
were on duty with the Philippine Army, there was a complete dearth of
officers learned in military law, its aside from the fact that the officer
corps of the developing army was numerically made equate for the
demands of the strictly military aspects of the national defense
program. Because of these considerations it was then felt that
peremptory challenges should not in the meanwhile be permitted and
that only challenges for cause, in any number, would be allowed. Thus
Article 18 of the Articles of War (Commonwealth Act No. 408), as
worded on September 14, 1938, the date of the approval of the Act,
made no mention or reference to any peremptory challenge by either
the trial judge advocate of a court- martial or by the accused. After
December 17,1958, when the Manual for Courts-Martial of the
Philippine Army became effective, the Judge Advocate General's
Service of the Philippine Army conducted a continuing and intensive
program of training and education in military law, encompassing the
length and breadth of the Philippines. This program was pursued until
the outbreak of World War 11 in the Pacific on December 7, 1941. After
the formal surrender of Japan to the allies in 1945, the officer corps of

80

the Armed Forces of the Philippines had expanded to a very large

number, and a great many of the officers had been indoctrinated in
military law. It was in these environmental circumstances that Article of
War 18 was amended on June 12,1948 to entitle "each side" to one
peremptory challenge, with the sole proviso that "the law member of
court shall not be challenged except for cause.
On September 27,1972, President Marcos issued General Order No.
8, empowering the Chief of Staff of the Armed Forces to create military
tribunals "to try and decide cases of military personnel and such other
cases as may be referred to them.
On November 7,1972, he promulgated P.D. No. 39 (Governing the
Creation, Composition, Jurisdiction, Procedure, and other matters
relevant to military Tribunals). This decree disallowed the peremptory
challenge, thus:
No peremptory challenge shall be allowed. Challenges for cause may
be entertained to insure impartiality and good faith. Challenges shall
immediately be heard and determined by a majority of the members
excluding the challenged member. A tie vote does not disqualify the
challenged member. A successfully challenged member shall be
immediately replaced.
On June 11, 1978, President Marcos promulgated P.D. No. 1498, or
the National Security Code, which was a compilation and codification
of decrees, general orders, LOI and policies intended "to meet the
continuing threats to the existence, security and stability of the State."
The modified rule on challenges under P.D. No. 39 was embodied in
this decree.

On January 17,1981, President Marcos issued Proc. No. 2045

proclaiming the termination of the state of martial law throughout the
Philippines. The proclamation revoked General Order No. 8 and
declared the dissolution of the military tribunals created pursuant
thereto upon final determination of the cases pending therein.
P.D. No. 39 was issued to implement General Order No. 8 and the
other general orders mentioned therein. With the termination of martial
law and the dissolution of the military tribunals created thereunder, the
reason for the existence of P.D. No. 39 ceased automatically.
It is a basic canon of statutory construction that when the reason of the
law ceases, the law itself ceases.Cessante ratione legis, cessat ipsa
lex. This principle is also expressed in the maxim ratio legis est
anima: the reason of law is its soul.
Applying these rules, we hold that the withdrawal of the right to
peremptory challenge in L P.D. No. 39 became ineffective when the
apparatus of martial law was dismantled with the issuance of
Proclamation No. 2045, As a result, the old rule embodied in Article 18
of Com. Act No. 408 was automatically revived and now again allows
the right to peremptory challenge.
We do not agree with the respondents in G.R. No. 96948 that the right
to peremptory challenge remains withdrawn under P.D. No. 39. To
repeat for emphasis, this decree was itself withdrawn when martial law
was lifted on January 17, 1981. Indeed, even if not so withdrawn, it
could still be considered no longer operative, having been cast out
under the new dispensation as, in the words of the Freedom
Constitution, one of the "iniquitous vestiges of the previous regime.

81

The military tribunal was one of the most oppressive instruments of

martial law. It is curious that the present government should invoke the
rules of that discredited body to justify its action against the accused
officers.

It should be noted that the aforecited provision and the case cited refer
to ordinary appeals and not to the remedies employed by the accused
officers before the respondent courts.
In Martelino, we observed as follows:

The Court realizes that the recognition of the right to peremptory

challenge may be exploited by a respondent in a court-martial trial to
delay the proceedings and defer his deserved Punishment. It is hoped
that the accused officers in the cases at bar will not be so motivated. At
any rate, the wisdom of Com. Act No. 408, in the light of present
circumstances, is a matter addressed to the law-makers and not to this
Court. The judiciary can only interpret and apply the laws without
regard to its own misgivings on their adverse effects. This is a problem
only the political departments can resolve.
The petitioners in G.R. Nos. 95020 and 97454 question the propriety of
the petition for certiorari and mandamus and the petition for habeas
corpus filed by the private respondents with the Regional Trial Courts
of Quezon City. It is argued that since the private respondents are
officers of the Armed Forces accused of violations of the Articles of
War, the respondent courts have no authority to order their release and
otherwise interfere with the court-martial proceedings.
The petitioners further contend that under Sec. 9(3) of BP 1 29, the
Court of Appeals is vested with "exclusive appellate jurisdiction over all
final judgments, decisions, resolutions, orders, or awards of Regional
Trial Courts and quasi-judicial agencies, instrumentalities, boards or
commissions." Rather irrelevantly, the petitioners also cite the case
of Yang v. Court of Appeals 4 where this Court held that "appeals from the
Professional Regulation Commission are now exclusively cognizable by
the Court of Appeals.

It is true that civil courts as a rule exercise no supervision or correcting

power over the proceedings of courts-martial, and that mere errors in
their proceedings are not open to consideration. The single inquiry, the
test, is jurisdiction. But it is equally true that in the exercise of their
undoubted discretion, courts-martial may commit such an abuse of
discretion what in the language of Rule 65 is referred to as "grave
abuse of discretion" as to give rise to a defect in their jurisdiction.
This is precisely the point at issue in this action suggested by its nature
as one for certiorari and prohibition ... .
The Regional Trial Court has concurrent jurisdiction with the Court of
Appeals and the Supreme Court over petitions for certiorari, prohibition
or mandamus against inferior courts and other bodies and on petitions
forhabeas corpus and quo warranto. 5 In the absence of a law providing
that the decisions, orders and ruling of a court-martial or the Office of the
Chief of Staff can be questioned only before the Court of Appeals and the
Supreme Court, we hold that the Regional Trial Court can exercise similar
jurisdiction.
We find that the right to bail invoked by the private respondents in G.R.
Nos. 95020 has traditionally not been recognized and is not available
in the military, as an exception to the general rule embodied in the Bill
of Rights. This much was suggested in Arula, where we observed that
"the right to a speedy trial is given more emphasis in the military where
the right to bail does not exist.

82

The justification for this exception was well explained by the Solicitor
General as follows:
The unique structure of the military should be enough reason to
exempt military men from the constitutional coverage on the right to
bail.
Aside from structural peculiarity, it is vital to note that mutinous soldiers
operate within the framework of democratic system, are allowed the
fiduciary use of firearms by the government for the discharge of their
duties and responsibilities and are paid out of revenues collected from
the people. All other insurgent elements carry out their activities
outside of and against the existing political system.
xxx xxx xxx
National security considerations should also impress upon this
Honorable Court that release on bail of respondents constitutes a
damaging precedent. Imagine a scenario of say 1,000 putschists
roaming the streets of the Metropolis on bail, or if the assailed July
25,1990 Order were sustained, on "provisional" bail. The sheer number
alone is already discomforting. But, the truly disquieting thought is that
they could freely resume their heinous activity which could very well
result in the overthrow of duly constituted authorities, including this
Honorable Court, and replace the same with a system consonant with
their own concept of government and justice.
The argument that denial from the military of the right to bail would
violate the equal protection clause is not acceptable. This guaranty
requires equal treatment only of persons or things similarly situated
and does not apply where the subject of the treatment is substantially
different from others. The accused officers can complain if they are

denied bail and other members of the military are not. But they cannot
say they have been discriminated against because they are not
allowed the same right that is extended to civilians.
On the contention of the private respondents in G.R. No. 97454 that
they had not been charged after more than one year from their arrest,
our finding is that there was substantial compliance with the
requirements of due process and the right to a speedy trial.
The petition for habeas corpus was directly filed with this Court on
February 18, 1991, and was referred to the Regional Trial Court of
Quezon City for raffle, hearing and decision. It was heard on February
26, 1991, by the respondent court, where the petitioners submitted the
charge memorandum and specifications against the private
respondents dated January 30, 1991. On February 12, 1991, pursuant
to Office Order No. 31-91, the PTI panel was created and initial
investigation was scheduled on March 12, 1991 at 2:00 p.m. On March
20, 1991, the private respondents received the copies of the charges,
charge sheets and specifications and were required to submit their
counter-affidavits on or before April 11, 1991. There was indeed a
delay of more than one year in the investigation and preparation of the
charges against the private respondents. However, this was explained
by the Solicitor General thus:
... The AFP Special Investigating Committee was able to complete it
pre-charge investigation only after one (1) year because hundreds of
officers and thousands of enlisted men were involved in the failed
coup. All of them, as well as other witnesses, had to be interviewed or
investigated, and these inevitably took months to finish. The precharge investigation was rendered doubly difficult by the fact that those
involved were dispersed and scattered throughout the Philippines. In
some cases, command units, such as the Scout Rangers, have

83

already been disbanded. After the charges were completed, the same
still had to pass review and approval by the AFP Chief of Staff.
While accepting this explanation, the Court nevertheless must reiterate
the following admonition:
This Court as protector of the rights of the people, must stress the
point that if the participation of petitioner in several coup attempts for
which he is confined on orders of Adjutant General Jorge Agcaoili
cannot be established and no charges can be filed against him or the
existence of a prima facie case warranting trial before a military
commission is wanting, it behooves respondent then Major General
Rodolfo Biazon (now General) to release petitioner. Respondents must
also be reminded that even if a military officer is arrested pursuant to
Article 70 of then Articles of War, indefinite confinement is not
sanctioned, as Article 71 thereof mandates that immediate steps must
be taken to try the person accused or to dissmiss the charge and
release him. Any officer who is responsible for unnecessary delay in
investigating or carrying the case to a final conclusion may even be
punished as a court martial may direct. 6
It should be noted, finally, that after the decision was rendered by
Judge Solano on February 26, 1991, the government filed a notice of
appeal ad cautelam and a motion for reconsideration, the latter was
ultimately denied, after hearing, on March 4, 1991. The 48- hour period
for appeal under Rule 41, Section 18, of the Rules of Court did not run
until after notice of such denial was received by the petitioners on
March 12, 1991. Contrary to the private respondents' contention,
therefore, the decision had not yet become final and executory when
the special civil action in G.R. No. 97454 was filed with this Court on
March 12, 1991.

III
Regarding the propriety of the petitions at bar, it is well to reiterate the
following observations of the Court in Arula:
The referral of charges to a court-martial involves the exercise of
judgment and discretion (AW 71). A petition for certiorari, in order to
prosper, must be based on jurisdictional grounds because, as long as
the respondent acted with jurisdiction, any error committed by him or it
in the exercise thereof will amount to nothing more than an error of
judgment which may be reviewed or corrected only by appeal. Even an
abuse of discretion is not sufficient by itself to justify the issuance of a
writ ofcertiorari.
As in that case, we find that the respondents in G.R. No. 93177 have
not acted with grave abuse of discretion or without or in excess of
jurisdiction to justify the intervention of the Court and the reversal of
the acts complained of by the petitioners. Such action is indicated,
however, in G.R. No. 96948, where we find that the right to peremptory
challenge should not have been denied, and in G.R. Nos. 95020 and
97454, where the private respondents should not have been ordered
released.
ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack
of merit. In G.R. No. 96948, the petition is GRANTED, and the
respondents are DIRECTED to allow the petitioners to exercise the
right of peremptory challenge under Article 18 of the Articles of War. In
G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the
orders of the respondent courts for the release of the private
respondents are hereby REVERSED and SET ASIDE. No costs.
SO ORDERED.

84

85