FULL TEXT CASES IN CONSTI LAW:

SECTION 12:

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 118866-68 September 17, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO DE LA CRUZ, alias RODOLFO DOMINGO or "OMPONG," accused-appellant.

REGALADO, J.:

In this appeal from three sentences of reclusion perpetua, accused-appellant Rodolfo de la

Cruz, aliasRodolfo Domingo or "Ompong," consistent with his negative pleas when arraigned
on November 5, 1992 and January 11, 1993, impugns his conviction for multiple murder in
1

Criminal Cases Nos. 92-8029, 92-8030 and 92-8031 by the Regional Trial Court, Branch 74, of 2

Antipolo, Rizal. He anchors his entreaty for the reversal thereof mainly on the ground that he
was not fully and appropriately apprised of or allowed to exercise his constitutional rights
prior to and while undergoing custodial investigation.

In the early evening of June 23, 1992, the lifeless bodies of Teodorico M. Laroya, Jr. and his
children, 12-year old Karen Verona D. Laroya and 10-year old John Lester D. Laroya, were
discovered in their residence at 13 Emerald Street, Greenpark Village, Cainta, Rizal by their
horrified neighbors. The star-crossed trio were all bloodied consequent to numerous stab
wounds, and each of them had a knife still embedded in and protruding from their bodies
when found. Karen Verona also bore external signs of sexual assault. 3

None of their neighbors, however, witnessed the gruesome murders. Two of them later testified in
court, namely, Harold Jim F. Balocating and Anita F. Pangan. The former merely recounted how,
while playing table tennis in front of the Laroya residence, he and his friends stumbled upon the
dead bodies of the victims. Anita Pangan, on the other hand, recalled that at around 9:00 P.M. of
June 23, 1992, appellant, who was a brother-in-law of Teodorico Laroya, Jr., purchased some
candies at her store which is located inside the village.
4

Both Balocating and Pangan had previously executed sworn statements just three days after the
incident, the assertions in which were of the same import as their respective testimonies in court. On
5

June 27, 1992, the police authorities apprehended appellant at the house of his brother in Fort
Bonifacio. SPO1 Carlos R. Atanacio, Jr., a member of the Cainta Police Station in Cainta, Rizal
interrogated appellant regarding the crimes on the same day that he was arrested.
This police officer declared in the trial court that before he questioned appellant as to his
participation in said crimes, all steps were undertaken to completely inform the latter of his rights and
this he did in the presence of appellant's supposed counsel, one Atty. Lorenza Bernardino-
Villanueva. Appellant then signed, likewise in the presence of said counsel, an extrajudicial
confession wherein he narrated in detail how he allegedly snuffed out the lives of the victims. 6

When presented as the lone witness for himself, appellant was observed by the trial court to be
afflicted with a problem in expressing himself and an impediment in his speech (ngo-ngo). By
appellant's own account, he only reached the fourth grade of elementary schooling and, although
conversant with Tagalog, he is unable to read and write, although he can sign his name. He bluntly
repudiated the version of SPO1 Atanacio, Jr. and insisted that he was never assisted by any counsel
of his choice, much less met said Atty. Lorenza Bernardino-Villanueva, when he was interrogated at
the police headquarters in Cainta, Rizal and signed his supposed extrajudicial confession.
Parenthetically, his answers to the questions appearing therein are in surprisingly fluent, flawless
and expressive Tagalog, which could not have been done by him because of his defect in speech
7

and articulation.

He further claims that he was instead tortured by the police authorities into signing the same, and
not that he did so voluntarily. While he admits having been at the residence of the victims on the
night that they were murdered, he flatly denied having killed them as he left the trio well and alive
that same night when he proceeded to his brother's place in Fort Bonifacio. 8

1. In unambiguous and explicit terms, Section 12, paragraph 1, of Article III of the Constitution
requires that "[a]ny person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel." Corollary thereto,
paragraph 3 thereof declares that any confession or admission obtained in violation of the same
shall be inadmissible in evidence against the confessant.

An accused person must be informed of the rights set out in said paragraph of Section 12 upon
being held as a suspect and made to undergo custodial investigation by the police authorities. As 9

explained by this Court in People vs. Marra, custodial investigation involves any questioning
10

initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of
his freedom of action in any significant manner. And, the rule begins to operate at once as soon as
the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed
upon a particular suspect who has been taken into custody and to whom the police would then direct
interrogatory question which tend to elicit incriminating statements.

Furthermore, not only does the fundamental law impose, as a requisite function of the investigating
officer, the duty to explain those rights to the accused but also that there must correspondingly be a
meaningful communication to and understanding thereof by the accused. A mere perfunctory reading
by the constable of such rights to the accused would thus not suffice.

The defendant in the dock must be made to understand comprehensively, in the language or dialect
that he knows, the full extent of the same. A confession made in an atmosphere characterized by
deficiencies in informing the accused of all the rights to which he is entitled would be rendered
valueless and inadmissible, perforated, as it is by non-compliance with the procedural and
substantive safeguards to which an accused is entitled under the Bill of Rights and as now further
implemented and ramified by statutory law. 11
2. In the present case, SPO1 Atanacio, Jr., admitted in his testimony before the lower court that the
investigation of appellant in connection with the murders actually commenced at around 9:00 A.M.
on June 27, 1992 at the police headquarters in Cainta, Rizal, at the time when appellant was still
without counsel. The sworn statement containing appellant's extrajudicial confession itself shows
12

that it was taken at around 11:00 A.M. Further, while SPO1 Atanacio, Jr. informed appellant in
13

Tagalog of his right to remain silent, that any statement he made could be used for or against him in
any court, and that he could have counsel preferably of his own choice, he nonetheless failed to tell
appellant that if the latter could not afford the services of counsel, he could be provided with one.
14

The foregoing lapses on the part of the police authorities are all fatal to the admissibility of the
extrajudicial confession supposedly executed by appellant before SPO1 Atanacio, Jr. Jurisprudence
along these lines have all been too consistent — an accused under custodial interrogation must
continuously have a counsel assisting him from the very start thereof. Indeed, Section 12, Article III
of the Constitution, could not be any clearer.

To reiterate, prior to the commencement of the investigation, the accused must perforce be informed,
on top of all his other rights enumerated therein, that where he lacks a counsel of his choice
because of indigence or other incapacitating cause, he shall be provided with one. Without this
further safeguard, the cautionary right to counsel would merely impress upon the accused, more so
upon an impecunious person like appellant who is hardly educated, that his right thereto would mean
simply that he can consult a lawyer if he has one or has the financial capacity to obtain legal
services, and nothing more.

Curiously, the record is completely bereft of any indication as to how appellant was able to engage
the services of Atty. Lorenza Bernardino-Villanueva, the counsel who was allegedly present when
appellant executed his confession and who was not even subpoenaed to testify thereon. This
significant circumstance lends credence to the latter's denial that he ever met in person, much less
executed the confession in the presence of, said counsel. What emerges from a perusal of the
record is that this counsel was merely picked out and provided by the law enforcers themselves,
thus putting into serious doubt her independence and competence in assisting appellant during the
investigation as to affect its admissibility.
15

Moreover, had she been equal to her responsibility in the face of such serious charge involved in the
cases, the failure of SPO1 Atanacio, Jr. to fully apprise appellant of all his rights, particularly the
requirement that if he could not afford the services of a lawyer he shall be provided with one would
have been rectified by said counsel at that very stage of the investigation. Indeed, from our earliest
jurisprudence, the law vouchsafes to the accused the right to an effective counsel, one who can be
made to act in protection of his rights, and not by merely going through the motions of providing him
16

with anyone who possesses a law degree.

Again, about the only matter that bears out the presence of such counsel at that stage of custodial
interrogation are the signatures which she affixed on the affidavit. Withal, a cursory reading of the
confession itself and SPO1 Atanacio's version of the manner in which he conducted the
interrogation, yields no evidence or indication pointing to her having explained to the appellant his
rights under the Constitution.

In People vs. Ayson, etc., et al., this Court aptly emphasized these constitutional safeguards in this
17

wise:

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a
person in police custody, "in-custody interrogation" being regarded as the commencement of
an adversary proceeding against the suspect.
 He must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be afforded to him
throughout the interrogation. After such warnings have been given, such
opportunity afforded him, the individual may knowingly and intelligently waive
these rights and agree to answer or make a statement. But unless and until
such warnings and waivers are demonstrated by the prosecution at the trial,
no evidence obtained as a result of interrogation can be used against him.

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

dominated atmosphere, resulting in self-incriminating statements without full warnings of
constitutional rights.

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons." And, as this Court has already stated, by custodial
interrogation is meant "questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way." The situation contemplated has also been more precisely described by this Court.

. . . After a person is arrested and his custodial investigation begins, a

confrontation arises which at best may be termed unequal. The detainee is
brought to an army camp or police headquarters and there questioned and
"cross-examined" not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in strange and
unfamiliar surroundings, and every person he meets, he considers hostile to
him. The investigators are well-trained and seasoned in their work. They
employ all the methods and means that experience and study have taught
them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights. And
even if they were, the intimidating and coercive presence of the officers of the
law in such an atmosphere overwhelms them into silence. Section 20 of the
Bill of Rights seeks to remedy this imbalance.

3. Necessarily, even while there is evidence of the corpus delicti in this case, appellant's conviction
must be set aside for his extrajudicial confession is obviously inadmissible in evidence against him.
The rule is that an extrajudicial confession, where admissible must be corroborated by evidence of
the corpus delicti in order to sustain a finding of guilt. Both must co-exist. The insistence of the
18

Office of the Solicitor General that appellant's confession could nonetheless be treated as an
"admission" which could therefore be admitted in evidence is misplaced, for the Bill of Rights treats
of both "confessions" and "admissions" in the same light. In addition, it should be stressed that in
19

appellant's case, no eyewitnesses to the actual killings were ever presented to testify in court, and
the prosecution relied primarily on circumstantial evidence to inculpate appellant in crimes wherein
he was meted three penalties of reclusion perpetua.

It is significant that, with the exception of appellant's putative extrajudicial confession, no other
evidence of his alleged guilt has been presented by the People. The proposition that the medical
findings jibe with the narration of appellant as to how he allegedly committed the crimes falls into the
fatal error of figuratively putting the horse before the cart. Precisely, the validity and admissibility of
the supposed extrajudicial confession are in question and the contents thereof are denied and of
serious dubiety, hence the same cannot be used as the basis for such a finding. Otherwise, it would
assume that which has still to be proved, a situation of petitio principii or circulo en probando.

Evidently, herein appellant cannot be made to suffer the extreme penal consequences of the crimes
on account of the shaky and decrepit circumstantial evidence proffered by the prosecution. While the
defense of alibi advanced by appellant is by nature a weak one by itself, it assumes commensurate
significance and strength where the evidence for the prosecution itself is frail and effete. For,
needless to state, the prosecution must not rely on the weakness of the evidence of the defense but
upon the vigor of its own. In sum, the presumption of innocence enjoyed by appellant has remained
20

intact and impervious to the prosecution's assault thereon.

ACCORDINGLY, on the foregoing premises, the judgments of the Regional Trial Court, Branch 74, of
Antipolo, Rizal in Criminal Cases Nos. 92-8029, 92-8030 and 92-8031 are REVERSED and SET
ASIDE and accused-appellant Rodolfo de la Cruz, alias Rodolfo Domingo or "Ompong," is hereby
ACQUITTED. His immediate release is accordingly ordered unless there be any other lawful cause
for his continued incarceration.

SO ORDERED.

Puno and Torres, Jr., JJ., concur.

Mendoza, J., is on leave.

EN BANC

G.R. No. 140740 April 12, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUANITO BALOLOY, accused-appellant.

PER CURIAM:

At the waterfalls of Barangay Inasagan, Aurora, Zamboanga del Sur, on the evening of 3 August
1996, the dead body of an 11-year-old girl Genelyn Camacho (hereafter GENELYN) was found. The
one who caused its discovery was accused-appellant Juanito Baloloy (hereafter JUANITO) himself,
who claimed that he had caught sight of it while he was catching frogs in a nearby creek. However,
based on his alleged extrajudicial confession, coupled with circumstantial evidence, the girl’s
unfortunate fate was pinned on him. Hence, in this automatic review, he seeks that his alleged
confession be disregarded for having been obtained in violation of his constitutional rights, and that
his conviction on mere circumstantial evidence be set aside.
The information charging JUANITO with the crime of rape with homicide reads as follows:
1

That on August 3, 1996 at about 6:30 o’clock in the evening, at Barangay Inasagan,
Municipality of Aurora, province of Zamboanga del Sur, Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, by means of force
and intimidation, did then and there, willfully, unlawfully and feloniously have carnal
knowledge with one Genelyn Camacho, a minor against the latter’s will and on said occasion
and by reason of the rape, the said Genelyn Camacho died as a result of personal violence,
inflicted upon her by the accused.

Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659.

The case was docketed as Criminal Case No. AZ-CC-96-156.

Upon arraignment on 10 December 1996, JUANITO entered a plea of not guilty. Trial on the merits
2

ensued thereafter.

Jose Camacho, father of GENELYN and resident of Inasagan, Purok Mabia, Aurora, Zamboanga del
Sur, testified that at about 5:00 p.m. of 3 August 1996, he asked GENELYN to borrow some rice from
their neighbor Wilfredo Balogbog whose house was about 200 meters away. GENELYN forthwith
left, but never returned. Thus, Jose went to the house of Wilfredo, who informed him that GENELYN
had already left with one ganta of rice. Jose then started to look for GENELYN. Speculating that
GENELYN might have taken shelter at the house of their neighbor Olipio Juregue while it was
raining, Jose proceeded to Olipio’s house. Unfortunately, Jose did not find GENELYN there. Not
losing hope, Jose proceeded to the house of Ernesto Derio. On his way, he met Wilfredo, who
accompanied him to the house of Ernesto. GENELYN was not there either. They continued their
search for GENELYN, but when it proved to be in vain, the two decided to go home. 3

A few minutes after Jose reached his house, Ernesto and JUANITO arrived. JUANITO informed Jose
that he saw a dead body at the waterfalls, whose "foot was showing." When asked whose body it
was, JUANITO answered that it was GENELYN’s. Immediately, the three went to the waterfalls
where JUANITO pointed the spot where he saw GENELYN’s body. With the aid of his flashlight, Jose
went to the spot, and there he saw the dead body floating face down in the knee-high water. True
enough, it was GENELYN’s. Jose reported the incident to Barangay Captain Luzviminda Ceniza.
Upon Ceniza’s order, the Bantay Bayan members and some policemen retrieved and brought
GENELYN’s dead body to Jose’s house. 4

Wilfredo Balogbog corroborated the testimony of Jose that GENELYN came to his house in the
afternoon of 3 August 1996 to borrow some rice. GENELYN had with her an umbrella that afternoon,
as it was raining. He learned that GENELYN failed to reach her home when Jose came to look for
her.
5

Ernesto Derio, JUANITO’s uncle-in-law, testified that at about 6:30 p.m. of 3 August 1996, Jose,
together with Wilfredo Balogbog, arrived at his house to look for GENELYN, but they immediately left
when they did not find her. At about 7:30 p.m., JUANITO arrived at Ernesto’s house, trembling and
apparently weak. JUANITO was then bringing a sack and a kerosene lamp. When Ernesto asked
JUANITO where he was going, the latter said that he would catch frogs; and then he left. After thirty
minutes, JUANITO returned and told Ernesto that he saw a foot of a dead child at the waterfalls.
With the disappearance of GENELYN in mind, Ernesto lost no time to go the house of Jose.
JUANITO followed him. There, JUANITO told Jose that he saw a foot of a dead child at the
waterfalls. When Jose asked whether it was GENELYN’s, JUANITO answered in the affirmative. The
three then proceeded to the waterfalls, where JUANITO pointed the place where he saw the body of
GENELYN. Jose immediately approached the body, and having confirmed that it was GENELYN’s,
he brought it to a dry area.6

Ernesto also testified that on 4 August 1996, he saw Antonio Camacho hand over a black rope to
Barangay Captain Ceniza. The latter asked those present as to who owned the rope. When
JUANITO admitted ownership of the rope, Ceniza brought him away from the crowd to a secluded
place and talked to him.7

Finally, Ernesto testified that JUANITO previously attempted to molest his (Ernesto’s) child, an
incident that caused a fight between him (JUANITO) and his (Ernesto’s) wife. 8

Antonio Camacho, a cousin of Jose, testified that on 3 August 1996, he was informed by Jose’s
brother that GENELYN was "drowned." He and the Bantay Bayan members proceeded to the place
of the incident and retrieved the body of GENELYN. At 8:00 a.m. of the following day he, together
with Edgar Sumalpong and Andres Dolero, went to the waterfalls to trace the path up to where
GENELYN was found. There, they found a black rope and an umbrella. They gave the umbrella to
Jose’s wife, and the black rope to Barangay Captain Ceniza, who was then attending the wake of
GENELYN. Ceniza asked those who were at the wake whether anyone of them owned the rope.
JUANITO answered that he owned it. Thereafter Ceniza talked to JUANITO. 9

Andres Dolero corroborated the testimony of Antonio on the recovery of the black rope and umbrella
at the waterfalls where GENELYN’s body was found. 10

Barangay Captain Ceniza of Inasagan, Aurora, Zamboanga del Sur, testified that at about 8:30 p.m.
of 3 August 1996, Jose Camacho, Ernesto Derio, Porferio Camacho, and JUANITO arrived at her
house to inform her that JUANITO found GENELYN’s dead body at the waterfalls. Ceniza forthwith
ordered the members of the Bantay Bayan to retrieve the body of GENELYN, and reported the
incident to the police headquarters of Aurora, Zamboanga del Sur. She specifically named JUANITO
as her suspect. She then went home and proceeded to Jose’s house for GENELYN’s wake. She saw
JUANITO at the wake and noticed that he was very uneasy. 11

Ceniza further revealed that on 4 August 1996, while she was on her way to Jose’s house, Antonio
gave her a black rope, which he reportedly found at the spot where the dead body of GENELYN was
retrieved. Ceniza then asked the people at the wake about the rope. JUANITO, who was among
those present, claimed the rope as his. She brought JUANITO away from the others and asked him
why his rope was found at the place where GENELYN’s body was discovered. JUANITO answered:
"I have to claim this as my rope because I can commit sin to God if I will not claim this as mine
because this is mine." Ceniza further asked JUANITO to tell her everything. JUANITO told Ceniza
that his intention was only to frighten GENELYN, not to molest and kill her. When GENELYN ran
away, he chased her. As to how he raped her, JUANITO told Ceniza that he first inserted his fingers
into GENELYN’s vagina and then raped her. Thereafter, he threw her body into the ravine. 12

After such confession, Ceniza examined his body and found a wound on his right shoulder, as well
as abrasions and scratches on other parts of his body. Upon further inquiry, JUANITO told her that
the wound on his shoulder was caused by the bite of GENELYN. Ceniza then turned over JUANITO
to a policeman for his own protection, as the crowd became unruly when she announced to them
that JUANITO was the culprit. JUANITO was forthwith brought to the police headquarters. 13

Victor Mosqueda, a member of the Philippine National Police (PNP) stationed at the Aurora Police
Station, testified that at about 10:00 p.m. of 4 August 1996 he was at Jose’s house. Ceniza informed
him that JUANITO was the suspect in the killing of GENELYN, and she turned over to him a black
rope which belonged to JUANITO. He wanted to interrogate JUANITO, but Ceniza cautioned him not
to proceed with his inquiry because the people around were getting unruly and might hurt JUANITO.
Mosqueda immediately brought JUANITO to the police station, and on that same day, he took the
affidavits of the witnesses. The following day, a complaint was filed against JUANITO. 14

Dr. Arturo Lumacad, Municipal Health Officer of the Aurora Rural Health Clinic, testified that he
examined JUANITO so as to verify the information that JUANITO sustained wounds in his body. His 15

examination of JUANITO revealed the following injuries:

1. fresh abrasions on the right portion of the cheek;

2. multiple abrasions on the right shoulder;

3. abrasion on the left shoulder; and

4. abrasions on the left forearm. 16

Dr. Lumacad also testified that he examined the dead body of GENELYN on 4 August 1996 and
found the following injuries:

1. 2.5-inch lacerated wound at her left neck, front of the head;

2. 1-inch wound at the right cheek just below the first wound;

3. multiple contusions on her chest;

4. contusion at the right hip; and

5. fresh lacerations on her vagina at 9 o’clock and 3 o’clock positions. 17

He opined that the fresh lacerations could have been caused by a large object inserted into
GENELYN’s vagina, such as a male sex organ, a rod, or a piece of wood or metal. 18

Presiding Judge Celestino V. Dicon of the Municipal Trial Court of Aurora, Zamboanga del Sur,
testified that when he arrived in his office at around 8:30 a.m. of 4 August 1996 several people,
including Barangay Captain Ceniza, were already in his courtroom. He learned that they came to
swear to their affidavits before him. After reading the affidavit of Ceniza, he asked Ceniza whether
her statements were true. Ceniza answered in the affirmative and pointed to JUANITO as the culprit.
Judge Dicon turned to JUANITO and asked him whether the charge against him was true. JUANITO
replied in the dialect: "[N]apanuwayan ko, sir" ("I was demonized"). While Judge Dicon realized that
he should not have asked JUANITO as to the truthfulness of the allegations against him, he felt
justified in doing so because the latter was not under custodial investigation. Judge Dicon thus
proceeded to ask JUANITO whether he had a daughter as old as the victim and whether he was
aware of what he had done to GENELYN. Again, JUANITO responded that he was demonized, and
he spontaneously narrated that after he struck GENELYN’s head with a stone he dropped her body
into the precipice.
19

Lopecino Albano, process server in the court of Judge Dicon, corroborated the testimony of the latter
as to JUANITO’s admission that he was demonized when he raped and killed GENELYN. 20

The sole witness for the defense was JUANITO, who invoked denial and alibi. He testified that he
was at his mother’s house at around 6:30 p.m. of 3 August 1996. An hour later, he left for the creek
to catch frogs; and while catching frogs, he saw a foot. He forthwith headed for Ernesto Derio’s
house to ask for help. There, he told Ernesto and his wife of what he had seen. Ernesto’s wife asked
JUANITO whether the person was still alive, and JUANITO answered that he was not sure. At this
point, Ernesto informed him that Jose Camacho was looking for GENELYN. JUANITO and Ernesto
then proceeded to the house of Jose to inform the latter of what he, JUANITO, had seen. The three
forthwith went to the creek. There, they found out that the foot was GENELYN’s and that she was
already dead. Upon Jose’s request, JUANITO and Ernesto informed Jose’s brother about the
incident, and they proceeded to the house of Ceniza. Thereafter, they, along with the members of the
Bantay Bayan, went back to the creek to retrieve the body of GENELYN. 21

JUANITO further recalled that after the body of GENELYN was brought to her parent’s house, he
helped saw the lumber for her coffin. Thereafter, he went to Ernesto’s house to get the sack
containing the seventeen frogs he had caught that night, which he earlier left at Ernesto’s house. He
was shocked to find out that the rope which he used to tie the sack, as well as all the frogs he
caught, was missing. As it was already dawn, JUANITO left his sack at his mother’s house; then he
proceeded to the house of Jose to help make the coffin of GENELYN. But, at around 8:00 a.m.,
policeman Banaag came looking for him. He stopped working on GENELYN’s coffin and identified
himself. Banaag took him away from the house of Jose and asked him whether he owned the rope.
JUANITO answered in the affirmative. At this point, policeman Mosqueda came near them and
escorted him and Banaag back to Jose’s house. At Jose’s house, Mosqueda announced to the
crowd that JUANITO was the suspect in GENELYN’s untimely demise. JUANITO was then detained
and investigated at the police station. During his investigation by the police officers and by Judge
22

Dicon, he was never assisted by a lawyer. 23

In its challenged decision, the trial court found JUANITO guilty beyond reasonable doubt of the
24

crime of rape with homicide. On the challenge on the admissibility of the admissions he made to
Barangay Captain Ceniza and Judge Dicon, it ruled that they are not the law enforcement authorities
referred to in the constitutional provisions on the conduct of custodial investigation. Hence,
JUANITO’s confessions made to them are admissible in evidence. Moreover, no ill-motive could be
attributed to both Ceniza and Judge Dicon. It also found unsubstantiated JUANITO’s claim that he
was threatened by his fellow inmates to make the confession before Judge Dicon; and that, even
assuming that he was indeed threatened by them, the threat was not of the kind contemplated in the
Bill of Rights. The threat, violence or intimidation that invalidates confession must come from the
police authorities and not from a civilian. Finally, it ruled that JUANITO’s self-serving negative
evidence cannot stand against the prosecution’s positive evidence.

The trial court, thus, convicted JUANITO of rape with homicide and imposed on him the penalty of
death. It also ordered him to pay the heirs of the victim the amount of P50,000 by way of civil
indemnity. Hence, this automatic review.

In his Appellant’s Brief, JUANITO imputes to the trial court the following errors:

THE COURT A QUO GRAVELY ERRED IN ADMITTING THE ALLEGED CONFESSION OF THE
ACCUSED-APPELLANT TO WITNESSES LUZVIMINDA CE[N]IZA AND JUDGE CELESTINO
DICON AS EVIDENCE AGAINST THE ACCUSED.

II
ON ACCOUNT OF THE INADMISSIBILITY OF THE ACCUSED’S ALLEGED CONFESSION THE
COURT GRAVELY ERRED IN CONVICTING THE ACCUSED BASED ON MERE
CIRCUMSTANTIAL EVIDENCE.

Anent the first assigned error, JUANITO maintains that the trial court violated Section 12(1) of Article
III of the Constitution when it admitted in evidence his alleged extrajudicial confession to Barangay
25

Captain Ceniza and Judge Dicon. According to him, the two failed to inform him of his constitutional
rights before they took it upon themselves to elicit from him the incriminatory information. It is of no
moment that Ceniza and Dicon are not police investigators, for as public officials it was incumbent
upon them to observe the express mandate of the Constitution. While these rights may be waived,
the prosecution failed to show that he effectively waived his rights through a written waiver executed
in the presence of counsel. He concludes that his extrajudicial confession is inadmissible in
evidence.

In his second assigned error, JUANITO asserts that the prosecution miserably failed to establish with
moral certainty his guilt. He points to the contradicting testimonies of the witnesses for the
prosecution concerning the retrieved rope owned by him. Consequently, with the inadmissibility of
his alleged extrajudicial confession and the apparent contradiction surrounding the prosecution’s
evidence against him, the trial court should have acquitted him.

In the Appellee’s Brief, the Office of the Solicitor General (OSG) supports the trial court’s finding that
JUANITO is guilty beyond reasonable doubt of the crime as charged. His bare denial and alibi
cannot overcome the positive assertions of the witnesses for the prosecution. Moreover, he was
unable to establish by sufficient evidence that Barangay Captain Ceniza and Judge Dicon had an
ulterior motive to implicate him in the commission of the crime.

The OSG recommends that the civil indemnity of P50,000 awarded by the trial court be increased to
P75,000; and that in line with current jurisprudence, moral damages in the amount of P50,000 be
awarded to the heirs of GENELYN.

We shall first address the issue of admissibility of JUANITO’s extrajudicial confession to Barangay
Captain Ceniza.

It has been held that the constitutional provision on custodial investigation does not apply to a
spontaneous statement, not elicited through questioning by the authorities but given in an ordinary
manner whereby the suspect orally admits having committed the crime. Neither can it apply to
admissions or confessions made by a suspect in the commission of a crime before he is placed
under investigation. What the Constitution bars is the compulsory disclosure of incriminating facts or
confessions. The rights under Section 12 of the Constitution are guaranteed to preclude the slightest
use of coercion by the state as would lead the accused to admit something false, not to prevent him
from freely and voluntarily telling the truth.
26

In the instant case, after he admitted ownership of the black rope and was asked by Ceniza to tell
her everything, JUANITO voluntarily narrated to Ceniza that he raped GENELYN and thereafter
threw her body into the ravine. This narration was a spontaneous answer, freely and voluntarily
given in an ordinary manner. It was given before he was arrested or placed under custody for
investigation in connection with the commission of the offense.

It may be stressed further that Ceniza’s testimony on the facts disclosed to her by JUANITO was
confirmed by the findings of Dr. Lumacad. GENELYN’s physical resistance and biting of the right
shoulder of JUANITO were proved by the wound on JUANITO’s right shoulder and scratches on
different parts of his body. His admission that he raped GENELYN was likewise corroborated by the
fresh lacerations found in GENELYN’s vagina.

Moreover, JUANITO did not offer any evidence of improper or ulterior motive on the part of Ceniza,
which could have compelled her to testify falsely against him. Where there is no evidence to show a
doubtful reason or improper motive why a prosecution witness should testify against the accused or
falsely implicate him in a crime, the said testimony is trustworthy.
27

However, there is merit in JUANITO’s claim that his constitutional rights during custodial
investigation were violated by Judge Dicon when the latter propounded to him incriminating
questions without informing him of his constitutional rights. It is settled that at the moment the
accused voluntarily surrenders to, or is arrested by, the police officers, the custodial investigation is
deemed to have started. So, he could not thenceforth be asked about his complicity in the offense
without the assistance of counsel. Judge Dicon’s claim that no complaint has yet been filed and that
28

neither was he conducting a preliminary investigation deserves scant consideration. The fact
remains that at that time JUANITO was already under the custody of the police authorities, who had
already taken the statement of the witnesses who were then before Judge Dicon for the
administration of their oaths on their statements.

While Mosqueda claims that JUANITO was not arrested but was rather brought to the police
headquarters on 4 August 1996 for his protection, the records reveal that JUANITO was in fact
arrested. If indeed JUANITO’s safety was the primordial concern of the police authorities, the need
to detain and deprive him of his freedom of action would not have been necessary. Arrest is the
taking of a person into custody in order that he may be bound to answer for the commission of an
offense, and it is made by an actual restraint of the person to be arrested, or by his submission to the
person making the arrest. 29

At any rate, while it is true that JUANITO’s extrajudicial confession before Judge Dicon was made
without the advice and assistance of counsel and hence inadmissible in evidence, it could however
be treated as a verbal admission of the accused, which could be established through the testimonies
of the persons who heard it or who conducted the investigation of the accused. 30

JUANITO’s defense of alibi is futile because of his own admission that he was at the scene of the
crime. Alibi is a defense that places an accused at the relevant time of a crime in a place other than
the scene involved and so removed therefrom as to render it impossible for him to be the guilty
party. Likewise, a denial that is unsubstantiated by clear and convincing evidence is a negative and
31

self-serving evidence, which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters. 32

Anent the alleged inconsistencies in the details surrounding the recovery of the black rope, the same
are irrelevant and trite and do not impair the credibility of the witnesses. Minor inconsistencies and
honest lapses strengthen rather than weaken the credibility of witnesses, as they erase doubts that
such testimonies have been coached or rehearsed. What matters is that the testimonies of
33

witnesses agree on the essential fact that JUANITO was the owner of the black rope and the
perpetrator of the crime.

Even if JUANITO’s confession or admission is disregarded, there is more than enough evidence to
support his conviction. The following circumstances constitute an unbroken chain proving beyond
reasonable doubt that it was JUANITO who raped and killed GENELYN:
 1. At about 5:00 p.m. of 3 August 1996, Jose Camacho bid his daughter GENELYN to borrow
some rice from their neighbor Wilfredo Balogbog. GENELYN did so as told, but failed to
return home.

2. About 7:30 p.m. of the same day, JUANITO arrived at Ernesto’s house bringing a sack and
kerosene lamp, trembling and apparently weak.

3. Thirty minutes thereafter, JUANITO returned to Ernesto’s house and told Ernesto that he
saw a foot of a dead child at the waterfalls, without disclosing the identity of the deceased.

4. When JUANITO and Ernesto were at Jose’s house, the former told Jose that it was
GENELYN’s foot he saw at the waterfalls.

5. GENELYN was found dead at the waterfalls with fresh lacerations on her vaginal wall at 9
and 3 o’clock positions.

6. At about 8:00 a.m. of 4 August 1996, Antonio Camacho, Andres Dolero and Edgar
Sumalpong recovered at the crime site a black rope, which they turned over to Ceniza, who
was then at GENELYN’s wake.

7. When Ceniza asked the people around as to who owned the black rope, JUANITO
claimed it as his.

8. When Ceniza examined JUANITO’s body, she saw a wound on his right shoulder and
scratches on different parts of his body.

9. Dr. Lumancad’s physical examination of JUANITO revealed abrasions, which could have
been caused by scratches.

Guilt may be established through circumstantial evidence provided that the following requisites
concur: (1) there is more than one circumstance; (2) the inferences are based on proven facts; and
(3) the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt
of the accused. All these requisites are present in the case at bar.
34

With JUANITO’s guilt for rape with homicide proven beyond reasonable doubt, we are constrained to
affirm the death penalty** imposed by the trial court. Article 335 of the Revised Penal Code, as
amended by Section 11 of R.A. No. 7659, pertinently provides: "When by reason or on occasion of
the rape, a homicide is committed, the penalty shall be death."

As to JUANITO’s civil liability, prevailing judicial policy has authorized the mandatory award of
P100,000 as civil indemnity ex delicto in cases of rape with homicide (broken down as follows:
35

P50,000 for the death and P50,000 upon the finding of the fact of rape). Thus, if homicide is
committed by reason or on occasion of rape, the indemnity in the amount of P100,000 is fully
justified and properly commensurate with the seriousness of the said special complex crime. Moral
damages in the amount of P50,000 may be additionally awarded to the heirs of the victim without the
need for pleading or proof of the basis thereof; the fact that they suffered the trauma of mental,
physical and psychological sufferings, which constitutes the basis for moral damages under the Civil
Code, is too obvious to still require the recital thereof at the trial.
36

WHEREFORE, the decision of the Regional Trial Court, Branch 30, Aurora, Zamboanga Del Sur, in
Criminal Case No. AZ-CC-96-156, finding accused-appellant Juanito Baloloy guilty of the crime of
rape with homicide and sentencing him to suffer the penalty of death is AFFIRMED with the
modification that he is ordered to pay the heirs of Genelyn Camacho P100,000 as indemnity and
P50,000 as moral damages.

In consonance with Section 25 of R.A. No. 7659 amending Article 83 of the Revised Penal Code,
upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the
President for possible exercise of the pardoning power.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Ynares-
Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.
Mendoza, J., in the result.

EN BANC

G.R. No. 136253 February 21, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CLEMENTE JOHN LUGOD, accused-appellant.

GONZAGA-REYES, J.:

This is an automatic review of the Judgment1 dated October 8, 1998 of the Regional Trial Court
(RTC) of Santa Cruz, Laguna, Branch 28 in Criminal Case No. SC-6670 finding the accused,
Clemente John Lugod alias "HONASAN", guilty beyond reasonable doubt of the crime of rape with
homicide.

On October 10, 1997, an Information 2 for rape with homicide was filed against the accused as
follows:

"That on or about September 16, 1997 in the municipality of Cavinti, province of Laguna and
within the jurisdiction of this Honorable Court, the above-named accused by means force
and intimidation and with lewd designs, did then and there willfully, unlawfully and feloniously
have carnal knowledge with one NAIRUBE J. RAMOS, an eight-year old girl, against her will
and by reason or on the same occasion and in order to hide the crime he just committed,
dump the victim in the grassy coconut plantation area, which resulted in her death due to
shock secondary to vulvar laceration committed on her by the herein accused, to the
damage and prejudice of the surviving heirs of the victim."
Upon arraignment, the accused with the assistance of counsel entered a plea of not
guilty.3 Thereafter, trial ensued.

The prosecution presented the following witnesses in support of its charge against the accused:

EDILBERTO CASTILLO, the medico-legal officer who examined the cadaver of Nairube on
September 19, 1997, testified that during the course of his examination of the cadaver, he
discovered an 8 cm. wound penetration in her vagina which was probably caused by the insertion of
a penis; that the cadaver was in an advanced state of decomposition; that more or less, the
approximate time of death of the victim was three (3) days prior to his examination; and that the
cause of death of the victim was hypovolenic shock secondary to the laceration. 4

RICARDO VIDA, the Task Force Chief of Cavinti, testified that on September 18, 1997, at around
4:35 p.m., the accused pointed out where the body of the victim was; that the accused pointed to a
place inside Villa Anastacia which was two hundred (250) meters from the road; that at the time the
accused pointed to the place, he was handcuffed to the accused; that the accused used his left hand
in pointing towards the direction; and that the father of the victim cried upon identifying the victim." 5

VIOLETA CABUHAT testified that on September 15, 1997, at around 10:00 p.m., she was weaving
hats at her house. At that time, she was together with her three children, Joey, Jessica and Jovelin
and Loreto Veloria. The accused suddenly entered her house and asked her if he could sleep there
but she declined. After she declined, he suddenly forced her to move to one side of the place where
she was seated by forcing his body against hers and held her chin. She noticed that he was drunk at
that time because she smelt liquor on his breath. After he held her chin, she went upstairs and slept.
She claims that the accused left her house at 10:20 p.m. since she looked at her watch when she
went upstairs. She does not remember what happened next. In court, she identified that accused as
the person who entered her house that night. 6

LORETO VELORIA testified that on September 15, 1997, at around 10:10 p.m., he was at the house
of Violeta Cabuhat. While he was there, the accused, whom he identified in court, suddenly arrived.
He noticed that the accused was wearing a pair of muddy rubber slippers the bottom of which was
color red while the top was color yellow. Since the slippers of the accused were muddy, he asked
him to remove them but the accused did not comply with his request. Veloria also noticed that the
accused was wearing a black collared T-shirt. In court, he identified a pair of slippers (Exhibit "D") as
the one he saw the accused wearing that night and on several other occasions. He also identified a
black collared T-shirt in court (Exhibit "E") as the one he saw the accused wearing that night and on
two Veloria stated that the accused sat beside Violeta and tried to catch her chin; that he conversed
with Violeta but did not hear the accused's request if he could stay overnight. After the accused left,
he also left the house of Violeta. 7

PEDRO DELA TORRE testified that on September 15, 1997, at 10:30 p.m., the accused arrived at
his house and joined the drinking session of his son. He noticed that the accused was wearing a
black T-shirt and appeared to be drunk. Dela Torre claims that the accused left at around 11:45 p.m. 8

ROMUALDO RAMOS testified that at around 8:30 on the morning of September 16, 1997, he was
driving his tricycle towards the poblacion of Cavinti. While driving towards the poblacion, he noticed
the accused coming out of the gate of Villa Anastacia. Upon seeing the accused, he stopped his
tricycle thinking that the accused would board the same but the accused did not mind him. He
noticed that the accused was wearing only a pair of white short pants with a red waistline and was
not wearing a T-shirt or any slippers. The accused also appeared to be drunk. Thereafter, he
proceeded to the poblacion terminal where he discovered that Nairube was missing. He also learned
that the accused was the suspect behind her disappearance. Upon learning this, he told Ricardo
Vida, the Chief of the barangay tanod who was searching for the victim, to look for her at Villa
Anastacia because it was the place where he saw the accused come out from. Ramos further
testified that the house of the victim is about five hundred (500) meters away from the place where
he saw the accused but if one passes through the coconut plantation, it is only two hundred (200)
meters away.9

ALMA DIAZ testified that around 2:00 to 3:00 p.m. of September 16, 1997, she went with the search
party to look for Nairube. The search party was composed of around ten (10) persons including
Violeta and Helen Ramos, the mother of the victim. They first searched the back portion of the
victim's house. During the course of their search, she found a panty around three hundred (300)
meters away from the house of the victim. Helen identified the panty as belonging to her daughter
and cried upon seeing the same. The panty was laid behind a barb wire fence (the boundary of Villa
Anastacia) and had a spot of blood and some mud on it. In court, she identified Exhibit "F" as the
panty she saw but stated that it was already clean. Thereafter, they continued the search and found
a black collared T-shirt with buttons in front and piping at the end of the sleeve hanging on a guava
twig. The T-shirt appeared clean at the time. She picked up the T-shirt and brought it along with her
to the house of the victim. Upon reaching the house, the T-shirt fell in mud and got dirty. Diaz further
stated that the panty was found less than a hundred (100) meters away while the black T-shirt was
fifty (50) meters away from the place where the body of the victim was found inside Villa Anastacia
and that the panty and T-shirt were around thirty (30) meters away from each other. Diaz also claims
that eight days after the death of the child, the mother of the accused, Irene Lugod, came to her
house to ask her for help in seeking an amicable settlement of the case with the Ramos spouses.
On cross-examination Diaz stated that she found the panty closer than the black T-shirt to the body
of the victim.10

HELEN RAMOS, the mother of the victim, testified that on September 15, 1997 at around 7:00 p.m.,
she was asleep in her house together with her husband and children, Nimrod; Neres and Nairube,
the victim. Nairube slept close to her "on the upper part II of her body. At around 12:30 a.m., her
husband woke her up because he sensed someone going down the stairs of their house. She
noticed that Nairube was no longer in the place where she was sleeping but she assumed that
Nairube merely answered the call of nature. After three minutes of waiting for Nariube's return, she
stood up and began calling out for Nairube but there was no answer. Thereafter, she went
downstairs and saw that the backdoor of their house was open. She went outside through the
backdoor to see if Nairube was there but she was not. Helen also testified that Nairube's blanket was
also no longer at the place she slept but that her slippers were still there. She further stated that she
found a pair of rubber slippers on top of a wooden bench outside of her backdoor. The sole of the
slippers was red while the strap was a combination of yellow and white. She assured the court that
the slippers did not belong to any member of her family. In court, she identified Exhibit "D" as the
slippers she found that night. Thereafter, she proceeded to the house of Alma Diaz to ask her for
help. Then, in the morning of September 16, 1997, she went to the police station to report the loss of
her child. She also reported the discovery of the pair of slippers. She then went home while the
police began their search for Nairube. At around 12:30 p.m., Alma Diaz requested her to go with the
searching team. During the search, Alma Diaz found a panty which she recognized as that of her
daughter. After seeing the panty, she cried. She was thereafter ordered to go home while the others
continued the search. On September 18, 1997, they found the dead body of her daughter in Villa
Anastacla. Helen also testified on the amounts she spent in connection with the funeral of her
daughter and produced a list which totaled P37,200.00. During cross-examination, Helen stated that
the pair of slippers she found on top of the bench was muddy. 11

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

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

DANILO RAMOS, the father of Nairube, testified that on September 15, 1997 at around 7:00 in the
evening, he was asleep in his house together with his wife, Helen and five children, Nimrod, Neres,
Nairube, Nixon and Nerdami. At around 12:30 a.m., he felt someone going down the stairs of their
house. He woke his wife up and checked if his children were all there. He noticed that Nairube was
not there so his wife went downstairs and checked if she was downstairs. After three minutes, his
wife returned and told him that Nairube was not downstairs. So, he went down to double check.
Upon his return, his wife gave him a pair of red rubber slippers. He described the slipper as having a
red sole but that he did not notice the color of the strap since the light was dim. In court, he identified
Exhibit "D" as the pair of slippers he saw that night. In the early morning of September 16, 1997,
they continued searching for Nairube. On September 18, 1997, a member of the bantay bayan went
to their house informing them that the accused would be pointing out where the body of Nairube
was. At around 4:00 p.m., the accused pointed out the location of the body of Nairube inside Villa
Anastacia by using his lips.14

FLORO ESGUERRA, the Vice-Mayor of Cavinti, testified that on September 19, 1997 at around 3:30
p.m., he attended the funeral of Nairube. After the funeral, he visited the accused in his cell. In the
course of his conversation with the accused, the accused confessed to the commission of the
offense.15

On October 8, 1998 the RTC rendered a decision finding the accused guilty beyond reasonable
doubt of the crime of rape with homicide, the dispositive portion of the decision reads:

"WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, this Court

finds the accused CLEMENTE JOHN LUGOD GUILTY BEYOND REASONABLE DOUBT of
 the special complex crime of RAPE WITH HOMICIDE under Section 11 of Republic Act No.
7659, otherwise known as the Death Penalty Law, amending Article 335 of the Revised
Penal Code and hereby sentences him to suffer the SUPREME PENALTY OF DEATH.
Accused is also ordered to indemnify the heirs of the victim, NAIRUBE RAMOS the sum of
P50,000.00 as civil indemnity for her death and P37,200.00 as actual damages.

The accused is further ordered to pay the cost of the instant suit.

SO ORDERED."16

In view of the imposition of the death penalty, the case is now before this Court on automatic review.

In his brief, the accused-appellant assigns the following errors committed by the RTC:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT ON THE BASIS

OF CIRCUMSTANTIAL EVIDENCE WHICH DID NOT PROVE WITH MORAL CERTAINTY
THAT HE WAS THE PERPETRATOR OF THE CRIME CHARGED.

THE COURT ERRED IN HOLDING THAT APPELLANT CONFESSED HIS GUILT BEFORE
THE VICE-MAYOR, WHICH CONFESSION IS ADMISSIBLE AS IT WAS NOT MADE IN
RESPONSE TO ANY INTERROGATION.17

In support of his appeal, accused-appellant submits that the evidence presented by the prosecution
fails to establish that he raped and killed Nairube Ramos beyond reasonable doubt. The prosecution
did not present any direct evidence to inculpate him in the commission of the crime. Neither did the
prosecution present circumstantial evidence sufficient to establish his guilt beyond reasonable doubt.
Moreover, accused-appellant claims that the alleged confession he made to the vice-mayor was not
a confession. He prays that the judgment of conviction of the RTC be reversed and that he be
acquitted of the crime charged.

After a careful review of the case, we agree with the submission of accused-appellant and find that
the prosecution failed to prove his guilt beyond reasonable doubt.

In rendering its decision, the trial court disregarded accused-appellant's defense of denial and alibi
and relied on the following pieces of circumstantial evidence culled from the testimonies of the
prosecution witnesses to justify its judgment of conviction:

"(1) In the evening of September 15, 1997, Accused CLEMENTE JOHN LUGOD wearing a
pair of slippers and black T-shirt, had a drinking spree with the son of Pedro dela Torre
outside their house at Udia, Cavinti, Laguna;

(2) On the same evening, accused wearing the same pair of slippers and black T-shirt and
under the influence of liquor, entered the house of VIOLETA CABUHAT without her consent;

(3) On the same evening, LORETO VELORIA saw accused wearing the same pair of
slippers and black T-shirt;

(4) At about 12:30 in the early morning of September 16, 1997, father of the victim noticed
somebody going downstairs of their house;

(5) The pair of slippers were found near the door of the victim's house;
 (6) The panty of the victim was found inside the premises of VILLA ANASTACIA at Cavinti,
Laguna;

(7) In the early morning of September 16, 1997, Romualdo Ramos saw accused coming out
of from VILLA ANASTACIA barefoot and half-naked;

(8) Accused pointed to RICARDO VIDA and SPO2 ANTONIO DECENA the place where the
cadaver of the victim could be found;

(9) Accused confessed to the Mayor and the Vice- Mayor of Cavinti, Laguna, that he
committed the offense imputed against him; and

(10) Almost all eyewitnesses for the Prosecution positively identified the accused in open
court as CLEMENTE JOHN LUGOD."18

There is no question that at the time of his apprehension, accused-appellant was already placed
under arrest and was suspected of having something to do with the disappearance of Nairube. In
fact, the lower court declared that accused-appeIlant's warrantless arrest was valid based on Section
5 (b) of Rule 113 of the Rules of Court.19However, at the time of his arrest, the apprehending officers
did not inform the accused-appellant and in fact acted in a blatant and wanton disregard of his
constitutional rights specified in Section 12, Article III of the Constitution, which provides:

(1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

Records reveal that accused-appellant was not informed of his rig ht to re main silent and to counsel,
and that if he can not afford to have counsel of his choice, he would be provided with one. Moreover,
there is no evidence to indicate that he intended to waive these rights. Besides, even if he did waive
these rights, in order to be valid, the waiver must be made in writing and with the assistance of
counsel. Consequently, the accused-appellant's act of confessing to SPO2 Gallardo that he raped
and killed Nairube without the assistance of counsel cannot be used against him for having
transgressed accused-appellant's rights under the Bill of Rights. 20 This is a basic tenet of our
Constitution which cannot be disregarded or ignored no matter how brutal the crime committed may
be. In the same vein, the accused-appellant's act in pointing out the location of the body of Nairube
was also elicited in violation of the accused-appellant's right to remain silent. The same was an
integral part of the uncounselled confession and is considered a fruit of the poisonous tree. Thus,
in People vs. De La Cruz,21 we ruled that:
 "Equally inadmissible, for being integral parts of the uncouselled admission - or fruits of the
poisonous tree - are the photographs of subsequent acts which the accused was made to do
in order to obtain proof to support such admission or confession, such as (a) his digging in
the place where Virginia Trangia was allegedly buried, (b) his retrieving of the bones
discovered therein (c) his posinq before a photographer while executing such acts." 22

Even if we were to assume that accused-appellant was not yet under interrogation and thus not
entitled to his constitutional rights at the time he was brought to the police station, the acts of
accused-appellant subsequent to his apprehension cannot be characterized as having been
voluntarily made considering the peculiar circumstances surrounding his detention. His confession
was elicited by SPO2 Gallardo who promised him that he would help him if he told the truth.
Furthermore, when accused-appellant allegedly pointed out the body of the victim, SPO2 Gallardo,
the whole police force as well as nearly one hundred (100) of the townspeople of Cavinti escorted
him there. Ricardo Vida stated that the townspeople were antagonistic towards accused-appellant
and wanted to hurt him.23 The atmosphere from the time accused-appellant was apprehended and
taken to the police station up until the time he was alleged to have pointed out the location of the
body of the victim was highly intimidating and was not conducive to a spontaneous response. Amidst
such a highly coercive atmosphere, accused-appellant's claim that he was beaten up and maltreated
by the police officers raises a very serious doubt as to the voluntariness of his alleged confession.
The Vice-Mayor, who testified that when he visited accused-appellant in the jail cell, he noticed that
the accused-appellant had bruises on his face, corroborated accused-appellant's assertion that he
was maItreated.24

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

"TRIAL PROSECUTOR;

Q: More or less what time did you visit Clemente John Lugod in his cell?

A: Between 3:30 and 4:00 o'clock in the afternoon, sir.

Q: Do you have any companion at the time you visited Clemente John Lugod?

A: Nobody, sir.

Q: Tell us how you were able to visit him in the said cell?

A: My first intention in visiting him was just to know him, sir.

Q: Did anybody introduce to you Clemente John Lugod?

A: A police officer called Clemente John Lugod, who was then lying inside the cell, sir.

Q: What did the police officer say to Clemente John Lugod?

A: The police officer said: "Lugod, the vice mayor wants to talk to you."

TRIAL PROSECUTOR:
Q: What did Lugod do if any when he was called by the police officer?

A: He arose and he greeted me good afternoon, sir.

Q: What happened after he greeted you good afternoon?

A: I pitied him during that time. I asked him why he did that thing.

COURT:

Q: Did you specify to him what you mean by why he did such a thing?

A: No, Your Honor, I merely asked him why was he able to do that.

Q: Do you know if Lugod understood what you mean?

A: I think he understood my question then, Your Honor.

TRIAL PROSECUTOR:

Q: what was the response of Clemente John Lugod when you asked him that question?

A: He told me he was so drunk, he did not know what happened next. "Hindi niya
namalayan na ganoon ang nangyari."

Q: Did you ask him what he has done? WITNESS:

A: I asked him why he went to that place, sir.

TRIAL PROSECUTOR:

Q: What place are you referring to?

A: That house. I did not ask the specific place, what I was referring then was that house.

Q: What was the response of Clemente John Lugod?

A: He answered he thought of his two children, sir.

Q: What about if he thought of his two children?

A: According to him he planned to go back to Brgy. Layog where he left his children.

Q: Did you ask him what he do (sic) in that place?

A: I did not ask, sir.

Q: What else did he tell you?

A: I asked another question, sir.

Q: What is that other question?

A: I asked him if it was the mother whom he liked then, sir.

Q: What was the answer?

A: Allegedly not the mother, sir.

TRIAL PROSECUTOR:

Q: Did you ask him what did he do (sic) in that place?

A: No more, sir.

Q: What else did he tell you aside from what you have testified?

A: No more, sir, I bid him goodbye.

Q: Is Clemente John Lugod present in court?

A: Yes, sir.

Q: Please point at him.

A: (Witness going down of the witness stand and pointed to a person who when asked of
his name answered Clemente John Lugod, the accused in this case).

TRIAL PROSECUTOR: That will be all, Your Honor.

COURT: Cross

ATTY. DE RAMOS: With the permission of the Honorable Court?

COURT: Proceed.

ATTY. DERAMOS:

Q: Vice mayor, when you visited John Lugod on September 19, 1997 at around 3:30 to
4:00 o'clock in the afternoon, you stated that he was lying in his cell, is that correct?

A: Yes, sir.

ATTY. DE RAMOS:

Q: And the reason why the police officer called John Lugod is because you approached
that police, is that correct?
A: Yes, sir.

Q: And you asked him where is John Lugod?

A: Yes, sir.

Q: Because you do not know John Lugod personally?

A: Yes, sir.

Q: When you were about to talk to John Lugod, was he still inside the cell or outside the
cell?

A: He was still inside the cell, sir.

Q: So you are outside the cell?

A: Yes, sir.

Q: How about the police officer who called John Lugod?

A: He was outside the cell, sir.

Q: So the police officer who called John Lugod was present while you were conversing
with John Lugod?

A: No, sir, he was no longer present because after calling John Lugod he left.

Q: What was John Lugod wearing at that time?

WITNESS:

A: I cannot remember anymore, sir.

ATTY. DE RAMOS:

Q: But you can still remember his physical appearance at that time?

A: Yes, sir.

Q: What was the physical appearance of Clemente John Lugod at that time?

A: As far as I can recall it seemed that he had some bruises on his face (witness pointing
to his lower jaw)

COURT

Q: Did you not ask him what happened to his face?

 A: No, sir.

Q: Did it not occur to you to think in that appearance that there was something that
happened?

A: No, Your Honor, because my first intention was just to know him.

Q: Did not the accused Clemente John Lugod inform you of any maltreatment done to
him by the police officers?

A: He did not say anything about that, Your Honor.

Q: Did you not ask John Lugod whether somebody laid force on him?

WITNESS:

A: I was not able to ask that, Your Honor.

ATTY. DE RAMOS:

Q: Aside from bruises on his face did you notice any other bruises or wound on other
parts of his body?

A: No more, sir.

Q: You stated earlier that you asked John Lugod why did you do that, tell the Court what
was his response to your question?

A: He said he was so drunk then, sir.

Q: He did not tell you that he raped the victim and killed her?

A: He did not say that, sir.

Q: He did not directly answer your question because your question did not ask direct to
something?

A: Yes, sir."25

As can be seen from the testimony of the Vice-Mayor, accused-appellant merely responded to the
ambiguous questions that the Vice-Mayor propounded to him. He did not state in certain and
categorical terms that he raped and killed Nairube. In fact, the Vice-Mayor admitted that the
accused-appellant did not tell him that he raped and killed Nairube. In addition, we note the
contradiction between the testimony of the Vice-Mayor who stated that he was alone when he spoke
to the accused-appellant and that of SPO2 Gallardo who claimed that he was present when
accused-appellant confessed to the Mayor and Vice-Mayor.

Considering that the confession of accused-appellant cannot be used against him, the only
remaining evidence which was established by the prosecution is the fact that several persons
testified having seen accused-appellant the night before the murder of Nairube and on several other
occasions wearing the rubber slippers and black T-shirt found at the house of the victim and Villa
Anastacia respectively as well as the testimony of Romualdo Ramos, the tricycle driver who stated
that he saw accused-appellant in the early morning of September 16, 1997 leaving Villa Anastacia
without a T-shirt and without slippers. These pieces of evidence are circumstantial in nature.
Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in
issue may be established by inference.26 Under Section 4 of Rule 133 of the Rules on Evidence,
circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

Circumstantial evidence is sufficient to convict if the circumstances proven constitute an unbroken

chain which lead to one fair and reasonable conclusion pointing to the accused, to the exclusion of
all others, as the guilty person. 27

In the present case, much emphasis was placed by the trial court on the discovery of the pair of
rubber slippers at the victim's house and the black T-shirt hanging on a guava twig near the cadaver
of Nairube which were allegedly worn by accused-appellant the day before Nairube's disappearance.
The trial court also relied on the fact that there was an eyewitness who saw accused-appellant
leaving Villa Anastacia, the place where the body of the victim was found, in the morning after the
disappearance of the victim. However, the combination of the above-mentioned circumstances does
not lead to the irrefutably logical conclusion that accused-appellant raped and murdered Nairube. At
most, these circumstances, taken with the testimonies of the other prosecution witnesses, merely
establish the accused-appellant's whereabouts on that fateful evening and places accused-appellant
at the scene of the crime and nothing more. The evidence of the prosecution does not provide a link
which would enable this Court to conclude that he in fact killed and raped Nairube. It must be
stressed that although not decisive for the determination of the guilt of the accused-appellant, the
prosecution did not present any evidence to establish that he was at any time seen with the victim at
or about the time of the incident. Neither was there any other evidence which could single him out to
the exclusion of any other as being responsible for the crime.

It may be argued that his presence at the scene of the crime was unexplained and gives rise to the
suspicion that the accused-appellant was the author thereof but this circumstance alone is
insufficient to establish his guilt. It is well settled that mere suspicions and speculations can never be
the bases of conviction in a criminal case.28

More important, it appears that the rubber slippers, which were found at the house of the victim on
the night Nairube disappeared, are an ordinary pair of rubber slippers without any distinguishing
marks to differentiate the same from any other. In People vs. De Joya,29 this Court ruled that:

"Rubber or beach walk slippers are made in such quantities by multiple manufacturers that
there must have been dozens if not hundreds of slippers of the same color, shape and size
as the pair that Herminia gave to appellant's wife. And even if conclusive identification of the
slippers had been offered, and it is assumed that appellant (rather than his wife) had worn
those slippers on that fatal afternoon, still the presence of that singular slipper did not clearly
and directly connect the appellant to the robbery or the slaying. At most, under that
assumption, the presence of that slipper in the house of the Valencias showed that the
accused had gone to the house of the Valencias and there mislaid the slipper. We note in
 this connection, that appellant himself had testified that he did enter the house of the
Valencias that afternoon, but after the killing of Eulalia Diamse had been perpetrated, and
there found many persons in the house viewing the body." 30

Likewise, in People vs. Mijares,31 this Court ruled that the fact that the accused was the last person
seen with the victim and that his slippers were found at the crime scene do not necessarily prove
that he killed the victim. This Court stated that:

"That the appellant was the last person seen with the victim on the night she disappeared
does not necessarily prove that he killed her. It was not established that appellant and the
victim were together until the crime was committed. It was not even shown that the appellant
proceeded to the crime scene, either by himself or together with the victim.

Likewise, the fact that the slippers which appellant borrowed from Elizabeth Oglos were
found near the victim's dead body does not necessarily prove that he was the perpetrator of
the crime. Even if we were to conjecture that appellant went to the locus criminis and
inadvertently left them there, such supposition does not necessarily imply that he had
committed the crime. Indeed, it was not established whether appellant went to the place
before, during or after the commission of the crime, if at all. Moreover, the prosecution has
not ruled out the possibility that the slippers may have been brought by another person to the
crime scene, precisely to implicate him and thus exonerate the real culprit. Clearly, several
antithetical propositions may be inferred from the presence of the slippers at the crime
scene, and appellant's guilt is only one of them."32

WHEREFORE, in view of the foregoing, the appealed Judgment dated October 8, 1998 of the
Regional Trial Court of Branch 28 in Criminal Case No. SC-6670 finding the accused, Clemente
John Lugod alias "HONASAN", guilty of the crime of rape with homicide is
hereby REVERSED and SET ASIDE and accused-appellant is ACQUITTED of the crime charged on
the ground of reasonable doubt. He is ordered immediately RELEASED from confinement unless
held for some other legal cause.

No pronouncement as to costs. 1âwphi1.nêt

SO ORDERED.

Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 127755 April 14, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSELITO DEL ROSARIO y PASCUAL, accused-appellant.
BELLOSILLO, J

ON AUTOMATIC REVIEW is the decision of the court a quo finding accused Joselito del Rosario y
Pascual guilty as co-principal in the crime of Robbery with Homicide and sentencing him to death,
and to pay the heirs of victim Virginia Bernas P550,000.00 as actual damages and P100,000.00 as
moral and exemplary damages. 1

Joselito del Rosario y Pascual, Ernesto Marquez alias "Jun," Virgilio Santos alias "Boy Santos" and
John Doe alias"Dodong" were charged with the special complex crime of Robbery with Homicide for
having robbed Virginia Bernas, a 66-year old businesswoman, of P200,000.00 in cash and jewelry
and on the occasion thereof shot and killed her. 2

While accused Joselito del Rosario pleaded not guilty, Virgilio "Boy" Santos and John
3

Doe alias "Dodong" remained at large. Ernesto "Jun" Marquez was killed in a police encounter. Only
Joselito del Rosario was tried.

These facts were established by the prosecution from the eyewitness account of tricycle driver Paul
Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in the evening, Alonzo stopped his tricycle
by the side of Nita's Drugstore, General Luna St., Cabanatuan City, when three women flagged him.
Parked at a distance of about one and a-half (1 1/2) meters in front of him was a tricycle driven by
accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a woman grappling for
possession of a bag. After taking hold of the bag one of the two men armed with a gun started
chasing a man who was trying to help the woman, while the other snatcher kicked the woman
sending her to the ground. Soon after, the armed man returned and while the woman was still on the
ground he shot her on the head. The bag taken by the man was brought to the tricycle of accused
del Rosario where someone inside received the bag. The armed man then sat behind the driver
while his companion entered the sidecar. When the tricycle sped away Alonzo gave chase and was
able to get the plate number of the tricycle. He also recognized the driver, after which he went to the
nearest police headquarters and reported the incident. 4

Accused Joselito del Rosario gave his own version of the incident: At around 5:30 in the afternoon
he was hired for P120.00 by a certain "Boy" Santos, his co-accused. Their original agreement was
5 6

that he would drive him to a cockpit at the Bias Edward Coliseum. However despite their earlier
7

arrangement Boy Santos directed him to proceed to the market place to fetch "Jun" Marquez and
"Dodong" Bisaya. He (del Rosario) acceded. Marquez and Bisaya boarded in front of the parking lot
8

of Merced Drugstore at the public market. Subsequently, he was asked to proceed and stop at the
9

corner of Burgos and General Luna Sts. where Bisaya alighted on the pretext of buying a cigarette.
The latter then accosted the victim Virginia Bernas and grappled with her for the possession of her
bag. Jun Marquez alighted from the tricycle to help "Dodong" Bisaya. Accused del Rosario tried to
10

leave and seek help but "Boy Santos" who stayed inside the tricycle prevented him from leaving and
threatened in fact to shoot him.

Meanwhile, "Dodong" Bisaya succeeded in taking the victim's bag, but before boarding the tricycle
"Jun" Marquez mercilessly shot the victim on the head while she was lying prone on the ground.
After the shooting, "Dodong" Bisaya boarded the sidecar of the tricycle while "Jun" Marquez rode
behind del Rosario and ordered him to start the engine and drive towards Dicarma. While inside his
tricycle, del Rosario overheard his passengers saying that they would throw the bag at Zulueta St.
where there were cogon grasses. Upon arriving at Dicarma, the three (3) men alighted and warned
11

del Rosario not to inform the police authorities about the incident otherwise he and his family would
be harmed. Del Rosario then went home. Because of the threat, however, he did not report the
12 13

matter to the owner of the tricycle nor to the barangay captain and the police. 14

As earlier stated, the court a quo found accused Joselito del Rosario guilty as charged and
sentenced him to death. He now contends in this automatic review that the court a quo erred in: (1)
Not finding the presence of threat and irresistible force employed upon him by his co-accused Virgilio
"Boy" Santos, Ernesto "Jun" Marquez and "Dodong" Bisaya; (2) Not considering his defense that he
was not part of the conspiracy among co-accused "Boy" Santos, "Jun" Marquez and "Dodong"
Bisaya to commit the crime of Robbery with Homicide; (3) Not considering the violations on his
constitutional rights as an accused; and, (4) Not considering that there was no lawful warrantless
arrest within the meaning of Sec. 5, Rule 113, of the Rules of Court. 15

The conviction of del Rosario must be set aside. His claim for exemption from criminal liability under
Art. 12, par. 5, Revised Penal Code as he acted under the compulsion of an irresistible force must
be sustained. He was then unarmed and unable to protect himself when he was prevented at
gunpoint by his co-accused from leaving the crime scene during the perpetration of the robbery and
killing, and was only forced to help them escape after the commission of the crime. 16

But the trial court ruled that his fear was merely speculative, fanciful and remote, hence, could not be
considered uncontrollable; and that a gun pointed at him did not constitute irresistible force because
it fell short of the test required by law and jurisprudence. 17

We disagree. A person who acts under the compulsion of an irresistible force, like one who acts
under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability
because he does not act with freedom. Actus me invito factus non est meus actus. An act done by
me against my will is not my act. The force contemplated must be so formidable as to reduce the
actor to a mere instrument who acts not only without will but against his will. The duress, force, fear
or intimidation must be present, imminent and impending, and of such nature as to induce a well-
grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is
not enough. The compulsion must be of such a character as to leave no opportunity for the accused
for escape or self-defense in equal combat. 18

As a rule, it is natural for people to be seized by fear when threatened with weapons, even those
less powerful than a gun, such as knives and clubs. People will normally, usually and probably do
what an armed man asks them to do, nothing more, nothing less. In the instant case, del Rosario
was threatened with a gun. He could not therefore be expected to flee nor risk his life to help a
stranger. A person under the same circumstances would be more concerned with his personal
welfare and security rather than the safety of a person whom he only saw for the first time that day. 19

Corollary with the defense of del Rosario, we hold that the trial court erred when it said that it was
"Boy" Santos who left the tricycle to chase the companion of the victim and then shot the victim on
the head, instantly killing her. A careful and meticulous scrutiny of the transcripts and records of the
20

testimonies of witness Alonzo and del Rosario himself, reveals that it was "Jun" Marquez who ran
after the victim's helper and fired at the victim. Witness Alonzo testified on direct examination —

Q: What was that unusual incident that transpired in that place at that
time?

A: I saw two men and a lady grappling for the possession of a bag,
sir . . . .
 Q: What happened after the bag of the lady was grabbed by the two
men?

A: One helper of the lady was chased by the other man, sir.

Q: Who was that man who chased the helper of the lady?

A: He was the one holding the gun, sir . . . .

Q: What happened when the bag of the woman was already taken by
the two men who grappled the same from her?

A: The man who chased the helper of the lady returned to the scene
while the other man was then kicking the lady who in turn fell to the
ground, sir.

Q: What happened to the lady who fell to the ground?

A: The man who chased the helper of the lady returned and then shot
the woman who was then lying on the ground, sir . . . .

Q: What about the bag, what happened to the bag?

A: The bag was taken to a motorcycle, sir.

Q: Will you please state before the the Court what you noticed from
the tricycle which was at a distance of about one and a half meter?

A: There was a passenger inside the tricycle, sir . . . .

Q: What happened to that woman that was shot by the man who
grappled for the possession of the bag?

A: She was no longer moving and lying down, sir.

Q: After the shooting by one of the two men of the woman what else
happened?

A: They went away, sir . . . .

Q: Will you please tell the Court in what portion of the tricycle did
these men sit in the tricycle?

A: The man who was holding the gun sat himself behind the
driver while the other man entered the sidecar, sir. 21

On the continuation of his direct examination, after an ocular inspection on the crime scene
conducted by the trial court, witness Alonzo categorically
stated —
 Q: Will you please tell us where in particular did you see the accused
who was then holding the gun fired at the victim?

A: At the time one man was kicking the victim it was then his other
companion holding a gun chased the helper of the deceased going
towards Burgos Avenue, sir.

Q: What happen (sic) afterwards?

A: The man with the gun returned and then while the victim was lying
down in this spot the man holding a gun shot the victim, sir. 22

On cross-examination, the same witness further clarified —

Q: So, you saw the two other accused returned back to the tricycle?

A: Yes, sir.

Q: And one of their companion was already inside the tricycle?

xxx xxx xxx

Court: There was somebody inside the tricycle where the handbag
was given.

A: Yes, sir.

Q: And the one who sat at the back of the tricycle driver was the
person with the gun?

A: Yes, sir. 23

On the other hand, accused Del Rosario declared during the direct examination that —

Q: . . . . On the evening of May 13, 1996 you were the driver of the
tricycle as testified to by Eduardo Nalagon?

A: Yes, sir.

Q: Now, you also heard that there was a shoot out near the Cathedral
and the Nita's Drugstore at Gen. Tinio St.?

A: Yes, sir.

xxx xxx xxx

Court: At that time you were seated at the tricycle, which tricycle was
used by the assailants?

A: Yes, sir.
Q: Then what did you do?

A: I tried to escape, sir, but I was stopped by them.

Q: When you said "they" to whom are you referring?

A: Boy Santos and Jun Marquez, sir.

Q: And at that time where was Boy Santos?

A: He was inside the tricycle, sir.

Q: And what about Jun Marquez?

A: He alighted from the tricycle and helped him grabbed (sic) the bag
of the victim.

Q: And was the bag grabbed and by whom?

A: Yes, sir, by Dodong Visaya was able to grab the bag.

Q: And after that what happened?

A: Both of them rode inside my tricycle, sir.

Court: Did you not see any shooting?

A: There was, sir.

Q: Who was shot?

A: Jun Marquez shot the woman, sir . . . .

Q: When the bag of the woman was being grabbed you know that
what was transpiring was wrong and illegal?

A: Yes, sir.

Q: But you did not try to leave?

A: I tried to leave but Boy Santos who was inside my tricycle

prevented me.

Q: During that time before you leave (sic) how many firearms did you
see?

A: Two firearms, sir, one in the possession of Boy (Jun?) Marquez

and one in the possession of Boy Santos . . . .
 Q: And at the time when the shooting took place where was Boy
Santos?

A: He was still inside my tricycle, sir.

Q: And during the shooting when Boy Santos was inside the tricycle
and when you tried to escape that was the time when Boy Santos
threatened you if you will escape something will happen to your
family?

A: Yes, sir.

Q: After the shooting who first boarded the tricycle, Boy (Jun?)
Marquez or Dodong Visaya?

A: Dodong Visaya, sir.

Q: And immediately thereafter Jun Marquez boarded your tricycle

sitting at your back?

A: Yes, sir. 24

On cross-examination, accused further stated —

Q: After stopping in that place for one minute what else happened?

A: I saw Dodong Bisaya grabbing the bag of the woman, sir.

Q: How about your two companions, what are (sic) they doing while
Dodong Bisaya was grabbing the bag of the woman?

A: Jun Marquez was helping Dodong Bisaya, sir.

Q: What happened after Jun Marquez helped Dodong Bisaya?

A: I heard a gunshot and I saw the woman lying down . . . .

Q: You could have ran away to seek the help of the police or any
private persons?

A: I was not able to ask for help because Boy Santos pointed his gun
to me, sir.

Q: Was the gun being carried by Boy Santos, is the one that is used
in shooting the old woman?

A: No, sir . . . .

Q: Where was Boy Santos when Dodong Bisaya and Jun Marquez
were grappling for the possession of the handbag?
 A: He was then inside the tricycle, sir . . . . 25

Q: Mr. Witness, you testified that the reason why you just cannot
leave the area where the incident occurred is because a gun was
pointed to you by Boy Santos and he was telling you that you should
not do anything against their will, they will kill you and your family will
be killed also, is that correct?

A: Yes, sir.

Q: Now, is it not a fact that at the time you stop (sic) your tricycle
which was loaded by your other three co-accused in this case, all of
them alighted and that Boy Santos ran after a helper of the victim
going towards the public market along Burgos Street?

A: He did not alight from the tricycle, sir.

Court: Are you quite sure of that?

A: Yes, sir. 26

Del Rosario maintains that "Boy" Santos never left the tricycle and that the latter pointed his gun at
him and threatened to shoot if he tried to escape. He also asserts that it was "Jun" Marquez who
shot the victim and sat behind him in the tricycle.

From the narration of witness Alonzo, these events stood out: that after the bag of the victim was
grabbed, her male helper was chased by a man holding a gun; that the gunwielder returned and shot
the victim and then sat behind the driver of the tricycle; and, that the bag was given to a person who
was inside the tricycle. Taking the testimony of witness Alonzo in juxtaposition with the testimony of
del Rosario, it can be deduced that "Jun" Marquez was the person witness Alonzo was referring to
when he mentioned that a helper of the lady was chased "by the other man," and that this "other
man" could not be "Boy" Santos who stayed inside the tricycle and to whom the bag was handed
over. This conclusion gives credence to the claim of del Rosario that "Boy" Santos never left the
tricycle, and to his allegation that "Boy" Santos stayed inside the tricycle precisely to threaten him
with violence and to prevent him from fleeing; that there could have been no other plausible reason
for "Boy" Santos to stay in the tricycle if the accused was indeed a conspirator; that "Boy" Santos
could have just left the tricycle and helped in the commission of the crime, particularly when he saw
the victim grappling with "Dodong" Bisaya and resisting the attempts to grab her bag; and, that "Boy"
Santos opted to remain inside the tricycle to fulfill his preordained role of threatening del Rosario and
insuring that he would not escape and leave them behind. 27

Even if the tricycle of del Rosario was only parked one meter and a half (1-1/2) in front of the tricycle
of witness Alonzo, the latter still could not have totally seen and was not privy to events that were
transpiring inside the vehicle, i.e., the pointing of the gun by "Boy" Santos at del Rosario
simultaneously with the robbing and shooting of the victim. From the exhibits submitted by the
prosecution panel the back of the sidecar of del Rosario tricycle was not transparent. 28

There is no doubt that the fear entertained by del Rosario because of the gun directly pointed at him
was real and imminent. Such fear rendered him immobile and subject to the will of Boy Santos,
making him for the moment an automaton without a will of his own. In other words, in effect, he could
not be any more than a mere instrument acting involuntarily and against his will. He is therefore
exempt from criminal liability since by reason of fear of bodily harm he was compelled against his will
to transport his co-accused away from the crime scene.

On the issue of conspiracy, the trial court anchored del Rosario's conviction on his participation in
the orchestrated acts of "Boy" Santos, "Jun" Marquez and "Dodong" Bisaya. According to the trial
court, del Rosario facilitated the escape of the other malefactors from the crime scene and
conspiracy between accused and his passengers was evident because "while the grappling of the
bag, the chasing of the helper of the victim and the shooting that led to the death of Virginia Bernas
were happening, accused Joselito del Rosario was riding on his tricycle and the engine of the motor
was running;" that the "accused did not deny that the tricycle driven by him and under his control
29

was hired and used by his co-accused in the commission of the crime; neither did he deny his failure
to report to the authorities the incident of robbery, killing and fleeing away from the scene of the
crime."30

We disagree with the trial court. A conspiracy in the statutory language exists when two or more
concerning the commission of a felony and decide to commit it. The objective of the conspirators is
to perform an act or omission punishable by law. That must be their intent. There is need for
"concurrence of wills" or "unity of action and purpose" or for "common and joint purpose and design."
Its manifestation could be shown by "united and concerted action." 31

Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is
planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of
the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and
circumstances which, taken together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their combined acts, though
apparently independent, were in fact connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting
among them to concert means is proved. That would be termed an implied
conspiracy. Nevertheless, mere knowledge, acquiescence or approval of the act, without the
32

cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy, but
that there must be intentional participation in the transaction with a view to the furtherance of the
common design and purpose. Conspiracy must be established, not by conjectures, but by positive
and conclusive evidence. In fact, the same degree of proof necessary to establish the crime is
required to support a finding of the presence of a criminal conspiracy, which is, proof beyond
reasonable doubt. 33

In the instant case, while del Rosario admits that he was at the locus criminis as he was the driver of
the getaway vehicle, he nonetheless rebuts the imputation of guilt against him by asserting that he
had no inkling of the malevolent design of his co-accused to rob and kill since he was not given any
briefing thereof. He was merely hired by Boy Santos to drive to an agreed destination and he was
prevented at gunpoint from leaving the scene of the crime since he was ordered to help them
escape.

In this case, the trial court stated that "there is no evidence that the accused came to an agreement
concerning the commission of the felony and decided to commit the same." Therefore, in order to
34

convict the accused, the presence of an implied conspiracy is required to be proved beyond
reasonable doubt. However, the fact that del Rosario was with the other accused when the crime
was committed is insufficient proof to show cabal. Mere companionship does not establish
conspiracy. The only incriminating evidence against del Rosario is that he was at the scene of the
35

crime but he has amply explained the reason for his presence and the same has not been
successfully refuted by the prosecution. As stated earlier, he feared for his safety and security
because of the threat made by his co-accused that he would be killed should he shout for help. No
complicity can be deduced where there is absolutely no showing that the accused directly
participated in the overt act of robbing and shooting although he was with the persons who robbed
and killed the victim.36

That del Rosario did not disclose what he knew about the incident to the authorities, to his employer
or to the barangay captain does not affect his credibility. The natural hesitance of most people to get
involved in a criminal case is of judicial notice. It must be recalled that del Rosario was merely a
37

tricycle driver with a family to look after. Given his quite limited means, del Rosario understandably
did not want to get involved in the case so he chose to keep his silence. Besides, he was threatened
with physical harm should he squeal.

Del Rosario further contends that there was violation of his right to remain silent, right to have
competent and independent counsel preferably of his own choice, and right to be informed of these
rights as enshrined and guaranteed in the Bill of Rights. As testified to by SPO4 Geronimo de
38

Leon, the prosecution witness who was the team leader of the policemen who investigated the 13
May incident, during his cross-examination —

Upon finding the name of the owner of the tricycle, they proceeded to Bakod Bayan
in the house of the barangay captain where the owner of the tricycle was summoned
and who in turn revealed the driver's name and was invited for interview. The driver
was accused Joselito del Rosario who volunteered to name his passengers on May
13, 1996. On the way to the police station, accused informed them of the bag and
lunch kit's location and the place where the hold-uppers may be found and they
reported these findings to their officers, Capt. Biag and Capt. Cruz. After lunch, they
proceeded to Brgy. Dicarma composed of 15 armed men where a shoot-out
transpired that lasted from 1:00 to 4:00 o'clock in the afternoon. After a brief
encounter, they went inside the house where they found Marquez dead holding a
magazine and a gun. While all of these were happening, accused del Rosario was at
the back of the school, after which they went back to the police station. The
investigator took the statement of the accused on May 14, 1996, and was only
subscribed on May 22, 1996. All the while, he was detained in the police station as
ordered by the Fiscal. His statements were only signed on May 16, 1996. He also
executed a waiver of his detention. His Sinumpaang Salaysay was done with the
assistance of Ex-Judge Talavera. 39

A further perusal of the transcript reveals that during the encounter at Brgy. Dicarma, del
Rosario was handcuffed by the police because allegedly they had already gathered enough
evidence against him and they were afraid that he might attempt to escape. 40

Custodial investigation is the stage where the police investigation is no longer a general inquiry into
an unsolved crime but has begun to focus on a particular suspect taken into custody by the police
who carry out a process of interrogation that lends itself to elicit incriminating statements. It is well-
settled that it encompasses any question initiated by law enforces after a person has been taken into
custody or otherwise deprive of his freedom of action in any significant way. This concept of
41

custodial investigation has been broadened by RA 7438 to include "the practice of issuing an
42

"invitation" to a person who is investigated in connection with an offense he is suspected to have

committed." Section 2 of the same Act further provides that —

. . . . Any public officer or employee, or anyone acting under his order or in his place,
who arrests, detains or investigates any person for the commission of an offense
shall inform the latter, in a language known and understood by him, of his right to
 remain silent and to have competent and independent counsel, preferably of his own
choice, who shall at all times be allowed to confer privately with the person arrested,
detained or under custodial investigation. If such person cannot afford the services of
his own counsel, he must be provided with a competent and independent counsel by
the investigating officer.

From the foregoing, it is clear that del Rosario was deprived of his rights during custodial
investigation. From the time he was "invited" for questioning at the house of the baranggay captain,
he was already under effective custodial investigation, but he was not apprised nor made aware
thereof by the investigating officers. The police already knew the name of the tricycle driver and the
latter was already a suspect in the robbing and senseless slaying of Virginia Bernas. Since the
prosecution failed to establish that del Rosario had waived his right to remain silent, his verbal
admissions on his participation in the crime even before his actual arrest were inadmissible against
him, as the same transgressed the safeguards provided by law and the Bill of Rights.

Del Rosario also avers that his arrest was unlawful since there was no warrant therefor. Section 5,
Rule 113 of the Rules of provides: 43

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person
may, without a warrant, arrest a person: (a) When, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit an
offense; (b) When an offense has in fact been committed and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and, (c)
When the person to be arrested is a prisoner who has escaped from penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

It must be recalled that del Rosario was arrested by SPO4 De Leon during the police raid at the
place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In People vs. Sucro we held that when a
44

police officer sees the offense, although at a distance, or hears the disturbances created thereby,
and proceeds at once to the scene thereof, he may effect an arrest without a warrant on the basis of
Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his presence or within his view.
In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in flagrante delicto or
caught immediately after the consummation of the act. The arrest of del Rosario is obviously outside
the purview of the aforequoted rule since he was arrested on the day following the commission of
the robbery with homicide.

On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before a
warrantless arrest can be effected: (1) an offense has just been committed; and, (2) the person
making the arrest has personal knowledge of facts indicating that the person to be arrested had
committed it. Hence, there must be a large measure of immediacy between the time the offense was
committed and the time of the arrest, and if there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of arrest must be secured. Aside from the sense
of immediacy, it is also mandatory that the person making the arrest must have personal knowledge
of certain facts indicating that the person to be taken into custody has committed the crime. Again,
45

the arrest of del Rosario does not comply with these requirements since, as earlier explained, the
arrest came a day after the consummation of the crime and not immediately thereafter. As such, the
crime had not been "just committed" at the time the accused was arrested. Likewise, the arresting
officers had no personal knowledge of facts indicating that the person to be arrested had committed
the offense since they were not present and were not actual eyewitnesses to the crime, and they
became aware of his identity as the driver of the getaway tricycle only during the custodial
investigation.

However, the conspicuous illegality of del Rosario's arrest cannot affect the jurisdiction of the court
a quo because even in instances not allowed by law, a warrantless arrest is not a jurisdictional
defect and any objection thereto is waived when the person arrested submits to arraignment without
any objection, as in this case. 46

A transgression of the law has occurred. Unfortunately, an innocent person lost her life and property
in the process. Someone therefore must be held accountable, but it will not be accused Joselito del
Rosario; we must acquit him. Like victim Virginia Bernas, he too was a hapless victim who was
forcibly used by other persons with nefarious designs to perpetrate a dastardly act. Del Rosario's
defense of "irresistible force" has been substantiated by clear and convincing evidence. On the other
hand, conspiracy between him and his co-accused was not proved beyond a whimper of a doubt by
the prosecution, thus clearing del Rosario of any complicity in the crime charged.

WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City convicting accused
JOSELITO DEL ROSARIO Y PASCUAL of Robbery with Homicide and sentencing him to death, is
REVISED and SET ASIDE, and the accused is ACQUITTED of the crime charged. His immediate
RELEASE from confinement is ordered unless held for some other lawful cause. In this regard, the
Director of Prisons is directed to report to the Court his compliance herewith within five (5) days from
receipt hereof. 1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-56291 June 27, 1988

CRISTOPHER GAMBOA, petitioner,

vs.
HON. ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br. XXIX, respondent.

Rene V. Sarmiento for petitioner.

PADILLA, J.:

Petition for certiorari and prohibition, with prayer for a temporary restraining order, to annul and set aside the order dated 23 October 1980 of
the Court of First Instance of Manila, Branch XXIX, in Criminal Case No. 47622, entitled "People of the Philippines, Plaintiff vs. Cristopher
Gamboa y Gonzales, Accused," and to restrain the respondent court from proceeding with the trial of the aforementioned case.

Petitioner alleges that:

On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for vagrancy, without a
warrant of arrest, by Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2,
Manila, where he was booked for vagrancy and then detained therein together with several others.

The following day, 20 July 1979, during the lineup of five (5) detainees, including petitioner,
complainant Erlinda B. Bernal pointed to petitioner and said, "that one is a companion." After the
Identification, the other detainees were brought back to their cell but petitioner was ordered to stay
on. While the complainant was being interrogated by the police investigator, petitioner was told to sit
down in front of her.

On 23 July 1979, an information for robbery was filed against the petitioner.

On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held. On 2 April 1980, the
prosecution formally offered its evidence and then rested its case.

On 14 July 1980, petitioner, by counsel, instead of presenting his defense, manifested in open court
that he was filing a Motion to Acquit or Demurrer to Evidence. On 13 August 1980, petitioner filed
said Motion predicated on the ground that the conduct of the line-up, without notice to, and in the
absence of, his counsel violated his constitutional rights to counsel and to due process.

On 23 October 1980, the respondent court issued the following order (assailed in the petition at bar)
denying the Motion to Acquit:

For resolution is a motion to acquit the accused based on the grounds that the
constitutional rights of the said accused, to counsel and to due process, have been
violated. After considering the allegations and arguments in support of the said
motion in relation to the evidence presented, the Court finds the said motion to be
without merit and, therefore, denies the same.

The hearing of this case for the purpose of presenting the evidence for the accused
is hereby set on November 28, 1980, at 8:30 o'clock in the morning.

Hence, the instant petition.

On 3 March 1981, the Court issued a temporary restraining order "effective as of this date and
continuing until otherwise ordered by the court". 1

Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of
discretion, in issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is
null and void for being violative of his rights to counsel and to due process. 2

We find no merit in the contentions of petitioner.

To begin with, the instant petition is one for certiorari, alleging grave abuse of discretion, amounting
to lack of jurisdiction, committed by the respondent judge in issuing the questioned order dated 23
October 1980.

It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical
exercise of power, the very antithesis of judicial prerogative in accordance with centuries of both civil
law and common law traditions. To warrant the issuance of the extraordinary writ of certiorari, the
3

alleged lack of jurisdiction, excess thereof, or abuse of discretion must be so gross or grave, as
when power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or
personal hostility, or the abuse must be so patent as to amount to an evasion of positive duty, or to a
virtual refusal to perform a duty enjoined by law, or to act at all, in contemplation of law. This is not
4

the situation in the case at bar. The respondent court considered petitioner's arguments as well as
the prosecution's evidence against him, and required him to present his evidence.

The rights to counsel and to due process of law are indeed two (2) of the fundamental rights
guaranteed by the Constitution, whether it be the 1973 or 1987 Constitution. In a democratic society,
like ours, every person is entitled to the full enjoyment of the rights guaranteed by the Constitution.

On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973 Constitution, reads:

No person shall be compelled to be a witness against himself Any person under

investigation for the commission of an offense shall have the right to remain silent
and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against him.
Any confession obtained in violation of this section shall be inadmissible in evidence.

The same guarantee, although worded in a different manner, is included in the 1987 Constitution.
Section 12 (1, 2 & 3), Article III thereof provides:

Sec. 12 (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate
the free will shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or the preceding section
shall be inadmissible in evidence against him.

The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer
starts to ask questions to elicit information and/or confessions or admissions from the
respondent/accused. At such point or stage, the person being interrogated must be assisted by
counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from
the lips of the person undergoing interrogation, for the commission of an offense.

Any person under investigation must, among other things, be assisted by counsel. The above-cited
provisions of the Constitution are clear. They leave no room for equivocation. Accordingly, in several
cases, this Court has consistently held that no custodial investigation shall be conducted unless it be
in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or
appointed by the court upon petition either of the detainee himself, or by anyone in his behalf, and
that, while the right may be waived, the waiver shall not be valid unless made in writing and in the
presence of counsel. 5

As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was
not part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel.
The Solicitor General states:
 When petitioner was Identified by the complainant at the police line-up, he had not
been held yet to answer for a criminal offense. The police line-up is not a part of the
custodial inquest, hence, he was not yet entitled to counsel. Thus, it was held that
when the process had not yet shifted from the investigatory to the accusatory as
when police investigation does not elicit a confession the accused may not yet avail
of the services of his lawyer (Escobedo v. Illinois of the United States Federal
Supreme Court, 378 US 478, 1964). Since petitioner in the course of his
Identification in the police line-up had not yet been held to answer for a criminal
offense, he was, therefore, not deprived of his right to be assisted by counsel
because the accusatory process had not yet set in. The police could not have
violated petitioner's right to counsel and due process as the confrontation between
the State and him had not begun. In fact, when he was Identified in the police line-up
by complainant he did not give any statement to the police. He was, therefore, not
interrogated at all as he was not facing a criminal charge. Far from what he
professes, the police did not, at that stage, exact a confession to be used against
him. For it was not he but the complainant who was being investigated at that time.
He "was ordered to sit down in front of the complainant while the latter was being
investigated" (par. 3.03, Petition). Petitioner's right to counsel had not accrued. 6

Even under the constitutional guarantees obtaining in the United States, petitioner would have no
cause for claiming a violation of his rights to counsel and due process. In Kirby vs. Illinois, the facts
7

of the case and the votes of the Justices therein are summarized as fellows:

After arresting the petitioner and a companion and bringing them to a police station,
police officers learned that certain items found in their possession had been stolen in
a recent robbery. The robbery victim was brought to the police station and
immediately Identified the petitioner and his companion as the robbers. No attorney
was present when the Identification was made, and neither the petitioner nor his
companion had asked for legal assistance or had been advised of any right to the
presence of counsel. Several weeks later, the petitioner and his companion were
indicted for the robbery. At trial in an Illinois state court, the robbery victim testified
that he had seen the petitioner and his companion at the police station, and he
pointed them out in the courtroom and Identified them as the robbers. The petitioner
and his companion were convicted, and the Illinois Appellate Court, First District,
affirmed the petitioner's conviction, holding that the constitutional rule requiring the
exclusion of evidence derived from out-of-court Identification procedures conducted
in the absence of counsel did not apply to pre-indictment Identifications (121 III App
2d 323, 257 NEE 2d 589).

On certiorari, the United States Supreme Court, although not agreeing on an opinion,
affirmed. In an opinion by STEWART, J., announcing the judgment of the court and
expressing the view of four members of the court, it was held that the constitutional
right to counsel did not attach until judicial criminal proceedings were initiated, and
that the exclusionary rule relating to out-of-court Identifications in the absence of
counsel did not apply to Identification testimony based upon a police station show-up
which took place before the accused had been indicted or otherwise formally
charged with any criminal offense.

BURGER, Ch. J., concurring, joined in the plurality opinion and expressed his
agreement that the right to counsel did not attach until criminal charges were formally
made against an accused.
 POWELL, J., concurred in the result on the ground that the exclusionary rule should
not be extended.

BRENNAN J., joined by DOUGHLAS and MARSHALL, JJ., dissented on the grounds
that although Supreme Court decisions establishing the exclusionary rule happened
to involve post-indictment Identifications, the rationale behind the rule was equally
applicable to the present case.

WHITE, J., dissented on the grounds that Supreme Court decisions establishing the
exclusionary rule governed the present case. 8

Mr. Justice Stewart, expressing his view and that of three other members of the Court, said:
9

In a line of constitutional cases in this Court stemming back to the Court's landmark
opinion in Powell v. Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527, it
has been firmly established that a person's Sixth and Fourteenth Amendment right to
counsel attaches only at or after the time that adversary judicial proceedings have
been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 US
458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama, 368 US 52, 7 L
Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct
792, 93 ALR 2d 733; White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050;
Messiah v. United States, 377 US 201, 12 L Ed 246, 84 S Ct 1199; United States v.
Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926; Gilbert v. California, 388 US 263,
18 L Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399 US 1, 26 L Ed 2d 387, 90
S Ct. 1999.

This is not to say that a defendant in a criminal case has a constitutional right to
counsel only at the trial itself. The Powell case makes clear that the right attaches at
the time of arraignment and the Court has recently held that it exists also at the time
of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while
members of the court have differed as to existence of the right to counsel in the
contexts of some of the above cases, all of those cases have involved points of time
at or after the initiation of adversary judicial criminal proceedings — whether by way
of formal charge, preliminary hearing, indictment, information, or arraignment.
(Emphasis supplied). 10

As may be observed, the 1973 and 1987 Philippine Constitutions go farther and beyond the
guarantee of the right to counsel under the Sixth and Fourteenth Amendments to the U.S.
Constitution. For while, under the latter, the right to counsel "attaches only at or after the time that
adversary judicial proceedings have been initiated against him (the accused)," under the 1973 and
1987 Philippine Constitutions, the right to counsel attaches at the start of investigation against a
respondent and, therefore, even before adversary judicial proceedings against the accused have
begun.

Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under
police investigation the right to counsel, this occasion may be better than any to remind police
investigators that, while the Court finds no real need to afford a suspect the services of counsel
during a police line-up, the moment there is a move or even an urge of said investigators to elicit
admissions or confessions or even plain information which may appear innocent or innocuous at the
time, from said suspect, he should then and there be assisted by counsel, unless he waives the
right, but the waiver shall be made in writing and in the presence of counsel.
On the right to due process, the Court finds that petitioner was not, in any way, deprived of this
substantive and constitutional right, as he was duly represented by a member of the Bar. He was
accorded all the opportunities to be heard and to present evidence to substantiate his defense; only
that he chose not to, and instead opted to file a Motion to Acquit after the prosecution had rested its
case. What due process abhors is the absolute lack of opportunity to be heard. The case at bar is
11

far from this situation.

In any event, certiorari and prohibition are not the proper remedies against an order denying a
Motion To Acquit. Section 1, Rule 117 of the Rules of Court provides that, upon arraignment, the
defendant shall immediately either move to quash the complaint or information or plead thereto, or
do both and that, if the defendant moves to quash, without pleading, and the motion is withdrawn or
overruled, he should immediately plead, which means that trial must proceed. If, after trial on the
merits, judgment is rendered adversely to the movant (in the motion to quash), he can appeal the
judgment and raise the same defenses or objections (earlier raised in his motion to quash) which
would then be subject to review by the appellate court.

An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and
not a final order. It is, therefore, not appealable. Neither can it be the subject of a petition for
certiorari. Such order of denial may only be reviewed, in the ordinary course of law, by an appeal
from the judgment, after trial. As stated in Collins vs. Wolfe, and reiterated in Mill vs. Yatco, the
12 13

accused, after the denial of his motion to quash, should have proceeded with the trial of the case in
the court below, and if final judgment is rendered against him, he could then appeal, and, upon such
appeal, present the questions which he sought to be decided by the appellate court in a petition for
certiorari.

In Acharon vs. Purisima, the procedure was well defined, thus:

14

Moreover, when the motion to quash filed by Acharon to nullify the criminal cases
filed against him was denied by the Municipal Court of General Santos his remedy
was not to file a petition for certiorari but to go to trial without prejudice on his part to
reiterate the special defenses he had invoked in his motion and, if, after trial on the
merits, an adverse decision is rendered, to appeal therefrom in the manner
authorized by law. This is the procedure that he should have followed as authorized
by law and precedents. Instead, he took the usual step of filing a writ of certiorari
before the Court of First Instance which in our opinion is unwarranted it being
contrary to the usual course of law. 15

Conformably with the above rulings, whether or not petitioner was, afforded his rights to counsel and
to due process is a question which he could raise, as a defense or objection, upon the trial on the
merits, and, if that defense or objection should fail, he could still raise the same on appeal.

On the other hand, if a defendant does not move to quash the complaint or information before he
pleads, he shall be taken to have waived all objections which are grounds for a motion to quash,
except where the complaint or information does not charge an offense, or the court is without
jurisdiction of the same.16

Here, petitioner filed a Motion To Acquit only after the prosecution had presented its evidence and
rested its case. Since the exceptions, above-stated, are not applicable, petitioner is deemed to have
waived objections which are grounds for a motion to quash.
Besides, the grounds relied upon by petitioner in his Motion to Acquit are not among the grounds
provided in Sec. 2, Rule 117 of the Rules of Court for quashing a complaint or information.
Consequently, the lower court did not err in denying petitioner's Motion to Acquit.

WHEREFORE, the petition is DISMISSED. The temporary restraining order issued on 3 March 1981
is LIFTED. The instant case is remanded to the respondent court for further proceedings to afford
the petitioner-accused the opportunity to present evidence on his behalf.

This decision is immediately executory. With costs against the petitioner.

SO ORDERED.

Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Griño-Aquino and Medialdea,
JJ., concur.

FIRST DIVISION

G.R. No. 145176 March 30, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
SANTIAGO PERALTA y POLIDARIO (at large), ARMANDO DATUIN JR. y GRANADOS (at large),
ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDO FLORES y CRUZ
and ANTONIO LOYOLA y SALISI, accused,
ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDO FLORES y CRUZ
and ANTONIO LOYOLA y SALISI, appellants.

DECISION

PANGANIBAN, J.:

The right of the accused to counsel demands effective, vigilant and independent representation. The
lawyer’s role cannot be reduced to being that of a mere witness to the signing of an extra-judicial
confession.

The Case

Before the Court is an appeal from the August 21, 2000 Decision 1 of the Regional Trial Court (RTC)
of Manila (Branch 18) in Criminal Case No. 92-112322. Appellants Ulysses Garcia y Tupas, Miguelito
de Leon y Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi, as well as their co-accused
-- Santiago Peralta y Polidario and Armando Datuin Jr. y Granados -- were convicted therein of
qualified theft. The dispositive portion of the Decision reads:
"WHEREFORE, the accused, Santiago Peralta y Polidario, Armando Datuin, Jr. y Granados, Ulysses
Garcia y Tupas, Miguelito De Leon y Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi,
are hereby convicted of the crime of qualified theft of P194,190.00 and sentenced to suffer the
penalty of reclusion perpetua with all the accessory penalties provided by law, and to pay the costs.
Moreover, all the accused are ordered to pay the Central Bank of the Philippines, now Bangko
Sentral ng Pilipinas, actual damages in the sum of P194,190.00 with interest thereon at the legal
rate from the date of the filing of this action, November 9, 1992, until fully paid." 2

In an Information dated November 9, 1992, 3 appellants and their co-accused were charged as
follows:

"That sometime in the year 1990 and including November 4, 1992, in the City of Manila, Philippines,
the said accused, conspiring and confederating with others whose true names, identities and present
whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and
feloniously, with intent to gain and without the knowledge and consent of the owner thereof, take,
steal and carry away punctured currency notes due for shredding in the total amount of
P194,190.00, belonging to the Central Bank of the Philippines as represented by Pedro Labita y
Cabriga, to the damage and prejudice of the latter in the aforesaid sum of P194,190.00 Philippine
currency;

"That said accused Santiago Peralta y Polidario, Armando Datuin, Jr. y Granados, Ulysses Garcia y
Tupas, Miguelito de Leon y Luciano and Antonio Loyola y Salisi committed said offense with grave
abuse of confidence they being at the time employed as Currency Reviewers, Driver, Currency
Assistant I and Money Counter of the offended party and as such they had free access to the
property stolen."4

Garcia was arrested on November 4, 1992; and his co-accused, on November 9, 1992. Appellants,
however, obtained two Release Orders from RTC Vice Executive Judge Corona Ibay-Somera on
November 9 and 10, 1992, upon their filing of a cash bond to secure their appearance whenever
required by the trial court.5

During their arraignment on May 4, 1993, appellants, assisted by their respective counsels, pleaded
not guilty.6 On September 30, 1998, the trial court declared that Datuin Jr. and Peralta were at large,
because they had failed to appear in court despite notice. 7

After trial in due course, they were all found guilty and convicted of qualified theft in the appealed
Decision.

The Facts
Version of the Prosecution

The Office of the Solicitor General (OSG) presents the prosecution’s version of the facts as follows:

"About 10:00 o’clock in the morning of November 4, 1992, Pedro Labita of Central Bank of
the Philippines (CBP) [now Bangko Sentral ng Pilipinas (BSP)] went to the Theft and
Robbery Section of Western Police District Command (WPDC), and filed a complaint for
Qualified Theft against Santiago Peralta, Armando Datuin, Jr., Ulysses Garcia, Miguelito de
Leon, Librando Flores and Antonio S. Loyola.

"Pedro Labita submitted to SPO4 Cielito Coronel, the investigating officer at WPDC,
punctured currency notes in P100.00 and P500.00 bills with a face value of Php194,190.00.
 Said notes were allegedly recovered by the BSP Cash Department during its cash counting
of punctured currency bills submitted by different banks to the latter. The punctured bills were
rejected by the BSP money counter machine and were later submitted to the investigation
staff of the BSP Cash Department. As a result of the investigation, it was determined that
said rejected currency bills were actually punctured notes already due for shredding. These
currency bills were punctured because they were no longer intended for circulation. Before
these notes could be shredded, they were stolen from the BSP by the above-named
accused.

"On the basis of the complaint filed by Pedro Labita, Ulysses Garcia was apprehended in
front of Golden Gate Subdivision, Las Piñas City, while he was waiting for a passenger bus
on his way to the BSP. Garcia was brought to the police station for investigation.

"On November 4, 5 and 6, 1992, while in the custody of the police officers, Garcia gave three
separate statements admitting his guilt and participation in the crime charged. He also
identified the other named accused as his cohorts and accomplices and narrated the
participation of each and everyone of them.

"On the basis of Garcia’s sworn statements, the other named accused were invited for
questioning at the police station and were subsequently charged with qualified theft together
with Garcia."8 (Citations omitted)

Version of the Defense

The defense states its version of the facts in the following manner:

"Accused-appellant Garcia served as a driver of the armored car of the Central Bank from
1978 to 1994.

"On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man who had identified himself
as a police officer arrested accused-appellant Garcia while waiting for a passenger bus in
front of the Golden Gate Subdivision, Las Piñas City. He was arrested without any warrant
for his arrest. The police officer who had arrested accused-appellant Garcia dragged the
latter across the street and forced him to ride x x x a car.

"While inside the car, he was blindfolded, his hands were handcuffed behind his back, and
he was made to bend with his chest touching his knees. Somebody from behind hit him and
he heard some of the occupants of the car say that he would be salvaged if he would not tell
the truth. When the occupants of the car mentioned perforated notes, he told them that he
does not know anything about those notes.

"After the car had stopped, he was dragged out of the car and x x x up and down x x x the
stairs. While being dragged out of the car, he felt somebody frisk his pocket.

"At a safe house, somebody mentioned to him the names of his co-accused and he told
them that he does not know his co-accused x x x. Whenever he would deny knowing his co-
accused, somebody would box him on his chest. Somebody poured water on accused-
appellant Garcia’s nose while lying on the bench. He was able to spit out the water that had
been poured on his nose [at first], but somebody covered his mouth. As a result, he could not
breath[e].
"When accused-appellant Garcia realized that he could not bear the torture anymore, he
decided to cooperate with the police, and they stopped the water pouring and allowed him to
sit down.

"Accused-appellant Garcia heard people talking and he heard somebody utter, ‘may
nakikinig.‘ Suddenly his two ears were hit with open palm[s] x x x. As he was being brought
down, he felt somebody return his personal belongings to his pocket. Accused-appellant
Garcia’s personal belongings consisted of [his] driver’s license, important papers and coin
purse.

"He was forced to ride x x x the car still with blindfold. His blindfold and handcuffs were
removed when he was at the office of police officer Dante Dimagmaliw at the Western Police
District, U.N. Avenue, Manila.

"SPO4 Cielito Coronel asked accused-appellant Garcia about the latter’s name, age and
address. The arrival of Mr. Pedro Labita of the Cash Department, Central Bank of the
Philippines, interrupted the interview, and Mr. Labita instructed SPO4 Coronel to get
accused-appellant Garcia’s wallet and examine the contents thereof. SPO4 Coronel
supposedly found three pieces of P100 perforated bill in accused-appellant Garcia’s wallet
and the former insisted that they recovered the said perforated notes from accused-
appellant’s wallet. SPO4 Coronel took down the statement of Mr. Labita.

"It was actually Mr. Labita, and not accused-appellant Garcia, who gave the answers
appearing in accused-appellant Garcia’s alleged three sworn statements dated November 4,
1992, November 5, 1992 and x x x November 6, 1992.

"At or about 6:00 p.m. on November 5, 1992, accused-appellant Garcia was brought to the
cell of the Theft and Robbery Section of the WPD. At or about 8:00 p.m., he was brought to
the office of Col. Alladin Dimagmaliw where his co-accused were also inside. He did not
identify his co-accused, but he merely placed his hands on the shoulders of each of his co-
accused, upon being requested, and Mr. Labita took x x x pictures while he was doing the
said act.

"Accused-appellant Garcia came to know Atty. Francisco Sanchez of the Public Attorney’s
Office on November 4, 1992, at the office of police officer Dante Dimagmaliw, when SPO4
Coronel introduced Atty. Sanchez to accused-appellant Garcia and told him that Atty.
Sanchez would be his lawyer. However, accused-appellant Garcia did not agree to have Atty.
Sanchez to be his lawyer. Atty. Sanchez left after talking to SPO4 Coronel, and accused-
appellant Garcia had not met Atty. Sanchez anymore since then. He was not present when
Atty. Sanchez allegedly signed x x x the alleged three (3) sworn statements.

"During the hearing of the case on April 6, 2000, Atty. Sanchez manifested in open court that
he did not assist accused-appellant Garcia when the police investigated accused-appellant
Garcia, and that he signed x x x the three (3) sworn statements only as a witness thereto.

"Accused-appellant Garcia signed the alleged three sworn statements due to SPO4
Coronel’s warning that if he would not do so, he would again be tortured by water cure.

"SPO[4] Coronel caused the arrest without any warrant of accused appellants De Leon,
Loyola, [Flores] on the basis of the complaint of Mr. Pedro Labita, and which arrest was
effected on November 5, 1992, by SPO1 Alfredo Silva and SPO1 Redelico.
 "SPO4 Coronel, in his letter dated November 6, 1992, forwarded the case to the Duty
Inquest Prosecutor assigned at the WPDC Headquarters." 9 (Citations omitted)

Ruling of the Trial Court

The trial court found that all the accused used to work for the BSP. Garcia was a driver assigned to
the Security and Transport Department; while Peralta, Datuin Jr., De Leon, Flores and Loyola were
laborers assigned to the Currency Retirement Division. Their main task was to haul perforated
currency notes from the currency retirement vault to the basement of the BSP building for shredding.

On several occasions, during the period 1990-1992, they handed to Garcia perforated currency
notes placed in a coin sack that he, in turn, loaded in an armored escort van and delivered to
someone waiting outside the premises of the building. The trial court held that the coordinated acts
of all the accused unerringly led to the conclusion that they had conspired to pilfer the perforated
currency notes belonging to the BSP.

The RTC rejected the disclaimer by Garcia of his own confessions, as such disclaimer was "an
eleventh hour concoction to exculpate himself and his co-accused." The trial court found his
allegations of torture and coerced confessions unsupported by evidence. Moreover, it held that the
recovery of three pieces of perforated P100 bills from Garcia’s wallet and the flight of Peralta and
Datuin Jr. were indicative of the guilt of the accused.

Hence, this appeal.10

Issues

In his Brief, Garcia raises the following issues:

"1

The trial court erred in admitting in evidence the alleged three Sworn Statements of Accused-
appellant Garcia and the alleged three pieces of P100 perforated notes

"2

The trial court erred in finding the accused-appellant guilty of qualified theft." 11

In their joint Brief, De Leon, Loyola and Flores interpose this additional assignment of errors:

"1

The trial court erred in admitting in evidence the alleged three sworn statements of Accused Ulysses
Garcia (Exhibits ‘I’, ‘J’ and ‘K’) and the alleged three pieces of P100 perforated notes (Exhibits ‘N’ to
‘N-2’) over the objections of the accused-appellants.

"2

The trial court erred in denying the demurrer to evidence of Accused-appellants De Leon, Loyola and
Flores;
"3

The trial court erred in denying the Motion for Reconsideration of the Order denying the demurrer to
evidence;

"4

The trial court erred when it failed to consider the evidence adduced by the accused-appellants,
consisting of exhibits ‘1’, ‘2’ to ‘2-B’, ‘3’ and ‘4’ and the testimony of their witness, State Auditor
Esmeralda Elli;

"5

The trial court erred in finding the accused-appellants guilty of qualified theft." 12

Simplified, the issues are as follows: (1) the sufficiency of the evidence against appellants, including
the admissibility of Garcia’s confessions and of the three perforated P100 currency notes; and (2)
the propriety of the denial of their demurrer to evidence.

The Court’s Ruling

The appeal has merit.

First Issue:
Sufficiency of Evidence

The trial court convicted appellants mainly on the strength of the three confessions given by Garcia
and the three perforated P100 currency notes confiscated from him upon his arrest. Appellants,
however, contend that these pieces of evidence are inadmissible.

Extrajudicial Confessions

Appellants aver that the alleged three Sworn Statements of Garcia were obtained without the
assistance of counsel in violation of his rights under Article III, Section 12 (1) and (2) of the 1987
Constitution, which provides thus:

"Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel, preferably
of his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.

"(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incomunicado, or other similar forms of
detention are prohibited."

On the other hand, the OSG contends that counsel, Atty. Francisco Sanchez III of the Public
Attorney’s Office, duly assisted Garcia during the custodial investigation.

It is clear from a plain reading of the three extrajudicial confessions 13 that Garcia was not assisted by
Atty. Sanchez. The signature of the latter on those documents was affixed after the word "SAKSI."
Moreover, he appeared in court and categorically testified that he had not assisted Garcia when the
latter was investigated by the police, and that the former had signed the Sworn Statement only as a
witness.14

The written confessions, however, were still admitted in evidence by the RTC on the ground that
Garcia had expressed in writing his willingness and readiness to give the Sworn Statements without
the assistance of counsel. The lower court’s action is manifest error.

The right to counsel has been written into our Constitution in order to prevent the use of duress and
other undue influence in extracting confessions from a suspect in a crime. The basic law specifically
requires that any waiver of this right must be made in writing and executed in the presence of a
counsel. In such case, counsel must not only ascertain that the confession is voluntarily made and
that the accused understands its nature and consequences, but also advise and assist the accused
continuously from the time the first question is asked by the investigating officer until the signing of
the confession.

Hence, the lawyer’s role cannot be reduced to being that of a mere witness to the signing of a pre-
prepared confession, even if it indicated compliance with the constitutional rights of the
accused.15 The accused is entitled to effective, vigilant and independent counsel. 16

A waiver in writing, like that which the trial court relied upon in the present case, is not enough.
Without the assistance of a counsel, the waiver has no evidentiary relevance. 17 The Constitution
states that "[a]ny confession or admission obtained in violation of [the aforecited Section 12] shall be
inadmissible in evidence x x x." Hence, the trial court was in error when it admitted in evidence the
uncounseled confessions of Garcia and convicted appellants on the basis thereof. The question of
whether he was tortured becomes moot.

Perforated Currency Notes

Appellants contend that the three P100 perforated currency notes (Exhibits "N" to "N-2") allegedly
confiscated from Garcia after his arrest were "fruits of the poisonous tree" and, hence, inadmissible
in evidence.

The solicitor general evades the issue and argues, instead, that appellants waived the illegality of
their arrest when they entered a plea. He further contends that the exclusion from the evidence of
the three punctured currency bills would not alter the findings of the trial court.

The police arrested Garcia without a warrant, while he had merely been waiting for a passenger bus
after being pointed out by the Cash Department personnel of the BSP. At the time of his arrest, he
had not committed, was not committing, and was not about to commit any crime. Neither was he
acting in a manner that would engender a reasonable ground to suspect that he was committing a
crime. None of the circumstances justifying an arrest without a warrant under Section 5 of Rule 113
of the Rules of Court was present.

Hence, Garcia was not lawfully arrested. Nonetheless, not having raised the matter before entering
his plea, he is deemed to have waived the illegality of his arrest. Note, however, that this waiver is
limited to the arrest. It does not extend to the search made as an incident thereto or to the
subsequent seizure of evidence allegedly found during the search.

The Constitution proscribes unreasonable searches and seizures 18 of whatever nature. Without a
judicial warrant, these are allowed only under the following exceptional circumstances: (1) a search
incident to a lawful arrest, (2) seizure of evidence in plain view, (3) search of a moving motor vehicle,
(4) customs search, (5) stop and frisk situations, and (6) consented search. 19

Where the arrest was incipiently illegal, it follows that the subsequent search was similarly
illegal.20 Any evidence obtained in violation of the constitutional provision is legally inadmissible in
evidence under the exclusionary rule.21In the present case, the perforated P100 currency notes were
obtained as a result of a search made without a warrant subsequent to an unlawful arrest; hence,
they are inadmissible in evidence.

Moreover, untenable is the solicitor general’s argument that Appellants De Leon, Flores and Loyola
waived the illegality of the arrest and seizure when, without raising objections thereto, they entered a
plea of guilty. It was Garcia who was unlawfully arrested and searched, not the aforementioned three
appellants. The legality of an arrest can be contested only by the party whose rights have been
impaired thereby. Objection to an unlawful search and seizure is purely personal, and third parties
cannot avail themselves of it.22

Indeed, the prosecution sufficiently proved the theft of the perforated currency notes for retirement. It
failed, however, to present sufficient admissible evidence pointing to appellants as the authors of the
crime.

The evidence presented by the prosecution shows that there were other people who had similar
access to the shredding machine area and the currency retirement vault. 23 Appellants were
pinpointed by Labita because of an anonymous phone call informing his superior of the people
allegedly behind the theft; and of the unexplained increase in their spending, which was incompatible
with their income. Labita, however, did not submit sufficient evidence to support his allegation.

Without the extrajudicial confession and the perforated currency notes, the remaining evidence
would be utterly inadequate to overturn the constitutional presumption of innocence.

Second Issue:
Demurrer to Evidence

Appellants contend that the trial court seriously erred when it denied the demurrer to evidence filed
by Appellants Loyola, De Leon and Flores. Not one of the documents offered by the prosecution and
admitted in evidence by the RTC established the alleged qualified theft of perforated notes, and not
one of the pieces of evidence showed appellants’ participation in the commission of the crime.

On the exercise of sound judicial discretion rests the trial judge’s determination of the sufficiency or
the insufficiency of the evidence presented by the prosecution to establish a prima facie case
against the accused. Unless there is a grave abuse of discretion amounting to lack of jurisdiction, the
trial court’s denial of a motion to dismiss may not be disturbed. 24

As discussed earlier, the inadmissibility of the confessions of Garcia did not become apparent until
after Atty. Francisco had testified in court. Even if the confiscated perforated notes from the person of
the former were held to be inadmissible, the confessions would still have constituted prima facie
evidence of the guilt of appellants. On that basis, the trial court did not abuse its discretion in
denying their demurrer to evidence.

WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Appellants are hereby
ACQUITTED and ordered immediately RELEASED, unless they are being detained for any other
lawful cause. The director of the Bureau of Corrections is hereby directed to submit his report on the
release of the appellant or the reason for his continued detention within five (5) days from notice of
this Decision. No costs.

SO ORDERED.

Davide Jr., CJ.,(Chairman) Panganiban, Ynares-Santiago, Carpio, and Azcuna, JJ concur.

C E RTI F I CATI O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.

Chief Justice

However, this conclusion of the trial court is contradicted by the Solicitor General who quotes parts
from the confessions to show that Garcia was assisted by counsel. The statement dated November
4, 199225 contains the following exchange:

"05. T: Meron ka bang abogado na nais na gamitin sa pagsisiyasat na ito upang siyang
tumulong sa iyo?

S: Wala pa ho sa ngayon pero si Attorney na lang pansamantala (Referring to Atty. Francisco

Sanchez III)."

It was also made to appear in the November 6, 1992 statement that Garcia was assisted by Atty.
Francisco:26

"03. T: Meron ka bang abogado na napipisil upang siyang tumulong sa iyo sa pagsisiyasat
na ito?

S: Sa ngayon po ay maski na si Atty. Sanchez na lang pansamantala."

The assailed Decision is a thin five-page conviction of the six accused. The first three pages
summarize the testimonies of the witnesses for both sides while the last two pages contained the
finding and ruling of the trial court. In one paragraph, the trial court refused to believe Garcia’s
recantation because 1) he repudiated them only five years after he executed them; 2) there was no
evidence substantiating Garcia’s allegation that he was tortured, not even an administrative
complaint against his alleged torturers; and 3) at the time of his arrest, the police recovered from his
wallet three pieces of P100 perforated bills. Then the trial court made short shrift of the denials of
Garcia’s co-appellants, and held that the flight of Peralta and Datuin Jr. shored up the evidence
against them all.
 EN BANC

G.R. No. 147201 January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
BENJAMIN SAYABOC y SEGUBA, PATRICIO ESCORPISO y VALDEZ, MARLON BUENVIAJE y
PINEDA, and MIGUEL BUENVIAJE y FLORES, appellants.

DECISION

DAVIDE, JR., C.J.:

Before us is the decision of 9 November 2000 of the Regional Trial Court of Bayombong, Nueva
Vizcaya, Branch 27, in Criminal Case No. 2912 finding appellant Benjamin Sayaboc guilty beyond
reasonable doubt of the crime of murder and sentencing him to suffer the penalty of death; and (2)
finding appellant Marlon Buenviaje guilty as principal and appellants Miguel Buenviaje and Patricio
Escorpiso guilty as accomplices in the crime of homicide.

On 17 April 1995, an information was filed charging Benjamin Sayaboc, Patricio Escorpiso, Marlon
Buenviaje, and Miguel Buenviaje with murder, the accusatory portion of which reads as follows:

That on or about December 2, 1994, in the Municipality of Solano, Province of Nueva

Vizcaya, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating together and mutually helping each other, and who were
then armed with a firearm, did then and there willfully, unlawfully and feloniously with evident
premeditation, by means of treachery and with intent to kill, attack, assault and use personal
violence upon the person of Joseph Galam y Antonio, by then and there suddenly firing at
the said Joseph Galam y Antonio who has not given any provocation, thereby inflicting upon
him mortal wounds which were the direct and immediate cause of his death thereafter, to the
damage and prejudice of his heirs.1

At their arraignment, appellants Benjamin Sayaboc, Patricio Escorpiso, and Miguel Buenviaje
pleaded not guilty to the charge of murder. Marlon Buenviaje, who was arrested only on 10 July
1997, also pleaded not guilty upon his arraignment.

The evidence for the prosecution discloses as follows:

At about 9:00 a.m. of 13 August 1994, while prosecution witness Abel Ramos was at a
vulcanizing shop in Barangay Quezon, Solano, Nueva Vizcaya, he heard one Tessie Pawid
screaming from across the road: "Enough, enough, enough!" In front of her were Marlon
Buenviaje and Joseph Galam, who were engaged in a fisticuff. By the time Pawid was able
to subdue the two men by standing between them and embracing Galam, Buenviaje’s face
 was already bloodied and Galam’s shirt collar torn. As Buenviaje was leaving, he turned to
face Galam and, with his right index finger making a slicing motion across his throat,
shouted: "Putang-ina mo Joseph, may araw ka rin, papatayin kita." Galam retorted, "Gago,
traydor, gold digger, halika." Buenviaje did not respond anymore and left on a tricycle. 2

More than three months thereafter, or on 2 December 1994, Galam was shot to death at the Rooftop
Disco and Lodging House (Rooftop, for short) owned by him, which was located
at Barangay Quezon, Solano, Nueva Vizcaya.

According to a waitress of the Rooftop Diana Grace Sanchez Jaramillo, earlier or at 3:00 p.m. of that
fateful day, a man whom she later identified as Benjamin Sayaboc rang the doorbell of the Rooftop
and asked whether a woman wearing a green t-shirt had checked in. She answered in the negative.
As she was about to leave, Sayaboc asked another question, "What time does your bosing arrive?"
She replied that she did not know. She then went to the second floor of the establishment. 3

Tessie Pilar, the caretaker of the lodging house, narrated that between 5:30 and 5:45 p.m. Sayaboc,
who was still seated in the swing beside the information counter with his hands tucked in the pocket
of his jacket, ordered a bottle of beer. She then went up to the kitchen, but was delayed in delivering
the beer because she gave some instructions to the dishwasher. When she gave the beer to
Benjamin, the latter was angry and asked why it took her so long to bring the beer. Thereafter, she
went upstairs and chatted with Jaramillo and some other waitresses. Then the vehicle of Joseph
Galam arrived.4

Shortly thereafter, they heard four gunbursts emanating from the ground floor of the building. When
Jaramillo looked down, she saw Sayaboc shooting Galam, causing the latter to fall to the ground
face up, with blood spurting out of his chest. Sayaboc forthwith ran out and disappeared into the
darkness.5

Meanwhile, at about 5:30 p.m. of that fateful day, as Joselito Parungao, Chief Barangay Tanod
of Barangay Quezon, Solano, Nueva Vizcaya, was on his way to the Kowloon Restaurant located
along the national road, he saw Marlon Buenviaje with his father Miguel Buenviaje and Patricio
Escorpiso. The three were aboard a tricycle parked in a vacant lot between the Rooftop and Diego
Theater. The younger Buenviaje was on the driver’s seat, while the older Buenviaje and Escorpiso
were inside the sidecar. Parungao ordered pancit bihon. While he was waiting outside of the
restaurant, he noticed that the tricycle was still parked in the vacant lot, and the three occupants
thereof were talking with each other. After getting his order and while he was getting out of the
restaurant, Parungao heard four gunshots coming from behind the Rooftop building. He thereafter
saw a person, whom he later came to know as Benjamin Sayaboc, walking briskly toward the tricycle
and then rode behind Marlon Buenviaje. Afterwards, the tricycle sped off towards the center of the
town.6

The employees of the Rooftop lost no time in bringing Galam to a hospital, where he was declared
dead on arrival.7Dr. Antonio R. Labasan, who conducted an autopsy on his cadaver, found four
gunshot wounds and opined that the first two of which were inflicted from behind and the last two
were frontal.8

That evening, SPO4 Roberto Cagungao, Chief Investigator of the Solano Police Station, assigned
some investigators to go to the scene of the crime to gather evidence. At about 10:00 to 11:00 p.m.,
he and Lt. Alejandro Parungao brought Pilar and Jaramillo to the Philippine National Police (PNP)
Crime Laboratory in Camp Crame, Quezon City. Pilar and Jaramillo were interviewed by the
cartographic artist, who thereafter drew a cartographic sketch showing the face of the assailant. 9
On 8 March 1995, Pilar and Jaramillo identified Benjamin Sayaboc at the PNP Provincial
Headquarters in Bayombong as the gunman who shot Joseph Galam to death. 10

On the afternoon of that day, SPO4 Cagungao was called to the Provincial Command Headquarters
in Bayombong, Nueva Vizcaya, to take the statement of Sayaboc. When he arrived at the
headquarters he saw Sayaboc being interviewed by reporters inside the investigation room. He then
brought Sayaboc to the inner part of the room. Before taking the statement of Sayaboc, he advised
the latter of his constitutional rights. Then Sayaboc told him that he wanted to have a counsel of his
own choice. But since Sayaboc could not name one, Cagungao asked the police officers to get a
lawyer. Half an hour later, the police officers brought Atty. Rodolfo Cornejo of the PAO, who then
conferred with Sayaboc for a while. After Cagungao heard Sayaboc say, "okay," he continued the
investigation, during which Atty. Cornejo remained silent the entire time. However, Cagungao would
stop questioning Sayaboc whenever Atty. Cornejo would leave to go to the comfort room. 11 That night
Sayaboc executed an extrajudicial confession12 in Ilocano dialect. He therein confessed to killing
Joseph Galam at the behest of Marlon Buenviaje for the sum of P100,000. He likewise implicated
Miguel Buenviaje and Patricio Escorpiso. The confession was also signed by Atty. Cornejo and
attested to by one Fiscal Melvin Tiongson.

At the hearing on 22 June 1999, after the prosecution rested its case, 1counsel for accused Mike
Buenviaje, Marlon Buenviaje and Patricio Escorpiso manifested that he be given fifteen days to file a
motion for leave to admit demurrer to the evidence. 13 The trial court acceded. But instead of filing
such motion first, he filed a Demurrer to Evidence on 12 July 1999. 14 The motion for leave to file the
pleading was filed the next day only.15

The trial court denied the demurrer to evidence in an order 16 issued on 16 August 1999. Further, it
ruled that because of they did not seek nor were granted express leave of court prior to their filing of
the demurrer to evidence, the Buenviajes and Escorpiso were deemed to have submitted their case
for judgment in accordance with Section 15, Rule 119 of the Rules of Court. Thus, only Sayaboc was
allowed to proceed with the presentation of his defense.

Sayaboc denied having committed the crime and proffered the defense of alibi. He also flatly denied
having met Atty. Cornejo or having been informed of his rights. He testified to having been beaten by
six or seven police officers in the investigating room, who then coerced him to confess to having
killed Galam.17 Apart from his testimony, he submitted a handwritten statement dated 20 March
199518 and an affidavit dated 10 April 199519 to support his claim of police brutality and retraction of
his confession.

In its decision dated 9 November 2000, 20 the trial court found Benjamin Sayaboc guilty of the crime
of murder, with treachery as the qualifying circumstance and craft and price or reward as
aggravating circumstances. It then sentenced him to the maximum penalty of death. As for Marlon
Buenviaje, Miguel Buenviaje, and Patricio Escorpiso, the court held that the treachery employed by
Sayaboc could not be taken against them and, therefore, declared them guilty of the crime of
homicide only, with the first as principal and the two others as accomplices. Each was sentenced to
suffer an indeterminate penalty and to pay solidarily with Sayaboc the amounts of P115,000 as
actual damages; P25,000 as moral damages; and the costs of the suit in favor of the heirs of Joseph
Galam.

From this decision, the appellants raise the following errors:

I
THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT SAYABOC GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF MURDER AND SENTENCING HIM TO DEATH.

II

ASSUMING ARGUENDO THAT ACCUSED SAYABOC IS GUILTY, HE IS GUILTY ONLY OF THE

CRIME OF HOMICIDE.

III

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL CONFESSION

OF ACCUSED SAYABOC WHEN IT WAS TAKEN WITHOUT THE ASSISTANCE OF A
COMPETENT AND INDEPENDENT COUNSEL NOR BY AN EFFECTIVE AND VIGILANT
COUNSEL.

IV

THE TRIAL COURT ERRED IN FINDING FATHER AND SON BUENVIAJE AND ACCUSED
ESCORPISO LIKEWISE GUILTY WHEN IT DENIED THEM THEIR CONSTITUTIONAL RIGHT TO
BE HEARD BY THEMSELVES AND COUNSEL AFTER THEY FILED THEIR DEMURRER TO
EVIDENCE ALLEGEDLY WITHOUT FIRST SEEKING EXPRESS LEAVE OF COURT.

In the first and second assigned errors, the appellants contend that the crime committed by Sayaboc
was homicide only, there being no proof of treachery because the two eyewitnesses did not see the
commencement of the shooting. Besides, treachery, as well as evident premeditation, was not
specifically designated as a qualifying circumstance in the information. Neither can the aggravating
circumstances of craft and price or reward be appreciated because they were not alleged in the
information, albeit proved during trial. Sections 8 and 9 of Rule 110 of the 2000 Rules of Criminal
Procedure, which require aggravating and qualifying circumstances to be alleged in the information,
are beneficial to the accused and should, therefore, be applied retroactively.

As to the third assigned error, the appellants argue that the extrajudicial confession of Sayaboc may
not be admitted in evidence against him because Atty. Cornejo, the PAO lawyer who was his counsel
during the custodial investigation, was not a competent, independent, vigilant, and effective counsel.
He was ineffective because he remained silent during the entire proceedings. He was not
independent, as he was formerly a judge in the National Police Commission, which was holding
court inside the PNP Command of Bayombong, Nueva Vizcaya.

Finally, appellants Marlon Buenviaje, Miguel Buenviaje, and Patricio Escorpiso claim that they were
denied due process because they were not able to present evidence in their defense. They ask this
Court to relax the rule of criminal procedure in favor of enforcing their constitutional right to be heard
by themselves and counsel.

On the other hand, the Office of the Solicitor General (OSG) maintains that Sayaboc’s extrajudicial
confession that he shot the victim in the back is adequate proof of treachery. Invoking People v.
Aquino,21 the OSG contends that for treachery to be considered as a qualifying circumstance, it
needs only to be specifically alleged in the information and does not have to be preceded by the
words qualifying or qualified by. As to the proven circumstances of craft and price or reward, the
same cannot be appreciated because they were not specifically alleged in the information, as
required by the 2000 Rules of Criminal Procedure, which are applicable to actions that are pending
and undetermined at the time of their passage.
The OSG further asserts that Sayaboc’s extrajudicial confession is admissible in evidence against
him, since it was made after he was informed of, and accorded, his constitutional rights, particularly
the right to an independent counsel of his own choice. No evidence was adduced during the trial to
substantiate the claim that Atty. Cornejo used to be connected with the NAPOLCOM. Moreover, this
claim was made for the first time in this appeal, and was based merely on an information furnished
by defense counsel Atty. Virgil Castro (now deceased) to Sayaboc’s counsel in this appeal, which
makes the said information hearsay twice removed.

As to the fourth assigned error, the OSG counters that no exceptional circumstance exists in this
case that may warrant the relaxation of the rule that the denial of a unilateral demurrer to evidence
carries with it a waiver of the accused’s right to present evidence.

Beginning with the admissibility of Sayaboc’s extrajudicial confession, we hold that such cannot be
used in evidence in this case.

Section 12 of Article III of the 1987 Constitution provides:

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.

(3) Any confession or admission obtained in violation of this or the preceding section shall be
inadmissible in evidence against him.

Jurisprudence provides that extrajudicial confessions are presumed to be voluntary. 22 The

condition for this presumption, however, is that the prosecution is able to show that the
constitutional requirements safeguarding an accused’s rights during custodial investigation
have been strictly complied with, especially when the extrajudicial confession has been
denounced. The rationale for this requirement is to allay any fear that the person being
investigated would succumb to coercion while in the unfamiliar or intimidating environment
that is inherent in custodial investigations. Therefore, even if the confession may appear to
have been given voluntarily since the confessant did not file charges against his alleged
intimidators for maltreatment,23 the failure to properly inform a suspect of his rights during a
custodial investigation renders the confession valueless and inadmissible. 24

In this case, contrary to SPO4 Cagungao’s claim that he conferred with Sayaboc for half an hour
informing him about his constitutional rights, the extrajudicial confession provides only the following:

PRELIMINARY: I would like to inform you Mr. Sayaboc that questions will be asked to you
regarding an incident last December 2, 1994 at the Rooftop, Brgy. Quezon, Solano, Nueva
Vizcaya, in connection with the shooting of Joseph Galam, owner of the said Disco House as
a result of his death. Before questions will be asked [of] you I would like to inform you about
your ri[g]hts under the new Constitution of the Philippines, as follows: That you have the right
to remain silent or refuse to answer the questions which you think will incriminate you; That
you have the right to seek the services of a counsel of your own choice or if not, this office
will provide you a lawyer if you wish.
 QUESTIONS: After informing you all your constitutional rights, are you willing to give
your true statement regarding the death of Joseph Galam?

ANSWER: Yes, sir.

QUESTIONS: Do you want to get a lawyer to assist in this investigation?

ANSWER: Yes, sir. I want to seek the assistance of Atty. Rodolfo Cornejo.

QUESTIONS: Atty. Rodolfo Cornejo is here now, do you want him to assist you in
this investigation?

ANSWER: Yes, sir. 25

Apart from the absence of an express waiver of his rights, the confession contains the passing of
information of the kind held to be in violation of the right to be informed under Section 12, Article III of
the Constitution. In People v. Jara,26 the Court explained:

The stereotyped "advice" appearing in practically all extrajudicial confessions which are later
repudiated has assumed the nature of a "legal form" or model. Police investigators either
automatically type it together with the curt "Opo" as the answer or ask the accused to sign it or even
copy it in their handwriting. Its tired, punctilious, fixed, and artificially stately style does not create an
impression of voluntariness or even understanding on the part of the accused. The showing of a
spontaneous, free, and unconstrained giving up of a right is missing.

The right to be informed requires "the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle." 27 It should allow the
suspect to consider the effects and consequences of any waiver he might make of these rights. More
so when the suspect is one like Sayaboc, who has an educational attainment of Grade IV, was a
stranger in Nueva Vizcaya, and had already been under the control of the police officers for two days
previous to the investigation, albeit for another offense.

We likewise rule that Sayaboc was not afforded his constitutional right to a competent counsel. While
we are unable to rule on the unsubstantiated claim that Atty. Cornejo was partial to the police, still,
the facts show through the testimonies of Sayaboc and prosecution witness SPO4 Cagungao that
Atty. Cornejo remained silent throughout the duration of the custodial investigation. The trial court
attributed the silence of Atty. Cornejo to the garrulous nature and intelligence of Sayaboc, thus:

As already stated, Sayaboc was a garrulous man and intelligent. It was in his character for
him to want to be a central figure in a drama, albeit tragic – for others. He would do what he
wanted to do regardless of the advice of others. Hence, Atty. Cornejo could only advise him
of his constitutional rights, which was apparently done. The said counsel could not stop him
from making his confession even if he did try.28

We find this explanation unacceptable. That Sayaboc was a "garrulous" man who would "do what he
wanted to do regardless of the advice of others" is immaterial. The waiver of a right is within the
rights of a suspect. What is lacking is a showing, to the satisfaction of this Court, of a faithful attempt
at each stage of the investigation to make Sayaboc aware of the consequences of his actions. If
anything, it appears that Sayaboc’s counsel was ineffectual for having been cowed by his client’s
enthusiasm to speak, or, worse, was indifferent to it.
The right to a competent and independent counsel means that the counsel should satisfy himself,
during the conduct of the investigation, that the suspect understands the import and consequences
of answering the questions propounded. In People v. Deniega, 29 we said:

The desired role of counsel in the process of custodial investigation is rendered meaningless
if the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the
rights of the person undergoing questioning. If the advice given is so cursory as to be
useless, voluntariness is impaired.

This is not to say that a counsel should try to prevent an accused from making a confession. Indeed,
as an officer of the court, it is an attorney’s duty to, first and foremost, seek the truth. However,
counsel should be able, throughout the investigation, to explain the nature of the questions by
conferring with his client and halting the investigation should the need arise. The duty of a lawyer
includes ensuring that the suspect under custodial investigation is aware that the right of an accused
to remain silent may be invoked at any time.

We understand the difficulty and frustration of police investigators in obtaining evidence to bring
criminals to justice. But even the hardest of criminals have rights that cannot be interfered with.
Those tasked with the enforcement of the law and who accuse those who violate it carry the burden
of ensuring that all evidence obtained by them in the course of the performance of their duties are
untainted with constitutional infirmity. The purpose of the stringent requirements of the law is to
protect all persons, especially the innocent and the weak, against possible indiscriminate use of the
powers of the government. Any deviation cannot be tolerated, and any fruit of such deviation shall be
excluded from evidence.

For these reasons, the extrajudicial confession of Sayaboc cannot be used in evidence against him.
We hold, however, that the prosecution has discharged its burden of proving his guilt for the crime of
homicide.

From the records of the case, there can be no doubt that Sayaboc shot and killed Galam in the early
evening of 2 December 1994. He was seen waiting at the Rooftop from 3:00 to 6:00 p.m. of that day,
shooting Galam shortly after the latter’s arrival, and fleeing from the scene of the crime to a waiting
tricycle. Credible witnesses described Sayaboc’s appearance to the police soon after the shooting
incident and prepared affidavits about the incident. They identified Sayaboc at the police station
while he was in custody, during the preliminary investigation, and, again, in open court. Such positive
identification constitutes more than sufficient direct evidence to uphold the finding that Sayaboc was
Galam’s killer. It cannot just be rebutted by Sayaboc’s bare denial and weak alibi.

Appellants’ claim that the information against them is insufficient for failure to specifically state that
treachery and evident premeditation were qualifying circumstances holds no water. In People v.
Aquino,30 we held that even after the recent amendments to the Rules of Criminal Procedure,
qualifying circumstances need not be preceded by descriptive words such as qualifying or qualified
by to properly qualify an offense. Nevertheless, from our review of the case, we find that neither
evident premeditation nor treachery has been sufficiently proved to qualify the crime to murder.

There is treachery when the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make. Thus, two
conditions must be present: (1) at the time of the attack, the victim was not in a position to defend
himself; and (2) the offender consciously adopted the particular means, method or form of attack
employed by him. For treachery to be appreciated, it must be present and seen by the witness right
at the inception of the attack. Where no particulars are known as to how the killing began, its
perpetration with treachery cannot merely be supposed. 31

In this case, the trial court concluded that the fact that the witnesses did not hear any shout or
conversation between the assailant and the victim immediately before the attack could only mean
that Sayaboc had approached his victim through stealth. 32 While not improbable, that conclusion is
merely an inference. The fact remains that none of the witnesses testified as to how the aggression
began. The witnesses testified having heard four shots, the last two of which were seen as having
been fired while Sayaboc was facing Galam. The autopsy conducted by Dr. Labasan reveals two
frontal wounds at the thigh and the shoulder, and two wounds on the right side of Galam’s back.
Although it is plausible that the initial shots were fired from behind, such inference is insufficient to
establish treachery.33

Neither can we appreciate evident premeditation as a qualifying circumstance. Evident premeditation

exists when it is shown that the execution of a criminal act is preceded by cool thought and reflection
upon the resolution to carry out the criminal intent. The requisites of evident premeditation are (1)
the time when the accused determined to commit the crime; (2) an act manifestly indicating that the
accused clung to his determination; and (3) sufficient lapse of time between such determination and
execution to allow him to reflect upon the circumstances of his act.34

Without the extrajudicial confession narrating when Sayaboc was hired to kill Galam, the testimony
that the former inquired about the latter while waiting in the Rooftop from 3:00 p.m. to 6:00 p.m. of
that fateful day does not prove the time when Sayaboc decided to kill Galam. Settled is the rule that
when it is not shown how and when the plan to kill was hatched or what time had elapsed before that
plan was carried out, evident premeditation cannot be considered. 35

The aggravating circumstances of craft and price or reward, even if proved, can neither be
considered because they were not specifically alleged in the information. Section 8, Rule 110 of the
2000 Revised Rules of Criminal Procedure requires that the information specify the aggravating
circumstances attending the commission of the crime for it to be considered in the imposition of
penalty. This requirement is beneficial to an accused and may, therefore, be given retroactive
effect.36

Thus, appellant Benjamin Sayaboc can be found guilty of the crime of homicide only, which is
punishable by reclusion temporal. There being no mitigating or aggravating circumstances
appreciated for or against him, the penalty to be imposed upon him should be in the medium period.
Applying the Indeterminate Sentence Law, he should be meted a penalty whose minimum is within
the range of prision mayor and whose maximum is within the range of reclusion temporal in its
medium period.

We cannot subscribe to the contention of appellants Marlon Buenviaje, Miguel Buenviaje, and
Patricio Escorpiso that the case should be remanded to the trial court because they were denied the
right to be heard by the trial court. It must be remembered that their demurrer to evidence filed on 12
July 1999 was without prior leave of court. The motion for leave to file the said pleading was filed
only the next day. The filing of the demurrer was clearly without leave of court. The trial court,
therefore, correctly applied the rule on demurrer to evidence found in Section 15, Rule 119 of the
1985 Rules of Criminal Procedure when it disallowed the abovementioned appellants to present
evidence on their behalf.

The filing of a demurrer to evidence without leave of court is an unqualified waiver of the right to
present evidence for the accused.37 The rationale for this rule is that when the accused moves for
dismissal on the ground of insufficiency of evidence of the prosecution evidence, he does so in the
belief that said evidence is insufficient to convict and, therefore, any need for him to present any
evidence is negated. An accused cannot be allowed to wager on the outcome of judicial proceedings
by espousing inconsistent viewpoints whenever dictated by convenience. The purpose behind the
rule is also to avoid the dilatory practice of filing motions for dismissal as a demurrer to the evidence
and, after denial thereof, the defense would then claim the right to present its evidence. 38

The trial court, therefore, correctly applied Section 15, Rule 119 of the 1985 Rules of Criminal
Procedure on demurrer to evidence when it disallowed the abovementioned appellants to present
evidence on their behalf. They cannot now claim that they were denied their right to be heard by
themselves and counsel.

On the basis of the evidence for the prosecution, we find the existence of conspiracy between
Marlon Buenviaje and Sayaboc.

It has been held that price or reward is evidence of conspiracy. 39 But the same was not established
by competent proof in this case. The extrajudicial confession 40 and the newspaper reports41 adduced
by the prosecution, which both contained Sayaboc’s statement pointing to Marlon Buenviaje as the
one who paid him P100,000 to kill Galam, are inadmissible in evidence. The first, as earlier stated,
was executed in violation of Sayaboc’s constitutional rights. The second are hearsay, since the
authors of such reports were not presented as witnesses to affirm the veracity thereof. 42

Conspiracy need not, however, be established by direct proof; it may be shown by circumstantial
evidence.43 As correctly found by the trial court and concurred with by the OSG, the concatenation of
circumstantial evidence shows that Marlon Buenviaje conspired with Sayaboc, thus:

1. On 13 August 1994, Marlon Buenviaje had a fistfight with Joseph Galam, causing him
injuries on his face and prompting him to make a threat to kill the latter; 44

2. More than three months later, Galam was killed by Sayaboc, who had no discernible
motive to do so;45

3. Shortly after shooting Galam, Sayaboc joined Marlon Buenviaje and the other appellants
in the tricycle, which was waiting in a vacant lot near the crime scene; 46

4. The tricycle driven by Marlon Buenviaje sped away and disappeared; 47

5. Marlon Buenviaje became a fugitive from justice for a long time, or until 10 July 1997; and

6. During the pendency of the case, the relatives of Marlon Buenviaje offered prosecution
eyewitness Diana Grace Jaramillo a job abroad, allowances, and two motorcycles in
consideration of her retraction of her testimony against Sayaboc. 48

Circumstantial evidence is sufficient for conviction when (1) there is more than one circumstances
established; (2) the facts from which the inferences are derived have been proved; and (3) the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
All these requisites are present in the case at bar. Being a conspirator equally guilty as Sayaboc,
Marlon Buenviaje must be meted the same penalty as that of Sayaboc.

However, as to Miguel Buenviaje and Patricio Escorpiso, there is paucity of evidence linking them to
the killing. They might have been with Marlon Buenviaje in that tricycle, but there is nothing to show
that they knew of the conspiracy to kill Galam. Absent any active participation in furtherance of the
common design or purpose to kill Galam, their mere presence near the crime scene or in the tricycle
driven by Marlon Buenviaje does not necessarily make them conspirators. Even knowledge,
acquiescence or approval of the act – without the cooperation and the agreement to cooperate – is
not enough to establish conspiracy.49

Now on the civil liability of Sayaboc and Marlon Buenviaje. The trial court’s award of actual
damages, representing the wake and burial expenses, is reduced to P106,436, this being the
amount supported by receipts. The award of moral damages is, however, increased to P50,000
conformably with current jurisprudence.50 In addition, the heirs of the victim are entitled to P50,000
as civil indemnity ex delicto.

WHEREFORE, the decision of the Regional Trial Court of Bayombong, Nueva Ecija, Branch 27, in
Criminal Case No. 2912 is MODIFIED. Appellants Benjamin Sayaboc and Marlon Buenviaje are
found guilty beyond reasonable doubt of the crime of homicide and are each sentenced to suffer an
indeterminate penalty of ten (10) years of prision mayor as minimum to seventeen (17) years and
four (4) months of reclusion temporal as maximum and to pay jointly and severally the heirs of
Joseph Galam the amounts of P106,436 as actual damages; P50,000 as civil indemnity; P50,000 as
moral damages; and the cost of the suit. Appellants Miguel Buenviaje and Patricio Escorpiso are
hereby ACQUITTED on the ground of reasonable doubt.

Costs de oficio.

SO ORDERED.

SECOND DIVISION

G.R. No. 128551 July 31, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAMIL SAMOLDE Y TAMBUNTING and ARMANDO ANDRES, accused.
RAMIL SAMOLDE Y TAMBUNTING, accused-appellant.

DECISION

MENDOZA, J.:

This is an appeal from the decision, dated February 26, 1992, of the Regional Trial Court, Branch
1

74, Antipolo, Rizal, insofar as it finds accused-appellant Ramil Samolde guilty of the crime of murder
and sentences him to suffer the penalty of reclusion perpetua and to pay the amount of ₱50,000.00
as civil indemnity for the death of Feliciano Nepomuceno.
The facts are as follows:

On August 10, 1989, accused-appellant Ramil Samolde was charged, together with Armando
Andres, with the crime of murder, the information against them alleging ¾

That, on or about the 13th day of May 1989, in the municipality of Taytay, province of Rizal,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping and aiding one another, with intent to
kill, treachery and evident premeditation, taking advantage of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault and grab the service firearm a caliber .38 revolver
with SN-982794 Smith & Wesson of one P/Cpl. Feliciano Nepomuceno y Cruz and shot the herein
victim on the body, as a result of which the said P/Cpl. Feliciano Nepomuceno y Cruz sustained
gunshot wounds which caused his death. 2

When arraigned on November 29, 1989, both accused pleaded not guilty, whereupon, trial was
held.3

The prosecution presented six witnesses, namely, Edgardo Cabalin, Ricardo Nepomuceno, Dr. Dario
4

L. Gajardo, P/Sgt. Benjamin Calderon, P/Sgt. Romeo De Leon, and Arsenia Nepomuceno.

Edgardo Cabalin, a neighbor of the victim and accused-appellant, testified that at around 5 o’clock in
the afternoon of May 13, 1989, accused-appellant and Armando Reyes asked him to lend them a
tear gas gun which they would use to get someone’s firearm. However, Cabalin said, he did not lend
his tear gas gun to them. He claimed that while he was having drinks with a friend at a store, he later
learned that Nepomuceno had been shot. At that point, he and his friend knew who the assailants
were. He explained that accused-appellant had a grudge against Nepomuceno because when the
former was in jail for stealing a chicken, the latter beat him up.
5

On cross-examination, Cabalin admitted that he did not really witness the killing of Nepomuceno. He
only learned of this fact when he and his friend were drinking beer at the store of a certain Turong
Duleng and the other people there were talking about the incident. 6

Ricardo Nepomuceno, a nephew of the victim, testified that he knew the accused-appellant and
Armando Andres because they grew up together in Taytay, Rizal until he moved to Morong, Rizal. He
said that on May 13, 1989, between 7:30 and 8 o’clock in the evening, he saw Ricardo Nepomuceno
on Naval Street being followed by Armando Andres and accused-appellant. Ricardo said he was 15
to 20 meters away from the two. He recognized them because he had known them for a long time,
and there was light coming from the electric post and from the houses along the street. According to
this witness, when Feliciano Nepomuceno turned to Mahinhin Street, accused-appellant grabbed
him from behind while Andres, who was in front, stabbed the victim on the side with a knife. As
Feliciano Nepomuceno’s gun fell, Andres picked it up and shot the victim three times. Afterwards, he
ran towards the direction of Sky Theater. On the other hand, accused-appellant Samolde ran
towards Salazar Street.

As soon as the assailants had fled, Ricardo Nepomuceno claimed he went to the aid of his uncle
and put him on a tricycle to take him to the hospital. On the way, they were met by an ambulance
and Feliciano Nepomuceno was transferred to it. However, he died before reaching the hospital. His
body was later taken to Camp Crame for autopsy. Ricardo Nepomuceno said he did not know of any
bad blood between his uncle and the accused. 7
On cross-examination, Ricardo Nepomuceno reiterated that he saw Armando Andres stab the victim
at the side as accused-appellant Samolde held the victim. He admitted, however, that he did not
volunteer information to the police.8

Dr. Dario L. Gajardo examined the body of Feliciano Nepomuceno. His findings are as follows:

SPECIMEN SUBMITTED:

Cadaver of Feliciano Nepomuceno, about 52 years old, policeman, 171 cm. in height and a resident
of #92 Int. Naval St., Taytay, Rizal.

PURPOSE OF LABORATORY EXAMINATION:

To determine the cause of death.

FINDINGS:

Fairly developed, fairly nourished male cadaver in primary flacidity with postmortem lividity over the
dependent portions of the body. Conjunctivae are pale. Lips and nailbeds are cyanotic.

TRUNK AND UPPER EXTREMITY:

(1) Gunshot wound, point of entry, left infraclavicular region, measuring 0.8 by 0.7 cm., 13.5
cm. from the anterior midline, with an abraided collar, measuring 0.2 cm. laterally and
superiorly, 0.1 cm. medially and inferiorly, directed posteriorwards, downwards and to the
right, fracturing the 3rd left thoracic rib along the midclavicular line and 5th left thoracic rib
along the midaxillary line, lacerating the upper lobe of both lungs and arch of the aorta, with
a deformed .38 caliber slug recovered at the right axillary region, just beneath the skin.

(2) Gunshot wound, point of entry, right infrascapular region, measuring 0.8 by 0.7 cm., 5 cm.
from the posterior midline, with an abraided collar, measuring 0.2 cm. laterally, 0.1 cm.
medially, superiorly and inferiorly, directed anteriorwards, downwards and to the left,
fracturing the 10th right thoracic rib along the paravertebral line and 9th thoracic vertebra,
lacerating the lower lobe of the right lung with a deformed .38 caliber slug recovered at the
left thoracic cavity.

(3) Gunshot wound, thru and thru, point of entry, left mammary region, measuring 1.8 by 0.8
cm., 10 cm. from the anterior midline, with an abraided collar, measuring 0.2 cm. superiorly,
1 cm. laterally, 0.1 cm. medially and inferiorly, directed downwards and medialwards, making
a point of exit at the epigastric region, measuring 3 by 6.2 cm., 5.5 cm. left of the anterior
midline.

(4) Gunshot wound, thru and thru, point of entry, distal 3rd of the left arm, measuring 0.8 by
0.7 cm., 8 cm. lateral to its anterior midline, with an abraided collar, measuring 0.2 cm.
laterally, 0.1 cm. medially, superiorly and inferiorly, directed horizonwards and medialwards,
making a point of exit at the middle 3rd of the left arm, measuring 2 by 1.5 cm., 2 cm. medial
to its anterior midline.

One thousand eight hundred (1,800) cc of blood and blood clots accumulated at the thoracic cavity.
Stomach is full of partially digested food particles consisting mostly of rice and the rest of the visceral
organs are grossly unremarkable.

CONCLUSION

Cause of death is cardio-respiratory arrest due to shock and hemorrhage secondary to multiple
gunshot wounds in the trunk and upper extremity. 9

Dr. Gajardo testified that judging from the point of entry of the bullets in wound nos. 1 and 3, he
concluded that the assailant was in front of the victim, while in wound no. 2, the assailant was at the
back of the victim. He said that from the location of wound no. 2, it was possible that the victim was
lying on his stomach when he was shot. Wound no. 4 was found on the left arm of the victim. Wound
nos. 1, 2, and 3 were the fatal wounds which caused the victim’s instantaneous death. Dr. Gajardo
opined that these wounds were caused by a .38 caliber gun. 10

On cross-examination, Dr. Gajardo said that although there were other injuries found in the body of
the victim, these injuries were part of the gunshot wounds sustained by him, indicating that the victim
fought off his assailants. No stab wound, however, was found on the body of the deceased. Dr.
Gajardo conceded that it was possible that wound nos. 3 and 4 were caused by a different firearm
because he was unable to recover the slugs from these wounds. Dr. Gajardo explained that he
11

placed the slugs which he recovered from the body of the victim inside an envelope attached to the
medical report. He said he did not place any markings on the slugs because this might destroy the
12

evidence. He simply wrapped the slugs with pink paper with tag number M-079-89 corresponding to
the number of the medical report. 13

P/Sgt. Benjamin Calderon, chief investigator of the Taytay police, testified that, at about 8 o’clock in
the evening of May 13, 1989, he went to the scene of the crime on Salazar Street near the corner of
Mahinhin Street. He interviewed several people, including Edgardo Cabalin. Moreover, he was the
one to whom accused-appellant and Armando Andres gave their statements in which they admitted
that they killed Feliciano Nepomuceno. Sgt. Calderon said that the statements were given with the
assistance of Atty. Emiliano Benito. He further said that the firearm taken from Feliciano
Nepomuceno was recovered from the house of Armando Andres’ relatives in Antipolo by police
operatives led by Station Commander Daniel Hernandez. 14

On cross-examination, Sgt. Calderon clarified that he was not one of those who arrested accused-
appellant and Andres. According to Sgt. Calderon, Andres was arrested on June 19, 1989, but he
executed his statement only on June 22, 1989, after he was provided with a lawyer. Sgt. Calderon
said he advised accused Andres to get his own lawyer and when the latter failed to do so, he
recommended Atty. Benito to Andres. Atty. Benito stayed with Andres from the start of the
investigation until the execution of the latter’s statement. Sgt. Calderon said that Andres was not
given a physical examination prior to the investigation. On the other hand, accused-appellant,
according to Sgt. Calderon, was arrested on June 6, 1989 in Bustos, Bulacan by P/Sgt. Rogelio De
Leon. That same afternoon, Sgt. Calderon took Samolde’s statement. Accused-appellant was
assisted by Atty. Emiliano Benito who stayed with accused-appellant until the end of the
investigation. Sgt. Calderon could not remember whether Samolde was physically examined. 15

P/Sgt. Romeo De Leon also testified. He said that on June 6, 1989, he went to Bustos to arrest
accused Ramil Samolde. Upon arriving in the town, he and his companions found that accused-
appellant Samolde was in jail for stealing a television set. Sgt. De Leon talked to the complainant in
the theft case and convinced him to withdraw his complaint so that they could take accused-
appellant with them to Taytay for proper investigation. As to Andres, Sgt. De Leon testified that he
learned from Samolde that Andres had gone to Ilocos Sur. Accordingly, on June 19, 1989, Sgt. De
Leon and his team went to Barrio Surbic, Narvacan, Ilocos Sur, and found Andres. Andres expressed
regret for killing Nepomuceno.16

Sgt. De Leon stated on cross-examination that he was chief of the intelligence operation of the
Taytay Police Station and that he was authorized to serve warrants of arrest. They arrested Samolde
in Taytay on June 6, 1989. He said that during the six-hour trip to Taytay, they questioned accused-
appellant regarding the whereabouts of Andres and the gun taken from Nepomuceno. Sgt. De Leon
denied having used violence against Samolde. He said he asked Andres for the gun used in killing
Feliciano Nepomuceno, and Andres said it was in Antipolo.

It was admitted that no counsel assisted Andres when he was interrogated. Sgt. De Leon denied
using force against Andres during the twelve-hour trip from Narvacan to Taytay.17

Arsenia Nepomuceno, wife of the deceased Feliciano Nepomuceno, testified that on May 13, 1989,
Perry Nepomuceno, a nephew, told her that her husband had been shot while on his way home. She
went to the place where her husband was shot but he was no longer there, having been taken to the
Angono Memorial Hospital. Accordingly, she and her nephew went to the hospital but they found that
he had died. She testified that she spent ₱7,500.00 for food and beverages served during her
husband’s five-day wake and paid ₱475.00 for the electricity. She also paid ₱14,500.00 for the
funeral services, ₱7,500.00 for the tomb, and ₱6,500.00 for the family lot. She said that her husband
earned ₱1,800.00 a month as a policeman. She related how she spent sleepless nights after the
death of her husband and how she was forced to accept sewing jobs to care for their four
children. The expenses for the funeral services were supported by a receipt for ₱14,500.00 issued
18

by La Funeraria Oro. She also presented receipts for ₱1,800.00 for the construction of Feliciano
19

Nepomuceno’s tomb and ₱7,500.00 for the family plot in the Taytay Municipal Cemetery.
20 21

Arsenia Nepomuceno admitted on cross-examination that she was not present when the receipt for
₱14,500.00 was issued by La Funeraria Oro, but she was present when the receipts for ₱1,800.00
and ₱7,500.00 for the tomb and cemetery plot were issued. 22

Accused-appellant Ramil Samolde and Armando Andres testified in their behalf. Samolde testified
that the victim, Feliciano Nepomuceno, was his neighbor in Taytay. He admitted harboring ill will and
much bitterness towards the latter because he was an abusive policeman. According to Samolde, at
23

around 7:30 in the evening of May 13, 1989, he was walking towards the market when he met
24

Feliciano Nepomuceno. Nepomuceno pointed a gun at him and called him a thief. Samolde said he
parried the gun and stabbed Nepomuceno with a carver, hitting the latter on the left side. When the
gun fell to the ground, Samolde picked it up and shot Nepomuceno. He then went to his brother’s
house to ask for money so that he could go to Plaridel, Bulacan, where he stayed until he was
arrested. He was detained in Bustos for two weeks, then transferred to the Taytay jail where he
claimed he was beaten up by the police. Samolde testified that the police wanted to know who
helped him kill Nepomuceno. He gave a statement implicating Andres because of a grudge which he
bore against the latter. Accused-appellant claimed that although he was provided a lawyer, the latter
was not really present during his investigation.

On cross-examination, accused-appellant testified that he was on his way to the Taytay market when
he met Nepomuceno who, as he often used to, called him a thief. He reiterated that he stabbed
Nepomuceno before shooting him with a service revolver. Accused-appellant said that as
Nepomuceno held a gun to his face, he parried it and stabbed Nepomuceno, causing the latter to
drop his gun. Accused-appellant said he then picked up the gun and shot Nepomuceno twice.
Accused-appellant denied he had a companion. He testified that during his detention, he was not
allowed to be seen, lest visitors notice his swollen face. He later told his parents that he had been
manhandled in jail, but the latter did not file a case against the policemen. As regards his counsel,
accused-appellant stated that, contrary to what was stated in his extrajudicial confession, his lawyer
did not really assist him. He was not informed of his constitutional rights when he executed his
extrajudicial confession, and he did so only after he had been subjected to some brutality by the
police. Upon inquiry by the trial court, accused-appellant stated that although he made two thrusts
with his carver at Nepomuceno, he failed to hit the latter. He admitted that he is left-handed.
25

On the other hand, Armando Andres told the court that he was born in Taytay and that he earned his
living by driving a tricycle. He said that although he knew accused-appellant Ramil Samolde, they
were not friends. Andres said he likewise knew the victim, Feliciano Nepomuceno, but did not know
where he lived. Andres claimed that on May 13, 1989, he was in Surbic, Ilocos Sur, where he had
been living with his sister. He learned that he was implicated in the killing of Nepomuceno only when
the police came to arrest him in Ilocos Sur on June 19, 1989. Like accused-appellant, Andres also
claimed he was beaten up by a policeman at the Taytay jail; that the sworn statement he gave had
been prepared by the police; that he was not given any opportunity to read it before he signed it; and
that he did so because he was subjected to torture and intimidation by the police. He said he could
not remember whether he had a lawyer when he gave his sworn statement.

On cross-examination, Andres explained that he knew accused-appellant because the latter used to
ride on his tricycle, but he denied that he and accused-appellant were close friends. He likewise
denied being acquainted with the victim Nepomuceno, reiterating that he only knew the latter by
face. He denied shooting Nepomuceno. He also disclaimed going to the house of a certain Leandro
Nalo in Antipolo, Rizal. He further denied burying in Antipolo Nepomuceno’s .38 caliber revolver. He
admitted having gone to Ilocos Sur only on May 15, 1989, and not on May 13, 1989, but denied that
he was hiding.26

On February 26, 1992, the trial court rendered judgment as follows:

In view of all the foregoing, the Court finds Ramil Samolde y Tambunting and Armando Andres y
Mendoza GUILTY beyond reasonable doubt of the crime of Murder, and they are hereby sentenced
to suffer the indeterminate penalty of Reclusion Perpetua, and to pay jointly and severally the heirs
of deceased Feliciano Nepomuceno, by way of indemnity, the sum of Fifty Thousand (₱50,000.00)
Pesos, without subsidiary imprisonment in case of insolvency.

For failure of accused Ramil Samolde and Armando Andres to agree voluntarily in writing before or
during their temporary imprisonment to abide by the same disciplinary rules imposed upon convicted
prisoner, they shall be credited in the service of their sentence each with 4/5 of the time during which
they have undergone preventive imprisonment.

SO ORDERED. 27

Only Ramil Samolde has appealed. He contends that:

1. The Court erred in finding there is complicity by circumstantial evidence; and

2. Accused-Appellant was given ₱10,000.00 by Armando Andres to confess to the murder. 28

Armando Andres did not appeal.

We find accused-appellant’s contentions to be without merit.

First. To be sure, the testimony of Ricardo Nepomuceno cannot be relied upon to sustain the
conviction of accused-appellant. Nepomuceno claimed that he saw the incident happen because he
was at the scene of the crime. He claimed he had come from his parents’ house, and he saw the
deceased being followed at Naval Street by accused-appellant and Armando Andres. Yet he never
volunteered information to the police. We can understand the reluctance of a witness to testify in a
29

case that does not concern him personally. But the victim in this case was the witness’ own uncle.
Until he testified at the trial of the case on June 20, 1990, more than one year after allegedly
witnessing the killing of his uncle on May 13, 1989, Ricardo Nepomuceno never told anyone about
what he allegedly knew about the killing. Such unexplained delay of an alleged eyewitness to the
murder of a kin in reporting the matter to the authorities casts grave doubts on the credibility of his
testimony. As we held in a similar case: 30

The rule is ordinarily to the effect that delay by a witness in divulging what he or she knows about the
commission of a crime, such as the identity of the offender, is not by itself a setback to the
evidentiary value of such a witness’ testimony. The courts, however, have been quick to deny
evidentiary weight where such delay is not sufficiently justified by any acceptable explanation.

For instance, well-founded fear of reprisal, or the unpredictable manner by which individuals react
when confronted by a gruesome event as to place the viewer in a state of shock for sometime, have
been considered as permissible situations resulting in delay. Invariably, however, even under the
foregoing circumstances the delay must not be undue in point of time. Thus, failure to reveal what
one had witnessed about a crime for a number of days, or weeks, or even a number of months, is
allowable. But, that will not hold true where, as in the case now being reviewed, the delay had
unreasonably stretched all too far out into a year and four months, especially in the absence of any
compelling or rational basis for such self-imposed and lengthy silence.

His belated disclosure raises the suspicion that his testimony was fabricated in order to provide
evidence to the prosecution. 31

Moreover, Ricardo Nepomuceno’s narration of the events is incredible. He testified:

Q: Now, on May 13, 1989 . . . between the hours of 7:30 to 8:00 in the evening, do you still recall
where were you?

A: I came from the house of my parents and I was about to go home to Morong.

Q: And while walking at Naval St. as you said at about that time between the hours of 7:30 and 8:00
o’clock in the evening, do you recall of any unusual incident that took place within the vicinity?

....

A: I saw Armando Andres and Ramil Samolde they were also walking along and following Cpl.
Nepomuceno.

Q: Now, on what street did you see both accused Ramil Samolde and Armando Andres following
Feliciano Nepomuceno?

A: Also in Naval St.

Q: And will you tell us at about what distance were you from the 3?
A: About 15 meters.

Q: Now, while walking and following the 3 what happened, if any?

A: Upon reaching the corner of Naval and Mahinhin they turn towards Mahinhin St. so they were
blocked to my view.

Q: Now, you said that you saw the two accused following Cpl. Feliciano Nepomuceno. Now, you
were in there back, is it not?

A: Yes, sir.

Q: Now, will you tell us why you were able to recognize the two accused when as you said you were
at their back?

A: I have known them for a long time that is why even if their back[s are] against me I can still
recognize them.

Q: Now, considering the length of time that you have known both accused were you their playmates?

A: We used to meet at the place of Ramil because we used to play with the gamecock.

....

Q: Now, considering the three of you grew up together in the same place at Naval St., Taytay, Rizal,
you can recognize anyone of them at the distance of about 15 meters, do I get you right?

A: Yes, sir.

Q: Now, will you describe that place Naval St. during nighttime at around 7:30 to 8:00 in the evening
with regards to the lighting, it is dark or it is lighted?

A: It is lighted and it is bright.

Q: Now, what is the source of this light which you said illumin[ed] the street?

A: From the post of the Meralco.

Q: Now, is that street thickly populated?

A: Yes, sir.

Q: And the houses along these streets were lighted at that time?

A: Yes, sir.

Q: Now, you made mention a while ago that the three referring to both accused and Feliciano
Nepomuceno executed a turn, to what street did the three proceed?

A: To Mahinhin St.
Q: And what did you do after that?

A: Upon reaching the street corner I also turn towards them.

Q: You mean to say you likewise turn to Mahinhin St.?

A: Yes, sir.

Q: What happened next, if any?

A: Upon turning on the street I already saw that Ramil Samolde was embracing Cpl. Nepomuceno
on the back.

Q: And what about Armando Andres what was he doing then?

A: He was in front and holding a knife as he just stabbed Nepomuceno.

Q: Now, did you see what portion of the body of Cpl. Nepomuceno was stabbed by Armando
Andres?

A: As far as I know it was on the side.

Q: Left side or right side?

A: I cannot recall, sir.

Q: Now, what happened next, if any?

A: After Armando stabbed Cpl. Nepomuceno his gun fell.

Q: And as the gun of Cpl. Nepomuceno fell on the ground what happened next?

A: It was picked up by Armando.

Q: And what did Armando do with that gun?

A: He fired it to Cpl. Nepomuceno.

Q: Now, how many gunshots did you hear?

A: Three (3) times, sir.

Q: After that what happened next, if any?

A: They run away in different direction. 32

Answering questions on cross-examination, Ricardo Nepomuceno reiterated that he saw Andres

holding a pointed instrument which the latter used to stab the victim. As he testified:
Q: Mr. Witness, you are under oath in testifying in connection with this case, are you sure you saw
Armando holding a knife, is that correct?

A: I know that he was holding an instrument.

Q: Will you describe what he is holding?

A: A pointed instrument.

Q: And according to you while Andres is holding that knife, did you see Armando stabbed the victim
Cpl. Nepomuceno, is that correct?

A: Yes, sir.

Q: Are you sure of that?

A: Yes, sir.

Q: And are you sure what portion of the body does Cpl. Nepomuceno was hit?

A: I saw that he was hit on his side of the body. 33

The above testimony is, however, belied by the results of the physical examination of the victim as
well as by the testimony of Dr. Dario L. Gajardo. The medico-legal report states that Feliciano
Nepomuceno sustained four gunshot wounds, three of which were fatal, but there was no stab
wound. Dr. Gajardo testified:

Q: In your findings, it appears that there are four (4) gunshot wound[s], is that correct?

A: Yes, Sir.

Q: No other injuries at the body of the victim that you have found?

A: Well, there were other injuries which is part.

Q: Did you find any stab wound on the body of the victim?

A: None, Sir. 34

In People v. Padica, it was held that the absence of stab wounds does not negate a witness’
35

testimony that the victim was stabbed by his assailants. In that case, however, the apparent
inconsistency between the witness’ testimony and the evidence is explained by the fact that,
although the accused tried to stab the victim, the weapon failed to penetrate and hit the body. In the
present case, however, Dr. Gajardo categorically stated not only that there was no stab wound found
on the body of the victim but also that the other injuries sustained by him were part of the gunshot
wounds inflicted on him. These other wounds, such as the abrasions, were caused by the struggle
36

between the victim and his assailants. No lacerations were reported to have been sustained by the
37

victim.
Nor is the extrajudicial confession of accused-appellant admissible in evidence. Accused-appellant
was not informed of his constitutional rights before his statement was taken.

The pertinent portions of his extrajudicial confession read:

PALIWANAG: Ikaw ngayon ay nasa ilalim ng isang pagsisiyasat. Bago kita tanungin ng mga bagay-
bagay na may kinalaman sa kasong ito ay nais kong ipabatid ko sa iyo ang iyong mga karapatan na
gaya ng mga sumusunod:

Na: Ikaw ay may karapatan manatiling tahimik, at may karapatan magbigay o huwag ng salaysay
kung gusto mo.

Na: Ano mang salaysay kung magbibigay ka ito ay maaaring gamitin katibayan laban o pabor sa iyo
sa alin mang hukuman dito sa kapuluan Pilipinas.

Na: Ikaw ay may karapatan din sa tulong at pagharap ng sino mang manananggol na iyong nais.

1. TANONG: Matapos mong mabatid ang iyong mga karapatan alinsunod sa ating
bagong saligang batas, ikaw ba ay nahahandang magbigay ng isang malaya at
kusang loob na salaysay na ang iyong sasabihin ay pawang katotohanan lamang?

SAGOT: Opo.

2. T: Ikaw ba ay mayroon abogado sa oras na ito, upang makatulong mo sa

imbestigasyon na ito?

S: Mayroon po, si Atty. Emiliano Benito, na siyang aking nagustuhan abogado, upang
makatulong ko sa pagsisiyasat sa akin.

3. T: Sa harap ng iyong abogado, nauunawaan mo bang lahat ang iyong mga

karapatan na aking ipinaliwanag sa iyo?

S: Opo, kaya po ako kumuha o pumili ng aking abogado.

4. T: Mailalagda mo ba ang iyong pangalan, bilang patunay na nauunawaan mo ang

mga karapatan mo at bilang patotoo na ikaw ay may katulong na abogado sa oras
ng pagsisiyasat sa iyo?

S: Opo.

Assisted by: (SGD.)RAMIL SAMOLDE

(Sgd.)
Atty. Emiliano Benito
Nagsasalaysay 38

Clearly, accused-appellant was not properly apprised of his constitutional rights. Under Art. III, §12(1)
of the Constitution, a suspect in custodial investigation must be given the following warnings: "(1) He
must be informed of his right to remain silent; (2) he must be warned that anything he says can and
will be used against him; and (3) he must be told that he has a right to counsel, and that if he is
indigent, a lawyer will be appointed to represent him." As the abovequoted portion of the
39
extrajudicial confession shows, accused-appellant was given no more than a perfunctory recitation
of his rights, signifying nothing more than a feigned compliance with the constitutional requirements.
This manner of giving warnings has been held to be "merely ceremonial and inadequate to transmit
meaningful information to the suspect." For this reason, we hold accused-appellant’s extrajudicial
40

confession is invalid.

However, apart from the testimony of Ricardo Nepomuceno and the extrajudicial confession of
accused-appellant, there is sufficient evidence in the records showing accused-appellant’s guilt.
Accused-appellant confessed in open court that he had killed Feliciano Nepomuceno. It is this
admission of accused-appellant which should be considered. 41

Now accused-appellant testified that on the day in question, he met the deceased and, as he had
done in the past, the latter poked a gun at him at the same time called him a thief. Angered by what
had been done to him, accused-appellant said he pushed Nepomuceno’s hand away and stabbed
him with a carver. Then, when Nepomuceno dropped his gun to the ground, accused-appellant
picked it up and shot Nepomuceno. Accused-appellant claimed that he merely implicated Armando
Andres because he had a grudge against Andres. 42

The trial court dismissed this attempt to exculpate Andres and convicted the latter. We think the trial
court correctly did so. Indeed, accused-appellant now claims that he was given ₱10,000.00 by
Andres to make the admission in court in order to exonerate the latter. But the fact that Armando
43

Andres chose not to appeal is proof of the falsity of this claim. This flipflop makes accused-
appellant’s explanation as to why he admitted slaying Feliciano Nepomuceno very doubtful.

We have held that a judicial confession constitutes evidence of a high order. The presumption is that
no sane person would deliberately confess to the commission of a crime unless prompted to do so
by truth and conscience. Indeed, it is hard to believe that a person, of whatever economic status,
44

would confess to a crime that he did not commit for monetary considerations and thus barter away
his liberty, and for that matter, even his life, for a mess of potage, for that is what the mere sum of
₱10,000.00 allegedly paid to him to make the confession means.

On the other hand, the fact that accused-appellant felt bitter towards the victim for having tortured
him in jail was the motivating factor which made him kill the latter. The attempt of accused-appellant
and Andres to borrow a tear gas gun from a neighbor so that they could take the victim’s gun and
their flight after getting their quarry, when taken together with accused-appellant’s judicial
confession, place beyond the shadow of doubt the guilt of accused-appellant.

"Generally, motive is proved by the acts or statements of the accused before or immediately after the
commission of the offense - deeds or words that may express the motive or from which his reason
for committing the offense may be inferred." In this case, Edgardo Cabalin, a neighbor, testified that
45

accused-appellant harbored ill feelings towards the victim. Cabalin related that, at one time,
accused-appellant, who had been jailed for stealing, was beaten up in jail by Feliciano Nepomuceno,
a member of the police. (Accused-appellant himself said the victim was an abusive policeman and
46

admitted that he felt much bitterness towards him. ) Cabalin testified that at around 5 o’clock in the
47

afternoon of May 13, 1989, the same day the victim was killed, accused-appellant and Armando
Andres tried to borrow a tear gas gun from him because they were planning to take someone’s gun,
but, Cabalin said, he did not lend them his tear gas gun. Accused-appellant thus had a motive to kill
48

Nepomuceno.

Another circumstance to be taken against accused-appellant was his flight after the commission of
the crime. Accused-appellant was arrested in Bulacan. Apparently, he went into hiding in Bulacan to
avoid arrest. In a similar case, it was held that the fact that the accused disappeared shortly after the
commission of the crime and could not be found in their respective residences such that an alias
warrant had to be issued for their arrest were strong indications that they committed the crime. Flight
has been held to be an indication of guilt.49

Second. The question of whether the killing of Feliciano Nepomuceno was committed with treachery
and with evident premeditation remains to be resolved. In this case, the trial court found the killing to
be attended by the qualifying circumstance of treachery.

We do not agree. For treachery to be appreciated as a qualifying circumstance, the following

elements must concur: "(1) the employment of means of execution which gives the person assaulted
no opportunity to defend himself or retaliate; and (b) that said means of execution were deliberately
or consciously adopted by the assailant." As already stated, Ricardo Nepomuceno’s testimony
50

cannot be given credence. No other evidence was presented by the prosecution to prove the mode
and manner in which accused-appellant and Armando Andres executed the crime. For this reason,
there is no basis for appreciating treachery in this case.

We hold, however, that there was evident premeditation so as to make the killing murder. The
elements of evident premeditation are: (1) the time when the accused determined to commit the
crime; (2) an act manifestly indicating that the accused has clung to his determination; and (3) a
sufficient lapse of time between such determination and execution to allow him to reflect upon the
circumstances of his act.51

As stated earlier, accused-appellant and Armando Andres tried to borrow Cabalin’s tear gas gun.
This attempt by accused-appellant and his co-accused to arm themselves prior to the commission of
the crime constitutes direct evidence that the killing of Feliciano Nepomuceno had been planned with
care and executed with utmost deliberation. Such act also shows that the accused-appellant and his
co-accused had a previous agreement to kill Feliciano Nepomuceno. From the time the two agreed
to commit the crime to the time of the killing itself, sufficient time had lapsed for them to desist from
their criminal plan had they wanted to. Instead, they clung to their determination and went ahead
with their nefarious plan. That nobody saw the killing of Nepomuceno even indicates that the two
planned to commit the crime at such time and place where the victim was alone and help would be
difficult to obtain. The killing of Nepomuceno was done under such circumstances that the assailants
foresaw the problems they might encounter, i.e., the victim was armed and thus knew how to defend
himself, and figured out the means to deal with them. "The essence of premeditation is that the
execution of the criminal act was preceded by cool thought and reflection upon the resolution to
carry out the criminal intent during a space of time sufficient to arrive at a calm judgment." Clearly,
52

the elements of evident premeditation are present in this case.

Third. As to the question of damages, the trial court correctly awarded ₱50,000.00 as civil indemnity
to the heirs of Feliciano Nepomuceno, in accordance with our recent rulings. We find that aside from
53

the civil indemnity, however, the heirs of Feliciano Nepomuceno are entitled to actual damages for
expenses incurred during Feliciano Nepomuceno’s wake and burial. To be entitled to such damages,
it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and on the best evidence obtainable by the injured party. In the case at bar,
54

the funeral expenses were shown by a receipt issued by La Funeraria Oro, Inc. in the amount
₱14,500.00. In addition, the prosecution presented receipts issued in favor of Arsenia Nepomuceno
55

to show the payment of ₱1,800.00 for the construction of Feliciano Nepomuceno’s grave and 56

₱7,500.00 for the family lot located at the Taytay Municipal Cemetery. These receipts are sufficient
57

to prove the amount of actual damages with reasonable certainty. The heirs of the victim are,
therefore, entitled to the full amount of ₱23,800.00 as actual damages representing the expenses
sustained by them for the death of Feliciano Nepomuceno.
As regards the victim’s loss of earning capacity, the only evidence offered by the prosecution is the
widow’s testimony that, at the time of his death, Feliciano Nepomuceno was earning ₱1,800.00 a
month. Awards for the loss of earning capacity partake of the nature of damages and must thus be
proved not only by credible and satisfactory evidence but also by unbiased proof. In the case at bar,
58

we find the testimony by the widow Arsenia Nepomuceno to be self-serving and insufficient to justify
an award of unearned income to her.

WHEREFORE, the decision of the Regional Trial Court, Branch 74, Antipolo, Rizal is AFFIRMED
with the MODIFICATION that, in addition to the award of ₱50,000.00 as civil indemnity, accused-
appellant is ordered to pay to the heirs of the victim Feliciano Nepomuceno the amount of
₱23,800.00 as actual damages for the expenses incurred by them as a result of the victim’s death.
The decision of the trial court is final as to Armando Andres who did not appeal therefrom.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 116437 March 3, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PABLITO ANDAN y HERNANDEZ @ BOBBY, accused-appellant.

PER CURIAM:

Accused-appellant Pablito Andan y Hernandez alias "Bobby" was accused of the crime of rape with
homicide committed as follows:

That on or about the 19th day of February 1994, in the municipality of Baliuag,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd design, by means of violence and intimidation,
did then and there wilfully, unlawfully and feloniously have carnal knowledge of one
Marianne Guevarra y Reyes against her will and without her consent; and the above-
named accused in order to suppress evidence against him and delay (sic) the
identity of the victim, did then and there wilfully, unlawfully and feloniously, with intent
to kill the said Marianne Guevarra y Reyes, attack, assault and hit said victim with
concrete hollow blocks in her face and in different parts of her body, thereby inflicting
upon her mortal wounds which directly caused her death.

Contrary to Law. 1

The prosecution established that on February 19, 1994 at about 4:00 P.M., in Concepcion
Subdivision, Baliuag, Bulacan, Marianne Guevarra, twenty years of age and a second-year student
at the Fatima School of Nursing, left her home for her school dormitory in Valenzuela, Metro Manila.
She was to prepare for her final examinations on February 21, 1994. Marianne wore a striped blouse
and faded denim pants and brought with her two bags containing her school uniforms, some
personal effects and more than P2,000.00 in cash.

Marianne was walking along the subdivision when appellant invited her inside his house. He used
the pretext that the blood pressure of his wife's grandmother should be taken. Marianne agreed to
take her blood pressure as the old woman was her distant relative. She did not know that nobody
was inside the house. Appellant then punched her in the abdomen, brought her to the kitchen and
raped her. His lust sated, appellant dragged the unconscious girl to an old toilet at the back of the
house and left her there until dark. Night came and appellant pulled Marianne, who was still
unconscious, to their backyard. The yard had a pigpen bordered on one side by a six-foot high
concrete fence. On the other side was a vacant lot. Appellant stood on a bench beside the pigpen
and then lifted and draped the girl's body over the fence to transfer it to the vacant lot. When the girl
moved, he hit her head with a piece of concrete block. He heard her moan and hit her again on the
face. After silence reigned, he pulled her body to the other side of the fence, dragged it towards a
shallow portion of the lot and abandoned it. 2

At 11:00 A.M. of the following day, February 20, 1994, the body of Marianne was discovered. She
was naked from the chest down with her brassiere and T-shirt pulled toward her neck. Nearby was
found a panty with a sanitary napkin.

The autopsy conducted by Dr. Alberto Bondoc revealed that Marianne died of "traumatic injuries"
sustained as follows:

1. Abrasions:

1.1 chest and abdomen, multiple, superficial, linear, generally oblique

from right to left.

2. Abrasions/contusions:

2.1 temple, right.

2.2 cheek, right.

2.3 upper and lower jaws, right.

2.4 breast, upper inner quadrant, right.

2.5 breast, upper outer quadrant, left.

2.6 abdomen, just above the umbilicus, rectangular, approximate 3

inches in width, from right MCL to left AAL.

2.7 elbow joint, posterior, bilateral.

3. Hematoma:

3.1 upper and lower eyelids, bilateral.

 3.2 temple, lateral to the outer edge of eyebrow, right.

3.3 upper and lower jaws, right.

4. Lacerated wounds:

4.1 eyebrow, lateral border, right, 1/2 inch.

4.2 face, from right cheek below the zygoma to midline lower jaw, 4
inches.

5. Fractures:

5.1 maxillary bone, right.

5.2 mandible, multiple, complete, right, with avulsion of 1st and 2nd
incisors.

6. Cerebral contusions, inferior surface, temporal and frontal lobes, right.

7. External genitalia

7.1 minimal blood present.

7.2 no signs of recent physical injuries noted on both labia, introitus

and exposed vaginal wall.

8. Laboratory examination of smear samples from the vaginal cavity showed

negative for spermatozoa (Bulacan Provincial Hospital, February 22, 1994, by Dr.
Wilfredo S. de Vera).

CAUSE OF DEATH: Cardiorespiratory Arrest due to Cerebral Contusions due to

Traumatic Injuries, Face. 3

Marianne's gruesome death drew public attention and prompted Mayor Cornelio Trinidad of Baliuag
to form a crack team of police officers to look for the criminal. Searching the place where Marianne's
body was found, the policemen recovered a broken piece of concrete block stained with what
appeared to be blood. They also found a pair of denim pants and a pair of shoes which were
identified as Marianne's.
4

Appellant's nearby house was also searched by the police who found bloodstains on the wall of the
pigpen in the backyard. They interviewed the occupants of the house and learned from Romano
Calma, the stepbrother of appellant's wife, that accused-appellant also lived there but that he, his
wife and son left without a word. Calma surrendered to the police several articles consisting of
pornographic pictures, a pair of wet short pants with some reddish brown stain, a towel also with the
stain, and a wet T-shirt. The clothes were found in the laundry hamper inside the house and
allegedly belonged to appellant.5

The police tried to locate appellant and learned that his parents live in Barangay Tangos, Baliuag,
Bulacan. On February 24 at 11:00 P.M., a police team led by Mayor Trinidad traced appellant in his
parents' house. They took him aboard the patrol jeep and brought him to the police headquarters
where he was interrogated. Initially, appellant denied any knowledge of Marianne's death. However,
when the police confronted him with the concrete block, the victim's clothes and the bloodstains
found in the pigpen, appellant relented and said that his neighbors, Gilbert Larin and Reynaldo
Dizon, killed Marianne and that he was merely a lookout. He also said that he knew where Larin and
Dizon hid the two bags of Marianne. Immediately, the police took appellant to his house. Larin and
6

Dizon, who were rounded up earlier, were likewise brought there by the police. Appellant went to an
old toilet at the back of the house, leaned over a flower pot and retrieved from a canal under the pot,
two bags which were later identified as belonging to Marianne. Thereafter, photographs were taken
of appellant and the two other suspects holding the bags. 7

Appellant and the two suspects were brought back to the police headquarters. The following day,
February 25, a physical examination was conducted on the suspects by the Municipal Health Officer,
Dr. Orpha
Patawaran. Appellant was found to sustain:
8

HEENT: with multiple scratches on the neck Rt side. Chest and back: with abrasions
(scratches at the back). Extremities: freshly-healed wound along index finger 1.5 cm.
in size Lt.
9

By this time, people and media representatives were already gathered at the police headquarters
awaiting the results of the investigation. Mayor Trinidad arrived and proceeded to the investigation
room. Upon seeing the mayor, appellant approached him and whispered a request that they talk
privately. The mayor led appellant to the office of the Chief of Police and there, appellant broke down
and said "Mayor, patawarin mo ako! I will tell you the truth. I am the one who killed Marianne." The
mayor opened the door of the room to let the public and media representatives witness the
confession. The mayor first asked for a lawyer to assist appellant but since no lawyer was available
he ordered the proceedings photographed and videotaped. In the presence of the mayor, the
10

police, representatives of the media and appellant's own wife and son, appellant confessed his guilt.
He disclosed how he killed Marianne and volunteered to show them the place where he hid her
bags. He asked for forgiveness from Larin and Dizon whom he falsely implicated saying he did it
because of ill-feelings against them. He also said that the devil entered his mind because of the
11

pornographic magazines and tabloid he read almost everyday. After his confession, appellant
12

hugged his wife and son and asked the mayor to help
him. His confession was captured on videotape and covered by the media nationwide.
13 14

Appellant was detained at the police headquarters. The next two days, February 26 and 27, more
newspaper, radio and television reporters came. Appellant was again interviewed and he affirmed
his confession to the mayor and reenacted the crime. 15

On arraignment, however, appellant entered a plea of "not guilty." He testified that in the afternoon of
February 19, 1994 he was at his parent's house in Barangay Tangos attending the birthday party of
his nephew. He, his wife and son went home after 5:00 P.M. His wife cooked dinner while he
watched their one-year old son. They all slept at 8:00 P.M. and woke up the next day at 6:00 in the
morning. His wife went to Manila to collect some debts while he and his son went to his parents'
house where he helped his father cement the floor of the house. His wife joined them in the
afternoon and they stayed there until February 24, 1994 when he was picked up by the police. 16

Appellant was brought by the police to a hotel at Bagong Nayon, Baliuag. In one of the rooms, the
policemen covered his face with a bedsheet and kicked him repeatedly. They coerced him to confess
that he raped and killed Marianne. When he refused, they pushed his head into a toilet bowl and
injected something into his buttocks. Weakened, appellant confessed to the crime. Thereafter,
appellant was taken to his house where he saw two of his neighbors, Larin and Dizon. He was
ordered by the police to go to the old toilet at the back of the house and get two bags from under the
flower pot. Fearing for his life, appellant did as he was told.
17

In a decision dated August 4, 1994, the trial court convicted appellant and sentenced him to death
pursuant to Republic Act No. 7659. The trial court also ordered appellant to pay the victim's heirs
P50,000.00 as death indemnity, P71,000.00 as actual burial expenses and P100,000.00 as moral
damages, thus:

WHEREFORE, in view of the foregoing, Pablito Andan y Hernandez alias "Bobby is

found guilty by proof beyond a scintilla of doubt of the crime charged in the
Information (Rape with Homicide) and penalized in accordance with R.A. No. 7659
(Death Penalty Law) Sec. 11, Par. 8, classifying this offense as one of the heinous
crimes and hereby sentences him to suffer the penalty of DEATH; to indemnify the
family of Marianne Guevarra the amount of P50,000. 00 for the death of Marianne
Guevarra and P71,000.00 as actual burial and incidental expenses and P100,000.00
as moral damages. After automatic review of this case and the decision becomes
final and executory, the sentence be carried out.

SO ORDERED. 18

This case is before us on automatic review in accordance with Section 22 of Republic Act No. 7659
amending Article 47 of the Revised Penal Code.

Appellant contends that:

I THE LOWER COURT ERRED IN ADMITTING AND USING AS BASIS OF

JUDGMENT OF CONVICTION THE TESTIMONIES OF THE POLICE
INVESTIGATORS, REPORTERS AND THE MAYOR ON THE ALLEGED
ADMISSION OF THE ACCUSED DURING THE CUSTODIAL INVESTIGATION, THE
ACCUSED NOT BEING ASSISTED BY COUNSEL IN VIOLATION OF THE
CONSTITUTION;

II THE LOWER COURT ERRED IN FINDING THAT THERE WAS RAPE WHEN
THERE IS NO EVIDENCE OF ANY KIND TO SUPPORT IT;

III THE LOWER COURT ERRED IN MAKING A FINDING OF CONVICTION WHEN

THE EVIDENCE IN ITS TOTALITY SHOWS THAT THE PROSECUTION FAILED TO
PROVE BEYOND REASONABLE DOUBT THE GUILT OF THE ACCUSED. 19

The trial court based its decision convicting appellant on the testimonies of the three policemen of
the investigating team, the mayor of Baliuag and four news reporters to whom appellant gave his
extrajudicial oral confessions. It was also based on photographs and video footages of appellant's
confessions and reenactments of the commission of the crime.

Accused-appellant assails the admission of the testimonies of the policemen, the mayor and the
news reporters because they were made during custodial investigation without the assistance of
counsel. Section 12, paragraphs (1) and (3) of Article III of the Constitution provides:

Sec. 12 (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
 services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

(2) . . .

(3) Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadmissible in evidence against him.

(4) . . .

Plainly, any person under investigation for the commission of an offense shall have the right
(1) to remain silent; (2) to have competent and independent counsel preferably of his own
choice; and (3) to be informed of such
rights. These rights cannot be waived except in writing and in the presence of counsel. Any
20

confession or admission obtained in violation of this provision is inadmissible in evidence

against him. The exclusionary rule is premised on the presumption that the defendant is
21

thrust into an unfamiliar atmosphere and runs through menacing police interrogation
procedures where the potentiality for compulsion physical and psychological, is forcefully
apparent. The incommunicado character of custodial interrogation or investigation also
22

obscures a later judicial determination of what really transpired.

23

It should be stressed that the rights under Section 12 are accorded to "[a]ny person under
investigation for the commission of an offense." An investigation begins when it is no longer a
general inquiry into an unsolved crime but starts to focus on a particular person as a suspect, i.e.,
when the police investigator starts interrogating or exacting a confession from the suspect in
connection with an alleged offense. As intended by the 1971 Constitutional Convention, this covers
24

"investigation conducted by police authorities which will include investigations conducted by the
municipal police, the PC and the NBI and such other police agencies in our government." 25

When the police arrested appellant, they were no longer engaged in a general inquiry about the
death of Marianne. Indeed, appellant was already a prime suspect even before the police found him
at his parents' house. This is clear from the testimony of SPO4 Danilo S. Bugay, the police chief
investigator of the crime, viz:

COURT How did you come about in concluding that it was accused who did this act?

WITNESS: First, the place where Marianne was last found is at the backyard of the
house of the accused. Second, there were blood stains at the pigpen, and third,
when we asked Romano Calma who were his other companions in the house, he
said that, it was Pablito Andan who cannot be found at that time and whose
whereabouts were unknown, sir.

Q: So you had a possible suspect?

A: Yes, sir.

Q: You went looking for Pablito Andan?

A: Yes, sir.

Q: And then, what else did you do?

 A: We tried to find out where we can find him and from information we
learned that his parents live in Barangay Tangos in Baliuag. We went
there, found him there and investigated him and in fact during the
investigation he admitted that he was the culprit. 26

Appellant was already under custodial investigation when he confessed to the police. It is
admitted that the police failed to inform appellant of his constitutional rights when he was
investigated and interrogated. His confession is therefore inadmissible in evidence. So too
27

were the two bags recovered from appellant's house. SPO2 Cesar Canoza, a member of the
investigating team testified:

Atty. Valmores: You told the court that you were able to recover these
bags marked as Exhs. B and B-1 because accused pointed to them,
where did he point these bags?

A: At the police station, sir, he told us that he hid the two (2) bags
beneath the canal of the toilet.

Q: In other words, you were given the information where these two
(2) bags were located?

A: Yes, sir.

Q: And upon being informed where the two (2) bags could be located
what did you do?

A: We proceeded to the place together with the accused so that we

would know where the two (2) bags were hidden, sir.

Q: And did you see actually those two (2) bags before the accused
pointed to the place where the bags were located?

A: After he removed the broken pots with which he covered the canal,
he really showed where the bags were hidden underneath the canal,
sir.28

The victim's bags were the fruits of appellant's uncounselled confession to the police. They are
tainted evidence, hence also inadmissible. 29

The police detained appellant after his initial confession. The following day, Mayor Trinidad visited
the appellant. Appellant approached the mayor and requested for a private talk. They went inside a
room and appellant confessed that he alone committed the crime. He pleaded for forgiveness.
Mayor Trinidad testified, viz:

Mayor Trinidad: . . . . During the investigation when there were

already many people from the media, Andan whispered something to
me and requested that he be able to talk to me alone, so what I did
was that, I brought him inside the office of the chief of police.

Private Prosecutor Principe: And so what happened inside the office

of the Chief of Police, mayor?
 A: While inside the office of the headquarters he told me "Mayor
patawarin mo ako,! I will tell you the truth. I am the one who killed
Marianne." So when he was telling this to me, I told him to wait a
while, then I opened the door to allow the media to hear what he was
going to say and I asked him again whether he was the one who did
it, he admitted it, sir. This was even covered by a television camera. 30

xxx xxx xxx

Q: During that time that Pablito Andan whispered to you that he will
tell you something and then you responded by bringing him inside the
office of the Chief of Police and you stated that he admitted that he
killed Marianne . . .

Court: He said to you the following words . . .

Atty. Principe: He said to you the following words "Mayor, patawarin

mo ako! Ako ang pumatay kay Marianne," was that the only
admission that he told you?

A: The admission was made twice. The first one was, when we were
alone and the second one was before the media people, sir.

Q: What else did he tell you when you were inside the room of the
Chief of Police?

A: These were the only things that he told me, sir. I stopped him from
making further admissions because I wanted the media people to
hear what he was going to say, sir. 31

Under these circumstances, it cannot be successfully claimed that appellant's confession before the
mayor is inadmissible. It is true that
a municipal mayor has "operational supervision and control" over the local
police and may arguably be deemed a law enforcement officer for purposes of applying Section 12
32

(1) and (3) of Article III of the Constitution. However, appellant's confession to the mayor was not
made in response to any interrogation by the latter. In fact, the mayor did not question appellant at
33

all. No police authority ordered appellant to talk to the mayor. It was appellant himself who
spontaneously, freely and voluntarily sought the mayor for a private meeting. The mayor did not
know that appellant was going to confess his guilt to him. When appellant talked with the mayor as a
confidant and not as a law enforcement officer, his uncounselled confession to him did not violate his
constitutional rights. Thus, it has been held that the constitutional procedures on custodial
34

investigation do not apply to a spontaneous statement, not elicited through questioning by the
authorities, but given in an ordinary manner whereby appellant orally admitted having committed the
crime. What the Constitution bars is the compulsory disclosure of incriminating facts or
35

confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by
the state as would lead the accused to admit something false, not to prevent him from freely and
voluntarily telling the truth. Hence, we hold that appellant's confession to the mayor was correctly
36

admitted by the trial court.

Appellant's confessions to the media were likewise properly admitted. The confessions were made in
response to questions by news reporters, not by the police or any other investigating officer. We
have held that statements spontaneously made by a suspect to news reporters on a televised
interview are deemed voluntary an are admissible in evidence. 37

The records show that Alex Marcelino, a television reporter for "Eye to Eye" on Channel 7,
interviewed appellant on February 27, 1994. The interview was recorded on video and showed that
appellant made his confession willingly, openly and publicly in the presence of his wife, child and
other relatives. Orlan Mauricio, a reporter for "Tell the People" on Channel 9 also interviewed
38

appellant on February 25, 1994. He testified that:

Atty. Principe: You mentioned awhile ago that you were able to reach
the place where the body of Marianne was found, where did you start
your interview, in what particular place?

Mr. Mauricio: Actually, I started my newsgathering and interview

inside the police station of Baliuag and I identified myself to the
accused as I have mentioned earlier, sir. At first, I asked him whether
he was the one who raped and killed the victim and I also learned
from him that the victim was his cousin.

Q: And what was the response of Pablito Andan?

A: His response was he is a cousin of the victim and that he was

responsible for raping and killing the victim, sir. And then I asked him
whether his admission was voluntary or that there was a threat,
intimidation or violence that was committed on his person because I
knew that there were five other suspects in this case and he said that
he was admitting it voluntarily to the policemen. I asked him whether
he was under the influence of drugs but he said no, and "nakainom
lang," sir.

Q: You mentioned earlier that the uncle of the accused was present,
was the uncle beside him at the time that you asked the question?

A: The uncle was there including the barangay captain whose name I
cannot recall anymore. A barangay captain of the place, I don't know
if it is the place of the crime scene or in the place where Marianne
Guevarra resides but . . . All throughout the scene inside the office of
the Station Commander, there was no air of any force or any
threatening nature of investigation that was being done on the
suspect, that is why, I was able to talk to him freely and in a voluntary
manner he admitted to me that he was the one who raped and killed,
so we went to the next stage of accompanying me to the scene of the
crime where the reenactment and everything that transpired during
the killing of Marianne Guevarra.

Q: Before you started that interview, did you inform or ask permission
from the accused Pablito Andan that you were going to interview
him?

A: Yes, sir.
 xxx xxx xxx

Q: You mentioned that after interviewing the accused at the office of

the Baliuag PNP, you also went to the scene of the crime?

A: Yes, sir.

Q: Who accompanied you?

A: I was accompanied by some Baliuag policemen including Mayor

Trinidad and some of the relatives of the accused.

Q: At this time, did you see the wife of the accused, Pablito Andan?

A: Yes, sir, I saw her at the place where the body of Guevarra was
recovered.

Q: How many relatives of accused Pablito Andan were present, more

or less?

A: There were many, sir, because there were many wailing, weeping
and crying at that time when he was already taken in the patrol jeep
of the Baliuag police, sir.

Q: Now, Mr. Mauricio, upon reaching the scene of the crime in

Concepcion, Baliuag, Bulacan, what transpired?

A: I started my work as a reporter by trying to dig deeper on how the

crime was committed by the accused, so we started inside the pigpen
of that old house where I tried to accompany the accused and asked
him to narrate to me and show me how he carried out the rape and
killing of Marianne Guevarra, sir.

Q: Did he voluntarily comply?

A: Yes, sir, in fact, I have it on my videotape.

Q: It is clear, Mr. Mauricio, that from the start of your interview at the
PNP Baliuag up to the scene of the crime, all the stages were
videotaped by you?

A: Yes, sir. 39

Journalist Berteni Causing of "People's Journal Tonite" likewise covered the proceedings for
three successive days. His testimony is as follows:
40

Atty. Principe: You mentioned that you had your own inquiries?

A: We asked first permission from the mayor to interrupt their own

investigation so that we can have a direct interview with the suspect.
Q: Were there people?

A: The people present before the crowd that included the mayor, the
deputy chief of police, several of the policemen, the group of Inday
Badiday and several other persons. I asked the suspect after the
mayor presented the suspect to us and after the suspect admitted
that he was the one who killed Marianne. I reiterated the question to
the suspect. Are you aware that this offense which is murder with . . .
rape with murder is a capital offense? And you could be sentenced to
death of this? And he said, Yes. So do you really admit that you were
the one who did it and he repeated it, I mean, say the affirmative
answer.

Q: And that was in the presence of the crowd that you mentioned a
while ago?

A: Yes, yes, sir. And if I remember it right, as I took my camera to take

some pictures of the suspect, the mayor, the policemen and several
others, I heard the group of Inday Badiday asking the same questions
from the suspect and the suspect answered the same.

Q: Also in the presence of so many people that you mentioned?

A: The same group of people who were there, sir.

Q: You mentioned that the answer was just the same as the accused
answered you affirmatively, what was the answer, please be definite?

Court: Use the vernacular.

A: I asked him the question, after asking him the question," Ikaw ba
talaga and gumawa ng pagpatay at pag-rape sa kay Marianne? Ang
sagot nya, "Oo." Alam mo ba itong kasalanang ito, kamatayan ang
hatol, inaamin mo pa ba na ikaw and gumawa sa pagpatay at pag-
rape kay Marianne?" Sagot pa rin siya ng "Oo."

xxx xxx xxx

Q: Did you ask him, why did you kill Marianne?

A: I asked him, your Honor and the reason he told me was because a
devil gripped his mind and because of that according to him, your
Honor, were the pornographic magazines, pornographic tabloids
which he, according to him, reads almost everyday before the crime.

Atty. Principe: At the time of your interview, Mr. Reporter, will you tell
the court and the public what was the physical condition of accused
Pablito Andan?

A: As I observed him that time, there was no sign on his body that he
was really down physically and I think he was in good condition.
 Court: So he was not happy about the incident?

A: He even admitted it, your Honor.

Court: He was happy?

A: He admitted it. He was not happy after doing it.

Court: Was he crying?

A: As I observed, your Honor, the tears were only apparent but there
was no tear that fell on his face.

Court: Was he feeling remorseful?

A: As I observed it, it was only slightly, your Honor.

xxx xxx xxx 41

Another journalist, Rey Domingo, of "Bandera" interviewed appellant on February 26,

1994. He also testified that:
42

Atty. Principe: Now, Mr. Witness, did the accused Pablito Andan give
you the permission that you asked from him?

A: Yes, sir.

Q: And when he allowed you to interview him, who were present?

A: The first person that I saw there was Mayor Trinidad, policemen
from Baliuag, the chief investigator, SPO4 Bugay, and since
Katipunan, the chief of police was suspended, it was the deputy who
was there, sir.

Q: Were they the only persons who were present when you
interviewed the accused?

A: There were many people there, sir. The place was crowded with
people. There were people from the PNP and people from Baliuag,
sir.

Q: How about the other representatives from the media?

A: Roy Reyes, Orlan Mauricio arrived but he arrived late and there
were people from the radio and from TV Channel 9.

Q: How about Channel 7?

A: They came late. I was the one who got the scoop first, sir.
Q: You stated that the accused allowed you to interview him, was his
wife also present?

A: Yes, sir, and even the son was there but I am not very sure if she
was really the wife but they were hugging each other and she was
crying and from the questions that I asked from the people there they
told me that she is the wife, sir.

Q: How about the other members of the family of the accused, were
they around?

A: I do not know the others, sir. but there were many people there, sir.

Q: Now, according to you, you made a news item about the interview.
May we know what question did you ask and the answer.

A: My first question was, is he Pablito Andan and his answer was

"Yes."

Q: What was the next question?

A: I asked him how he did the crime and he said that, he saw the
victim aboard a tricycle. He called her up. She entered the house and
he boxed her on the stomach.

Q: What was the next question that you asked him?

A: He also said that he raped her and he said that the reason why he
killed the victim was because he was afraid that the incident might be
discovered, sir.

Q: Now, after the interview, are we correct to say that you made a
news item on that?

A: Yes, sir, based on what he told me. That's what I did.

Q: Were there other questions propounded by you?

A: Yes, sir.

Q: "Ano iyon?"

A: He said that he threw the cadaver to the other side of the fence,
sir.

Q: Did he mention how he threw the cadaver of Marianne to the other

side of the fence?

A: I cannot remember the others, sir.

 Q: But can you produce the news item based on that interview?

A: I have a xerox copy here, sir.

xxx xxx xxx 43

Clearly, appellant's confessions to the news reporters were given free from any undue influence from
the police authorities. The news reporters acted as news reporters when they interviewed
appellant. They were not acting under the direction and control of the police. They were there to
44

check appellant's confession to the mayor. They did not force appellant to grant them an interview
and reenact the commission of the crime. In fact, they asked his permission before interviewing
45

him. They interviewed him on separate days not once did appellant protest his innocence. Instead,
he repeatedly confessed his guilt to them. He even supplied all the details in the commission of the
crime, and consented to its reenactment. All his confessions to the news reporters were witnessed
by his family and other relatives. There was no coercive atmosphere in the interview of appellant by
the news reporters.

We rule that appellant's verbal confessions to the newsmen are not covered by Section 12 (1) and
(3) of Article III of the Constitution. The Bill of Rights does not concern itself with the relation between
a private individual and another individual. It governs the relationship between the individual and
46

the State. The prohibitions therein are primarily addressed to the State and its agents. They confirm
that certain rights of the individual exist without need of any governmental grant, rights that may not
be taken away by government, rights that government has the duty to protect. Governmental power
47

is not unlimited and the Bill of Rights lays down these limitations to protect the individual against
aggression and unwarranted interference by any department of government and its agencies. 48

In his second assigned error, appellant questions the sufficiency of the medical evidence against
him. Dr. Alberto Bondoc, a Medical Specialist with the Provincial Health Office, conducted the first
autopsy and found no spermatozoa and no recent physical injuries in the hymen. Allegedly,
49

the minimal blood found in her vagina could have been caused by her menstruation. 50

We are unpersuaded. A second autopsy was conducted on March 1, 1994 by Dr. Dominic L. Aguda,
a medico-legal officer of the National Bureau of Investigation. His findings affirmed the absence of
spermatozoa but revealed that the victim's hymen had lacerations, thus:

Hymen — contracted, tall, thin with fresh lacerations with clotted blood at 6 and 3
o'clock positions corresponding to the walls of the
clock. 51

Dr. Aguda testified that the lacerations were fresh and that they may have been caused by
an object forcibly inserted into the vagina when the victim was still alive, indicating the
possibility of penetration. His testimony is as follows:
52

Witness: When I exposed the hymen, I found lacerations in this 3

o'clock and 6 o'clock position corresponding to the walls of the
clock. . . . .

Court: Include the descriptive word, fresh.

Witness: I put it in writing that this is fresh because within the edges
of the lacerations, I found blood clot, that is why I put it into writing as
fresh.

Atty. Valmonte: Now, Doctor, you told the Court that what you did on
the cadaver was merely a re-autopsy, that means, doctor the body
was autopsied first before you did you re-autopsy?

A: Yes, sir.

Q: Could it not be, doctor, that these injuries you found in the vagina
could have been sustained on account of the dilation of the previous
autopsy?

A: Well, we presumed that if the first doctor conducted the autopsy on

the victim which was already dead, no amount of injury or no amount
of lacerated wounds could produce blood because there is no more
circulation, the circulation had already stopped. So, I presumed that
when the doctor examined the victim with the use of forceps or
retractor, vaginal retractor, then I assumed that the victim was already
dead. So it is impossible that the lacerated wounds on the hymen
were caused by those instruments because the victim was already
dead and usually in a dead person we do not produce any bleeding.

Q: What you would like to tell the Court is this: that the lacerations
with clotted blood at 6 and 3 o'clock positions corresponding to the
walls of the clock could have been inflicted or could have been
sustained while the victim was alive?

A: Yes, sir.

Q: This clotted blood, according to you, found at the edges of the

lacerated wounds, now will you kindly go over the sketch you have
just drawn and indicate the edges of the lacerated wounds where you
found the clotted blood?

A: This is the lacerated wound at 3 o'clock and this is the lacerated

wound at 6 o'clock. I found the blood clot at this stage. The clotted
blood are found on the edges of the lacerated wounds, sir.

Q: What could have caused those lacerations?

A: Well, it could have been caused by an object that is forcibly

inserted into that small opening of the hymen causing lacerations on
the edges of the hymen, sir.

Q: If the victim had sexual intercourse, could she sustain those

lacerations?

A: It is possible, sir. 53
We have also ruled in the past that the absence of spermatozoa in the vagina does not negate the
commission of rape nor does the lack of complete penetration or rupture of the hymen. What is
54 55

essential is that there be penetration of the female organ no matter how slight. Dr. Aguda testified
56

that the fact of penetration is proved by the lacerations found in the victim's vagina. The lacerations
were fresh and could not have been caused by any injury in the first autopsy.

Dr. Aguda's finding and the allegation that the victim was raped by appellant are supported by other
evidence, real and testimonial, obtained from an investigation of the witnesses and the crime
scene, viz:

(1) The victim, Marianne, was last seen walking along the subdivision road near appellant's house; 57

(2) At that time, appellant's wife and her step brother and grandmother were not in their house; 58

(3) A bloodstained concrete block was found over the fence of appellant's house, a meter away from
the wall. Bloodstains were also found on the grass nearby and at the pigpen at the back of
appellant's house; 59

(4) The victim sustained bruises and scars indicating that her body had been dragged over a flat
rough surface. This supports the thesis that she was thrown over the fence and dragged to where
60

her body was found;

(5) Appellant's bloodstained clothes and towel were found in the laundry hamper in his house;

(6) The reddish brown stains in the towel and T-shirt of appellant were found positive for the
presence of blood type "B," the probable blood type of the victim. Marianne 's exact blood type was
61

not determined but her parents had type "A" and type "AB." The victim's pants had bloodstains
62

which were found to be type "O," appellant's blood type; 63

(7) Appellant had scratch marks and bruises in his body which he failed to explain; 64

(8) For no reason, appellant and his wife left their residence after the incident and were later found at
his parents' house in Barangay Tangos, Baliuag, Bulacan; 65

In fine, appellant's extrajudicial confessions together with the other circumstantial evidence justify the
conviction of appellant.

Appellant 's defense of alibi cannot overcome the prosecution evidence. His alibi cannot even stand
the test of physical improbability at the time of the commission of the crime. Barangay Tangos is only
a few kilometers away from Concepcion Subdivision and can be traversed in less than half an hour. 66

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 15, Malolos, Bulacan in
Criminal Case No. 1109-M-94 is affirmed and accused-appellant Pablito Andan y Hernandez is found
guilty of the special complex crime of rape with homicide under Section 11 of Republic Act No. 7659
amending Article 335 of the Revised Penal Code and is sentenced to the penalty of death, with two
(2) members of the Court, however, voting to impose reclusion perpetua. Accused-appellant is also
ordered to indemnify the heirs of the victim, Marianne Guevarra, the sum of P50,000.00 as civil
indemnity for her death and P71,000.00 as actual damages.
In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal
Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of
the President for possible exercise of the pardoning power.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 122485 February 1, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LARRY MAHINAY Y AMPARADO, accused-appellant.

PER CURIAM:

A violation of the dignity, purity and privacy of a child who is still innocent and unexposed to the ways
of worldly pleasures is a harrowing experience that destroys not only her future but of the youth
population as well, who in the teachings of our national hero, are considered the hope of the
fatherland. Once again, the Court is confronted by another tragic desecration of human dignity,
committed no less upon a child, who at the salad age of a few days past 12 years, has yet to knock
on the portals of womanhood, and met her untimely death as a result of the "intrinsically evil act" of
non-consensual sex called rape. Burdened with the supreme penalty of death, rape is an
ignominious crime for which necessity is neither an excuse nor does there exist any other rational
justification other than lust. But those who lust ought not to last.

The Court quotes with approval from the People's Brief, the facts narrating the horrible experience
and the tragic demise of a young and innocent child in the bloody hands of appellant, as such facts
are ably supported by evidence on record: * 1

Appellant Larry Mahinay started working as houseboy with Maria Isip on November
20, 1953. His task was to take care of Isip's house which was under construction
adjacent to her old residence situated inside a compound at No. 4165 Dian Street,
Gen. T. de Leon, Valenzuela, Metro Manila. But he stayed and slept in an apartment
also owned by Isip, located 10 meters away from the unfinished house (TSN,
September 6, 1995, pp. 5-10).

The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian Street. She
used to pass by Isip's house on her way to school and play inside the compound
yard, catching maya birds together with other children. While they were playing,
appellant was always around washing his clothes. Inside the compound yard was a
septic tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp.17; 20-22).
On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking
spree. Around 10 o'clock in the morning, appellant, who was already drunk, left
Gregorio Rivera and asked permission from Isip to go out with his friends (TSN,
September 6, 1995; pp. 9-11).

Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the
compound, saw Ma.Victoria on that same day three to four times catching birds
inside Isip's unfinished house around 4 o'clock in the afternoon. The unfinished
house was about 8 meters away from Rivera's store (TSN, September 18, 1995, pp.
9-11).

On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his in-
law's house between 6 to 7 o'clock p.m. to call his office regarding changes on the
trip of President Fidel V. Ramos. The house of his in-laws was near the house of Isip.
On his way to his in-law's house, Sgt. Suni met appellant along Dian Street. That
same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria standing in front of
the gate of the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17).

Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to

buy lugaw. Norgina Rivera informed appellant that there was none left of it. She
notice that appellant appeared to be uneasy and in deep thought. His hair was
disarrayed; he was drunk and was walking in a dazed manner. She asked why he
looked so worried but he did not answer. Then he left and walked back to the
compound (TSN, September 18, 1995, pp. 4-8; 12-14).

Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She
last saw her daughter wearing a pair of white shorts, brown belt, a yellow hair ribbon,
printed blue blouse, dirty white panty, white lady sando and blue rubber slippers
(TSN, August 23, 1995, pp. 22, 33).

Isip testified that appellant failed to show up for supper that night. On the following
day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger
jeepney driven by Fernando Trinidad at the talipapa. Appellant alighted at the top of
the bridge of the North Expressway and had thereafter disappeared (TSN,
September 20, 1995, pp. 4-9; September 27, l995; pp. 14-17).

That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria
inside the septic tank. Boy immediately reported what he saw to the victim's parents,
Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13).

With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was retrieved
from the septic tank. She was wearing a printed blouse without underwear. Her face
bore bruises. Results of the autopsy revealed the following findings:

Cyanosis, lips and nailbeds,

Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,

Anterior aspect, middle third, 4.5 x 3.0 cm.

Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye, lateral
aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x
1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left,
posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area,
left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect, middle
third, 11.00 x 4.0 cm elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm, forearms, left,
posterior aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm.
thighs; right antero-lateral aspect, upper 33rd , 12.0 x 10.0 cm. right anterior aspect,
lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd, 5.5 x 2.5 cm. knee, right, lateral
aspect, 1.5 X 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2
x 1.0 cm.

Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.

Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural

petechial hemorrhages.

Hemorrhage, subdural, left fronto-parietal area.

Tracheo-bronchial tree, congested.

Other visceral organs, congested.

Stomach, contain 1/4 rice and other food particles.

CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head Injury,

Contributory.

REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o'clock
position corresponding to the face of a watch edges congested with blood clots.
(TSN, August 18, 1995; p. 4; Record, p. 126).

Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were
informed by Isip that her houseboy, appellant Larry Mahinay, was missing. According
to her, it was unlikely for appellant to just disappear from the apartment since
whenever he would go out, he would normally return on the same day or early
morning of the following day (TSN, September 6, 1995, pp. 6-11-27).

SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant
was working in a pancit factory at Barangay Reparo, Caloocan City. They proceeded
to said place. The owner of the factory confirmed to them that appellant used to work
at the factory but she did not know his present whereabouts. Appellant's townmate,
on the other hand, informed them that appellant could possibly be found on 8th
Street, Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9).

The policemen returned to the scene of the crime. At the second floor of the house
under construction, they retrieved from one of the rooms a pair of dirty white short
pants, a brown belt and a yellow hair ribbon which was identified by Elvira Chan to
belong to her daughter, Ma. Victoria. They also found inside another room a pair of
blue slippers which Isip identified as that of appellant. Also found in the yard, three
armslength away from the septic tank were an underwear, a leather wallet, a pair of
 dirty long pants and a pliers positively identified by Isip as appellant's belongings.
These items were brought to the police station (TSN, August 14, 1995, pp. 10-13;
August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).

A police report was subsequently prepared including a referral slip addressed to the
office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved the
victim's underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).

After a series of follow-up operations, appellant was finally arrested in Barangay

Obario Matala, Ibaan, Batangas. He was brought to the Valenzuela Police Station.
On July 7, 1995, with the assistance of Atty. Restituto Viernes, appellant executed an
extra-judicial confession wherein he narrated in detail how he raped and killed the
victim. Also, when appellant came face to face with the victim's mother and aunt, he
confided to them that he was not alone in raping and killing the victim. He pointed to
Zaldy and Boyet as his co-conspirators (TSN, August 14,1995, pp. 13-21).

Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information which
reads:2

That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within
the jurisdiction of this Honorable Court the above-named accused, by means of force
and intimidation employed upon the person of MARIA VICTORIA CHAN y
CABALLERO, age 12 years old, did then and there wilfully, unlawfully and feloniously
lie with and have sexual intercourse with said MARIA VICTORIA CHAN Y
CABALLERO against her will and without her consent; that on the occasion of said
sexual assault, the above-named accused, choke and strangle said MARIA
VICTORIA CHAN Y CABALLERO as a result of which, said victim died.

Contrary to law. 3

to which he pleaded not guilty. After trial, the lower court rendered a decision convicting
appellant of the crime charged, sentenced him to suffer the penalty of death and to pay a
total of P73,000.00 to the victim's heirs. The dispositive portion of the trial court's decision
states:

WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond reasonable

doubt of the crime charged, he is hereby sentenced to death by electricution (sic). He
is likewise condemned to indemnify the heirs of the victim, Ma. Victoria Chan the
amount of P50,000.00 and to pay the further sum of P23,000.00 for the funeral,
burial and wake of the victim.

Let the complete records of the case be immediately forwarded to the Honorable
Supreme Court for the automatic review in accordance to Article 47 of the Revised
Penal Code as amended by Section 22 of Republic Act No. 7659.

SO ORDERED. 4

Upon automatic review by the Court en banc pursuant to Article 47 of the Revised Penal Code.
(RPC), as amended, appellant insists that the circumstantial evidence presented by the prosecution
5

against him is insufficient to prove his guilt beyond reasonable doubt. In his testimony summarized
by the trial court, appellant offered his version of what transpired as follows:
 (T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a drinking
spree. Gregorio Rivera is the brother of Maria Isip, appellant's employer. After
consuming three cases of red horse beer, he was summoned by Isip to clean the
jeepney. He finished cleaning the jeepney at 12 o'clock noon. Then he had lunch and
took a bath. Later, he asked permission from Isip to go out with his friends to see a
movie. He also asked for a cash advance of P300.00 (TSN, October 16, 1995, pp. 4-
5-5).

At 2 o'clock in the afternoon, appellant, instead of going out with his friend, opted to
rejoin Gregorio Rivera and Totoy for another drinking session. They consumed one
case of red horse beer. Around 6 o'clock p.m., Zaldy, a co-worker, fetched him at
Gregorio Rivera's house. They went to Zaldy's house and bought a bottle of gin.
They finished drinking gin around 8 o'clock p.m. After consuming the bottle of gin,
they went out and bought another bottle of gin from a nearby store. It was already 9
o'clock in the evening. While they were at the store, appellant and Zaldy met Boyet.
After giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16,
1995, pp. 6-7).

On his way home, appellant passed by Norgina Rivera's store to buy lugaw. Norgina
Rivera informed him that there was none left of it. He left the store and proceeded to
Isip's apartment. But because it was already closed, he decided to sleep at the
second floor of Isip's unfinished house. Around 10 o'clock p.m., Zaldy and Boyet
arrived carrying a cadaver. The two placed the body inside the room where appellant
was sleeping. As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet
directed him to rape the dead body of the child or they would kill him. He, however,
refused to follow. Then, he was asked by Zaldy and Boyet to assist them in bringing
the dead body downstairs. He obliged and helped dump the body into the septic
tank. Thereupon, Zaldy and Boyet warned him that should they ever see him again,
they would kill him. At 4 o'clock the following morning, he left the compound and
proceeded first to Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13).

Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas.

The police officers allegedly brought him to a big house somewhere in Manila. There,
appellant heard the police officer's plan to salvage him if he would not admit that he
was the one who raped and killed the victim. Scared, he executed an extra-judicial
confession. He claimed that he was assisted by Atty. Restituto Viernes only when he
was forced to sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11). 6

This being a death penalty case, the Court exercises the greatest circumspection in the review
thereof since "there can be no stake higher and no penalty more severe . . . than the termination of a
human life." For life, once taken is like virginity, which once defiled can never be restored. In order
7

therefore, that appellant's guilty mind be satisfied, the Court states the reasons why, as the records
are not shy, for him to verify.

The proven circumstances of this case when juxtaposed with appellant's proffered excuse are
sufficient to sustain his conviction beyond reasonable doubt, notwithstanding the absence of any
direct evidence relative to the commission of the crime for which he was prosecuted. Absence of
direct proof does not necessarily absolve him from any liability because under the Rules on
evidence and pursuant to settled jurisprudence, conviction may be had on circumstantial evidence
8 9

provided that the following requisites concur:

 1. there is more than one circumstance;

2. the facts from which the inferences are derived are

proven; and

3. the combination of all the circumstances is such as

to produce a conviction beyond reasonable doubt.

Simply put, for circumstantial evidence to be sufficient to support a conviction, all

circumstances must be consistent with each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent
and with every other rational hypothesis except that of guilt. Facts and circumstances
10

consistent with guilt and inconsistent with innocence, constitute evidence which, in weight
and probative force, may surpass even direct evidence in its effect upon the court.11

In the case at bench, the trial court gave credence to several circumstantial evidence, which upon
thorough review of the Court is more than enough to prove appellant's guilt beyond the shadow of
reasonable doubt. These circumstantial evidence are as follows:

FIRST — Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of

the unfinished big house where the crime happened and the septic tank where the
body of Maria Victoria Chan was found in the morning of June 26, 1995 is located,
categorically testified that at about 9:00 in the evening on June 25, 1995, accused
Larry Mahinay was in her store located in front portion of the compound of her sister-
in-law Maria Isip where the unfinished big house is situated buying rice noodle
(lugaw). That she noticed the accused's hair was disarranged, drunk and walking in
sigsagging manner. That the accused appeared uneasy and seems to be thinking
deeply. That the accused did not reply to her queries why he looked worried but went
inside the compound.

SECOND — Prosecution witness Sgt. Roberto C. Suni, categorically testified that on

June 25, 1995 between 6:00 and 7:00 in the evening, on his way to his in-laws
house, he met accused Larry Mahinay walking on the road leading to his in-law's
residence which is about 50 to 75 meters away to the unfinished big house of Maria
Isip. That he also saw victim Maria Victoria Chan standing at the gate of the
unfinished big house of Maria Isip between 8:00 and 9:00 in the same evening.

THIRD — Prosecution witness Maria Isip, owner of the unfinished big house where
victim's body was found inside the septic tank, testified that accused Larry Mahinay
is her houseboy since November 20, 1993. That in the morning of June 25, 1995, a
Sunday, Larry Mahinay asked permission from her to leave. That after finishing some
work she asked him to do accused Larry Mahinay left. That it is customary on the
part of Larry Mahinay to return in the afternoon of the same day or sometimes in the
next morning. That accused Larry Mahinay did not return until he was arrested in
Batangas on July 7, 1995.

FOURTH — Prosecution witness Fernando Trinidad, a passenger jeepney driver

plying the route Karuhatan-Ugong and vice versa which include Dian St., Gen. T. de
Leon, Valenzuela, Metro Manila, pinpointed the accused Larry Mahinay as one of the
passengers who boarded his passenger jeepney on June 26, 1995 at 2:00 early
morning and alighted on top of the overpass of the North Expressway.
FIFTH — Personal belongings of the victim was found in the unfinished big house of
Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a
clear indication that the victim was raped and killed in the said premises.

There is no showing that the testimonies of the prosecution witnesses (sic) fabricated
or there was any reason for them to testify falsely against the accused. The absence
of any evidence as to the existence of improper motive sustain the conclusion that no
such improper motive exists and that the testimonies of the witnesses, therefore,
should be given full faith and credit. (People vs. Retubado, 58585 January 20, 1988
162 SCRA 276,. 284; People vs. Ali L-18512 October 30, 1969, 29 SCRA 756).

SIXTH — Accused Larry Mahinay during the custodial investigation and after having
been informed of his constitutional rights with the assistance of Atty. Restituto
Viernes of the Public Attorney's Office voluntarily gave his statement admitting the
commission of the crime. Said confession of accused Larry Mahinay given with the
assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily
given. That accused did not complain to the proper authorities of any maltreatment
on his person (People vs. delos Santos L-3398 May 29, 1984;150 SCRA 311). He did
not even informed the Inquest Prosecutor when he sworn to the truth of his
statement on July 8, 1995 that he was forced, coersed or was promised of reward or
leniency. That his confession abound with details know only to him. The Court noted
that a lawyer from the Public Attorneys Office Atty. Restituto Viernes and as testified
by said Atty. Viernes he informed and explained to the accused his constitutional
rights and was present all throughout the giving of the testimony. That he signed the
statement given by the accused. Lawyer from the Public Attorneys Office is expected
to be watchful and vigilant to notice any irregularity in the manner of the investigation
and the physical conditions of the accused. The post mortem findings shows that the
cause of death Asphyxia by manual strangulation; Traumatic Head injury
Contributory substantiate. Consistent with the testimony of the accused that he
pushed the victim and the latter's head hit the table and the victim lost
consciousness.

Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak

ko siya, tapos tumama iyong ulo niya sa mesa. Ayon na, nakatulog
siya tapos ni-rape ko na siya.

There is no clear proof of maltreatment and/or tortured in giving the statement. There
were no medical certificate submitted by the accused to sustain his claim that he was
mauled by the police officers.

There being no evidence presented to show that said confession

were obtained as a result of violence, torture, maltreatment,
intimidation, threat or promise of reward or leniency nor that the
investigating officer could have been motivated to concoct facts
narrated in said affidavit; the confession of the accused is held to be
true, correct and freely or voluntarily given. (People v. Tuazon 6
SCRA 249; People v. Tiongson 6 SCRA 431, People v. Baluran 52
SCRA 71, People v. Pingol 35 SCRA 73.)

SEVENTH — Accused Larry Mahinay testified in open Court that he was notable to
enter the apartment where he is sleeping because it was already closed and he
proceeded to the second floor of the unfinished house and slept. He said while
 sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it
inside his room. That at the point of a knife, the two ordered him to have sex with the
dead body but he refused. That the two asked him to assist them in dumping the
dead body of the victim in the septic tank downstairs. (Tsn pp. 8-9 October 16, 1995).
This is unbelievable and unnatural. Accused Larry Mahinay is staying in the
apartment and not in the unfinished house. That he slept in the said unfinished house
only that night of June 25, 1995 because the apartment where he was staying was
already closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry
Mahinay) was in the second floor of the unfinished house.

Furthermore, if the child is already dead when brought by Zaldy and Boyet in the
room at the second floor of the unfinished house where accused Larry Mahinay was
sleeping, why will Boyet and Zaldy still brought the cadaver upstairs only to be
disposed/dump later in the septic tank located in the ground floor. Boyet and Zaldy
can easily disposed and dumped the body in the septic tank by themselves.

It is likewise strange that the dead body of the child was taken to the room where
accused Larry Mahinay was sleeping only to force the latter to have sex with the
dead body of the child.

We have no test to the truth of human testimony except it's

conformity to aver knowledge observation and experience. Whatever
is repugnant to these belongs to the miraculous. (People vs. Santos
L-385 Nov. 16, 1979)

EIGHT — If the accused did not commit the crime and was only forced to
disposed/dumpted the body of the victim in the septic tank, he could have apprise
Col. Maganto, a high ranking police officer or the lady reporter who interviewed him.
His failure and omission to reveal the same is unnatural. An innocent person will at
once naturally and emphatically repel an accusation of crime as a matter of
preservation and self-defense and as a precaution against prejudicing himself. A
person's silence therefore, particularly when it is persistent will justify an inference
that he is not innocent. (People vs. Pilones, L-32754-5 July 21, 1978).

NINTH — The circumstance of flight of the accused strongly indicate his

consciousness of guilt. He left the crime scene on the early morning after the incident
and did not return until he was arrested in Batangas on July 7, 1995. 12

Guided by the three principles in the review of rape cases, to wit: 13

1). An accusation for rape can be made with facility; it is difficult to prove but more
difficult for the person accused, though innocent, to disprove;

2). In view of the intrinsic nature of the crime of rape, where only two persons are
usually involved, the testimony of the complainant is scrutinized with extreme
caution; and

3). The evidence of the prosecution stands or falls on its own merits and cannot be
allowed to draw strength from the weakness of the defense.
the foregoing circumstantial evidence clearly establishes the felony of rape with homicide
defined and penalized under Section 335 of the Revised Penal Code, as amended by
Section 11, R.A. 7659, which provides:

When and how rape is committed - Rape is committed by having carnal knowledge
of a woman under any of the following circumstances.

1.) By using force or intimidation;

2.) When the woman is deprived of reason or

otherwise unconscious: and

3.) When the woman is under twelve years of age or

is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with use of a deadly weapon or by two or
more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or

on the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed the penalty
shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:

1.) When the victim is under eighteen (18) years of

age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law
spouse of the parent of the victim.

2.) When the victim is under the custody of the police

or military authorities.

3.) When the rape is committed in full view of the

husband, parent, any of the children or other relatives
within the third degree of consanguinity.

4.) When the victim is a religious or a child below

seven (7) years old.

5.) When the offender knows that he is afflicted with

Acquired Immune Deficiency Syndrome (AIDS)
disease.
 6.) When committed by any member of the Armed
Forces of the Philippines or Philippine National Police
or any law enforcement agency

7.) When by reason or on the occasion of the rape,

the victim has suffered permanent physical
mutilation. 14

At the time of the commission of this heinous act, rape was still considered a crime against
chastity, although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape has since been re-
15

classified as a crime against persons under Articles 266-A and 266-B, and thus, may be prosecuted
even without a complaint filed by the offended party.

The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman by force
and without consent. (Under the new law, rape may be committed even by a woman and the victim
16

may even be a
man.) If the woman is under 12 years of age, proof of force and consent becomes immaterial not
17 18

only because force is not an element of statutory rape, but the absence of a free consent is
19

presumed when the woman is below such age. Conviction will therefore lie, provided sexual
intercourse is proven. But if the woman is 12 years of age or over at the time she was violated, as in
this case, not only the first element of sexual intercourse must be proven but also the other element
that the perpetrator's evil acts with the offended party was done through force, violence, intimidation
or threat needs to be established. Both elements are present in this case.

Based on the evidence on record, sexual intercourse with the victim was adequately proven. This is
shown from the testimony of the medical doctor who conducted post mortem examination on the
child's body:

Q: And after that what other parts or the victim did you examine?

A: Then I examined the genitalia of the victim.

Q: And what did you find out after you examined the genitalia of the
victim?

A: The hymen was tall-thick with complete laceration at 4:00 o'clock

and 8:00 o'clock position and that the edges were congested.

Q: Now, what might have caused the laceration?

A: Under normal circumstances this might have (sic) caused by a

penetration of an organ.

Q: So, the laceration was caused by the penetration of a male organ?

A: Adult male organ, sir.

Q: You are very sure of that, Mr. Witness?

A: I am very sure of that. 20

Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted that he had
sexual congress with the unconscious child.

15. T: Ano ang nangyari ng mga sandali o oras na iyon?

S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking

bahay na ginagawa, tapos dumating yung batang babae. Pag-pasok
niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya.
Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya
tapos ni rape ko na siya.

16. T: Ano ang suot nung batang babae na sinasabi mo?

S: Itong short na ito, (pointing to a dirty white short placed atop this
investigator's table. Subject evidence were part of evidences
recovered at the crime scene).

17. T: Bakit mo naman ni rape yung batang babae?

S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.

18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?

S: Red Horse po at saka GIN.

19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung

batang babae?.

S: Sa kuwarto ko po sa itaas.

20. T: Kailan ito at anong oras nangyari?

S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na

matandaan kung anong petsa, basta araw ng Linggo.

21. T: Saan lugar ito nangyari?

S: Sa Dian, Gen. T. de Leon, Valenzuela, M.M.

22. T: Alam mo ba ang pangalan ng batang babae na ni rape mo?

S: Hindi ko po alam.

23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang

babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN?
Matatandaan mo ha ito?

S: Oho.

24. T: Nung ma-rape mo, nakaraos ka ba?

S: Naka-isa po.

25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng
"NAKARAOS", maaari bang ipaliwanag mo ito?

S: Nilabasan po ako ng tamod.

26 T: Nung nakaraos ka, nasaan parte na katawan ng batang babae

yung iyong ari?

S: Nakapasok po doon sa ari nung babae.

27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang

sumunod mong ginawa?

S: Natulak ko siya sa terrace.

28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa
terrace?

S: Inilagay ko po sa poso-negra.

29. T: Saan makikita yung poso negra na sinasabi mo?

S: Doon din sa malaking bahay ni ATE MARIA.

30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-

negra?

S: Doon ko lang po inilagay.

31. T: Bakit nga doon mo inilagay siya?

S: Natatakot po ako.

32. T: Kanino ka natatakot?

S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga

pulis.

33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-

negra?

S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa

poso-negra.

34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?

S: Nag-iisa lang po ako.

 35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA
CHAN, buhay pa ba siya o patay na?

S: Buhay pa po.

36. T: Papaano mo siya pinatay?

S: Tinulak ko nga po siya sa terrace. 21

In proving sexual intercourse, it is not full or deep penetration of the victim's vagina; rather the
slightest penetration of the male organ into the female sex organ is enough to consummate the
sexual intercourse. The mere touching by the male's organ or instrument of sex of the labia of the
22

pudendum of the woman's private parts is sufficient to consummate rape.

From the wounds, contusions and abrasions suffered by the victim, force was indeed employed
upon her to satisfy carnal lust. Moreover, from appellant's own account, he pushed the victim
causing the latter to hit her head on the table and fell unconscious. It was at that instance that he
ravished her and satisfied his salacious and prurient desires. Considering that the victim, at the time
of her penile invasion, was unconscious, it could safely be concluded that she had not given free and
voluntary consent to her defilement, whether before or during the sexual act.

Another thing that militates against appellant is his extra judicial confession, which he, however,
claims was executed in violation of his constitutional right to counsel. But his contention is belied by
the records as well as the testimony of the lawyer who assisted, warned and explained to him his
constitutionally guaranteed pre-interrogatory and custodial rights. As testified to by the assisting
lawyer:

Q — Will you please inform the Court what was that call about?

A — We went to the station, police investigation together with Atty.

Froilan Zapanta and we were told by Police Officer Alabastro that one
Larry Mahinay would like to confess of the crime of, I think, rape with
homicide.

Q — And upon reaching the investigation room of Valenzuela PNP

who were the other person present?

A — Police Officer Alabastro, sir, Police Officer Nacis and other

investigator inside the investigation room and the parents of the child
who was allegedly raped.

Q — And when you reached the investigation room do you notice

whether the accused already there?

A — The accused was already there.

Q — Was he alone?

A — He was alone, sir.

Q — So, when you were already infront of SPO1 Arnold Alabastro
and the other PNP Officers, what did they tell you, if any?

A — They told us together with Atty. Zapanta that this Larry Mahinay
would like to confess of the crime charged, sir.

Q — By the way, who was that Atty. Zapanta?

A — Our immediate Superior of the Public Attorney's Office.

Q — Was he also present at the start of the question and answer

period to the accused?

A — No more, sir, he already went to our office. I was left alone.

Q — But he saw the accused, Larry Mahinay?

A — Yes, sir.

Q — Now, when Atty. Zapanta left at what time did the question and
answer period start?

A — If I am not mistaken at around 4:05 of July 7, 1995 in the

afternoon, sir.

Q — And when this question and answer period started, what was
the first thing that you did as assisting lawyer to the accused?

A — First, I tried to explain to him his right, sir, under the constitution.

Q — What are those right?

A — That he has the right to remain silent. That he has the right of a
counsel of his own choice and that if he has no counsel a lawyer will
be appointed to him and that he has the right to refuse to answer any
question that would incriminate him.

Q — Now, after enumerating these constitutional rights of accused

Larry Mahinay, do you recall whether this constitutional right
enumerated by you were reduced in writing?

A — Yes, sir, and it was also explained to him one by one by Police
Officer Alabastro.

Q — I show to you this constitutional right which you said were

reduced into writing, will you be able to recognize the same?

A — Yes, sir.
Q — Will you please go over this and tell the Court whether that is the
same document you mentioned?

A — Yes, sir, these were the said rights reduced into writing.

ATTY. PRINCIPE:

May we request, Your Honor, that this document be marked as our

Exhibit A. proper.

Q — Do you recall after reducing into writing this constitutional right

of the accused whether you asked him to sign to acknowledge or to
conform?

A — I was the one who asked him, sir. It was Police Officer Alabastro.

Q — But you were present?

A — I was then present when he signed.

Q — There is a signature in this constitutional right after the

enumeration, before and after there are two (2) signatures, will you
please recognize the two (2) signatures?

A — These were the same signatures signed in my presence, sir.

Q — The signature of whom?

A — The signature of Larry Mahinay, sir.

ATTY. PRINCIPE:

May we request, Your Honor, that the two (2) signatures identified by
my compañero be encircled and marked as Exhibit A-1 and A-2.

Q — After you said that you apprised the accused of his

constitutional right explaining to him in Filipino, in local dialect, what
was the respond of the accused?

A — Larry Mahinay said that we will proceed with his statement.

Q — What was the reply?

A — He said "Opo".

Q — Did you ask him of his educational attainment?

A — It was the Police Officer who asked him.

Q — In your presence?
 A — In my presence, sir.

Q — And when he said or when he replied "Opo" so the question

started?

A — Yes, sir.

Q — I noticed in this Exhibit A that there is also a waiver of rights,

were you present also when he signed this waiver?

A — Yes, sir, I was also present.

Q — Did you explain to him the meaning of this waiver?

A — I had also explained to him, sir.

Q — In Filipino?

A — In Tagalog, sir.

Q — And there is also a signature after the waiver in Filipino over the
typewritten name Larry Mahinay, "Nagsasalaysay", whose signature
is that?

A — This is also signed in my presence.

Q — Why are you sure that this is his signature?

A — He signed in my presence, sir.

Q — And below immediately are the two (2) signatures. The first one
is when Larry Mahinay subscribed and sworn to, there is a signature
here, do you recognize this signature?

A — This is my signature, sir.

Q — And immediately after your first signature is a Certification that

you have personally examined the accused Larry Mahinay and
testified that he voluntary executed the Extra Judicial Confession, do
you recognize the signature?

A — This is also my signature, sir. 23

(emphasis supplied).

Appellant's defense that two other persons brought to him the dead body of the victim and forced
him to rape the cadaver is too unbelievable. In the words of Vice-Chancellor Van Fleet of New
Jersey,24

Evidence to be believed must not only proceed from the mouth of a credible witness,
but must be credible in itself - such as the common experience and observation of
mankind can approve as probable under the circumstances. We have no test or the
 truth of human testimony, except its conformity to our knowledge, observation and
experience. Whatever is repugnant to these belongs to the miraculous, and is
outside of judicial cognizance.

Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is the rule that
the findings of facts and assessment of credibility of witnesses is a matter best left to the trial court
because of its unique position of having observed that elusive and incommunicable evidence of the
witnesses' deportment on the stand while testifying, which opportunity is denied to the appellate
courts. In this case, the trial court's findings, conclusions and evaluation of the testimony of
25

witnesses is received on appeal with the highest respect, the same being supported by substantial
26

evidence on record. There was no showing that the court a quo had overlooked or disregarded
relevant facts and circumstances which when considered would have affected the outcome of this
case or justify a departure from the assessments and findings of the court below. The absence of
27

any improper or ill-motive on the part of the principal witnesses for the prosecution all the more
strengthens the conclusion that no such motive exists. Neither was any wrong motive attributed to
28

the police officers who testified against appellant.

Coming now to the penalty, the sentence imposed by the trial court is correct. Under Article 335 of
the Revised Penal Code (RPC), as amended by R.A. 7659 "when by reason or on occasion of the
rape, a homicide is committed, the penalty shall be death." This special complex crime is treated by
law in the same degree as qualified rape - that is, when any of the 7 (now 10) "attendant
circumstances" enumerated in the law is alleged and proven, in which instances, the penalty is
death. In cases where any of those circumstances is proven though not alleged, the penalty cannot
be death except if the circumstance proven can be properly appreciated as an aggravating
circumstance under Articles 14 and 15 of the RPC which will affect the imposition of the proper
penalty in accordance with Article 53 of the RPC However, if any of those circumstances proven but
not alleged cannot be considered as an aggravating circumstance under Articles 14 and 15, the
same cannot affect the imposition of the penalty because Article 63 of the RPC in mentioning
aggravating circumstances refers to those defined in Articles 14 and 15. Under R.A. No. 8353, if any
of the 10 circumstances is alleged in the information/complaint, it may be treated as a qualifying
circumstance. But if it is not so alleged, it may be considered as an aggravating circumstance, in
which case the only penalty is death - subject to the usual proof of such circumstance in either case.

Death being a single indivisible penalty and the only penalty prescribed by law for the crime of "rape
with homicide", the court has no option but to apply the same "regardless of any mitigating or
aggravating circumstance that may have attended the commission of the crime" in accordance with
29

Article 63 of the RPC, as amended. This case of rape with homicide carries with it penalty of death
30

which is mandatorily imposed by law within the import of Article 47 of the RPC, as amended, which
provides:

The death penalty shall be imposed in all cases in which it must be imposed under
existing laws, except when the guilty person is below eighteen (18) years of age at
the time of the commission of the crime or is more than seventy years of age or when
upon appeal or automatic review of the case by the Supreme Court, the required
majority vote is not obtained for the imposition of the death penalty, in which cases
the penalty shall be reclusion perpetua.

(emphasis supplied).

In an apparent but futile attempt to escape the imposition of the death penalty, appellant tried to alter
his date of birth to show that he was only 17 years and a few months old at the time he committed
the rape and thus, covered by the proscription on the imposition of death if the guilty person is below
eighteen (18) years at the time of the commission of the crime. Again, the record rebuffs appellant
31

on this point considering that he was proven to be already more than 20 years of age when he did
the heinous act.

Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty thousand
pesos (P50,000.00) but if the crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by present amended law, the civil
indemnity for the victim shall be not less than seventy-five thousand pesos (P75,000.00). In addition
32

to such indemnity, she can also recover moral damages pursuant to Article 2219 of the Civil
Code in such amount as the court deems just, without the necessity for pleading or proof of the
33

basis thereof. Civil indemnity is different from the award of moral and exemplary damages. The
34 35

requirement of proof of mental and physical suffering provided in Article 2217 of the Civil Code is
dispensed with because it is "recognized that the victim's injury is inherently concomitant with and
necessarily resulting from the odious crime of rape to warrant per se the award of moral
damages". Thus, it was held that a conviction for rape carries with it the award of moral damages
36

to the victim without need for pleading or proof of the basis thereof.
37

Exemplary damages can also be awarded if the commission of the crime was attended by one or
more aggravating circumstances pursuant to Article 2230 of the Civil Code after proof that the
38

offended party is entitled to moral, temperate and compensatory damages. Under the
39

circumstances of this case, appellant is liable to the victim's heirs for the amount of P75,000.00 as
civil indemnity and P50,000.00 as moral damages.

Lastly, considering the heavy penalty of death and in order to ensure that the evidence against an
accused were obtained through lawful means, the Court, as guardian of the rights of the people lays
down the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating
officer or his companions must do and observe at the time of making an arrest and again at and
during the time of the custodial interrogation in accordance with the Constitution, jurisprudence and
40

Republic Act No. 7438: It is high-time to educate our law-enforcement agencies who neglect either
41

by ignorance or indifference the so-called Miranda rights which had become insufficient and which
the Court must update in the light of new legal developments:

1. The person arrested, detained, invited or under custodial

investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must be shown
the warrant of arrest, if any; Every other warnings, information or
communication must be in a language known to and understood by
said person;

2. He must be warned that he has a right to remain silent and that

anystatement he makes may be used as evidence against him;

3. He must be informed that he has the right to be assisted at all

times and have the presence of an independent and competent
lawyer, preferably of his own choice;

4. He must be informed that if he has no lawyer or cannot afford the

services of a lawyer, one will be provided for him; and that a lawyer
may also be engaged by any person in his behalf, or may be
appointed by the court upon petition of the person arrested or one
acting in his behalf;
 5. That whether or not the person arrested has a lawyer, he must be
informed that no custodial investigation in any form shall be
conducted except in the presence of his counsel or after a valid
waiver has been made;

6. The person arrested must be informed that, at any time, he has the
right to communicate or confer by the most expedient means -
telephone, radio, letter or messenger - with his lawyer (either retained
or appointed), any member of his immediate family, or any medical
doctor, priest or minister chosen by him or by any one from his
immediate family or by his counsel, or be visited by/confer with duly
accredited national or international non-government organization. It
shall be the responsibility of the officer to ensure that this is
accomplished;

7. He must be informed that he has the right to waive any of said

rights provided it is made voluntarily, knowingly and intelligently and
ensure that he understood the same;

8. In addition, if the person arrested waives his right to a lawyer, he

must be informed that it must be done in writing AND in the presence
of counsel, otherwise, he must be warned that the waiver is void even
if he insist on his waiver and chooses to speak;

9. That the person arrested must be informed that he may indicate in

any manner at any time or stage of the process that he does not wish
to be questioned with warning that once he makes such indication,
the police may not interrogate him if the same had not yet
commenced, or the interrogation must ceased if it has already begun;

10. The person arrested must be informed that his initial waiver of his
right to remain silent, the right to counsel or any of his rights does not
bar him from invoking it at any time during the process, regardless of
whether he may have answered some questions or volunteered
some statements;

11. He must also be informed that any statement or evidence, as the

case may be, obtained in violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in part, shall be inadmissible in
evidence.

Four members of the Court — although maintaining their adherence to the separate opinions
expressed in People v. Echegaray that R.A. No. 7659, insofar as it prescribes the death penalty, is
42

unconstitutional — nevertheless submit to the ruling of the Court, by a majority vote, that the law is
constitutional and that the death penalty should accordingly be imposed.

WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of civil
indemnity for the heinous rape which is INCREASED to P75,000.00, PLUS P50,000.00 moral
damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal
Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of
the President for possible exercise of the pardoning power.

SO ORDERED.

FIRST DIVISION

G.R. No. 149723 October 27, 2006

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
VICTOR KEITH FITZGERALD, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Assailed by way of Petition for Review on Certiorari under Rule 45 of the Rules of Court is the
August 31, 2001 Resolution1 of the Court of Appeals (CA) in CA-G.R. CR No. 20431 which granted
the Motion for Bail2 of accused-appellant, herein respondent Victor Keith Fitzgerald, (Fitzgerald).

The facts are of record.

An Information filed with the Regional Trial Court (RTC), Branch 75, Olongapo City and docketed as
Criminal Case No. 422-94, charged Fitzgerald, an Australian citizen, with Violation of Art. III, Section
5, paragraph (a), subparagraph (5) of Republic Act (R.A.) No. 7610, 3 allegedly committed as follows:

That sometime in the month of September 1993, in the City of Olongapo, Zambales,
Philippines and within the jurisdiction of this Honorable Court, said accused VICTOR KEITH
FITZGERALD, actuated by lust, and by the use of laced drugs ("vitamins") willfully, unlawfully
and feloniously induced complainant "AAA,"4 a minor, 13 years of age, to engage in
 prostitution by then and there showering said "AAA" with gifts, clothes and food and
thereafter having carnal knowledge of her in violation of the aforesaid law and to her damage
and prejudice.5

After trial and hearing, the RTC rendered a Decision dated May 7, 1996, the decretal portion of
which reads:

WHEREFORE, finding the accused Victor Keith Fitzgerald GUILTY beyond reasonable doubt
of the offense of Violation of Section 5, Paragraph (a) sub-paragraph 5 of Republic Act No.
7610, he is hereby sentenced to suffer an indeterminate prison term of eight (8) years and
one (1) day of prision mayor as minimum, to seventeen (17) years, four (4) months and one
(1) day of reclusion temporal as maximum, with all the accessory penalties attached
therewith; and to indemnify the private complainant "AAA" the amounts of P30,000.00 as
moral damages and P20,000.00 as exemplary damages.

The Lingap Center of the Department of Social Welfare and Development (DSWD) in
Olongapo City shall hold in trust the said awards and dispose the same solely for the
rehabilitation and education of "AAA", to the exclusion of her mother and her other relatives.

The accused under Article 29 of the Revised Penal Code shall be credited in full of his
preventive imprisonment if he has agreed voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners, otherwise to only 4/5 thereof.

Upon completion of the service of his sentence, the accused shall be deported immediately
and forever barred from entry to the Philippines.

In Criminal Case No. 419-94 for Rape, the accused is acquitted.

SO ORDERED.6

Fitzgerald applied for bail which the RTC denied in an Order dated August 1, 1996, which reads:

xxxx

In fine, on the basis of the evidence adduced by the Prosecution during the hearing on the
bail petition, the Court is of the considered view that the circumstances of the accused
indicate probability of flight and that there is undue risk that the accused may commit a
similar offense, if released on bail pending appeal.

WHEREFORE, and viewed from the foregoing considerations, the Petition for Bail pending
appeal is DENIED.

SO ORDERED.7

Fitzgerald appealed to the CA which, in a Decision8 dated September 27, 1999, affirmed the RTC
Decision, thus:

IN VIEW WHEREOF, with the modification that the penalty imposed on the accused-
appellant is imprisonment of Fourteen (14) years, Eight (8) months and One (1) day of
Reclusion Temporal to Twenty (20) years and One (1) day of Reclusion Perpetua, the
decision of the court a quo is hereby AFFIRMED.
 SO ORDERED.9

Fitzgerald filed a Motion for New Trial10 and a Supplemental to Accused's Motion for New Trial11 on
the ground that new and material evidence not previously available had surfaced. The CA granted
the Motion for New Trial in a Resolution dated August 25, 2000, to wit:

WHEREFORE, the appellant's Motion for New Trial dated October 14, 1999 is
GRANTED. The original records of this case is hereby REMANDED to the Presiding
Judge of the Regional Trial Court of Olongapo City Branch 75 who is DIRECTED to
receive the new evidence material to appellant's defense within sixty days from
receipt and thereafter to submit to this Court the said evidence together with the
transcript of stenographic notes together with the records of the case within ten (10)
days after the reception of evidence. The Motion to Transfer appellant to the National
Penitentiary is DENIED.12 (Emphasis ours)

The People (petitioner) filed a Motion for Reconsideration13 from the August 25, 2000 CA Resolution
while Fitzgerald filed a Motion to Fix Bail with Manifestation. 14 Both Motions were denied by the CA in
its November 13, 2000 Resolution. 15 In denying Fitzgerald's bail application, the CA held:

[T]his Court hereby RESOLVES to:

xxxx

2. DENY accused-appellant's Motion to Fix Bail with Manifestation, pursuant to the

provisions of Section 7, Rule 114 of the Rules of Court which provides:

"Sec. 7. – Capital Offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. – No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment when evidence of guilt is
strong shall be admitted to bail regardless of the stage of the criminal procecution."

In the case at bar, the maximum imposable penalty in accordance with Republic Act 7610
otherwise known as the Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act is reclusion perpetua. As it is, the evidence of guilt is strong, hence,
We hold that his motion for bail cannot be granted at this point.

With regard to his alleged physical condition, let it be stressed that accused-appellant
is not precluded from seeking medical attention if the need arises provided the
necessary representations with the proper authorities are made.

SO ORDERED.16 (Emphasis ours)

The People filed with this Court a Petition for Review on Certiorari17 docketed as G.R. No. 146008
questioning the August 25, 2000 and November 13, 2000 CA Resolutions. The petition was
dismissed in a Resolution18 dated January 15, 2001, which became final and executory on May 2,
2001.19

Meanwhile, on December 3, 2000, Fitzgerald filed with the CA a Motion for Early Transmittal of the
Records and for the Re-Examination of the Penalty Imposed, and a Motion for Bail. 20 The People
filed its Comment21 to both Motions.
On August 31, 2001, the CA issued the herein assailed Resolution 22 granting Fitzgerald's bail
application, thus:

xxxx

Be that as it may, while We maintain that, as it is, the evidence of guilt is strong, We
have taken a second look at appellant's plea for temporary liberty considering primarily the
fact that appellant is already of old age 23 and is not in the best of health. Thus, it is this
Court's view that appellant be GRANTED temporary liberty premised not on the
grounds stated in his Motion for Bail but in the higher interest of substantial justice and
considering the new trial granted in this case. Accordingly, appellant is hereby DIRECTED to
post a bail bond in the amount of P100,000.00 for his temporary liberty provided he will
appear in any court and submit himself to the orders and processes thereof if and when
required to do so. The appellant is likewise refrained from leaving the country now or in the
future until this case is terminated. Accordingly, the Bureau of Immigration and Deportation is
ORDERED to include appellant in its hold departure list xxx.

xxxx

SO ORDERED.24 (Emphasis ours)

Thereafter, the RTC ordered Fitzgerald's temporary release on

September 4, 2001 upon his filing a cash bond in the amount of P100,000.00.25

Hence, the People filed this Petition to have the August 31, 2001 CA Resolution annulled and set
aside. Petitioner argues that the CA erred in granting respondent Fitzgerald's Motion for Bail despite
the fact that the latter was charged with a crime punishable by reclusion perpetua and the evidence
of his guilt is strong.26 It also questions the jurisdiction of the CA to act on said Motion, considering
that the case had been remanded to the RTC for new trial. 27

In his Comment and Memorandum, respondent counters that the grant of new trial negated the
previous findings of the existence of strong evidence of his guilt; 28 and justifies his provisional
release on humanitarian grounds, citing as an extraordinary circumstance his advanced age and
deteriorating health.29

The petition is meritorious.

We resolve first the preliminary question of whether the CA, after issuing its August 25, 2000
Resolution granting a new trial, still had jurisdiction to act on respondent's Motion to Post Bail. Our
ruling on this matter, however, shall be limitted to the effect of the August 25, 2000 CA Resolution on
the latter's jurisdiction; it shall have no bearing on the merits of said Resolution as this has been
decided with finality in G.R. No. 146008.

According to petitioner, considering that the August 25, 2000 CA Resolution, referring the case to the
RTC for new trial, had become final and executory on May 2, 2001 when this Court denied its
petition for review in G.R. No. 146008, then, when the CA issued the August 31, 2001 Resolution
granting respondent bail, it had been stripped of jurisdiction over the case. 30

Petitioner is mistaken.
When this Court grants a new trial, it vacates both the judgment of the trial court convicting the
accused31 and the judgment of the CA affirming it,32 and remands the case to the trial court for
reception of newly-discovered evidence and promulgation of a new judgment, 33 at times with
instruction to the trial court to promptly report the outcome. 34The Court itself does not conduct the
new trial for it is no trier of facts.35

However, when the CA grants a new trial, its disposition of the case may differ, notwithstanding Sec.
1,36 Rule 125 of the 2000 Rules on Criminal Procedure which provides for uniformity in appellate
criminal procedure between this Court and the CA. Unlike this Court, the CA may decide questions
of fact and mixed questions of fact and law.37Thus, when it grants a new trial under Sec. 14, Rule
124, it may either (a) directly receive the purported newly-discovered evidence under Sec. 12, 38 or
(b) refer the case to the court of origin for reception of such evidence under Sec. 15. 39 In either case,
it does not relinquish to the trial court jurisdiction over the case; it retains sufficient authority to
resolve incidents in the case and decide its merits.

Now then, the CA, in its August 25, 2000 Resolution, ordered: first, the remand of the original
records of the case to the RTC; second, that the RTC receive the new evidence material to
appellant's defense within 60 days from receipt of the original records; and third, that the RTC submit
to it the said evidence together with the transcript of the case within 10 days after reception of
evidence.40 From the foregoing dispostion, it is evident that the CA retained appellate jurisdiction
over the case, even as it delegated to the RTC the function of receiving the respondent's newly-
discovered evidence. The CA therefore retained its authority to act on respondent's bail application.
Moreso that the the original records of the case had yet to be transmitted to the RTC when
respondent filed his bail application and the CA acted on it.

With that procedural matter out of the way, we now focus on the substantive issue of whether the CA
erred when it allowed respondent to bail.

The right to bail emenates from of the right to be presumed innocent. It is accorded to a person in
the custody of the law who may, by reason of the presumption of innocence he enjoys, 41 be allowed
provisional liberty upon filing of a security to guarantee his appearance before any court, as required
under specified conditions.42

Implementing Sec. 13,43 Article III of the 1987 Constitution, Sections 444 and 5, Rule 114 of the 2000
Rules of Criminal Procedure set forth substantive and procedural rules on the disposition of bail
applications. Sec. 4 provides that bail is a matter of right to an accused person in custody for an
offense not punishable by death, reclusion perpetua or life imprisonment, 45 but a matter of discretion
on the part of the court, concerning one facing an accusation for an offense punishable by death,
reclusion perpetua or life imprisonment when the evidence of his guilt is strong. 46 As for an accused
already convicted and sentenced to imprisonment term exceeding six years, bail may be denied or
revoked based on prosecution evidence as to the existence of any of the circumstances under Sec.
5, paragraphs (a) to (e), to wit:

Sec. 5. Bail, when discretionary – Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua, or life imprisonment, admission
to bail is discretionary. The application for bail may be filed and acted upon by the trial court
despite the filing of a notice of appeal, provided it has not transmitted the original record to
the appellate court. However, if the decision of the trial court convicting the accused changed
the nature of the offense from non-bailable to bailable, the application for bail can only be
filed with and resolved by the appellate court.
 Should the court grant the application, the accused may be allowed to continue on
provisional liberty during the pendency of the appeal under the same bail subject to the
consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail shall be cancelled upon a showing by the
prosecution, with notice to the accused, of the following or other similar circumstances: (a)
That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal
confinement, evaded sentence, or violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or conditional pardon; (d)
That the circumstances of his case indicate the probability of flight if released on bail; or (e)
That there is undue risk that he may commit another crime during the pendency of the
appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse party in either case. (Emphasis supplied)

It will be recalled that herein respondent was charged with violation of Section 5, par. (a), sub-
paragraph (5), Article III of R.A. No. 7610, a crime which carries the maximum penalty of reclusion
perpetua. He was later convicted by the RTC for a lesser crime which carried a sentence of
imprisonment for an indeterminate term of eight (8) years and one (1) day of prision mayor as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as
maximum.

These circumstances are not altered when the CA granted a new trial. 47 As already discussed, the
CA retained appellate jurisdiction over the case even as it ordered the remand of the original
records thereof to the RTC for reception of evidence. In retaining appellate jurisdiction, it set aside
only its own September 27, 1999 Decision but left unaltered the May 7, 1996 RTC Decision. In fact,
in its August 31, 2001 Resolution, the CA emphasized:

As we have pointed out earlier, the propriety of appellant's conviction of the offense charged
as well as the penalty imposed thereto should be resolved during the appreciation of the new
trial after considering the new evidence which appellant insist would prove his innocence. 48

The May 7, 1996 RTC Decision, therefore, remained operative. And under said Decision, respondent
stood sentenced to an imprisonment term exceeding six years.

Moreover, both the RTC and CA were unanimous in their findings of the existence of strong evidence
of the guilt of respondent.49 These findings were not overturned when the CA granted a new trial.
Under Section 6 (b), Rule 121, the grant of a new trial allows for reception of newly-discovered
evidence but maintains evidence already presented or on record. And if there has been a finding that
evidence is strong and sufficient to bar bail, that too subsists unless, upon another motion and
hearing, the prosecution fails to prove that the evidence against the accused has remained
strong.50 In the present case, no new evidence had since been introduced, nor hearing conducted as
would diminish the earlier findings of the RTC and CA on the existence of strong evidenc against
respondent.

In sum, the circumstances of the case are such, that for respondent, bail was not a matter of right
but a mere privilege subject to the discretion of the CA to be exercised in accordance with the
stringent requirements of Sec. 5, Rule 114. And Sec. 5 directs the denial or revocation of bail upon
evidence of the existence of any of the circumstances enumerated therein 51 such as those indicating
probability of flight if released on bail or undue risk that the accused may commit another crime
during the pendency of the appeal.

As it is, however, the CA, in its August 31, 2001 Resolution, admitted respondent to bail based, "xxx
not on the grounds stated in his Motion for Bail xxx," but "xxx primarily [on] the fact that [he] is
already of old age and is not in the best of health xxx," and notwithstanding its finding that "xxx as it
is, the evidence of guilt is strong xxx."52 The Resolution disregarded substantive and procedural
requirements on bail.

It is bad enough that the CA granted bail on grounds other than those stated in the Motion filed by
respondent; it is worse that it granted bail on the mere claim of the latter's illness. Bail is not a sick
pass for an ailing or aged detainee or prisoner needing medical care outside the prison facility. A
mere claim of illness is not a ground for bail.53 It may be that the trend now is for courts to permit bail
for prisoners who are seriously sick.54 There may also be an existing proposition for the "selective
decarceration of older prisoners" based on findings that recidivism rates decrease as age
increases.55 But, in this particular case, the CA made no specific finding that respondent suffers from
an ailment of such gravity that his continued confinement during trial will permanently impair his
health or put his life in danger. It merely declared respondent not in the best of health even when the
only evidence on record as to the latter's state of health is an unverified medical certificate stating
that, as of August 30, 2000, respondent's condition required him to "xxx be confined in a more sterile
area xxx."56 That medical recommendation was even rebuffed by the CA itself when, in its November
13, 2000 Resolution, it held that the physical condition of respondent does not prevent him from
seeking medical attention while confined in prison. 57

Moreover, there is a finding of record on the potential risk of respondent committing a similar offense.
In its August 1, 1996 Order, the RTC noted that the circumstances of respondent indicate an undue
risk that he would commit a similar offense, if released on bail pending appeal. 58 The RTC explained
its findings thus:

Dr. Aida Muncada, a highly competent Psychiatrist, testified that phedophilia is a state of
sexual disorder and sexual dysfunction. It is intense and recurrent. The possibility of the
commission of a similar offense for which the accused was convicted is great if the accused
will be exposed to "stress" and if an opportunity to commit it lurks.59

The foregoing finding was not traversed or overturned by the CA in its questioned Resolution. Such
finding, therefore, remains controlling. It warranted the outright denial of respondent's bail
application. The CA, therefore, erred when it granted respondent's Motion for Bail.

WHEREFORE, the petition is GRANTED and the August 31, 2001 CA Resolution ANNULLED and
SET ASIDE. The bail bond posted by respondent is CANCELLED. Let an ORDER OF ARREST
ISSUE against the person of the accused, Victor Keith Fitzgerald.

No costs.

SO ORDERED.
 SECOND DIVISION

G.R. No. 129670 February 1, 2000

MANOLET O. LAVIDES, petitioner,

vs.
HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding over
Branch 107, RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (AN
ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST
CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS
VIOLATION, AND OTHER PURPOSES). His arrest was made without a warrant as a result of an
entrapment conducted by the police. It appears that on April 3, 1997, the parents of complainant
Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been contacted
by petitioner for an assignation that night at petitioner's room at the Metropolitan Hotel in Diliman,
Quezon City. Apparently, this was not the first time the police received reports of petitioner's
activities. An entrapment operation was therefore set in motion. At around 8:20 in the evening of April
3, 1997, the police knocked at the door of Room 308 of the Metropolitan Hotel where petitioner was
staying. When petitioner opened the door, the police saw him with Lorelie, who was wearing only a t-
shirt and an underwear, whereupon they arrested him. Based on the sworn statement of complainant
and the affidavits of the arresting officers, which were submitted at the inquest, an information for
violation of Art. III, §5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the Regional
Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-97-70550. 1âwphi1.nêt

On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable
Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful
Warrantless Arrest; and (3) In the Event of Adverse Resolution of the Above Incident, Herein
Accused be Allowed to Bail as a Matter of Right under the Law on Which He is Charged. 1

On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same
complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer
Catarman, and Annalyn Talingting. The cases were docketed as Criminal Case Nos. Q-97-70866 to
Q-97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations,
petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . .
given money [by petitioner] as payment for the said [acts of] sexual intercourse."

No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine
cases.

On May 16, 1997, the trial court issued an order resolving petitioner's Omnibus Motion, as follows:
 WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that:

1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under
detention, his arrest having been made in accordance with the Rules. He must therefore
remain under detention until further order of this Court;

2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right
to post bail in the amount of P80,000.00 for each case or a total of P800,000.00 for all the
cases under the following conditions:

a) The accused shall not be entitled to a waiver of appearance during the trial of
these cases. He shall and must always be present at the hearings of these cases;

b) In the event that he shall not be able to do so, his bail bonds shall be automatically
cancelled and forfeited, warrants for his arrest shall be immediately issued and the
cases shall proceed to trial in absentia;

c) The hold-departure Order of this Court dated April 10, 1997 stands; and

d) Approval of the bail bonds shall be made only after the arraignment to enable this
Court to immediately acquire jurisdiction over the accused;

3. Let these cases be set for arraignment on May 23, 1997 at 8:30 o'clock in the morning. 2

On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed
in Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial
court to suspend the arraignment scheduled on May 23, 1997. 3 Then on May 22, 1997, he filed a
motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case
and that the same be done prior to his arraignment.4

On May 23, 1997, the trial court, in separate orders, denied petitioner's motions to reduce bail
bonds, to quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned
during which he pleaded not guilty to the charges against him and then ordered him released upon
posting bail bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997
order and the "hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7,
1997.

On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of
Appeals, assailing the trial court's order, dated May 16, 1997, and its two orders, dated May 23,
1997, denying his motion to quash and maintaining the conditions set forth in its order of May 16,
1997, respectively.

While the case was pending in the Court of Appeals, two more informations were filed against
petitioner, bringing the total number of cases against him to 12, which were all consolidated.

On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads:

WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b), 5 of the
May 23 [should be May 16], 1997 Order, are separable, and would not affect the cash bond
which petitioner posted for his provisional liberty, with the sole modification that those
 aforesaid conditions are hereby ANNULLED and SET ASIDE, the May 16, May 23 and May
23, 1997 Orders are MAINTAINED in all other respects.6

The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the
grant of bail to petitioner but ruled that the issue concerning the validity of the condition making
arraignment a prerequisite for the approval of petitioner's bail bonds to be moot and academic. It
noted "that petitioner has posted the cash bonds; that when arraigned, represented by lawyers, he
pleaded not guilty to each offense; and that he has already been released from detention." The
Court of Appeals thought that the aforesaid conditions in the May 16, 1997 order were contrary to
Art. III, §14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified and his failure to
appear is unjustifiable."

With respect to the denial of petitioner's motion to quash the informations against him, the appellate
court held that petitioner could not question the same in a petition for certiorari before it, but what he
must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the
decision be adverse to him.

Hence this petition. Petitioner contends that the Court of Appeals erred 7 —

1. In ruling that the condition imposed by respondent Judge that the approval of petitioner's
bail bonds "shall be made only after his arraignment" is of no moment and has been
rendered moot and academic by the fact that he had already posted the bail bonds and had
pleaded not guilty to all the offenses;

2. In not resolving the submission that the arraignment was void not only because it was
made under compelling circumstance which left petitioner no option to question the
respondent Judge's arbitrary action but also because it emanated from a void Order;

3. In ruling that the denial of petitioner's motion to quash may not be impugned in a petition
for certiorari; and

4. In not resolving the legal issue of whether or not petitioner may be validly charged for
violation of Section 5(b) of RA No. 7610 under several informations corresponding to the
number of alleged acts of child abuse allegedly committed against each private complainant
by the petitioner.

We will deal with each of these contentions although not in the order in which they are stated by
petitioner.

First. As already stated, the trial court's order, dated May 16, 1997, imposed four conditions for the
grant of bail to petitioner:

a) The accused shall not be entitled to a waiver of appearance during the trial of these
cases. He shall and must always be present at the hearings of these cases;

b) In the event that he shall not be able to do so, his bail bonds shall be automatically
cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases
shall proceed to trial in absentia;

c) The hold-departure Order of this Court dated April 10, 1997 stands; and
 d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to
immediately acquire jurisdiction over the accused;

The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of
condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue
with the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of
the trial court which makes petitioner's arraignment a prerequisite to the approval of his bail bonds.
His contention is that this condition is void and that his arraignment was also invalid because it was
held pursuant to such invalid condition.

We agree with petitioner that the appellate court should have determined the validity of the
conditions imposed in the trial court's order of May 16, 1997 for the grant of bail because petitioner's
contention is that his arraignment was held in pursuance of these conditions for bail.

In requiring that petitioner be first arraigned before he could be granted bail, the trial court
apprehended that if petitioner were released on bail he could, by being absent, prevent his early
arraignment and thereby delay his trial until the complainants got tired and lost interest in their
cases. Hence, to ensure his presence at the arraignment, approval of petitioner's bail bonds should
be deferred until he could be arraigned. After that, even if petitioner does not appear, trial can
proceed as long as he is notified of the date of hearing and his failure to appear is unjustified, since
under Art. III, §14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of
the trial court in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment.

This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is
authorized, bail should be granted before arraignment, otherwise the accused may be precluded
from filing a motion to quash. For if the information is quashed and the case is dismissed, there
would then be no need for the arraignment of the accused. In the second place, the trial court could
ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his
presence at any stage of the proceedings, such as arraignment. Under Rule 114, §2(b) of the Rules
on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the
proper court whenever so required by the court or these Rules," while under Rule 116, §1(b) the
presence of the accused at the arraignment is required.

On the other hand, to condition the grant of bail to an accused on his arraignment would be to place
him in a position where he has to choose between (1) filing a motion to quash and thus delay his
release on bail because until his motion to quash can be resolved, his arraignment cannot be held,
and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter
be released on bail. These scenarios certainly undermine the accused's constitutional right not to be
put on trial except upon valid complaint or information sufficient to charge him with a crime and his
right to bail.8

It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be
made only after arraignment," which the Court of Appeals should instead have declared void. The
condition imposed in the trial court's order of May 16, 1997 that the accused cannot waive his
appearance at the trial but that he must be present at the hearings of the case is valid and is in
accordance with Rule 114. For another condition of bail under Rule 114, §2(c) is that "The failure of
the accused to appear at the trial without justification despite due notice to him or his bondsman
shall be deemed an express waiver of his right to be present on the date specified in the notice. In
such case, trial shall proceed in absentia."

Art. III, §14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the
trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of
innocence or of guilt,9 (b) during trial whenever necessary for identification purposes, 10 and (c) at the
promulgation of sentence, unless it is for a light offense, in which case the accused may appear by
counsel or representative.11 At such stages of the proceedings, his presence is required and cannot
be waived. As pointed out in Borja v. Mendoza,12 in an opinion by Justice, later Chief Justice, Enrique
Fernando, there can be no trial in absentia unless the accused has been arraigned.

Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself
from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it
thought that to ensure petitioner's presence at the arraignment, petitioner should be denied bail in
the meantime. The fly in the ointment, however, is that such court strategy violates petitioner's
constitutional rights.

Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on May
23, 1997 was also invalid. Contrary to petitioner's contention, the arraignment did not emanate from
the invalid condition that "approval of the bail bonds shall be made only after the arraignment." Even
without such a condition, the arraignment of petitioner could not be omitted. In sum, although the
condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings
against him are valid.

Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is
denied is not to file a petition for certiorari but to proceed to trial without prejudice to his right to
reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an
adverse judgment is rendered against him. However, he argues that this case should be treated as
an exception. He contends that the Court of Appeals should not have evaded the issue of whether
he should be charged under several informations corresponding to the number of acts of child abuse
allegedly committed by him against each of the complainants.

In Tano v. Salvador,13 the Court, while holding that certiorari will not lie from a denial of a motion to
quash, nevertheless recognized that there may be cases where there are special circumstances
clearly demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the
appellate court to raise the issue decided against him. This is such a case. Whether petitioner is
liable for just one crime regardless of the number of sexual acts allegedly committed by him and the
number of children with whom he had sexual intercourse, or whether each act of intercourse
constitutes one crime is a question that bears on the presentation of evidence by either party. It is
important to petitioner as well as to the prosecution how many crimes there are. For instance, if
there is only one offense of sexual abuse regardless of the number of children involved, it will not
matter much to the prosecution whether it is able to present only one of the complainants. On the
other hand, if each act of sexual intercourse with a child constitutes a separate offense, it will matter
whether the other children are presented during the trial.

The issue then should have been decided by the Court of Appeals. However, instead of remanding
this case to the appellate court for a determination of this issue, we will decide the issue now so that
the trial in the court below can proceed without further delay.

Petitioner's contention is that the 12 informations filed against him allege only one offense of child
abuse, regardless of the number of alleged victims (four) and the number of acts of sexual
intercourse committed with them (twelve). He argues that the act of sexual intercourse is only a
means of committing the offense so that the acts of sexual intercourse/lasciviousness with minors
attributed to him should not be subject of separate informations. He cites the affidavits of the alleged
victims which show that their involvement with him constitutes an "unbroken chain of events," i.e.,
the first victim was the one who introduced the second to petitioner and so on. Petitioner says that
child abuse is similar to the crime of large-scale illegal recruitment where there is only a single
offense regardless of the number of workers illegally recruited on different occasions. In the
alternative, he contends that, at the most, only four informations, corresponding to the number of
alleged child victims, can be filed against him.

Art. III, §5 of R.A. No. 7160 under which petitioner is being prosecuted, provides:

Sec. 5 Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who
for money, profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse.

The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or
lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to
other sexual abuse; and (3) the child,14 whether male or female, is or is deemed under 18 years of
age. Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual
intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the
coercion or influence of any adult, syndicate, or group.

Each incident of sexual intercourse and lascivious act with a child under the circumstances
mentioned in Air. III, §5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is
similar to rape or act of lasciviousness under the Revised Penal Code in which each act of rape or
lascivious conduct should be the subject of a separate information. This conclusion is confirmed by
Art. III, §5(b) of R.A. No. 7160, which provides:

[t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the
penalty for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period;

WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED
declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107,
Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of
May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby
declared void.1âwphi1.nêt

SO ORDERED.
[G.R. No. 148571.December 17, 2002]

GOV'T OF THE USA, etc. vs. HON. PURGANAN, etc., et al.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated 17 DEC 2002.

G.R. No. 148571(Government of the United States of America, etc. vs. Hon. Guillermo G.
Purganan, etc., et al.)

Before the Court are private respondent's Motion for Reconsideration dated 10 October 2002,
petitioner's Comment thereon dated 05 November 2002, private respondent's Motion for Leave of
Court to File and to Admit Additional Arguments in Support of Motion for Reconsideration dated
November 6, 2002, and Reply (to petitioner's Comment) dated November 26, 2002.

First, private respondent insists that the Extradition Court acted properly in granting bail
to him. We have already exhaustively discussed this issue in our Decision and in the Concurring
Opinion of Mr. Justice Antonio T. Carpio. Thus, we will not belabor our ruling on this point. Suffice
it to say that petitioner's repeated invocation of the Extradition Court's grant of bail has not
convinced us that he deserves bail under the exception laid down in our Decision, namely, "(1)
that, once granted bail, the applicant will not be a flight risk or a danger to the community; and
(2) that there exists special, humanitarian and compelling circumstances including, as a matter
ofreciprocity, those cited by the highest court in the requesting state when it grants provisional
liberty in extradition cases therein."

There has been no clear and convincing showing as to the absence of flight risk and the non-
endangerment of the community, or as to the existence of special, humanitarian and compelling
circumstances justifying grant of bail.

Second, private respondent claims that our Decision did not make an express finding of grave
abuse of discretion on the part of the lower court. This is incorrect. On page 24 of our Decision, we
plainly stated: "Hence, after having already determined therefrom that a prima facie finding did
exist, respondent judge gravely abused his discretion when he set the matter for hearing upon
motion of Jimenez." Such grave abuse continued to characterize thesubsequent actions of Judge
Purganan in illegally granting bail to private respondent.Again, we will not repeat here why
respondent does not deserve temporary liberty. This point has been already exhaustively taken up
in our Decision and in the Opinions individually written by the members of the Court.

Further, contrary to Jimenez's claims, the Extradition Court did not negate the flight risk posed by
him. It did not make a finding on flight risk as it considered the issue irrelevant, having already
determined bail to be a matter of right. Without making any finding on flight risk, it found the
capacity to flee subservient to "the benefits that respondent may be able to deliver to his
constituents," despite the absence from the records of evidence showing the existence of such
benefits.

And in any event, in his Memorandum, private respondent submitted factual issues -- i.e.,
existence of special circumstances and absence of flight risk -- for the consideration of this Court.
He even reiterated some of those factual submissions in his Motion for Reconsideration. He is
therefore deemed estopped to claim that thisCourt cannot, on certiorari, address factual issues
and review andreverse the factual findings of the Extradition Court.

Third, private respondent's arguments (1) that the Extradition Court exercised due discretion in its
grant of bail and (2) that our "ruling that bail is not a matter of right in extradition cases is
contrary to prevailing law and jurisprudence" are neither novel nor deserving of further rebuttal.
Again, they have been extensively taken up in Decision as well as in Concurring, Separate and
Dissenting Opinions.

Fourth, private respondent argues that allegedly our Decision violates his due process rights.
Again, we have discussed this matter in our Decision saying that, in its simplest concept, due
process is merely the opportunity to be heard -- which opportunity need not always be
a prior one.In point of fact, private respondent has been given more than enough opportunity to
be heard in this Court as well as in the extradition Court.Even his Motion for Reconsideration has
been given all the chances to persuade by way of allowing "additional arguments" in his Motion
dated November 6, 2002 and Reply. These latter pleadings are normally not allowed, but precisely
because this Court wanted to give him more than enough opportunity to be heard and to argue,
we have bent backwards and admitted these additional pleadings.

Finally, private respondent contends that' as a member of Congress, he is immune from arrest
"arising from offenses punishable by not more than six (6) years imprisonment," saying that he
cannot be prevented from performing his legislative duties because his constituents would be
disenfranchised. He perorates that a member of Congress may be suspended or removed from
office only by two thirds vote of the House of Representatives.

Citing People v. Jalosjos, our Decision (pp. 38-40) has already debunked the disenfranchisement
argument. Furthermore, our Decision does not in any manner suspend or remove him from office.
Neither his arrest or detention arising from the extradition proceeding will constitute his
suspension or removal from office. That is clear enough.

While equal protection and reasonable classifications are not directly in issue in this case, we
nevertheless stress, paraphrasing Jalosjos, that respondent's election to the position of
congressman, with the concomitant duty to discharge legislative functions, does not constitute a
substantial differentiation which warrants placing him in a classification or category apart from all
other persons confined and deprived of their liberty pending resolution of their extradition cases.
We reiterate that lawful arrest and temporary confinement of a potential extraditee are germane
to the purposes of the law and apply to all those belonging to the same class.

As we have stated, the procedure adopted by the Extradition Court of first notifying and hearing a
prospective extraditee before the actual issuance of the warrant for his arrest, is tantamount to
giving notice to flee and avoid extradition. Whether a candidate for extradition does in fact go into
hiding or not is beside the point. In the final analysis, the method adopted by the lower court
wascompletely at loggerheads with the purpose, object and rationale of the law, and overlooked
the evils to be remedied.

As already suggested in our Decision (p. 32), private respondent can avoid arrest and detention
which are the consequences of theextradition proceeding simply by applying for bail before the
courts trying the criminal cases against him in the USA. He himself has repeatedly told us that the
indictments against him in the United States are bailable. Furthermore, he is capable, financially
and otherwise, of producing the necessary bail in the US. Why then has he not done so?

Otherwise stated, Respondent Jimenez has the actual power to lift his arrest and detention arising
from his extradition by simply and voluntarily going to and filing bail in the USA.

AT BOTTOM, private respondent's Motion for Reconsideration presents no new or substantial

arguments which have not been presented in his prior pleadings and which have not been taken
up in our Decision. His present allegations and asseverations are mere rehashes of arguments
previously presented to us or are mere restatements of the Separate and Dissenting Opinions
which were already adequately discussed in our Decision. In short, private respondent has not
given any compelling reason to warrant a reversal or modification of our earlier rulings.
 WHEREFORE, the Motion for Reconsideration is hereby DENIED with finality.

SO ORDERED.

EN BANC

G.R. No. 148571 September 24, 2002

GOVERNMENT OF THE UNITED STATES OF AMERICA,

Represented by the Philippine Department of Justice, petitioner,
vs.
HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and
MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent

Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr.

DECISION

PANGANIBAN, J.:

In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants
for their arrest can be issued? Equally important, are they entitled to the right to bail and provisional
liberty while the extradition proceedings are pending? In general, the answer to these two novel
questions is "No." The explanation of and the reasons for, as well as the exceptions to, this rule are
laid out in this Decision.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set
aside the Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional Trial Court (RTC) of
Manila, Branch 42. 3 The first assailed Order set for hearing petitioner’s application for the issuance
of a warrant for the arrest of Respondent Mark B. Jimenez.
The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same
time granted bail to Jimenez. The dispositive portion of the Order reads as follows:

WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against
respondent Mark Jimenez. Accordingly let a Warrant for the arrest of the respondent be
issued. Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules
of Criminal Procedure, this Court fixes the reasonable amount of bail for respondent’s
temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash.

Furthermore respondent is directed to immediately surrender to this Court his passport and
the Bureau of Immigration and Deportation is likewise directed to include the name of the
respondent in its Hold Departure List." 4

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the
taking of Jimenez into legal custody.

The Facts

This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion. 5

Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government, through
diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999,
supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated
documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo.
Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to
the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree
(PD) No. 1069, also known as the Extradition Law.

Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary
Restraining Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO prohibited the Department of
Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was,
however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465. Initially, the
Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was ordered to furnish private
respondent copies of the extradition request and its supporting papers and to grant the latter a
reasonable period within which to file a comment and supporting evidence. 8

Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000
Resolution. 9 By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered
and reversed its earlier Decision. It held that private respondent was bereft of the right to notice and
hearing during the evaluation stage of the extradition process. This Resolution has become final and
executory.

Finding no more legal obstacle, the Government of the United States of America, represented by the
Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which
was docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was
the subject of an arrest warrant issued by the United States District Court for the Southern District of
Florida on April 15, 1999. The warrant had been issued in connection with the following charges in
Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit
certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26
US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false
statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign
contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code
Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order
for his "immediate arrest" pursuant to Section 6 of PD No. 1069.

Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent
Manifestation/Ex-Parte Motion," 10 which prayed that petitioner’s application for an arrest warrant be
set for hearing.

In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for
hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure
adopted by the trial court allowing the accused in an extradition case to be heard prior to the
issuance of a warrant of arrest.

After the hearing, the court a quo required the parties to submit their respective memoranda. In his
Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be
allowed to post bail in the amount of P100,000.

The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court
below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and
fixing bail for his temporary liberty at one million pesos in cash. 11 After he had surrendered his
passport and posted the required cash bond, Jimenez was granted provisional liberty via the
challenged Order dated July 4, 2001. 12

Hence, this Petition. 13

Issues

Petitioner presents the following issues for the consideration of this Court:

I.

The public respondent acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing
a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069.

II.

The public respondent acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in
allowing Jimenez to go on provisional liberty because:

‘1. An extradition court has no power to authorize bail, in the absence of any law that
provides for such power.

‘2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and
Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied
upon, cannot be used as bases for allowing bail in extradition proceedings.

‘3. The presumption is against bail in extradition proceedings or proceedings leading

to extradition.
 ‘4. On the assumption that bail is available in extradition proceedings or proceedings
leading to extradition, bail is not a matter of right but only of discretion upon clear
showing by the applicant of the existence of special circumstances.

‘5. Assuming that bail is a matter of discretion in extradition proceedings, the public
respondent received no evidence of ‘special circumstances’ which may justify release
on bail.

‘6. The risk that Jimenez will flee is high, and no special circumstance exists that will
engender a well-founded belief that he will not flee.

‘7. The conditions attached to the grant of bail are ineffectual and do not ensure
compliance by the Philippines with its obligations under the RP-US Extradition
Treaty.

‘8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case
entitled ‘Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17,
Manila,’ CA-G.R. SP No. 64589, relied upon by the public respondent in granting bail,
had been recalled before the issuance of the subject bail orders.’" 14

In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to
notice and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail
and to provisional liberty while the extradition proceedings are pending. Preliminarily, we shall take
up the alleged prematurity of the Petition for Certiorari arising from petitioner’s failure to file a Motion
for Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this
Court. 15 We shall also preliminarily discuss five extradition postulates that will guide us in disposing
of the substantive issues.

The Court’s Ruling

The Petition is meritorious.

Preliminary Matters

Alleged Prematurity of Present Petition

Petitioner submits the following justifications for not filing a Motion for Reconsideration in the
Extradition Court: "(1) the issues were fully considered by such court after requiring the parties to
submit their respective memoranda and position papers on the matter and thus, the filing of a
reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity,
absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the
passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition;
and (4) the issues raised are purely of law." 16

For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1)
even if the petition is lodged with the Court of Appeals and such appellate court takes cognizance of
the issues and decides them, the parties would still bring the matter to this Honorable Court to have
the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to
follow; (2) the Honorable Court of Appeals had in one case 17ruled on the issue by disallowing bail but
the court below refused to recognize the decision as a judicial guide and all other courts might
likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the
extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable
Court will render in this case, would resolve to grant bail in favor of the potential extraditees and
would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to
comply with its obligations under existing extradition treaties." 18

As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior
court has been given, through a motion for reconsideration, a chance to correct the errors imputed to
it. This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when
public interest is involved, or (3) in case of urgency. 19 As a fourth exception, the Court has also ruled
that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine
qua non, when the questions raised are the same as those that have already been squarely argued
and exhaustively passed upon by the lower court. 20 Aside from being of this nature, the issues in the
present case also involve pure questions of law that are of public interest. Hence, a motion for
reconsideration may be dispensed with.

Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of
certiorari when there are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated:

[T]he Supreme Court has the full discretionary power to take cognizance of the petition filed
directly [before] it if compelling reasons, or the nature and importance of the issues raised,
warrant. This has been the judicial policy to be observed and which has been reiterated in
subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De
Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma:

‘x x x. A direct invocation of the Supreme Court’s original jurisdiction to issue these

writs should be allowed only when there are special and important reasons therefor,
clearly and specifically set out in the petition. This is established policy. x x x.’

Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present
petition in the interest of speedy justice and to avoid future litigations so as to promptly put
an end to the present controversy which, as correctly observed by petitioners, has sparked
national interest because of the magnitude of the problem created by the issuance of the
assailed resolution. Moreover, x x x requiring the petitioners to file their petition first with the
Court of Appeals would only result in a waste of time and money.

That the Court has the power to set aside its own rules in the higher interests of justice is well-
entrenched in our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23

‘Be it remembered that rules of procedure are but mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities that
tend to frustrate rather than promote substantial justice, must always be avoided. Time and
again, this Court has suspended its own rules and excepted a particular case from their
operation whenever the higher interests of justice so require. In the instant petition, we
forego a lengthy disquisition of the proper procedure that should have been taken by the
parties involved and proceed directly to the merits of the case.’

In a number of other exceptional cases, 24 we held as follows:

This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the
Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and
habeas corpus, and we entertain direct resort to us in cases where special and important
reasons or exceptional and compelling circumstances justify the same."
In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.

Five Postulates of Extradition

The substantive issues raised in this case require an interpretation or construction of the treaty and
the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give
effect to its intent. 25Since PD 1069 is intended as a guide for the implementation of extradition
treaties to which the Philippines is a signatory, 26 understanding certain postulates of extradition will
aid us in properly deciding the issues raised here.

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of suppressing crime 27 by facilitating
the arrest and the custodial transfer 28 of a fugitive 29 from one state to the other.

With the advent of easier and faster means of international travel, the flight of affluent
criminals from one country to another for the purpose of committing crime and evading
prosecution has become more frequent. Accordingly, governments are adjusting their
methods of dealing with criminals and crimes that transcend international boundaries.

Today, "a majority of nations in the world community have come to look upon extradition as
the major effective instrument of international co-operation in the suppression of crime." 30 It is
the only regular system that has been devised to return fugitives to the jurisdiction of a court
competent to try them in accordance with municipal and international law. 31

An important practical effect x x x of the recognition of the principle that criminals

should be restored to a jurisdiction competent to try and punish them is that the
number of criminals seeking refuge abroad will be reduced. For to the extent that
efficient means of detection and the threat of punishment play a significant role in the
deterrence of crime within the territorial limits of a State, so the existence of effective
extradition arrangements and the consequent certainty of return to the locus delicti
commissi play a corresponding role in the deterrence of flight abroad in order to
escape the consequence of crime. x x x. From an absence of extradition
arrangements flight abroad by the ingenious criminal receives direct encouragement
and thus indirectly does the commission of crime itself." 32

In Secretary v. Lantion 33 we explained:

The Philippines also has a national interest to help in suppressing crimes and one way to do
it is to facilitate the extradition of persons covered by treaties duly entered [into] by our
government. More and more, crimes are becoming the concern of one world. Laws involving
crimes and crime prevention are undergoing universalization. One manifest purpose of this
trend towards globalization is to deny easy refuge to a criminal whose activities threaten the
peace and progress of civilized countries. It is to the great interest of the Philippines to be
part of this irreversible movement in light of its vulnerability to crimes, especially
transnational crimes."
Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of
international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate
with other states in order to improve our chances of suppressing crime in our own country.

2. The Requesting State Will Accord Due Process to the Accused

Second, an extradition treaty presupposes that both parties thereto have examined, and that both
accept and trust, each other’s legal system and judicial process. 34 More pointedly, our duly
authorized representative’s signature on an extradition treaty signifies our confidence in the capacity
and the willingness of the other state to protect the basic rights of the person sought to be
extradited. 35 That signature signifies our full faith that the accused will be given, upon extradition to
the requesting state, all relevant and basic rights in the criminal proceedings that will take place
therein; otherwise, the treaty would not have been signed, or would have been directly attacked for
its unconstitutionality.

3. The Proceedings Are Sui Generis

Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in
nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition
which is sui generis -- in a class by itself -- they are not.

An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the
process of extradition does not involve the determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudged in the court of the state where he will be
extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt
or innocence of an accused cannot be invoked by an extraditee x x x.

xxxxxxxxx

There are other differences between an extradition proceeding and a criminal proceeding. An
extradition proceeding is summary in nature while criminal proceedings involve a full-blown
trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition
proceeding allow admission of evidence under less stringent standards. In terms of the
quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt
for conviction while a fugitive may be ordered extradited ‘upon showing of the existence of a
prima facie case.’ Finally, unlike in a criminal case where judgment becomes executory upon
being rendered final, in an extradition proceeding, our courts may adjudge an individual
extraditable but the President has the final discretion to extradite him. The United States
adheres to a similar practice whereby the Secretary of State exercises wide discretion in
balancing the equities of the case and the demands of the nation’s foreign relations before
making the ultimate decision to extradite."

Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or
the innocence of the person sought to be extradited. 37 Such determination during the extradition
proceedings will only result in needless duplication and delay. Extradition is merely a measure of
international judicial assistance through which a person charged with or convicted of a crime is
restored to a jurisdiction with the best claim to try that person. It is not part of the function of the
assisting authorities to enter into questions that are the prerogative of that jurisdiction. 38The ultimate
purpose of extradition proceedings in court is only to determine whether the extradition request
complies with the Extradition Treaty, and whether the person sought is extraditable. 39
 4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our
legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will
serve the national interest.

Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On
the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before
the world community. Such failure would discourage other states from entering into treaties with us,
particularly an extradition treaty that hinges on reciprocity. 41

Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the
Treaty. 42 This principle requires that we deliver the accused to the requesting country if the conditions
precedent to extradition, as set forth in the Treaty, are satisfied. In other words, "[t]he demanding
government, when it has done all that the treaty and the law require it to do, is entitled to the delivery
of the accused on the issue of the proper warrant, and the other government is under obligation to
make the surrender." 43 Accordingly, the Philippines must be ready and in a position to deliver the
accused, should it be found proper.

5. There Is an Underlying Risk of Flight

Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds
reinforcement in the experience 44 of the executive branch: nothing short of confinement can ensure
that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition
to the requesting state.

The present extradition case further validates the premise that persons sought to be extradited have
a propensity to flee. Indeed,

extradition hearings would not even begin, if only the accused were willing to submit to trial in the
requesting country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before
the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite
learning that the requesting state is seeking his return and that the crimes he is charged with are
bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his
predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying
high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled
once, what is there to stop him, given sufficient opportunity, from fleeing a second time?

First Substantive Issue:

Is Respondent Entitled to Notice and Hearing

Before the Issuance of a Warrant of Arrest?

Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from
justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his
arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner pleads that such
procedure may set a dangerous precedent, in that those sought to be extradited -- including
terrorists, mass murderers and war criminals -- may invoke it in future extradition cases.

On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily
deprived of his constitutional right to liberty without due process. He further asserts that there is as
yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after
the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the
discretion of the presiding judge.

Both parties cite Section 6 of PD 1069 in support of their arguments. It states:

SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1)

Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour
fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which
may be served any where within the Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused will best serve the ends of justice.
Upon receipt of the answer, or should the accused after having received the summons fail to
answer within the time fixed, the presiding judge shall hear the case or set another date for
the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case."
(Emphasis ours)

Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing the
issuance of a warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to
qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing
the issuance of the arrest warrant. Hearing entails sending notices to the opposing
parties, 46 receiving facts and arguments 47 from them, 48and giving them time to prepare and present
such facts and arguments. Arrest subsequent to a hearing can no longer be considered "immediate."
The law could not have intended the word as a mere superfluity but, on the whole, as a means of
imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest
should be issued.

By using the phrase "if it appears," the law further conveys that accuracy is not as important as
speed at such early stage. The trial court is not expected to make an exhaustive determination to
ferret out the true and actual situation, immediately upon the filing of the petition. From the
knowledge and the material then available to it, the court is expected merely to get a good first
impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the
arrest and detention of the accused.

Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the
following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial
attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of
Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of
the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that
constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix
of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" and enclosed
Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental
Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix
of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward" and enclosed
Statements in two volumes. 49
It is evident that respondent judge could have already gotten an impression from these records
adequate for him to make an initial determination of whether the accused was someone who should
immediately be arrested in order to "best serve the ends of justice." He could have determined
whether such facts and circumstances existed as would lead a reasonably discreet and prudent
person to believe that the extradition request was prima facie meritorious. In point of fact, he actually
concluded from these supporting documents that "probable cause" did exist. In the second
questioned Order, he stated:

In the instant petition, the documents sent by the US Government in support of [its] request
for extradition of herein respondent are enough to convince the Court of the existence of
probable cause to proceed with the hearing against the extraditee." 50

We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for
issuing an arrest warrant was already evident from the Petition itself and its supporting documents.
Hence, after having already determined therefrom that a prima facie finding did exist, respondent
judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. 51

Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure
of the accused to answer after receiving the summons. In connection with the matter of immediate
arrest, however, the word "hearing" is notably absent from the provision. Evidently, had the holding
of a hearing at that stage been intended, the law could have easily so provided. It also bears
emphasizing at this point that extradition proceedings are summary 52 in nature. Hence, the silence of
the Law and the Treaty leans to the more reasonable interpretation that there is no intention to
punctuate with a hearing every little step in the entire proceedings.

It is taken for granted that the contracting parties intend something reasonable and
something not inconsistent with generally recognized principles of International Law, nor with
previous treaty obligations towards third States. If, therefore, the meaning of a treaty is
ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more
reasonable to the less reasonable x x x ." 53

Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for
their arrest and setting it for hearing at some future date would give them ample opportunity to
prepare and execute an escape. Neither the Treaty nor the Law could have

intended that consequence, for the very purpose of both would have been defeated by the escape of
the accused from the requested state.

2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a
notice or a hearing before the issuance of a warrant of arrest. It provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
 of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized."

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only
the examination -- under oath or affirmation -- of complainants and the witnesses they may produce.
There is no requirement to notify and hear the accused before the issuance of warrants of arrest.

In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of
conducting a hearing just for the purpose of personally determining probable cause for the issuance
of a warrant of arrest. All we required was that the "judge must have sufficient supporting documents
upon which to make his independent judgment, or at the very least, upon which to verify the findings
of the prosecutor as to the existence of probable cause." 55

In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to conduct a
hearing before issuing a warrant of arrest:

Again, we stress that before issuing warrants of arrest, judges merely determine personally
the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a
de novo hearing to determine the existence of probable cause. They just personally review
the initial determination of the prosecutor finding a probable cause to see if it is supported by
substantial evidence."

At most, in cases of clear insufficiency of evidence on record, judges merely further examine
complainants and their witnesses. 57 In the present case, validating the act of respondent judge and
instituting the practice of hearing the accused and his witnesses at this early stage would be
discordant with the rationale for the entire system. If the accused were allowed to be heard and
necessarily to present evidence during the prima facie determination for the issuance of a warrant of
arrest,

what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires --
in his effort to negate a prima facie finding? Such a procedure could convert the determination of a
prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main
case superfluous. This scenario is also anathema to the summary nature of extraditions.

That the case under consideration is an extradition and not a criminal action is not sufficient to justify
the adoption of a set of procedures more protective of the accused. If a different procedure were
called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondent’s
demonstrated predisposition to flee.

Since this is a matter of first impression, we deem it wise to restate the proper procedure:

Upon receipt of a petition for extradition and its supporting documents, the judge must study them
and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and
substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought
is extraditable. At his discretion, the judge may

require the submission of further documentation or may personally examine the affiants and
witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding 58 is
possible, the petition may be dismissed at the discretion of the judge.
On the other hand, if the presence of a prima facie case is determined, then the magistrate must
immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to
answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the
warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition,
lest the latter be given the opportunity to escape and frustrate the proceedings. In our opinion, the
foregoing procedure will "best serve the ends of justice" in extradition cases.

Second Substantive Issue:

Is Respondent Entitled to Bail?

Article III, Section 13 of the Constitution, is worded as follows:

Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall
not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required."

Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of
all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones
charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also
alleges the relevance to the present case of Section 4 59 of Rule 114 of the Rules of Court which,
insofar as practicable and consistent with the summary nature of extradition proceedings, shall also
apply according to Section 9 of PD 1069.

On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting
the right to bail to a person who is the subject of an extradition request and arrest warrant.

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word "conviction," the constitutional
provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only
when a person has been arrested and detained for violation of Philippine criminal laws. It does not
apply to extradition proceedings, because extradition courts do not render judgments of conviction or
acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt." 60 It follows that the constitutional
provision on bail will not apply to a case like extradition, where the presumption of innocence is not
at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It must be noted that the
suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion." 61 Hence, the
second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal
proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available
even in extradition proceedings that are not criminal in nature.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not
an argument to grant him one in the present case. To stress, extradition proceedings are separate
and distinct from the trial for the offenses for which he is charged. He should apply for bail before the
courts trying the criminal cases against him, not before the extradition court.

No Violation of Due Process

Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall
be deprived of x x x liberty x x x without due process of law."

Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does
not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence
of due process is the opportunity to be heard 63 but, at the same time, point out that the doctrine does
not always call for a prior opportunity to be heard. 64 Where the circumstances -- such as those
present in an extradition case -- call for it, a subsequent opportunity to be heard is enough. 65 In the
present case, respondent will be given full opportunity to be heard subsequently, when the
extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due
process and fundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation
of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently
ensured by (1) the DOJ’s filing in court the Petition with its supporting documents after a
determination that the extradition request meets the requirements of the law and the relevant treaty;
(2) the extradition judge’s independent prima facie determination that his arrest will best serve the
ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is
under the court’s custody, to apply for bail as an exception to the no-initial-bail rule.

It is also worth noting that before the US government requested the extradition of respondent,
proceedings had already been conducted in that country. But because he left the jurisdiction of the
requesting state before those proceedings could be completed, it was hindered from continuing with
the due processes prescribed under its laws. His invocation of due process now has thus become
hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away.

In this light, would it be proper and just for the government to increase the risk of violating its treaty
obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it
takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without
the due process that he had previously shunned pales against the government’s interest in fulfilling
its Extradition Treaty obligations and in cooperating with the world community in the suppression of
crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to
individuals must be carefully balanced against exigent and palpable government interests." 66

Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of
facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy
to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal
treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In
the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the
right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general
rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or
evade their prosecutors. 1âwphi1.nêt

The denial of bail as a matter of course in extradition cases falls into place with and gives life to
Article 14 67 of the Treaty, since this practice would encourage the accused to voluntarily surrender to
the requesting state to cut short their detention here. Likewise, their detention pending the resolution
of extradition proceedings would fall into place with the emphasis of the Extradition Law on the
summary nature of extradition cases and the need for their speedy disposition.

Exceptions to the No Bail Rule

The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary
has the constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to
promulgate rules to protect and enforce constitutional rights. 69 Furthermore, we believe that the right
to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right
to due process extends to the "life, liberty or property" of every person. It is "dynamic and resilient,
adaptable to every situation calling for its application." 70

Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential
extraditee has been arrested or placed under the custody of the law, bail may be applied for and
granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the
applicant will not be a flight risk or a danger to the community; and (2) that there exist special,
humanitarian and compelling circumstances 71 including, as a matter of reciprocity, those cited by the
highest court in the requesting state when it grants provisional liberty in extradition cases therein.

Since this exception has no express or specific statutory basis, and since it is derived essentially
from general principles of justice and fairness, the applicant bears the burden of proving the above
two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that
extradition is basically an executive, not a judicial, responsibility arising from the presidential power
to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance
amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into
the exercise of this power should be characterized by caution, so that the vital international and
bilateral interests of our country will not be unreasonably impeded or compromised. In short, while
this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own
prerogatives and the need to fulfill international obligations.

Along this line, Jimenez contends that there are special circumstances that are compelling enough
for the Court to grant his request for provisional release on bail. We have carefully examined these
circumstances and shall now discuss them.

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of
600,000 residents. We are not persuaded. In People v. Jalosjos, 72 the Court has already debunked
the disenfranchisement argument when it ruled thus:

When the voters of his district elected the accused-appellant to Congress, they did so with
full awareness of the limitations on his freedom of action. They did so with the knowledge
that he could achieve only such legislative results which he could accomplish within the
confines of prison. To give a more drastic illustration, if voters elect a person with full
 knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he
may no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal
protection.

The Constitution guarantees: ‘x x x nor shall any person be denied the equal protection of
laws.’ This simply means that all persons similarly situated shall be treated alike both in
rights enjoyed and responsibilities imposed. The organs of government may not show any
undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed.

Does being an elective official result in a substantial distinction that allows different
treatment? Is being a Congressman a substantial differentiation which removes the accused-
appellant as a prisoner from the same class as all persons validly confined under law?

The performance of legitimate and even essential duties by public officers has never been an
excuse to free a person validly [from] prison. The duties imposed by the ‘mandate of the
people’ are multifarious. The accused-appellant asserts that the duty to legislate ranks
highest in the hierarchy of government. The accused-appellant is only one of 250 members
of the House of Representatives, not to mention the 24 members of the Senate, charged
with the duties of legislation. Congress continues to function well in the physical absence of
one or a few of its members. Depending on the exigency of Government that has to be
addressed, the President or the Supreme Court can also be deemed the highest for that
particular duty. The importance of a function depends on the need for its exercise. The duty
of a mother to nurse her infant is most compelling under the law of nature. A doctor with
unique skills has the duty to save the lives of those with a particular affliction. An elective
governor has to serve provincial constituents. A police officer must maintain peace and order.
Never has the call of a particular duty lifted a prisoner into a different classification from
those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious

discriminations are made in favor of or against groups or types of individuals.

The Court cannot validate badges of inequality. The necessities imposed by public welfare
may justify exercise of government authority to regulate even if thereby certain groups may
plausibly assert that their interests are disregarded.

We, therefore, find that election to the position of Congressman is not a reasonable
classification in criminal law enforcement. The functions and duties of the office are not
substantial distinctions which lift him from the class of prisoners interrupted in their freedom
and restricted in liberty of movement. Lawful arrest and confinement are germane to the
purposes of the law and apply to all those belonging to the same class." 73

It must be noted that even before private respondent ran for and won a congressional seat in Manila,
it was already of public knowledge that the United States was requesting his extradition. Hence, his
constituents were or should have been prepared for the consequences of the extradition case
against their representative, including his detention pending the final resolution of the case.
Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his
election to public office is by itself a compelling reason to grant him bail.

2. Anticipated Delay
Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would
be unfair to confine him during the pendency of the case. Again we are not convinced. We must
emphasize that extradition cases are summary in nature. They are resorted to merely to determine
whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine
guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional
rights available to the accused in a criminal action.

We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings.
This is quite another matter that is not at issue here. Thus, any further discussion of this point would
be merely anticipatory and academic.

However, if the delay is due to maneuverings of respondent, with all the more reason would the
grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for
the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also
encourage him to stretch out and unreasonably delay the extradition proceedings even more. This
we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of
the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled
during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean
that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the
requesting government inching closer and closer. That he has not yet fled from the Philippines
cannot be taken to mean that he will stand his ground and still be within reach of our government if
and when it matters; that is, upon the resolution of the Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial court at anytime after
the applicant has been taken into custody and prior to judgment, even after bail has been previously
denied. In the present case, the extradition court may continue hearing evidence on the application
for bail, which may be granted in accordance with the guidelines in this Decision.

Brief Refutation of Dissents

The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact,
it is a cop-out. The parties -- in particular, Respondent Jimenez -- have been given more than
sufficient opportunity both by the trial court and this Court to discuss fully and exhaustively private
respondent’s claim to bail. As already stated, the RTC set for hearing not only petitioner’s application
for an arrest warrant, but also private respondent’s prayer for temporary liberty. Thereafter required
by the RTC were memoranda on the arrest, then position papers on the application for bail, both of
which were separately filed by the parties.

This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy
Memoranda and the Position Papers of both parties. Additionally, it has patiently heard them in Oral
Arguments, a procedure not normally observed in the great majority of cases in this Tribunal.
Moreover, after the Memos had been submitted, the parties -- particularly the potential extraditee --
have bombarded this Court with additional pleadings -- entitled "Manifestations" by both parties and
"Counter-Manifestation" by private respondent -- in which the main topic was Mr. Jimenez’s plea for
bail.

A remand would mean that this long, tedious process would be repeated in its entirety. The trial court
would again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous
pleadings and verbal propositions, private respondent has not asked for a remand. Evidently, even
he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not
in the factual presentation of Mr. Jimenez. Rather, it lies in his legal arguments. Remanding the case
will not solve this utter lack of persuasion and strength in his legal reasoning.

In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and
Dissenting Opinions written by the learned justices themselves -- has exhaustively deliberated and
carefully passed upon all relevant questions in this case. Thus, a remand will not serve any useful
purpose; it will only further delay these already very delayed proceedings, 74 which our Extradition
Law requires to be summary in character. What we need now is prudent and deliberate speed, not
unnecessary and convoluted delay. What is needed is a firm decision on the merits, not a circuitous
cop-out.

Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a
case is one of extradition." We believe that this charge is not only baseless, but also unfair. Suffice it
to say that, in its length and breath, this Decision has taken special cognizance of the rights to due
process and fundamental fairness of potential extraditees.

Summation

As we draw to a close, it is now time to summarize and stress these ten points:

1. The ultimate purpose of extradition proceedings is to determine whether the request

expressed in the petition, supported by its annexes and the evidence that may be adduced
during the hearing of the petition, complies with the Extradition Treaty and Law; and whether
the person sought is extraditable. The proceedings are intended merely to assist the
requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to
its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in
the reliability or soundness of the legal and judicial system of its treaty partner, as well as in
the ability and the willingness of the latter to grant basic rights to the accused in the pending
criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt
or innocence is determined. Consequently, an extradition case is not one in which the
constitutional rights of the accused are necessarily available. It is more akin, if at all, to a
court’s request to police authorities for the arrest of the accused who is at large or has
escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting
state, the reasonable prima facie presumption is that the person would escape again if given
the opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting documents, the
judge shall make a prima facie finding whether the petition is sufficient in form and
substance, whether it complies with the Extradition Treaty and Law, and whether the person
sought is extraditable. The magistrate has discretion to require the petitioner to submit
further documentation, or to personally examine the affiants or witnesses. If convinced that a
prima facie case exists, the judge immediately issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and to appear at scheduled hearings on the
petition.
 5. After being taken into custody, potential extraditees may apply for bail. Since the
applicants have a history of absconding, they have the burden of showing that (a) there is no
flight risk and no danger to the community; and (b) there exist special, humanitarian or
compelling circumstances. The grounds used by the highest court in the requesting state for
the grant of bail therein may be considered, under the principle of reciprocity as a special
circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial
discretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to fundamental fairness.
Due process does not always call for a prior opportunity to be heard. A subsequent
opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings
on the petition and the answer is the full chance to be heard and to enjoy fundamental
fairness that is compatible with the summary nature of extradition.

7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of
democracy and the conscience of society. But it is also well aware of the limitations of its
authority and of the need for respect for the prerogatives of the other co-equal and co-
independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial, responsibility arising

out of the presidential power to conduct foreign relations and to implement treaties. Thus, the
Executive Department of government has broad discretion in its duty and power of
implementation.

9. On the other hand, courts merely perform oversight functions and exercise review
authority to prevent or excise grave abuse and tyranny. They should not allow contortions,
delays and "over-due process" every little step of the way, lest these summary extradition
proceedings become not only inutile but also sources of international embarrassment due to
our inability to comply in good faith with a treaty partner’s simple request to return a fugitive.
Worse, our country should not be converted into a dubious haven where fugitives and
escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the
quest for bilateral justice and international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberate speed to
determine compliance with the Extradition Treaty and Law; and, while safeguarding basic
individual rights, to avoid the legalistic contortions, delays and technicalities that may negate
that purpose.

WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby
declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it
granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is
CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings
before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with
the United States as well as our Extradition Law. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. RTJ-95-1286 March 2, 1995

TERESITA Q. TUCAY, complainant,

vs.
JUDGE ROGER A. DOMAGAS, Branch 46, Regional Trial Court, Urdaneta,
Pangasinan, respondent.

MENDOZA, J.:

Teresita Q. Tucay filed this complaint against Judge Roger A. Domagas of the Regional Trial Court
(Branch 46), Urdaneta, Pangasinan, charging him with ignorance of the law, serious misconduct and
grave abuse of discretion.

The facts are as follows:

Ludovico Ellamil, Bernardo Ellamil and Melchor Ellamil are accused of murder in Criminal Case No.
U-6762. The case was formerly assigned to the respondent judge. Teresita Tucay, the wife of the
victim, is the complainant in that case.

On April 18, 1994, a petition for bail was filed on behalf of the accused Bernardo Ellamil. The petition
was denied, however, by respondent judge on the ground that it did not bear the conformity of the
1

provincial prosecutor.

The following day, April 19, 1994, a second petition for bail was filed by the accused with the prayer
2

that he be allowed to post bail in the amount of P50,000.00. This time, the petition contained the
notation "No objection" of Provincial Prosecutor Jose Antonio Guillermo.

Without holding a hearing to determine whether the evidence of the prosecution was strong,
respondent judge issued an order on the same day, in which he granted bail and directed the
3

release of accused from detention with instructions to the bondsman to register the bond with the
Register of Deeds of Lingayen, Pangasinan within ten days.

The present complaint was filed, protesting the grant of bail without hearing and without notice to
trial fiscal, Atty. Tita Villarin, of the Provincial Prosecutor's recommendation for approval of the bond.
It is alleged that the assessed value of the property given as bond is only P47,330.00, and,
therefore, is short of the amount fixed for the release of the accused.

In his comment filed on August 3, 1994, respondent judge alleged:

(1) The granting of the second petition for bail bears the conformity of the Provincial
Prosecutor as per notation at the right-hand margin on page 2 of the petition;
 (2) That the accused already made an additional bond as per Order dated May 19,
1994 to complete the P50,000.00 bail bond which he registered including the original
bond;

(3) The Second petition for bail was approved on April 19, 1994 and the initial
hearing was supposed to be on February 24 & 25, 1994 in so far as one accused,
Ludovico Ellamil y Quinit, a youthful offender under the custody of DSWD and
thereafter transferred to the Regional Rehabilitation Center, Bauang, La Union, is
concerned;

(4) That the hearing has been postponed repeatedly at the instance of the private
prosecutor due to the non-arrest of the other two (2) accused;

(5) That to avoid further suspicion and upon manifestation of the private prosecutor
the undersigned inhibited himself as of May 31, 1994 and said case has been re-
raffled to Branch 49, presided by Hon. Iluminado C. Meneses.

In her reply dated September 19, 1994, complainant alleged that respondent judge required the
accused, Bernardo Ellamil, to post an additional bond only after she had pointed out the deficiency
of the original property bond. She further alleged that the provincial prosecutor recommended no
bail, despite the fact that MCTC Judge Rodrigo Nabor who, had ordered the arrest of the accused
after a preliminary investigation, had fixed no bail for his temporary release. Complainant denied that
the delay in the trial of the case was due to postponements requested by her counsel.

The Office of the Court Administrator (OCA), to which the letter-complaint was sent, finds the
respondent judge grossly ignorant of the law in granting bail without a hearing in a criminal case
involving a capital offense and recommends that he be fined and given a stern warning. The OCA
stresses that respondent judge ought to know that a hearing to show that the evidence of guilt is not
strong was indispensable to the grant of bail to the accused. It likewise points out that, in his order
releasing the accused on bail, the judge did not state that he was granting the petition for bail but
simply ordered him released. In a memorandum signed by Deputy Court Administrator Juanito A.
Bernad and approved by Court Administrator Ernani Cruz Paño, the OCA states:

It is evident from the records that, the aforesaid second petition for bail was not set
for hearing by respondent Judge in disregard of the provision of Sec. 5 Rule 114 of
the Revised Rules on Criminal Procedure requiring hearing before an accused
charged with a capital offense can be granted bail. Although the Provincial
Prosecutor interposed no objection thereto, the assailed Order dated April 19, 1994
which was issued on the very day the petition for bail was filed, nevertheless showed
lack of compliance with the procedural requirement that the prosecution be given an
opportunity to present within a reasonable time all the evidence that it may desire to
introduce before the court may resolve the motion for bail. (Sec. 15, Rule 114).

In A.M. No. 92-10-884-RTC — Re: Report of the Pasig RTC Judges, citing the case
of Herras Teehankee vs. Director of Prison, 76 Phil. 756, 789, this Court held that:

. . . even where the prosecutor refuses to adduce evidence in

opposition to the application to grant and fix bail, the Court may ask
the prosecution questions to ascertain the strength of the State's
evidence or judge the adequacy of the amount of bail.
 Moreover, the assailed Order of April 19, 1994 is defective in form and substance as
it made no categorical mention whatsoever of granting the petition for bail, much less
did it contain any pronouncement to the effect that the requisite proof of guilt of the
accused is not evident. It simply stated the fact that the bail bond in the amount of
P50,000.00 had been posted by said accused who was consequently ordered
released from detention.

The court's discretion to grant bail in capital offense must be

exercised in the light of a summary of the evidence presented by the
prosecution, otherwise, it could be uncontrolled and might be
capricious or whimsical. Hence, the court's order granting or refusing
bail must contain a summary of the evidence for the prosecution
followed by its conclusion whether or not the evidence of guilt is
strong. (Carpio vs. Maglalang, 196 SCRA 50-51, citing "People vs.
San Diego," 26 SCRA 522, 524)

. . . Such error cannot be characterized as mere deficiency in

prudence, discretion and judgment but a patent disregard of well-
known rules and, therefore, constitutive of gross ignorance of the law
(A.M. No. RTJ-93-1097 "Regional State Prosecutor Francisco Q.
Aurillo, Jr. vs. Judge Getulio M. Francisco and Judge Pedro S.
Espina, etc." August 12, 1994).

We agree with the foregoing observations of the OCA. We wish to add that, although the Provincial
Prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should
nevertheless have set the petition for bail for hearing and diligently ascertained from the prosecution
whether the latter was not really contesting the bail application.

He should have called a hearing for the additional reason of taking into account the guidelines in
Rule 114, sec. 6 of 1985 Rules on Criminal Procedure, as amended, in fixing the amount of the bail.
As it is, the respondent judge simply fixed the amount of bail at P50,000.00 and ordered the release
of the accused. It turned out that the property given as security for the bond had a market value of
only P42,940. 00. Although it appears that an additional bond was later posted, this was done only
after the complainant had objected to the bond.

Only after satisfying himself that the prosecution did not wish to oppose the petition for bail for
justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule
114, sec. 6 for fixing bail should respondent judge have granted the petition for bail and ordered the
release of the accused. In failing to observe these rudimentary requirements, the respondent judge
showed gross ignorance of the law for which he should be fined.

The OCA recommends that a fine of P20,000.00 be imposed on him and that he be warned. The
recommendation is in accordance with the penalty imposed in the analogous cases. 4

WHEREFORE, respondent Judge Roger A. Domagas is hereby ordered to pay a fine of P20,000.00
and is sternly warned that the commission of a similar offense in the future will be dealt with more
severely.

SO ORDERED.
 FIRST DIVISION

G.R. No. 139599 February 23, 2000

ANICETO SABBUN MAGUDDATU and LAUREANA SABBUN MAGUDDATU, petitioners,

vs.
Honorable COURT OF APPEALS (FOURTH DIVISION) and PEOPLE OF THE
PHILIPPINES, respondents.

KAPUNAN, J.:

For a human being who has been inside a prison cell, a bail bond represents his only ticket to liberty,
albeit provisional. But the right to bail is not always a demandable right. In certain instances, it is a
matter of discretion. This discretion, however, is not full and unfettered because the law and the rules
set the parameters for its proper exercise. Discretion is, of course, a delicate thing and its abuse of
such grave nature would warrant intervention of this Court by way of the special civil action
for certiorari.

The primary issue in this case is whether or not under the facts thereof petitioners are entitled to bail
as a matter of right or on the discretion of the trial court. Assuming it is a matter of discretion,
whether or not the trial court in denying bail committed grave abuse of discretion.

The facts are well established:

Petitioners Aniceto Sabbun Maguddatu and Laureana Sabbun Maguddatu, Atty. Teodoro Rubino,
Antonio Sabbun Maguddatu and several other "John Does" were charged with murder before the
Regional Trial Court of Makati, Branch 64, for the killing of Jose S. Pascual.

On October 23, 1985, petitioners filed a motion to be admitted to bail on the ground that the
prosecution's evidence is not strong.

After partial trial on the merits, the trial court issued an order, dated December 20, 1985, granting
petitioners' motion for bail and fixing the amount at P30,000.00 each. On the same day, petitioners
posted bail through AFISCO Insurance Corporation.

On January 6, 1987, the AFISCO Insurance Corporation filed a motion before the trial court praying
for the cancellation of petitioner's bail bond because of the latter's failure to renew the same upon its
expiration on December 20, 1986. 1 There is no showing, however, of any action by the court on said
motion.

On January 2, 1998, the trial court convicted petitioners Aniceto Sabbun Maguddatu and Laureana
Sabbun Maguddatu, together with Atty. Teodoro Rubino, of the crime of Homicide and sentenced
them to suffer an indeterminate prison term of EIGHT (8) YEARS of PRISION MAYOR medium, as
minimum to FOURTEEN (14) YEARS and EIGHT (8) months of RECLUSION TEMPORAL medium,
as maximum. The judgment of conviction was promulgated in absentia. Accordingly, on February 19,
1998, the trial court issued an order for the immediate arrest of petitioners and their commitment to
the custody of proper authorities.

While remaining at large, petitioners, on February 27, 1998, filed a Notice of Appeal from the order of
conviction for homicide with a motion to be granted provisional liberty under the same bail bond
pending appeal.2

The trial court does not appear to have resolved the motion for bail pending appeal. Instead, it
forwarded the records to the Court of Appeals.

On January 8, 1999, public respondent Court of Appeals issued a Resolution 3 which states, viz:

xxx xxx xxx

2. the accused-appellants to show cause within ten (10) days from notice why their
appeal should not be deemed abandoned and accordingly dismissed for their failure
to submit themselves to the proper authorities and to the jurisdiction of the court from
which they seek relief in the meantime that no bail has yet been approved for their
temporary liberty and, further considering that the approval of the same is
discretionary and not to be presumed (Herrera, Remedial Law, v. VI-Criminal
Procedure [1996], p. 611, citing, People v. Patajo, G.R. No. 57718, November 20,
1998, En Banc, Minute Resolution); and

3. in the meanwhile, the Station Commanders of the Manila Police Station, Manila
and the Makati Police Station, Makati City to file a return of the Order of Arrest issued
by the Regional Trial Court, Branch 64, Makati City on February 19, 1998 in Criminal
Case No. 12010.

A Compliance and Motion, dated February 8, 1999,4 filed by petitioners explained their failure to
submit to the proper authorities, thus:

xxx xxx xxx

5. By way of comment and compliance therewith, the undersigned counsel hereby

manifests that accused-appellants are willing to submit themselves to the proper
authorities and to the jurisdiction of this Honorable Court. Further, it is manifested
herein that the failure of accused-appellants to submit themselves to the proper
authorities and to the jurisdiction of this Honorable Court was due only to the fact
that, all the while, they were of the belief that the Motion accompanying the above-
mentioned Notice of Appeal was already approved and granted by the court of origin.

xxx xxx xxx

Despite the compliance, and motion filed by petitioners, they remained at large. On June 23, 1999,
the Court of Appeals issued the resolution under question denying petitioners' application for bail and
ordering their arrest. The dispositive portion of said resolution reads:

WHEREFORE, the Court resolves, as it is hereby resolved, to: (1) DENY accused-appellants
application for bail and prayer for recall of the Order of Arrest issued by the trial court below;
 (2) ORDER the Station Commander of the Manila Police Station to file a return of the order
of arrest issued by the Regional Trial Court, Branch 64, Makati City on February 19, 1998 in
Criminal Case No. 12010; and (3) ORDER the accused-appellants for the last time to submit
to the jurisdiction of the court with WARNING that failure to comply herewith within ten (10)
days from notice shall compel the Court to DISMISS the appeal for failure to prosecute.

SO ORDERED.5

Aggrieved by the foregoing resolution, petitioners brought the instant petition for certiorari with this
Court on August 30, 1999, contending that the Court of Appeals committed grave abuse of discretion
in denying their application for bail and their prayer to recall the order of arrest issued by the trial
court.

Pending resolution of the petition, the Court of Appeals issued a resolution, dated September 08,
1999, which states:

For failure to submit to this court's jurisdiction pending appeal and conformable with this
Court's resolution of June 23, 1999 the appeal filed in this case is deemed ABANDONED
and DISMISSED pursuant to Section 8, Rule 128 (sic, should be 124), New Rules on
Criminal Procedure.

The Regional Trial Court, Branch 64, Makati City is hereby ORDERED to issue warrants of
arrest for the immediate apprehension and service of sentence of accused ANICETO
SABBUN MAGUDDATU and LAUREANA SABBUN MAGUDDATU.

SO ORDERED.6

The Court of Appeals committed no error in denying petitioners' plea to be granted bail.

The Constitution guarantees the right to bail of all the accused except those charged with offenses
punishable by reclusion perpetua when the evidence of guilt is strong.7

Sec's. 4, 5 and 7 of Rule 114 of the Rules of Court provide:

Sec. 4. Bail, a matter of right. — All persons in custody shall: (a) before or after conviction by
the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and
Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail
as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by
law or this Rule.

Sec. 5. Bail, when discretionary. — Upon conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua or life imprisonment, the court, on application,
may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty under the
same bail bond during the period to appeal subject to the consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years but not more than
twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be
 cancelled, upon a showing by the prosecution, with notice to the accused, of the following or
other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has

committed the crime aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal confinement,
evaded sentence, or has violated the conditions of his bail without valid justification;

(c) That the accused committed the offense while on probation, parole, or under
conditional pardon;

(d) That the circumstances of the accused or his case indicate the probability of flight
if released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused may
commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on motion and with
notice to the adverse party.

xxx xxx xxx

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. — No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall
be admitted to bail regardless of the stage of the criminal prosecution.

Despite an order of arrest from the trial court and two warnings from the Court of Appeals, petitioners
had remained at large. It is axiomatic that for one to be entitled to bail, he should be in the custody of
the law, or otherwise, deprived of liberty. The purpose of bail is to secure one's release and it would
be incongruous to grant bail to one who is free.8 Petitioners' Compliance and Motion, dated February
08, 1999, came short of an unconditional submission to respondent court's lawful order and to its
jurisdiction.

The trial court correctly denied petitioners' motion that they be allowed provisional liberty after their
conviction, under their respective bail bonds. Apart from the fact that they were at large, Section 5,
Rule 114 of the Rules of Court, as amended by Supreme Court Administrative Circular 12-94,
provides that:

xxx xxx xxx

The Court, in its discretion, may allow the accused to continue on provisional liberty under
the same bail bond during the period to appeal subject to the consent of the bondsman. 9

The bail bond that the accused previously posted can only be used during the 15-day period to
appeal (Rule 122) and not during the entire period of appeal. This is consistent with Section 2(a) of
Rule 114 which provides that the bail "shall be effective upon approval and remain in force at all
stages of the case, unless sooner cancelled, until the promulgation of the judgment of the Regional
Trial Court, irrespective of whether the case was originally filed in or appealed to it." 10 This
amendment, introduced by SC Administrative Circular 12-94 is a departure from the old rules which
then provided that bail shall be effective and remain in force at all stages of the case until its full
determination, and thus even during the period of appeal. Moreover, under the present rule, for the
accused to continue his provisional liberty on the same bail bond during the period to appeal,
consent of the bondsman is necessary. From the record, it appears that the bondsman, AFISCO
Insurance Corporation, filed a motion in the trial court on January 06, 1987 for the cancellation of
petitioners' bail bond for the latter's failure to renew the same upon its expiration. 11 Obtaining the
consent of the bondsman was, thus, foreclosed.

Pursuant to the same Section 5 of Rule 114, the accused may be admitted to bail upon the court's
discretion after conviction by the RTC of an offense not punishable by death, reclusion perpetua or
life imprisonment. However, such bail shall be denied or bail previously granted shall be cancelled if
the penalty imposed is imprisonment exceeding 6 years but not more than 20 years if any one of the
circumstances enumerated in the third paragraph of Section 5 is present. 12

From the records of the case, petitioners are not entitled to bail. Firstly, petitioners violated the
conditions of their bail. Bail is defined as a security for the release of a person conditioned upon his
appearance before any court. 13The accused shall also appear before the proper court whenever so
required by the court or these Rules. 14Petitioners' non-appearance during the promulgation of the
trial court's decision despite due notice and without justifiable reason, and their continued non-
submission to the proper authorities as ordered by the Court of Appeals, constitute violations of the
conditions of their bail. Moreover, it appears that petitioners failed to renew their expired bail
bond, 15 as shown by a Motion, dated January 06, 1987, filed by AFISCO Insurance Corporation,
praying for the cancellation of petitioners' bail bond because of the latter's failure to renew the same
upon its expiration. 16

The petitioners complain that they were not informed of the date of promulgation of the decision of
conviction in the trial court and that their counsel of record abandoned them. Even if we are to
concede that these allegations are true, petitioners still failed to surrender to the authorities despite
two orders to that effect by the Court of Appeals. Moreover, petitioners had no cause to expect that
their application for bail would be granted as a matter of course precisely because it is a matter of
discretion. In fact, the filing of a notice of appeal effectively deprived the trial court of jurisdiction to
entertain the motion for bail pending appeal because appeal is perfected by the mere filing of such
notice. It has been held that trial courts would be well advised to leave the matter of bail, after
conviction for a lesser crime than the capital offense originally charged, to the appellate court's
sound discretion. 17

In any event, the instant petition has become moot. During the pendency of the petition in this Court,
the Court of Appeals in a Resolution, dated September 08, 1999 dismissed accused-appellant's
appeal, thus:

For failure to submit to this Court's jurisdiction pending appeal and conformable with this
Court's resolution of June 23, 1999, the appeal filed in this case is deemed ABANDONED
and DISMISSED pursuant to Section 8, Rule 128, 18 New Rules on Criminal Procedure.

The Regional Trial Court, Branch 64, Makati City is hereby ORDERED to issue warrants of
arrest for the immediate apprehension and service of sentence of accused ANICETO
SABBUN MAGUDDATU and LAUREANA SABBUN MAGUDDATU. 1âwphi1.nêt

SO ORDERED. 19
SECTION 14:

EN BANC

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1
The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern. 3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner. 4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation. 5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. 8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry. 9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino. 10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment 11 signed by 115 representatives, or more than
1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella. 12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding. 13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during
its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000. 15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading. 16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President. 18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion. 20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine. 22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government." 23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope. 26There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter: 31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice —
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001. 1âwphi1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government. 36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act. 41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178. 45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later. 46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et
al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December
4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio
with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the
petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting
documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic." 53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of

prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

 At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law. 55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question. 57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction. 60With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966. 66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
"… it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under
section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity
from suit. They also involve the correct calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that
"it is emphatically the province and duty of the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14 th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family. 83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace." 85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
– it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement." 89
The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.
 It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire." 92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency." 93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as it
may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to
render service for that would be a violation of his constitutional right. 94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII." 95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.
 If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS
A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;
 WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That the House of
Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following Tañada v.
Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to
which full discretionary authority has been delegated to the Legislative xxx branch of the
government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a
lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot
pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The
question is political in nature and addressed solely to Congress by constitutional fiat. It is a
political issue, which cannot be decided by this Court without transgressing the principle of
separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese
citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E.
Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila,
respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do
what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself." 105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:
 "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages," 106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong." 107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.
 Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez 111 that 'incumbent Presidents are immune
from suit or from being brought to court during the period of their incumbency and tenure" but not
beyond. Considering the peculiar circumstance that the impeachment process against the petitioner
has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a
condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in
the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan 112 and related
cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and
graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio." 119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel." 121 It maintained the Sandiganbayan as an anti-graft court. 122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy. 124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases. 125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat. 126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al., 129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must
be allegation and proof that the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at a bar, the records do not show that the
trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
 in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ
Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors.
Their long experience in criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they considered any extra-
record evidence except evidence properly adduced by the parties. The length of time the
investigation was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel
on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis
supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof. 131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors. 134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.
 Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms." 135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

EN BANC

G.R. No. 130663 March 20, 2001

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ANGELES STA. TERESA, appellant.

PANGANIBAN, J.:

In convicting an accused who has pleaded "guilty," the trial court should not be satisfied by his
admission of guilt of the crime charged. By the same token, the defense counsel is duty bound to
defend his client, protect his rights and fulfill the stringent standard set by the Constitution and the
Rules of Court on due process. For the rank failure of both the trial court and the defense counsel to
observe appellant's right to due process, this Court cannot affirm his conviction. A remand to the trial
court is thus in order.
1âwphi1.nêt

The Case
For automatic review by this Court is the Decision1 dated May 28, 1997 of the Regional Trial Court of
Cabanatuan City, Branch 27, finding Angeles Sta. Teresa guilty beyond reasonable doubt of raping
his 12-year old daughter and imposing upon him the supreme penalty of death. The decretal portion
of said Decision is worded as follows:

"WHEREFORE, premises considered, the Court finds, and so holds, that the accused
ANGELES STA. TERESA y PROTESTA is guilty beyond reasonable doubt of the crime of
[r]ape and hereby sentences him to suffer the penalty of DEATH, and for him to indemnify
the offended party in the amount of P50,000.00, as moral and exemplary damages, and to
pay the costs of this suit.

SO ORDERED."2

Upon a complaint filed by his daughter, Lorna Sta. Teresa, appellant was charged with rape on
March 10, 1997, in an Information which reads as follows:

"That sometime in the month of October, 1996, at Brgy. Soledad, Municipality of Sta. Rosa,
Province of Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design, and by means of force, violence and intimidation,
did then and there willfully, unlawfully and feloniously have carnal knowledge of his own
minor daughter LORNA STA. TERESA, who is about 12 years old, taking advantage of her
tender age and innocence, against her will and without her consent, to her damage and
prejudice.

CONTRARY TO LAW."3

When arraigned on May 7, 1997, appellant with the assistance of his counsel de oficio4 pleaded "not
guilty."5 But after the prosecution presented its witnesses -- Dr. Maria Lorraine De Guzman, medico-
legal officer, and the rape victim -- appellant, on May 16, 1997, withdrew his plea of "not guilty" and
changed it to a plea of "guilty."6 He said that he "had no intention to commit such act at the time but
because I was drunk, I was not on my right mind x x x."7He then asked that he be pardoned for his
deed.8

After such manifestation, the prosecution decided to dispense with the presentation of other
testimonial evidence and formally offered their exhibits to the trial court. When asked for comment by
the trial court, appellant's counsel de oficio responded, "[c]onsidering that the accused openly admits
his guilt, I am not anymore in a position to oppose the said formal offer of exhibits." 9

The trial court then admitted all the documentary exhibits offered by the prosecution without any
comment and/or objection from the defense counsel. It granted the motion of appellant to change his
plea to one of guilt. Thereafter, it re-read to the accused the complaint filed against him, interpreted it
and explained it in a language which he understood -- all these with the assistance of his counsel de
oficio.

The trial court then called appellant to the witness stand. There, he testified how the rape occurred.
After testifying, he asked for pardon and, if not forthcoming, then leniency because he was not in his
right mind and senses when the rape incident occurred. 10

The Facts

Version of the Prosecution

The solicitor general summarizes the evidence for the prosecution in this wise: 11

"One night in October 1996, appellant brought complainant, her [sic] daughter, in a hut
belonging to his cousin in Barangay Soledad, Sta. Rosa, Nueva Ecija. While she was
sleeping, she was awakened when she felt that someone was removing her short pants and
panties. She saw appellant. When he had disrobed her, appellant also removed his clothes.
Appellant inserted his penis into the vagina of complainant. Her private organ bled and she
felt something slippery come out of her organ.

"Complainant narrated to her employer Marites Eugenio that she was raped by her own
father. Eugenio accompanied complainant to the Paulino J. Garcia Memorial Research and
Medical Center, where she was examined by Dr. Ma. Lorraine de Guzman at about 2:20 p.m.
of February 28, 1997. Dr. de Guzman examined complainant and found in her organ,
'multiple old healed laceration at 3, 5, 6, and 9 o'clock.' The 'vaginal opening admits 1, 2
fingers easily'." (citations omitted)

Version of the Defense

On the other hand, appellant's version of the incident is as follows: 12

"1. The accused-appellant is a resident of Pasakaw, Camarines Sur. He has a wife by the
name of Virgie Sta. Teresa. They have five children. The complainant is the eldest.

"2. Sometime in October 1996, accused-appellant accompanied complainant to Nueva Ecija

to be employed as helper in the house of Marites Eugenio.

"3. While in Nueva Ecija, the accused-appellant temporarily resided at the hut owned by
accused-appellant's cousin situated in Soledad, Sta. Rosa, Nueva Ecija.

"4. One night sometime in October 1996, the accused-appellant got so drunk that he was not
conscious of what he was doing. He did not recognize who he was with. Out of instinct, he
made advances to make love with the person he was with who happened to be his daughter.
The complainant freely and voluntarily consented. She was over twelve (12) years old at that
time.

"5. The following day, the accused-appellant accompanied the complainant to the house of
Marites Eugenio situated [at] Barangay Burgos, Santa Rosa, Nueva Ecija to be employed as
helper."

Ruling of the Trial Court

The trial court, after evaluating the prosecution evidence and considering appellant's admission of
the crime, convicted him of rape and sentenced him to death. Wrote the trial judge: 13

"Therefore, after a careful evaluation of the evidence presented by the prosecution and the
defense, this Court is morally convinced, and so holds, that there is not a shred of doubt that
the prosecution's case was duly proven by direct evidence which taken collectively, in
essence and in all respects led to the logical conclusion that the accused is guilty beyond
reasonable doubt of the crime charged in the complaint. 1âwphi1.nêt
 "It is [a] tough task imposing the death penalty, and this Presiding Judge finds it not an easy
task to do so and is pained no end whenever the opportunity arises. While it is true that
humans should be compassionate of their fellows, the situation with judges, however,
requires of them to be discriminating in this regard. For, '[w]hile compassion is, in itself a
virtue, it cannot and should not replace justice under law, in this particular case, justice to the
victim.' It should be stressed here that our present society has long since advanced from that
dark age of man's history where might and brute force had ruled supreme and absolute. Our
present time is now ruled by law and moral persuasions; where the greater interest of the
greater number of people is held high in the balance of justice. x x x"

Thus, this automatic review before us.14

Issues

In his Brief, appellant submits that the court a quo committed the following errors:15

"I

The 'plea of guilty' made by the accused-appellant was qualified and conditional. Thus, the
court a quogravely erred in not entering a plea of not guilty for the accused-appellant and in
not affording the latter the opportunity to adduce controverting evidence in blatant violation of
his right to due process.

"II

The court a quo gravely erred in convicting the accused-appellant in spite of the material
inconsistencies and improbabilities that tainted the testimony of the private complainant.

"III

The court a quo gravely erred in convicting the accused-appellant in spite of the fact that the
testimony of the private complainant is contrary to the common knowledge and experience of
mankind.

"IV

The court a quo gravely erred in convicting the accused-appellant in spite of complainant's
failure to offer any resistance prior to and even during her alleged rape[.]"

The Court's Ruling

We find that the stringent constitutional standards impelled by due process have not been complied
with in the court a quo, thus necessitating the remand of this case for further proceedings.

First Issue:

Appellant's Qualified and Conditional Plea

The imposition of the death penalty obligates this Court to review closely the judgment of conviction,
not only on whether appellant committed the crime of rape against his own minor daughter, but also
whether his constitutional rights have been duly observed and protected before and during his trial.
As aforediscussed, appellant initially entered a plea of "not guilty." However, after the victim and the
medico-legal officer testified against him, his counsel de oficio manifested that his client wanted to
change his plea of "not guilty" to one of "guilty."

The trial judge then conducted an inquiry into the voluntariness of the change of plea and appellant's
full comprehension of its consequences. However, we believe that the trial judge fell short of the
exacting standards set forth in Section 3, Rule 116 of the Revised Rules of Criminal Procedure, as
follows:

SEC. 3. Plea of guilty to capital offense; reception of evidence. -- When the accused pleads
guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of his plea and shall require the prosecution to
prove his guilt and the precise degree of culpability. The accused may present evidence in
his behalf.

As can be gleaned from this Rule, the trial court must, if the accused pleads guilty to a capital
offense, first, conduct a searching inquiry into the voluntariness of the plea and the accused's full
comprehension of the consequences thereof; second, require the prosecution to present evidence to
prove the guilt of the accused and the precise degree of his culpability; and third, ask the accused if
he desires to present evidence on his behalf and allow him to do so if he desires.

The trial court asserts that it has conducted a searching inquiry into the voluntariness of his plea of
"guilty." We are not persuaded.

As explained in People v. Alicando,16 a searching inquiry occurs when the plea of guilt is based on a
free and informed judgment, focusing on the voluntariness of the plea and the full comprehension of
the consequences.

As shown in the records of the case, the trial court, after a brief exchange of remarks with appellant's
counsel de oficio, and finally with appellant himself, issued the following Order dated May 16, 1997,
or nine (9) days after the accused was initially arraigned, as follows: 17

"After the prosecution rested its case, the accused, instead of presenting defense evidence,
through his counsel de oficio Atty. Angelito Adriano, manifested that he is withdrawing his
former plea of not guilty to a plea of guilty.

"The Court granted said motion and the complaint was again read, interpreted and explained
to the accused in a language which he speaks and with the assistance of his counsel and he
pleaded guilty and said plea was accordingly entered into the records.

"Furthermore, he was called to the witness stand and he testified that all he wants is for her
[sic] daughter and the Court to pardon him and if the same is not possible, that leniency be
extended to him because he was only so drunk at the time of the incident and he was not
then on his right mind and senses.

xxx xxx x x x"

We hold that the abbreviated and aborted presentation of the prosecution evidence and appellant's
improvident plea of guilty, with the scanty and lackluster performance of his counsel de oficio, are
just too exiguous to accept as being the standard constitutional due process at work enough to snuff
out the life of a human being. As exemplified in People v. Bermas:18
 "x x x The right to counsel proceeds from the fundamental principle of due process which
basically means that a person must be heard before being condemned. The due process
requirement is a part of a person's basic rights; it is not a mere formality that may be
dispensed with or performed perfunctorily.

"The right to counsel must be more than just the presence of a lawyer in the courtroom or the
mere propounding of standard questions and objections. The right to counsel means that the
accused is amply accorded legal assistance extended by a counsel who commits himself to
the cause for the defense and acts accordingly. The right assumes an active involvement by
the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in
mind of the basic rights of the accused, his being well-versed on the case, and his knowing
the fundamental procedures, essential laws and existing jurisprudence. The right of an
accused to counsel finds substance in the performance by the lawyer of his sworn duty of
fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and
not a simple perfunctory representation."19

Using this standard, we believe that the defense counsel's conduct falls short of the commitment and
zeal required of him as appellant's attorney. Barely nine (9) days after appellant pleaded "not guilty"
to the crime charged, his counsel de oficio made a manifestation in open court that his client is
changing his plea to that of "guilty."

Considering the gravity of the offense charged and the finality of the penalty, we find Atty. Adriano's
performance as counsel de oficio utterly wanting. As a lawyer sworn to uphold justice and the law, he
had the bounden duty to exert utmost efforts to defend his client and protect his rights, no matter
how guilty or evil he appears to be. This duty becomes more compelling if his client is accused of a
grave crime and is in danger of forfeiting his life if he is convicted.

To buttress the lack of zeal shown in defending appellant, Atty. Adriano failed to appear during the
promulgation of the assailed RTC Decision. In fact, the trial judge appointed another counsel de
oficio, Atty. Bayani Dalangin, for the purpose of promulgating the aforesaid Decision. 20

As the proceedings in the court a quo failed to observe the exacting standards of constitutional due
process, we have no other choice but to remand the case to the court a quo for further and
appropriate proceedings conformably with what we have heretofore expressed. The other assigned
errors committed by the court a quo will no longer be addressed because of the order of remand.
During the remand proceedings, the trial court, the prosecutors and the defense counsel would be
well-advised to read and observe this Court's pronouncements in, among others, People v.
Bello,21 People v. Tizon,22 People v. Nadera Jr.,23 People v. Abapo,24 aside from People v.
Durango25 and People v. Bermas.26

WHEREFORE, the Decision dated May 28, 1997 of the Regional Trial Court of Cabanatuan City,
Branch 27, is hereby SET ASIDE and Criminal Case No. 7411 is remanded to it for further
proceedings, with all deliberate speed, in accordance with this Decision. 1âwphi1.nêt

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
G.R. No. 111682 February 6, 1997

ZENAIDA REYES, petitioner,

vs.
COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

RESOLUTION

This is a motion for reconsideration of the resolution dated November 29, 1995, of the Court,
denying the petition for review of the decision, dated May 28, 1993, and the resolution, dated August
30, 1993, of the Court of Appeals in CA-G.R. CR. No. 08410, affirming the conviction of petitioner
1

Zenaida P. Reyes of falsification of public document. Petitioner's motion is based on her contention
that because of her counsel's unexplained absences at the trial she was prevented from presenting
evidence in her defense and therefore denied the due process of law.

The facts are as follows:

In an information filed on April 7, 1986 with the Regional Trial Court of Bulacan and later assigned to
Branch 22 thereof as Criminal Case No. 9252-M, petitioner Zenaida Reyes was accused of falsifying
a deed of sale of four (4) parcels of land "by feigning and signing the name of Pablo Floro, who could
not affix his signature anymore due to age infirmity, on the said document as seller and causing it to
appear that said Pablo Floro [had] participated in the execution of the said document when in truth
and in fact, as said accused well knew, said deed of sale was not executed and signed by the said
Pablo Floro, nor did he ever appear before any notary public for the purpose of acknowledging the
deed above mentioned." 2

Upon being arraigned, petitioner pleaded not guilty. Trial on the merits then followed. After the
prosecution had rested its case, the presentation of the defense evidence was scheduled on
February 6, 1989, which, however, was reset "for the last time" to March 10, 1989 due to petitioner's
illness. The hearing on March 10, 1989 was, however, cancelled also because of the absence of
3

both the private prosecutor and defense counsel, Atty. Analuz Cristal-Tenorio. The new schedule was
April 12, 1989. However, Atty. Tenorio was again absent on April 12, 1989. Petitioner was also
4

absent, but her husband appeared and submitted to the court a medical certificate that she was sick.
The hearing on that date was therefore postponed to May 17, 1989 "[f]or the last time. " 5

On May 11, 1989, Atty. Tenorio moved for the postponement of the hearing from May 17, 1989 to
June 5, 1989, allegedly because she had to leave for Malaybalay, Bukidnon to assist in the
prosecution of her brother-in-law's killers. The trial court, while noting that the hearing on May 17,
1989 was "intransferrable in character," nonetheless granted Atty. Tenorio's motion and postponed
the hearing to June 5, 1989 over the objection of the private prosecutor. Petitioner was warned that if
she did not present her evidence on that date, she would be considered to have waived her right to
do so. But the hearing on June 5, 1989 had to be rescheduled again because petitioner's counsel,
6

Atty. Tenorio, was absent. 7

On July 10, 1989, the new date of hearing, both petitioner and Atty. Tenorio were absent, so that on
motion of private prosecutor, the court declared petitioner to have waived the right to present her
evidence. Four days later (on July 14, 1989), petitioner gave a medical certificate stating that she
8 9

was suffering from hypertension and rheumatism which required bed rest for at least 5-7 days. The
court merely noted the medical certificate but maintained its previous order, on the ground that "the
same is not a motion and [as] counsel was also not in Court during the last hearing, the Order of the
Court dated July 10, 1989 to the effect that the presentation of defense evidence is considered
waived, stands. " 10

Petitioner by herself moved for reconsideration, alleging that she failed to appear in court on July 10,
1989 because she was indisposed and had been unable to contact Atty. Tenorio. She asked for
permission to present her evidence. Her motion, however, was denied by the court in its order of
August 29, 1989 in which it also scheduled the promulgation of judgment on September 29, 1989.
11

On September 29, 1989, the court rendered its decision finding petitioner guilty of falsification and
12

sentencing her to 4 months of arresto mayor, as minimum, to 4 years and 2 months of prision
correccional, as maximum, and to pay a fine of P5,000.00.

Petitioner through a new counsel, Atty. Ronolfo S. Pasamba, filed a notice of appeal. On May 9,
13

1990, petitioner by herself filed a motion in the Court of Appeals for extension of 30 days to file her
brief as appellant. About the same time Atty. Pasamba also filed a motion for an extension of 45
14

days for the same purpose, but later asked to be relieved as petitioner's counsel on the ground that
despite his request, petitioner did not give him the records of the case and confer with him but
instead acted as her own counsel by filing her own motion for time to file brief.

The Court of Appeals granted Atty. Pasamba's motion and required petitioner to submit the name
and address of her new counsel within ten (10) days from notice. Petitioner instead filed a motion for
new trial in lieu of appellant's brief, claiming that because of the negligence of her counsel, she had
been deprived of her right to present evidence on her behalf in the trial court.

After the Solicitor General filed his comment, the Court of Appeals in its resolution dated January 15,
1992 denied petitioner's motion for new trial and gave her 30 days within which to file her appellant's
brief. The appellate court held:
15

All that appellant is invoking as ground for new trial is the policy of liberality in the
application of the rules and the alleged negligence of her counsel.

Appellant, who has, in fact, prepared the motion herself, without the assistance of
counsel, is probably a member of the Bar. If she is not, she must have gone through
law school as her handiwork is written in forensic style and is even better than the
pleadings of some licensed advocates who are handling appealed cases or original
special civil actions before this Court.

Under the Rules the grounds for new trial are

(a) That errors of law or irregularities have been

committed during the trial prejudicial to the substantial
nights of the accused; and

(b) That new and material evidence has been

discovered which the accused could not with
reasonable diligence have discovered and produced
at the trial, and which if introduced and admitted,
 would probably change the judgment. (Rule 121,
Section 2)

There is not even a wee bit of a hint about the second ground.

So, in effect, what the accused would want of Us is to bend over backwards and in a
gesture of liberality consider as an error of law or as an irregularity the trial court's
conclusion that she was deemed to have waived her right to present evidence in her
defense. In connection with this course of action she already filed before the trial
court a motion for reconsideration: this was denied, whereupon the trial court
proceeded to rendition of the judgment appealed from by the accused to this court.

We have meticulously gone over the entire record, and We find that accused
appellant was not at all deprived of her day in court or denied due process. She was
afforded ample opportunity to present evidence in her defense.

Regardless of the nature of the offense charged, a criminal case, even if it involves
only a light offense, the penalty for which might be mere censure, is a serious matter
that deserves equally serious attention by the one accused. The appellant, it seems
never gave to this case while it was still at the lower court the serious attention that it
deserves. For good reason — repeated absences of the accused and her counsel —
the trial court was eventually constrained to consider the accused to have waived the
presentation of evidence in her defense. As pointed out by the Solicitor General, it is
settled in our jurisprudence that dilatory moves by the accused that tend to defeat the
expeditious termination of a criminal case is tantamount to trifling with the
administration of justice that certainly can not and should not be condoned. (PP vs.
Angco, 103 Phil. 33; PP vs. Dichoso, 96 SCRA 957)

Petitioner filed a "very urgent motion" for 90 days from February 22, 1992 to secure services of
counsel to file her appellant's brief. The Court of Appeals gave petitioner 15 days from February 22,
1992, the last day of the extension previously granted her. The Court of Appeals stated that it had
given petitioner notice to file brief as early as March 27, 1990, but "petitioner has been trifling with
our judicial processes long enough."

On March 6, 1992, without the assistance of counsel, accused-appellant filed an appellant's brief.
Thereafter the Solicitor General filed the appellee's brief to which petitioner filed a reply brief. On
May 28, 1993, the Court of Appeals rendered its decision, affirming the trial court's ruling. On August
30, 1993 it denied reconsideration.

Petitioner filed this case for review on certiorari, claiming that her conviction by the trial court was
void because she was denied due process, since she was denied the opportunity to present
evidence in her behalf. The Solicitor General filed his comment to which petitioner filed a reply. On
November 29, 1995 this Court denied the petition for lack of merit. Hence this motion for
reconsideration.

After due consideration of the motion and its supplement and the separate comments thereto by the
respondents as well as petitioner's replies and private respondent's consolidated rejoinder, the Court
now resolves to grant petitioner's motion for reconsideration.

First. The issue in this case is whether the trial court properly held petitioner to have waived the right
to present evidence because of her failure to proceed despite several postponements granted to her.
To be sure, the postponement of the trial of a case to allow the presentation of evidence of a party is
a matter which lies in the discretion of the trial court, but it is a discretion which must be exercised
wisely, considering the peculiar circumstances obtaining in each case and with a view to doing
substantial justice. In the case at bar, hearings were scheduled for die presentation of petitioner's
16

evidence on six different dates, to wit: (1) February 6, 1989; (2) March 10, 1989; (3) April 12, 1989;
(4) May 17, 1989; (5) June 5, 1989; and (6) July 10, 1989. Petitioner was absent thrice, i.e., on
February 6, 1989, April 12, 1989, and July 10, 1989. On the first date, petitioner could not come
because she was sick and her counsel so informed the court. She was absent also on June 5, 1989
and July 10, 1989 because of illness (hypertension and rheumatism). Thus, while petitioner's
absences were explained, those of her counsel were not. Atty. Tenorio simply disappeared without a
trace, despite warning to counsel that her failure to present evidence for her client on June 5, 1989
would be considered a waiver of the latter's right to present her evidence. But counsel failed to heed
the warning. Petitioner had to soldier on and, by herself, had to plead with the court for a chance to
present her evidence. Contrary to what the appellate court thought in affirming petitioner's
conviction, this was not the case of a woman who treated the criminal proceedings against her with
cavalier disdain. Indeed, we do not think that petitioner's absences were so many, capricious, or
egregious as to indubitably indicate an attempt to stall the proceedings of the criminal case as was
the case in People v. Angco and People v. Dichoso. Petitioner might have tried to delay the filing
17 18

of her appellant's brief, but her effort can be attributed to an understandable desire to be allowed to
present her evidence. Hence, the filing of a motion for new trial. Even in her present petition before
this Court petitioner's prayer is not that she be exonerated but only that she be given the chance to
prove her innocence by being allowed to present her evidence.

Respondent People and the counsel for the private respondent oppose petitioner's motion. They
point out that, unlike the cases which petitioner cites in support of her motion, petitioner herself was
19

negligent. They contend that she could not have been unaware of the absences of her lawyer but
despite that she did nothing to protect her interests. Private respondent argues that "if granted a
second chance to present her side, nothing will stop the petitioner from once again engaging the
services of her erstwhile absentee counsel. Anyway, after another 10 years of litigation, she can
easily sound her reliable refrain: 'I was denied due process! I was ready to present my evidence, but
my lawyer was absent for five consecutive times'. . . ."

Private respondent's contention is exaggerated. Of course there is a limit to petitioner's credibility

should she repeat what had happened here just for delay, not to mention that she would be taking a
big risk of losing her defense. As for the private respondent's argument that petitioner should have
gotten another lawyer, only with the benefit of hindsight does this course appear to be the only
tenable one to take. Petitioner might have thought that her counsel would be more sedulous in her
behalf. Or perhaps petitioner tried to get another counsel, but failed and, left with no choice, stuck it
out with Atty. Tenorio and simply hoped for the best rather than be left without a counsel. In any
case, the fact that on May 17, 1989 and June 5, 1989 petitioner was present even when counsel
was absent tends to negate an intention to delay the criminal proceedings.

It was Atty. Tenorio's absences, then, rather than petitioner's, which appear to be the cause for the
defense's failure to present its evidence. Atty. Tenorio's negligence did not consist in error of
procedure or even a lapse in strategy but something as basic as failing to appear in court despite
clear warning that such failure would amount to waiver of her client's right to present evidence in her
defense.

Keeping in mind that this case involves personal liberty, the negligence of counsel was certainly so
gross that it should not be allowed to prejudice petitioner's constitutional right to be heard. The
judicial conscience certainly cannot rest easy on a conviction based solely on the evidence of the
prosecution just because the presentation of the defense evidence had been barred by technicality.
Rigid application of rules must yield to the duty of courts to render justice where justice is due — to
secure to every individual all possible legal means to prove his innocence of a crime with which he
or she might be
charged. 20

Only last year, this Court set aside its decision after finding that the right of the accused to due
process had been violated. In De Guzman v. Sandiganbayan, this Court set aside its decision
21

affirming petitioner's conviction by the Sandiganbayan and its resolution denying reconsideration,
after being shown that petitioner's conviction had been brought about by his counsel's gross
ignorance of law and procedure. The Court held:

Petitioner's present dilemma is certainly not something reducible to pesos and

centavos. No less than his liberty is at stake here. And he is just about to lose it
simply because his former lawyers pursued a carelessly contrived procedural
strategy of insisting on what has already become an imprudent remedy, which thus
forbade petitioner from offering his evidence all the while available for presentation
before the Sandiganbayan. Under the circumstances, higher interests of justice and
equity demand that petitioner be not penalized for the costly importunings of his
previous lawyers based on the same principles why this Court had, on many
occasions where it granted new trial, excused parties from the negligence or
mistakes of counsel. To cling to the general rule in this case is only to condone rather
than rectify a serious injustice to petitioners whose only fault was to repose his faith
and entrust his innocence to his previous lawyers. . . .

The Court remanded the case to the Sandiganbayan for reception and appreciation of petitioner's
evidence.

In another case, People v. Del Mundo, in which the accused was convicted of rape in six cases
22

and sentenced to reclusion perpetua on five of them and to death on the sixth, this Court ordered a
new trial after it was shown that complainant had executed prior to accused's conviction an affidavit
of desistance, while an NBI medico-legal report given after such conviction found that complainant's
"physical virginity preserved." The report belied the contrary finding of the city health officer on which
the trial court relied in convicting the accused. Although the NBI report did not constitute newly-
discovered evidence, a new trial was nonetheless ordered "on the broader ground of substantial
justice [as] the rule for granting a motion for new trial, among others, should be liberally construed to
assist the parties in obtaining a just and speedy determination of their rights. . . . Court litigations are
primarily for the search for truth, and a liberal interpretation of the rules by which both parties are
given the fullest opportunity to adduce proofs is the best way to ferret out such truth."

Reconsideration of the resolution in this case is compelled by these precedents. Indeed, to deny
petitioner the opportunity to present her evidence on the merest chance that she might be innocent
would be to disregard the wisdom that it is better to acquit ten guilty individuals than to convict one
innocent person. The Court is as aware as anyone of the need for the speedy disposition of cases.
At the same time, however, it has ever been mindful of its responsibility as the highest tribunal of
justice to see to it that the paramount interests of justice are not sacrificed for the sake of speed and
efficiency. As Justice Teehankee wrote: 23

The Court has consistently maintained that although a speedy determination of an

action implies a speedy trial, speed is not the chief objective of a trial. Careful and
deliberate consideration for the administration of justice, a genuine respect for the
rights of all parties and the requirements of procedural due process and an
adherence to the Court's standing admonition that the discretion granted judges in
the granting or denial of motions for postponement and the setting aside of denial
 orders previously issued "should always be predicated on the consideration that
more than the mere convenience of the courts or of the parties in the case, the ends
of justice and fairness would be served thereby" are more important than a race to
end the trial.

Second. In denying petitioner's plea for a chance to present her evidence, the Court of Appeals
observed that petitioner has more than a layman's acquaintance with the law, having been able to
prepare and file her own motion for new trial and appellant's brief, to be given the benefit of the
doubt. But even lawyers, who are parties in a case, need the guiding hand of counsel. Skill in
drafting pleadings (which is practically the only "lawyerly" thing petitioner did) is vastly different from
skill needed in the courtroom. Preparing pleadings can be done at leisure with the luxury of
consultation, either of books or of people. Trial work, however, demands more. It requires the ability
to think fast on one's feet and the psychologist's feel for the witness' mood and motive. As then Chief
Justice Moran said for the Court in People v. Holgado: 24

Even the most intelligent or educated man may have no skill in the science of the
law, particularly in the rules of procedure, and, without counsel, he may be convicted
not because he is guilty but because he does not know how to establish his
innocence.

It is entirely probable that, forced to be her own lawyer, petitioner nonetheless felt some inadequacy
and experienced some moments of doubt whether she could go through the ordeal of presenting her
evidence by her lonesome, and that could be the reason why she hesitated from doing so when she
found herself without the assistance of counsel and not because petitioner tried to delay the
proceedings and obstruct the course of justice.

In sum, it is better to allow petitioner another chance to present her evidence than to let her
conviction stand based solely on the evidence of the prosecution. In accordance with Rule 121,
§6, the evidence of the prosecution shall be understood preserved, subject to the right of the
25

prosecution to supplement it and/or to rebut the evidence which petitioner may present.

WHEREFORE, the motion for reconsideration of the resolution of November 29, 1995 is GRANTED
and the decision dated May 28, 1993 of the Court of Appeals and that of the Regional Trial Court of
Bulacan, Branch 22 dated September 29, 1989 in Criminal Case No. 9252-M are SET ASIDE and
this case is REMANDED to the Regional Trial Court of Bulacan for a new trial for the purpose of
allowing petitioner to present evidence in her defense with directive to the court thereafter to decide
the case with all deliberate speed.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 111682 February 6, 1997

ZENAIDA REYES, petitioner,
vs.
COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

RESOLUTION

This is a motion for reconsideration of the resolution dated November 29, 1995, of the Court,
denying the petition for review of the decision, dated May 28, 1993, and the resolution, dated August
30, 1993, of the Court of Appeals in CA-G.R. CR. No. 08410, affirming the conviction of petitioner
1

Zenaida P. Reyes of falsification of public document. Petitioner's motion is based on her contention
that because of her counsel's unexplained absences at the trial she was prevented from presenting
evidence in her defense and therefore denied the due process of law.

The facts are as follows:

In an information filed on April 7, 1986 with the Regional Trial Court of Bulacan and later assigned to
Branch 22 thereof as Criminal Case No. 9252-M, petitioner Zenaida Reyes was accused of falsifying
a deed of sale of four (4) parcels of land "by feigning and signing the name of Pablo Floro, who could
not affix his signature anymore due to age infirmity, on the said document as seller and causing it to
appear that said Pablo Floro [had] participated in the execution of the said document when in truth
and in fact, as said accused well knew, said deed of sale was not executed and signed by the said
Pablo Floro, nor did he ever appear before any notary public for the purpose of acknowledging the
deed above mentioned." 2

Upon being arraigned, petitioner pleaded not guilty. Trial on the merits then followed. After the
prosecution had rested its case, the presentation of the defense evidence was scheduled on
February 6, 1989, which, however, was reset "for the last time" to March 10, 1989 due to petitioner's
illness. The hearing on March 10, 1989 was, however, cancelled also because of the absence of
3

both the private prosecutor and defense counsel, Atty. Analuz Cristal-Tenorio. The new schedule was
April 12, 1989. However, Atty. Tenorio was again absent on April 12, 1989. Petitioner was also
4

absent, but her husband appeared and submitted to the court a medical certificate that she was sick.
The hearing on that date was therefore postponed to May 17, 1989 "[f]or the last time. " 5

On May 11, 1989, Atty. Tenorio moved for the postponement of the hearing from May 17, 1989 to
June 5, 1989, allegedly because she had to leave for Malaybalay, Bukidnon to assist in the
prosecution of her brother-in-law's killers. The trial court, while noting that the hearing on May 17,
1989 was "intransferrable in character," nonetheless granted Atty. Tenorio's motion and postponed
the hearing to June 5, 1989 over the objection of the private prosecutor. Petitioner was warned that if
she did not present her evidence on that date, she would be considered to have waived her right to
do so. But the hearing on June 5, 1989 had to be rescheduled again because petitioner's counsel,
6

Atty. Tenorio, was absent. 7

On July 10, 1989, the new date of hearing, both petitioner and Atty. Tenorio were absent, so that on
motion of private prosecutor, the court declared petitioner to have waived the right to present her
evidence. Four days later (on July 14, 1989), petitioner gave a medical certificate stating that she
8 9

was suffering from hypertension and rheumatism which required bed rest for at least 5-7 days. The
court merely noted the medical certificate but maintained its previous order, on the ground that "the
same is not a motion and [as] counsel was also not in Court during the last hearing, the Order of the
Court dated July 10, 1989 to the effect that the presentation of defense evidence is considered
waived, stands. " 10

Petitioner by herself moved for reconsideration, alleging that she failed to appear in court on July 10,
1989 because she was indisposed and had been unable to contact Atty. Tenorio. She asked for
permission to present her evidence. Her motion, however, was denied by the court in its order of
August 29, 1989 in which it also scheduled the promulgation of judgment on September 29, 1989.
11

On September 29, 1989, the court rendered its decision finding petitioner guilty of falsification and
12

sentencing her to 4 months of arresto mayor, as minimum, to 4 years and 2 months of prision
correccional, as maximum, and to pay a fine of P5,000.00.

Petitioner through a new counsel, Atty. Ronolfo S. Pasamba, filed a notice of appeal. On May 9,
13

1990, petitioner by herself filed a motion in the Court of Appeals for extension of 30 days to file her
brief as appellant. About the same time Atty. Pasamba also filed a motion for an extension of 45
14

days for the same purpose, but later asked to be relieved as petitioner's counsel on the ground that
despite his request, petitioner did not give him the records of the case and confer with him but
instead acted as her own counsel by filing her own motion for time to file brief.

The Court of Appeals granted Atty. Pasamba's motion and required petitioner to submit the name
and address of her new counsel within ten (10) days from notice. Petitioner instead filed a motion for
new trial in lieu of appellant's brief, claiming that because of the negligence of her counsel, she had
been deprived of her right to present evidence on her behalf in the trial court.

After the Solicitor General filed his comment, the Court of Appeals in its resolution dated January 15,
1992 denied petitioner's motion for new trial and gave her 30 days within which to file her appellant's
brief. The appellate court held:
15

All that appellant is invoking as ground for new trial is the policy of liberality in the
application of the rules and the alleged negligence of her counsel.

Appellant, who has, in fact, prepared the motion herself, without the assistance of
counsel, is probably a member of the Bar. If she is not, she must have gone through
law school as her handiwork is written in forensic style and is even better than the
pleadings of some licensed advocates who are handling appealed cases or original
special civil actions before this Court.

Under the Rules the grounds for new trial are

(a) That errors of law or irregularities have been

committed during the trial prejudicial to the substantial
nights of the accused; and

(b) That new and material evidence has been

discovered which the accused could not with
reasonable diligence have discovered and produced
at the trial, and which if introduced and admitted,
would probably change the judgment. (Rule 121,
Section 2)

There is not even a wee bit of a hint about the second ground.
 So, in effect, what the accused would want of Us is to bend over backwards and in a
gesture of liberality consider as an error of law or as an irregularity the trial court's
conclusion that she was deemed to have waived her right to present evidence in her
defense. In connection with this course of action she already filed before the trial
court a motion for reconsideration: this was denied, whereupon the trial court
proceeded to rendition of the judgment appealed from by the accused to this court.

We have meticulously gone over the entire record, and We find that accused
appellant was not at all deprived of her day in court or denied due process. She was
afforded ample opportunity to present evidence in her defense.

Regardless of the nature of the offense charged, a criminal case, even if it involves
only a light offense, the penalty for which might be mere censure, is a serious matter
that deserves equally serious attention by the one accused. The appellant, it seems
never gave to this case while it was still at the lower court the serious attention that it
deserves. For good reason — repeated absences of the accused and her counsel —
the trial court was eventually constrained to consider the accused to have waived the
presentation of evidence in her defense. As pointed out by the Solicitor General, it is
settled in our jurisprudence that dilatory moves by the accused that tend to defeat the
expeditious termination of a criminal case is tantamount to trifling with the
administration of justice that certainly can not and should not be condoned. (PP vs.
Angco, 103 Phil. 33; PP vs. Dichoso, 96 SCRA 957)

Petitioner filed a "very urgent motion" for 90 days from February 22, 1992 to secure services of
counsel to file her appellant's brief. The Court of Appeals gave petitioner 15 days from February 22,
1992, the last day of the extension previously granted her. The Court of Appeals stated that it had
given petitioner notice to file brief as early as March 27, 1990, but "petitioner has been trifling with
our judicial processes long enough."

On March 6, 1992, without the assistance of counsel, accused-appellant filed an appellant's brief.
Thereafter the Solicitor General filed the appellee's brief to which petitioner filed a reply brief. On
May 28, 1993, the Court of Appeals rendered its decision, affirming the trial court's ruling. On August
30, 1993 it denied reconsideration.

Petitioner filed this case for review on certiorari, claiming that her conviction by the trial court was
void because she was denied due process, since she was denied the opportunity to present
evidence in her behalf. The Solicitor General filed his comment to which petitioner filed a reply. On
November 29, 1995 this Court denied the petition for lack of merit. Hence this motion for
reconsideration.

After due consideration of the motion and its supplement and the separate comments thereto by the
respondents as well as petitioner's replies and private respondent's consolidated rejoinder, the Court
now resolves to grant petitioner's motion for reconsideration.

First. The issue in this case is whether the trial court properly held petitioner to have waived the right
to present evidence because of her failure to proceed despite several postponements granted to her.
To be sure, the postponement of the trial of a case to allow the presentation of evidence of a party is
a matter which lies in the discretion of the trial court, but it is a discretion which must be exercised
wisely, considering the peculiar circumstances obtaining in each case and with a view to doing
substantial justice. In the case at bar, hearings were scheduled for die presentation of petitioner's
16

evidence on six different dates, to wit: (1) February 6, 1989; (2) March 10, 1989; (3) April 12, 1989;
(4) May 17, 1989; (5) June 5, 1989; and (6) July 10, 1989. Petitioner was absent thrice, i.e., on
February 6, 1989, April 12, 1989, and July 10, 1989. On the first date, petitioner could not come
because she was sick and her counsel so informed the court. She was absent also on June 5, 1989
and July 10, 1989 because of illness (hypertension and rheumatism). Thus, while petitioner's
absences were explained, those of her counsel were not. Atty. Tenorio simply disappeared without a
trace, despite warning to counsel that her failure to present evidence for her client on June 5, 1989
would be considered a waiver of the latter's right to present her evidence. But counsel failed to heed
the warning. Petitioner had to soldier on and, by herself, had to plead with the court for a chance to
present her evidence. Contrary to what the appellate court thought in affirming petitioner's
conviction, this was not the case of a woman who treated the criminal proceedings against her with
cavalier disdain. Indeed, we do not think that petitioner's absences were so many, capricious, or
egregious as to indubitably indicate an attempt to stall the proceedings of the criminal case as was
the case in People v. Angco and People v. Dichoso. Petitioner might have tried to delay the filing
17 18

of her appellant's brief, but her effort can be attributed to an understandable desire to be allowed to
present her evidence. Hence, the filing of a motion for new trial. Even in her present petition before
this Court petitioner's prayer is not that she be exonerated but only that she be given the chance to
prove her innocence by being allowed to present her evidence.

Respondent People and the counsel for the private respondent oppose petitioner's motion. They
point out that, unlike the cases which petitioner cites in support of her motion, petitioner herself was
19

negligent. They contend that she could not have been unaware of the absences of her lawyer but
despite that she did nothing to protect her interests. Private respondent argues that "if granted a
second chance to present her side, nothing will stop the petitioner from once again engaging the
services of her erstwhile absentee counsel. Anyway, after another 10 years of litigation, she can
easily sound her reliable refrain: 'I was denied due process! I was ready to present my evidence, but
my lawyer was absent for five consecutive times'. . . ."

Private respondent's contention is exaggerated. Of course there is a limit to petitioner's credibility

should she repeat what had happened here just for delay, not to mention that she would be taking a
big risk of losing her defense. As for the private respondent's argument that petitioner should have
gotten another lawyer, only with the benefit of hindsight does this course appear to be the only
tenable one to take. Petitioner might have thought that her counsel would be more sedulous in her
behalf. Or perhaps petitioner tried to get another counsel, but failed and, left with no choice, stuck it
out with Atty. Tenorio and simply hoped for the best rather than be left without a counsel. In any
case, the fact that on May 17, 1989 and June 5, 1989 petitioner was present even when counsel
was absent tends to negate an intention to delay the criminal proceedings.

It was Atty. Tenorio's absences, then, rather than petitioner's, which appear to be the cause for the
defense's failure to present its evidence. Atty. Tenorio's negligence did not consist in error of
procedure or even a lapse in strategy but something as basic as failing to appear in court despite
clear warning that such failure would amount to waiver of her client's right to present evidence in her
defense.

Keeping in mind that this case involves personal liberty, the negligence of counsel was certainly so
gross that it should not be allowed to prejudice petitioner's constitutional right to be heard. The
judicial conscience certainly cannot rest easy on a conviction based solely on the evidence of the
prosecution just because the presentation of the defense evidence had been barred by technicality.
Rigid application of rules must yield to the duty of courts to render justice where justice is due — to
secure to every individual all possible legal means to prove his innocence of a crime with which he
or she might be
charged. 20
Only last year, this Court set aside its decision after finding that the right of the accused to due
process had been violated. In De Guzman v. Sandiganbayan, this Court set aside its decision
21

affirming petitioner's conviction by the Sandiganbayan and its resolution denying reconsideration,
after being shown that petitioner's conviction had been brought about by his counsel's gross
ignorance of law and procedure. The Court held:

Petitioner's present dilemma is certainly not something reducible to pesos and

centavos. No less than his liberty is at stake here. And he is just about to lose it
simply because his former lawyers pursued a carelessly contrived procedural
strategy of insisting on what has already become an imprudent remedy, which thus
forbade petitioner from offering his evidence all the while available for presentation
before the Sandiganbayan. Under the circumstances, higher interests of justice and
equity demand that petitioner be not penalized for the costly importunings of his
previous lawyers based on the same principles why this Court had, on many
occasions where it granted new trial, excused parties from the negligence or
mistakes of counsel. To cling to the general rule in this case is only to condone rather
than rectify a serious injustice to petitioners whose only fault was to repose his faith
and entrust his innocence to his previous lawyers. . . .

The Court remanded the case to the Sandiganbayan for reception and appreciation of petitioner's
evidence.

In another case, People v. Del Mundo, in which the accused was convicted of rape in six cases
22

and sentenced to reclusion perpetua on five of them and to death on the sixth, this Court ordered a
new trial after it was shown that complainant had executed prior to accused's conviction an affidavit
of desistance, while an NBI medico-legal report given after such conviction found that complainant's
"physical virginity preserved." The report belied the contrary finding of the city health officer on which
the trial court relied in convicting the accused. Although the NBI report did not constitute newly-
discovered evidence, a new trial was nonetheless ordered "on the broader ground of substantial
justice [as] the rule for granting a motion for new trial, among others, should be liberally construed to
assist the parties in obtaining a just and speedy determination of their rights. . . . Court litigations are
primarily for the search for truth, and a liberal interpretation of the rules by which both parties are
given the fullest opportunity to adduce proofs is the best way to ferret out such truth."

Reconsideration of the resolution in this case is compelled by these precedents. Indeed, to deny
petitioner the opportunity to present her evidence on the merest chance that she might be innocent
would be to disregard the wisdom that it is better to acquit ten guilty individuals than to convict one
innocent person. The Court is as aware as anyone of the need for the speedy disposition of cases.
At the same time, however, it has ever been mindful of its responsibility as the highest tribunal of
justice to see to it that the paramount interests of justice are not sacrificed for the sake of speed and
efficiency. As Justice Teehankee wrote: 23

The Court has consistently maintained that although a speedy determination of an

action implies a speedy trial, speed is not the chief objective of a trial. Careful and
deliberate consideration for the administration of justice, a genuine respect for the
rights of all parties and the requirements of procedural due process and an
adherence to the Court's standing admonition that the discretion granted judges in
the granting or denial of motions for postponement and the setting aside of denial
orders previously issued "should always be predicated on the consideration that
more than the mere convenience of the courts or of the parties in the case, the ends
of justice and fairness would be served thereby" are more important than a race to
end the trial.
Second. In denying petitioner's plea for a chance to present her evidence, the Court of Appeals
observed that petitioner has more than a layman's acquaintance with the law, having been able to
prepare and file her own motion for new trial and appellant's brief, to be given the benefit of the
doubt. But even lawyers, who are parties in a case, need the guiding hand of counsel. Skill in
drafting pleadings (which is practically the only "lawyerly" thing petitioner did) is vastly different from
skill needed in the courtroom. Preparing pleadings can be done at leisure with the luxury of
consultation, either of books or of people. Trial work, however, demands more. It requires the ability
to think fast on one's feet and the psychologist's feel for the witness' mood and motive. As then Chief
Justice Moran said for the Court in People v. Holgado: 24

Even the most intelligent or educated man may have no skill in the science of the
law, particularly in the rules of procedure, and, without counsel, he may be convicted
not because he is guilty but because he does not know how to establish his
innocence.

It is entirely probable that, forced to be her own lawyer, petitioner nonetheless felt some inadequacy
and experienced some moments of doubt whether she could go through the ordeal of presenting her
evidence by her lonesome, and that could be the reason why she hesitated from doing so when she
found herself without the assistance of counsel and not because petitioner tried to delay the
proceedings and obstruct the course of justice.

In sum, it is better to allow petitioner another chance to present her evidence than to let her
conviction stand based solely on the evidence of the prosecution. In accordance with Rule 121,
§6, the evidence of the prosecution shall be understood preserved, subject to the right of the
25

prosecution to supplement it and/or to rebut the evidence which petitioner may present.

WHEREFORE, the motion for reconsideration of the resolution of November 29, 1995 is GRANTED
and the decision dated May 28, 1993 of the Court of Appeals and that of the Regional Trial Court of
Bulacan, Branch 22 dated September 29, 1989 in Criminal Case No. 9252-M are SET ASIDE and
this case is REMANDED to the Regional Trial Court of Bulacan for a new trial for the purpose of
allowing petitioner to present evidence in her defense with directive to the court thereafter to decide
the case with all deliberate speed.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 124097 June 17, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARLOS BONGHANOY, accused-appellant.
ROMERO, J.:

The case at hand is an unwelcome addition to the numerous cases of rape involving the young and
innocent, appallingly aggravated by the close kinship between the offender and the victim.

On July 26, 1994, an information for rape was filed against the accused-appellant Carlos
Bonghanoy, as follows:

The undersigned Asst. Provincial Prosecutor, on complaint of the offended party

Baby Jane de Guzman y Bonghanoy, assisted by her mother, accuses Carlos
Bonghanoy y Agrabiador alias "Caloy" of the crime of rape, penalized under the
provisions of Art. 335 of the Revised Penal Code, committed as follows:

That on or about the 28th day of June, 1994, in the municipality of San Jose Del
Monte, province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the said accused Carlos Bonghanoy y Agrabiador alias "Caloy" armed with
stone, did then and there wilfully, unlawfully and feloniously, by means of force,
threats and intimidation and with lewd designs, have carnal knowledge of said
offended party against her will, a minor who is (sic) fourteen (14) years old.

Contrary to the law. 1

Upon his arraignment, accused-appellant pleaded not guilty. Trial thereafter ensued, with the
prosecution presenting the victim Baby Jane, her mother, and the medico-legal officer who examined
her. Based on her testimonies, the prosecution evidence runs as follows:

Baby Jane, a 14-year old second year high school student, is the niece of the accused-appellant, the
latter being the younger brother of Baby Jane's mother. at 7:00 in the evening of June 28, 1994,
accused-appellant went to Baby Jane's house at San Jose del Monte, Bulacan, asking permission
from her parents to have her brother Jovy accompany him in looking for his wife. Jovy was, however,
busy with his homework, prompting accused-appellant to ask Baby Jane's parents to allow Baby
Jane to accompany him instead. On the assurance that they would be gone for only a short while,
Baby Jane's parents agreed.

Accused-appellant and Babay Jane went to the residence of the former's parent-in-law only to find
out the accused-appellant's wife had already left. The two proceeded to accused-appellant's
paramour who, being sick, did not want to talk to accused-appellant. As a result, accused-appellant
decided to go instead to Area D to look for his wife. On the way to Area D, accused-appellant told
Baby Jane that they would take a short cut at the San Jose Elementary School.

As the two were passing the elementary school, accused-appellant stopped and said that they
should take a rest. Baby Jane demurred, saying she still had some assignments to finish. At this
point, accused-appellant seized Baby Jane by her t-shirt and dragged her inside the elementary
school compound. Grabbing a big rock, he warned Baby Jane not to scream, otherwise he would hit
her with it. Accused-appellant inserted his middle finger inside Baby Jane genitalia, moving it in and
out. At the same time, accused-appellant began fondling Baby Jane's breast. This went on for thirty
minutes after which accused-appellant mounted Baby Jane and inserted his penis inside her.
Simultaneously, accused-appellant sucked on Baby Jane's breast, and even left a kiss mark on her
neck. Baby Jane felt great pain when accused-appellant inserted his organ inside her.
His lechery slaked, accused-appellant told Baby Jane to get dressed. Not unexpectedly, he also
warned Baby Jane not to tell her parents what had transpired, threatening to kill them all should she
do so. The two arrived at Baby Jane's home at around 11 o'clock in the evening. Accused-appellant
told Baby Jane's parents that they had gone to Area D. Baby Jane changed her clothes, her pants
and t-shirt being bloodied. Her parents, however, did not notice the unusual appearance of her
clothing.

It was only early the following morning when Baby Jane related to her mother that she had been
raped by her uncle the previous evening. Not knowing what to do, Baby Jane's mother conferred
with a municipal counselor, who advised her to report the matter to the 145th Police Station of the
Southern Bulacan Police District Command. Upon reporting the matter to the police, Baby Jane was
brought to the Sapang Palay Hospital for the standard medical exam. The hospital, however, lacked
the necessary facilities, hence, Baby Jane was transferred to the Camp Crame Hospital where a
medico-legal officer of the PNP Crime Laboratory conducted a medical examination on her.

The medical examination revealed that Baby Jane had suffered a compound hymenal laceration at
the 6 o'clock position extending beyond the entire width of the hymen to the perineum just above the
anal opening. The medico-legal officer found this laceration to be compatible with recent loss of
virginity. On cross-examination, the medico-legal officer testified that the hymenal laceration could
not have been self-inflicted unless such a person was insane, a compound laceration being
excruciating painful.

In his defense, accused-appellant denied the charge hurled against him, claiming that on June 28,
1994, he had drinking spree with his friends Rolando Gonzales, Edwin Petilla, a certain Casaway,
and his brother Abundio Bonghanoy from 5:00 p.m. to 12 o'clock midnight. Accused-appellant
testified that he could not have raped his niece on that date, having fallen asleep after consuming
three to four bottles of gin mixed with 100 ccs. of a prohibited drug. Accused-appellant attributed the
filing of charges against him to jealousy on the part of Baby Jane's mother, allegedly because their
other brothers and sisters, in giving material things, gave him preferential treatment over Baby
Jane's mother.

In support of his testimony, accused-appellant presented one of his alleged drinking partners on
June 28, 1994, Balvino Alingas, the husband of one of his sisters. Alingas testified that he drank with
accused-appellant from 5:00 p.m. until the time he left at 12:00 midnight, with accused-appellant
lying on the floor dead drunk.

On March 14, 1996, the trial court rendered a decision finding accused-appellant guilty of the crime
of rape. Noting that the incident took place on June 28, 1994, after the effectively of Republic Act No.
7659, known as "The Heinous Crimes Law," with the victim a minor below eighteen years of age and
the accused-appellant her relative by consanguinity within the third civil degree, the court a
quo imposed the supreme penalty of death. Hence, this automatic review pursuant to Article 47 of
the Revised Penal Code, as amended by Section 22 of the Republic Act No. 7659, and Sections 3(e)
and 10, Rule 122 of the Revised Rules of Court.

Accused-appellant raised the following errors:

1. THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE

TESTIMONY OF DEFENSE'S WITNESSES THAT HE DID NOT COMMIT
THE CRIME CHARGED.

2. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED AND

IMPOSING THE DEATH PENALTY DESPITE THE FACT THAT THE
 CRIMINAL INFORMATION FILED AGAINST THE ACCUSED DID NOT
ALLEGE RELATIONSHIP AS AN ELEMENT OF THE OFFENSE CHARGED;

3. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED AND

IMPOSING THE DEATH PENALTY DESPITE THE LACK OF EVIDENCE OF
THE AGE OF THE ALLEGED VICTIM AT THE TIME OF THE COMMISSION
OF THE ALLEGED RAPE;

4. THE DECISION OF THE LOWER COURT FELL SHORT OF THE

CONSTITUTIONAL REQUIREMENT THAT "NO DECISION SHALL BE
RENDERED BY ANY COURT WITHOUT EXPRESSING THEREIN
CLEARLY AND DISTINCTLY THE FACTS AND THE LAW ON WHICH IT IS
BASED." (ART. VIII, SECTION 14, 1987 CONSTITUTIONAL.

It is a cardinal principle in rape cases that the accused may be convicted solely on the testimony of
the victim, provided such testimony is credible, natural, convincing and consistent with human nature
and the normal course of things. This is so because by its very nature, rape is committed with the
least possibility of being seen by the public.2

After a conscientious review of the records and an objective evaluation of the evidence, we agree
with the lower court that the charge of rape against accused-appellant was proven beyond
reasonable doubt. Baby Jane gave her testimony in a direct, positive and categorical manner. During
her cross-examination, she never wavered in her assertion that accused-appellant sexually abused
her. Baby Jane's narration palpably bears the earmarks of truth and is in accord with the material
points involved. When the testimony of rape victim is simple and straightforward, unshaken by a rigid
cross-examination and unflawed by any inconsistency or contradiction, as in the present case, the
same must be given full faith and credit. 3

We also note that Baby Jane was only fourteen years old at the time she was raped by accused-
appellant. No young and decent Filipina would publicly admit that she was ravished and her honor
tainted unless the same was true, for it would be instinctive on her part to protect her honor and
obtain justice for the wicked acts committed upon her. Likewise, it is highly inconceivable for a lass
4

of tender age to concoct a tale of defloration, allow the examination of her private parts, and undergo
the expense, trouble, inconvenience, not to mention the trauma of a public trial, unless she was in
fact raped.5

In contrast, accused-appellant's defense is a bare and shallow alibi. Time and again, we have stated
that alibi is a weak defense which becomes even weaker in the face of the positive identification of
accused-appellant by prosecution witnesses. Accused-appellant claims that at the time the rape
incident took place, he was at his house drinking with friends. This self-serving assertion is puerile, in
the absence of any showing that it was impossible for him, on that night, to go to Baby Jane's house,
which, incidentally, was only 400 meters away from his own. The infirmity of his alibi becomes even
more glaring when, on direct examination, he fails to mention that his brother-in-law, Balvino Alingas,
the witness he presented to corroborate his story, was one of his drinking companions.

Q: Where were you on June 28, 1994, Mr. Witness?

A: I was in our house drinking spree (sic) with my "barkada"

Q: Who are those (sic) "barkada" that you allegedly drinking (sic) with
them?
 A: My "Kumpare."

Q: Will you please give the (sic) names.

A: Rolando Gonzales, Edwin Petilla and Casaway.

Q: Who else?

A: My brother.

Q: What is the (sic) name?

A: Abundio Bonghanoy. 6

Accused-appellant never mentioned Balvino Alingas as one of his drinking companions that fateful
evening. In contrast, the latter asserted that he was part of the drinking session, from the time it
started at 5:00 p.m. up to the time it ended at 12 midnight. If, indeed, Alingas was present during
accused-appellant's drinking spree, his presence would have been adverted to by accused-
appellant. This all too evident omission indicates Alingas' narration to be mere fabrication intended to
get accused-appellant off the hook. Accused-appellant's alibi, unsubstantiated as it is by clear and
convincing evidence is negative and self-serving evidence which deserves no weight in law. 7

In like manner, we find accused-appellant's claim that Baby Jane filed her complaint because of her
mothers jealousy towards accused-appellant difficult to accept. A rape case, with its attendant
publicity and notoriety, can damage a complainant's psyche and tar her for life. A mother would not
expose her daughter to public humiliation and curiosity just to give vent to her resentment over the
alleged preferential treatment being given accused-appellant by her other brothers and sisters. 8

While we agree with the trial court that accused-appellant is guilty of rape, we cannot, however,
subscribe to the penalty of death imposed. Article 335, as amended by Republic Act No. 7659
provides that the death penalty shall be imposed if the rape victim is under eighteen years of age
and the offender is a relative by consanguinity within the third civil degree. Clearly believing that the
case of the people against accused-appellant fell within the above-mentioned circumstance, the
court a quo sentenced accused-appellant to death.

A reading of the information filed against accused-appellant would, however, reveal that he was
charged only with simple crime of rape, punished under Article 335 of the Revised Penal Code, with
the additional allegation that the victim was only 14 years of age at the time of the incident.

In People v. Ramos, we have held that the seven new attendant circumstances instituted by
9

Republic Act No. 7659 in Article 335 of the Revised Penal Code partake of the nature of qualifying
circumstances, and not merely aggravating circumstances, since they increase the penalties by
degrees. Aggravating circumstances affect only the period of the penalty. To be properly
10

appreciated as a qualifying circumstance, however, the relationship between accused-appellant and

his victim should have been specifically pleaded in the information against accused-appellant.

Since the information filed against accused-appellant is silent on the relationship between accused-
appellant and his victim, we have to rule that the former can be convicted only for simple rape. Even
if relationship was duly proven during the trial, still such proof cannot be taken into account so as to
convict accused-appellant of qualified rape and to subsequently impose upon him the death penalty
since he would thereby be denied his constitutional and statutory right to be informed of the nature
and cause of the accusation against him. Accused-appellant cannot be charged with committing
11

the crime of rape in its simple form and then be tried and convicted for rape in its qualified form.

In addition to the failure of the information to allege the relationship between accused-appellant and
Baby Jane, the former also claims that the trial court erred in imposing the death penalty allegedly
because Baby Jane's age at the time she was raped was never conclusively established. We deem
it unnecessary to discuss this assignment of error given our previous disquisition that the death
penalty cannot be imposed for failure of the information to allege the relationship between accused-
appellant and Baby Jane. Having been informed only of the elements of simple rape, which crime
was duly established by the prosecution, accused-appellant can be convicted only for such crime
and accordingly is hereby punished with reclusion perpetua.

Accused-appellant also assails the judgment of the lower court on the ground that it failed to state
clearly the facts and the law on which it is based. While the lower court's decision does leaves much
to be desired in terms of clarity, coherence and comprehensibility, it distinctly and clearly expresses
its factual and legal bases. The trial court detailed the evidence, both testimonial and documentary,
presented by the parties. Thereafter, it balanced the respective pieces of evidence submitted by the
prosecution and the defense and chose the one which deserved credence. The trial court then
discussed the law and penalty applicable to the case. In fine, the trial court's decision substantially
complies with the mandate of Article VIII, Section 14 of the Constitution that a decision must express
"therein clearly and distinctly the facts and the law on which it is based."

Finally, with regard to accused-appellant's civil liability, the trial court awarded Baby Jane
P100,000.00 as moral damages and P100,000.00 as exemplary damages. It has been the policy of
this Court to outrightly award an amount of P50,000.00 as civil indemnity ex delicto, separate from
moral damages of P50,000.00 to victims of rape upon indubitable showing of its commission.

Finally, since the relationship between accused-appellant was adequately proved, we treat such fact
as a generic aggravating circumstance. With the presence then of one aggravating circumstance
and the establishment of Baby Jane's entitlement to civil indemnity and moral damages, accused-
appellant is also liable for exemplary damages, which the trial court awarded in the amount of
P100,000.00. We, however, find the same excessive and reduce it to P10,000.00.

WHEREFORE, the judgment of the lower court convicting accused-appellant Carlos Bonghanoy is
hereby AFFIRMED, with the MODIFICATION that accused-appellant is hereby sentenced to suffer
the penalty of reclusion perpetua, as well as to pay the complainant P50,000.00 as civil indemnity,
P50,000.00 as moral damages and P10,000.00 as exemplary damages. 1âwphi1.nêt

Cost against accused-appellant.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 131483 October 26, 1999

Tai Lim, petitioner,
vs.
THE HON. COURT OF APPEALS, HON. FE TORRES-ARCILLA as Presiding Judge, RTC
Branch 84, Malolos, Bulacan, and PEOPLE OF THE PHILIPPINES, respondent.

BUENA, J.:

This is a petition for review on certiorari to set aside the Decision rendered by the Court of Appeals
on November 14, 1997 in CA-G.R. SP No. 44428 which affirmed the order of the Regional Trial
Court of Malolos, Bulacan, denying petitioner's motion to dismiss Crim. Case No. 645-M-95 for
violation of R.A. 6425 invoking his right to a speedy trial.
1âwphi1.nêt

On August 8, 1995, the petitioner was arraigned and pleaded not guilty to the charge. Thereafter, the
initial trial of the case was set on September 7, 1995 which, however, was reset 11 times for the
following reasons, viz.:

September 7, 1995 — the court was not informed that the offices of the
witnesses for the prosecution (the Anti-Narcotics Unit), were transferred from
Bocaue, Bulacan to Sta. Maria, Bulacan, so that subpoena were not duly
served on them;

October 3, 1995 — there were no returns as yet on the service of

the subpoena on the witnesses of the prosecution;

October 24, 1995 — there was no proof in the record of the service of
the subpoena on the witnesses of the prosecution;

November 23, 1995 — reset on the plea of the prosecution that it be

accorded opportunity to adduce its evidence;

December 14, 1995 — SPO1 Efren Suguitan was present but the Prosecutor
assigned to the trial court was absent;

January 11, 1996 — the Forensic Chemist. was subpoenaed to appear

before another court and therefore not available for trial in the case a quo;

February 27, 1996 — trial was reset because the case was reraffled to
Branch 84;

June 11, 1996 — reset because the petitioner was without counsel;

July 1, 1996 — reset to July 29, 1996;

July 29, 1996 — the newly engaged counsel of the petitioner was not
available;

August 14, 1996 — none of the prosecution witnesses appeared;

September 17, 1996 — witnesses of the prosecution were notified but failed
to appear for trial.
Forthwith, petitioner filed a "Motion to Dismiss" the case invoking his right to a speedy trial. The
prosecution failed to file its Comment within the period granted it. In the interim, the building housing
the court was burned on October 14, 1996 and the court records had to be reconstituted. Upon the
trial court's order issued on February 13, 1997, the Prosecution filed its Comment to the Motion to
Dismiss, to which the petitioner filed its Reply, followed by the prosecution's Rejoinder and
petitioner's Sur-Rejoinder. On February 26, 1997, the trial court issued an Order denying petitioner's
motion to dismiss. On May 2, 1997, the trial court denied petitioner's motion for reconsideration.

Petitioner filed with the Court of Appeals a petition for certiorari and mandamus praying that the writs
of certiorari and mandamus be granted and that Crim. Case No. 645-M-95 of the RTC of Malolos,
Bulacan be ordered dismissed for failure of the prosecution to prove its case despite eleven (11)
postponements spread over an unreasonably long period of one year and three months in violation
of the right of petitioner, as an accused, to speedy trial. The Court of Appeals dismissed the petition.
The pertinent portions of the Decision read:

We find and so declare that the Respondent Judge did not abuse her judicial
discretion in denying Petitioner's "Motion to Dismiss" and his "Motion for
Reconsideration" in the light of the factual milieu in the present recourse.
However, prescinding from our Decision in the present recourse, the
Prosecution is urged and admonished to henceforth, proceed with the
prosecution of the case with reasonable dispatch, unfettered by the yoke of
ineptitude, insure the availability of its witnesses during the scheduled trials
and terminate it evidence without further delays. It bears stressing that the
Petitioner is a detention prisoner and inordinate delays in the prosecution of
the case will be grossly prejudicial not only to the petitioner but to the State
as well and the administration of justice.

IN THE LIGHT OF ALL THE FOREGOING, the Petition is DENIED DUE

COURSE and is hereby DISMISSED. With costs against the Petitioner.

Hence, this petition.

Petitioner avers that "(t)he manifestly unreasonable lengthy period the proceedings had dragged on
with the charge remaining unproved by reason of its unpreparedness for lack of witnesses
demonstrably and eloquently attests that there has been "vexatious, capricious and oppressive
delay," which is anathema to the right of an accused to speedy trial with its salutary objective "to
assure that an innocent person may be freed from anxiety and expense of a court litigation, or of
otherwise having his guilt determined within the shortest time compatible with the presentation and
consideration of whatever legitimate defense he may interpose."

Petitioner further contends that it is the duty of the prosecution to be ready at all times to present its
case on the dates of the scheduled hearing sweeping aside all reasons adduced by the prosecution
as unjustifiable.

The petition is without merit.

First, not all the eleven postponements were made at the instance of the prosecution. The hearing
on June 11, 1996 was reset because the petitioner was without counsel, and on July 29, 1996, the
hearing was reset because petitioner's newly engaged counsel was not available.

Second, contrary to petitioner's averment, the reasons for the prosecution's postponements were
reasonable and were not intended merely to delay the proceedings of the case. The hearing of the
case had to be postponed several times because there was no proof that the prosecution witnesses
were duly served with subpoena. It would be unjust to pounce on the absence of the witnesses as a
basis for dismissing the case when there was a valid excuse for their absence, that is, there was no
proof that they were duly served with subpoena. The other reasons for the postponement of the
hearing, such as the re-raffling of the case to another branch and the fire which razed the building
housing the court and its records, are circumstances beyond the control of the prosecution.

The right of an accused to a speedy trial is guaranteed to him by the constitution but the same shall
not be utilized to deprive the State of a reasonable opportunity of fairly prosecuting criminals. It
secures rights to an accused but it does not preclude the rights of the State to seek justice. Both the
State and the accused are entitled to due process.

Unjustified postponements which prolong the trial for an unreasonable length of time are what offend
the right of the accused to speedy trial. The right to speedy trial allows reasonable continuance so as
not to deprive the prosecution its day in court. 1

As aptly held by the Court of Appeals,

"The right has been defined by our Supreme Court in Gregorio Kalaw versus
Segundo Apostol, et al., 64 Phil. 852," as a trial conducted according to law
of criminal procedure and the rules and regulations, free from vexatious,
capricious and oppressive delays. As the Appellate Court put it in "Steward
versus State, 13 Arkansas, 720": "what the constitution prohibits is vexatious,
capricious and oppressive delays, manufactured by them ministers of
justice." Not every delay in the trial is vexatious, capricious or oppressive. In
the legal firmament. The terms have distinct connotations. Vexatious
suggests an act which is willful and without reasonable cause, for the
purpose of annoying and embarrasing another or one lacking justification and
intended to harass (page 2548, Third Edition, Webster's International
Dictionary). Oppressive connotes an unjust or cruel exercise of power or
authority. Capricious action, on the other hand, means willful and
unreasoning action . . . . 2

The Court finds that there is no basis for petitioner's allegation that his constitutional right to speedy
trial has been violated. One must take into account that a trial is always subject to reasonable delays
and postponements, and in the absence of any showing that the same were capricious, the State
should not be deprived of a reasonable opportunity of prosecuting petitioner.

In the recent case of Binay vs. Sandiganbayan, et a1. we held that the right to a speedy disposition
3

of a case, like the right to speedy trial, is deemed violated only when the proceedings is attended by
vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are
asked for and secured, or when without cause or justifiable motive a long period of time is allowed to
elapse without the party having his case . . . A mere mathematical reckoning of the time involved,
therefore, would not be sufficient.1âwphi1.nêt

WHEREFORE, the petition is DENIED for lack of showing that the Court of Appeals committed
reversible error.

SO ORDERED.
 EN BANC

[G.R. No. 146689. September 27, 2002

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs. FERNANDO (FERDINAND) MONJEY ROSARIO @ Fernan,
LORDINO (BERNARD) MAGLAYA Y ALVAREZ
@ Odeng (acquitted), CHRISTOPHER BAUTISTA Y ROSARIO
@ Totde (acquitted), and MICHAEL CASTRO Y OSIAS
@ Iking (acquitted), Accused.

FERNANDO (FERDINAND) MONJE y ROSARIO

@ Fernan, Accused-Appellant.

DECISION

BELLOSILLO, J.:

To administer by final judgment the dreaded lethal injection on the

basis of cumulus circumstantial evidence - consisting mainly of the
testimony of a witness who failed and refused to return to court and
submit to cross-examination four (4) times - is judicial tyranny of
the highest order, which this Court should never commit. In
conscience and in absolute fidelity to our trust, we cannot agree to
what would amount to a blatant misuse of the strong arm of the
law, in complete disregard of the constitutional guaranties of the
accused. Where the life of a human being - who is presumed to be
innocent - is at stake, we should require nothing less than proof
beyond reasonable doubt. And if proof is by circumstancial
evidence, the circumstances must be established to form an
unbroken chain of events leading to one fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as
the author of the crime. Otherwise, indubilis reus est absolvendus.
All doubts must be resolved in favor of the accused.

To illustrate: A met B with blood-stained clothes hurriedly coming

out of the room still holding a knife dripping with blood. A entered
the room and saw his wife lifeless on the floor with blood still oozing
from a stab wound on her chest. There was no other person in the
room which had only one door for ingress and egress. By a chain of
unbroken circumstancial evidence, there can be no other conclusion
than that B and B alone, and no other, could have stabbed A's wife
to death.

The case before us is a classic example of circumstantial evidence of

what the above illustration is not. Aside from the unexplained non-
appearance of the "principal witness" at his scheduled cross-
examination no less than four (4) times, the chain of circumstances
brought out by the witness is too weak - not unbroken to
incriminate the accused-appellant in the crime charged. The
possibility of other people being responsible therefor is not remote
considering that it supposedly happened in a wide open ricefield
freely accessible to people from all walks of life, as may be shown
hereunder:

Fernando (Ferdinand) Monje y Rosario alias Fernan, together with

Lordino (Bernard) Maglaya y Alvarez alias Odeng, Christopher
Bautista y Rosario alias Totde and Michael Castro y Osias
alias Iking were charged with rape with homicide for the brutal rape
and killing of 15-year old Imee Diez Paulino.1 On 13 November
2000, after trial, the Regional Trial Court, Branch 12, of Malolos,
Bulacan, acquitted Maglaya, Bautista and Castro but convicted
Monje of the crime charged and sentenced him to death, and to
indemnify the heirs of the victim P75,000.00 as actual damages
and P50,000.00 as moral damages, plus costs.2

As the trial court found, in the evening of 24 April 1997 at around

9:00 o'clock Imee Diez Paulino asked permission from her mother
to play bingo at the house of their barangay captain at Francisco
Homes, San Jose del Monte, Bulacan. Three (3) days later, Imee's
lifeless body was found lying in the ricefields naked, except for her
brassiere, with several injuries including a fractured skull that
caused massive brain hemorrhage. The body was already in a state
of decomposition. The medico-legal officer surmised that the
injuries on the skull were caused by fist blows or by a hard blunt
instrument. The genital examination disclosed that Imee was
brutally raped before she was killed. Her hymen was completely
lacerated and there was a 2.5-centimeter laceration of the
perineum. The medico-legal officer further opined that such
laceration could not have been caused by an ordinary-sized penis
but by a much bigger object forcibly inserted to the vagina. The
blood clots in the vaginal area showed that Imee was still alive
when the object was forced into her.

During the wake, Michael Cordero, a tricycle driver plying the

vicinity of Francisco Homes, told Maria Isabel Diez Paulino, mother
of Imee, that in the evening of 24 April 1997 at around 11:00
o'clock he saw the victim back-riding with accused-appellant
Fernando Monje with three (3) other persons in the sidecar whom
he did not know. From a distance of about six (6) arms length he
allegedly saw Imee, accused-appellant Monje, and the three (3)
unidentified persons alight from the tricycle and walk towards the
ricefields. At about 1:00 o'clock the following morning only Monje
and his three (3) companions returned to the tricycle.

When placed on the witness stand Cordero identified the three (3)
companions of Monje as Lordino Maglaya, also a tricycle driver,
Christopher Baustista, a taxi driver, and Michael Castro, a bus
conductor, all residents of Francisco Homes.

Another prosecution witness Jojit Vasquez testified that at about

midnight of 24 April 1997 he eloped with Irene, sister of Imee, and
they went to the vacant house of a certain Alvin situated also at
Francisco Homes. At about 2:00 o'clock the following morning, 25
April 1997, Monje and Maglaya followed by Bautista and Castro
arrived at the same house on board two (2) tricycles, but Bautista
and Castro left after a short while. Monje appeared surprised,
especially upon seeing Irene. At around 3:00 o'clock Jojit and Irene
left the house and proceeded to Cubao where they boarded a bus
for Pangasinan.
Monje denied complicity in the crime charged and pleaded for his
acquittal. He claimed that on 24 April 1997 at about 9:00 o'clock in
the evening he was already sleeping in his uncle's house in
Francisco Homes, San Jose Del Monte, Bulacan. He further claimed
that he never woke up until 6:00 o'clock the following morning.

Nobody saw the actual commission of the crime. But death now
lurks upon accused-appellant Monje on the basis alone of the
following circumstantial evidence put together by the court a quo:
(a) the testimony of Michael Cordero to the effect that he saw the
accused and his three (3) companions with victim Imee Paulino
back-riding with the accused on a tricycle at around 11:00 o'clock in
the evening of 24 April 1997 heading towards a ricefield, and that at
around 1:00 o'clock the following morning he saw accused-appellant
with three (3) companions returning to the tricycle without the
victim; (b) the testimony of Jojit Vasquez that at around 2:00
o'clock in the morning of 25 April 1997 he saw the accused and his
unidentified companions in the house of a certain Alvin; (c) the fact
that the decomposing body of the victim was later found in a
ricefield naked except for a brassiere; and, (d) that the accused
went home to Cagayan two (2) weeks after he learned that
an Information had been filed implicating him in the crime.

Quite significantly, these circumstances do not establish an

unbroken chain of events that would show the complicity of the
accused in the rape-slay of victim Imee Paulino. Apparently, the
case for the prosecution is woven principally around the testimony
of witness Michael Cordero. It must be emphasized however that his
testimony was not sufficiently tested on the crucible of cross-
examination, specifically, that significant portion of his direct
examination where he purportedly saw the accused and three (3)
unidentified persons returning to the tricycle from the ricefield
without the victim around 1:00 o'clock the following morning.

After his initial cross-examination by defense counsel, witness

Cordero failed and refused to return to court for the continuation of
his cross-examination. In other words, except for his brief cross-
examination which had barely scratched the surface, so to speak,
and despite the insistence of the defense counsel to pursue his
cross-examination and the repeated warnings from the trial court
that it would be constrained to strike out and disregard his
testimony should he fail to appear again, the witness stubbornly
refused to return to court for his cross-examination.3cräläwvirtualibräry

It bears stressing that the cross-examination of a witness is an

absolute right, not a mere privilege, of the party against whom he is
called. With regard to the accused, it is a right guaranteed by the
fundamental law as part of due process. Article III, Sec. 14, par.
(2), of the 1987 Constitutionspecifically mandates that "the accused
shall enjoy the right to meet the witnesses face to face," and Rule
115, Sec. 1, par. (f), of the 2000 Rules of Criminal
Procedure enjoins that in all criminal prosecutions the accused shall
be entitled to confront and cross-examine the witnesses against him
at the trial.4 Cross-examination serves as a safeguard to combat
unreliable testimony, providing means for discrediting a witness'
testimony, and is in the nature of an attack on the truth and
accuracy of his testimony. The purpose of cross-examination,
however, is not limited to bringing out a falsehood, since it is also a
leading and searching inquiry of the witness for further disclosure
touching the particular matters detailed by him in his direct
examination, and it serves to sift, modify, or explain what has been
said, in order to develop new or old facts in a view favorable to the
cross-examiner. The object of cross-examination therefore is to
weaken or disprove the case of ones adversary, and break down his
testimony in chief, test the recollection, veracity, accuracy, honesty
and bias or prejudice of the witness, his source of information, his
motives, interest and memory, and exhibit the improbabilities of his
testimony.5

In other words, the ultimate purpose of cross-examination is to

test the truth or falsity of the statements of a witness during
direct examination. Unfortunately, for the accused, these objectives
of cross-examination were never attained in this case because of
the continued failure and refusal of witness Cordero to appear for
his cross-examination. How can the truth be ascertained if the
cross-examination is not completed?
In the Sur-Rejoinder of Mme. Justice Consuelo Ynares-Santiago, it is
submitted that Cordero was sufficiently cross-examined on the
substantial points of his direct testimony, citing People v.
Seneris6 which held that testimony may not be stricken from the
record where the witness has already been sufficientlly cross-
examined.

We discussed at length in Seneris the effects of the absence or the

incomplete cross-examination of a witness on the admissibility in
evidence of his testimony on direct examination. The basic rule is
that the testimony of a witness given on direct examination should
be stricken off the record where there was no adequate opportunity
for cross-examination. Of course, there are notable modifications to
the basic rule which make its application essentially on a case-to-
case basis. Thus, where a party had the opportunity to cross-
examine a witness but failed to avail himself of it, he necessarily
forfeits his right to cross-examine and the testimony given by the
witness on direct examination will be allowed to remain on
record.7 But when the cross-examination is not or cannot be done or
completed due to causes attributable to the party offering the
witness, or to the witness himself, the uncompleted testimony is
thereby rendered incompetent and inadmissible in evidence.8 The
direct testimony of a witness who dies before the conclusion of the
cross-examination can be stricken only insofar as not covered by
the cross-examination,9 and the absence of a witness is not enough
to warrant striking of his testimony for failure to appear for further
cross-examination where the witness has already been sufficiently
cross-examined, which is not true in the present case, or that the
matter on which further cross-examination is sought is not in
controversy.10

Under the facts of the present case, the prosecution witness Michael
Cordero alone was responsible for his failure to appear on four (4)
scheduled hearings for his cross-examination. He was absent from
the hearings without valid cause on record. In Seneris, the
prosecution witness Mario Nemenio was not responsible for his
failure to appear and complete his cross-examination owing to his
untimely death. Hence, it was impossible for him to return to court
for his cross-examination. On the other hand, Cordero was directed
by the trial court to complete his cross-examination in four (4)
scheduled hearings but which he failed to attend without giving any
justifiable reason.

In the instant case, it is beyond cavil that the accused was not
afforded adequate opportunity to cross-examine, not of his own
design but because of the unexplained failure of the witness to
appear on the succeeding four (4) scheduled hearings despite
repeated warnings from the court. As may be noted, the defense
counsel was barely through with his preliminary questions at the
initial stage of his cross-examination. In fact, the defense counsel
repeatedly manifested his desire to further cross-examine witness
Cordero as counsel still had "important matters" to clear up with the
witness regarding some "conflicting testimonies."11 cräläwvirtualibräry

In the case before us, no less than the presiding judge himself
recognized the need for further cross-examination when he warned
that witness Cordero should return otherwise his testimony "not
touched upon by the cross-examination would be stricken off the
record." And the cross-examiner was insisting on the constitutional
right of the accused to confront the witnesses against him and to
cross-examine them. Even the other witness,Jojit Vasquez, failed to
appear on 8 October 1998 when required as may be gathered from
the order of the trial court issued on that date. In the instant case,
prosecution witness Cordero failed to appear four (4) times for his
cross-examination without justifiable reason,thus depriving the
cross-examiner of the right to confront him and test his credibility
and shed light on matters vital to the defense.

Combining the testimony of Cordero with those of the other

prosecution witnesses, the identity of the perpetrator or
perpetrators of this abominable crime could not have been
deduced. A reasonable inferenceabout a matter in issue, more
specifically, about the likely existence of a fact in issue is necessary
to achieve sufficient circumstantial evidence to support not only a
conviction but the death sentence. Having allegedly seen the victim
and the accused on that fateful evening of 24 April 1997 from a
distance of six (6) arms length, what did the witness observe about
the behavior of the victim in relation to the accused? Did the
witness notice anything unusual about the appearance of the
accused at 11:00 o'clock that evening of 24 April 1997, and again at
2:00 o'clock the following morning? Were there marked differences
observed between the appearance of the accused at 11:00 o'clock
that evening and their appearance at 2:00 o'clock the following
morning? What clothes were they wearing? What were their sizes -
height, build, or possibly their estimated weight? What was the
color of the tricycle or tricycles or tricycles; was there only one or
were there two (2) tricycles? Did the vehicle or vehicles have any
distinguishing marks, dents, or other peculiar physical distinguishing
appearances? Did the witness or witnesses notice any marks or
signs of physical struggle on the bodies of the accused when seen at
2:00 o'clock in the morning of 25 April 1997? These are only a few
of the questions which could have been propounded to witness
Cordero to ascertain the truth or falsity of his testimony. But,
unfortunately, he failed to attend the scheduled hearings for his
cross-examination. Thus, he left more questions than answers on
the circumstances of the tragedy that befell the Paulino family.

Cordero's cross-examination did not even delve on the matter that

Monje and his three (3) unidentified companions returned to the
tricycle without the victim. Besides, even if we take into account
Cordero's partial cross-examination, the same would not have
proved beyond reasonable doubt that Monje was the perpetrator of
the heinous crime. At the very least, what it tended to establish was
that at around 11:00 o'clock in the evening of 24 April 1997 Cordero
saw Imee in the company of Monje and three (3) unidentified
persons. But was this enough to deny the accused his fundamental
right to life and to be free?

Right from the beginning, Cordero was already a reluctant witness

for the prosecution. He could not be found in the address given by
the prosecution when the first subpoena ad testificandum was
served. On the second attempt to secure his attendance in court, he
could not again be located. Only his mother was at the given
address but she even refused to sign and acknowledge receipt of
the subpoena.12 Cordero was cross-examined on 24 October 1997
but only briefly because of lack of time and the court had to call the
other scheduled cases; on 29 January 1998 Cordero could not be
cross-examined because, as the court observed, he appeared
physically and emotionally unfit to go on with his cross-examination.
He never showed up in court on the subsequent trial dates, i.e., 19
March, 28 August, 17 September and 8 October 1998.
No validexcuse or justification can be discerned from the records to
explain his continued refusal to appear for his cross-examination.

Being the supposed "star witness" for the prosecution, the presence
of Cordero in court was the responsibility of the public prosecutor,
and it was incumbent upon him to take the initiative in ensuring the
attendance of his witnesses at the trial; more so in this case where,
as admitted no less by the public prosecutor himself, "Cordero's
testimony was very vital considering that the evidence
against the accused were (sic) purely circumstantial and
none of the witnesses saw the actual rape-slay."13 The public
prosecutor could have easily moved for an arrest, or in the
alternative, to have the witness cited in contempt for his willful
failure to appear at the trial as a material witness for the
prosecution.

Quite significantly, during the hearing on 17 September 1998 the

defense counsel moved that the testimony of Cordero be stricken off
the record. But the public prosecutor prayed for a last chance to
present Cordero on the next scheduled hearing, which was granted
by the trial court with a warning that should Cordero "fail to give
any satisfactory explanation for his failure to appear, his
testimony given so far will be stricken off the record."14 Then,
on 8 October 1998 the court a quo made good its warning, albeit
qualifiedly, and ordered thus -

Despite due notice, the last two (2) witnesses for the prosecution,
Michael Cordero and Jojit Vasquez, as shown in the return of service
by the Court Process Server, again failed to appear without
justifiable cause or reason. For that reason, as agreed upon by
the prosecution and the defense, the testimony so far given by
witness Michael Cordero not touched upon by the cross-
examination partially conducted by the defense counsel is
hereby stricken off the record, saving that part of his testimony
upon which he was duly cross-examined by the defense counsel
(underscoring supplied).15cräläwvirtualibräry

The foregoing order notwithstanding, the trial court convicted the

accused and sentence him to death on the basis of the testimony of
Cordero, but at the same time acquitting his three (3) co-accused
after observing that such testimony was an "unexplained
development." Without the benefit of a full cross-examination,
the ex parte statements of the witness are too uncertain, shaky and
unreliable to be included in the review of controverted facts. They
cannot be allowed to form part of the evidence and their
consideration by the court a quo was clearly unwarranted.

It is a well-entrenched doctrine that courts should only consider and

rely on duly established evidence and never on mere conjectures or
suppositions. Professor Wigmore explains that legal relevancy of
evidence denotes "something more than a minimum of probative
value," suggesting that such evidentiary relevance must contain a
"plus value."16This may be necessary to prevent the court from
being satisfied by matters of slight value, capable of being
exaggerated by prejudice and hasty conclusions. Evidence without
this "plus value" may be logically relevant but not legally sufficient
to convict. It is incumbent upon the court to balance the probative
value of such evidence against the likely harm that would result
from its admission.

The verdict in a criminal case can be sustained only when there is

relevant evidence from which the court can properly find or infer
that the accused is guilty beyond a reasonable doubt. Thus, the test
in determining the sufficiency of circumstantial evidence can be
summed up as follows: Is the evidence sufficient to exclude every
reasonable hypothesis proving innocence, except the guilt of the
accused, given the circumstances of the case? In reviewing criminal
cases that could very well exact the ultimate penalty of death, we
should do more than merely determine whether the trial court could
reasonably conclude that the established facts were more probable
than not. We must, in every instance, determine whether the trial
court could reasonably conclude that the facts were certain to have
occurred.
It bears stressing that even the trial judge who was privy to the
entire proceedings below did not lend full credence to the entire
testimony of Cordero. On the contrary, he even expressed doubt as
to their veracity. Consider the following: When Cordero executed his
sworn statement before the police authorities he declared that he
did not know the identities of the three (3) companions of Monje,
but when finally placed on the witness stand he readily identified
them as Maglaya, Bautista and Castro. No explanation was
proffered on why he flip-flopped on his testimony. Perplexed, the
trial court described this as an unexplained development -

While the Court believes that he indeed saw at that time accused
Monje with the victim before she was found dead at the same
vicinity they were seen, the Court also believes that in both
instances he saw with said accused in the same vicinity three other
persons not known to him, like he said to the police. That is why
his testimony at the trial that those three persons were the
three other accused known to him and he pointed to in court
as the companions of accused Monje when he saw them with
the victim that fatal night, came as an unexplained
development. If he saw and recognized that night his co-
tricycle driver accused Monje, he could not have failed to
recognize accused Lordino Odeng Maglaya, another tricycle
driver at Francisco Homes, and most probably also accused
Christopher Bautista and Michael Castro who were residents
of Francisco Homes like he was, if indeed, these were the
three unknown persons he saw that night with accused
Monje and victim Imee.17 cräläwvirtualibräry

Interestingly, the trial judge acquitted the three (3) other accused
based on the weakness of the testimony of Cordero and Vasquez.
Strangely, however, based on the same weak evidence, the trial
judge convicted the accused-appellant. Could it not be that the most
logical step for the court a quo was to acquit likewise herein
accused Monje in view of the clearly weak and unreliable testimony
of witnesses Cordero and Vasquez? In hindsight, even if we take
into account Cordero's partial cross-examination, the same would
not have established an unbroken chain of circumstances proving
beyond reasonable doubt that the accused was the perpetrator of
the heinous crime. At most, what it tended to establish was that at
about 11:00 o'clock in the evening of 24 April 1997 Cordero saw
Imee in the company of Monje and three (3) unidentified persons
and nothing more - nothing of the rape and slaying of Imee!

Indeed, other than the anemic testimony of Cordero, there is no

evidence effectively linking the accused to the rape and brutal
slaying of Imee Diez Paulino. The testimony of the second witness
for the prosecution, Jojit Vasquez, as to the presence of the accused
and his companions in the house of a certain Alvin, is likewise
disappointingly unreliable to establish a logical relationship between
the commission of the crime and complicity of the accused therein.
This evidence, even if tied up with the testimony of Cordero that
accused was last seen with the victim, does not establish a causal
connection, nor support an inference, much less a conclusion, that
accused had something to do with the rape and killing of the victim.

In assaying the probative value of circumstantial evidence, four (4)

basic guidelines must be observed: (a) It should be acted upon with
caution; (b) All the essential facts must be consistent with the
hypothesis of guilt; (c) The facts must exclude every other theory
but that of guilt of the accused; and, (d) The facts must establish
with certainty the guilt of the accused as to convince beyond
reasonable doubt that he was the perpetrator of the offense. The
peculiarity of circumstantial evidence is that the series of events
pointing to the commission of a felony is appreciated not singly
but collectively. The guilt of the accused cannot be deduced from
scrutinizing just one (1) particular piece of evidence. It is more like
a puzzle which when put together reveals a convincing picture
pointing to the conclusion that the accused is the author of the
crime.18cräläwvirtualibräry

Under the rules, circumstantial evidence is sufficient to convict an

accused if the following requisites concur: (a) There is more than
one circumstance; (b) The facts from which the inferences are
derived are proved; and, (c) The combination of all the
circumstances is such as to produce a conviction beyond reasonable
doubt.
Circumstantial evidence finds application in crimes such as rape with
homicide. The nature of the crime of rape, where usually only the
victim and the rapist are present at the crime scene, makes
prosecutions for the complex crime of rape with homicide
particularly difficult since the victim can no longer testify against the
perpetrator of the crime.19Circumstantial evidence must form a
complete and unbroken chain which, taking the evidence as a
whole, leads directly to the guilt of the accused beyond reasonable
doubt excluding any reasonable inference other than that of guilt.

Conceding arguendo that indeed Imee was last seen alive at 11:00
o'clock in the evening of 24 April 1997 in the company of the
accused, yet, there was no other circumstance tending to prove that
he was the one who raped and killed her. In fact, the time of the
rape as well as the killing was not even satisfactorily established.
The medico-legal officer did not give a categorical answer as to the
exact time of death of the victim. On the contrary, he merely gave
an approximation, i.e., "two (2), three (3), four (4) days or more."
In fact, this approximation is of no help at all because if we reckon
it from the time when the decomposing body of the victim was
found, i.e., on 27 April 1997, the three (3) dates when the victim
supposedly died would be 25 April (counting two (2) days from 27
April), 24 April (counting three (3) days from 27 April), 23 April
(counting four (4) days from 27 April), and 22 April backwards
(counting more than four (4) days). This would have been absurd
and in no way coincide with the date when the victim was
supposedly last seen alive.

Notably, no mention was made of the circumstances leading to the

discovery and retrieval of the decomposing body of the victim.
Plainly, there is no basis to deduce, much less conclude, that the
victim was brought to and later recovered from the same ricefield.

So much time elapsed from the moment Imee was last seen alive
on 24 April 1997 and when her decomposing body was found on 27
April 1997. Possibilities abound as to what actually happened
between 24 and 27 April 1997. The prosecution miserably failed to
fill the void with satisfactory and convincing evidence.
Accused-appellant allegedly "fled" to Cagayan after the filing of
the Information, supposedly when he learned he was included
therein, which the trial court considered as evidence of a guilty
conscience. Although as a general rule flight is an indication of guilt,
the same should not be flippantly considered. "Flight" is a
circumstance from which an inference of guilt may be drawn only
when it is unexplained and with an evident purpose of evading
prosecution. The accused-appellant adequately explained that he
went home to Cagayan upon the prodding of an uncle after a
quarrel with his cousin who chided him as one they had to feed or
"palamunin" since he was allegedly jobless. Accused-appellant went
to his home province after more than two (2) weeks from the filing
of the Information. Thus, he did not leave the place immediately
after learning he was being implicated in the crime. There was no
indication whatsoever that he intentionally made his presence
scarce in his community to evade prosecution.

Admittedly, the evidence for the defense is weak and that the facts
established do not entirely rule out the possibility that the accused
could be responsible for the crime. However, from our
understanding of basic procedural due process, his conviction must
come from the strength of the prosecution evidence and not from
the weakness of his defense; never upon possibilities. Proof, to
sustain conviction, must withstand the test of reason and the
constitutional right of confrontation. Mere suspicion of guilt, no
matter how strong, cannot be permitted to sway judgment.

So, too, while this Court as a rule desists from disturbing the
findings and conclusions of the trial court, especially with respect to
the credibility of witnesses, we must bow to the superior and
immutable rule that the guilt of the accused must be proved beyond
reasonable doubt because the law presumes that the accused-
appellant is innocent. This presumption must prevail until the end
unless overcome by strong, clear and compelling evidence.

A proposal has been expressed for the remand of this case to the
trial court for further proceedings, apparently to enable the
prosecution to prove again what it failed to prove in the first
instance. We cannot agree because it will set a dangerous
precedent. Aside from its being unprocedural, it would open the
floodgates to endless litigations because whenever an accused is on
the brink of acquittal after trial, and realizing its inadequacy, the
prosecution would insist to be allowed to augment its evidence
which should have been presented much earlier. This is a criminal
prosecution, and to order the remand of this case to the court a
quo to enable the prosecution to present additional evidence would
violate the constitutional right of the accused to due process, and to
speedy determination of his case. The lamentable failure of the
prosecution to fill the vital gaps in its evidence, while prejudicial to
the State and the private offended party, should not be treated by
this Court with indulgence, to the extent of affording the
prosecution a fresh opportunity to refurbish its evidence.

In fine, we are not unmindful of the gravity of the crime charged;

but justice must be dispensed with an even hand. Regardless of how
much we want to punish the perpetrators of this ghastly crime and
give justice to the victim and her family, the protection provided by
the Bill of Rights is bestowed upon all individuals, without exception,
regardless of race, color, creed, gender or political persuasion -
whether privileged or less privileged - to be invoked without fear or
favor. Hence, the accused deserves no less than an acquittal; ergo,
he is not called upon to disprove what the prosecution has not
proved.

WHEREFORE, the assailed Decision of the court a quo finding

accused FERNANDO (FERDINAND) MONJE y Rosario
alias Fernan guilty of rape with homicide is REVERSED and SET
ASIDE for insufficiency of evidence; at least, on reasonable doubt.
Consequently, he is ACQUITTED of the crime charged and is ordered
IMMEDIATELY RELEASED from custody unless lawfully held for
another cause.

The Director of the Bureau of Corrections is DIRECTED to

implement this Decision immediately and to report to this Court the
action taken hereon within five (5) days from receipt hereof.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Baguio City

FIRST DIVISION

G.R. No. 128280 April 4, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALICIA A. CHUA, accused-appellant.

PARDO, J.:

Accused Alicia Chua has appealed from the decision of the Regional Trial Court, Manila, Branch V
1

finding her guilty beyond reasonable doubt of illegal recruitment committed in large scale and
sentencing her to life imprisonment and a fine of P100,000.00, and eight (8) counts of estafa
sentencing her to various penalties therefor.

On October 05, 1993, Assistant City Prosecutor Leocadio H. Ramos, Jr. of Manila filed with the
Regional Trial Court, Manila an information against accused Alicia A. Chua reading as follows:
2

Crim. Case No. 93-127418:

"That in or about and during the period comprised between October 29, 1992 and
January 19, 1993, inclusive, in the City of Manila, Philippines, the said accused,
representing herself to have the capacity to contract, enlist and transport Filipino
workers for employment abroad, did then and there wilfully, unlawfully, for a fee,
recruit and promise employment/job placement abroad to the following persons,
namely: DOMINGO F. TERCENIO, MARTIN B. BERMEJO, EVANGELINE F.
GAVINA, DANTE F. BALUIS, EDUARD V. ESTILLER, EDGAR B. ABONAL, VIOLETA
F. REGALADO, GLORIA J. RICAFRENTE and LONITO F. BALUIS, without first
having secured the required license or authority from the Department of Labor.

"Contrary to law." 3

On the same date, the same prosecutor filed with the Regional Trial Court, Manila nine (9) other
informations against the accused for estafa:

Crim. Case No. 93-127419:

"The undersigned accuses ALICIA A. CHUA of the crime of estafa, committed as

follows: That on or about October 29, 1992, in the City of Manila, Philippines, the
said accused, did then and there willfully, unlawfully and feloniously defraud
DOMINGO F. TERCENIO in the following manner, to wit: the said accused, by
means of false manifestations and fraudulent representation which she made to said
DOMINGO F. TERCENIO to the effect that she had the power and capacity to recruit
and employ said DOMINGO F. TERCENIO and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the requirements thereof and
by-means of other similar deceits, induced and succeeded in inducing said
DOMINGO F. TERCENIO to give and deliver, as in fact he gave and delivered to said
 accused the amount of P15,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false and fraudulent
and were made solely to obtain as in fact she did obtain the amount of P15,000.00
which amount once in her possession with intent to defraud, willfully, unlawfully and
feloniously misappropriated, misapplied and converted to her own personal use and
benefit, to the damage and prejudice of said DOMINGO F. TERCENIO in the
aforesaid amount of P15,000.00 Philippine Currency.

"CONTRARY TO LAW." 4

Crim. Case No. 93-127420:

"That on or about November 21, 1992, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously defraud MARTIN B.
BERMEJO in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representation which he/they/she made to said
MARTIN B. BERMEJO to the effect that she had the power and capacity to recruit
and employ MARTIN BERMEJO in Taiwan and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the requirements thereof,
and by means of other similar deceits, induced and succeeded in inducing said
MARTIN B. BERMEJO to give and deliver, as in fact he gave and delivered to said
accused the amount of P15,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false and fraudulent
and were made solely to obtain, as in fact she did obtain the amount of P15,000.00
which amount once in her possession with intent to defraud, wilfully, unlawfully and
feloniously misappropriated, misapplied and converted to her own personal use and
benefit to the damage and prejudice of said MARTIN B. BERMEJO in the aforesaid
amount of P15,000.00, Philippine Currency.

"CONTRARY TO LAW."5

Crim. Case No. 93-127421:

"That on or about November 6, 1992, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously defraud EVANGELINE
F. GAVINA in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representation which he/they/she made to said
EVANGELINE F. GAVINA to the effect that she had the power and capacity to recruit
and employ EVANGELINE F. GAVINA and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the requirements thereof,
and by means of other similar deceits induced and succeeded in inducing said
EVANGELINE F. GAVINA to give and deliver, as in fact she gave and delivered to
said accused the amount of P15,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false and fraudulent
and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00
which amount once in her possession with intent to defraud, wilfully, unlawfully and
feloniously misappropriated, misapplied and converted to her own personal use and
benefit to the damage and prejudice of said EVANGELINE P. GAVINA in the
aforesaid amount of P15,000.00, Philippine Currency. 1âwphi1.nêt

"CONTRARY TO LAW."6
Crim. Case No. 93-127422:

"That on or about December 10, 1992, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously defraud DANTE F.
BALUIS in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representation which he/they/she made to said
DANTE F. BALUIS to the effect that she had the power and capacity to recruit and
employ DANTE F. BALUIS in Taiwan and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the requirements thereof,
and by means of other similar deceits, induced and succeeded in inducing said
DANTE F. BALUIS to give and deliver, as in fact he gave and delivered to said
accused the amount of P11,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false and fraudulent
and were made solely to obtain, as in fact she did obtain the amount of P11,000.00
which amount once in her possession with intent to defraud, wilfully, unlawfully and
feloniously misappropriated, misapplied and converted to her own personal use and
benefit to the damage and prejudice of said DANTE G. BALUIS in the aforesaid
amount of P11,000.00, Philippine Currency.

"CONTRARY TO LAW."7

Crim. Case No. 93-127423:

"That on or about November 24, 1992, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously defraud EDUARD V.
ESTILLER in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representation which he/she/they made to said
EDUARD V. ESTILLER to the effect that she had the power and capacity to recruit
and employ EDUARD V.' ESTILLER in Taiwan and could facilitate the processing of
the pertinent papers if given the necessary amount to meet the requirements thereof,
and by means of other similar deceits, induced and succeeded in inducing said
EDUARD V. ESTILLER to give and deliver, as in fact he/she/they gave and delivered
to said accused the amount of P15,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false and fraudulent
and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00
which amount once in her possession, with intent to defraud, wilfully, unlawfully and
feloniously misappropriated, misapplied and converted to her own personal use and
benefit to the damage and prejudice of said EDUARD V. ESTILLER, in the aforesaid
amount P15,000.00 Philippine Currency.

"CONTRARY TO LAW."8

Crim. Case No. 93-127424:

"That on or about December 11, 1992, in the City of Manila, Philippines, the said
accused, did then and therein wilfully, unlawfully and feloniously defraud EDGAR B.
ABONAL in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representation which he/she/they made to said
EDGAR B. ABONAL to the effect that she had the power and capacity to recruit and
employ EDGAR B. ABONAL in Taiwan and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the requirements thereof,
and by means of other similar deceits, induced and succeeded in inducing said
 EDGAR B. ABONAL to give and deliver, as in fact he/she/they gave and delivered to
said accused the amount of P15,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false and fraudulent
and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00
which amount once in her possession with intent to defraud, wilfully, unlawfully and
feloniously misappropriated, misapplied and converted to her own personal use and
benefit to the damage and prejudice of said EDGAR B. ABONAL in the aforesaid
amount P15,000.00 Philippine Currency.

"CONTRARY TO LAW."9

Crim. Case No. 93-127425:

"That on or about, December 10, 1992, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously defraud VIOLETA F.
REGALADO in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representation which he/she/they made to said
VIOLETA F. REGALADO to the effect that she had the power and capacity to recruit
and employ VIOLETA F. REGALADO in Taiwan and could facilitate the processing of
the pertinent papers if given the necessary amount to meet the requirements thereof,
and by means of other similar deceits, induced and succeeded in inducing said
VIOLETA F. REGALADO to give and deliver, as in fact he/she/they gave and
delivered to said accused the amount of P15,000.00 on the strength of said
manifestations and representations, said accused well knowing that the same were
false and fraudulent and were made solely, to obtain, as in fact she did obtain the
amount of P15,000.00 which amount once in her possession, with intent to defraud,
wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her
own personal use and benefit to the damage and prejudice of said VIOLETA F.
REGALADO in the aforesaid amount P15,000.00 Philippine Currency.

"Contrary to law." 10

Crim. Case No. 93-127426:

"That on or about January 19, 1993, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously defraud GLORIA J.
RICAFRENTE in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representation which he/she/they made to said
GLORIA J. RICAFRENTE to the effect that she had the power and capacity to recruit
and employ GLORIA J. RICAFRENTE in Taiwan and could facilitate the processing
of the pertinent papers if given the necessary amount to meet the requirements
thereof, and by means of other similar deceits, induced and succeeded in inducing
said GLORIA J. RICAFRENTE to give and deliver, as in fact he/she/they gave and
delivered to said accused the amount of P15,000.00 on the strength of said
manifestations and representations, said accused well knowing that the same were
false and fraudulent and were made solely, to obtain, as in fact she did obtain the
amount of P15,000.00 which amount once in her possession, with intent to defraud,
wilfully, unlawfully and feloniously misappropriated, misapplied and converted to her
own personal use and benefit, to the damage and prejudice of said GLORIA J.
RICAFRENTE in the aforesaid amount of P15,000.00, Philippine Currency.

"CONTRARY TO LAW." 11
 Crim. Case No. 93-127427:

"That on or about October 29, 1992, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully and feloniously defraud LONITO F.
BALUIS in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representation which he/she/they made to said
LONITO F. BALUIS to the effect that she had the power and capacity to recruit and
employ LONITO F. BALUIS in Taiwan and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the requirements thereof,
and by means of other similar deceits, induced and succeeded in inducing said
LONITO F. BALUIS to give and deliver, as in fact he/she/they gave and delivered to
said accused the amount of P15,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false and fraudulent
and were made solely, to obtain, as in fact she did obtain the amount of P15,000.00
which amount once in her possession, with intent to defraud, wilfully, unlawfully and
feloniously misappropriated, misapplied and converted to her own personal use and
benefit to the damage and prejudice of said LONITO F. BALUIS in the aforesaid
amount P15,000.00, Philippine Currency.

"CONTRARY TO LAW." 12

On November 8, 1993, the trial court arraigned the accused. She pleaded not guilty to each
case. Trial ensued. The cases were consolidated and tried jointly.
13

The facts are as follows:

In September 1992, accused. Chua received a facsimile message from Harmony Electronics
Company in Taiwan. The message was written in Chinese characters except for the names of To-
14

ong Zenon Tumenlaco and Tercenio Domingo Fornaliza. Harmony asked her to call up To-ong and
Tercenio and tell them that they were needed in Taiwan. Accused Chua contacted To-ong and told
him the message. 15

In October 1992, To-ong and Tercenio went to the office of accused Chua, and the latter told them
that she could send them to Taiwan upon payment of a placement fee of P15,000.00 each. She also
asked them to secure NBI clearances and medical certificates. On October 29, 1992, Tercenio,
16

together with private complainant Lonito Baluis, went back to the office of accused Chua and
submitted the requirements. Tercenio and Lonito Baluis paid P15,000.00 each for which they were
issued a receipt bearing the name Man Tai Trading and General Services with accused Chua's
signature. 17

Accused Chua assured Tercenio and Lonito Baluis that they would be able to leave for Taiwan soon.
Three months passed, but they were not deployed. Tercenio became apprehensive and told accused
Chua that he would withdraw his application and ask for refund of the placement fee. Accused Chua
repeatedly promised that she would give back the money to him, but she never did. After a few more
months, Tercenio could not anymore locate accused Chua. 18

Accused Chua used the same modus operandi on the other private complainants. After requiring
each complainant to pay a placement fee of P15,000.00 each, to secure NBI clearances and to
undergo medical examinations, she would go in hiding.
In time, complainants inquired from the Philippine Overseas Employment Agency (POEA) about
accused Chua's activities. The POEA issued a certification that accused Chua was not licensed to
recruit persons/workers for overseas employment. 19

On October 3, 1995, the trial court promulgated a decision, the dispositive portion 20 of which reads:

"WHEREFORE, premises considered, Alicia A. Chua is hereby found:

"1) Guilty beyond reasonable doubt of the crime of Illegal Recruitment committed in large
scale in Criminal Case No. 93-127418 and is therefore sentenced to serve a penalty of life
imprisonment and a fine of P100,000.00;

"2) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127419
and is sentenced to serve indeterminate sentence of four (4) years of prision correccional
maximum, as minimum to six (6) years and eight (8) months of Prision Mayor minimum as
maximum, and to pay the complainant the sum of P15,000.00 plus legal interest from the
filing of the case until fully paid;

"3) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127420
and is sentenced to serve an indeterminate sentence of four (4) years of prision correccional
maximum as minimum to six (6) years and eight (8) months of prision mayor minimum as
maximum, and to pay the complainant the sum of P15,500.00 plus legal interest from the
filing of the case until fully paid;

"4) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127421
and is sentenced to serve an indeterminate sentence of four (4) years of prision correccional
maximum as minimum to six (6) years and eight (8) months of prision mayor minimum as
maximum, and to pay the complainant the sum of P15,500.00 plus legal interest from the
filing of the case until fully paid;

"5) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127422
and is therefore sentenced to serve an indeterminate sentence of six (6) months of Arresto
Mayor maximum, as minimum to two (2) years and eleven (11) months of prision
correccional medium, as maximum, and to pay the complainant the sum of P11,500.00 plus
legal interest from the filing of the case until fully paid;

"6) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127423
and is therefore sentenced to serve an indeterminate sentence of four (4) years of prision
correccional maximum, as minimum to six (6) years and eight (8) months of prision mayor
minimum, as maximum and to pay the complainant the sum of P15,500.00 plus legal interest
from the filing of the case until fully paid;

"7) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127425
and is therefore sentenced to serve an indeterminate sentence of four (4) years of prision
correccional maximum, as minimum to six (6) years and eight (8) months of prision mayor
minimum as maximum, and to pay the complainant the sum of P14,500.00 plus legal interest
from the filing of the case until fully paid;

"8) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127426
and is therefore sentenced to serve indeterminate sentence of four (4) years of prision
correccional maximum, as minimum to six (6) years and eight (8) months of prision mayor
 minimum as maximum, and to pay the complainant the sum of P14,500.00 plus legal interest
from the filing of the case until fully paid;

"9) Guilty beyond reasonable doubt of the crime of Estafa in Criminal Case No. 93-127427
and is sentenced to serve indeterminate sentence of four (4) years of prision correccional
maximum, as minimum to six (6) years and eight (8) months of prision mayor minimum as
maximum, and to pay the complainant the sum of P15,000.00 plus legal interest from the
filing of the case until fully paid.

"As earlier stated, Criminal Case No. 93-127424 is dismissed for failure of the prosecution to
adduce evidence.

"SO ORDERED.

"Manila, September 20, 1995.

"(Sgd.) ZEUS C. ABROGAR

"Judge."

Hence, this appeal.21

In her brief, accused-appellant anchors her defense on the approval of her application for a license
to recruit on April 13, 1993, which, according to her, rendered her a genuine holder of authority. She
also claimed that she was denied her constitutional right to compulsory process. 22

On the other hand, the Solicitor General contends that appellant was a non-licensee and had no
authority to recruit anyone for overseas employment, and that she failed to proffer any compelling
reason to justify her request for the production of POEA records. 23

We find the appeal devoid of merit.

Appellant interposes the defense that the approval of her application for a service contractor's
authority on April 13, 1993 should be given a retroactive effect as to make all her previous
recruitment activities valid. However, this issue was not raised in the trial court. She cannot now be
allowed to raise it for the first time on appeal without offending basic rules of fair play, justice and due
process. 24

The records show that the license was not issued due to her failure to comply with post-licensing
requirements. It is the issuance of the license which makes the holder thereof authorized to perform
25

recruitment activities. The law specifically provides that "every license shall be valid for at least two
(2) years from the date of issuance unless sooner cancelled or revoked by the Secretary. 26

Appellant herself admitted that she had no authority to recruit private complainants. thus:

ATTY. MONTERO (to witness):

Q: Now what was the reply of Harmony Electronics Company when you questioned them
about the use of your company?
 A: They wrote back to me and they told me that "never mind, we only need Cenon To-
ong and Domingo Tersenio." But I told them that I am not in the position to employ these
people because I am not a licensed agency for that matter and they said that "I would
just send you an authority and show this to the pertaining government agency who could at
least send these two people."

Q: So what did you do after that?

A: I told them to send me something if I can do the way out of it, I will ask anybody from
my colleagues to do the hiring of these people.

Q: Did you ask anybody from your colleagues to do the hiring of these two?

A: I did but Alcamojar was not also licensed.

Q: So what happened after that?

A: I told Cenon because Cenon is much better to understand that, he looked for one
company who could just or whom I can transfer the authority that the Harmony Electronics
would be sending me, so I will just transfer the authority to any agency who could send them
back to Taiwan. 27

Appellant cannot now claim that she was a genuine holder of authority from the Secretary of Labor
and Employment to recruit factory workers for Harmony Electronics Company based in Taiwan.

As to her claim of denial of the constitutional right to compulsory process, we find the same to be
without merit.

The 1973 and 1987 Constitutions expanded the right to compulsory process which now includes the
right to secure the production of evidence in one's behalf. By analogy, U.S. vs. Ramirez which laid
28 29

down the requisites for compelling the attendance of witnesses, may be applied to this expanded
concept. Thus, the movant must show: (a) that the evidence is really material; (b) that he is not guilty
of neglect in previously obtaining the production of such evidence; (c) that the evidence will be
available at the time desired; and (d) that no similar evidence could be obtained.

In the case at bar, the trial court correctly denied appellant's motion for the production of the records
which were the basis in issuing the POEA Certification dated February 3, 1994, as the same would
30

not in any way alter the undisputed fact that appellant was not issued a license until then. 31

WHEREFORE, the Court AFFIRMS the appealed decision in toto, with costs against appellant.

SO ORDERED.
 SECOND DIVISION

G.R. No. 140285 September 27, 2006

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
COURT OF APPEALS (15th Division) and WILFRED N. CHIOK, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, assailing the Resolution1 dated September 20, 1999 of the Court of Appeals in CA-G.R.
SP No. 53340, entitled "Wilfred N. Chiok, petitioner, v. Hon. Marietta Legazpi, People of the
Philippines, and Rufina Chua, respondents."

The factual antecedents as borne by the records are:

Sometime in 1989, Rufina Chua met respondent Wilfred Chiok. He represented himself as a
licensed stockbroker and an expert in the stock market. He then encouraged Rufina to invest her
money in stocks, requesting her to designate him as her stockbroker. On respondent's prodding, she
agreed.

For several years, respondent acted as Rufina's stockbroker. She made a profit out of their
transactions, prompting her to trust respondent in handling her stock investments.

In 1995, respondent encouraged Rufina to purchase shares in bulk as this will increase her earning.
Hence, in June 1995, she entrusted to him the amount of P9,563,900.00 for the purpose of buying
shares of stocks in bulk. She deposited the amount of P7,100,000.00 in respondent's account. With
respect to the remaining P2,463,900.00, she personally gave it to him. Thereupon, he told her to
wait for one week. A week elapsed, but she did not hear from him. Upon her inquiry, he advised her
to wait for another week, but still there was no news from him. Finally, when she was able to contact
him, he admitted that he spent the money. At any rate, he issued two checks as payment but when
she deposited them in the drawee bank, they were dishonored for insufficient funds.

In a letter dated October 25, 1995, Rufina demanded payment from respondent, but this remained
unheeded.

Upon inquiry, Rufina came to know that respondent was not a licensed stockbroker but only a
telephone clerk at Bernard Securities, Inc. Immediately, she caused the filing of an information for
estafa against him with the Regional Trial Court, Branch 165, Pasig City, docketed therein as
Criminal Case No. 109927.
During the arraignment, respondent, assisted by his counsel de parte, pleaded not guilty and posted
bail. Trial ensued.

Respondent denied the charge against him. He testified that he was not an employee of Bernard
Securities, Inc.; that he buys and sells U.S. dollars and that Rufina used to buy dollars from him; that
what actually existed between them was an unregistered partnership; and that he received the
amount of P9,563,900.00 as her investment in their partnership.

After the presentation of the parties' evidence, the trial court set the promulgation of judgment on
January 26, 1999. However, respondent and his counsel failed to appear on said date. The
promulgation was re-set to February 1, 1999.

On February 1, 1999, the trial court rendered a Decision convicting respondent of estafa and
sentencing him to suffer twelve (12) years of prision mayor, as minimum, to twenty (20) years
of reclusion temporal, as maximum. During the promulgation of the judgment, respondent and
his counsel failed to appear despite notice. Consequently, the prosecution filed a Motion for
Cancellation of Bail on the ground that there is an indication that respondent might flee or commit
another crime.

On May 28, 1999, the trial court issued an Omnibus Order granting the prosecution's motion, thus:

WHEREFORE, the bail of the accused is cancelled. The accused is given five (5) days from
receipt of this order within which to surrender before this Court, otherwise his arrest will be
ordered.

SO ORDERED.

On June 18, 1999, respondent interposed an appeal from the Decision of the trial court to the Court
of Appeals, docketed therein as CA-G.R. CR No. 23309.

The following day or on June 19, 1999, respondent filed with the Court of Appeals a Special Civil
Action for Certiorari with Very Urgent Application for a Temporary Restraining Order (TRO) and/or
Injunction assailing the trial court's May 28, 1999 Omnibus Order canceling his bail. The petition was
docketed as CA-G.R. SP No. 53340.

Meanwhile, or on June 25, 1999, the trial court issued a warrant of arrest against respondent for
the reason that "he has not surrendered despite the lapse of the given period (five days) as
provided in the Omnibus Order dated May 28, 1999." The said warrant was returned unserved
because he could not be found at his given address.

Going back to CA-G.R. SP No. 53340, the Court of Appeals issued a TRO enjoining the
implementation of the trial court's Omnibus Order.

Subsequently, in a Resolution dated September 20, 1999, the appellate court issued a writ of
preliminary injunction enjoining the arrest of respondent, holding that the latter should not be
deprived of his liberty pending resolution of his appeal as the offense for which he was convicted is a
non-capital offense; and that the probability of flight by respondent during the pendency of his appeal
is merely conjectural.
Hence, the present petition for review on certiorari. The People of the Philippines, petitioner,
contends that the Court of Appeals committed a grave abuse of discretion in issuing the writ of
preliminary injunction enjoining the arrest of respondent.

Respondent, on the other hand, maintains that the appellate court committed no grave abuse of
discretion when it issued the assailed Resolution of September 20, 1999.

The sole issue here is whether the Court of Appeals erred when it rendered its assailed Resolution
of September 20, 1999 directing the issuance of a writ of preliminary injunction enjoining the arrest
of respondent.

The trial court correctly cancelled respondent's bail because of his failure to appear during the
promulgation of judgment despite notice. He violated the condition of his bail that he must appear
before the proper court whenever so required by that court or the Rules. 2 Simply stated, he jumped
bail. As such, his arrest, as ordered by the trial court, is proper. 3 This is in accordance with Section 6,
Rule 120 of the Revised Rules on Criminal Procedure which provides in part, thus:

SEC. 6. Promulgation of judgment. – The judgment is promulgated by reading it in the

presence of the accused and any judge of the court in which it was rendered. x x x

The proper clerk of court shall give notice to the accused personally or through his
bondsman or warden and counsel, requiring him to be present at the promulgation of the
decision. x x x

If the judgment is for conviction and the failure of the accused to appear was without
justifiable cause, he shall lose the remedies available in these rules against the
judgment and the court shall order his arrest. Within fifteen (15) days from promulgation
of judgment, however, the accused may surrender and file a motion for leave of court to avail
of these remedies. He shall state the reasons for his absence at the scheduled promulgation
and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of
said remedies within fifteen (15) days from notice. (Underscoring supplied)

The last paragraph of Section 6 quoted above authorizes the promulgation of judgment in
absentia in view of respondent's failure to appear despite notice. It bears stressing that the rule
authorizing promulgation in absentia is intended to obviate the situation where the judicial process
could be subverted by the accused jumping bail to frustrate the promulgation of judgment. 4

Here, respondent tried in vain to subvert the judicial process by not appearing during the
promulgation of judgment. Thus, he lost his remedies against the judgment. In fact, he cannot
challenge successfully the cancellation of his bail by the trial court. The Court of Appeals certainly
erred in enjoining the arrest of respondent. Its declaration that respondent might flee or commit
another crime is conjectural utterly lacks merit. Respondent already demonstrated that he is a
fugitive from justice.

WHEREFORE, we GRANT the instant petition. The challenged Resolution of the Court of Appeals in
CA-G.R. SP No. 53340 directing the issuance of a writ of preliminary injunction enjoining the arrest
of respondent is REVERSED.

SO ORDERED.