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CRISOLOGO, alias "AMANG", G.R. No. 74145, G.R. No. Nos. 103259-61 October 1, 1993
June 17, 1987 13. [G.R. No. L-2792. May 23, 1950.]
April 22, 1957.] Judge of the Court of First Instance of
3. PEOPLE OF THE PHILIPPINES, vs. THE Iloilo, Respondent.
VALDEZ, JR., G.R. No. L-64731, October 26, 1983 15. FRANCISCO BELTRAN, vs. FELIX SAMSON,
4. BORJA VS. MENDOZA [77 SCRA 422; G.R. NO.L- Judge of the Second Judicial District, and
45667; 20 JUN 1977] FRANCISCO JOSE, Provincial Fiscal of Isabela,
5. PEOPLE VS. SALAS [143 SCRA 163; G.R. NO. L- G.R. No. 32025 September 23, 1929
66469; 29 JUL 1986]
Presiding Judge, Court of First Instance of Cebu
and TEODORO DE LA VEGA, JR. G.R. No. L-37933
April 15, 1988,
7. People v Santos, G.R. Nos. 100225-26, 11 May
1993, 221 SCRA 715.
y NARCISO, G.R. Nos. 100225-26 May 11, 1993
PIZARRO, G.R. No. L-36445 August 28, 1984
10. People v. Hernandez, G.R. No. 73603, 22 June
1988, 162 SCRA 422.
11. People v. Luvendino, 211 SCRA 36 (1992)
EN BANC o'clock in the evening in Calamagoy, Poblacion Magsaysay,
Davao del Sur.
June 17, 1987
The following information was subsequently filed by the
G.R. No. 74145 Provincial Fiscal against the accused on 16 September
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. That on or about the 1st day of May, 1976, in the
ZOSIMO CRISOLOGO, alias "AMANG", defendant- Municipality of Magsaysay, Province of Davao del Sur,
appellant. Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed
The Solicitor General for plaintiff-appellee. with a bladed weapon, with violence against and
intimidation upon persons, and with intent of gain, did
Marcelino G. Agana III for defendant-appellant.
then and there wilfully, unlawfully and feloniously rob
Martin Francisco of one (1) "Seiko 5 Actus" wrist watch
valued at Four Hundred (P400.00) Pesos and a two
PADILLA, J.: battery flashlight valued at Thirty (P30.00) Pesos in
the total amount of Four Hundred Thirty (P430.00)
Appeal from a decision of the Court of First Instance of Pesos, to the damage and prejudice of the said owner
Davao del Sur in Criminal Case No. 92 (76) convicting the in the amount aforesaid and on the same occasion, the
defendant of robbery with homicide, sentencing him to the above-named accused, with intent to kill wilfully,
death penalty, and ordering him to indemnity the heirs of unlawfully and feloniously attack[ed] and stab[bed] the
Martin Francisco the sums of P35,000.00 for loss of life, said Martin Francisco with the same bladed weapon,
P25,000.00 for funeral expenses, P30,000.00 for loss of thereby inflicting upon him wounds which caused his
earnings and P20,000.00 for moral damages. death.

On 5 May 1976, a criminal complaint was filed by the CONTRARY TO LAW with the aggravating circumstance
Station Commander with the Municipal Court of Magsaysay, of:
Davao del Sur against the accused ZosimoCrisologo alias
"Amang," a deaf-mute, for robbery and homicide alleged to (a) disregard of the respect due the offended party on
have been committed on 1 May 1976 between ten to eleven account of his age; and
(b) night time. Apparently no sign language expert or representative ever
Digos, Davao del Sur, Philippines, September 15,
1977. On 6 April 1983, the accused through a counsel de oficio
waived the reading of the information and pleaded not
On 12 December 1977, arraignment was set. The accused guilty. Trial proceeded without any evidence being
was allegedly informed of the charge against him through presented on his part. Finally, on 10 February 1986, without
sign language by Special Policeman Alejandro Munoz a the services of an expert in sign language ever being
childhood acquaintance. Mr. Munoz subsequently entered a utilized at any stage of the proceedings, the accused was
plea of guilty on behalf of the accused. Upon objection of found guilty beyond reasonable doubt of robbery with
counsel, however, this plea was disregarded and homicide and sentenced to die by electrocution. Executive
arraignment was rescheduled until such time as the Court clemency was recommended, however, in view of the
could avail of the services of an expert in the sign language accused's infirmity and his nearly ten-year detention as a
from the school of the deaf and dumb. suspect.
On 26 June 1979 the Court through another presiding Counsel for the accused and the Solicitor-General now ask
judge, upon insistent plea of defense counsel for a sign for the reversal of the judgment of conviction due to the
language expert to assist the accused, again reset failure of the trial court to safeguard the accused's right to
arraignment as no expert in sign language was available. due process of law and the insufficiency of the purely
The School for the Deaf and Dumb in Pasay City was sent a circumstantial evidence presented to overcome the
copy of the court order to enable it to furnish the court with constitutional presumption of innocence in favor of the
an expert in sign language. No such expert was made accused.
We find their position to be well-taken.
On 9 November 1982, or after five years from the date of
filing of the information, and order through still another The absence of an interpreter in sign language who could
presiding judge was entered directing that a representative have conveyed to the accused, a deaf-mute, the full facts of
of the School of the Deaf and Dumb in BagoGallera, Talomo the offense with which he was charged and who could also
District, Davao City be availed of to enable the accused to have communicated the accused's own version of the
intelligently express his understanding of a plea of guilty or circumstances which led to his implication in the crime,
not guilty. deprived the accused of a full and fair trial and a reasonable
opportunity to defend himself. Not even the accused's final not only be confronted by the witnesses against him,
plea of not guilty can excuse these inherently unjust but he must be accorded all necessary means to know
circumstances. and understand the testimony given by said witnesses,
and must be placed in a condition where he can make
The absence of a qualified interpreter in sign language and his plea rebut such testimony, and give his own
of any other means, whether in writing or otherwise, to version of the transaction upon which the accusation is
inform the accused of the charges against him denied the based. This the fundamental law accords, and for this
accused his fundamental right to due process of law. 1The the law must provide. These humane provisions must
accuracy and fairness of the factual process by which the not, and cannot, be dependent upon the ability,
guilt or innocence of the accused was determined was not financial or otherwise, of the accused ... [This]
safeguarded. The accused could not be said to have enjoyed constitutional right ... would be meaningless and a vain
the right to be heard by himself and counsel, and to be and useless provision unless the testimony of the
informed of the nature and cause of the accusation against witnesses against him could be understood by the
him 2 in the proceedings where his life and liberty were at accused. Mere confrontation of the witnesses would be
stake. useless, bordering upon the farcical, if the accused
could not hear or understand their testimony. So, also,
In Terry v. State, 3 where a deaf-mute accused of as to the nature and cause of the accusation. In the
manslaughter was not provided with an interpreter despite absence of an interpreter it would be a physical
repeated requests from counsel, it was held: impossibility for the accused, a deaf-mute, to know or
to understand the nature and cause of the accusation
... The Constitution of this state expressly provides
against him, and, as here, he could only stand by
that an accused has a right to be heard by himself and
helplessly, take his medicine, or whatever may be
counsel, also, to demand the nature and cause of the
coming to him, without knowing or understanding, and
accusation; against him, and, further to be confronted
all this in the teeth of the mandatory constitutional
by the witnesses, who are to testify against him. In
rights which apply to an unfortunate afflicted
constructing this constitutional provision it needs no
deafmute, just as it does to every person accused of a
discussion in deciding that all this must be done in a
violation of the criminal law. In other words the
manner by which the accused can know, the nature
physical infirmity of this appellant can in no sense
and the cause of the accusation he is called upon to
lessen his rights under the Constitution, and, in the
answer, and all necessary means must be provided,
proper administration of its laws, this great and
and the law so contemplates, that the accused must
sovereign state must and will accord the means by
which its citizens, humble and afflicted though they deceased Martin Francisco as victim, and to arrest the
may be, shall receive all the rights, benefits and accused on the basis of Wilson Evangelista's statement that
privileges which the Constitution, laws, regulations, he saw the accused with a bloodstained shirt the previous
and rules of practice provide. 4 evening when the crime could conceivably have occurred.
Patrolman Pinto did so that very day. Several days later, he
The basic constitutional infirmity alone in the conduct of the was also able to recover the deceased's wristwatch and
case against the accused is, in our candid assessment, fatal flashlight from the house of the accused's father allegedly
to the judgment of conviction meted out against him. through the assistance of the accused himself.
Aside from the unfair setting and circumstance in which the Upon being asked who killed the deceased, the accused
accused was convicted, insufficiency of evidence to warrant allegedly admitted to Pat. Pinto in sign language that it was
a finding of guilty beyond reasonable doubt also leads this he by making gestures which Pat. Pinto interpreted to mean
Court to set aside the conviction. The following events and that the accused had been stoned by the deceased, thus
circumstances are relevant in this regard: impelling the accused to stab the latter. This confession,
however, was not included in Pat. Pinto's affidavit as he
On 1 May 1976, at past eight o'clock in the evening, the allegedly forgot to tell the investigator. He also acknowledge
accused and the deceased were last seen walking away his failure to notify the accused of his right to counsel
together from a sari-sari store where they had been before interrogation and investigation due to difficulty in
drinking tuba steadily in apparent harmony. At around conveying the matter by sign language.
eleven thirty of the same evening, the accused suddenly
appeared in the house of Wilson Evangelists, who was then Based on the above circumstances and evidence, the trial
with relatives butchering a pig for the baptism of his child court found the accused guilty beyond reasonable doubt of
the following day. The accused was panting and trembling, the crime charged, reasoning as follows:
and told Wilson Evangelista in sign language that he had
come from Calamagoy, at the side of the canal, where there The prosecution proved and which this Court finds
were persons fighting on the road. Evangelista later testified that the accused was the last person to be seen with
that he noticed the accused wearing a fatigue shirt with a the deceased, and that he was drunk when he left the
blood-stain on it, and carrying a flashlight. store of prosecution witness Salome del Socorro
together with the deceased. The Court also finds
On 2 May 1976, Patrolman Reynaldo Pinto, Jr., was told to that the accused's clothes had bloodstain on it when he
investigate a case of robbery with homicide with the went to the house of prosecution witness Wilson
Evangelista at 11:30 in the evening of May 1, 1976, We find the trial court's decision essentially lacking in that
the night when the deceased was robbed and killed. degree of certainty in reason and conscience which is
The seiko 5 actus wrist watch and the flashlight colored necessary to establish guilt beyond reasonable doubt. As
red and white both belonging to the deceased Martin held in U.S. v. Lasada, 5 "By reasonable doubt is not meant
Francisco were recovered from the possession of the that which of possibility may arise, but it is that doubt
accused and which recovery was done with his help, engendered by an investigation of the whole proof and an
The unexplained possession by the accused of the inability, after such investigation, to let the mind rest easy
properties belonging to the deceased proved that he upon the certainty of guilt. Absolute certainty of guilt is not
took these things unlawfully. The fifteen (15) stab demanded by the law to convict of any criminal charge but
wounds which were inflicted on the deceased, many of moral certainty is required, and this. certainty is required as
which were fatal wounds proved that a much younger to every proposition of proof requisite to constitute the
[man] than the deceased could have inflicted the offense." 6 Facts must be presented methodically and
same. In the case at bar, the accused is very much meticulously, contradictions must be clarified, and gaps and
younger than the deceased who was 63 years old at loopholes in the evidence must be adequately explained "to
the time of his death, ... frail and without physical the end that the court's mind may not be tortured by
attributes, unlike the accused who looks healthy, doubts, the innocent [not] suffer and the guilty [go]
robust and young ... unpunished." 7

While it is true that Pat. Pinto and his companion were Such standards, we believe, have not been met in this case.
able to get a statement from the accused without
telling him in advance of his constitutional rights, due Patrolman Pinto, the interrogator to whom the accused
to difficulty in explaining them in sign language, the allegedly confessed the details which led to a presumption
accused's statement by sign language was coupled that lie killed the deceased, expressly admitted that he
with his voluntary help in recovering the things could have misinterpreted the gestures made by the
belonging to the deceased. Furthermore, the court accused as he had only a slight knowledge of sign language.
considered and took note of the plea of guilty which Furthermore, the same witness did not give fully credible
was entered into by the accused on his first replies when questioned about the possibility that he was
arraignment by sign language through Mr. Alejandro ordered to proceed to the house of accused's father to get
Munoz who is an associate of the accused in their the incriminating watch and flashlight which were delivered
younger days. (Emphasis supplied.) there earlier by a certain Nicolas.

The bloodstain on the accused's shirt could conceivably been proved beyond reasonable doubt. The Court hereby
have come also from the fighting that the accused told orders his immediate release from confinement, unless he is
Wilson Evangelista he had witnessed. Considering that the legally detained for some other cause or offense.
deceased sustained fifteen (15) stab wounds, twelve (12) of
which could have separately caused death, according to the SO ORDERED.
medical officer who examined the body of the deceased, the
presence of a single bloodstain on the front of accused's
shirt hardly supports the conclusion reached by the trial
court, especially when related to the high degree of
intoxication appreciated against the accused. As testified to
by the medical officer who, as stated, examined the body of
the deceased, the stab wounds could also have been
inflicted by several assailants using different weapons. That
the accused looked much more robust than the deceased
and thus could have committed the crime does not by itself
deserve the weight and consideration that the trial court
gave to it. Furthermore, the rubber slippers and eyeglasses
found near the scene of the crime were never Identified or

The trial court's appreciation of the plea of guilty earlier

entered for the accused by Special Policeman Alejandro
Munoz, which the first presiding judge earlier discarded, is
regrettable, to say the least, especially when considered
with the admittedly limited knowledge in sign language on
the part of Pat. Munoz and in relation to the investigator's
own admission that the accused was never informed of his
right to counsel.8

WHEREFORE, the appealed decision is hereby reversed. The

accused is acquitted, on the ground that his guilt has not
EN BANC a demand as a condition precedent to the existence of the
crime of embezzlement. The failure to account, upon
[G.R. No. L-9811. April 22, 1957.] demand, for funds or property held in trust, is
circumstantial evidence of misappropriation, which may be
GEORGE L. TUBB, Petitioner, v. PEOPLE OF THE established by other proof.
APPEALS, Respondents.
Solicitor General Ambrosio Padilla and Solicitor
Antonio Pelaez, Jalandoni and Eduardo D. Gutierrez
for Petitioner. CONCEPCION, J.:

A. Torres for Respondents.

This is a petition for review by certiorari of a decision of the
Court of Appeals. The facts are set forth in said decision,
SYLLABUS from which we

"On August 15, 1947, Accused George L. Tubb called on

1. CRIMINAL LAW; ESTAFA; MISAPPROPRIATION OF FUNDS complainant William P. Quasha at the latter’s office at
HELD IN TRUST DISTINCT FROM SWINDLING THROUGH Dasmariñas St., Manila. The accused had known Quasha
FALSE PRETENSES. — Where the accused is charged with earlier in the same year 1947 when he was defended by
the misappropriation of funds held by him in trust and with said Quasha in a court-martial case. During the meeting,
the obligation to return the same, under Article 315, Tubb talked Quasha into investing in the rattan business,
paragraph 1(b) of the Revised Penal Code, he can not be and said that rattan could be bought for P0.20 a piece in
convicted of swindling by means of false pretenses, under Southern Luzon and sold for P0.70 a piece in Manila.
paragraph 2(a) of said Article, without violating his Quasha delivered the sum of P6,000.00 to the accused on
constitutional right to be informed of the nature and cause the following day, August 16th, with the understanding that
of the accusation against him. the money shall be used exclusively by the accused in the
purchase of rattan for resale in Manila; that the rattan so
2. ID.; ID.; DEMAND NOT A CONDITION PRECEDENT TO bought shall be brought to Manila within a few days; and,
THE EXISTENCE OF THE CRIME. — The law does not require that the profit to be realized from the sale shall be divided
equally between the accused and the complainant after the GabinoAngchuan of Cebu City and could get money from his
capital of P6,000.00 has been returned to the latter. said employer. Quasha did not hear from the accused for a
long time again after their chance meeting at the Manila
"The prosecution has also shown that on August 21, 1947, Hotel. The complainant wrote to the accused in Cebu City,
complainant received a telegram from the accused, who care of GabinoAngchuan, but his letter was not answered.
was in Calauag, Quezon province, asking him to procure a When the complainant heard that the accused was in
license from the Bureau of Forestry for the purchase of Cagayan de Oro, Oriental Misamis, the complainant wrote to
forest products (Exhibit C). The complainant replied in a him, threatening him with a criminal action if he did not pay
letter (Exhibit E, dated August 22, 1947), saying that within a period of one month (Exhibits K and J, dated July
although a license was not required to purchase forest 25, 1949, and January 28, 1950, respectively).
products, he was sending to him (Tubb) an application to
cut and gather products as a lessee or concessionaire. This "The accused did not take the witness-stand, but his
letter was received by the accused, who sent back the counsel presented AvelinoLeyco, Amado Resurreccion and
application, duly accomplished, in a letter of the said Joe Oberly, as his witnesses. It is argued by the defense
accused (Exhibit D, dated August 27, 1947) through that the accused, together with Amado Resurreccion and
defense witness Amado Resurreccion. The license was with the assistance of AvelinoLeyco, did buy plenty of rattan
secured and same sent to the accused. On September 16, in Polillo and in Calauag, but they get drenched in the rain
1947, when the complainant did not receive a word from due to the typhoons which visited those places, so that they
the accused, the said complainant sent a telegram of inquiry become moldy and spoiled."cralaw virtua1aw library
(Exhibit G), but the same was answered by the postmaster
of Calauag, Quezon, whose telegram (Exhibit H) disclosed "The trial court convicted the accused of the crime of estafa,
that the accused was no longer residing in Calauag. Quasha as defined and penalized under Article 31O, subsection 1(b),
went to the former office of the accused at the Samanillo of the Revised Penal Code, and sentenced him to an
Building, but he was informed that the latter had not been imprisonment of one year of prisioncorreccional, to
heard from for some time. indemnify the complainant in the sum of P6,000.00, with
subsidiary imprisonment in case of insolvency, and to pay
"Sometime in 1948, Quasha met the accused at the Manila the costs.
Hotel. Quasha asked the accused what he (accused) had
done with his P6,000.00. The accused merely said that "In this appeal, the main question is whether appellant is
there was no use telling what happened, but that he will try criminally liable for estafa or civilly liable only for the
to pay the complainant back as he was then working for one principal sum of P6,000.00. In support of its contention, the
defense insists that there was a lawful partnership between business transaction when in fact he is not. Appellant’s
the appellant and the complainant and the failure of the request by telegram that complainant secured a license for
venture rendered the former liable only for a liquidation of the purchase of products and his accomplishment of the
the partnership. application form for such license, with the request that the
license be procured and sent to him as soon as possible,
"After carefully going over the evidence of record, we are when such license is not required to enable one to purchase
not at all convinced that appellant actually bought rattan forest products like rattan, was part of a scheme to deceive
out of the money entrusted to him by the offended party for the complainant. There is here, therefore, a perfect case of
the purpose. The appellant did not advise the complainant swindling by means of false pretenses, where formal
of his whereabouts after he left Calauag, Quezon, despite demand is not necessary (People v. Scott, 62 Phil. 553).
the fact that he and Amado Resurreccion allegedly returned The cases cited by appellant’s counsel in support of his
to Manila after leaving Calauag. After complainant met the contention that a legal partnership was created between
appellant by chance at the Manila Hotel, the latter again appellant and the complainant (People v. Clarin, 17, Phil.
absconded, so that despite the length of time given said 84, People v. Magdaluyo, CA-G.R. No. 9131-R, May 18,
appellant to repay the money received by him for a specific 1954, and People v. Reyes, CA-G. R. No. 8902-R, March 19,
purpose, the complainant was finally compelled to go to 1953) are inapplicable because in these cases the
court. The unexplained conduct of the appellant indicates a appellants therein actually invested or used the money
guilty conscience."cralaw virtua1aw library received by them from their partners in the venture.

The conclusion reached by the Court of Appeals "The penalty provided by the applicable law is arresto mayor in its maximum period to prisioncorrecional in its
minimum period, or from 4 months and 1 day to 2 years
"Under the above facts and circumstances, appellant is and 4 months. There being no modifying circumstance to
clearly guilty of estafa under Article 315, paragraph 2(a), of consider, the medium degree of the penalty should be
the Revised Penal Code, and not under subsection 1(b) of imposed. Applying the Indeterminate Sentence Law, as
the same Article of the Code, as correctly contended by the amended, appellant should be, as he is hereby, sentenced
Solicitor General. The defense of lawful partnership can not to suffer an indeterminate penalty of from 4 months of
be sustained. There can be no legal partnership where one arresto mayor to 1 year and 1 day of prisioncorreccional.
of the supposed partners, taking advantage of a friendship
which seemed to have ripened into a relationship of trust, "Modified as above-indicated, the judgment appealed from
represents himself to the other as one engaged in a is hereby affirmed in all other respects, with costs."cralaw
virtua1aw library repeated demands made upon him, absconded with the said
amount of P6,000 and never appeared again, thereby
Defendant-appellant assails the foregoing decision upon the wilfully, unlawfully and feloniously, with intent to defraud,
ground that:chanrob1es virtual 1aw library misappropriating, misapplying and converting the said sum
to his own personal use and in the said sum of P6,000,
1. "The Court of Appeals committed a grave error of law in Philippine Currency."cralaw virtua1aw library
rendering a decision which in effect holds that a person
charged in the information with estafa as defined in Article It is clear from the foregoing that petitioner is accused of
315, paragraph 1(b) of the Revised Penal Code may be estafa under Article 315, paragraph 1(b) of the Revised
convicted of estafa as defined in Article 815, paragraph 2(a) Penal
of the same code.
"(b) By misappropriating or converting to the prejudice of
2. "The Court of Appeals gravely erred when, under the another, money, goods, or any other personal property
facts established or undisputed on the record, it did not received by the offender in trust or on commission, or for
acquit the petitioner herein."cralaw virtua1aw library administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though
It is alleged in the information in the case at such obligation be totally or partially guaranteed by a bond; . . ."cralaw virtua1aw library

"That on or about the 16th day of August, 1947, in the City In other words, petitioner is charged with the
of Manila, Philippines, the said accused did then and there misappropriation of funds held by him in trust and with the
wilfully, unlawfully and feloniously defraud one William obligation to return the same. Upon the other hand, the
Quasha in the following manner, to wit: the said accused Court of Appeals convicted him of swindling by means of
received from the said William Quasha the sum of false pretenses, under paragraph 2(a) of said Article 315,
P6,000.00 for the purpose of buying for the latter rattan which punishes estafa committed.
and other forest products from the provinces, under the
express obligation of delivering the said articles, if bought "2. By means of any of the following false pretenses or
on or before August 31, 1947, or to return the said amount fraudulent acts executed prior to or simultaneously with the
if unable to buy also on or before August 31, 1947, but the commission of the
said accused, once in possession of the same and far from
complying with his aforesaid obligation, and in spite of "(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property, credit, said so, instead of making to Quasha said statement, which
agency, business or imaginary transaction or by means of like his conduct prior and subsequently thereto, implies that
other similar deceits."cralaw virtua1aw library he had misappropriated the funds entrusted to his custody.

This offense is, however, entirely different and distinct from It is urged, that there can be no estafa without a previous
that described in paragraph 1(b) quoted above. Moreover, demand, which allegedly has not been made upon herein
some of the essential elements of the offense defined in petitioner, but the aforementioned query made to him by
said paragraph 2(a) are not alleged in the information Quasha, in the Manila Hotel, was tantamount to a demand.
herein. For instance, there is no averment therein of any Besides, the law does not require a demand as a condition
"false pretenses or fraudulent acts executed prior to or precedent to the existence of the crime of embezzlement. It
simultaneously with the commission of the fraud," which so happens only that failure to account, upon demand for
distinguishes said offense from that referred to in paragraph funds or property held in trust, is circumstantial evidence of
1(b), the main characteristic of which is "unfaithfulness or misappropriation. The same way, however, be established
abuse of confidence", and this is the essence of the crime by other proof, such as that introduced in the case at bar.
charged in said information. The allegations thereof are
such as not to permit petitioner’s conviction for estafa under The cases of People v. Evangelista (69 Phil., 583) and U.S.
said paragraph 2(a), without violating his constitutional v. Bleibel (34 Phil., 227), relied upon by the petitioner, are
right to be informed of the nature and cause of the not in point. The offense charged in the Evangelista case
accusation against him. was not malversation, but of estafa, through false
pretenses. The Bleibel case involved a commission agent
However, the findings of fact made in the decision of the who received from his employer, some goods, worth
Court of Appeals clearly show that the sum of P6,000 P538.11, with the obligation to return said goods, or the
belonging to Quasha had been misappropriated by value thereof. Subsequently, the employer or principal
petitioner herein, for he disappeared soon after receipt of made a written demand for compliance with said obligation,
said sum, in August, 1947, and when, in 1948, Quasha but the letter of demand did not appear to have reached the
found him at the Manila Hotel and inquired what he had knowledge of Bleibel. He having, accordingly, failed to
done with his (Quasha’s) money, petitioner merely said — answer it, the principal filed against him a complaint for
in the words of the Court of Appeals — "that there was no embezzlement. Soon thereafter, but before the filing of the
use telling what happened", but that he would try to pay it corresponding information, Bleibel delivered said sum of
back. Had said money been invested in rattan which later P538.11 to his principal. It was held that mere delay in
on was spoiled, as appellant tried to prove, he would have accounting for said amount, without competent proof of
misappropriation thereof, does not constitute
embezzlement. Besides, the principal owed Bleibel P143 for
salary, and the former had no right to hold the latter
criminally liable for said P538.11, "without first having made
a settlement of accounts."cralaw virtua1aw library

Apart from the fact that none of these circumstances

obtains in the case at bar, a demand was, as above stated,
made in the Manila Hotel upon the petitioner, and, worse
still, the latter then impliedly, but, clearly, admitted that he
had spent complainant’s money for his (petitioner’s) own
personal benefit.

Wherefore, modified only in the sense that petitioner

George L. Tubb is guilty of embezzlement under Article 315,
paragraph 1(b), of the Revised Penal Code, the decision
appealed from is hereby affirmed in all other respects, with
costs against said petitioner. It is so ordered.

Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo,

Labrador, Reyes, J.B.L., Endencia, and Felix, JJ., concur.

FIRST DIVISION execution thereof; or that if he fails to perform
any of these conditions will pay to the Republic of
G.R. No. L-64731 October 26, 1983 the Philippines the sum of Thirty Thousand Pesos
(P30,000.00) ... (Emphasis supplied)
vs. After his arraignment, Rodolfo Valdez, Jr., thru his counsel,
THE PRESIDING JUDGE, REGIONAL TRIAL COURT, manifested orally in open court that he was waiving his right
FIRST 'JUDICIAL REGION, BRANCH XLV, URDANETA, to be present during the trial. The prosecuting fiscal moved
PANGASINAN, and RODOLFO VALDEZ, that respondent Rodolfo Valdez, Jr. be compelled to appear
JR., respondents. and be present at the trial so that he could be Identified by
prosecution witnesses. Respondent judge in his Order,
The Solicitor General for petitioner. dated April 15, 1983, sustained the position of private
respondent who cited the majority opinion in the case of
Alfonso C Bince Jr. for private respondent.
Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al.,
63 SCRA 546, and held that "he cannot be validly compelled
RELOVA, J.: to appear and be present during the trial of this case."

Private respondent Rodolfo Valdez, Jr. is charged in Criminal Hence, this petition for certiorari with prayer, among others,
Case No. U-3439 with murder before the Regional Trial (1) that pending the resolution of this case on the merits, a
Court of Pangasinan, First Judicial Region, Branch XLV in writ of preliminary injunction be issued to restrain
Urdaneta. He is out on a P30,000.00 bail bond which respondent judge from enforcing his Order dated April 15,
contains the following conditions — 1983; (2) that said Order dated April 15, 1983 of
respondent judge be annulled and set aside and (3) that
The aforenamed, as bondsmen, hereby jointly private respondent Rodolfo Valdez, Jr. be compelled to
and severally undertake that the above- appear during the trial of Criminal Case No. U-3439
mentioned defendant, as principal therein will whenever required to do so by the trial court.
appear and answer the charge above-mentioned
in whatever Court it may be tried, and will at all On August 10, 1983, We resolved "(a) to require the
times hold himself amenable to the orders and respondents to file an ANSWER thereto, within ten (10)
processes of the Court, and if convicted, will days from notice hereof, and not to move to dismiss the
appear for judgment, and render himself to the petition; and (b) to ISSUE effective immediately and until
further orders from this Court, a TEMPORARY RESTRAINING notwithstanding the absence of the accused
ORDER enjoining the respondent Judge from enforcing the provided that he has been duly notified and his
Order dated April 15, 1983, allowing the accused, Rodolfo failure to appear is unjustified.
Valdez, Jr. to totally waive his presence during the trial of
Criminal Case No. U-3439, entitled "People of the It is the submission of private respondent that the above
Philippines, Plaintiff, versus Rodolfo Valdez, Jr., alias Niño, constitutional provision grants him absolute right to absent
et al., Accused," of the Regional Trial Court of Pangasinan, himself from the trial of the case filed against him despite
Branch XLV at Urdaneta, Pangasinan." (p. 17, Rollo) the condition of his bail bond that he "will at all times hold
himself amenable to the orders and processes of the Court."
Private respondent filed his answer to the petition and, after
deliberation, We resolved to give due course to the petition In the case of People vs. Prieto, Sr., 84 SCRA 198, it was
and to decide the issue, without requiring memorandum held that "[r]espondent Judge unfortunately assumed that
from the parties, as to whether or not respondent Rodolfo thereby a defendant was thus conferred a fundamental right
Valdez, Jr..despite its waiver of his right to be present, can to ignore the terms of the bond posted by him in
he compelled by the trial court to be present during the trial accordance with his constitutional right to bail. The present
of Criminal Case No. U-3439 so that he car, be Identified by Constitution certainly has made a dent on the traditional
the witnesses for the prosecution and correct concept of a bail as given to allow the release of
a person in the custody of the law on condition that he
Article IV of the 1973 Constitution, Section 19 thereof would appear before any court whenever so required. Upon
provides — failure to do so, the warrant of arrest previously issued can
be a sufficient justification for his confinement further,
SEC. 19. In all criminal prosecutions, the accused in Aquino, Jr. vs. Military Commission No. 2, et al., 63 SCRA
shall be presumed innocent until the contrary is 546, the late Chief Justice Fred Ruiz Castro, in his
proved, and shall enjoy the right to be heard by concurring and dissenting opinion, clearly stated that "the
himself and counsel, to be informed of the nature accused may waive his presence in the criminal proceedings
and cause of the accusation against him, to have except at the stages where Identification of his person by
a speedy, impartial, and public trial, to meet the the prosecution witnesses is necessary. I might agree to the
witnesses face to face, and to have compulsory proposition of 'total' waiver in any case where the accused
process to secure the attendance of witnesses agrees explicitly and unequivocally in writing signed by him
and the production of evidence in his behalf. or personally manifests clearly and indubitably in open court
However, after arraignment, trial may proceed and such manifestation is recorded, that whenever a
prosecution witness mentions a name by which the accused
is known, the witness is referring to him and to no one
else." Stated differently, the 1973 Constitution now
unqualifiedly permits trial in absentia even of capital
offenses, provided that after arraignment he may be
compelled to appear for the purpose of Identification by the
witnesses of the prosecution, or provided he unqualifiedly
admits in open court after his arraignment that he is the
person named as the defendant in the case on trial. Reason
for requiring the presence of the accused, despite his
waiver, is, if allowed to be absent in all the stages of the
proceedings without giving the People's witnesses the
opportunity to Identify him in court, he may in his defense
say that he was never Identified as the person charged in
the information and, therefore, is entitled to an acquittal.

Furthermore, it is possible that a witness may not know the

name of the culprit but can Identify him if he sees him
again, in which case the latter's presence in court is

ACCORDINGLY, the petition is granted and the assailed

Order, dated April 15, 1983, of respondent judge is hereby
ANNULLED and SET ASIDE, and the restraining order
enjoining said respondent judge from enforcing his appealed
order is made permanent.


SECOND DIVISION specifically of his right to be informed of the nature and
G.R. No. L-45667 June 20, 1977 cause of the accusation against him and of his right to be
MANUEL BORJA, petitioner, heard by himself and counsel. 4 Ther was thus, at the very
vs. least, a graveabuse of discretion. The Solicitor
HON. RAFAEL T. MENDOZA, Judge of the Court of First General, when asked to comment, agreed that the

Instance of Cebu (Branch VI) and HON. ROMULO R. procedural defect was of such gravity as to render void the
SENINING, Judge of the City Court of Cebu (Branch decision of the City Court affirmed by the Court of First
I), respondents. Instance. The comment was considered as answer, with the
Hermis I. Mopntecillo for petitioner. case being submitted for decision.
Solicitor General Estelito P. Mendoza, Assistant Solicitor
Jose F. Racela, Jr. and Solicitor Carlos N. Ortega for Respect for the constitutional rights of an accused as
respondents. authoritatively construed by this Court, duly taken note of in
FERNANDO, J.: the comment of the Solicitor General, thus calls for the
The jurisdictional infirmity imputer to respondent Judge grant of the writ of certiorari prayed for.
Romulo R. Senining of the City of Cebu which was not
remedied by respondent Judge Rafael T. Mendoza of the 1. The plea of petitioner to nullify the proceedings had in
Court of First Instance of Cebu in this certionrari proceeding the criminal case against him finds support in the
was the absence of an arrainment of petitioner Manuel procedural due process mandate of the Constitution. It
Borja, who was accused of slight physical injuries. This requires that the accused be arraigned so that he may be
notwithstanding respondent Judge Senining proceeded with informed as to why he was indicted and what penal offense
the trial in abssentia and thereafter, in a decision he has to face, to be convicted only on a showing that his
promulgated on August 18, 1976, found him guilty of such guilt is shown beyond reasonable doubt with full opportunity
offense and sentenced him to suffer imprisonment for a to disprove the evidence against him. Moreover, the
period of twenty days of arrestomenor. 1 Thereafter, an sentence to be imposed in such a case is to be in
appeal was duly elevated to the Court of First Instance of accordance with a valid law. 6 This Court, in People v.
Cebu presided by respondent Judge Mendoza. 2 It was then Castillo, 7speaking through Justice De Joya and following
alleged that without any notice to petitioner and without the language of the American Supreme Court, Identified due
requiring him to submit his memorandum, a decision on the process with the accused having "been heard in a court of
appealed case was rendered on November 16, 1976 competent jurisdiction, and proceeded against under the
petitioner that the failure to arraign him is violative of his orderly processes of law, and only punished after inquiry
constitutional right to procedural due process, 3 more and investigation, upon notice to him, with an opportunity
to be heard, and a judgment awarded with the authority of mobilized against him. An arraignment serves that purpose.
a constitutional law, ..." 8 An arraignment thus becomes Thereafter he is no longer in the dark. It is true, the
indispensable as the means "for bringing the accused into complaint or information may not be worded with sufficient
court and notifying him of the cause he is required to meet clarity. He would be in a much worse position though if he
... " 9 Its importance was stressed by Justice Moreland as does not even have such an opportunity to plead to the
early as 1916 in the leading case of United States v. charge. With his counsel by his side, he is thus in a position
Binayoh. 10 He pointed out that upon the accused being to enter his plea with full knowledge of the consequences.
arraigned, "there is a duty laid by the Code [now the Rules He is not even required to do so immediately. He may move
of Court] upon the court to inform [him] of certain rights to quash. What is thus evident is that an arraignment
and to extend to him, on his demand, certain others. This assures that he be fully acquainted with the nature of the
duty is an affirmative one which the court, on its own crime imputed to him and the circumstances under which it
motion, must perform, unless waived." 11 To emphasize its is allegedly committed. It is thus a vital aspect of the
importance, he added: "No such duty, however, is laid on constitutional rights guaranteed him. It is not useless
the court with regard to the rights of the accused which he formality, much less an Idle ceremony.
may be entitled to exercise during the trial. Those are rights
which he must assert himself and the benefits of which he 3. An equally fatal defect in the proceeding had before
himself must demand. In other words, in the arraignment respondent Judge Senining was that notwithstanding its
the court must act of its own volition, ..." 12 In the terse and being conducted in the absence of petitioner, he was
apt language of the Solicitor General: "Arraignment is an convicted. It was shown that after one postponement due to
indispensable requirement in any criminal his failure to appear, the case was reset for hearing. When
prosecution." 13
Procedural due process demands no less. that date came, December 14, 1973, without petitioner
being present, although his bondsmen were notified,
2. Nor is it only the due process guarantee that calls for the respondent Judge, as set forth in the comment of the
accused being duly arraigned. As noted, it is at that stage Solicitor General, "allowed the prosecution to present its
where in the mode and manner required by the Rules, an evidence invoking Letter of Instruction No. 40. Only one
accused, for the first time, is granted the opportunity to witness testified, the offended party herself, and three
know the precise charge that confronts him. It is imperative documents were offered in evidence after which the
that he is thus made fully aware of Possible loss of freedom, prosecution rested its case. Thereupon, respondent City
even of his life, depending on the nature of the crime Court set the promulgation of the decision on December 28,
imputed to him. At the very least then, he must be fully 1973." 14 It could then conclude: :Verily the records clearly
informed of why the prosecuting arm of the state is show that petitioner was not arraigned at all and was not
represented by counsel throughout the whole proceedings in "However, after arraignment, trial may proceed
the respondent City Court." 15 It is indisputable then that notwithstanding the absence of the accused provided that
there was a denial of petitioner's constitutional right to be he has been duly notified and his failure to appear is
heard by himself and counsel. As categorically affirmed by unjustified." 21 As pointed out then by the Solicitor General,
Justice Ozaeta for this Court in the leading case of Abriol v. the indispensable requisite for trial in absentia is that it
Homeres: 16 "It is the constitutional right of the accused to should come "after arraignment." The express mention in
be heard in his defense before sentence is pronounced on the present Constitution of the need for such a step
him." 17 He added further that such "constitutional right is emphasizes its importance in the procedural scheme to
inviolate." 18 There is no doubt that it could be waived, but accord an accused due process. Without the accused having
here there was no such waiver, whether express or implied. been arraigned, it becomes academic to discuss the
It suffices to refer to another leading case, People v. applicability of this exception to the basic constitutional
Holgado, 19 where the then Chief Justice Moran emphatically right that the accused should be heard by himself and
took note of the importance of the right to counsel: "In counsel.
criminal cases there can be no fair hearing unless the
accused be given an opportunity to be heard by counsel. 5. Nor did the appeal to the Court of First Instance presided
The right to be heard would be of little avail if it does not by respondent Judge Mendoza possess any curative aspect.
include the right to be heard by counsel. Even the most To quote anew from the comment of the Solicitor General:
intelligent or educated man may have no skill in the science "Respondent Court of First Instance ... considered the
of the law, particularly in the rules of procedure, and, appeal taken by the petitioner as waiver of the defects in
without counsel, he may be convicted not because he is the proceedings in the respondent City Court. Precisely, the
guilty but because he does not know how to establish his appeal itself is tantamount to questioning those defects. In
innocence." 20 With the violation of the constitutional right fact, the Memorandum in support of the appeal
to be heard by himself and counsel being thus manifest, it is unmistakably raised as error the absence of petitioner at
easily understandable why the Solicitor General agreed with the arraignment and cited jurisprudence, commentaries and
petitioner that the sentence imposed on him should be set the rules to bolster his position. Specifically, the absence of
aside for being null. an arraignment can be invoked at anytime in view of the
requirements of due process to ensure a fair and impartial
4. The provision in the present Constitution allowing trial to trial." 22
be held in absentia is unavailing. It cannot justify the
actuation of respondent Judge Senining. Its language is WHEREFORE, the petition for certiorari is granted. The
clear and explicit. What is more, it is mandatory. Thus: decision of respondent Judge Romulo R. Senining dated
December 28, 1973, finding the accused guilty of the crime
of slight physical injuries, is nullified and set aside.
Likewise, the decision of respondent Judge Rafael T.
Mendoza dated November 16, 1976, affirming the aforesaid
decision of Judge Senining, is nullified and set aside. The
case is remanded to the City Court of Cebu for the
prosecution of the offense of slight physical injuries, with
due respect and observance of the provisions of the Rules of
Court, starting with the arraignment of petitioner.

FIRST DIVISION authorizing trial in absentia under certain
circumstances. The respondent judge denied the motion,

G.R. No. L-66469 July 29, 1986 however, and suspended all proceedings until the return of
the accused.6 The order of the trial court is now before us
PEOPLE OF THE PHILIPPINES and ALFREDO on certiorari and mandamus.7
QUIJANO, petitioners,
vs. The judge erred. He did not see the woods for the trees. He
HON. BERNARDO SALAS (In his capacity as Presiding mistakenly allowed himself to be tethered by the literal
Judge of RTC, Cebu, Branch VIII), MARIO ABONG, reading of the rule when he should have viewed it from the
ALFREDO DE LEON, ERIWADWIN MONTEBON, ROMEO broader perspective of its intendment.
The rule is found in the last sentence of Article IV, Section
Basilio E. Duaban for accused. 19, of the 1973 Constitution, reading in full as follows:

Section 19. In all criminal prosecution, the

CRUZ, J.: accused shall be presumed innocent until the
contrary is proved and shall enjoy the right to be
Mario Abong was originally charged with homicide in the heard by himself and counsel, to he informed of
Court of First Instance of Cebu but before he could be the nature and cause of the accusation against
arraigned the case was reinvestigated on motion of the him, to have a speedy, impartial, and public trial,
prosecution.1 As a result of the reinvestigation, an amended to meet the witnesses face to face, and to have
information was filed, with no bail recommended, to which compulsory process to secure the attendance of
he pleaded not guilty.2 Trial commenced, but while it was in witnesses and the production of evidence in his
progress, the prisoner, taking advantage of the first behalf. However, after arraignment, trial may
information for homicide, succeeded in deceiving the city proceed notwithstanding the absence of the
court of Cebu into granting him bail and ordering his accused provided that he has been duly notified
release; and so he escaped.3 The respondent judge, and his failure to appear is unjustified.
learning later of the trickery, cancelled the illegal bail bond
and ordered Abong's re-arrest.4 But he was gone. The purpose of this rule is to speed up the disposition of
Nonetheless, the prosecution moved that the hearing criminal cases, trial of which could in the past be indefinitely
continue in accordance with the constitutional provision deferred, and many times completely abandoned, because
of the defendant's escape. The old case ofPeople v. The right to be present at one's trial may now be waived
Avanceña 8 required his presence at certain stages of the except only at that stage where the prosecution intends to
trial which as a result, had to be discontinued as long as the present witnesses who will Identify the accused.9 Under
defendant had not re-appeared or remained at large. As his Section 19, the defendant's escape will be considered a
right to be present at these stages was then held not waiver of this right and the inability of the court to notify
waivable even by his escape, such escape thus operated to him of the subsequent hearings will not prevent it from
the fugitive's advantage, and in mockery of the authorities, continuing with his trial. He will be deemed to have received
insofar as the trial could not proceed as long as he had not due notice. The same fact of his escape will make his failure
been recaptured. to appear unjustified because he has, by escaping, placed
himself beyond the pale, and protection, of the law.
The doctrine laid down in that case has been modified by
Section 19, which now allows trial in absentia, Now, the Trial in absentia was not allowed in Borja v.
prisoner cannot by simply escaping thwart his continued Mendoza 10
because it was held notwithstanding that the
prosecution and possibly eventual conviction provided only accused had not been previously arraigned. His subsequent
that: a) he has been arraigned; b) he has been duly notified conviction was properly set aside. But in the instant case,
of the trial; and c) his failure to appear is unjustified. since all the requisites are present, there is absolutely no
reason why the respondent judge should refuse to try the
The respondent judge was probably still thinking of the old accused, who had already been arraigned at the time he
doctrine when he ruled that trial in absentia of the escapee was released on the illegal bail bond. Abong should be
could not be held because he could not be duly notified prepared to bear the consequences of his escape, including
under Section 19. He forgets that the fugitive is now forfeiture of the right to be notified of the subsequent
deemed to have waived such notice precisely because he proceedings and of the right to adduce evidence on his
has escaped, and it is also this escape that makes his failure behalf and refute the evidence of the prosecution, not to
to appear at his trial unjustified. Escape can never be a mention a possible or even probable conviction.
legal justification. In the past, his escape "rewarded" him by
postponing all further proceedings against him and in effect We admonish against a too-literal reading of the law as this
ultimately absolving him of the charge he was facing. Under is apt to constrict rather than fulfill its purpose and defeat
the present rule, his escape will, legally speaking, operate the intention of its authors. That intention is usually found
to Msdisadvantage by preventing him from attending his not in "the letter that killeth but in the spirit that vivifieth,"
trial, which will continue even in his absence and most likely which is not really that evanescent or elusive. As judges, we
result in his conviction. must look beyond and not be bound by the language of the
law, seeking to discover, by our own lights, the reason and
the rhyme for its enactment. That we may properly apply it
according to its ends, we need and must use not only
learning but also vision.

The trial judge is directed to investigate the lawyer who

assisted Mario Abong in securing bail from the city court of
Cebu on the basis of the withdrawn information for homicide
and to report to us the result of his investigation within
sixty days.

WHEREFORE, the order of the trial court dated December

22, 1983, denying the motion for the trial in absentia of the
accused is set aside. The respondent judge is directed to
continue hearing the case against the respondent Mario
Abong in absentia as long as he has not reappeared, until it
is terminated. No costs.


EN BANC charged. Following the arraignment, the respondent judge,
G.R. No. L-37933 April 15, 1988 Hon. Ramon E. Nazareno, set the hearing of the case for
FISCAL CELSO M. GIMENEZ and FEDERICO B. September 18, 1973 at 1:00 o'clock in the afternoon. All the
MERCADO, petitioners, acused including private respondent, were duly informed of
vs. this.
HON. RAMON E. NAZARENO, Presiding Judge, Court of
First Instance of Cebu and TEODORO DE LA VEGA, Before the scheduled date of the first hearing the private
JR., respondents. respondent escaped from his detention center and on the
The Solicitor General for petitioners. said date, failed to appear in court. This prompted the
Victor de la Serna for respondents. fiscals handling the case (the petitioners herein) to file a
motion with the lower court to proceed with the hearing of
GANCAYCO, J.: the case against all the accused praying that private
Two basic issues are raised for Our resolution in this petition respondent de la Vega, Jr. be tried in absentia invoking the
for certiorari and mandamus. The first is whether or not a application of Section 19, Article IV of the 1973 Constitution
court loses jurisdiction over an accused who after being which provides:
arraigned, escapes from the custody of the law. The other
issue is whether or not under Section 19, Article IV of the SEC. 19. In all criminal prosecution, the accused
1973 Constitution, an accused who has been duly tried shall be presumed innocent until the contrary is
in absentia retains his right to present evidence on his own proved, and shall enjoy the right to be heard by
behalf and to confront and cross-examine witnesses who himself and counsel, to be informed of the nature
testified against him. and cause of the accusation against him, to have
a speedy, impartial, and public trial, to meet the
The following facts are not in dispute: witnesses face to face, and to have compulsory
process to the attendance of witnesses and the
On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, production of evidence in his behalf. However,
Fernando Cargando, Rogelio Baguio and the herein private after arraignment trial may proceed
respondent Teodoro de la Vega Jr., were charged with the notwithstanding the absence of the accused
crime of murder. provided that he has been duly notified and his
failure to appear is unjustified. (Emphasis
On August 22, 1973 all the above-named. accused were supplied.) *
arraigned and each of them pleaded not guilty to the crime
Pursuant to the above-written provision, the lower court However, this was denied by the lower court in an Order
proceeded with the trial of the case but nevertheless gave dated November 22, 1973.
the private respondent the opportunity to take the witness
stand the moment he shows up in court. 1 Hence, this petition.

After due trial, or on November 6,1973, the lower court The respondent court, in its Order denying the Motion for
rendered a decision dismissing the case against the five Reconsideration filed by the herein petitioners, expressed
accused while holding in abeyance the proceedings against the opinion that under Section 19, Article IV of the 1973
the private respondent. The dispositive portion is as follows: Constitution, the private respondent, who was tried in
absentia, did not lose his right to cross-examine the
WHEREFORE, insofar as the accused Samson witnesses for the prosecution and present his
Suan Alex Potot, Rogelio Mula Fernando Cargando evidence. The reasoning of the said court is that under the

and Rogelio Baguio are concerned, this case is same provision, all accused should be presumed
hereby dismissed. The City Warden of Lapu-Lapu innocent. 4Furthermore the lower court maintains that
City is hereby ordered to release these accused if jurisdiction over private respondent de la Vega, Jr. was lost
they are no longer serving sentence of conviction when he escaped and that his right to cross-examine and
involving other crimes. present evidence must not be denied him once jurisdiction
over his person is reacquired. 5
The proceedings in this case against the accused
Teodoro de la Vega, Jr. who has escaped on We disagree.
August 30,1973 shall remain pending, without
prejudice on the part of the said accused to cross- First of all, it is not disputed that the lower court acquired
examine the witnesses for the prosecution and to jurisdiction over the person of the accused-private
present his defense whenever the court acquires respondent when he appeared during the arraignment on
back the jurisdiction over his person. 2 August 22,1973 and pleaded not guilty to the crime
charged. In cases criminal, jurisdiction over the person of
On November 16,1973 the petitioners filed a Motion for the accused is acquired either by his arrest for voluntary
Reconsideration questioning the above-quoted dispositive appearance in court. Such voluntary appearance is
portion on the ground that it will render nugatory the accomplished by appearing for arraignment as what
constitutional provision on "trial in absentia" cited earlier. accused-private respondent did in this case.

But the question is this — was that jurisdiction lost when failure to appear in court in any of the scheduled hearings
the accused escaped from the custody of the law and failed was given. Even the trial court considered his absence
to appear during the trial? We answer this question in the unjustified.
negative. As We have consistently ruled in several earlier
cases,6 jurisdiction once acquired is not lost upon the The lower court in accordance with the aforestated
instance of parties but continues until the case is provisions of the 1973 Constitution, correctly proceeded
terminated. with the reception of the evidence of the prosecution and
the other accused in the absence of private respondent, but
To capsulize the foregoing discussion, suffice it to say that it erred when it suspended the proceedings as to the private
where the accused appears at the arraignment and pleads respondent and rendered a decision as to the other accused
not guilty to the crime charged, jurisdiction is acquired by only.
the court over his person and this continues until the
termination of the case, notwithstanding his escape from Upon the termination of a trial in absentia, the court has the
the custody of the law. duty to rule upon the evidence presented in court. The court
need not wait for the time until the accused who who
Going to the second part of Section 19, Article IV of the escape from custody finally decides to appear in court to
1973 Constitution aforecited a "trial in absentia"may be had present his evidence and moss e the witnesses against him.
when the following requisites are present: (1) that there To allow the delay of proceedings for this purpose is to
has been an arraignment; (2) that the accused has been render ineffective the constitutional provision on trial in
notified; and (3) that he fails to appear and his failure to do absentia. As it has been aptly explained:
so is unjustified.
. . . The Constitutional Convention felt the need
In this case, all the above conditions were attendant calling for such a provision as there were quite a number
for a trial in absentia. As the facts show, the private of reported instances where the proceedings
respondent was arraigned on August 22, 1973 and in the against a defendant had to be stayed indefinitely
said arraignment he pleaded not guilty. He was also because of his non- appearance. What the
informed of the scheduled hearings set on September 18 Constitution guarantees him is a fair trial, not
and 19, 1973 and this is evidenced by his signature on the continued enjoyment of his freedom even if his
notice issued by the lower Court. 7 It was also proved by a guilt could be proved. With the categorical
certified copy of the Police Blotter 8 that private respondent statement in the fundamental law that his
escaped from his detention center. No explanation for his absence cannot justify a delay provided that he
has been duly notified and his failure to appear is which clearly reflects the intention of the framers of our
unjustified, such an abuse could be remedied. Constitution, to wit:
That is the way it should be, for both society and
the offended party have a legitimate interest in ... The absence of the accused without any
seeing to it that crime should not go justifiable cause at the trial on a particular date of
unpunished. 9 which he had notice shall be considered a waiver
of his right to be present during that trial. When
The contention of the respondent judge that the right of the an accused under custody had been notified of
accused to be presumed innocent will be violated if a the date of the trail and escapes, he shall be
judgment is rendered as to him is untenable. He is still deemed to have waived his right to be present on
presumed innocent. A judgment of conviction must still be said date and on all subsequent trial dates until
based upon the evidence presented in court. Such evidence custody in regained....
must prove him guilty beyond reasonable doubt. Also, there
can be no violation of due process since the accused was Accordingly, it is Our considered opinion, and We so hold,
given the opportunity to be heard. that an escapee who has been duly tried in absentiawaives
his right to present evidence on his own behalf and to
Nor can it be said that an escapee who has been tried in confront and cross-examine witnesses who testified against
absentia retains his rights to cross-examine and to present him.11
evidence on his behalf. By his failure to appear during the
trial of which he had notice, he virtually waived these rights. WHEREFORE, in view of the foregoing, the judgment of the
This Court has consistently held that the right of the trial court in Criminal Case No. 112-L in so far as it
accused to confrontation and cross-examination of suspends the proceedings against the herein private
witnesses is a personal right and may be waived.10 In the respondent Teodoro de la Vega, Jr. is reversed and set
same vein, his right to present evidence on his behalf, a aside. The respondent judge is hereby directed to render
right given to him for his own benefit and protection, may judgment upon the innocence or guilt of the herein private
be waived by him. respondent Teodoro de la Vega, Jr. in accordance with the
evidence adduced and the applicable law.
Finally, at this point, We note that Our pronouncement in
this case is buttressed by the provisions of the 1985 Rules No pronouncement as to costs.
on Criminal Procedure, particularly Section 1 (c) of Rule 115

THIRD DIVISION inflicting upon the latter serious physical injuries
which caused his death at the Tondo Medical
G.R. Nos. 100225-26 May 11, 1993 Center, Manila.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. Contrary to Law.
BACANI, PETER DOE and RICHARD In Crim. Case No. 8518-MN: 2

DOE, Accused, RAUL SANTOS y NARCISO, accused-

That on or about the 26th of May, 1989 in
Navotas, Metro Manila and within the jurisdiction
The Solicitor General for plaintiff-appellee
of this Honorable Court, the above-named
Valmonte Law Offices for accused-appellant.
accused, conspiring together and mutually helping
with one another, witout any justifiable cause,
with deliberate intent to kill, treachery and
Raul N. Santos appeals from a judgment of the trial court
evident premeditation did, then and there,
convicting him of murder and frustrated murder.
willfully, unlawfully and feloniously shoot
On 26 October 1989, appellant Santos was charged with the
crimes of murder with the use of unlicensed firearms and
use of firearms of unknown caliber, thereby
frustrated murder, under the following informations:
inflicting upon the latter serious physical injuries,
In Crim. Case No. 8517-MN: 1 thus performing all the acts of execution which
would have produced the crime of MURDER as a
That on or about the 26th day of May, 1989 in consequence but which nevertheless did not
Navotas, Metro Manila and within the jurisdiction produce it by reason of causes independent of the
of this Honorable Court, the above-named will of the herein accused, that is due to the
accused, conspiring, confederating together and timely, able and efficient medical attendance
mutually helping with one another, without any rendered to the victim at the Tondo Medical
justifiable cause, with deliberate intent to kill, Center, Manila.
treachery and evident premediation, did then and
there willfully, unlawfully and feloniously shoot Contrary to Law.
unlicensed firearms of unknown caliber, thereby
Three (3) other persons were charged in the same Accused Santos is also odered to proportionately
informations. Upon request of the City Prosecutor who had pay the heirs of GlicerioCupcupin the sum of
conducted a re-investigation of the cases, the trial court P30,000.00 for the loss of the latter's life and to
ordered the amendment of the information on 4 April 1990 pay said heirs, proportionately aldo, P100,000.00
so as to insert the name of one Mario Morales, in lieu of by way of indemnification for the expenses
John Doe, as a co-accused. Morales for whom a warrant of incurred in connection with Cupcupin's death.
arrest was issued, is, however, still at large, The identities
of the two (2) other accused remain unknown. Costs against accused in both cases.

At arraignment, Raul Santos entered a plea of not guilty. A SO ORDERED. 3

joint trial of the two 92) criminal cases ensued, culminating

in a judagment of conviction. The dispositive portion of this The relevant facts as found by the trial court are the
judgment reads as follows: following:

WHEREFORE, premises considerd, judgment is GlicierioCupcupin and Alberto Bautista were riding
hereby rendered finding accused Raul Santos on a jeep driven by the former on May 26, 1989.
guilty beyond reasonable doubt of the offenses At around 11:45 o'clock in the morning of said
charged against him in these cases. He is date, the jeep was at a stop at the corner of
accordingly sentenced to two (2) prision terms as Estrella and Yangco Streets in navotas, Metro
follows: Manila and was about to make a right turn when
two (2) persons armed with short guns
1) In Crim. Case No. 8517-MN for Murder, to life approached the jeep and fired at Cupcupin and
imprisonment, the death penalty which should Bautista. Cupcupin was hit several itmes in
have been imposed in this case having been different parts of his body and he died as a result
abolished under the present Constitution; of the multiple gunshot wounds he sustained
(Exh. V). Bautista sustained gunshot wounds, one
2) In Crim. Case No. 8518-MN for Frustrated at the left thigh, one in theloer abdomen, one at
Murder, to a prison term ranging from SIX (6) the back of the right foot and another at the back
YEARS OFprisioncorreccional, as minimum to of the body. Bautista was able to run away even
TWELVE (12) YEARS of prision mayor as as he was bieng fired upon. He took cover in a
maximum. store. The one firing the gun at thim was a man
he later identified to be accused Raul Santos. The because he was not provided with a gun. What he
other one which he saw similary firing his gun did was to run to headquarters to call for
was aiming at Cupcupin. He identified the man to policemen and when he returned to the scene of
be one Mario Morales. He added that he saw the shooting he learned that one of hte
Cupcupin hit by gunshots at the left side of the passengers of the jeep was killed. He learned also
body near the waist which made Cupcupin fall-off that the slain man was killed. He learned also that
the steering wheel. After running away, Bautista the slain man was GlicerioCupcupin and that his
could not remember anymore what else companion was Alberto Bautista alias "Tiwa".
happened. He could not rmember anymore what Bohol also added that tere were two (2) other
else happened. He at thim and Cupcupin. After persons who were also firing at the passengers of
hearing a shout that the ambushers were no the jeep although he did not recognize these two
longer around, he learned that a woman (2) other persons. After the arrest of accused
bystander was hit and was boarded on a jeep to Santos, Bohol was called to the police station and
be brought to the hospital. He was boarded on through a one-way mirror he was able to identify
said jeep too but later transferred to was brought accused Santos as one of the persons who shot
to the Martinez General Hospital and to the Mary Cupcupin and Bautista. Bohol also gave a sworn
Jonston hospital where he was treated. Bautista statement to the police (Exh. A).
was oeporated on (Exhs. B, B-1, C, D and E).
Upon the apprehensionof accused where he On cross-examination, Bohol admitted that at the
picked out from a line-up accused Raul Santos. In time of the shooting he was at the Jim Bread
another line-up, he also picked out accused Store talking to someone. When he heard
Morales. Bautista also gave a sworn statement gunshots thier guns at the same time at the jeep.
narrating the shooting incident (Exh. F). He added that the accused was arrested some
months later in connectiion with another shooting
Police Aide Victorino Bohol was on duty and incident wherein Santos was suspected of
directing traffic at the corner of Plaza Rizal and involvement. He confirmed that Bautista was
Estrella Streets when he heard gunshots. When bieng shot at while running away from the place.
he looked around the saw two 92) persons who
were holding Cal. 45 pistols firing at persons on Cpl. SabinoPatood of the Navotas Police delcared
board a stainless steel owner jeep. Bohol was not that he was investigating a shooting incident
able to approach the men firing their guns which resulted in the death of one Abudl Rosas
wherein the suspect was accused Santos when he The trial court found that the accused Raul Santos had been
was tipped by police intelligence operatives that identified positively by the surviving vicitm of the shooting
Santos was involved in the ambush of Cupcupin. incident — Alberto Bautista, and by teh Traffic Aide who had
This made him conduct further investigation by witnessed the execution of the crime — Victorino Bohol. The
calling for Bautista and Bohol. Patood also defensse of alibi offered by the accused and supported by
interviewed Santos who admitted his participation the testimonies of a friend and a sister, was rejected as
inthe ambush to him. He did not take any written weak and unavailing. As noted, a judgment of conviction
statement from accused Santos because there followed.
was nocounsel available at that time and because
Santos was not willing to give any written Inhis appeal, Raul Santos assings the following as errors
statement. committed by the trial court:

Dr. Maximo Reyes of the NBI Medico Legal i the lower court erred in holding that accused's
Division performed an autorpsyonthecadaver of identification by proscution's witnesses was
victim Cupcupin and found out that the latter "positive" and, and, therefore it erred when it
sustained nineteen (19) gunshot wounds in rejected accused's defense of alib.
different parts of his body. The cause of death
gunshot wounds. Dr. Reyes added that the ii the lower court erred in considering one of the
assailants were probably at the left side of the two cases (not the instant ones) filed against the
victim as they were shooting at the latter with the accused in holding also for his guilt.
victim possibly seated at the time he was shot
iii the lower court erred in convicting the
and hit.
The victim's wife Lucia Cupcupin declared that
In respect of the first assigned error, appellant Santos
P100,000.00 was spent in connection with the
contendes that the testimonies of the principal prosecution
death of her husband who was earning P5,000.00
witnesses do not coform with the "knowledge and common
a month as a businessman dealing in junk
experience of mankind." Appellant argues that the two (2)
materials and
prosecution witnesses, the victim Bautista and Police Aide
marbale. 4
Bohol, testified that they saw the accused for the first time
in their lives when the crime was committed and yet

identified him as one of the gunmen five (5) months later in wounds) by reason of his quick reflexes, had every reason
the Police headquarters in Navotas. The ambuscade and the to remember the faces of those whom he saw firing at the
slaying of GlicierioCupcupin happened on 26 May 1989; jeep and at himself. This has been recognized a number of
appellant Santos was identified at the police station on 25 times in ouir case law. In People v. Jacolo, et al., 6 the
October 1989. Appellant argues that this lapse of time was Couirt said:
unreasonable, which, when coupled with the brief, limited
and obstructed view which the prosecution witnesses had of [W]hile evidence as to the identity of the accused
the gunmen at the time of the shooting, casts serious doubt as the person who committed the crime should be
on the accuracy and reliabitlity of the identification by the carefully analyzed, . . . "were the conditions of
witnesses. visibility are favorable and the witness does not
appear to be biased againsteh man on the dock,
Appellant's argument does not persuade. his or her assertions as to the identity of the
malefactore should normally be accpeted. And
Police Aide Bohol was only abot twelve (12) armlengths this is more so where the witness is the victim or
away from teh ambush vehicle. The ambush slaying his near-relative, as in this case, because these
occurred under conditions of high visibility: the victim (people) usually strive to remember the faces of
Cupcupin was shot to death at 11:45 o'clock in the morning, the assailants." (Emphasis supplied.) 7
in good weahter, when the sun was almost at its zenith. On
cross-examination, Bohol stated that there were no passing Appellant Santos also contended that Police Aide Bohol
vehicles that blocked his view of the slaying of the victim as could not have had a clear view of the ambuscade and the
the vehicles stopped some distance away from the jeep shooting of Cupcupin since he (Bohol) was situated on the
when the shooting began. In addition, Bohol testified that left side of the gunmen. As observed by teh Solicitor
he saw one of teh gunmen take a wrist watch and a gun General, however, the trial court had pointed out that "if he
form Cupcupin's lifeless body. Clearly, Bohol had the [Bohol] was to the front right of the jeep" then he must
opportunity to observe the extraordinary and startling [have been] a little by the left side of the persons firing at
events which unfolded on the corner of two (2) busy streets the jeep . . ." 8 "Bohol's view, therefore," the Solicitor
almost at high noon, events which may be expected to General continued, "was not limited to the left side of the
leave a strong impression upon the minds of an eye- assilants, especially since he was able to see them [the
witnesses who, like Police Aide Bohol, had a duty to gunmen] move around the site of the ambush after the
maintain law and order. Alberto Bautista who had been [had] stopped firing, specifically when one of them stripped
riding on a jeep and hwoescped death (but not gunshot victim Cupcupin of his gun and jewelry and they all walked
away from the place."9 The trial court obviously concluded Appellant Santos makes two (2) additional arguments.
that Bohol had ample opportunity actually to observe tha Firstly, he complains that he was not afforded his right to
events on which he testified, and we find no basis for counsel int he course of the police line-up, at the police
overtunring this conclusion of the trial court. station where he was identified by the prosecution
witnesses. This argument, of course, assumes that during
In respect of the identification by Bautista, accused also the police line-up, accused was under custodial
suggests that Bautista had no real opoortunityto see and investigation, a stage which, per the appellant, began the
impress upon his memory the faces of the assailants. In his instant the police suspected Santos then had no lawyer
testimony, Bautista stated that two (2) men armed with present nor was one provided, his counsel argues, Santos's
handguns suddenly apporoached the jeep in which he and identification was "tainted" and inadmissible. The argument
Cupcupin were riding. He agreed that his attention had been is creative, but has no legal bais. In Gamboa v. Cruz, 10 the
"focused" (defense counsel's own language) on vehicles Court said that there is "no real need to afford a suspect the
passing along Estrella Street as Cupcupin maneuvered the serivce of counsel at police line-up," 11 a declaration
jeep to turn right at the corner and to head towards reiterated in People v. Loveria. 12 The customary practice is,
Navotas. When the assailants started shooting, Bautista of course, that it is the witness who is investigaged or
jumped from the jeep, was hit on the left thigh and other interrogated in the course of a police line-up and who gives
parts of the body, but managed to run for cover from a statement to the police, rather than the accused who is
repeated shots or bursts of gunfire. Bautista testified further not questioned at all at that stage. The Court is aware of
that he was shot by appellant Raul Santos while Morales the caveat in Gamboa. 13 But there is nothing in the record
pumped bullets into Cupcupin; that the gunmen fired at of this case which shows that in the course of the line-up,
Cupcupin and Bautista from close range, Morales being a the police investigators sought to extract any admission or
mere half an arm-length to the left of Cupcupin while confession from appellant Santos. The investigators did not
appellant Santos was about two (2) arm-lengths away from in fact interrogate appellant Santos during the line-up and
the ambushed jeep; and that Bautista saw his compaion, he remained silent after he had bee identified by Bautista
Cupcupin, slump on the steering wheel as the bullets and Bohol.
crashed into him. Once more, the trial court was led by the
above circumstances to conclude that Bautista had Appellant Santos's secondcontention is that there had bee
adequate oportunity to see appellant Santos and to retain "improper suggestiveness" in the course of the police line-
his face in his memory. We find no basis for rejecting this up amounting to an uncounselled confession. In effect,
factual conclusion of the trial court. defense counsel claims that Bautista and Bohol were
induced by the plice investigators to point to appellant
Santos as one of the gunmen. The record does not show We are not convinced, however, that the phrase "iyanpo"
that the police investigators had coached Bautista. Appellant constituted an "improper suggestion," certainly not in the
Santos's counsel directed the attention of this Court to a context of a situation where, as here, appellant Santos was
portion of Bohol's testimony during cross-examination, to identified successively by Bautista and Bohol from a group
wit: of person. We consider that the phrase "iyanpo" is too
cryptic. What that Court warned against in People v.
Atty. Valmonte: Acosta, 15 i.e., against an identification process that was
"pointedly suggestive, or generated confidence when there
Alright, that somebody who told you to go to the was noen, activated visual imagination, and all told,
office of Capt. Puzon you were informed that on subverted [a person's] reliablity as [an] eye-witness [..],"
the other side of the office of Capt. Puzon there has not been successfully shown in the case at bar.
was already the person whom they would like to
identfy? Appellant Santos next seeks to assail the credibility of
Bautista and Bohol by citing supposed inconsistencies
Victorino Bohol: between statements made in their affidavits before trial and
their testimony given in the course of the trial. Appellant's
Yes, sir.
counsel complains 16 that while witness Bohol could recall
Atty. Valmonte: the gunmen's general apperance, he could not remember
the kind of shoes that appellant Santos was wearing nor the
And was there somebody who asked color of their guns; that he had stated in his swon
you who among those in the statement that he had picked out appellant Santos from a
investigation room the person whom line-up consisting of seven (7) persons, while he testified in
you saw? open court that he had identified appellant when the later
was together with only one (1) detainee in the investigation
Victorino Bohol: froom of the police station; that Bohol had intiallystated
that Bautista was driving the jeep but on direct
No, sir. Somebody approached me and examination, he stated that it was Cupcupin instead who
said, iyanpo. But before answering, I had been driving the jeep; that in his sworn statement,
made a very careful look at the Bohol had claimed that he was directing traffic when he first
person.14 heard gunshots, but on cross-examination, stated that at
the point he was engaged in taking his merienda.
Close examination of the record will, however, show that In his second assignment of error, appellant Santos in effect
the supposed inconsistenceise adduced by appellant Santos questions the trial court for admitting a sworn statement by
are either non-existent or clearly minor and inconsequential one Ronaldo Guerrero (Exhibit "EE"), a witnesses in another
in character. The fact that witness Bohol might not have criminal case (Criminal Case No. 8117) where appellant
remembered the kind of shoes appellant Santos was Santos was also charged with the murder of one Daniel
wearing onthat violent occassion nor the color of the Nuguera which had taken place in the very same site where
gunmen's weapons, is clearly inconsequential. Close Bautista and Cupcupin were ambushed, i.e., at the corner of
scrutiny of the sworn statement of Bohol (Exhibit "A") does Yangco Street and Estrella Street, Malabon, Metro Manila.
not reveal any statement that he (Bohol) had picked out When the prosecution first presented the sworn statement
appellant Santos from a seven (7) - person line-up nor does of Guerrero in order to show criminal propensity on the part
the transcript show that witness Bohol had identified of appellant Santos, the defesne objected to admission of
appellant Santos when appellant was alone with only one such sworn statment; the trial court sustained the objection
detainee in the investigation room at the police and rejected the evidence for the purpose it was initially
station. 17 Appellant's counsel did not document his offered. However, the trial court admitted the same as
averments. Moreover, as pointed out by the Solicitor falling within one or more of the exceptions set out in
General, 18 whether a police line-up considted of two (2) or Section 34, Rule 130 of the Rules of Court, which reads:
seven (7) persons is actually immaterial since a police line-
up is not essential to a proper and positive Sec. 34. Similar Acts as Evifence. — Evidence that
identification. 19 Whether it was Bautista or Cupcupin who one did or didnot do a certain thing at one time is
had been driving the jeep and whether Bohol was direcitng not admissible to prove that he did or did not do
traffic or enjoying his merienda when the first gun shots the same or a similar thing at another time; but it
rang out, cannot be regarded as critical in nature; such may be received to prove a specific intent
questions do not detract from the basic facts that Bohol was or knowledge, identity, plan, system, shceme,
in a position and Bautista and saw both assailants and the habit, custom or usage and the like. (Empahsis
victims. The netrenched principle is that minro supplied).
inconsistencies in the testimony of a witness tend to
strengthen rather than to weaken the credibility of the Appellant Santos now complains that the affidavit of
witness as they erase any suspicion of rehearsed Ronaldo Guerrero was hearsay evidence, considering that
testimony. 20 the prosecution did not present Ronaldo Guerrero as a
witness during the trial. We consider that the trial court did
not commit reversible error in admitting the Guerrero
affidavit for the limited purpose for provign knowledge or Accused Raul Santos, after denying the
plan or shceme, and more specifically, that appellant knew accusations against him, insisted that he was on
that the particular corner of two (2) particular streets in the date and time that Cupcupin and Bautista
Manila was a good place to ambus a vehicle and its were ambushed somwhere in Ibaan, Batangas to
passenters. Appellant also had waived the hearsay which place he went on May 20, 1989, because
character of this evidence by failure seasonably to ojbect to his sister Teresita received a subpoena in a case
the admission of the affidavit; it is too late in that day to involving one ApolonioNuguera and which
raise the hearsay rule in the appellant's memorandum after subpoena was given to him by another sister
prosecution and defense had presented their respective named Isabel. Accused Santos claimed that he
cases and had made their repsective offers of was surprised and confused by said subpoena
evidence. 21 Finally, and in any cae, as pointed out by the (Exh. 2) and had to got to Batangas while his
Solicitor General, the exclusion of the Guerrero affidavit sisters are verifying the complaint against him.
would not result in any change in the result reache by the Accused Santos also maintained that from the
trial court. For that result is esentially and adequately based time he left the place on June 12, 1989, he
upon the positive identification of appellant Santos as one of remained continuously in said place.
the gunmen by Baustisa and Bohol.
That it took the police authorities five (5) months to locate
and apprehend appellant Santos who, it turned out, resided The testimony of accused Santos regarding his
close by the very locale of the ambush-slaying, did not in stay in Batangas was corroborated by Melinda
any way weaken the evidence of the prosecution of detract David in show house he stayed and by this sister
from the conclusions reached by the trial court. The length Isabel Santos. 23
of that period of time shows only that police procedures are
not always as efficient as they could be and that witnesses In respect of the weight properly given to a defense of a
are frequently reluctant to voluntee information to the alibi, the Court has, times beyond numbering, ruled that
police authorities in criminal cases, a point noted so such defense is weak most especially when established
frequently as to have become a matter of judicial notice. 22 exclusively or mainly by the accused himself and his
relatives and nto by independent and credible
Finally, we come to the defense of alibi which appellant persons, 24
and that such a defense will not prevail over the
Santos raised before the trial court and which was positive idenfication made by credible
recounted by the trial court in the following manner:
witnesses, 25 especially where the witness is the victim-
complainant himself.

WHEREFORE, for all the foregoing, we hold that the

judgment of conviction rendered by the trial court must be,
and it is hereby, AFFIRMED with the following modifications:
the civil indemnity payable to the heirs of GlicerioCupcupin
shall be INCREASED to P50,000.00; the penalty of life
imprisonment in Criminal Case No. 8517-MN shall be
CHANGED to reclusion perpetua, which is the proper
imposable penalty under the Revised Penal Code. Costs
against apellant.


THIRD DIVISION WHEREFORE, the Court hereby finds the accused
ALVIN LIQUEN y COROS guilty beyondreasonable
G.R. No. 97952 August 6, 1992 doubt Of violation of Section 4 of Republic Act No.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 6425, as amended, and pursuant to the said law
vs. hereby sentences him to suffer an imprisonment
ALVIN LIQUEN y COROS, accused-appellant. of RECLUSION PERPETUA and to pay thecosts.
The Solicitor General for plaintiff-appellee. The two match boxes of marijuana dried leaves
Public Attorney's Office for accused-appellant. subject of this charge are ordered confiscated and
forfeited in favor of the Government. 2
Alvin C. Liquen was prosecuted for violation of R.A. No. In his brief, appellant Liquen made the following assignment
6425, the Dangerous Drugs Act of 1972. The criminal of errors:
information alleged:
1 The court a quo gravely erred in admitting the
That on or about the 26th day of August, 1989, in peso bills and marijuana adduced in evidence by
the City of Zamboanga, Philippines, and within the prosecution.
the jurisdiction of this Honorable Court, the
above-named accused, not being 2. The court a quo erred in finding that the guilt
authorized by law, did then and there wilfully, of the accused-appellant for the crime charged
unlawfully and feloniously sell to Sgt. Pedro S. has been established beyond reasonable doubt. 3
Mamuad, a NARCOM agent, who posed as buyer,
The evidence of the prosecution tended to establish that on
two (2) match boxes containing dried marijuana
24 August 1989, the 9th Narcotics Command
leaves, knowing the same to be a prohibited drug.
("NARCOM") Regional Unit in Zamboanga City, received
Contrary to law. 1 information from a civilian informer that marijuana was
being sold at Sangali, Zamboanga City. Sgt. Pedro S.
At arraignment, accused Liquen entered a plea of not guilty, Mamuad, NARCOM, was dispatched the following day,
and the case proceeded to trial. In due course of time, the together with the civilian informer, to survey and observe
trial court rendered a decision convicting the accused and the locality identified. The two (2) proceeded to Sangali,
sentencing him as follows: Zamboanga City, and there they saw appellant Liquen
selling, at or near the vicinity of the JR Store, what they
presumed to be marijuana to a group of teenagers, each of Sgt. Mamuad opened the match boxes, inspected and
the group giving him payment therefor. Sgt. Mamuad did smelled the contents thereof, and satisfied that the boxes
not arrest Alvin Liquen at that time since he was then on a contained marijuana, gave the pre-arranged signal which
surveillance and observation mission. consisted of scratching the back of his head. Forthwith, the
rest of the team, Sgts. Foncardas, Alarcon and Francia went
On 26 August 1989, a team of NARCOM agents was formed inside the store, surrounded appellant Liquen and arrested
to entrap appellant Liquen. Sgt. Amos Foncardas, the team him, after introducing themselves as NARCOM agents. The
leader who was also the arresting officer, designated Sgt. team searched the body of appellant and recovered from
Mamuad to pose as buyer of marijuana. He was handed two the front right pocket of his pants the P40.00 in marked
(2) P10.00 bills and four (4) P5.00 bills, or a total amount of money received from Sgt. Mamuad. Appellant Liquen was
P40.00, which bills were previously marked, for use in thereafter brought to the NARCOM Headquarters for
purchasing marijuana. The other two (2) team members investigation. Sgt. Francia advised the team to place their
were Sgt. Alarcon and Sgt. Francia. initials on the top of each of the two (2) match boxes. The
two (2) boxes of marijuana were forwarded to the Philippine
At 2:00 o'clock p.m. of 26 August 1989, the team took a Constabulary ("PC") Crime Laboratory for examination and
privately-owned jeepney bound for Sangali, Zamboanga report. In Chemistry Record No. D-653-09 (Exhibit "A"), PC
City. When they were nearing the vicinity of the JR Store, Chemist Mrs. Athena Anderson stated that four (4) tests
Sgt. Mamuad saw appellant at the store. Sgt. Mamuad were conducted on the specimen contents of the boxes and
instructed the jeepney driver to park at a CAFGU check- all four (4) tests showed that the contents consisted of dried
point, some 100 meters away from the JR Store. Sgt. marijuana leaves.
Mamuad walked back towards the JR Store, followed closely
by the rest of his team. When Sgt. Mamuad reached the In his first assignment of error, appellant Liquen claims that
store, he approached appellant Liquen and struck up a the peso bills and marijuana confiscated from him should
conversation with appellant. Sgt. Mamuad indicated to not have been admitted in evidence against him since these
appellant his (Sgt. Mamuad's) intention to buy were the fruits of an illegal arrest and search conducted on
some "damo" (grass or marijuana) and gave appellant him. Liquen insists that he was not lawfully arrested by the
Liquen the marked peso bills. Appellant Liquen gave Sgt. NARCOM agents as he was not then committing any
Mamuad two (2) match boxes of marijuana, at the price of offense, but was, according to him, merely taking a snack at
P20.00 per box. the JR Store at the time he was arrested.

Appellant's first defense is bereft of merit. It has been held The second principal defense of appellant Liquen was that
many times by this Court that entrapment, or the he had been "framed" by the police team. He denied having
employment of ways and means of entrapping and catching sold marijuana to Sgt. Mamuad. The story that he gave
an offender in flagrante is no bar to prosecution and during the trial was that on the date and at the time
conviction, not being prohibited by law. 4 In the case at bar, mentioned in the information, he happened to be taking a
appellant Liquen having been caught in flagrante as a result snack at the JR Store when NARCOM agents who were then
of the "buy-bust operation," the police team was not only unknown to him arrived. One of the agents allegedly poked
authorized but indeed obligated to arrest appellant Liquen, a knife at his throat and dragged him towards a parked
even without a warrant of arrest. 5 Section 5 (a) of Rule 113 vehicle. He was forcibly placed inside the vehicle and
of the Revised Rules on Criminal Procedure, reads in part as brought to a place unfamiliar to him for investigation. The
follows: defense presented two (2) witnesses to support this story.

Sec. 5. Arrest without warrant; when lawful. — A The defense of "frame-up," like alibi, is a weak defense that
peace officer or a private person may, without a is easy to fabricate but difficult to prove. 7 Frame-up" as a
warrant, arrest a person: defense is probably more difficult to prove than alibi,
because of the presumption that public officers like NARCOM
(a) When, in his presence, the person to be agents had performed their official duty in a regular
arrested has committed, is actually committing, manner. 8 In the case at bar, there is more than sufficient
or is attempting to commit an offense; . . . evidence to show that appellant had indeed been caught in
flagrante by the NARCOM agents in the course of their "buy-
In respect of the claim that the body search conducted on bust operation." Appellant had physically delivered to Sgt.
appellant was unlawful because it had not been supported Mamuad the two (2) match boxes of marijuana leaves,
by a valid search warrant, it suffices to note that one of the pursuant to their agreement of purchase and sale. The
recognized exceptions to the rule that searches and seizures agreement and the prompt delivery of the marijuana made
must be supported by a valid search warrant, relates by appellant, constituted the sale that is punished by the
precisely to a search that is incidental to a lawful law. 9
arrest. 6 Thus, the seizure of the marked money and the
marijuana from appellant Liquen after his lawful arrest Appellant denigrates the prosecution's evidence as
without warrant cannot successfully be assailed as violative incredible, and describes the prosecution's "improbable
of the constitutional provision prohibiting unreasonable account of an alleged pusher plying his trade . . . at a public
searches and seizures.
place, in full view of inquisitive on-lookers and for a pittance store (People v. Khan, supra) along a street at
of P40.00 . . .," as unworthy of belief and credence. 10 1:45 p.m. (People v. Toledo, G.R. No. 67609,
November 22, 1985, 140 SCRA 259), and in front
Drug pushers are not normally very discriminating and of a house (People v. Policarpio, G.R No. 69844,
selective in the choice of the place where they peddle their February 23, 1988.) 12
illicit merchandise and that place frequently includes a
public place. 11 Indeed, the public character of a place does Experience shows that whether the poseur-buyer and the
not necessarily insure its avoidance as a venue for agents knew each other, is not material. What matters on a
prohibited sales by drug pushers; the public nature of the review of the judgment of conviction is not the level of pre-
place chosen or adopted may in fact serve to conceal and existing familiarity between the buyer and the seller of
disguise the nature of the transactions engaged in by drug prohibited drugs, but positive proof of the agreement and
peddlers. the delivery which consummates the sale of a prohibited
article. 13
In People v. Paco (supra), the Court rejected much the
same defense here put up by appellant Liquen, and said: Finally, appellant argues that because of certain
contradictions and inconsistencies in the testimonies of the
Drug-pushing when done on a small level as in prosecution witnesses, his guilt had not been proved
this case belongs to that class of crimes that may reasonable doubt. The supposed inconsistencies were the
be committed at anytime and at any place. After following:
the offer to buy is accepted and the exchange is
made, the illegal transaction is completed in a few Prosecution witness Sgt. Mamuad declared that
minutes. The fact that the parties are in a public accused appellant was sitting inside JR Store
place and in the presence of other people may not when the former approached the latter and
always discourage them from pursuing their transacted the alleged sale of marijuana. (TSN, p.
illegal trade as these factors may even serve to 16, October 17, 1989) On the other hand, Sgt.
camouflage the same. Hence, the Court has Foncardas testified that he saw Sgt. Mamuad
sustained the conviction of drug pushers caught gave the money to Liquen outside the store.
selling illegal drugs in a billiard hall (People v. (TSN, p. 20, October 19, 1989)
Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA
329; People v. Sarmiento, G.R. No. 72141, It seems quite odd that the arresting team could
January 12, 1987, 147 SCRA 252), in front of a not even agree as to the physical appearance and
name of their alleged informer. While Sgt. Finally, the Court notes that the trial court found the
Mamuad testified that the civilian testimony of the police officers before the trial court to have
informer, alias Mario, stands at 5'6" with short- been straightforward and credible. Appellant did not even
trimmed hair (TSN, p. 21, October 17, 1989), try to show that he was known to the police officers
Sgt. Foncardas described Mario as 5'3" in height involved prior to his arrest. There was in addition no proof
and short-haired (TSN, p. 12, October 19, 1989), of any evil motive on the part of the policemen that might
and latter declared that the name of the informer have led them to extort money and falsely to attribute to
is Jeffrey. (TSN, p. 16, October 18, 1989) Sgt. appellant a serious criminal offense. Thus, appellant was
Alarcon for his part described Mario as 5'4" in simply unable to overcome the presumption that the
height and long-haired. (TSN, p. 21, 1989). members of the police team which arrested him had acted
in the regular performance of their public duty. 16
According to Sgt. Foncardas, he instructed Sgt.
Mamuad to buy two (2) match boxes of marijuana It has not escaped the attention of the Court that the trial
with the P40.00 he gave to the latter (TSN, p. 18, court imposed upon appellant only the penalty of reclusion
October 19, 1989), however, Sgt. Mamuad stated perpetua, (which should be life imprisonment). The trial
that he did not know how much marijuana the court, in other words, failed to apply completely the penalty
amount of P40.00 can buy (TSN, p. 25, October prescribed in Section 4 of R.A. No. 6425, as amended,
17, 1989) when besupposedly conducted which reads as follows:
surveillance and acted as poseur-buyer during the
buy-bust operation. 14 Sec. 4. Sale, Administration, Delivery, Distribution
and Transportation of Prohibited Drugs. — The
The Court, however, considers that alleged discrepancies penalty of life imprisonment to death and a fine
relating to (a) whether the purchase of the prohibited drug ranging from twenty thousand to thirty thousand
took place inside or outside the JR Store in Sangali, pesosshall be imposed upon any person who,
Zamboanga City; (b) the precise physical appearance and unless authorized by law, shall sell, administer,
height of the police informer; and (c) whether the buyer deliver. give away to another, distribute, dispatch
knew how much marijuana the amount of P40.00 could buy, in transit or transport any prohibited drug, or
all deal with minor details and do not adversely impact upon shall act as a broker in any of such transactions.
the credibility of the prosecution's witnesses nor upon the If the victim of the offense is a minor, or should a
trustworthiness of the testimony offered by them. 15 prohibited drug involved in any offense under this
Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein
provided shall be imposed. (Emphasis supplied)

Under the above quoted provision, both life

imprisonment and a fine ranging from P20,000.00 to
P30,000.00 must be imposed in case of conviction. Since
appeal by an accused who has been convicted in a criminal
case throws open the whole case for review, including
modification and increase of the imposable penalty, 17 the
Court must now impose upon appellant a fine of P20,000.00
in addition to the penalty of life imprisonment.

WHEREFORE, the decision of the trial court dated 31

January 1990 is hereby AFFIRMED with the following
MODIFICATIONS: the penalty properly imposable is
not reclusion perpetua which is different juridically from the
correct penalty of life imprisonment. The imposable penalty
must include a fine of P20,000.00. Accordingly, the penalty
of life imprisonment is hereby IMPOSED, plus a fine of
P20,000.00. Costs against appellant.


The finger of suspicion pointed to accused-appellant Narciso
EN BANC Pizarro, son-in-law of the victims, because among the
G.R. No. L-36445 August 28, 1984 relatives of the deceased, he was the only one who objected
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, to the wish of the victims' family that they be buried face
vs. downward. This desire was due to the folks' belief that the
NARCISO PIZARRO, defendant-appellant. ghost of the victims would not make the killer sleep if they
The Solicitor General for plaintiff-appellee. were to be interred face downward.
Julie David Feliciano for defendant-appellant.
Later, LeonilaTaban, a sister-in-law of appellant, told PC
RELOVA, J.: Sgt. Francisco Vinagrera that the firearm of her deceased
Automatic review of the decision of the then Court of First husband had been taken by the appellant. This firearm was
Instance of Cagayan, in Criminal Case No. 124-S (71), a bulldog, gauge 16, which fires multiple pellet bullet, and
sentencing herein appellant to double death, to pay the this was exactly the type of gun used by the murderer.
heirs of the victims the sum of P24,000.00 as indemnity, Likewise, Filomeno de los Santos testified that in the
P50,000.00 as moral damages and to pay the costs. evening of June 6, 1971 he was in the house of one
LibradaContapay situated near the road at Kinalian,
In the evening of June 6, 1971, spouses Teodoro Taban and Allacapan, Cagayan, when he heard the barking of dogs. He
Maria Pescador were killed inside their home at Kinalian, peeped through the window and saw the accused with a
Allacapan, Cagayan. They sustained gunshot and stab companion going to the direction of the house of the
wounds. The gunshot wounds were caused by a gun with Tabans. He even asked his nephew, Felipe Jose, who was
bullets containing many pellets; on the other hand, the stab also awakened by the barking of the dogs and was then
wounds were caused by a sharp pointed instrument. This urinating at their batalan, whether it was really the accused
was the post-mortem finding of Dr. Alfredo Berbano, the who was proceeding to the Taban's residence. Felipe Jose
Municipal Health Officer of Allacapan, who testified that the confirmed the Identity of appellant and even informed him
cause of death of spouses Teodoro Taban and Maria that accused Pizarro had a property dispute with Teodoro
Pescador was: Taban and even threatened to kill the latter. The two,
Filomeno de los Santos and Felipe Jose, went down and
Shock, Irreversible, Secondary to hemorrhage, followed appellant and his companion. They observed their
Acute, Internal and External, Secondary to movements, hiding behind banana plants from a distance of
Gunshot wound and stab wound, hypogastric and about fifty (50) meters. Suddenly, they heard gunshot
flank. (Exhibits "A" & "B", pp. 10 & 12, Record) followed by another, coming from the house of the victims.
They went nearer the Tabans' residence and saw two Narciso Pizarro was charged with the crime of double
persons going out of the batalan, one carrying a gun and murder.
the other a knife. Pizarro was one of the two.
In his defense, appellant Pizarro claims that he was in town
After Sgt. Vinagrera learned from Filomeno de los Santos in the morning of June 6, 1971. He returned home about
what had happened, he confronted the accused who denied seven o'clock in the evening. After supper, he went to bed
his presence at the place at that time, giving several between 8:00 and 9:00. He never left the house that
excuses and alibis. Later, however, he broke down and evening. The following day, Santiago Bartolome informed
confessed in detail the double murder he had committed. him about the death of his parents-in-law, Teodoro Taban
His statement was reduced in writing (Exhibits "C", "C-1" and Maria Pescador. Immediately thereafter, he and his
and "C-2") after which he was brought to Municipal Judge wife, Josefina, repaired to Kinalian and made inquiries
Alejandro Pagayatan of Allacapan, Cagayan. The judge read regarding the killers of the victims. ZosimoTaban, a 9-year
to appellant the contents of said Exhibits "C", "C-1" and "C- old nephew, told him that he did not recognize the killer and
2" and then asked if he understood everything stated could only describe him as a "bearded man, taller than
therein. Answering in the affirmative, appellant then signed himself (accused).
the statement and the oath was administered to him Judge
Pagayatan then signed the statement as the administering After several days, he was picked up by the police,
officer. A little later, Pizarro also admitted having taken the informing him that he was being suspected as the killer of
gun of the deceased husband of LeonilaTaban and said it his parents in-law. He professed innocence and completely
was the same gun he used in shooting the victims. He even denied the accusation. However, due to the maltreatment
pointed to the place where he buried it after the incident. received from the police, he finally gave way and decided to
execute the statements, Exhibits "C", "C-l " and "C-2" and
The gun (Exhibit "G") was recovered by the police at the Exhibits "E" and "E-1".
place pointed to by appellant. Thereafter, appellant was
brought again before Judge Pagayatan regarding another Josefina Taban, daughter of the deceased Teodoro Taban
statement (Exhibits "E" and "E-1") relative to the recovery and step-daughter of the late Maria Pescador, testified that
of the death gun. The contents of this statement (Exhibit she and her husband, Narciso Pizarro, on June 6, 1971 were
"E" and "E-1") were again read to the accused who swore to residing at Maluyo, Allacapan, Cagayan; whereas, her
its truthfulness. He then signed it. parents were living at SitioKinalian which is about 15
kilometers away. Narciso left the house at about 10:00 in
the morning of June 6, 1971 and returned at about 2:00 in
the afternoon. From then on, Narciso stayed at home and A I saw Felipe Jose and I asked him if that is Narsing
went to bed at about eight o'clock. The following day, (Narciso Pizarro) and he told me that it was Narciso
somebody informed them at their residence at Maluyo that Pizarro.
her father and step mother were killed. They rushed to the Q Where was Felipe Jose when you inquired from him
place and made injuries as to who could be the assailant if that was Narciso Pizarro?
and a nephew, ZosimoTaban, described the killer as a A He was in their batalan urinating, sir.
"bearded man, taller than her husband." xxxxxxxxx
Q Why did you ask Felipe Jose as to the Identity of the
The Court is inclined to give full faith and credit to the person who passed by you?
testimonies of Filomeno de los Santos and Felipe Jose. De A I only said, "Is that Narsing?"
los Santos, a relative of the appellant, clearly testified Q What was your purpose in asking that question from
regarding the Identity of appellant, as follows: Felipe Jose ?
Q While you were by the window of the house of A I had a suspicion because I know that Narciso
LibradaContapay and you saw Narciso Pizarro, what Pizarro is not supposed to be around and he should be
did you do next if any? in Maluyo, so I asked Felipe Jose if that is Narsing, and
A I observed his movements, sir, I even followed him he answered, "Yes, Uncle."
because I know that he should be in Maluyo. I Q When Felipe Jose told you already that it was
supposed that he would be in Maluyo, because he was Narciso Pizarro who pass by also by their house, what
getting a carabao for which to pull something else, but did you and Felipe do next if any?
I was surprised why he was there. A Felipe Jose informed me because of the statement of
Q You said that we went to follow Narciso Pizarro was Felipe Jose which he heard from Narciso Pizarro that
he alone when you followed him? because of the misunderstanding with his father-in-
A He had a companion, sir. law, and if things go wrong he will be going to kill we
Q To what direction did they proceed when you tried to follow them for the purpose of observing what
followed Narciso Pizarro and his companion ? is going to happen.
A They proceeded to the direction of the house of Q You said a while ago that Narciso Pizarro and his
Teodoro Taban, sir. companion proceeded to the house of Teodoro Taban,
Q What did you do next after following Narciso Pizarro what did you and Felipe Jose do when you went to
and his companion ? observe their movements?
A We hide at the banana plants.
Q How far is that place to the house of Teodoro Taban?
A About 50 meters, sir. Q Do you remember anything unusual that happened
Q What happened next while you were hiding yourself during that night
and Felipe Jose among the banana grooves when you A Yes, sir I remember.
saw Narciso Pizarro and his companion proceeded to Q What was that incident about, will you please tell to
the house of Teodoro Taban? this Honorable Court?
A We heard a gun report, sir, and not long after, we A That night, I heard the barking of dogs, As I went
heard again another gun report, so we went nearer the out to urinate, I saw Narciso Pizarro and a companion.
house of Teodoro Taban? Q You said one of the persons you saw was Narciso
Q Where did the two gun reports emanated? Pizarro, is that one Narciso Pizarro the person you
A Inside the house, sir. have just pointed a while ago, the accused in this
Q In whose house• case?
A The house of Teodoro Taban, sir. A Yes, sir.
Q After hearing the two gun reports, what else Q How far were you from them, when you saw Narciso
happened if any? Pizarro and his companion passing by
A The light went out and we saw two persons going out A About five meters, sir.
of the batalan, one carrying a gun and the other one, Q What was the condition of the night when this
immuko sir. Narciso Pizarro and his companion passed by your
Q Were you able to recognize those persons who went house?
down from the batalan? A That time it was showering but there was the moon.
A I saw two persons but I only recognized Narciso Q It was bright ?
Pizarro, sir, but when they went down, another person A Yes, sir.
emerged from under the batalan making the group, Q After the accused and his companion passed by your
three. (pp. 95, 96, 97 & 99, tsn., Nov. 15, 1972 house, what happened next?
hearing) A Filomeno de los Santos came to me and inquired if
Likewise, Felipe Jose, pointed to appellant as one of these persons who passed by Narciso Pizarro is one of
those who passed by their house going to the direction them, and I answered him, yes.
of the residence of the victims. Thus: Q After telling Filomeno de los Santos that the person
Q In the night of June 6, 1971, in what particular place who passed by your house and one of them is the
in SitioKinalian were you? accused in this case, what else happened?
A I was in our house, sir.

A I know that this Narciso Pizarro should be in barrio The defense of alibi cannot prevail over the positive
Maluyo and I am surprises why he is here now, so I Identification of appellant. No jurisprudence in criminal
told him (Filomeno) that we follow them. cases is more settled than the rule that alibi is the weakest
Q After that, what did you do next? of all defenses and that the same should be rejected when
A He said, let us go and follow him because according the Identity of the accused has been sufficiently and
to this Narciso Pizarro, it was only a week before, they positively established by eye-witnesses to the crime. Alibi is
told me that his in-laws are liars and that he was going easy to concoct, and difficult to disprove. For alibi to
to kill them. prosper, it is not enough to prove that defendant was
Q Where did you talk with Narciso Pizarro a week somewhere else when the crime was committed. He must
before when he told you that his father-in-law is a liar demonstrate that it was physically impossible for him to
and he is going to kill him? have been at the scene of the crime at the time. (People vs.
A In our house, sir. Estrada, 22 SCRA 111). Otherwise stated, alibi is a defense
Q When you and this Filomeno de los Santos followed with a bad reputation.
Narciso Pizarro and his companion to what direction
did the accused and his companion go? Regarding the statements, Exhibits "C", "C-1 ", and "C- 2"
A They proceeded towards the east, sir. pp and Exhibits "E" and "E-1", wherein appellant confessed
Q Do you know in what place did they go when they to have committed the crime charged against him, the rule
proceeded east? is clear that when such declaration expressly admits guilt
A I know, sir. the same may be given in evidence against him (Section 29,
Q Where? Rule 130, Revised Rules of Court). Early decisions of the
A They went to the house of Teodoro Taban because Court state that if such statements are made freely and
we followed them, sir. voluntarily, the confession constitutes an evidence of a high
Q Up to what place did you follow the accused and his order, since it is supported by the strong presumption that
companion when they proceeded to the house of no person of normal mind will deliberately and knowingly
Teodoro Taban? confess himself to be the perpetrator of a crane unless
A When we were nearing the house of Teodoro Taban, prompted by truth and conscience. (U.S.A. vs. de los
about 50 meters away, we heard two gun reports. Santos, 24 Phil. 329). Hereunder are the pertinent facts
Q Where were these Narciso Pizarro and his companion narrated by appellant in his statements, Exhibits "C ", and
when you heard the two gun reports? "C-1 "-
A They were already inside the house of Teodoro 7. Q Will you please narrate to me in brief how the
Taban, sir." (pp. 119-121, tsn., Nov. 19,1972) incident happened?
A In the morning of June 6, 1971, Orencio Ramos and to get the titles of the land owned by the old man so
I met in the public market at Centro, Allacapan, we forcibly opened the locker with their bolo. Because
Cagayan wherein said Orencio told me that he wants we could not locate the documents, we closed the
to kill Teodoro Taban. I also agreed and made the plan locker and we went down from the house. After that
to kill Teodoro Taban on the night of June 6, 1971. Orencio, Alfredo and I left proceeding westward and
After that, we went to sitioKinalian, Burot, Allacapan, upon crossing a creek, we separated and I went home
Cagayan and again both of us made the final plan to to Maluyo.
liquidate the old man. In the afternoon of that day, I 8. Q What participation did Alfredo do in the
left for Maluyo in order to deceive the people and on commission of the crime?
the evening I left barrio Maluyo to execute our plan. A He was assigned to guard around the house when
Orencio met me in a certain place and proceeded to Orencio and I went up inside the house, sir.
the house of Teodoro Taban passing the house of 9. Q Was Alfredo present when the plan to liquidate
BRIGIDA CONTAPAY and DONATO DE LOS SANTOS at Teodoro Taban was made?
sitioKinalian, Burot, Allacapan, Cagayan Upon nearing A None, but they might have made the arrangement
the house of Teodoro Taban, Alfredo Ramos appeared with his brother Orencio, sir.
and joined us. Upon reaching the house of Teodoro 10. Q What were your individual arms or weapons?
Taban, we peeped inside the house and found the AOrencio was armed with a homemade gun (Bulldog),
occupants sleeping. I then shouted d "TATA TATA" and Alfredo was armed with a bolo and I was also armed
after that Teodoro raised up his body and at that with a pointed knife (Imuco).
juncture, Orencio fired his gun at the old man. After 11. Q You stated in your narration that when you
that the old man laid down and then Orencio and I shouted "Tata, Tata", the old man raised his body and
went up inside the house. When we were up, the old that was the time when Orencio fired at him. Where
man was still hovering between life and death, so I was Orencio then at the time he fired gun at the old
stabbed him once below the left armpit. At that time, man?
the wife of Teodoro Taban Identified Orencio and AOrencio was still on the ground as the house is very
remarked, "WHY DO YOU KILL US BROTHER-IN-LAW" low and some portion of the walling of the house is
and at that instant Orencio fired his gun at the old open.
woman. After that, Orencio said, "Let's go" and 12. Q What prompted you to kill the old man when in
because the old woman was still alive and having fact, Teodoro is your father-in-law ?
recognized me, I again stabbed her twice below the A Because of the hardship of life I and my family are
left armpit and at the body. After that, Orencio told me sacrificing and my father-in-law seems to ignore the
will of his daughter by giving what is due to them in Thus, assuming that his extra-judicial confessions were
connection with the land since all his daughters are involuntary, they are admissible.
already married. Because of that attitude, that
prompted me to commit the crime. (pp. 4-5, Record) ... even assuming the involuntary character of
said confessions, the finding of the bones and hair
The above statements contained informations that could not above referred to confirms the admissions of guilt
have been known to the police. His claim therefore that he and renders the confessions admissible in
was maltreated into executing the same cannot be believed. evidence. In the case of Bery vs. U.S., 2 Col. 186,
Further, the finding by the police officers of the gun used in it was held that 'if the involuntary confessions are
the commission of the crime in the place pointed to by said confirmed on material points by facts
appellant is a strong proof of his participation in the subsequently discovered in its consequence, the
commission of the crime. Hereunder is his statement, whole confession should be received and admitted
Exhibit "E " and "E-1", pertinent to the death gun: as evidence. * * * The finding of the goods at the
place indicated not only tends to corroborate the
6. Q Presenting to you these declaration of the prisoner that the will be found
homemade gun (Bulldog), gauge .16, there but also his declaration that he stole them
serviceable. What relation has this to and concealed them at that place, if he made this
that of the firearm which you buried statement. (People vs. Garcia, et all 99 PhiL 381,
and recovered at barrio Maluyo if there 386).
is any?
The above statements, Exhibits "C", "C-1 ", "C-2", "E " and
A That is the very gun which I buried "E-1", were given in July 1971, or before the 1973
and recovered by us at Maluyo, sir. Constitution took effect. While it is true that they were
given without the aid of counsel, this Court has ruled in
7. Q Is this the firearm used in killing Magtoto vs. Manguera, 63 SCRA 4,12 and in People vs.
the late Teodoro Taban and his wife, Juliano, 95 SCRA 511 that "[t]his specific portion of this
Maria Pescador at sitioKinalian, Burot, constitutional mandate has and should be given a
Allacapan on the night of June 6, 1971? prospective and not a retrospective effect. Consequently, a
confession obtained from a person under investigation for
A Yes, sir. (p. 2 1, Record)
the commission of an offense, who has not been informed of
his right (to silence and) to counsel, is inadmissible in
evidence if the same had been obtained after the effectivity
of the New Constitution on January 17, 1973. Conversely,
such confession is admissible in evidence against the
accused, if the same had been obtained before the
effectivity of the New Constitution, even if presented after
January 17, 1973, and even if he had not been informed of
his right to counsel, since no law gave the accused the right
to be so informed before that date. "

WHEREFORE, the appealed decision is AFFIRMED. However,

for lack of the necessary votes, the penalty is reduced to
double reclusion perpetua and the indemnification to the
heirs of Teodoro Taban and Maria Pescador is increased to
P30,000.00 for each.


EN BANC Panfilo returned home and, with the help of some
neighbors, launched a search party for the missing Rowena.
G.R. No. L-69971 July 3, 1992 The search ended in a grassy vacant lot within the Deva
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Village Subdivision, only about 70 to 80 meters from the
vs. Capcap residence, where lay the apparently lifeless body of
ERNESTO LUVENDINO y COTAS, accused/appellant. Rowena, her pants pulled down to her knees and her blouse
rolled up to her breasts. Her underwear was blood-stained
FELICIANO, J.: and there were bloody fingerprint marks on her neck.
Rowena, her body still warm, was rushed to a hospital in
On the morning of 17 January 1983, 18-year old Rowena Taguig, where on arrival she was pronounced dead.4
Capcap left her home at Deva Village, Tambak, Taguig,
Metro Manila to attend classes at the University of Manila An autopsy was conducted on the following day by the
where she was a sophomore commerce student. She would National Bureau of Investigation and the autopsy report
usually be home by 7:30 to 8:00 on school evenings, 1 but disclosed the following:
on that tragic day, she would not reach home alive. On that
particular evening, her father PanfiloCapcap arriving home Cyanosis, lips and fingernail beds with pupils
from work at around 7:30 p.m., noted her absence and was dilated and bloody froths coming out of nostrils.
told by his wife and other children that Rowena was not yet
home from school. Later, a younger brother of Rowena, Abrasions, 1.0 x 3.0 cm., area of the buttocks,
sent on an errand, arrived home carrying Rowena's bag left side; 1.5 x 3.0 cm., area of right elbow.
which he had found dropped in the middle of a street in the
Contused-abrasions, 3.0 x 8.0 cm., area of the
village. 2
lateral aspect of the right chest; 4.0 x 5.0 cm.,
PanfiloCapcap lost no time in seeking the help of area of the antero-lateral aspect, middle third, left
the barangay captain of Hagonoy, Taguig. Not being arm.
satisfied with the latter's promise to send for a "tanod" to
Contusion, 7.0 x 13.0 cm., area of the anterior
help locate his missing daughter, Panfilo went to the Taguig
aspect of the neck from left to right in varying
Police Station to report his daughter as missing. The desk
sizes and shapes.
officer there advised him that a search party would be
mounted presently. 3 Interstitial hemorrhages among the muscles and
soft tissues in the anterior aspect of the neck with
petechial hemorrhages noted and severe The autopsy report also stated that the multiple injuries
congestion of the pharynx with subpleural, indicated the victim had struggled vigorously with her
subpericardialpuntiform hemorrhages. attacker(s); that the presence of spermatozoa showed that
the victim had sexual intercourse prior to death; and that
Fracture, laryngeal cartilage. death was due to asphyxia by mutual strangulation. 6
Lungs, presence of multiple petechial By 5 March 1984, an information had been filed in the trial
hemorrhages along the surface of both lungs; cut court charging Ernesto C. Luvendino, Cesar Borca alias
sections showed severe congestion. "Cesar Putol" and Ricardo de Guzman alias "Ric" with the
crime of rape with murder committed as follows:
Heart, covered with moderate amount of adipose
tissues with right chamber distended with dark That on or about the 17th day of January, 1983,
fluid blood. in the Municipality of Taguig, Metro Manila,
Philippines and within the jurisdiction of this
Brain and other visceral organs are congested. Honorable Court, the above-named accused,
conspiring and confederating together and
Stomach, one-third filled with digested food
mutually helping and aiding one another, by
means of force and intimidation, did then and
CAUSE OF DEATH: there willfully, unlawfully and feloniously have
carnal knowledge of one Rowena Capcap y
Asphyxia by manual strangulation (throttling). Talana, against her will and consent; that by
reason or on the occasion thereof, the said
REMARKS: accused in pursuance of their conspiracy, with
intent to kill and treachery and taking advantage
Genital examination revealed the presence of an of their superior strength, did then and there
old healed hymenal laceration at 6:00 o'clock willfully, unlawfully and feloniously attack,
position corresponding to the face of the watch, assault, hit and strangulate the said Rowena
edges rounded, base retracted and non- Capcap y Talana which directly caused her death.
coaptable. Smears taken for presence of
spermatozoa yield a positive a positive result. 5 Contrary to law. 7

Warrants of arrest were issued against all the above . . . admitting and giving credence to the
accused but only accused-appellant Ernesto Luvendino was evidence of re-enactment and admission of guilt,
actually apprehended; the other two (2) have remained at both of which were uncounseled.
large. At arraignment, Luvendino assisted by his counsel,
Atty. LuisitoSardillo, pleaded not guilty and then proceeded IV
to trial.
. . . giving credence and weight to the
On 12 December 1984, the trial court rendered a decision identification of appellant Ernesto Luvendino by
finding Luvendino guilty, sentencing him to death, requiring witness Cemitara.
him to indemnify the heirs of the victim Rowena in the
amount of P50,000.00 for the damages suffered as a result V
of her death.
. . . finding appellant Luvendino guilty of rape
Appellant Luvendino contends that the trial court committed with murder. 8
grievous error in —
The above assignments of error may be condensed to three
I (3), that is, whether or not the trial court erred in: (1) not
holding that his "demonstration" or re-enactment of the
. . . having required Atty. LuisitoSardillo to crime as well as his subsequent written admission of guilt as
continue as counsel of the accused-appellant inadmissible for having been made without the benefit of
notwithstanding his [Sardillo's] express mental counsel; (2) according credence to the identification and
reservations. other statements made by prosecution witness Cemitara;
and (3) allowing Luvendino's counsel before the trial court
II to continue as such notwithstanding such counsel's express
mental reservations.
. . . believing the insidious machinations of third
persons and witness Salvador B. Cemitara Under his first assignment of error, appellant Luvendino
surrounding the alleged threats [against] contends that the "demonstration" or re-enactment and his
Cemitara, including Exhibit "D." extrajudicial confession were effected and secured in the
absence of a valid waiver by him of his constitutional rights
III and that the re-enactment and the confession should be

held inadmissible in evidence because they had been Rowena and he likewise admitted he had abused
involuntarily made. her. Capcap stressed that in the course of the
demonstration Luvendino remarked:
We turn first to the admissibility of the testimony (of "Inaaminkoponakasamakosi Cesar Borcasapag re-
PanfiloCapcap) relating to the contents of the demonstration rape kay Rowena." Luvendino allegedly
or re-enactment of the crime. The decision of the trial court demonstrated how she was boxed, dragged and
had the following to say about the re-enactment: abused and pointed to the place where they had
left her remains. Capcapdrew a sketch of the
For sometime, the suspects had not been known. scene (Exh. I). He also narrated that after the re-
As a matter of fact, in the January 22 and 23, enactment, he and Luvendino were taken to the
1983 issues of TEMPO, a newspaper of general Eastern Police District in Pasig and were
circulation in Metro Manila, it was reported that investigated separately. He likewise testified that
the group of men who waylaid her were still sometime before the apprehension of Luvendino
unidentified, (Exhs. C & R). he was informed by Ernesto Uy that a certain
However, PanfiloCapcap stated that at about BayaniCemitara had seen Rowena with several
midnight of February 10, 1983, he was awakened men by the entrance of Deva Village in the early
by the police at their residence. They went to the evening of January 17, 1983.
vacant lot where they found dead body of
Rowena. A police officer, whom he later knew to xxxxxxxxx
be Sgt. Birxo, told him they had arrested Ernesto
Luvendino, alias "Joey". The accused was then . . . . The records indicate that immediately after
demonstrating how they brought the girl to the his apprehension, the police officers brought him
vacant lot. While Luvendino was re-enacting the to the Deva Subdivision where he demonstrated
events that transpired in the evening of January how the victim was boxed, dragged and taken to
17, pictures were taken by a photographer the vacant lot where she was raped and throttled
brought by the police officers. As the re- to death. According to the evidence for the
enactment was going on, Capcap said he heard prosecution, Luvendino in the re-enactment, had
the accused said that he and his companion not only admitted his presence in the commission
boxed her in the stomach, dragged her to the lot of the crime but had likewise admitted he was
and raped her there. The accused allegedly with Borca in abusing Rowena. Significantly, the
admitted he and Cesar Borca had strangled
evidence for the prosecution in this regard was police station and that a chain had been wrapped around his
not rebutted nor denied by the accused. neck. The trial court disposed of this claim in the following
xxxxxxxxx 9

In an extra-judicial confession, the confessant

(Emphasis supplied) carries the burden of convincing the court that his
admissions are involuntary and untrue. (People v.
Clearly, the trial court took into account the testimony given Manabo, 18 SCRA 30). This Luvendino had failed
by PanfiloCapcap on what had occurred during the re- to do. He claimed he was given fist blows by
enactment of the crime by Luvendino. We note that the re- many policemen and his neck was strangled with
enactment was apparently staged promptly upon a chain when he refused to admit guilt at the
apprehension of Luvendino and even prior to his formal Eastern Police District and then later given the "7-
investigation at the police station. 10 The decision of the trial up treatment" in another place. Although he said
court found that the accused was informed of his he sustained injuries, no proof was submitted to
constitutional rights "before he was investigated by Sgt. that effect except his bare and uncorroborated
Galang in the police headquarters" and cited the testimony. He admitted that his mother and Atty.
"Salaysay" 11 of appellant Luvendino. 12 The decision itself, [Eustacio] Flores were present when he
however, states that the re-enactment took place before subscribed before the fiscal the next day, but he
Luvendino was brought to the police station. Thus, it is not did not say that he had told them about the
clear from the record that before the re-enactment was torture employed on him. If it were really true
staged by Luvendino, he had been informed of his that he was abused in the manner he described it,
constitutional rights including, specifically, his right to tale-tell signs of the maltreatment could have
counsel and that he had waived such right before been visible the following morning and would not
proceeding with the demonstration. Under these escape the notice of his mother and his lawyer
circumstances, we must decline to uphold the admissibility and appropriate steps could have been taken so
of evidence relating to that re-enactment. 13 that he may be examined by a competent
physician. It is interesting to note that Atty.
We consider next the extrajudicial confession of appellant
Flores made no mention of such injuries when he
Luvendino. Luvendino claimed first of all that the
was called as a defense witness. 14
extrajudicial confession had been extracted from him by
means of a beating administered by many policemen at the
The trial court disbelieved and rejected Luvendino's claim headquarters. 17 In the second place, the written
that he have been beaten into making his confession. extrajudicial confession itself stated that Luvendino was
Appellant has given us no basis for overturning this informed of his constitutional rights and that he was waiving
conclusion of fact. The presumption of the law is one of those rights. 18 In the third place, according to Luvendino
spontaneity and voluntariness of an extrajudicial confession himself, he first signed his extrajudicial statement, which
of an accused in a criminal case, for no person of normal also set out a separately signed waiver of his rights, at the
mind would deliberately and knowingly confess to being the police department and that later, when he was brought to
perpetrator of a crime, especially a heinous crime, unless the office of Provincial Fiscal Mateo, he subscribed to or
prompted by truth and conscience. 15 Thus the Court has signed once more the same document, this time under
ruled that where the confessant failed to present any oath. As already noted from the trial court's decision, when
evidence of compulsion or duress or violence on his person Luvendino subscribed under oath to his extrajudicial
for purposes of extracting a confession; where he failed to confession in the presence of the Provincial Fiscal, his
complain to the officers who administered the oaths, such mother and Atty. Eustacio Flores were also present. Said
as the Fiscal in this case; where he did not institute any the trial court:
criminal or administrative action against his alleged
intimidators for maltreatment; where he did not have But even as he had waived the right to counsel
himself examined by a reputable physician to buttress his while interrogated by Sgt. Galang, the accused
claim of maltreatment; and where the assailed confession is was nevertheless assisted by one before he
replete with details which could not have been known to the signed the "Salaysay", Exhibit "L". From the
police officers if they merely concocted the confession, since narration of the accused himself it can be
the statements were inculpatory in character, the gathered that the was brought to the Fiscal's
extrajudicial confession may be admitted, the above Office in Pasig in the morning of February 10,
circumstances being considered as factors indicating 1983. At that office, he was at first aided by a
voluntariness. 16 lawyer from the CLAO. He did not sign the
statement for he wanted to talk to his mother. He
Luvendino next claimed that he had not been informed of was returned to the police station where his
his constitutional rights before his confession was given by mother saw him in the afternoon. In the
him or extracted from him. In the first place, Police Sgt. headquarters, they requested that they be
Galang testified as prosecution witness that he had indeed allowed to engage a lawyer of their choice and
informed Luvendino of the latter's constitutional rights their request was granted. The mother called for
before he commenced investigating Luvendino at the police Atty. Flores who arrived when the accused was
already back in the Office of the Fiscal. In the having been exhaustively subjected to physical
presence of Atty. Flores and his mother, the terror, violence, and third degree measures may
accused was investigated by the fiscal after not have been supported by reliable evidence but
which, also in the presence of his mother and the failure to present the investigator who
assisted by Atty. Flores, the accused signed conducted the investigation gives rise to the
Exhibit "L". 19 (Emphasis supplied) "provocative presumption" that indeed torture
and physical violence may have been committed
Although Atty. Eustacio Flores, a former Mayor of Pateros, as stated.
did not serve as defense counsel during the trial, it is clear
that Luvendino and his mother regarded Atty. Flores as The accused-appellant was not accorded his
Luvendino's counsel at least in respect of that specific constitutional right to be assisted by counsel
occasion in the Fiscal's office, and that Atty. Flores did so during the custodial interrogation. The lower court
act as counsel of Luvendino. correctly pointed out that the securing of counsel,
Atty. Anyog, to help the accused when he
It is, however, claimed by appellant Luvendino that at the subscribed under oath to his statement at the
time he had first signed his extrajudicial confession at the Fiscal's Office was too late. It could have no
police headquarters, he was without counsel. Luvendino palliative effect. It cannot cure the absence of
thus apparently seeks to distinguish the initial signing of his counsel at the time of the custodial investigation
"Salaysay" (Exhibit "L") at the police headquarters from his when the extrajudicial statement was being
subsequent subscribing thereto under oath in the Office of taken. 21 (Emphasis supplied)
the Provincial Fiscal of Rizal. There is no question that on
the latter occasion, Luvendino was questioned by the Fiscal The above statements in Burgos were not, however,
in the presence of his mother while Luvendino was assisted intended to establish a rigid and automatic rule that
by Atty. Eustacio Flores. the subsequent presence of and assistance by counsel
of the accused prior to and during the subscribing
In People v. Burgos, 20
the Court did make the following under oath of an extrajudicial confession and an
general statements: accompanying waiver of right to counsel, cannot have
any legal effect at all. For one thing, under the factual
The trial court validly rejected the extra-judicial circumstances of People v. Burgos — where the trial
confession of the accused as inadmissible in court believed the statements of the accused that he
evidence. The court stated that the appellant's had been "exhaustively subjected to physical terror,
violence and third degree measures" and where the once more under oath his "Salaysay". He did not do
investigating officer was not presented as a witness by so; Atty. Flores did not do so either then and there or
the prosecution — the above statements were clearly when he testified as a defense witness. Their failure to
appropriate. In the case at bar, Police Sgt. Galang who do so deprives his contention before this Court of any
had interrogated Luvendino at the police station was, real force. Luvendino may be deemed to have in effect
as already pointed out, presented as a witness by the ratified, before the Fiscal and with the aid of
prosecution and had testified in extenso, that counsel, the extrajudicial confession and waiver of the
Luvendino had been informed by him (Police Sgt. right to counsel which he had earlier signed without
Galang) of his constitutional rights, that Luvendino had the presence of counsel in the police station.
waived his rights voluntarily and intelligently, being
convinced that he did not need the assistance of a But even if appellant Luvendino's contention were to be
lawyer and could, by himself, clarify what had taken accepted at face value (and we do not so accept it), the
place. Moreover, Luvendino in the Office of the same result must be reached. The doctrine that an
Provincial Fiscal in Pasig, had initially been assisted by uncounseled waiver of the right to counsel is not to be given
a Citizens Legal Aid Office (CLAO) lawyer. But he at legal effect was initially a judge-made one and was first
that time nonetheless declined to swear to Exhibit "L" announced on 26 April 1983 in Morales v. Enrile 22 and
and later, together with his mother, insisted that he be reiterated on 20 March 1985 in People v.
allowed to retain a lawyer of their own choice, which Galit. 23
In Morales, the Court explained that Section 20,
requests was honored. Moreover, and perhaps more Article IV of the 1973 Constitution required that:
importantly, the trial court in the instant case did not
accord any credence to Luvendino's claim that he had 7. At the time a person is arrested, it shall be the
been physically beaten up by the police officers at the duty of the arresting officer to inform him of the
Taguig police station. In the afternoon of the same reason for the arrest and he must be shown the
day, Luvendino had every opportunity in the presence warrant of arrest, if any. He shall be informed of
of his mother and his own chosen counsel, Atty. his constitutional rights to remain silent and to
Eustacio Flores, to denounce to the Provincial Fiscal at counsel, and that any statement he might make
the latter's office any maltreatment that the police could be used against him. The person arrested
officers might have earlier in the day administered to shall have the right to communicate with his
him, to abjure the extrajudicial confession or the lawyer, a relative, or anyone he choses by the
waiver of his right to counsel there incorporated as most expedient means — by telephone if possible
non-voluntary of non-intelligent and to refuse to sign — or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it appellant Nabaluna and found the accused guilty of robbery
that this is accomplished. No custodial with homicide in a decision rendered on 26 September
investigation shall be conducted unless it be in 1981. In affirming the decision of the trial court, the Court
the presence of counsel engaged by the person said:
arrested, by any person on his behalf, or
appointed by the court upon petition either of the The court in mindful of the strictures and
detainee himself or by anyone on his behalf. The pronouncements found in the case of Morales v.
right to counsel may be waived but the waiver Ponce Enrile, G.R. Nos. 61106 and 61107,
shall not be valid unless made with the assistance promulgated on April 26, 1983, 121 SCRA 538,
of counsel. Any statement obtained in violation of quoted and reiterated in the case of People v.
the procedure herein laid down, whether Galit, L-51770, March 20, 1985 and in the case of
exculpatory or inculpatory, in whole or in People v. Pascual, 109 SCRA 197, promulgated on
part, shall be inadmissible in evidence. (Emphasis November 12, 1981, particularly as to the
supplied). requisite steps before a person under custodial
investigation may be deemed to have properly
While the Morales-Galit doctrine eventually became part of waived his right to counsel, such as a counsel
Section 12(1) of the 1987 Constitution, that doctrine affords being present to assist him when the accused
no comfort to appellant Luvendino for the requirements and manifests such waiver. However, the stated
restrictions outlined in Morales and Galit have no retroactive requirements were laid down in the said cases, to
effect and do not reach waivers made prior to 26 April serve as governing guidelines, only after the
1983, the date of promulgation of Morales. judgment in this case had already been rendered
by the trial court. Consequently, no error should
In People v. Nabaluna, 24 the Court upheld the validity of attach to the admission by the trial court of the
the waiver of the right to counsel which had been made on extra-judicial statements given by the accused as
5 December 1977, that is, prior to 26 April 1983, which evidence in this case. The trial court was then
waiver had been made without the assistance of counsel, sufficiently convinced that the accused had
for the reason that at the time such waiver was made, there waived assistance of counsel and there was at
was no rule or doctrine or guideline requiring the waiver of that time no pronounced guidelines requiring that
the right to counsel should itself be made only in the the waiver of counsel by accused can be properly
presence and with the assistance of counsel. The trial court made only with the presence and assistance of a
admitted in evidence the extrajudicial statements made by counsel. . . . . 25(Emphasis supplied)
It may be recalled that even before Nabaluna, the Court had Coming now to the second error assigned by appellant
already determined that Section 20, Article IV of the 1973 Luvendino — that the trial court had erred grieviously in
Constitution, was to be given prospective effect only. believing the testimony of prosecution witness Cemitara —
In Magtoto v. Manguera, 26 the Court sustained the the Court finds no reason to depart from the well-settled
admission in evidence of an extrajudicial confession which rule that the assessments by a trial court of the credibility
had incorporated an uncounseled waiver by the confessant and sincerity of the witnesses who testified before it, are to
of his constitutional rights during custodial investigation be accorded great respect by appellate courts. The trial
established in Section 20, Article IV of the 1973 court gave full faith and credence to the testimony of
Constitution, upon the ground that such confession and prosecution witness Salvador Cemitara in view of the
waiver had been executed before the effectivity of the 1973 straightforward character of his testimony. We need only to
Constitution. 27 The decision in Magtoto v. Manguera was note that appellant Luvendino presented no evidence to
not unanimous, but the majority decision has been show any personal grudge on the part of Cemitara against
reiterated many times 28 and it is much too late in the day Luvendino, nor any evidence of any ill motive weighty
to consider enough to have moved Cemitara falsely to testify for the
re-examining the doctrine there laid down. prosecution. Indeed, there was nothing to show that
Cemitara was in the least bit acquainted with appellant
Applying Nabaluna to the case at bar, we believe and so Luvendino before the events which culminated in the slaying
hold that appellant Luvendino validly waived his right to of Rowena Capcap.
counsel so far as his extrajudicial confession was concerned,
although he was not assisted by counsel when he initially Luvendino asserts, as his third principal assignments of
signed his confession at the police headquarters error, that he had been deprived of due process because he
(disregarding for present purposes only, the subsequent was represented, or continued to be represented, by a
events in the office of the Provincial Fiscal). At the time the lawyer who had manifested mental reservations. Neither
extrajudicial confession and waiver were first executed (i.e., Luvendino nor his counsel — Atty. Sardillo — had indicated
10 February 1983), there was no rule of doctrine prescribing what precisely the latter's mental reservations were. We
that waiver of the right to counsel may be validly made only assume that those mental reservations consisted of private
with the assistance of counsel. It is scarcely necessary to doubts as to the innocence of Luvendino of the crime with
add that we are here referring only to extrajudicial which he was charged. Atty. Sardillo was Luvendino's choice
confessions and waivers which were made voluntarily and as defense counsel. Atty. Sardillo had appeared in at least
intelligently. two (2) previous hearings and had cross-examined
prosecution witness Cemitara before he (Sardillo) offered in
open court to withdraw as defense counsel on 14 November Appellant Luvendino's principal defense on the merits was
1983. The trial court could scarcely be faulted for declining that of alibi. It is too well-settled to require documentation
Atty. Sardillo's offer to withdraw, considering that such offer that, for the defense of alibi to prosper, the accused must
had been made without the conformity or permission of not only prove that he was somewhere else during the
Luvendino. Atty. Sardillo himself did not insist on approximate time of the commission of the crime; he must
withdrawing as defense counsel. If appellant Luvendino in further prove that it was physically impossible for him to
truth had entertained substantial doubts as to the sincerity have been at the scene of the crime during its commission.
or capability or impartiality of his lawyer, he could have Luvendino testified that on or about that time the rape with
easily terminated the services of that counsel and retained a homicide was committed, he was at his house in Pateros,
new one or sought from the trial court the appointment of recuperating from a wound allegedly sustained from a
counsel de officio. Instead, Luvendino continued to retain beating inflicted upon him by one Romy Boy. Except for his
the services of Atty. Sardillo until the trial court rendered its own uncorroborated testimony, however, Luvendino failed
decision. In any event, an examination of the record will to present any evidence showing that he was medically
show that Atty. Sardillo continued to represent appellant incapacitated to be at the scene of the crime during its
Luvendino as defense counsel with reasonable competence. commission. He filed no complaint against his alleged
assailant "Romy Boy." Besides, Pateros and Taguig are
We would note, finally, that doubts on the part of a lawyer neighboring municipalities which public transport readily
as to the ultimate innocence of a client accused of a serious and quickly available between the two (2) locales; there
felony do not, in themselves, constitute bases for claiming was simply no showing that Luvendino could not have been
miscarriage of justice or failure of due process or assailing in Taguig during the time the crime was committed.
the professional work done by the lawyer. Of course,
complete confidence in the innocence of one's client may Finally, in respect of the civil liability aspects of the crime,
lend added sincerity and even passion to the lawyer's the Court considers that the amount of P4,500.00
pleading and argumentation. It is, however, precisely one of representing funeral expenses actually incurred by the
the demanding requirements of the legal profession that the family of Rowena Capcap, should be awarded to them as
lawyer must present all the defenses and arguments actual damages.29 Further, given the circumstances
allowed by the law to a person accused of crime, without obtaining in the instant case, especially the ruthless and
regard to the lawyer's private beliefs or suspicions as to his mindless slaying of Rowena after she had been raped, the
client's guilt. Court believes that the amount of P30,000.00 should be
awarded to Rowena's heirs as moral damages, over and

above the civil indemnity of P50,000.00 which was awarded
by the trial court.

WHEREFORE, the decision of the trial court in Criminal Case

No. 54537 is hereby MODIFIED by changing the enforceable
penalty from death to reclusion perpetua and by requiring
appellant Ernesto C. Luvendino to pay the heirs of Rowena
Capcap the amount of P4,500.00 as actual damages and
P30,000.00 as moral damages, in addition to the civil
indemnity of P50,000.00 awarded by the trial court. In all
other respects, the decision of the trial court is AFFIRMED.
Costs against accused-appellant.


FIRST DIVISION Act No. 6425, otherwise known as "The Dangerous Drugs
Act of 1972." After arraignment and trial on the merits they
G.R. No. 73603 June 22, 1988 were both convicted of the offense charged in a decision of
October 15, 1985 and they were sentenced to life
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, imprisonment and to pay a fine of P20,000.00 and the
vs. costs.
IMPERIAL, accused-appellants. Only Carlos Imperial interposed this appeal alleging that the
trial court committed the following assigned errors:

On suspicion by the members of the Integrated National THE TRIAL COURT ERRED IN ADMITTING THE
Police of Carmona, Cavite for participation in the distribution ALLEGED EXTRA- JUDICIAL CONFESSION OF THE
and sale of marijuana in the locality, Felicisimo Hernandez ACCUSED-APPELLANT, SAID CONFESSION BEING
and Carlos Imperial, who are both beauticians, were placed INADMISSIBLE BECAUSE IT WAS OBTAINED IN
under surveillance until they were arrested on July 20, VIOLATION OF THE CONSTITUTIONAL RIGHTS OF
1984. Marked money of P20.00 in two ten peso (P10.00) THE ACCUSED- APPELLANT.
bills 1 were found in the possession of Hernandez while
marijuana leaves contained in a matchbox 2 were in the B
possession of RizaldyAngcaya, an informer, who allegedly
purchased the same from Hernandez. THE TRIAL COURT ERRED IN NOT DECLARING
Upon investigation by the police, both of them admitted in WAS NOT PROVED BEYOND REASONABLE DOUBT,
their sworn statements having sold marijuana to
RizaldyAngcaya. 3 Upon examination of the dried leaves The prosecution relies solely on the extrajudicial confession
contained in the matchbox, they were found to be of appellant admitting his complicity in the commission of
marijuana. 4 the offense. RizaldyAngcaya, the informer, who was
allegedly accompanied by appellant to the house of
Thus, in an information that was filed by the Provincial Hernandez who sold the marijuana leaves to Angcaya, was
Fiscal of Cavite in the Regional Trial Court of Bacoor, Cavite, not presented as a witness by the prosecution. If the
they were charged for the violation of Section 4 of Republic
confession of appellant is found inadmissible in evidence or inculpatory, in whole or in part, shall be inadmissible in
then the case of the prosecution must fall. evidence.7

Section 20, Article IV of the 1973 Constitution provides as The court thus finds that the extrajudicial confession of
follows: appellant, Exhibit H, is not admissible in evidence.

No person shall be compelled to be a witness WHEREFORE, the judgment appealed from is hereby
against himself. Any person under investigation REVERSED and SET ASIDE and another judgment is hereby
for the commission of an offense shall have the rendered acquitting accused-appellant Carlos Imperial with
right to remain silent and to counsel and to be costs de oficio.
informed of such right. No force, violence, threat,
intimidation or any other means which vitiates the SO ORDERED.
free will shall be used against him. Any confession
obtained in violation of this section shall be
inadmissible in evidence. (Emphasis supplied.) 5

Under the foregoing provisions a person under custodial

investigation is entitled to the following rights: (a) the right
to remain silent: (b) the right to counsel; and (c) the right
to be informed of these rights. An examination of the
extrajudicial confession of appellant 6 shows that he was
informed of his constitutional right to be silent and of his
right to be assisted by counsel during the said investigation.
He was also asked if he was waiving his right to be assisted
by counsel and he answered in the affirmative. However,
this waiver was made without the assistance of counsel.

The clear rule this Court has set is that 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 this procedure, whether exculpatory
SECOND DIVISION 73490-92 which are criminal complaints for libel against
herein three (3) private respondents, namely, Salvador
G.R. No. Nos. 103259-61 October 1, 1993 Lacson, Raul Locsin and Leticia Locsin. The orders granted
private respondents' motion to quash the informations in
HON. ADELINA CALDERON-BARGAS, in her capacity as said criminal cases.chanroblesvirtualawlibrarychanrobles
Assistant Provincial Prosecutor of Rizal, and Bennett virtual law library
Ll. Thelmo, Petitioners, vs. THE REGIONAL TRIAL
COURT OF PASIG, METRO MANILA, BRANCH 162, The record of this case show the following antecedents:
HON. MANUEL S. PADOLINA, in his capacity as
Presiding Judge, Salvador Lacson, Raul L. Locsin and 1. Respondent Raul, Locsin was the editor and publisher of
Leticia Locsin, Respondents. the newspaper, Business Day. Other respondents, Leticia
Locsin and Salvador Lacson, were the managing editor and
Tanjuatco, Corpuz, Tanjuatco, Tangle-Chua, Cruz & Aquino columnist, respectively, of said newspaper. On 7 April 1987,
Law Offices for petitioners.chanrobles virtual law library Salvador Lacson published in Business Day an article
entitled "Insurance Monopoly", which allegedly contained
RocomBunag, Kapunana, Migallos Law Offices for repondent defamatory statements against petitioner Bennett LL.
Salvador Lacson. Thelmo, and maliciously tried to make it appear that Thelmo
was a grafter and
bribe-giver. 1

On 10 April 1987, Thelmo filed an affidavit-complaint with
The main issue for resolution in this petition is whether the Office of the Provincial Prosecutor of Rizal, and the case
respondent judge committed grave abuse of discretion was assigned to Assistant Prosecutor Celestino Simon, Jr.
when he ordered the quashal of three (3) separate for preliminary investigation. 2
informations for libel against respondents on the grounds of
2. On 8 February 1988, the Prosecutor issued a resolution
prescription and their right to speedy
recommending the filing of three (3) separate criminal cases
trial.chanroblesvirtualawlibrarychanrobles virtual law library
for libel against the three private respondents. On 23 May
Petitioners assail the orders of respondent judge (Regional 1988, the corresponding informations were filed and
Trial Court of Pasig, Branch, 162), dated 30 August 1991 assigned to respondent trial court. On 18 October 1988,
and 16 December 1991, rendered in Criminal Case Nos. respondent Salvador Lacson filed a motion to quash on the
ground of prescription. Then trial fiscal (Simeon, Jr.) was 4. Acting on the motion for reconsideration, on 3 May 1991,
furnished copy of said motion. On 19 October 1988, the said respondent court rendered an order, granting the motion of
motion was set for hearing where public prosecutor was petitioner-complainant, for reconsideration of the order
given 15 days within which to file an opposition. 3 However, dated 03 January 1991, thereby reinstating the three (3)
the prosecution after several extensions of time to submit criminal informations.chanroblesvirtualawlibrarychanrobles
its comment or opposition to the motion, failed to comply virtual law library
therewith. 4
In the said order of 3 May 1991, respondent court ruled as
3. Hence, on 03 January 1991, respondent court issued an follows: that in the Olarte case, 19 SCRA 494 (1967), it was
order granting the motion to quash the informations, on the held that the filing of complaint in the municipal court, even
ground of prescription. In said order, 5 the court held that if it be merely for purposes of preliminary
considering that libel cases prescribe within one year; that investigation/examination, interrupts the period of
the article "Insurance Monopoly" was published on 7 April prescription, pursuant to Article 91 of Revised Penal Code;
1987; and that the informations were filed only in May that the case of Francisco v. CA, 122 SCRA 538 (1983)
1988 - the case had already prescribed, notwithstanding the ruled that the filing of complaints for libel with the fiscal's
fact that the affidavit-complaint for libel was filed with the office interrupts the period of prescription. 7
prosecutor's office on 10 April 1987. The respondent court
ruled that the filing of the affidavit-complaint with the office 5. But, respondent court issued another order dated 30
of the prosecutor did not stop the running of the one-year August 1991(now assailed), granting the motion for
prescriptive period; that the last day for filing the criminal reconsideration of the order of 03 May 1991, filed by
information was 7 April 1988 or at the latest 10 respondents, thereby dismissing the informations, on the
April 1988(that is one year from 7 April 1987 when the said ground of prescription and violation of private respondents'
article was published.) Petitioner-private complainant filed a constitutional right to speedy trial. In the order of 30 August
motion for reconsideration of the order of 03 January 1991, 1991, respondent court reiterated its ruling in the order
which motion the private respondents opposed on the of 03 January
ground, among others, that failure of the prosecution to file 1991. 8

comment on the motion, despite due notice and order of the

respondent court, was tantamount to lack of interest on the 6. On 16 December 1991, respondent court denied
part of the fiscal to prosecute the offense charged. 6 petitioner-complainant's motion for reconsideration of the
order dated 30 August 1991. 9chanrobles virtual law library

In the now assailed order of 30 August 1991, respondent On the other hand, the respondent court, in rejecting the
court granted private respondents' motion to quash on the prosecution's (private prosecutor's) explanation for failure
principal ground that the prosecution's delay in prosecuting to file comment on the motion to quash, held as follows:
the criminal cases violated the accused's constitutional right
to speedy trial. The respondent court said: Further, this Court cannot buy the argument of the private
prosecutor that they were not furnished a copy of the
Moreover, even by a stretch of imagination the Court cannot Motion to Quash. It is too elementary in our operating table
comprehend why these cases have been dragged or of justice that notice to the fiscal who has the direct control
pending for four (4) years now since the filing of the and supervision of the case is also notice to the private
informations in 1988. Not only that the preliminary prosecutor. Nowhere in our law and jurisprudence (sic) that,
investigation took more than one (1) year to terminate. as a matter of course, counsel for the private complainant is
Such long delay in the preliminary investigation alone is entitled to a copy of the said Motion to Quash. Suffice it to
already violative of the accused's constitutional rights to state that a copy to the fiscal is already enough.
due process and speedy disposition of their cases and even Furthermore, the record will bear that the then trial fiscal
worse, after the informations were filed, the prosecution (Fiscal Simon, Jr.) in charge of this case was furnished a
continued with the delay. This Court waited for two (2) copy of it. Now, the burden lies on the counsel for the
years for the prosecution's comment (on the motion to private prosecutor to follow-up the status of the case and
quash) but to no avail. 10 (Emphasis supplied) see to it whether the wheel of justice grinds. . .
. 11chanrobles virtual law library
Private Prosecutor, for petitioner-complainant, in an effort
to explain the failure to file comment on the motion to We rule for the
quash, argues that such failure was due to the fact that no respondents.chanroblesvirtualawlibrarychanrobles virtual
copy of said motion to quash was furnished petitioner- law library
complainant Thelmo; that a copy thereof was given only to
the public prosecutor who originally handled the case; and Clearly, the prosecution failed to file comment on the
that the respondent court could have resolved the motion accused's motion to quash, despite the admitted service of
even without waiting for the comment of the prosecution a copy thereof on the then trial fiscal handling the case
and could have declared that the prosecution had waived (Fiscal Simon, Jr.), and despite order of respondent court
the right to file comment on the motion to directing comment on said motion to quash. Moreover, the
quash.chanroblesvirtualawlibrarychanrobles virtual law prosecution failed to file said comment after asking for
library several extensions of time to file it. It will be noted that the
motion to quash was filed on 18 October 1988, and In criminal cases, the rules are quite similar. Under Section
prosecutor was given fifteen (15) days within which to file 1(h), Rule 115, Revised Rules on Criminal Procedure, one of
comment/opposition the lights of the accused is the right "to have a speedy,
thereto.chanroblesvirtualawlibrarychanrobles virtual law impartial and public trial." A denial of this right entitles the
library accused to a dismissal of the case, upon filing the
appropriate motion to dismiss and the dismissal operates as
When the respondent court issued the order of 03 an acquittal. 12chanrobles virtual law library
January1991, granting accused's motion to quash, more
than two (2) years had lapsed, without public prosecutor In the cited Quizada case, the Court held:
having filed any comment despite, we repeat, several
extensions of time granted to the prosecution, within which There are only two occasions when double jeopardy will
to file comment. This failure of the prosecution to file said attach even if the motion to dismiss the case is made by the
comment is aclear defiance of, or at, least a non-compliance accused himself. The first is when the ground is insufficiency
with the order of 19 October 1988 of the respondent court. of the evidence of the prosecution, and the second is when
And such non-filing of the comment, on the part of the the proceedings have been unreasonably prolonged in
prosecution for more than two (2) years, is undoubtedly an violation of the right to a speedy trial.
unreasonable failure or
delay.chanroblesvirtualawlibrarychanrobles virtual law In Bermisa vs. Court of Appeals, 13 it was held that the right
library to a speedy trial is denied the accused "where through the
vacillation and procrastination of prosecuting officers, the
In civil cases, Section 3, Rule 17 of the Rules of Court, accused is forced to wait many months or years for trial."
provides as follows: And in Domingo vs. Minister of National Defense, 14 we said
that "there is no disputing the proposition that the non-
If plaintiff fails to appear at the time of the trial or to observance of the constitutional mandate that the accused
prosecute his action for an unreasonable length of time, or in all criminal prosecutions shall enjoy the right to have a
to comply with these rules or any order of the court, the speedy trial can result in the loss of the right of the
action may be dismissed upon motion of the defendant or government to prosecute him for the crime of which he is
upon the court's own motion. This dismissal shall have the charged, and the accused is entitled to be released
effect of an adjudication upon the merits, unless otherwise on habeas corpus; and that the dismissal of the case based
provided by court. (Emphasis supplied) on that ground would amount to an acquittal."chanrobles
virtual law library
In the criminal cases at bench, it is clear that the motion to dismiss. The cases were properly dismissable on
prosecution failed to prosecute them for an unreasonable this score.chanroblesvirtualawlibrarychanrobles virtual law
length of time. The fiscal (assistant provincial prosecutor) library
who was handling the subject cases and who under Section
5, Rule 110 of the Revised Rules on Criminal Procedure is It will also be noted that the respondent court in its order of
responsible for their direction and control, failed in this 30 August 1991 granted the motion to quash on the
task.chanroblesvirtualawlibrarychanrobles virtual law library additional ground of prescription. It ruled that since the
offense of libel prescribes within one (1) year (in accordance
As correctly pointed out by respondent court, it is not a with Article 90 of the Revised Penal Code), and further
sufficient excuse to say that the delay in the prosecution of considering that the informations at bench werefiled only in
the cases at bench was due to the fact that private May 1988, or more than one (1) year after the alleged
prosecutor was not furnished a copy of the motion to quash, libelious article was published, the crimes charged had
upon which motion respondent court ordered the already prescribed when the informations were
prosecution to comment. We agree with the respondent filed.chanroblesvirtualawlibrarychanrobles virtual law library
court that it is enough that the trial fiscal was furnished a
copy of the motion to quash and the prosecution ordered to While it may be true that prescription of offenses is aground
comment thereon.chanroblesvirtualawlibrarychanrobles upon which a motion to quash may be anchored - on the
virtual law library theory that criminal liability has, in effect, been
extinguished - we do not again agree with the respondent
Moreover, since there was non-compliance for an court that the libel, if any, had prescribed when the
unreasonable length of time with the order of the informations were
respondent court to file comment on the aforecited motion filed.chanroblesvirtualawlibrarychanrobles virtual law library
to quash - which constituted a failure to prosecute the cases
- they were properly dismissable. However, the motion to Article 91 of the Revised Penal Code provides as follows:
quash the informations was not strictly the proper remedy,
because a denial of the right to speedy trial is not one of the Art 91. Computation of prescription of offenses. - The period
grounds (Sec. 3 Rule 117 of the Revised Rules on Criminal of prescription shall commence to run from the day, on
Procedure) upon which a motion to quash a complaint or which the crime is discovered by the offended party, the
information may be grounded. The denial of the accused's authorities, or their agents, . . . and shall be interrupted by
right to speedy trial as a consequence of the prosecution's the filing of the complaint or information, and shall
failure to prosecute for over two (2) years gave rise to a commence to run again when such proceedings terminate
without the accused being convicted or acquitted, or are SO ORDERED.
unjustifiably stopped for any reason not imputable to him.
(Emphasis supplied)

In the present case, the criminal complaint was filed with

the office of the prosecutor on 10 April 1987. The alleged
libelious article was published on 07 April 1987. Hence, the
complaint was filed with the prosecutor's office three (3)
days after the publication or the alleged libelous article.
Thus, the running of the prescriptive period was interrupted
on 10 April 1987.chanroblesvirtualawlibrarychanrobles
virtual law library

In Francisco v. Court of Appeals, this Court held that the

filing of a complaint in the fiscal's office interrupts the
period of prescription. 15chanrobles virtual law library

All told, we hold that the dismissal of the criminal cases at

bench is proper on the ground of the prosecution's failure to
prosecute the cases which, as a consequence, denied the
private respondents their right to a speedy
trial.chanroblesvirtualawlibrarychanrobles virtual law library

ACCORDINGLY, the assailed orders of respondent court,

dated 30 August 1991 and 16 December 1991, rendered in
Criminal Case Nos. 73490-92 are SET ASIDE. But the
respondent court is ordered to DISMISS said criminal cases
against private respondents with
prejudice.chanroblesvirtualawlibrarychanrobles virtual law

SECOND DIVISION present its evidence and if its failure to do so is unjustified,
the court should dismiss the case for failure to prosecute.
[G.R. No. L-2792. May 23, 1950.] Such dismissal would come under the purview of section 9,
Rule 113.
ROMEO JACA, Petitioner, v. MANUEL BLANCO, Judge
of the Court of First Instance of Iloilo, Respondent.
Rodrigo J. Harder for Petitioner.

The respondent judge and Eleuterio J. Gustilo OZAETA, J.:

for Respondent.

SYLLABUS Romeo Jaca was accused before the Court of First Instance
1. CRIMINAL PROCEDURE, RULES OF; DOUBLE JEOPARDY; of Iloilo of triple homicide through reckless imprudence.
DISMISSAL OF CRIMINAL CASE WITHOUT PREJUDICE. — After arraignment the case was called for trial at 8:06 in the
The dismissal contemplated in section 9 of Rule 113 of the morning of February 3, 1949, and counsel for the accused
Rules of Court is a definite or unconditional dismissal which entered his appearance. The accused was also present. But
terminates the case, and not a dismissal without prejudice. as nobody appeared for the prosecution, the court then and
In the absence of any statutory provision to the contrary, there dismissed the case without prejudice. Four minutes
there is no reason why the court may not, in the interest of later counsel for the private prosecution arrived, followed a
justice, dismiss a criminal case provisionally, i e., without little later by the City Fiscal together with the witnesses for
prejudice to reinstating it before the order becomes final or the prosecution, and explained to the court that their
to the subsequent filing of a new information for the same tardiness was due to the fact that the chauffeur of the jeep
offense. If the accused should deem such conditional or in which they were riding was detained by a policeman for
provisional dismissal to be unjust and prejudicial to him driving on the wrong side of the street. Satisfied with the
because he has been deprived of his right to a speedy trial, explanation, the respondent judge set aside the order of
as for instance where the case has dragged on for an dismissal and reset the case for trial on the following
unreasonably long time without his fault, he could and morning, February 4, 1949. On that date counsel for the
should object to such dismissal and insist that the case be accused asked for the postponement of the trial until
heard and decided on the merits. Upon such objection and February 16, and the respondent judge granted the request.
insistence of the accused, if the prosecution does not In the meantime, that is to say, on February 5, 1949,
counsel for the accused moved for the reconsideration of quoted section of the rule is a definite or unconditional
the order of the court setting aside its order of dismissal dismissal which terminates the case, and not a dismissal
and reinstating the case, on the ground that the court had without prejudice as in the present case. In the absence of
exceeded its jurisdiction in so doing. any statutory provision to the contrary, we find no reason
why the court may not, in the interest of justice, dismiss a
That motion having been denied, the accused filed the criminal case provisionally, i.e., without prejudice to
present petition for certiorari, contending that by setting reinstating it before the order becomes final or to the
aside its order of dismissal and reinstating the case, the subsequent filing of a new information for the same offense.
respondent judge placed him in double jeopardy inasmuch If the accused should deem such conditional or provisional
as he had been arraigned and the dismissal of the case was dismissal to be unjust and prejudicial to him because he has
without his express consent. been deprived of his right to a speedy trial, as for instance
where the case has dragged on for an unreasonably long
The accused-petitioner relies upon section 9 of Rule 113, time without his fault, he could and should object to such
which reads as dismissal and insist that the case be heard and decided on
the merits. Upon such objection and insistence of the
"SEC. 9. Former conviction or acquittal or former jeopardy. accused, if the prosecution does not present its evidence
- When a defendant shall have been convicted or acquitted, and if its failure to do so is unjustified, the court should
or the case against him dismissed or otherwise terminated dismiss the case for failure to prosecute. Such dismissal
without the express consent of the defendant, by a court of would come under the purview of section 9, Rule 113.
competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and In the present case the information was filed on or after
substance to sustain a conviction, and after the defendant October 12, 1948; the accused, who was at liberty on bail,
had pleaded to the charge, the conviction or acquittal of the was arraigned on January 15, 1949, when the case was first
defendant or the dismissal of the case shall be a bar to set for trial; but the trial did not take place then because
another prosecution for the offense charged, or for any the respondent judge was in Manila, and although the
attempt to commit the same or frustration thereof, or for private prosecutor appeared with his witnesses, neither the
any offense which necessarily includes or is necessarily accused nor his attorney appeared. At the request of the
included in the offense charged in the former complaint or private prosecutor the case was reset for trial on February
information.." 3, 1949, when the fiscal and the private prosecutor with
their witnesses appeared four minutes after the case had
We hold that the dismissal contemplated in the above- been called. Both the accused and his attorney were present
when the respondent judge dictated the order of dismissal
without prejudice, but interposed no objection thereto.
Under the circumstances we find no violation of any
constitutional right of the accused by the respondent judge
in reconsidering his previous order of dismissal a few
minutes after it was dictated and in reinstating the case
against the accused. The accused had been neither
previously convicted nor acquitted, nor had the case against
him been definitely dismissed since the dismissal was
without prejudice. Had the respondent judge refused to
vacate the order of dismissal under the circumstances, we
think he would have committed a grave miscarriage of

The petition is denied, with costs against the petitioner.

Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ.,


Petition denied.

EN BANC On July 31, 1976, in Quezon City, several persons ganged
up on Fabian Galvan, stoned and hit him with beer bottles
G.R. No. L-46272 June 13, 1986 until finally one of them stabbed him to death. The actual
knife-wielder was identified as Mario
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, delMundo. Nonetheless, Alberto Opida and Virgilio Marcelo
vs. were charged with murder as conspirators and, after trial,
ALBERTO OPIDA y QUIAMBAO and VIRGILIO sentenced to death. 4
MARCELO, accused-appellants.
The basis of their conviction by the trial court was the
testimony of two prosecution witnesses, neither of whom
CRUZ, J.: positively said that the accused were at the scene of the
crime, their extrajudicial confessions, which were secured
This is an automatic review of the Decision of the Circuit
without the assistance of counsel, and corroboration of the
Criminal Court, Seventh Judicial District, imposing the death
alleged conspiracy under the theory of interlocking
penalty upon Alberto Opida and Virgilio Marcelo for the
confession. 5
crime of murder.
What is striking about this case is the way the trial judge
Unlike the victim in this case, who died from only one stab
conducted his interrogation of the two accused and their
wound, the decision under review suffers from several fatal
lone witness, Lilian Layug. It was hardly judicious and
flaws, all equally deadly. It suffices to discuss only one of
certainly far from judicial, at times irrelevant, at Worst
malicious. Reading the transcript, one gathers the
Time and again this Court has declared that due process impression that the judge had allied himself with the
requires no less than the cold neutrality of an impartial prosecution to discredit at the outset the credibility of the
judge. 1 Bolstering this requirement, we have added that witnesses for the defense.
the judge must not only be impartial but must also appear
Opida is a police character, admittedly a member of the
to be impartial, to give added assurance to the parties that
Commando gang and with a string of convictions for
his decision will be just. 2 The parties are entitled to no less
robbery, theft and vagrancy. 6 It is worth noting that the
than this, as a minimum guaranty of due process. This
judge took special interest in his tattoos, required him to
guaranty was not observed in this case.
remove his shirt so they could be examined, and even
described them in detail for the record. 7
Besides belaboring Opida's criminal activities and his unfaithful to his father. 12 We deplore this sadistic treatment
tattoos, the judge asked him if he had "ever been convicted of the witness, especially as, for all his supposed
at the National Mental Hospital with what else but malice "toughness," he could not answer back. We fail to see what
and suggested to him that his claim of manhandling by the possible connection the mother's infidelity could have had,
police was a lie because investigators leave no mark when by any stretch of the imagination, with the instant
they torture a suspect. 8 This was a point that could have prosecution.
been validly raised by the prosecution but certainly not by
the court. The judge also made it of record that the witness But the judge was to save the best or worst of his spite for
was gnashing his teeth, was showing signs of hostility, that the third witness, Lilian Layug, a waitress in the restaurant
he was uneasy and that he was restless. "Now, whom do where the appellant Opida was working as a cook. Noting at
you want to fool the judge asked, "the prosecutor, your the outset that she spoke English, he wanted to know where
lawyer, or the court? 9 she had learned it and asked in ill-concealed insinuation if
she had worked in Angeles City or Olongapo or
In the hearing of September 22, 1976, the interrogation of Sangley. 13 Because she was gesturing nervously, he asked,
Virgilio Marcelo, the other accused, was conducted almost "Are you a conductor? 14 Of the two accused, he asked her,
wholly by the judge who started cross-examining the "They are very proud of belonging to the Commando gang
witness even before the defense counsel could ask his first to which the witness answered, putting him in his place,
question, and took over from the prosecution the task of "That I do not know, Your Honor." 15
impeaching Marcelo's credibility.10 The judge asked him
about his drug addiction, his membership in the Commando One cannot but note the mockery in the following questions
gang, his tattoos, his parentage, his activities, his criminal put by the judge to the witness, who was probably
record all when he was supposed to be under direct wondering what the interrogation was all about
examination by his own lawyer. Defense counsel could Court
hardly put in a word edgewise because the judge kept Q You are a very good friend of Alberto Opida?
interrupting to ask his own questions. 11 A Yes, Your Honor.
Q You have known him for years?
The questions were not clarificatory but adversary; and A One year only, Your Honor.
when they were not adversary, they were irrelevant, and Q He always feed you with his favorite menu?
sometimes also cruel. At one point, the judge drew from the A Yes, Your Honor.
witness the statement that his mother was living with Q He is a very good cook?
another man; forthwith he suggested that the mother was A Yes, Your Honor.
Q Because what he could cook, you could not cook? A None, Your Honor.
A I know also how to cook, Your Honor. Q Whenever he cooks adobo, he was singing?
Q Answer my question. A Sometimes, Your Honor.
A Yes, Your Honor. Q What kind of song?
Q Whenever you try to cook what he cooked, you could A He is singing a song with intended for Cora, Your
not imitate it, because he is a good cook? Honor.
A Yes, Your Honor. Q And you were also affected by it?
Q So, your admiration developed because of his A No, Your Honor.
cooking? Q You mean to say, you are not very fond of emotional
A Yes, Your Honor. songs?
Q What favorite dish does he cook that you like, as far A I am not, because Cora is not minding him, Your
as you are concerned? Honor.
A Adobo, Your Honor. Q But sometimes he sings in the absence of Cora
Q Most often you request him to cook adobo for you? because, as you said, he is cooking adobo for you?
A Yes, Your Honor. A Yes, Your Honor.
Q That is precisely one of the reasons why you also Q What does he sings (sic) for you?
admire him? A He sings many songs, Your Honor.
A That is also a part, Your Honor, Q For example, give the title
Q Whenever you request him to cook adobo for you, A Milagro, Your Honor.
he always accommodate you? Q He also sings DiyosLamangAngNakakaalam?
A Yes, Your Honor. A Sometimes, Your Honor.
Q As a matter of fact, the moment that he starts Q He also sings Kapantay ay Langit?
cooking adobo, you could smell it already? A Yes, Your Honor.
A Yes, Your Honor, Q He also sings SapagkatTayo'y Tao Lamang?
Q That starts your admiration for him. A I did not hear, Your Honor.
A Yes, Your Honor. Q But, you said he also sings even in the absence of
Q And in return you reciprocate? Cora?
A Yes, Your Honor. A Yes, Your Honor.
Q What kind of reciprocation do you give to Alberto Q You smell adobo while he cooks and sings. So, you
Opida, whenever you admire his cooking of adobo for developed admiration also?
you, cooking just for you? A Little only, Your Honor.
Q One way or another you have appreciated him, but Those principles were given mere lip service by the judge,
the only thing, as you know, he is related to Cora in who did not bother to look deeper into the validity of the
the same way? challenged confessions.
A Yes, Your Honor.
Q That is why you are testifying in his favor? Because Given the obvious hostility of the judge toward the defense,
of the smell of adobo and his songs and it is an it was inevitable that all the protestations of the accused in
admiration. Therefore, there is that tendency to testify this respect would be, as they in fact were, dismissed. And
in his favor? once the confessions were admitted, it was easy enough to
A Yes, Your Honor. 16 employ them as corroborating evidence of the claimed
conspiracy among the accused.
On direct examination, Opida challenged his extrajudicial
confession, claiming it had been obtained without The accused are admittedly notorious criminals who were
observance of the rights available under Article IV, Section probably even proud of their membership in the Commando
20 of the Constitution, particularly the right to gang even as they flaunted their tattoos as a badge of
counsel. 17Parenthetically, the extrajudicial confession of notoriety. 21 Nevertheless, they were entitled to be
Marcelo was also made without assistance of presumed innocent until the contrary was proved and had a
counsel. 18
Opida also testified, under questioning from his right not to be held to answer for a criminal offense without
counsel, that he had been repeatedly hit with a "dos por due process of law. 22
dos" by a police officer while he was being investigated. 19
The judge disregarded these guarantees and was in fact all
We have consistently held that the rights guaranteed during too eager to convict the accused, who had manifestly
a custodial investigation are not supposed to be merely earned his enmity. When he said at the conclusion of the
communicated to the suspect, especially if he is unlettered, trial, "You want me to dictate the decision now?" 23, he was
but must be painstakingly explained to him so he can betraying a pre-judgment long before made and obviously
understand their nature and significance. Moreover, waiting only to be formalized.
manhandling of any sort will vitiate any extrajudicial
confession that may be extracted from him and renders it The scales of justice must hang equal and, in fact, should
inadmissible in evidence against him. 20 even be tipped in favor of the accused because of the
constitutional presumption of innocence. Needless to stress,
this right is available to every accused, whatever his
present circumstance and no matter how dark and repellent
his past. Despite their sinister connotations in our society,
tattoos are at best dubious adornments only and surely not
under our laws indicia of criminality. Of bad taste perhaps,
but not of crime.

In any event, convictions are based not on the mere

appearance of the accused but on his actual commission of
crime, to be ascertained with the pure objectivity of the true
judge who must uphold the law for all without favor or
malice and always with justice.

Accused-appellants Opida and Marcelo, who have been

imprisoned since 1976, have sent us separate letters
pleading for the resolution of their death sentences one way
or the other once and for all. Considering the way they were
tried, we now declare that they should not be detained in
jail a minute longer. While this is not to say that the
accused are not guilty, it does mean that, because their
constitutional rights have been violated, their guilt, if it
exists, has not been established beyond reasonable doubt
and so cannot be pronounced. Due process has stayed the
uneven hand of the quick condemnor and must set the
defendants free.

WHEREFORE, the conviction of Alberto Opida and Virgilio

Marcelo is reversed and they are hereby ordered released
immediately. No costs.


EN BANC laid down in the cases of People vs. Badilla (48 Phil., 718);
United States vs. Tan Teng (23 Phil., 145); United States
G.R. No. 32025 September 23, 1929 vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the
respondents, and in the case of Villaflor vs. Summers (41
FRANCISCO BELTRAN, petitioner, Phil., 62) cited by the judge in the order in question.
FELIX SAMSON, Judge of the Second Judicial District, Of course, the fiscal under section 1687 of the
and FRANCISCO JOSE, Provincial Fiscal of Administrative Code, and the proper judge, upon motion of
Isabela,respondents. the fiscal, may compel witnesses to be present at the
investigation of any crime or misdemeanor. But this power
Gregorio P. Formoso and Vicente Formoso for petitioner. must be exercised without prejudice to the constitutional
The respondents in their own behalf. rights of persons cited to appear.
ROMUALDEZ, J.: And the petitioner, in refusing to perform what the fiscal
demanded, seeks refuge in the constitutional provision
This is a petition for a writ of prohibition, wherein the
contained in the Jones Law and incorporated in General
petitioner complains that the respondent judge ordered him
Orders, No. 58.
to appear before the provincial fiscal to take dictation in his
own handwriting from the latter. Therefore, the question raised is to be decided by
examining whether the constitutional provision invoked by
The order was given upon petition of said fiscal for the
the petitioner prohibits compulsion to execute what is
purpose of comparing the petitioner's handwriting and
enjoined upon him by the order against which these
determining whether or not it is he who wrote certain
proceedings were taken.
documents supposed to be falsified.
Said provision is found in paragraph 3, section 3 of the
There is no question as to the facts alleged in the complaint
Jones Law which (in Spanish) reads: "Ni se le obligara a
filed in these proceedings; but the respondents contend that
declararen contra suyaenningunproceso criminal" and has
the petitioner is not entitled to the remedy applied for,
been incorporated in our Criminal Procedure (General
inasmuch as the order prayed for by the provincial fiscal
Orders, No. 58) in section 15 (No. 4 ) and section 56.
and later granted by the court below, and again which the
instant action was brought, is based on the provisions of
section 1687 of the Administrative Code and on the doctrine
As to the extent of the privilege, it should be noted first of sacred, and the pressure toward their relaxation so
all, that the English text of the Jones Law, which is the great when the suspicion of guilt is strong and the
original one, reads as follows: "Nor shall be compelled in evidence obscure, that is the duty of courts liberally to
any criminal case to be a witness against himself." construe the prohibition in favor of personal rights, and
to refuse to permit any steps tending toward their
This text is not limited to declaracion but says "to be a invasion. Hence, there is the well-established doctrine
witness." Moreover, as we are concerned with a principle that the constitutional inhibition is directed not merely
contained both in the Federal constitution and in the to giving of oral testimony, but embraces as well the
constitutions of several states of the United States, but furnishing of evidence by other means than by word of
expressed differently, we should take it that these various mouth, the divulging, in short, of any fact which the
phrasings have a common conception. accused has a right to hold secret. (28 R. C. L.,
paragraph 20, page 434 and notes.) (Emphasis ours.)
In the interpretation of the principle, nothing turns
upon the variations of wording in the constitutional The question, then, is reduced to a determination of
clauses; this much is conceded (ante, par. 2252). It is whether the writing from the fiscal's dictation by the
therefore immaterial that the witness is protected by petitioner for the purpose of comparing the latter's
one constitution from 'testifying', or by another from handwriting and determining whether he wrote certain
'furnishing evidence', or by another from 'giving documents supposed to be falsified, constitutes evidence
evidence,' or by still another from 'being a witness.' against himself within the scope and meaning of the
These various phrasings have a common conception, in constitutional provision under examination.
respect to the form of the protected disclosure. What is
that conception? (4 Wigmore on Evidence, p. 863, Whenever the defendant, at the trial of his case, testifying
1923 ed.) in his own behalf, denies that a certain writing or signature
is in his own hand, he may on cross-examination be
As to its scope, this privilege is not limited precisely to compelled to write in open court in order that the jury
testimony, but extends to all giving or furnishing of maybe able to compare his handwriting with the one in
evidence. question.
The rights intended to be protected by the It was so held in the case of Bradford vs. People (43 Pacific
constitutional provision that no man accused of crime Reporter, 1013) inasmuch as the defendant, in offering
shall be compelled to be a witness against himself is so
himself as witness in his own behalf, waived his personal to the fact that he voluntarily wrote. The following appears
privileges. in the body of said decision referred to (page 307 of the
volume cited):
Of like character is the case of Sprouse vs. Com. (81 Va.,
374,378), where the judge asked the defendant to write his The defendant had the legal right to refuse to write for
name during the hearing, and the latter did so voluntarily. Kinsley. He preferred to accede to the latter's request,
and we can discover no ground upon which the
But the cases so resolved cannot be compared to the one writings thus produced can be excluded from the case.
now before us. We are not concerned here with the (Emphasis ours.)
defendant, for it does not appear that any information was
filed against the petitioner for the supposed falsification, For the reason it was held in the case of First National Bank
and still less as it a question of the defendant on trial vs. Robert (41 Mich., 709; 3 N. W., 199), that the
testifying and under cross-examination. This is only an defendant could not be compelled to write his name, the
investigation prior to the information and with a view to doctrine being stated as follows:
filing it. And let it further be noted that in the case of
Sprouse vs. Com., the defendant performed the act The defendant being sworn in his own behalf denied
voluntarily. the endorsement.

We have also come upon a case wherein the handwriting or He was then cross-examined the question in regard to
the form of writing of the defendant was his having signed papers not in the case, and was
obtained before the criminal action was instituted against asked in particular whether he would not produce
him. We refer to the case of People vs. Molineux (61 signatures made prior to the note in suit, and whether
Northeastern Reporter, 286). he would not write his name there in the court. The
judge excluded all these inquiries, on objection, and it
Neither may it be applied to the instant case, because is of these rulings that complaint is made. The object
there, as in the aforesaid case of Sprouse vs. Com., the of the questions was to bring into the case extrinsic
defendant voluntarily offered to write, to furnish a specimen signatures, for the purpose of comparison by the jury,
of his handwriting. and we think that the judge was correct in ruling
against it.
We cite this case particularly because the court there gives
prominence to the defendant's right to decline to write, and

It is true that the eminent Professor Wigmore, in his work possession. And as to such production of documents or
cited (volume 4, page 878), says: chattels. which to our mind is not so serious as the case
now before us, the same eminent Professor Wigmore, in his
Measuring or photographing the party is not within the work cited, says (volume 4, page 864):
privilege. Nor it is the removal or replacement of his
garments or shoes. Nor is the requirement that the . . . 2264. Production or Inspection of Documents and
party move his body to enable the foregoing things to Chattels. — 1. It follows that the production of
be done. Requiring him to make specimens of documents or chattels by a person (whether ordinary
handwriting is no more than requiring him to move his witness or party-witness) in response to a subpoena,
body . . ." but he cites no case in support of his last or to a motion to order production, or to other form
assertion on specimens of handwriting. We note that in of process treating him as a witness ( i.e. as a person
the same paragraph 2265, where said authors treats of appearing before a tribunal to furnish testimony on his
"Bodily Exhibition." and under preposition "1. A great moral responsibility for truthtelling), may be refused
variety of concrete illustrations have been ruled upon," under the protection of the privilege; and this is
he cites many cases, among them that of People vs. universally conceded. (And he cites the case of People
Molineux (61 N. E., 286) which, as we have seen, has vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)
no application to the case at bar because there the
defendant voluntary gave specimens of his We say that, for the purposes of the constitutional privilege,
handwriting, while here the petitioner refuses to do so there is a similarity between one who is compelled to
and has even instituted these prohibition proceedings produce a document, and one who is compelled to furnish a
that he may not be compelled to do so. specimen of his handwriting, for in both cases, the witness
is required to furnish evidence against himself.
Furthermore, in the case before us, writing is something
more than moving the body, or the hands, or the fingers; And we say that the present case is more serious than that
writing is not a purely mechanical act, because it requires of compelling the production of documents or chattels,
the application of intelligence and attention; and in the case because here the witness is compelled to write and create,
at bar writing means that the petitioner herein is to furnish by means of the act of writing, evidence which does not
a means to determine whether or not he is the falsifier, as exist, and which may identify him as the falsifier. And for
the petition of the respondent fiscal clearly states. Except this reason the same eminent author, Professor Wigmore,
that it is more serious, we believe the present case is explaining the matter of the production of documents and
similar to that of producing documents or chattels in one's chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in witnesses were questioned by the fiscal against their will,
form, and though the documents or chattels be already and if they did not refuse to answer, they must be
in existence and not desired to be first written and understood to have waived their constitutional privilege, as
created by testimonial act or utterance of the person in they could certainly do.
response to the process, still no line can be drawn
short of any process which treats him as a witness; The privilege not to give self-incriminating evidence,
because in virtue it would be at any time liable to while absolute when claimed, maybe waived by any
make oath to the identity or authenticity or origin of one entitled to invoke it. (28 R. C. L., paragraph 29,
the articles produced. (Ibid., pp. 864-865.) (Emphasis page 442, and cases noted.)
The same holds good in the case of United States vs. Tan
It cannot be contended in the present case that if Teng (23 Phil., 145), were the defendant did not opposethe
permission to obtain a specimen of the petitioner's extraction from his body of the substance later used as
handwriting is not granted, the crime would go unpunished. evidence against him.
Considering the circumstance that the petitioner is a
municipal treasurer, according to Exhibit A, it should not be In the case of Villaflor vs. Summers (41 Phil., 62), it was
a difficult matter for the fiscal to obtained genuine plainly stated that the court preferred to rest its decision on
specimens of his handwriting. But even supposing it is the reason of the case rather than on blind adherence to
impossible to obtain specimen or specimens without tradition. The said reason of the case there consisted in that
resorting to the means complained herein, that is no reason it was the case of the examination of the body by
for trampling upon a personal right guaranteed by the physicians, which could be and doubtless was interpreted by
constitution. It might be true that in some cases criminals this court, as being no compulsion of the petitioner therein
may succeed in evading the hand of justice, but such cases to furnish evidence by means of testimonial act. In reality
are accidental and do not constitute the raison d' etre of the she was not compelled to execute any positive act, much
privilege. This constitutional privilege exists for the less a testimonial act; she was only enjoined from
protection of innocent persons. something preventing the examination; all of which is very
different from what is required of the petitioner of the
With respect to the judgments rendered by this court and present case, where it is sought to compel him to perform
cited on behalf of the respondents, it should be a positive, testimonial act, to write and give a specimen of
remembered that in the case of People vs. Badilla (48 Phil., his handwriting for the purpose of comparison. Besides, in
718), it does not appear that the defendants and other the case of Villamor vs. Summers, it was sought to exhibit
something already in existence, while in the case at bar, the
question deals with something not yet in existence, and it is
precisely sought to compel the petitioner to make, prepare,
or produce by this means, evidence not yet in existence; in
short, to create this evidence which may seriously
incriminate him.

Similar considerations suggest themselves to us with regard

to the case of United States vs. Ong Siu Hong (36 Phil.,
735), wherein the defendant was not compelled to perform
any testimonial act, but to take out of his mouth the
morphine he had there. It was not compelling him to testify
or to be a witness or to furnish, much less make, prepare,
or create through a testimonial act, evidence for his own

Wherefore, we find the present action well taken, and it is

ordered that the respondents and those under their orders
desist and abstain absolutely and forever from compelling
the petitioner to take down dictation in his handwriting for
the purpose of submitting the latter for comparison.

Without express pronouncement as to costs. So ordered.