Republic of the Philippines

SUPREME COURT

FIRST DIVISION

G.R. No. 157399 November 17, 2005

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JOSE TING LAN UY, JR. (Acquitted), ERNESTO GAMUS y SOTELO, JAIME OCHOA, all of the
National Power Corporation, and RAUL GUTIERREZ alias Raul Nicolas, Alias George
Añonuevo, alias Mara Añonuevo (At large), Accused. JAIME OCHOA, Appellant.

DECISION

YNARES-SANTIAGO, J.:

For allegedly diverting and collecting funds of the National Power Corporation (NPC) intended for the
purchase of US Dollars from the United Coconut Planters Bank (UCPB), Jose Ting Lan Uy, Jr.,
Ernesto Gamus,1 Jaime Ochoa and Raul Gutierrez were indicted before the Sandiganbayan for the
complex crime of Malversation through Falsification of Commercial Documents defined and
penalized under Articles 217 and 171 (8), in relation to Article 48 of the Revised Penal Code, in an
amended Information,2 docketed as Criminal Case No. 19558, which alleges –

That sometime in July 1990, or for sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, accused Jose Ting Lan Uy, Jr., a
public accountable officer, being the Treasurer of National Power Corporation (NAPOCOR), Ernesto
Gamus and Jaime Ochoa, both public officers being the Manager of the Loan Management and
Foreign Exchange Division (LOMAFED) and Foreign Trader Analyst, respectively, also of
NAPOCOR, and accused Raul Gutierrez, alias Raul Nicolas, alias George Añonuevo, alias Mara
Añonuevo, a private individual being a foreign exchange trader, said public officers taking advantage
of their official positions, with grave abuse of authority and committing the offense in relation to their
office, conspiring, confederating and mutually helping one another, with their private co-accused, did
then and there willfully, unlawfully and feloniously falsify or cause to be falsified the NPC’s
application for managers checks with the Philippine National Bank (PNB), NPC Branch in the total
amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO
HUNDRED NINETY ONE PESOS and TWENTY FIVE CENTAVOS (P183,805,291.25), Philippine
Currency, intended for the purchase of US dollars from the United Coconut Planters Bank (UCPB),
by inserting the account number of Raul Gutierrez SA-111-121204-4, when in truth and in fact as the
accused well knew that the Payment Instructions (PI) when signed by the NAPOCOR authorities did
not indicate the account number of Raul Gutierrez, thereby making alteration or intercalation in a
genuine document which changes its meaning, and with the use of the said falsified commercial
documents, accused succeeded in diverting, collecting and receiving the total amount of ONE
HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED
NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.75), Philippine Currency
from the National Power Corporation, which they thereafter malverse, embezzle, misappropriate and
convert to their own personal use and benefit to the damage and prejudice of the National Power
Corporation in the aforementioned sum.
CONTRARY TO LAW.

Upon arraignment, Gamus, Uy and Ochoa pleaded not guilty to the charge, while Gutierrez has
remained at large.

On pre-trial, the prosecution and the defense stipulated –

1. That accused Uy at the time stated in the information was a Treasurer at the NPC;

2. That accused Ernesto Gamus was at the time mentioned in the information was (sic) the Manager
of Loan Management and Foreign Exchange Division (LOMAFED);

3. That accused Jaime Ochoa was the Senior Financial Analyst, LOMAFED, at the time mentioned
in the information;

4. That accused Gamus does not have any custody to (sic) public funds;

5. That accused Ochoa’s position as Sr. Financial Analyst did not require him to take custody or
control of public funds;

6. That the application forms for cashier’s check or Manager’s check are not accountable forms of
the NAPOCOR.3

Trial on the merits thereafter ensued. On May 28, 2002, the Sandiganbayan rendered its
Decision,4 the dispositive portion of which reads:

WHEREFORE, premises considered, accused Jaime B. Ochoa is hereby found GUILTY beyond
reasonable doubt of the crime of Malversation thru falsification of Commercial Document and is
sentenced to suffer the penalty of reclusion perpetua and to pay a fine equal to the amount
malversed which is ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE
THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS
(P183,805,291.25) solidarily with accused Jose Ting Lan Uy, Jr. Accused Ochoa shall also suffer the
penalty of perpetual disqualification. Costs against the accused.

On the ground of reasonable doubt, accused JOSE TING LAN UY, Jr. is hereby ACQUITTED
of Malversation of Public Funds thru Falsification of Commercial Document. However, because
of preponderance of evidence, he is CIVILLY LIABLE for the damages suffered by the NPC in the
amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO
HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily
with accused Jaime Ochoa. The Hold Departure Order against the accused embodied in this Court’s
Resolution dated April 18, 2002 is recalled.

Let an alias warrant of arrest be issued against Raul Gutierrez, alias Raul Nicolas, alias George
Añonuevo, alias Mara Añonuevo with last known address at 1348 A. Mabini Street, Ermita, Manila or
Suite 603 VIP Building, Roxas Boulevard, Manila.

SO ORDERED.5

Aggrieved, Ochoa interposed this appeal alleging that the Sandiganbayan erred in –
1. convicting him based on the allegations in the information;

2. admitting and considering his alleged sworn statements;

3. considering the alleged transcripts of stenographic notes and the NBI Report.6

The factual antecedents of the case, as summed by the Sandiganbayan, are not disputed by the
parties:

In July of 1990, the National Power Corporation ("NPC") became embroiled in a controversy
involving the disappearance of P183,805,291.25 of its funds which were originally on deposit with
the Philippine National Bank, NPC Branch ("PNB") but were subsequently used to purchase two (2)
managers’/cashier’s checks (the first check was in the amount of P70,000,000.00 while the second
was for P113,805,291.25) in order to comply with its loan obligations to the Asian Development Bank
("ADB"). As NPC’s debt in favor of ADB was in yen, NPC was obligated to follow an intricate and
circuitous procedure of buying US dollars from a local bank (in this case, United Coconut Planters
Bank or UCPB T.M. Kalaw Branch), which local bank was supposed to remit the US dollars to an off-
shore bank. This off-shore bank (in this case, the Credit Lyonnais, New York) was then supposed to
remit the yen equivalent of the US dollars to a third bank (in this case, the Bank of Japan, Tokyo
Branch) which would then credit the funds to the account of the ADB. The contracts of NPC with the
concerned banks (embodied in three [3] "Payment Instructions") included a "value date" (which was
July 13, 1990), the mere arrival of which would trigger the above-mentioned procedure, culminating
in the payment to ADB of the NPC obligation in the foreign currency agreed upon.

On value date, per routing procedure, Credit Lyonnais (the second bank) remitted Japanese Yen
1,143,316,130.00 to the Bank of Japan, Tokyo Branch. Likewise, per routing procedure, UCPB T.M.
Kalaw Branch was supposed to have remitted on said value date the amount of US$7,740,799.80.
UCPB T.M. Kalaw, however, despite the fact that the PNB had already issued two (2)
manager’s/cashier’s checks ("Manager’s check" for brevity) for such purpose, did not make the
agreed remittance to Credit Lyonnais, so Credit Lyonnais received no payment for the funds it had
remitted to the Bank of Japan, Tokyo. Both the State and the accused have offered explanations for
the failure of UCPB, T.M. Kalaw Branch to remit the dollar equivalent of P183,805,291.25 to Credit
Lyonnais. Both explanations, naturally, were diametrically opposed.7

The prosecution theorizes that the accused diverted the funds covered by the two PNB Manager’s
checks by falsifying a commercial document called an "Application for Cashier’s Check" (ACC) by
inserting an account number (A/C #111-1212-04) of a private individual after the name of the payee,
UCPB, T.M. Kalaw Branch. It claims that NPC did not authorize the insertion considering that the
Payment Instruction (PI) issued by NPC instructing PNB to prepare a Manager’s check to be
charged to NPC’s savings account did not contain any account number. Through the insertion, the
accused allegedly succeeded in diverting the funds from the UCPB, T.M. Kalaw Branch in favor of
Raul Gutierrez @ Raul Nicolas @ George Añonuevo @ Mara Añonuevo, who is still at large.

In his defense, appellant asserts that there was no evidence that he committed any of the acts
alleged in the information, particularly the intercalation on the ACC; that he deposited the checks
subsequently issued or that he received the proceeds thereof; or that he conspired with any of his
co-accused. He claims that his conviction was based on the alleged sworn statement and the
transcript of stenographic notes of a supposed interview with appellant by the NPC personnel and
the report of the National Bureau of Investigation (NBI). Appellant maintains that he signed the
sworn statement while confined at the Philippine Heart Center and upon assurance that it would not
be used against him. He was not assisted by counsel nor was he apprised of his constitutional rights
when he executed the affidavit.
To be found guilty of malversation, the prosecution must prove the following essential elements:

a.] The offender is a public officer;

b.] He has the custody or control of funds or property by reason of the duties of his office;

c.] The funds or property involved are public funds or property for which he is accountable; and

d.] He has appropriated, taken or misappropriated, or has consented to, or through abandonment or
negligence, permitted the taking by another person of, such funds or property.8

Appellant insists that he could not be convicted under the allegations in the information without
violating his constitutional right to due process and to be informed of the accusation against him. He
points out that the information alleges willful and intentional commission of the acts complained of
while the judgment found him guilty of inexcusable negligence amounting to malice.

Appellant’s contention lacks merit. Malversation may be committed either through a positive act of
misappropriation of public funds or property or passively through negligence by allowing another to
commit such misappropriation.9To sustain a charge of malversation, there must either be criminal
intent or criminal negligence10 and while the prevailing facts of a case may not show that deceit
attended the commission of the offense, it will not preclude the reception of evidence to prove the
existence of negligence because both are equally punishable in Article 217 of the Revised Penal
Code.

More pointedly, the felony involves breach of public trust, and whether it is committed through deceit
or negligence,the law makes it punishable and prescribes a uniform penalty therefor. Even when the
information charges willful malversation, conviction for malversation through negligence may still be
adjudged if the evidence ultimately proves that mode of commission of the offense.11 Explicitly stated
–

Even on the putative assumption that the evidence against petitioner yielded a case of malversation
by negligence but the information was for intentional malversation, under the circumstances of this
case his conviction under the first mode of misappropriation would still be in order. Malversation is
committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from mode proved, the
same offense of malversation is involved and conviction thereof is proper.12

The question of whether or not an information charging the commission of the crime by means of
deceit will preclude a conviction on the basis of negligence is neither novel nor of first impression.
In Samson v. Court of Appeals, et al.,13 we ruled that an accused charged with willful or intentional
falsification can validly be convicted of falsification through negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs.
Justice of the Peace of Bacolor, … but a distinct crime in itself, designated as a quasi offense in our
Penal Code, it may however be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that the greater includes
the lesser offense. This is the situation that obtains in the present case. Appellant was charged with
willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in
effecting the falsification which made possible the cashing of the checks in question, appellant did
not act with criminal intent but merely failed to take proper and adequate means to assure himself of
the identity of the real claimants as an ordinary prudent man would do. In other words, the
information alleges acts which charge willful falsification but which turned out to be not willful but
negligent. This is a case covered by the rule when there is a variance between the allegation and
proof, and is similar to some of the cases decided by this Tribunal.

....

The fact that the information does not allege that the falsification was committed with imprudence is
of no moment for here this deficiency appears supplied by the evidence submitted by appellant
himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has
been willful, it would be incongruous to allege at the same time that it was committed with
imprudence for a charge of criminal intent is incompatible with the concept of negligence.

In People v. Consigna, et al.,14 we ruled that the afore-stated rationale also applies to the felony of
malversation, that is, that an accused charged with willful malversation, in an information containing
allegations similar to the present case, can be validly convicted of the same offense of malversation
through negligence where the evidence sustains the latter mode of perpetrating the offense.

Appellant next claims that he should be acquitted since his conviction was based on his sworn
statement, transcript of stenographic notes from which the sworn statement was taken and the NBI
Report, which are incompetent evidence. He contends that his sworn statement was taken without
the benefit of counsel, in violation of his constitutional right under Section 12, Article III of the 1987
Constitution.

Paragraph 1, Section 12, Article III of the 1987 Constitution states that –

Section 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.

The "investigation" under the above-quoted provision refers to a "custodial" investigation where a
suspect has already been taken into police custody15 and the investigating officers begin to ask
questions to elicit information and confessions or admissions from the suspect.16 More specifically –

Custodial investigation involves any questioning 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.17

Succinctly stated, custodial investigation refers to the critical pre-trial stage when the investigation
ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person
as a suspect.18 Such a situation contemplated has been more precisely described thus where –

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 a strange and unfamiliar surrounding, 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 has 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....19

Clearly, therefore, the rights enumerated by the constitutional provision invoked by accused-
appellant are not available before government investigators enter the picture.20 Thus we held in one
case21 that admissions made during the course of an administrative investigation by Philippine
Airlines do not come within the purview of Section 12. The protective mantle of the constitutional
provision also does not extend to admissions or confessions made to a private individual,22 or to a
verbal admission made to a radio announcer who was not part of the investigation,23or even to a
mayor approached as a personal confidante and not in his official capacity.24

Along the same vein, we held that a videotaped interview showing the accused unburdening his guilt
willingly, openly and publicly in the presence of newsmen is not covered by the provision although in
so ruling, we warned trial courts to take extreme caution in further admitting similar confessions
because we recognized the distinct possibility that the police, with the connivance of unscrupulous
media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them
beyond the exclusionary rule by having an accused admit an offense on television.25

Neither does the constitutional provision on custodial investigation extends to a spontaneous

statement, not elicited through questioning by the authorities, but given in an ordinary manner
whereby the accused orally admits having committed the crime,26 nor to a person undergoing an
audit examination because an audit examiner is not a law enforcement officer.27

Thus, the flaw in appellant’s argument in this regard becomes immediately apparent vis-à-vis the
foregoing legal yardsticks, considering that his statement was taken during
the administrative investigation of NPC’s audit team28and before he was taken into custody. As such,
the inquest was still a general inquiry into an unsolved offense at the time and there was, as yet, no
specific suspect.

Much less can appellant claim that he was in police custody because he was confined at the time at
the Philippine Heart Center and he gave this statement to NPC personnel, not to police
authorities.29 Appellant can hardly claim that, under the prevailing circumstances at the time,
whatever degree of compulsion may have existed went beyond the borders of the unobjectionable
where impermissible levels of duress would force him into making false and incriminating
declarations against his interest. While he may have been persuaded into doing so, he cannot feign
that he was intimidated in such a way as to bring his statements within the ambit of the exclusionary
constitutional provision.

The fact that an NBI investigation was being contemporaneously conducted at the time the sworn
statement was taken will not extricate appellant from his predicament. The essence of the
constitutional safeguard is protection from coercion. The interview where the sworn statement is
based was conducted by NPC personnel for the NPC’s administrative investigation. Any
investigation conducted by the NBI is a proceeding separate, distinct and independent from the NPC
inquiry and should not be confused or lumped together with the latter.

Appellant invokes Galman v. Pamaran30 in insisting that the constitutional safeguard should have
been applied notwithstanding that he was not yet arrested or under detention at the time. He also
invites our attention to the pronouncements of Fr. Joaquin G. Bernas31 that "the right to counsel is
available if a person is in custody, even if he is not a suspect; or even if not yet in custody but he is a
suspect."
The contention is tenuous. Although we held in Galman that the constitutional protection covers not
only confessions but admissions as well, we qualified the ruling with the statement that what is being
eschewed is the evil of "extorting" a confession from the mouth of the person being interrogated. As
defined, "extortion" is an act or practice of taking or obtaining anything from a person by illegal use of
fear, whether by force, threats or any undue exercise of power.32 In the context of obtaining an
admission, "extorting" means "compelling or coercing a confession or information by any means
serving to overcome his power of resistance, or making the confession or admission
involuntary."33 In this case, we find nothing on record to support appellant’s claim that his statements
were extorted from him.

Furthermore, while indeed Galman taken together with the 1986 deliberations on what was later to
become Section 12 (1) of the 1987 Constitution may lead to the conclusion that the rights are
available when the person is already in custody as a suspect, or if the person is a suspect even if he
is not yet deprived in any significant way of his liberty, Fr. Bernas34 qualified this statement by saying
that "[J]urisprudence under the 1987 Constitution, however, hasconsistently held, following
Escobedo, the stricter view, that the rights begin to be available only when the person isalready in
custody."35

Appellant next advances the argument that even if his sworn statement were admissible in evidence,
the contents thereof may not be sufficient to sustain a conviction. He contends that although his
statement was supposedly gathered from the transcript of stenographic notes of the conversation
between him and Atty. Bagcal, neither Atty. Bagcal nor the person who actually prepared the sworn
statement was presented. Therefore, the sworn statement is hearsay.

The argument is puerile. It bears stressing that the prosecution presented as witness Atty. Lamberto
P. Melencio who saw appellant at the hospital to show him the prepared statement and to verify from
him the truth of its contents.36 Atty. Melencio testified that he asked appellant to go over the
document before affixing his signature thereto.37 He also inquired whether or not appellant was
coerced or intimidated by anybody when the statement was taken.38 Appellant denied that he was
coerced or intimidated,39 affirmed the contents of the document as a true reflection of his
statements,40 and signed the same.41 It need not be overemphasized that the sworn statement is a
duly notarized document which has in its favor the presumption of regularity and, thus, it can be
contradicted only by clear and convincing evidence. Without that sort of evidence, the presumption
of regularity, the evidentiary weight conferred upon such public document with respect to its
execution, as well as the statements and the authenticity of the signatures thereon, stand.42

In disclaiming the authenticity of his sworn statement, appellant insists that at the time he signed the
document, he was confined in the hospital and therefore not physically and mentally fit to assess the
significance of his signature. This pretext however collides with the testimony of his own witness, Dr.
Teresita Sadava, who stated that appellant was confined for three days and, who, when queried
whether "ischemic heart disease" had any emotional or psychological effect, gave the inconclusive
reply that it "may or may not." Moreover, as aptly observed by the Sandiganbayan, although
supposedly violated and repulsed as he was by the alleged falsity of the affidavit, it is strange that
appellant, who is supposedly astute in business matters as he then occupied the position of Foreign
Trader Analyst of the NPC, nevertheless felt it unnecessary to execute another affidavit retracting
the same after his recovery from illness. Verily, 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.43

Appellant finally contends that both the NBI Investigation Report and the transcript of stenographic
notes are hearsay for having been made extra-judicially. The record, however, shows that the
prosecution presented the team leader of the NBI investigators who conducted the investigation,
although his testimony was dispensed with as the parties stipulated on the existence and due
execution of the NBI Investigation report albeit without admitting the truth of its contents. If at all, the
admission of the report’s existence is an acknowledgment that it is neither spurious nor counterfeit.

All told, given the paucity of substance in the arguments advanced by appellant to prop up his
cause, his appeal must fall.

WHEREFORE, the May 28, 2002 Decision of the Sandiganbayan is hereby AFFIRMED in all
respects.

SO ORDERED.

CONSUELO YNARES-SANTIAGO

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

LEONARDO A. QUISUMBING, ANTONIO T. CARPIO

Associate Justice Associate Justice

ADOLFO S. AZCUNA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were 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

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 85215 July 7, 1989

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial
Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

NARVASA, J.:

What has given rise to the controversy at bar is the equation by the respondent Judge of the right of
an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III
of the Constitution, with the right of any person "under investigation for the commission of an offense
. . . to remain silent and to counsel, and to be informed of such right," granted by the same provision.
The relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned
at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the
sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into
the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of
Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine
Airlines Employees' Association (PALEA) to which Ramos pertained.2

On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten
notes 3 reading as follows:

2-8-86

TO WHOM IT MAY CONCERN:

THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE

IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000
(APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR
BEFORE 1700/9 FEB 86.

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At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City,
Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of
the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in
writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the
tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that
although he had planned on paying back the money, he had been prevented from doing so,
"perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x
x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he
desired the next investigation to be at the same place, "Baguio CTO," and that he should be
represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his
statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the
parties at all; but it would seem that no compromise agreement was reached much less
consummated.

About two (2) months later, an information was filed against Felipe Ramos charging him with the
crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January
29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) —

.. with unfaithfulness and/or abuse of confidence, did then and there willfully ...
defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit:
said accused ... having been entrusted with and received in trust fare tickets of
passengers for one-way trip and round-trip in the total amount of P76,700.65, with
the express obligation to remit all the proceeds of the sale, account for it and/or to
return those unsold, ... once in possession thereof and instead of complying with his
obligation, with intent to defraud, did then and there ... misappropriate, misapply and
convert the value of the tickets in the sum of P76,700.65 and in spite of repeated
demands, ... failed and refused to make good his obligation, to the damage and
prejudice of the offended party .. .

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter
ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and
supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written offer of evidence dated
June 21, 1988,6which included "the (above mentioned) statement of accused Felipe J. Ramos taken
on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well
as his "handwritten admission x x given on February 8, 1986," also above referred to, which had
been marked as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence."7 Particularly as

regards the peoples' Exhibit A, the objection was that "said document, which appears to be a
confession, was taken without the accused being represented by a lawyer." Exhibit K was objected
to "for the same reasons interposed under Exhibits 'A' and 'J.'

By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the
testimony of the witnesses who testified in connection therewith and for whatever they are worth,"
except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it
appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL
Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not
appear that the accused was reminded of this constitutional rights to remain silent and to have
counsel, and that when he waived the same and gave his statement, it was with the assistance
actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by
accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion
of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said
admission."

The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated
September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings
in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People.
v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among others, to the effect that
"in custodial investigations the right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel," and the explicit precept in the present Constitution that
the rights in custodial investigation "cannot be waived except in writing and in the presence of
counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one
"for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore
clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not
detained at the time, or the investigation was administrative in character could not operate to except
the case "from the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for
certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the
People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson
and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY
RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial
and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of
any order, decision or judgment in the aforesaid case or on any matter in relation to the same case,
now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court
also subsequently required the Solicitor General to comment on the petition. The comments of
Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has
made common cause with the petitioner and prays "that the petition be given due course and
thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to
admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever
impropriety might have attended the institution of the instant action in the name of the People of the
Philippines by lawyers de parte of the offended party in the criminal action in question.
The Court deems that there has been full ventilation of the issue — of whether or not it was grave
abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now
proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which
respondent Judge has given a construction that is disputed by the People. The section reads as
follows:

SEC. 20. No person shall be compelled to be a witness against himself Any person
under investigation for the commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against him.
Any confession obtained in violation of this section shall be inadmissible in evidence.

It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section,
namely:

1) the right against self-incrimination — i.e., the right of a person not to be compelled
to be a witness against himself — set out in the first sentence, which is a verbatim
reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that
accorded by the Fifth Amendment of the American Constitution, 12 and

2) the rights of a person in custodial interrogation, i.e., the rights of every suspect
"under investigation for the commission of an offense."

Parenthetically, the 1987 Constitution indicates much more clearly the individuality and
disparateness of these rights. It has placed the rights in separate sections. The right against self-
incrimination, "No person shall be compelled to be a witness against himself," is now embodied in
Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation, which
have been made more explicit, are now contained in Section 12 of the same Article III.13

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution,
is accorded to every person who gives evidence, whether voluntarily or under compulsion of
subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to
be a witness against himself"

The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal
to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness,
whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e.,
one the answer to which has a tendency to incriminate him for some crime. However, the right can
be claimed only when the specific question, incriminatory in character, is actually put to the witness.
It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena,
to decline to appear before the court at the time appointed, or to refuse to testify altogether. The
witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and
answer questions. It is only when a particular question is addressed to him, the answer to which may
incriminate him for some offense, that he may refuse to answer on the strength of the constitutional
guaranty.

That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge,
or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a
witness of his right against self-incrimination. It is a right that a witness knows or should know, in
accordance with the well known axiom that every one is presumed to know the law, that ignorance of
the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness
can be expected to know in advance the character or effect of a question to be put to the latter. 17

The right against self-incrimination is not self- executing or automatically operational. It must be
claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It
follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the
appropriate time. 18

Rights in Custodial Interrogation

Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of
rights. These rights apply to persons "under investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities; and this is what makes these rights different
from that embodied in the first sentence, that against self-incrimination which, as aforestated,
indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.

This provision granting explicit rights to persons under investigation for an offense was not in the
1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v.
Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20

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

1) he shall have the right to remain silent and to counsel, and to be informed of such
right, 21

2) nor force, violence, threat, intimidation, or any other means which vitiates the free
will shall be used against him; 22 and

3) any confession obtained in violation of x x (these rights shall be inadmissible in

evidence. 23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in
police custody, "in-custody interrogation" being regarded as the commencement of an adversary
proceeding against the suspect. 24

He must be warned prior to any questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity afforded him, the individual may knowingly
and intelligently waive these rights and agree to answer or make a statement. But unless and until
such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained
as a result of interrogation can be used against him.

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

atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation
is meant "questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way." 27 The situation
contemplated has also been more precisely described by this Court." 28

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

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

Not every statement made to the police by a person involved in some crime is within the scope of
the constitutional protection. If not made "under custodial interrogation," or "under investigation for
the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person
went to a police precinct and before any sort of investigation could be initiated, declared that he was
giving himself up for the killing of an old woman because she was threatening to kill him by barang,
or witchcraft, this Court ruled that such a statement was admissible, compliance with the
constitutional procedure on custodial interrogation not being exigible under the circumstances.

Rights of Defendant in Criminal Case

As Regards Giving of Testimony

It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-
incrimination and (2) those during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.

It seems quite evident that a defendant on trial or under preliminary investigation is not under
custodial interrogation. His interrogation by the police, if any there had been would already have
been ended at the time of the filing of the criminal case in court (or the public prosecutors' office).
Hence, with respect to a defendant in a criminal case already pending in court (or the public
prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation"
laid down by the second and subsequent sentences of Section 20, Article IV of the 1973
Constitution, for the obvious reason that he is no longer under "custodial interrogation."

But unquestionably, the accused in court (or undergoing preliminary investigation before the public
prosecutor), in common with all other persons, possesses the right against self- incrimination set out
in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to
answer a specific incriminatory question at the time that it is put to him. 30

Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony
or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness."
Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others-
1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf;
but if he offers himself as a witness he may be cross-examined as any other witness; however, his
neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32

The right of the defendant in a criminal case "to be exempt from being a witness against himself'
signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he
is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other
process or order of the Court. He cannot be required to be a witness either for the prosecution, or for
a co-accused, or even for himself. 33 In other words — unlike an ordinary witness (or a party in a civil
action) who may be compelled to testify by subpoena, having only the right to refuse to answer a
particular incriminatory question at the time it is put to him-the defendant in a criminal action can
refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any
question. 34And, as the law categorically states, "his neglect or refusal to be a witness shall not in any
manner prejudice or be used against him." 35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does
testify, then he "may be cross- examined as any other witness." He may be cross-examined as to
any matters stated in his direct examination, or connected therewith . 36 He may not on cross-
examination refuse to answer any question on the ground that the answer that he will give, or the
evidence he will produce, would have a tendency to incriminate him for the crime with which he is
charged.

It must however be made clear that if the defendant in a criminal action be asked a question which
might incriminate him, not for the crime with which he is charged, but for some other crime, distinct
from that of which he is accused, he may decline to answer that specific question, on the strength of
the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973
Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for
murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer
any question on the ground that he might be implicated in that crime of murder; but he may decline
to answer any particular question which might implicate him for a different and distinct offense, say,
estafa.

In fine, a person suspected of having committed a crime and subsequently charged with its
commission in court, has the following rights in the matter of his testifying or producing evidence, to
wit:

1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for
preliminary investigation), but after having been taken into custody or otherwise
deprived of his liberty in some significant way, and on being interrogated by the
police: the continuing right to remain silent and to counsel, and to be informed
thereof, not to be subjected to force, violence, threat, intimidation or any other means
which vitiates the free will; and to have evidence obtained in violation of these rights
rejected; and

2) AFTER THE CASE IS FILED IN COURT — 37

a) to refuse to be a witness;

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

c) to testify in his own behalf, subject to cross-examination by the

prosecution;
 d) WHILE TESTIFYING, to refuse to answer a specific question
which tends to incriminate him for some crime other than that for
which he is then prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended the nature
and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has
taken them as applying to the same juridical situation, equating one with the other. In so doing, he
has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to
be cogent and logical. The thesis was however so far divorced from the actual and correct state of
the constitutional and legal principles involved as to make application of said thesis to the case
before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders
were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and
set aside.

It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under
custodial interrogation, as the term should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have
had a hand. The constitutional rights of a person under custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the
inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first
day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be
recorded, the record having thereafter been marked during the trial of the criminal action
subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit
K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to
compromise his liability in the alleged irregularities, was a free and even spontaneous act on his
part. They may not be excluded on the ground that the so-called "Miranda rights" had not been
accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of
any person against self-incrimination when the investigation is conducted by the complaining parties,
complaining companies, or complaining employers because being interested parties, unlike the
police agencies who have no propriety or pecuniary interest to protect, they may in their over-
eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give
statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It
suffices to draw attention to the specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer until and unless the employee has
been accorded due process, by which is meant that the latter must be informed of the offenses
ascribed to him and afforded adequate time and opportunity to explain his side. The requirement
entails the making of statements, oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues
and friends. The employee may, of course, refuse to submit any statement at the investigation, that
is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be
absurd to reject his statements, whether at the administrative investigation, or at a subsequent
criminal action brought against him, because he had not been accorded, prior to his making and
presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.)
which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the
employee's statements, whether called "position paper," "answer," etc., are submitted by him
precisely so that they may be admitted and duly considered by the investigating officer or committee,
in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's expressed
apprehensions may be realized, that violence or intimidation, undue pressure or influence be
brought to bear on an employee under investigation — or for that matter, on a person being
interrogated by another whom he has supposedly offended. In such an event, any admission or
confession wrung from the person under interrogation would be inadmissible in evidence, on proof of
the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973
Constitution, but simply on the general, incontestable proposition that involuntary or coerced
statements may not in justice be received against the makers thereof, and really should not be
accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the
respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988,
and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said
Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The
temporary restraining order of October 26, 1988 having become functus officio, is now declared of
no further force and effect.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 85401-02 June 4, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROSALINDA RAMOS y DAVID, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Romeo C. Alinea for defendant-appellant.

GUTIERREZ, JR., J.:

Appellant Rosalinda Ramos seeks the reversal of the decisions of the Regional Trial Court, Branch 73, Third Judicial Region at Olongapo
City, finding her guilty beyond reasonable doubt in Criminal Case No. 5990 for violating Section 8 of Republic Act No. 6425 (Dangerous
Drugs Act of 1972 as amended) and in Criminal Case No. 5991 for violating Section 4 of the same Act and sentencing her to:

1) Imprisonment of six (6) years and one (1) day and a fine of P6,000.00 in Criminal
Case No. 5990; and

2) Life imprisonment and a fine of P20,000.00 in Criminal Case No. 5991.

The two informations filed against the appellant respectively alleged:

Criminal Case No. 5990

 That on or about the 29th day of November, 1982 in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused without being lawfully authorized, did then and there wilfully, unlawfully and
knowingly have in his/her/their person, possession and control twenty (20) sticks of
marijuana cigarettes.

Criminal Case No. 5991

That on or about the 29th day of November, 1982 in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, without being lawfully authorized, did then and there wilfully, unlawfully and
knowingly engage in selling, delivering, giving away to another and distributing four
(4) sticks of marijuana cigarettes which is/are prohibited drug(s). (Rollo, p. 68)

The prosecution's version of the facts, as summarized by the Solicitor-General, is as follows:

On November 29,1982, at around 7:00 o'clock in the evening, a civilian informer

came to the Narcotics Command Office in Olongapo City and reported that a
cigarette vendor by the name of 'Mama Rose' was selling marijuana at the comer of
3rd Street and Rizal Avenue in Olongapo City (TSN, pp. 4-5, 13, May 4, 1984; pp. 3-
4, 11, April 9, 1986). Captain Castillo instructed the informant to conduct a test buy.
He gave to the informant two (2) five-peso bills, noting first the serial numbers in his
pocket note (TSN, pp. 5,14-15, May 4, 1984; p. 4, April 9, 1986). The informer left
and after thirty (30) minutes came back and gave to Captain Castillo two (2) sticks of
marijuana cigarettes (Exhibit 'C-2') which he bought from appellant. Captain Castillo
again instructed the informer to make another test buy from the suspect. From his
wallet, Captain Castillo extracted another two (2) five-peso bills and before handing
the same to the informer, recorded the serial numbers in his pocket note (TSN, pp.
19-21, May 4, 1984).

A team composed of Captain Castillo, Sgt. Tahil Ahamad, CIC Danilo Santiago and
Angel Sudiacal left with the informer. The informer proceeded to where appellant was
selling cigarettes to conduct the next test buy while the NARCOM agents waited at
the Black and White Open Bar located at 7th Street, Rizal Avenue, Olongapo City
(TSN, pp. 6-7, April 9, 1986). The bar was about three (3) blocks away from the
place where appellant was selling cigarettes (TSN, pp. 19, 8, Id.). After forty-five (45)
minutes more or less, the informer arrived at the Black and White Bar and again
gave to Captain Castillo two (2) sticks of marijuana (Exhibit 'C-l'; TSN, p. 23, May 4,
1984; p. 6, April 9,1986).

The team then proceeded to the place where appellant was selling cigarettes. After
Identifying themselves as NARCOM agents, Capt. Castillo told appellant that she
was being placed under arrest for illegal peddling of marijuana. Appellant was
requested to take out the contents of her wallet (TSN, pp. 6-7, April 9, 1986, The four
marked five- peso bills were found among her possessions and were confiscated
after the serial numbers were confirmed by Captain Castillo from his record (TSN,
pp. 23-25, May 4, 1984). The initial of Sgt. Tahil Ahamad was also found from the
confiscated five- peso bills (TSN, p. 9, April 9, 1986). Sgt. Ahamad searched the stall
of appellant and found twenty (20) sticks of marijuana cigarettes in a trash can
placed under the small table where appellant displayed the wares she was selling
(TSN, p. 7, April 9, 1986). Appellant was thereafter brought to the station (TSN, p.
23, May 4, 1984).
 At the station, appellant executed a statement confessing to her crimes which she
swore to before Assistant City Fiscal Domingo Cabali, Jr. (TSN, pp. 5-6. June
20,1984; Exhibit 'G').

The marijuana sticks confiscated were sent to the Philippine Constabulary Crime
Laboratory (PCCL) for analysis. These were confirmed to be marijuana as evidenced
by the Chemistry Report No. MD-363-82 of Marlene Salangad, a Forensic Chemist of
the PCCL (See Exhibit 'B'; TSN, p. 3, Jan. 13, 1986). (Rollo, pp. 92-94)

On the other hand, the version of the appellant as summarized by the trial court, is as follows:

... [O]n November 29, 1982, between 9:00 and 10:00 o'clock in the evening she was
at the corner of 3rd St., and Rizal Avenue, West Tapinac, Olongapo City, selling
cigarettes and fruits; that she does not have any table, all she had was a small
wooden 'papag' to show her wares and sell them; that she was sitting on the small
'papag' when Capt. Castillo came and introduced himself followed by three or four
others who were more or less 6 to 8 meters away. She was surprised why they were
there, and that she was invited by Capt. Castillo to the NARCOM office for
investigation to which invitation she said 'yes' after which she was taken to the
NARCOM office. Before she was taken thereto, the other men searched the buri
bags where she used to place her fruits (records does (sic) not show what fruits she
was selling) and also her small cigarettes (sic) stand; that they did not find anything
under the 'papag; that when she was ordered to board the car, Castillo told her
'sakay na ho, Mama Rose' (please board now, Mama Rose'); that she was told to
bring along her cigarette stand; that inside her brown wallet, she has fifty (P 50.00)
pesos consisting of five pesos and ten pesos; that it was Sudiacal who took her
wallet and Sudiacal took five (5) peso bills and told her that four (4) five peso bills are
the same money which was used to buy marijuana from her; that she told the officer
that the money was hers as she has been saving some for the rentals. She claimed
that she affixed her signatures on the four (4) five peso bills because she was forced
by Tahil Ahamad by saying 'Mama Rose', you sign this, if you are not going to sign
this, something will happen to you, you will get hurt'; that because she is an old
woman, she got scared so she signed. When Tahil Ahamad told her to sign, Ahamad
was tailing to her in a normal manner and seated in front of her; that she cannot
remember having signed anything because she was nervous, Capt. Castillo
investigated her and thereafter was brought to the Fiscal's Office. She signed a
document at the Fiscal's Office; that she was asked if the contents of the document is
(sic) true to which she answered 'No, sir; that she was not assisted by a counsel
while being investigated. She also testified that she stayed at Narcom for five (5)
days; that Capt. Castillo alone investigated her for four (4) hours and that she
likewise was not assisted by counsel at the Fiscal's Office. She claimed that when
she was told by the Fiscal to just sign the document, Fiscal Cabali did not say
anything when she said that the contents of the document are not true. (Rollo, pp.
72)

Appellant raises the following assignment of errors:

THE FINDINGS OF FACTS ARE SO UNCLEAR AND DOUBTFUL, MAKING THE

CONCLUSIONS OF THE TRIAL COURT WITHOUT FACTUAL AND LEGAL LEG
TO STAND ON.
 II

THE EVIDENCE OBTAINED AND THE PERSON ARRESTED WITHOUT THE

BENEFIT OF A WARRANT OF ARREST AND SEIZURE MAY NOT BE USED
AGAINST THE ACCUSED AND ANY CONVICTION FROM SUCH EVIDENCE IS
NOT VALID AND A GROUND FOR REVERSAL.

III

THE TRIAL COURT RELIED HEAVILY ON THE CONFESSION OF THE

APPELLANT AND THE CONFESSION WAS EXTRACTED IN VIOLATION OF
APPELLANT'S CONSTITUTIONAL RIGHTS 'TO REMAIN SILENT AND TO
COUNSEL'.

IV

WHEN NOT ALL THE ELEMENTS OF THE OFFENSE ARE PRESENT AND
PROVEN, CONVICTION IS NOT PROPER.

THE REQUISITES IN ORDER TO CONVICT ON CIRCUMSTANTIAL EVIDENCE

ARE NOT PRESENT AND NOT COMPLIED WITH. (Rollo, p. 59)

At the outset, it may be observed that two informations were filed against the appellant and the lower
court imposed two sentences on appellant, one for sale and the other for possession of marijuana.
This Court must emphasize that, assuming arguendo, the findings of guilt for both offenses are
correct, the trial judge nevertheless erred in imposing a separate sentence for possession because
possession of marijuana is inherent in the crime of selling them. (People v. de Jesus, 145 SCRA 521
[1986]; People v. Andiza, 164 SCRA 642 [1988])

After a careful scrutiny of the records, this Court holds that appellant's guilt in Criminal Case No.
5991 (sale of marijuana) has not been proven beyond reasonable doubt.

First, the extrajudicial confession extracted from the accused on November 29, 1982 is inadmissible
in evidence for being violative of the Constitutional mandate that 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. (Art. III, Section 12(l),
Constitution)

The preliminary statement read to the appellant when her sworn statement was executed appears
as follows:

SALAYSAY NA KUSANG LOOB NA IBINIBIGAY NI ROSALINDA RAMOS Y DAVID

KAY CAPTAIN ARTURO M. CASTILLO PC SA HARAP NI SGT. TAHIL AHAMAD
DITO SA HIMPILAN NG CANU, OLONGAPO CITY, NGAYON 29 NG BUWAN NG
NOBYEMBRE 1982.

TAGASIYASAT: Gng. Rosalinda Ramos, ikaw ay nasa ilalim ng isang pagsisiyasat

ukol sa paglabag sa ipinagbabawal na gamot. Bago kita tanungin ay nais kong
 malaman mo ang iyong mga karapatan sa ating bagong saligang batas at ito ay ang
mga sumusunod:

1 Ikaw ay may karapatan na huwag sumagot sa aking mga itatanong sa iyo sa

pagsisiyasat na ito,

2. Ikaw ay may karapatan na kumuha ng isang abogado upang makatulong sa iyo sa

pagsisiyasat na ito at

3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay maaaring gamitin laban or
pabor sa iyo saan mang hukuman dito sa ating bansa.

TANONG: Ngayon alam no na ang iyong mga karapatan sa ating bagong saligang
batas ikaw ba ay kusang loob na magbibigay ng isang salaysay na pawang
katotohanan at pawang katotohanan lamang sa pagsisiyasat na ito?;

SAGOT: Opo. (Exhibit G)

This Court finds that such recital of rights falls short of the requirement on proper apprisal of
constitutional rights. We quote the ruling in People v. Nicandro (141 SCRA 289 [1986]):

When the Constitution requires a person under investigation 'to be informed' of his
right to remain silent and to counsel, it must be presumed to contemplate the
transmission of meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it
would not be sufficient for a police officer just to repeat to the person under
investigation the provisions of Section 20, Article IV of the Constitution. He is not only
duty- bound to tell the person the rights to which the latter is entitled; he must also
explain their effects in practical terms, e.g., what the person under interrogation may
or may not do, and in a language the subject fairly understands. In other words, the
right of a person under interrogation 'to be informed implies a correlative obligation
on the part of the police investigator to explain, and contemplates an effective
communication that results in understanding what is conveyed. Short of this, there is
a denial of the right , as it cannot truly be said that the person has been 'informed' of
his rights. Now, since the right 'to be informed implies comprehension, the degree of
explanation required will necessary vary, depending upon the education, intelligence
and other relevant personal circumstances of the person under investigation. Suffice
it to say that a simpler and more lucid explanation is needed where the subject is
unlettered.

Although the right to counsel is a right that may be waived, such waiver must be voluntary, knowing
and intelligent (People v. Caguioa, 95 SCRA 2 [1980]).

To insure that a waiver is voluntary and intelligent, the Constitution now requires; that for the right to
counsel to be waived, the waiver must be in writing and in the presence of the counsel of the
accused. (Art. III, Section 12(l), Constitution) There is no such written waiver in this case, much less
was any waiver made in the presence of counsel.

Fiscal Cabali, who administered the oath on the appellant's extrajudicial confession, and the police
officers who took it down should know by now that the procedure they followed results in
incompetent evidence. If the purpose is to get proof which can stand up in court, they should follow
the requirements of the Constitution.
Second, the alleged poseur-buyer, who also happens to be the alleged informant, was never
presented during trial. The presence and Identity of the poseur-buyer is vital to the case as his very
existence is being disputed by the accused-appellant who denies having sold marijuana cigarettes to
anyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony of the poseur-buyer, there is no
convincing evidence pointing to the accused as having sold marijuana. (People v. Fernando, 145
SCRA 151 [1986]) In this case, the alleged informant and the alleged poseur-buyer are one and the
same person. We realize that narcotics agents often have to keep their Identities and those of their
informants confidential. For a prosecution involving the sale or distribution of drugs to prosper in this
particular case, however, the informant has to testify. The testimony of the poseur-buyer is rendered
compelling by the fact that the police officers were situated three blocks away from where the
alleged sale took place. They did not see the actual sale of marijuana. Thus, Sit. Sudiacal testified:

Q Before you arrested the accused, where did you position

yourselves?

A We were at the Black and White Open Bar, sir.

Q How far is that from the place where the accused was selling
cigarettes?

A It is about three blocks, sir.

Q You did not actually see the accused selling marijuana?

A Yes, Sir ...," (TSN, May 4, 1984, p. 8)

xxx xxx xxx

Q Did you actually see the buying of the marijuana?

A No, Mam.

Q So, you did not see anything?

A Yes, Mam.

Q None of the three of you, Sgt. Sudiacal and Captain Castillo

witnessed the actual buy of the three sticks of marijuana?

A Yes, Mam.

Q Your basis of the alleged buy by the informant is his word that he
bought it from the suspect?

A Yes, Mam. (TSN, April 9, 1986, pp. 125-126)

It is a known fact that drug dealings are hard to prove in court. Precisely because of this difficulty,
buy-bust operations have to be conducted and every effort is taken such that the suspected pusher
is caught in flagrante selling prohibited drugs. For the culprit to be convicted, the element of sale
must be unequivocally established. In this case, the alleged poseur-buyer who could have
categorically asserted that she bought marijuana from the appellant was not presented by the
prosecution. And Sgts. Ahamad and Sudiacal could not attest to the fact of sale because they were
three blocks away. The sale of marijuana was therefore not positively proven.

Despite the absence of the testimony of the poseur-buyer, the court a quo, however, relied on
circumstantial evidence in concluding that there was indeed a sale:

In this case, the accused admitted that she was the only one selling cigarettes at the
corner of 3rd Street; the informant told the NARCOM Officers that their 'suspect' is a
cigarette vendor positioned thereat. The two (2) 'test buy' yielded positive results as
the informant was able to buy four (4) handrolled sticks of marijuana cigarettes from
her, two at a time. The accused did not ask the reason why when she was invited for
investigation. This act negates innocence and against human nature, especially after
having introduced themselves as NARCOM agents. In her control and possession,
twenty (20) sticks of similar handrolled marijuana cigarettes were recovered from a
trash can under her small table. Her counsel on cross-examination asked Sgt. Tahil
Ahamad the following (TSN, April 9, 1986, p. 14) 'and in order to search that trash
can under the table, you have to ask or request 'Mama Rose' to get out of the way in
order to check the contents of the waste can?' The question was answered, 'We
asked permission from her to stand up so we can look into the contents of her small
table, sir.

When investigated, the accused gave her statement which in fact was a confession
where she admitted having sold marijuana cigarettes. She was taken before the
Fiscal to subscribe the same. While she alleged that she told the Fiscal (Fiscal
Cabali) that the contents of her statement are not true, why then did she sign it
before the said Fiscal? Why did she not insist that her denial be registered on the
document so as to repudiate it? Fear could not be a valid reason as she has already
boldly spoken out when she said the contents were not true. The 'marked money'
were recovered from her possession. She did not deny that the four (4) five peso bills
were taken from her wallet. She was addressed as 'Mama Rose' not once but twice
by the apprehending officers. Her counsel during the cross-examination of the
prosecution witnesses and direct examination of the accused called and addressed
her as 'Mama Rose', and the informant Identified her not only as Rosalinda Ramos
but also as 'Mama Rose'. (At pp. 73-74, Rollo)

This Court finds that the cited circumstantial evidence do not establish beyond reasonable doubt that
there was a sale of marijuana. Considering the severe penalty of reclusion perpetua imposed on
those who sell or distribute drugs, we have to insure that evidence of culpability must pass the test of
the strictest scrutiny. We also have to take into account the oftrepeated defense in violations of the
Dangerous Drugs Act that the drugs or the marked money were planted by police officers. More
direct and positive evidence is essential.

The failure of the appellant to ask why she was being invited for investigation by the NARCOM
officers does not ipso facto indicate her guilt. Fear could have, prevented her from propounding
inquiries to the officers.

Nor does the fact that' marked money was found in her possession show incontrovertibly that she is
the seller of marijuana. The appellant is a cigarette vendor. By the nature of her job, there is a
constant exchange of goods for money. It may be far- fetched but it is possible that she came into
possession of the marked money because she accepted it in the course of legitimate sales of
cigarettes. Again, it is only the poseur-buyer who could testify that she gave marked money to the
appellant in exchange for marijuana sticks.
The fact that the appellant signed the extrajudicial confession despite her insistence that its contents
were not true does not necessarily signify guilt. As earlier stated the extra-judicial confession cannot
be accepted as evidence. It is useless for purposes of proof of sale of prohibited drugs.

Lastly, this Court fails to see how, from her being addressed as Mama Rose by the witnesses and
appellant's counsel and the alleged informant poseur-buyer, the sale of marijuana can be inferred.

Rule 133, Section 6 of the Rules of Court provides:

Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

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

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

beyond a reasonable doubt.

For not successfully meeting the above requirements, the enumerated circumstantial evidence
cannot be a ground for conviction for the sale of marijuana.

With respect to Criminal Case No., 5990, however, this Court upholds the lower court's finding that
the appellant is guilty of possession of marijuana.

Rule 113 Section 6 (b) of the 1985 Rules of Criminal Procedure provides:

SEC. 6. Arrest without warrant. — when lawful. — A peace officer or a private person
may, without a warrant, arrest a person:

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it.

Meanwhile, Section 12 of Rule 126 states:

SEC. 12. Search incident to a lawful arrest. — A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.

Sgts. Sudiacal and Ahamad testified that there was an informant who apprised them of the presence
of a drug pusher at the comer of 3rd Street and Rizal Avenue, Olongapo City. Acting on such
information and in their presence, their superior, Captain Castillo, gave the informant marked money
to buy marijuana. The informant, now turned poseur-buyer, returned with two sticks of marijuana.
Captain Castillo again gave said informant marked money to purchase :marijuana. The informant-
poseur buyer thereafter returned with another two sticks of marijuana. The police officers then
proceeded to the corner of 3rd Street and Rizal Avenue and effected the arrest of appellant.

From the above facts, it may be concluded that the arresting police officers had personal knowledge
of facts implicating the appellant with the sale of marijuana to the informant-poseur buyer. We hold
therefore that the arrest was legal and the consequent search which yielded 20 sticks of marijuana
was lawful for being incident to a valid arrest.
The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does not
undermine the legality of the appellant's arrest.

It is not necessary that the crime should have been established as a fact in order to regard the
detention as legal. The legality of detention does not depend upon the actual commission of the
crime, but upon the nature of the deed when such characterization may reasonably be inferred by
the officer or functionary to who in the law at the moment leaves the decision for the urgent purpose
of suspending the liberty of the citizen (People v. Molleda, 86 SCRA 667 [1978]).

The obligation to make an arrest by reason of a crime does not presuppose as a necessary requisite
for the fulfillment thereof the indubitable existence of a crime (People v. Ancheta, 68 Phil. 415
[1939]).

The appellant argues that if the twenty sticks of marijuana were in a trash can and it was not shown
by clear and convincing evidence that the said trash can belongs to the appellant, then she cannot
be considered as being in possession of marijuana.

In disposing of this contention, this Court quotes with approval the following arguments of the
Solicitor-General:

Appellant's defense falls against the categorical testimony of the NARCOM agents
that the trash can was found under the table where her legitimate wares were being
sold. This fact was not denied by appellant. Therefore, she was the only person who
had access to the trash can. The same was under her immediate physical control.
She had complete charge of the contents of the trash can under the table to the
exclusion of all other persons. In law, actual possession exists when the thing is in
the immediate occupancy and control of the party. But this is not to say that the law
requires actual possession. In criminal law, possession necessary for conviction of
the offense of possession of controlled substances with intent to distribute may be
constructive as well as actual (Black's Law Dictionary, Abridge, 5th Edition, pp. 606-
607). It is only necessary that the defendant must have dominion and control over
the contraband. These requirements are present in the situation described, where
the prohibited drugs were found inside the trash can placed under the stall owned by
appellant. In fact, the NARCOM agents who conducted the search testified that they
had to ask appellant to stand so that they could look inside the trash can under the
'papag' of the appellant. Hence the trash can was positioned in such a way that it
was difficult for another person to use the trash can. The trash can was obviously not
for use by her customers.

Appellant's arguments are inherently weak and improbable and cannot stand against
the clear evidence pointing to her actual possession of the prohibited drug. The raw
facts testified to by the NARCOM agents were corroborated by appellant and their
conclusion-that she had possession of the marijuana sticks found in the trash can- is
consistent with law and reason.

Appellant further contends that it is hard to believe that she would keep the
marijuana sticks in a trash can since it is a precious commodity to pushers and users
thereof.

The above argument is misleading. The value of the marijuana is not the primary
consideration in the concealment of the contraband. The primary consideration is
escaping detection and arrest. Obviously, the modus operandi was to dissimulate the
 act of selling and possession of marijuana sticks which carries the capital penalty
(sic). Appellant could not display it among her regular wares of cigarettes and fruits
for sale. She had to hide them from public view, but near enough to have access to
them. The trash can, to her thinking, would be the last place to look for the precious
commodity. Unfortunately, she was found out. The argument that it was an 'unlikely
place' to hide the precious contraband is in fact the very consideration in choosing it
as the hiding place for the contraband. (At pp. 97-100, Rollo)

We rule, therefore, that the twenty sticks of marijuana are admissible in evidence and the trial court's
finding that the appellant is guilty of possession is correct.

The lower court, however, erred in imposing a fixed penalty of six (6) years and one (1) day for
possession of marijuana. Section 1 of the Indeterminate Sentence Law (Republic Act 4103 as
amended) provides that in imposing a prison sentence for an offense punished by a law other than
the Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum which
shall not be less than the minimum term prescribed by the same. The penalty prescribed by the
Dangerous Drugs Act for possession of marijuana is imprisonment ranging from six (6) years and
one (1) day to twelve (12) years and a fine ranging from P6,000 to P12,000.

WHEREFORE, the appealed decision in Criminal Case No. 5990 is AFFIRMED but MODIFIED. The
appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1)
day to nine (9) years and to pay a fine of six thousand (P 6,000) pesos. The appealed decision in
Criminal Case No. 5991 is REVERSED and SET ASIDE and the appellant is acquitted on grounds of
reasonable doubt.

SO ORDERED.

Fernan, C.J. (Chairman), Feliciano and Bidin, JJ., concur.

Cortes, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-69122 November 16, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO OLAPANI y TAOPA, JOSE TAOPA y OLAPANI, DOMINGO TARIN y TRESMANIO and
NESTOR FRANCISCO (At large), accused-appellants.

The Office of the Solicitor General for plaintiff-appellee.

Arthur E. Galace for accused-appellants.

NARVASA, J.:

Pedro Olapani, Jose Taopa, Domingo Tarin and Nestor Francisco were charged with the crime of
robbery with homicide before the Regional Trial Court of Baguio and Benguet. 1 The indictment
alleged that on or about November 6, 1980, in the City of Baguio, and acting in conspiracy with one
another, they had robbed a taxi driver, Crisanto Alamar, of his day's earnings and then stabbed and
killed him. Only the first three were arrested and arraigned, and after entering a plea of not guilty,
stood trial. Nestor Francisco has not, it seems, been apprehended to this day. The trial resulted in a
verdict of conviction, and the three (3) accused were each sentenced to suffer the penalty
of reclusion perpetua, and solidarily, to indemnify the heirs of the deceased in the amount of
P12,000.00 without subsidiary imprisonment in case of insolvency.

In the appeal seasonably taken by them to this Court the accused attempt to make the single point
that "the Court a quo had erred in admitting and utilizing the extrajudicial confessions and
statements of accused-appellants ... (in violation) of their right to counsel guaranteed by the
constitution, and basing the judgment of conviction thereon." The point is well taken.

There is no dispute about the fact that Crisanto Alamar was stabbed to death, and his money taken
from him. There were however no eye-witnesses either to his killing, or to the asportation of his
earnings. Nobody was presented to identify the appellants as the perpetrators of the felony. Their
conviction was anchored primarily on the written statements given by them in the course of the
investigation by police investigators in which they admitted involvement in the crime, 2 considered
conjointly with admittedly adequate proof of the corpus delicti. 3

The appellants confessions set forth the following facts, to wit:

(1) in the evening of November 6, 1980, at Baguio City, they (Domingo Tarin, Jose
Taopa, and Pedro Olapani), together with Nestor Francisco, boarded the Rubi Rose
taxi driven by Crisanto Alamar and asked to be brought to Hillside, Baguio City;

(2) on the way, Olapani pointed a knife at the neck of Alamar and announced: "Hold-
up ito;" Tarin thereupon took over the steering wheel and the others forced Alamar to
move to the back seat;

(3) at this point, Alamar struggled and kicked Tarin's back; Tarin pulled out his nail
cutter and with the small knife attached to it, stabbed Alamar in the abdomen;

(4) further down Kennon Road, Olapani ordered Tarin to stop the taxi; then, with
Jose Taopa and Nestor Francisco holding Alamar, Olapani stabbed the latter with a
knife; Nestor Francisco also stabbed Alamar;

(5) they dumped Alamar's lifeless body by the roadside and took his earnings, after
which they abandoned the taxi.

The police investigators took the witness stand to identify the sworn statements, attest to the
regularity of their taking, and narrate the events leading to the appellants' apprehension. The doctor
who performed the autopsy deposed on Alamar's injuries and the cause of his death. But, to repeat,
no eye-witness testified, and except for their confessions, no other evidence was introduced to link
the appellants to the crime.
The appellants repudiated their confessions. They denied having freely executed the same. The trial
court nevertheless convicted them as aforestated, on the strength of their confessions.

In this appeal, appellants Olapani, Taopa and Tarin question their conviction on the basis of the
confessions given by them under custodial interrogation. They contend that the same are
inadmissible in evidence because obtained in violation of their constitutional rights. The Court
agrees.

The Constitution 4 , as every one knows, provides for procedural safeguards to secure the right of a
citizen against self-incrimination during custodial interrogation. It grants the person under
investigation for the commission of an offense the rights: (1) to remain silent; (2) to counsel; (3) to be
informed of such right to silence and to counsel; and (4) against the use of force, violence, threat,
intimidation or any other means which vitiates the free will; and it declares any confession obtained
in violation of any of said rights, inadmissible in evidence in any proceeding.

The record supports the appellants' submissions of infringement of their rights. To begin with, it is
doubtful whether appellants were indeed effectively informed of their rights to silence and counsel. A
glance at their individual confessions at once shows that the statements therein purporting to
demonstrate compliance with the constitutional requisites in custodial investigations — said
statements being identical in all three confessions — fall short of the acceptable norms, viz.:

Preliminary: Mr. Domingo Taren y Tresmanio, I am informing you that

I am Pfc. Gilbert T. Oasan who is assigned to investigate you in
connection with your involvement in a case of robbery with homicide
and robbery with intimidation. Before giving any statement in this
investigation, I would like to inform you that under the New
Constitution, you have the right to remain silent, and the right to be
assisted by a lawyer at your own choice; if you cannot afford to get a
lawyer, we can refer you to the Integrated Bar of the Philippines,
Baguio Chapter, Baguio City; should you wish to give your statement
in this investigation, it will be under oath and can be used as
evidence for or against you in any court proceedings in the
Philippines.

Q: Have you fully understood all your rights mentioned above?

A: Yes.

Q: I will investigate you in Tagalog language and I will translate all my

questions and your answers in English. Do you fully understand and
speak Tagalog very well?

A: Yes.

Q: You have the right to remain silent which means you may not give
your statement if you so desire, do you understand?

A: Yes.
 Q: Do you need the services of a lawyer who will assist you in this
investigation so we refer to the Integrated Bar of the Philippines,
Baguio Chapter if you cannot afford to secure a lawyer?

A: I do not need a lawyer to assist me in this investigation.

Q: Are you willing to give your free and voluntary statement even
without the assistance of a lawyer and even if it will be used as
evidence for or against you in any court proceedings?

A: Yes. 5

Now, about a lengthy opening question, this Court has had occasion to remark: 6

Such a long question followed by a monosyllabic answer does not satisfy the
requirements of the law that accused be informed of his rights under the Constitution
and our laws. Instead, there should be several short and clear questions and every
right explained in simple words in a dialect or language known to the person under
interrogation.

The police interrogators knew, since the statements themselves so disclose, that none of the
appellants had gone beyond the elementary level of education, 7 and their limited education was
therefore a handicap to a ready and effective understanding of the meaning and purpose of their
constitutional rights. It was the duty of the investigating officers under these circumstances to have
exerted a little more effort to ensure that information of their rights would be adequately transmitted
to the appellants and understood by them. For, as we have already also had occasion to rule; 8

When the Constitution requires a person under investigation "to be informed" of his
right to remain silent and to counsel, it must be presumed to contemplate the
transmission of meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract principle. ... In other words, the right of a person
under interrogation "to be informed" implies a correlative obligation on the part of the
police investigator to explain, and contemplates an effective communication that
results in understanding what is conveyed. Short of this, there is a denial of the right,
as it cannot truly be said that the person has been "informed" of his rights. Now,
since the right "to be informed" implies comprehension, the degree of explanation
required will necessarily vary, defending upon the education, intelligence and other
relevant personal circumstances of the person under investigation. Suffice it to say
that a simpler and more lucid explanation is needed where the subject is unlettered.

The manner by which, admittedly, appellants were informed of their rights thus leaves much to be
desired.

Even if we were to view the proceedings before the police in the most favorable light, and assume
that the appellants really came to understand their rights, but waived them, and proceeded to
answer the question put to them, their statements would nonetheless still be inadmissable in
evidence because the waiver had been made without assistance of counsel. Admittedly, the rights of
a person under custodial interrogation are waivable. However, the waiver must be made not only
voluntarily, knowingly and intelligently, but, in any case, in the presence and with assistance of
counsel. If the records do not show that the accused was assisted by counsel in making his waiver,
this defect nullifies and renders his confessions inadmissable in evidence. 9

The confessions of appellants being void and inadmissable in evidence, and there being no other
evidence to support the conviction of appellants, the judgment appealed is hereby SET ASIDE and
the appellants ACQUITTED of the charge against them. Costs de oficio.

SO ORDERED.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-48834 September 14, 1987

THE PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
ABELARDO MARQUEZ Y MARTINEZ, defendant.

PADILLA, J.:

Before the Court, on automatic review, is the decision * of the Court of First Instance of Quezon, Ninth (9th) Judicial
District, Branch X-Gumaca, convicting the accused Abelardo Marquez of the crime of rape with homicide and sentencing him to suffer the
supreme penalty of death, to indemnify the heirs of the victim, Eva Alva, in the amount of Twelve Thousand Pesos (P12,000.00) and to pay
the costs. 1

The prosecution's version of the case, as summarized by the court a quo, is as follows:

FOR THE PROSECUTION

That at about 1:00 P.M. of September 16, 1975, while the victim Eva Alva, a six year
old girl, was with her brother, Gerardo, playing with other children on the seashore of
Bo. Balubad, Atimonan, Quezon, the accused, Abelardo Marquez, approached Eva
and took her with him towards the "Cotralco" compound, purportedly for Eva to watch
or guard his banca near there; that about 5:00 P.M., the father of Eva, Geminiano
Alva, came home from work and finding Eva not at home, started to look for her; that
at about 6:00 P.M., Geminiano came upon the accused and asked him of the
whereabouts of Eva; that after accompanying Geminiano to his house, the accused
did not help anymore in looking for Eva and instead, ran away; that at about 7:00
P.M. of September 16, 1975, the body of Eva Alva was found floating in an
abandoned toilet inside the "Cotralco" compound; that the Necropsy Report on the
victim made at 11:36 P.M., September 16,1975 shows the following findings: "POST-
MORTEM FINDINGS 1. Slight abrasion both zygomatic arch; 2. Wound lacerated 3/4
inch in length located at the fourchet down to the perineum 3. Vaginal opening,
 admits the thumb of the head wound is fresh and bleeds upon manipulation." I ; that
the cause of death was "asphyxia" or suffocation; that she was raped before she
died; that the probable time of death was more or less 7 to 9 hours before the
autopsy was made; that on September 22, 1975, the accused surrendered to the
barrio captain of Balubad, who brought him to the police authorities of Atimonan; that
during the police investigation, the accused admitted raping and killing Eva Alva; that
the voluntary admission of guilt by the accused was reduced to writing and duly
sworn to before the then Municipal Judge of Atimonan, Honorable Manuel A.
Roman. 2

On the other hand, the accused's version of the case, also as summarized by the court a quo, is as
follows:

FOR THE ACCUSED

For the defense, the accused himself, Abelardo Marquez, Mariano Villareal and
Efren Albea testified. From their testimonies, the version of the defense follows:

That around 12:00 noon of September 16, 1975, the accused, together with Efren
Albea left Barrio Balubad, Atimonan for Gumaca to buy paint; that after buying paint
and having merienda at Gumaca, they returned to Bo. Balubad arriving there at
about 2:30 P.M. of the same date; that without Efren Albea leaving his side, the
accused then played "mahjong" until 6:00 P.M. when Geminiano Alva came and
asked for Eva Alva; that Geminiano Alva requested the accused in looking for the
child and they looked for her in her house and at the seashore; that failing to find the
child, the accused went home; that later, Geminiano went to the house of the
accused and in an angry voice, called for the accused to come down and talk with
him; that fearing Geminiano who had a bolo with him, the accused went out of his
house and hid in the mountain until September 22, 1975 when he surrenderED to the
Barrio Captain of Balubad, Mariano Villareal; that the barrio captain summoned a
policeman and thereafter, the accused was brought to the municipal jail; that during
the night, Patrolman Angel Francia investigated the accused for three times; that on
the third time, Patrolman Angel Francia prepared an affidavit and told the accused to
sign the same; that the accused fearing the way the policeman looked at him and
without reading the contents of the affidavit affixed his signature thereto; that
thereafter, the accused was placed back in jail and was not bothered in his sleep
anymore during that night; that before the accused signed his affidavit, he was not
told of his rights as an accused; that on April 21, 1976, the accused executed an
affidavit before Fiscal Refazo stating therein that the reason why he signed his
previous affidavit was for fear of being manhandled and that he was forced to admit
the crime because he was told that should he refuse, he will be hanged; that when
the accused subscribed to the truth of his earlier affidavit, Judge Roman did not read
the contents thereof to him and was just told to raise his right hand; that the accused
did not rape nor kill the victim as he was then in Gumaca at the time of the incident in
question. 3

From the evidence adduced, both testimonial and documentary, the court a quo arrived at its version
of the case, to wit:

Premised on all the foregoing considerations, it is the finding of this Court that in the
early afternoon of September 16, 1975, the accused Abelardo Marquez, asked Eva
Alba who was then playing with other children, to go with him and guard his banca
 near the "Cotralco" at Bo. Balubad, Atimonan, Quezon; that Eva Alba knowing the
accused, went with him; that reaching the compound of the "Cotralco," the accused
decided to have carnal knowledge of her; that Eva Alba obviously pained by the rape
being perpetrated on her, cried and shouted; that the accused, to prevent people
from hearing her, covered her mouth and continued to rape her; that continuing to
rape her, the accused found that she was no longer breathing as she suffocated; that
the accused then carried her body and placed the same in an unfinished toilet pit
near where the rape was committed; that thereafter, the accused left the place and
proceeded to Gumaca where he bought paint for his banca; that returning to Bo.
Balubad, he played "mahjong" at Mang Eton and pretended nothing happened; that
early that night of the same day, Geminiano Alba asked him of the whereabouts of
Eva and requested him to look for her; that the accused went with him and pretended
to look for her; that feeling he was strongly suspected after the body was discovered,
the accused hid in the mountain, but unable to contain his guilt, surrendered to the
Barrio Captain six days later; and that during the police investigation, fully aware of
all his rights as an accused voluntarily executed and subscribed to his affidavit dated
September 22, 1975. 4

After trial, as afore-stated, the trial court found the accused guilty beyond reasonable doubt of the
crime of rape with homicide, as defined and punished under Article 335 of the Revised Penal Code.
He was sentenced accordingly.

Accused raises the following assignment of errors:

1. that the court erred in finding the accused guilty beyond reasonable doubt of the crime charged;
and

2. the court erred when it finds the extrajudicial confession of the accused as admissible in
evidence. 5

In support of the first assignment of error, accused contends that he could not be held guilty of the
crime charged, as there was no single eyewitness to the commission of the crime. 6

After a thorough examination of the records of the case, the Court finds no reversible error
committed by the trial court in finding the accused guilty of the crime charged. While there may be no
eyewitness (except the accused himself) to the actual commission of this heinous crime perpetrated
on a six (6) year old girl, there is however more than ample evidence clearly and unmistakably
linking the accused as the author of the crime.

Accused was the last person seen with the victim, Eva Alva. He was positively Identified by the
prosecution witnesses Gerardo Alva and Sotero Ricafort. Gerardo Alva testified that at around one
o'clock in the afternoon of 16 September 1975, while he was playing with other children, including
his sister Eva Alva, on the seashore of Bo. Balubad, Atimonan, accused approached his sister and
told her to go with him to watch or guard his banca near the "Cotralco" compound. The testimony 7 of
the nine year old witness, Gerardo Alva, reads:

Q. Do you know Abelardo Marquez?

A. Yes, sir.

Q. Point him in Court.

 A. Yes, sir (Witness pointing to a person in the accused stand who,
when asked of his name responded to be Abelardo Marquez),

Q. Before your sister died on September 16, 1975, at about one

o'clock of September 16, 1975, you and your sister Eva, together with
other children of barrio Balubad are playing in the seashore, is it not?

A. Yes, sir. We were playing.

Q. And while you were playing there, you saw the accused Abelardo
Marquez approached your sister Eva?

A. Yes, sir.

Q. And what did Abelardo do when he approached your sister?

A. He accompanied her. "Isinama po."

Q. Where did they go?

A. Near the Cotralco, sir.

Q. After they have gone to the Cotralco, did you join your sister?

A. Yes, sir, but he told me to return. I joined but I was ordered to

return.

Q. Who ordered you to return?

A. Abelardo, sir.

Q. And from that time on, you did not see your sister Eva alive
anymore?

A. No, sir.

Another prosecution witness, Sotero Ricafort, also Identified the accused as the person whom he
saw talking to the victim Eva Alva in the afternoon of 16 September 1975, and after which, he saw
the accused and the victim going towards the direction of the "Cotralco." At about six o'clock in the
evening of the same day, 16 September 1975, he learned that Eva Alva was dead. 8

Both prosecution witnesses testified that they saw the accused with the victim Eva Alva going to the
direction of the "Cotralco" compound. The body of Eva Alva was found floating in an abandoned
toilet pit inside the "Cotralco" compound. It was also established that the victim probably died seven
(7) to nine (9) hours before the autopsy was made, which was about the same time that the victim
was seen with the accused before her disappearance.

Accused interposed the defense of alibi. The trial court correctly rejected his defense. The court
said: "... the place of the incident is not of such distance as to preclude the accused from being in
Gumaca and yet be in that place of the incident at the probable time of death of the victim.
Especially so in this case where the accused also admitted that he was back in Bo. Balubad,
Atimonan from Gumaca at about 2:30 P.M. of the same day, which time is also within the probable
time of death of the victim as per Exhibit "A" for the prosecution (Necropsy Report Medico-Legal) ...
"9

Well settled is the rule that for alibi to prosper, it must be established by positive, clear and
satisfactory evidence. The accused must show not only that he was somewhere else when the crime
was committed but that he must likewise demonstrate that it was physically impossible for him to
have been at the place where the crime was committed at the time of its commission. 10

Moreover, flight is evidence of guilt. On direct examination, accused admitted hiding in the
mountains for six (6) days after the death of Eva Alva, or until 22 September 1975. when he
surrendered to the Barrio Captain of Balubad. 11

Accused questions the credibility of pro petition witnesses Sotero Ricafort and Ceferino Nieva claiming certain allegedly material
contradictions and inconsistencies in their testimonies. The alleged contradictions and inconsistencies pointed out by the accused in the
affidavit and testimony in court of said witnesses refer to minor details which do not destroy the credibility of the witnesses. On the contrary,
they indicate that the witnesses were telling the truth and not previously rehearsed. 12

On the admissibility of the extrajudicial confession of the accused, let it be noted that the preliminary
questions of the police investigator informing the accused of his rights and his answers thereto, read
as follows:

1. Tanong: Ito ba ay iyong nalalaman?

Sagot: Opo, nalalaman ko po.

2. T: Bago ka magbigay ng salaysay sa pagsisiyasat na ito ay

nalalaman mo ba na ikaw ay may karapatang manahimik at huwag
sumagot sa ano mang tanong sa iyo at ang lahat ng iyong sasabihin
sa pagsisiyasat na ito ay maaaring gamitin laban o panig sa iyo sa
alin mang Hukuman?

S: Nalalaman ko po, ngunit handa po akong magbigay ng salaysay

sa pagsisiyasat na ito.

3. T: T: Nalalaman mo rin ba na ikaw ay may layang magkaroon ng

manananggol sa pagsisiyasat na ito.

S: Nalalaman ko po, ngunit hindi ko na po kailangan sa ngayon ang

manananggol at sa Hukuman na lamang kung kailangan pa.

4. T: T: Kung ikaw ay bigyan ko ng manananggol sa ngayon?

S: Sa Hukuman na po. 13

The foregoing questions by the police investigator and the answers given thereto by the accused,
satisfy, in our mind, the requirement under the 1973 Constitution then enforced, 14 that the accused be
appraised of his constitutional right to remain silent and to counsel. Such questions substantially transmitted meaningful information to the
accused regarding his aforesaid constitutional rights, as distinguished from a mere ceremonial and perfunctory recitation of an abstract
constitutional principle. 15 There was compliance with People v. Duhan where the Court said:
 ... As a rule, therefore, it would not be sufficient for a police officer just to repeat to
the person under investigation the provisions of Section 20, Article IV of the
Constitution. He is not only. duty-bound to tell the person the rights to which the latter
is entitled; he must also explain their effects in practical terms, e.g., what the person
under interrogation may or may not do, and in a language the subject fairly
understands. (See People vs. Ramos, 122 SCRA 312; People v. Caguioa, 95 SCRA
2.) In other words, the right of a person under interrogation "to be informed" implies a
correlative obligation on the part of the police investigator to explain, and
contemplates an effective communication that results in understanding what is
conveyed. Short of this, there is a denial of the right, as it cannot truly be said that
the person has been "informed" of his rights. Now, since the right "to be informed"
implies comprehension, the degree of explanation required will necessarily vary,
depending upon the education, intelligence and other relevant personal
circumstances of the person under investigation. Suffice it to say that a simpler and
more lucid explanation is needed where the subject is unlettered. 16

We, therefore, agree with the trial court when it held in reference to accused's extra-judicial confession, thus:

... What is primarily important is whether or not said affidavit of confession was
voluntarily executed by the accused and sworn to by and with the accused fully
aware of all his rights. Aside from the presumption of regularity in the performance of
the duties of public officers, the evidence for the prosecution, as well as the
admission of the accused that he did appear before the said Judge and swore to the
truth of the affidavit wherein it was clearly stated that beforehand, he had been
informed of his rights as an accused, more than amply show that the law and
jurisprudence on the taking of extrajudicial confession had been followed
substantially. 17

It is clear that the accused in this case waived his right to counsel before making his extra-judicial
confession. However, this waiver, according to a number of decisions 18 of the Court, to be valid, must be made
with the assistance of counsel, otherwise, the extrajudicial confession would be inadmissible in evidence. 19

Even if we do not, however, consider the accused's extrajudicial confession, the judgment of
conviction stands as the evidence, testimonial and documentary (exclusive of the extrajudicial
confession) abundantly establish accused's guilt beyond reasonable doubt.

The crime committed by the accused is rape with homicide punishable by death under Article 335 of
the Revised Penal Code as amended by Rep. Act No. 4111. Under the 1987
Constitution, 20 however, the penalty of death is abolished. 21 The penalty imposed by the trial court
should, therefore, be reduced to reclusion perpetua.

WHEREFORE, the decision under review is hereby affirmed with the modification that the accused
is hereby sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of the victim,
Eva Alva, in the amount of P30,000.00 and to pay the costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Bidin, Sarmiento and Cortes, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 108494 September 20, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SAMUEL MARRA y ZARATE, ALLAN TAN, alias "Allan Yao,"
PETER DOE, PAUL DOE and TOM DOE, accused.

SAMUEL MARRA y ZARATE, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

REGALADO, J.:

In an information filed before the Regional Trial Court, Branch 43, Dagupan City, Samuel Marra y
Zarate, John Doe, Peter Doe, Paul Doe and Tom Doe were charged with the crime of murder for the
fatal shooting of one Nelson Tandoc on March 7, 1992. 1 On June 4, 1992, an amended information
was filed wherein Allan Tan, alias "Allan Yao," was indicated as an accused instead of John Doe. 2 A
warrant of arrest was thereafter issued against Allan Tan 3 but the same was returned
unserved, 4 hence trial proceeded with regard to herein accused-appellant Samuel Marra alone.

Duly assisted by counsel, appellant pleaded not guilty upon arraignment on May 15, 1992. 5 After
trial on the merits, judgment was rendered by the court below on October 8, 1992 finding appellant
guilty beyond reasonable doubt of the crime charged, attended by the aggravating circumstance of
nighttime, and sentencing him to suffer the penalty of reclusion perpetua. He was further ordered to
pay the heirs of Nelson Tandoc the sums of P50,000.00 as death indemnity, P50,000.00 as actual
damages, P100,000.00 as moral damages, and the costs. 6

The prosecution's eyewitness, Jimmy Din, positively identified appellant as the triggerman in the
killing of Nelson Tandoc. Din recounted that at around 2:00 A.M. on March 7, 1992, he and his
friend, Nelson Tandoc, were conversing with each other in front of Lucky Hotel located at M.H. del
Pilar Street, Dagupan City, which was owned by the witness' father and of which he was the
administrator. He noticed a man pass by on the opposite side of the street. The man made a dirty
sign with his finger and Din informed Tandoc thereof. The man repeated his offensive act and called
them by waving his hands. Infuriated, they followed the man until the latter stopped in front of the
Dunkin' Donuts store at the corner of Arellano and Fernandez streets. They demanded an
explanation from the man but they were not given any. 7

At that instant, two men arrived and one of them inquired what was going on. Tandoc informed him
that they were just demanding an explanation from the man. Din was surprised when Tandoc
unexpectedly slapped one of the two men. A brawl ensued, with Tandoc clashing with the two men
while Din exchanged blows with the man who made the dirty finger sign. After the fisticuffs, their
three opponents ran away in a westward direction. 8

Tandoc and Din then decided to walk back to the hotel. When they were about to enter the place,
they noticed that the men with whom they just had a fight were running towards them. Sensing
danger, they ran inside the annex building of the hotel and immediately secured the lock of the
sliding outer door. They entered a room and waited until they felt that the situation had normalized.
After ten to fifteen minutes, thinking that the men were no longer in the vicinity, they left the room.
Having decided to go home, Tandoc opened the sliding door. All of a sudden, Din saw Appellant,
who at that time was wearing a security guard's uniform, shoot Tandoc with a revolver. There was a
fluorescent bulb installed at the front of the hotel which enabled Din to identify the assailant. Tandoc
was shot in the middle of the chest and he fell down. Then, Din saw four to five men scamper away
from the scene. 9

Aware of his injury, Tandoc told Din, "Tol, I was shot." The latter tried to chase appellant and his
companions but he failed to catch up with them. Din and his wife then brought Tandoc to the Villaflor
Hospital. The victim was taken to the emergency room but he expired an hour later. 10

At about 3:45 A.M. of March 7, 1992, SPO3 Reynaldo de Vera of the Dagupan City Police Station
received a report about a shooting incident at the annex building of the Lucky Hotel. He proceeded
to the crime scene along with SPO4 Orlando Garcia, SPO3 Mauricio Flores and SPO3 Noli de
Castro. Upon their arrival about five minutes later, they were informed by the wife of Jimmy Din that
the victim had been brought to the Villaflor Hospital. They proceeded to the hospital where Din
informed them that he could recognize the man who killed Tandoc and that the killer was, at that
time, wearing the polo shirt of a security guard's uniform. 11

They decided to proceed to an eatery called "Linda's Ihaw-Ihaw." Seeing the security guard of a
nearby bus company, they inquired from him if he knew of any unusual incident that happened in the
vicinity. The guard said that he saw the guard of "Linda's Ihaw-Ihaw," together with some
companions, chasing two persons running towards M. H. del Pilar Street. He further added that the
man was wearing a polo shirt of a security guard's uniform. Asked where that particular guard might
be, he pointed to a man eating inside the eatery nearby. The man eating was not in a security
guard's uniform. 12

They approached the man and inquired whether he was the security guard of "Linda's Ihaw-Ihaw,"
which the latter answered in the affirmative. After a series of questions, they learned that he was
Samuel Marra, that his tour of duty was from 7:00 P.M. of a preceding day to 6:00 A.M. the following
day, that he was still on duty at around 2:30 in the morning of March 7, 1992, and that the firearm
issued to him was in his house. Upon their request to see the firearm, they proceeded to Marra's
residence at Interior Nueva Street. 13

When they arrived, Marra took a .38 caliber revolver from inside an aparador and handed it to De
Vera. De Vera also found five live bullets and one spent shell. Smelling gunpowder from the barrel of
the gun, De Vera asked Marra when he last fired the gun but the latter denied ever having done so.
Abruptly, De Vera asked him point-blank why he shot Tandoc. Marra at first denied the accusation
but when informed that someone saw him do it, he said that he did so in self-defense, firing at the
victim only once. Tandoc allegedly had a samurai sword with him at the time of the incident.
However, persistent efforts on the part of the policemen to thereafter locate said bladed weapon
proved futile. Marra also admitted that prior to the incident, he chased the victim and Din. The
officers then took Marra to the police station where he was detained. 14
Meanwhile, De Vera went to Villaflor Hospital from where he fetched Din and brought him to the
police station. There, Din definitely identified Marra as the assailant. During the investigation, De
Vera also found out that Marra had not firearm license. 15

Dr. Tomas G. Cornel, Assistant City Health Officer of Dagupan City, testified that he conducted an
autopsy on a certain Nelson Tandoc. He found a gunshot wound on the victim with the point of entry
of the left side of the anterior chest wall and the point of exit at the lower left portion of the right
shoulder. 16

Prosecutor Gregorio Gaerlan, stepfather of the victim, testified on the funeral, burial and other
expenses incurred by the family. He declared that they paid Funeraria Quiogue P25,000.00 for its
services; Villaflor Hospital, P2,875.00 for the confinement of Tandoc; St. John Memorial Cathedral,
P350.00; Eternal Garden, P3,000.00 for the interment fee and P150.00 for the rent of the tent during
the burial; and that they spent P2,300.00 for the video tape expenses and P11,800.00 for food and
drinks during the wake. 17

Understandably, appellant gave a different version of the incident. Marra declared in court that he
used to work as a security guard at "Linda's Ihaw-Ihaw" from seven o'clock in the evening to six
o'clock in the morning of the following day. On March 6, 1992, he reported for duty at seven o'clock
that evening as was his usual practice. At around four o'clock down of the following day, he went
home to change his clothes. He proceeded to the Five Star Bus Terminal which was adjacent to
"Linda's Ihaw-Ihaw." He saw Neneng, the cashier of said eatery, and together they orderedarroz
caldo. Later, at about 5:00 A.M., he was approached by four policemen who inquired if he was a
security guard. He answered in the affirmative. He was also asked about his sidearm. When he
answered that it was at his residence, they all went to his house to look for it. After he handed over
the firearm to the policemen, he was brought to the city hall where he was detained. 18

Under cross-examination, he insisted that when he handed the gun to the policeman, there were five
live bullets, and not four live bullets and one empty shell as claimed by the prosecution. Prior to the
incident, he had never met Jimmy Din nor does he know of any cause why Din would harbor any ill
feelings against him. 19

After a careful scrutiny of the records and an objective evaluation of the evidence, the Court is not
disposed to reverse the judgment of the lower court, the decision of the latter being amply supported
by the established facts and fully sustained by the applicable law.

In assailing the decision of the court below, the defense argues that "Jimmy Din . . . was not able to
identify the assailant in a definite and believable manner." It goes on to state further that " Jimmy Din
was inside the hotel when Nelson Tandoc was shot and his vision was o(b)structed by the door.
Jimmy Din was also not familiar with the accused. Under the circumstances by which he allegedly
witnessed the shooting, how could be identify clearly an assailant at the distance of 45 meters?" 20

Appellant's counsel is only partly correct, having conveniently failed to mention other vital parts of
Din's testimony. An impartial review of said testimony readily reveals that Din was indeed in a
position to know the identity of the assailant. Firstly, Din knew for a fact that the persons he and
Tandoc fought with near the Dunkin' Donuts store were the same men who chased them while they
were on their way back to the hotel because he was able to take a good look at them. During the
chase, he naturally turned around to look at the men who were running after them and who were at
that time in front of the Balingit Trading store which was well-lighted. 21 It logically follows that they
were the same persons who were waiting for them when they later came out of the hotel, and he
was familiar with their identities because of their previous encounter.
Secondly, we do not agree with appellant that the door blocked the view of Din. Said door, partly
made of plywood, had a spring hinge which makes it possible for the door to close by itself.
However, at that time the spring hinge had been weakened by long and constant use such that it
would take some time for it to close the door, thereby allowing Din sufficient opportunity to have an
unobstructed view of the scene outside. 22

Thirdly, Din was quite near the victim and appellant, which proximity, enabled him to clearly see
what really happened. He thus readily perceived the actual shooting at the time when Tandoc
pushed the door open. At that precise moment, Din was at the left side of Tandoc and about four to
five meters away from the assailant. 23

Lastly, the place was brightly illuminated by a 20-watt fluorescent bulb installed on the outside wall in
front of the hotel. Marra was only about three meters away therefrom. Such physical conditions
would undeniably afford a clear view from inside the hotel of the immediate area outside and in front
of the same where the incident took place.

The prosecution presented another vital witness in the person of Sgt. Reynaldo de Vera, whose
testimony we shall repeat here for easy reference. In capsulized form, De Vera narrated the
sequence of events that happened after he and his companions went to the crime scene to conduct
an investigation. Having received information that a man in a security guard's uniform was involved
in the incident, they sought information from a security guard of a nearby bus terminal. Said security
guard pointed them to Marra, who at that time was eating in a carinderia nearby. Informed by Marra
that his gun was at his residence, they all went to Marra's residence to get the same. After receiving
said firearm, De Vera asked appellant why he killed Tandoc but Marra initially denied any
participation in the killing. Nevertheless, when confronted with the fact that somebody saw him do it,
Marra admitted the act although he alleged it was done in self-defense. This testimony of De Vera as
to the confession of Marra is of significant weight, but the admissibility thereof shall also be passed
upon.

Section 12(1), Article III of the 1987 Constitution provides that "(a)ny person under investigation for
the commission of an offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. . . . ." The critical inquiry
then is whether or not Marra was under custodial investigation when he admitted the killing but
invoked self-defense. We believe that he was not so situated.

Custodial investigation involves any questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant way. It
is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to
focus on a particular suspect, the suspect is taken into custody, and the police carries out a process
of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. 24

In the case at bar, appellant was not under custodial investigation when he made the admission.
There was no coercion whatsoever to compel him to make such a statement. Indeed, he could have
refused to answer questions from the very start when the policemen requested that they all go to his
residence. The police inquiry had not yet reached a level wherein they considered him as a
particular suspect. They were just probing into a number of possibilities, having been merely
informed that the suspect was wearing what could be a security guard's uniform. As we held
in People vs. Dy: 25 "What was told by the accused to Pat. Padilla was a spontaneous statement not
elicited through questioning, but given in an ordinary manner. No written confession was sought to
be presented in evidence as a result of formal custodial investigation. 26 The trial Court, therefore,
cannot be held to have erred in holding that compliance with the constitutional procedure on
custodial investigation is not applicable in the instant case, . . . ."
Accordingly, the testimony of Sgt. de Vera assumes a dominant dimension because it totally
destroys the defense of denial cum alibi subsequently raised by appellant. In his answers to Sgt. De
Vera, appellant expressly admitted that he shot Tandoc, albeit with an exculpatory explanation. This
admission of Marra is in complete contrast to the statements he later made in open court.

In addition, the law provides that the declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein may be given in evidence against
him and, in certain circumstances, this admission may be considered as part of the res gestae. In a
similar situation involved in the aforecited case of People vs. Dy, this Court held:

. . . the oral confession made by the accused to Pat. Padilla that "he had shot a
tourist" and that the gun he had used in shooting the victim was in his bar which he
wanted surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9) is
competent evidence against him. The declaration of an accused acknowledging his
guilt of the offense charged may be given in evidence against him (Sec. 29 [now Sec.
33], Rule 130). It may in a sense be also regarded as part of the res gestae. The rule
is that, any person, otherwise competent as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and understood
all of it. An oral confession need not be repeated verbatim, but in such a case it must
be given in substance. (23 C.J.S. 196, cited in People vs. Tawat, G.R. No. 62871,
May 25, 1985, 129 SCRA 431). (Italics supplied.)

In any event, even without his admission, the case against appellant has been duly established by
the other evidence of the prosecution, as earlier discussed. However, persistently arguing for an
acquittal, the defense points out that when the police officers saw Marra, he was not in a blue
uniform whereas Din testified that the person who shot Tandoc was wearing the polo shirt of a
security guard's uniform. This is a puerile argument since appellant himself removed any lingering
doubts on this point. He said that on ending his tour of duty at 4:00 A.M. of March 7, 1992, he
decided to go home to change clothes, after which he went to "Linda's Ihaw-Ihaw" to eat. This
explains why, at the time the police officers saw him, he was already in civilian clothes. The shooting
had taken place earlier at around 2:00 A.M. At that time, Marra was still in his security guard's
uniform, being then on duty.

However, while we agree that the crime committed by appellant was murder qualified by treachery,
we reject the finding that the same was aggravated by nighttime. No evidence was presented by the
prosecution to show that nocturnity was specially sought by appellant or taken advantage of by him
to facilitate the commission of the crime or to ensure his immunity from capture. 27 At any rate,
whether or not such aggravating circumstance should be appreciated, the penalty to be imposed on
appellant would not be affected considering the proscription against the imposition of the death
penalty at the time when the offense in the instant case was committed.

WHEREFORE, the judgment of the court a quo finding accused-appellant Samuel Marra y Zarate
guilty of the crime of murder and imposing upon him the penalty and civil liabilities therein stated is
hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
 THIRD DIVISION

G.R. No. 159450 March 30, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
OLIVIA ALETH GARCIA CRISTOBAL, Accused-Appellant.

DECISION

BERSAMIN, J.:

Although a waiver of the right to present evidence by the accused is not a trivial matter to be lightly
regarded by the trial court, the filing of the demurrer to evidence without express leave of court
operates as a waiver that binds the accused pursuant to the express provision of the Rules of Court.

Under challenge in this appeal is the decision promulgated on July 31, 2003 in C.A.-G.R. CR No.
24556, whereby the Court of Appeals (CA) affirmed the conviction for qualified theft of the accused,
a teller of complainant Prudential Bank, and punished her with reclusion perpetua,1 thereby
modifying the decision dated May 26, 2000 rendered by the Regional Trial Court, Branch 57, in
Angeles City (RTC),2 imposing an indeterminate sentence from ten (10) years and one (1) day
of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum.

Antecedents

The information charged the accused with qualified theft, alleging:

That on or about the 2nd of January, 1996, in the City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, OLIVIA ALETH GARCIA
CRISTOBAL, being then the teller of Prudential Bank, Angeles Main Branch, Sto. Rosario Street,
Angeles City, and as such is entrusted with cash and other accountabilities, with grave abuse of trust
and confidence reposed upon her by her employer, with intent to gain and without the knowledge
and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal
and carry away cash money amounting to $10,000.00, belonging to the Prudential Bank, Angeles
Main Branch, represented by its Branch Manager, EDGARDO PANLILIO, to the damage and
prejudice of Prudential Bank, Angeles Main Branch, in the aforementioned amount of TEN
THOUSAND DOLLARS ($10,000.00) or its equivalent of TWO HUNDRED SIXTY THOUSAND
PESOS (₱260,000.00), Philippine Currency and parity rate.

ALL CONTRARY TO LAW.3

After the accused pleaded not guilty at arraignment, the State presented four witnesses, namely:
Prudential Bank Branch Manager Edgardo Panlilio, Sr., Bank Auditor Virgilio Frias, Bank Cashier
Noel Cunanan, and account holder Apolinario Tayag.

The summary of the evidence of the State rendered in the assailed decision of the CA follows:4

xxx

Among the six tellers in the Angeles City main branch of Prudential Bank, accused-appellant
(hereafter "appellant") was the only teller assigned to handle dollar deposits and withdrawals.
On January 2, 1996, an internal spot-audit team headed by Prudential Bank’s senior audit examiner
Virgilio Frias ("Frias"), inventoried the cash accountabilities of the said branch by manually counting
the money in each of the tellers’ cash boxes. While the books of the branch showed that appellant
had a cash accountability of $15,040.52, the money in her cash box was only $5,040.52.

Asked about the shortage of $10,000.00, appellant explained that there was a withdrawal of
$10,000.00 on December 29, 1995 after the cut-off time which would be treated as a withdrawal on
January 2, 1996. Appellant then presented to Frias a withdrawal memo dated January 2, 1996
showing a withdrawal of $10,000.00 from Dollar Savings Account No. FX-836 ("FX-836") of
Adoracion Tayag and her co-signatory, Apolinario Tayag.

On January 3, 1996, appellant showed the aforesaid withdrawal memo to the branch cashier, Noel
Cunanan ("Cunanan"). Noticing that the said withdrawal memo did not contain the required
signatures of two bank officers, Cunanan asked appellant what the nature of the transaction was.
Appellant replied that the depositor, Apolinario Tayag, had instructed her to withdraw $10,000.00
from his account on January 3, 1996, through his driver whom he had sent to the bank. Cunanan,
however, did not notice that while the withdrawal was supposed to have been made on January 3,
1996, the withdrawal memo was dated January 2, 1996. Cunanan then instructed appellant to have
the withdrawal posted in the corresponding ledger and to bring the withdrawal memo back to him so
he and the branch manager, Edgardo Panlilio, could affix their signatures.

Meanwhile, Frias checked the account ledger of FX-836, and found a "hold jacket" indicating that no
withdrawal from the said account should be allowed to reduce its balance below $35,000.00. The
supposed withdrawal of $10,000.00 had reduced the account balance of FX-836 to $26,077.51.

From the account ledger, Frias also discovered that a deposit of $10,000.00 was made on January
2, 1996. He found the deposit memo on file. Thereafter, Frias compared the signature on the
withdrawal memo with the specimen signatures of the depositors in their signature card. Finding a
"big difference" in the signatures, he referred the matter to the branch manager, Edgardo Panlilio
("Panlilio").

Asked by Panlilio to explain, appellant reiterated that the withdrawal was made after the cut-off time
on December 29, 1995. Doubting her explanation, Frias conducted another cash count. At that time,
appellant’s accountability based on the books of the bank was $21,778.86, but the money in her
cash box was only $11,778.86, thus, short of US$10,000.00. When Panlilio again asked appellant to
explain, the latter started to cry and said she would explain to the bank president.

The next day, January 4, 1996, appellant told Panlilio that she gave the $10,000.00 to a person on
December 29, 1995 because her family was being threatened.

In her letter to the bank president dated January 4, 1996, appellant apologized and explained her
shortage of $10,000.00 and another shortage of P2.2 Million which the audit team had also
discovered. She wrote:

… Sometime in the month of September, a man approached me at my counter and handed me a

note demanding me (sic) to give him a big amount of money of P600,000. I looked at him and told
him I don’t have any. He told me to get at my drawer and not to tell anybody because their
companions are at the nearby of my house (sic) and threatened me that something will happened
(sic) to my kids. That time he looked back and I also saw another man w/ radio at his waist, who
stood up and went out. I nervously handed him the money. While doing this, I tried to pull the alarm
at my counter but it was out of order. This alarm was out of order for quite sometime but I was still
hoping it might work. Since that day, time and again, he kept on coming back and I could’nt do
anything but to give in to his request. His second, he demanded for (sic) another P600,000 but I
gave him only P530,000. The 3rd & 4th was P550,000 each. Last December 29, 1995 at around
3:00 pm, I was surprised to see him at my counter, again, he was asking for money. I was balancing
my dollar transaction. But that time, I had delivered my peso cash box to our cashier. He saw the
bundle of $10,000 which was on top of my desk because I was writing the breakdown on my cash
count. He wanted me to give it to him & this time he pointed a gun at me and I got so nervous &
gave him the dollars.

During this time, in order for me to be balance with (sic) my transactions, I cash out checks (suppose
to be for late deposit) & included them in today’s clearing. The following day, I validated the deposit
slips as cash deposit. . .

Apolinario Tayag denied withdrawing $10,000.00 from FX-836 either on December 29, 1995 or on
January 2, 1996 when he was in Baguio City. He said he was not familiar with the withdrawal and
deposit memos showing the withdrawal of $10,000.00 from the said account and the subsequent
deposit of the same amount therein. He also denied the signatures thereon as his or his mother’s.

xxx

Upon the State resting its case against the accused, her counsel filed a Demurrer to Evidence and
Motion to Defer Defense Evidence,5 praying for the dismissal of the charge on the ground that the
evidence of the State did not suffice to establish her guilt beyond reasonable doubt.

However, the RTC denied the Demurrer to Evidence and Motion to Defer Defense Evidence and
deemed the case submitted for decision on the basis that her filing her demurrer to evidence without
express leave of court as required by Section 15, Rule 119, of the Rules of Court had waived her
right to present evidence, viz: 6

WHEREFORE, the Demurer to Evidence filed by the accused is hereby denied for lack of merit.

Reviewing further the records of this case, there is evidence and proof that the Demurrer to
Evidence filed by the accused Cristobal is without express leave of court hence, under Section 15
par. 2 of Rule 119, accused Cristobal has waived her right to present evidence and submit the case
for judgment on the basis of the evidence for the prosecution.

In view thereof, this case filed against accused Cristobal is hereby submitted for decision.

SO ORDERED.

On May 26, 2000, therefore, the RTC rendered its decision finding and pronouncing the accused
guilty of qualified theft,7 disposing:

WHEREFORE, the Court finds Olivia Aleth Cristobal guilty beyond reasonable doubt of the crime of
Qualified Theft and hereby sentences her to suffer the penalty of imprisonment of ten (10) years and
one (1) day of prision mayor to twenty (20) years of reclusion temporal as maximum.

Accused Cristobal is also ordered to pay Prudential Bank, the amount of US $10,000.00,
representing the amount that was lost, plus interest.

SO ORDERED.
The accused appealed, but the CA affirmed her conviction on July 31, 2003, albeit modifying the
penalty,8 finding and ruling as follows:

The following circumstances as established by the prosecution’s evidence, show beyond reasonable
doubt that appellant stole US$10,000.00 from Prudential Bank:

1. Appellant was the only teller in the Angeles City main branch of Prudential Bank assigned
to handle dollar transactions. Thus, it was only she who had access to the subject account
for purposes of dollar deposits and withdrawals;

2. She admitted having transacted or processed the supposed withdrawal of US$10,000.00

from dollar savings account no. FX-836;

3. It was she who presented to the head auditor, Rolando Frias, the withdrawal memo for
US$10,000.00 supposedly withdrawn from dollar savings account no. FX-836, saying that it
was withdrawn on December 29, 1995 after the cut-off time and would be considered a
withdrawal on January 2, 1996;

4. The said withdrawal memo did not contain the required signatures of two bank officers;

5. The supposed withdrawal of $10,000.00 from dollar savings account no. FX-836 reduced
the balance thereof to ₱26,077.51, violating the "hold jacket" or instruction in the account
ledger which disallowed any withdrawal from the said account that would reduce the balance
thereof below ₱35,000.00;

6. The discrepancy in the signature on the withdrawal memo and the specimen signatures in
the depositors’ signature card;

7. Asked to explain the shortage of $10,000.00 revealed by the second cash count, following
the discovery of the aforesaid "hold jacket" in the account ledger and discrepancy in the
signatures, appellant began to cry, saying she would just explain to the bank president;

8. The depositor, Apolinario Tayag, denied withdrawing money from dollar savings account
no. FX-836 either on December 29, 1995, when appellant claimed the withdrawal was made,
or on January 2, 1996, the date of the withdrawal memo, at which time he was in Baguio
City. He was not familiar with the withdrawal and deposit memos showing the withdrawal of
$10,000.00 from the said account and the subsequent deposit of the same amount therein.
He also denied that the signatures thereon belong to him or his mother, Adoracion Tayag,
with whom he shares the account as co-signatory;

9. In her letter to the bank president, she admitted appropriating US$10,000.00 and ₱2.2
Million, and explained how she covered it up;

10. Appellant gave different and inconsistent explanations for her shortage of US$10,000.00.
She explained to the auditors that the said amount was withdrawn on December 29, 1995
after the cut-off time, hence, would be considered as a withdrawal on January 2, 1996. To
the branch cashier, Noel Cunanan, she said that Apolinario Tayag had instructed her to
withdraw $10,000.00 from his account on January 3, 1996, through his driver whom he had
sent to the bank. Later, she told Panlilio and the bank president that she gave the
$10,000.00 to a person on December 29, 1995 because he had threatened her family; and
 11. In her letter to the bank president, she mentioned five instances when the unidentified
man supposedly threatened her and demanded money from her. However, she never
reported any of these incidents to any of the bank officers or the police authorities.

Even without an eyewitness, the foregoing circumstances indicate that appellant committed the
crime, to the exclusion of all others.

In the absence of an eyewitness, reliance on circumstantial evidence becomes inevitable.

Circumstantial evidence is defined as that which indirectly proves a fact in issue through an
inference which the factfinder draws from the evidence established. Resort thereto is essential when
the lack of direct testimony would, in many cases, result in setting a felon free and denying proper
protection to the community. In order that circumstantial evidence may be sufficient to convict, the
same must comply with these essential requisites, viz., (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.

As hereinbefore shown, there is more than one circumstance or indication of appellant’s guilt.
Moreover, the said circumstances, from which the act of taking could be inferred, had been
established by the prosecution’s evidence. And the combination of the said circumstances is clearly
sufficient to convict the appellant of qualified theft beyond reasonable doubt.

In conclusion, We hold that the totality of the evidence points to no other conclusion than that
accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or
circumstances which are proved are not only consistent with the guilt of the accused but also
inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct
evidence in its effect upon the court. This is how it is in this case.

xxx

WHEREFORE, the assailed Decision convicting the accused-appellant of Qualified Theft is

hereby AFFIRMED with MODIFICATION in that the penalty shall be reclusion perpetua and the
accessory penalties of death under Article 40 of the Revised Penal Code, and accused-appellant
shall pay Prudential Bank US$10,000.00, without interest.

SO ORDERED.

Issues

In her appeal, the accused submits that the CA gravely erred:

1. xxx in affirming the conviction of the accused on the basis of an information for qualified
theft that charges the accused to have taken $10,000.00 on January 2, 1996 when the
evidence on record based on various admissions of the prosecution's witnesses reveal that
the accused did not and cannot take away $10,000.00 on January 2, 1996.

2. xxx in affirming the conviction of the accused based on an extra-judicial admission that
was made without assistance of counsel and hearsay evidence as testified by the next most
possible suspects to the loss.

3. xxx in affirming the conviction of the accused when the facts and evidence on record do
not satisfy the elements of the crime as charged.
 4. xxx in affirming the conviction of the accused when the very procedure employed by the
trial court in the case at bench showed leniency to the prosecution and strictness to the
defense in violation of the constitutional and statutory rights of the accused.

5. xxx in affirming the ruling of the trial court that the accused had waived her right to present
evidence-in-chief despite the expressed motion to defer its presentation when the demurrer
to evidence was filed.9

The assigned errors are restated thuswise:

(a) Whether the information filed against the accused was fatally defective;

(b) Whether the RTC correctly found that the accused had waived her right to present
evidence in her defense; and

(c) Whether the extrajudicial admission of taking the amount involved contained in the letter
of the accused to the President of Prudential Bank was admissible under the rules and
jurisprudence.

Ruling

We deny the petition for review and affirm the CA’s decision.

1.

Findings of CA and RTC are affirmed

due to being based on the evidence

There is no question about the findings of fact being based on the evidence adduced by the
Prosecution. The decisions of both lower courts are remarkable for their thoroughness and
completeness. In fact, the accused did not impugn the findings of fact, and confined herself only to
the validity of the information and the legality of her letter due to its being held admissible as
evidence against her. Although she decried her failure to present her evidence on account of her
having demurred without express leave of court, that, too, was not an obstacle to the correctness of
the findings of fact against her. Thus, we sustain the findings of fact, for findings of the CA upon
factual matters are conclusive and ought not to be disturbed unless they are shown to be contrary to
the evidence on record.10

2.

Information was sufficient and valid

The petitioner submits that the information charged her with qualified theft that allegedly transpired
on December 29, 1995, but the evidence at trial could not be the basis of her conviction because it
actually proved that the taking had transpired on January 2, 1996; and that the discrepancy would
unduly prejudice her rights as an accused to be informed of the charges as to enable her to prepare
for her defense. To bolster her submission, she cites the testimony of Virgilio Frias11 to the effect that
she was cleared of her accountability upon her turning her cash box over to the bank cashier on
December 29, 1995, thereby negating the accusation that she had taken the money on December
29, 1995.
The petitioner’s submission is untenable.

The main purpose of requiring the various elements of a crime to be set forth in the information is to
enable the accused to adequately prepare her defense.12 As to the sufficiency of the allegation of the
time or date of the commission of the offense, Section 6 and Section 11, Rule 110 of the Revised
Rules of Court, the rules applicable,13provide:

Section 6. Sufficiency of complaint or information. – A complaint or information is sufficient if it states

the name of the accused; the designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party; the approximate time of
the commission of the offense; and the place wherein the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the
complaint or information. (5a)

Section 11. Time of the commission of the offense. – It is not necessary to state in the complaint or
information the precise time at which the offense was committed except when time is a material
ingredient of the offense, but the act may be alleged to have been committed at any time as near to
the actual date at which the offense was committed as the information or complaint will permit. (10)

Conformably with these rules, the information was sufficient because it stated the approximate time
of the commission of the offense through the words "on or about the 2nd of January, 1996," and the
accused could reasonably deduce the nature of the criminal act with which she was charged from a
reading of its contents as well as gather by such reading whatever she needed to know about the
charge to enable her to prepare her defense.

The information herein did not have to state the precise date when the offense was committed,
considering that the date was not a material ingredient of the offense. As such, the offense of
qualified theft could be alleged to be committed on a date as near as possible to the actual date of
its commission.14 Verily, December 29, 1995 and January 2, 1996 were dates only four days apart.

With the information herein conforming to the standard erected by the Revised Rules of Court and
pertinent judicial pronouncements, the accused was fully apprised of the charge of qualified theft
involving the US$10,000.00 belonging to her employer on or about January 2, 1996.

3.

CA and RTC did not err in deeming petitioner

to have waived her right to present evidence

The accused contended that:

xxx

(2) The trial court denied accused (sic) ‘Demurrer To Evidence and Motion To Defer Defense
Evidence’ and ruled that the accused is considered to have waived her evidence (for alleged lack of
leave of court). Although the accused is not principally relying on this error (because the
prosecution’s own evidence show that she is not guilty), still it was error for the trial court to deprive
the accused of her day in court because the demurrer was at the same time, as stated in the title
thereof, also a motion to defer defense evidence.15
The CA rejected her contention in the following manner:16

As to whether or not the Trial Court correctly ruled that appellant waived the presentation of her
evidence when she filed her "Demurrer To Evidence and Motion to Defer Evidence" without prior
leave of court, We rule in the affirmative.

Appellant’s theory that prior leave of court had been requested because her demurrer was, at the
same time, also a motion to defer defense evidence, cannot be sustained. A motion to defer
evidence does not constitute a request for leave to file a demurrer to evidence. In fact, such motion
indicates that appellant wanted the Trial Court to considerthe demurrer before proceeding to hear
her evidence. Furthermore, there is nothing in appellant’s Demurrer from which it can be inferred
that appellant was asking the Trial Court permission to move for the dismissal of the case.

Section 15, Rule 119 of the Rules of Criminal Procedure provides:

Sec. 15. Demurrer to Evidence. – After the prosecution has rested its case, the court may dismiss
the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the
prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court.

If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When
the accused files such motion to dismiss without express leave of court, he waives the right
to present evidence and submits the case for judgment on the basis of the evidence for the
prosecution. (Emphasis supplied.)

Clearly, when the accused files such motion to dismiss without express leave of court, he waives the
right to present evidence and submits the case for judgment on the basis of the evidence for the
prosecution. In such a case, the waiver of the right to present defense evidence is unqualified.

Unavoidably, Our attention is drawn to the apparent negligence of appellant’s counsel in failing to
secure prior leave of court before filing her Demurrer to Evidence. However, We cannot lose sight of
the fact that in law, the negligence of appellant’s counsel binds her. Indeed, jurisprudence teems
with pronouncements that a client is bound by the conduct, negligence and mistakes of his counsel.

The CA did not thereby err.

The rule in point is Section 15, Rule 119, of the Revised Rules of Court, viz:

Section 15. Demurrer to evidence. – After the prosecution has rested its case, the court may dismiss
the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the
prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court.

If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When
the accused files such motion to dismiss without express leave of court, he waives the right to
present evidence and submits the case for judgment on the basis of the evidence for the
prosecution. (n)

Under the rule, the RTC properly declared the accused to have waived her right to present evidence
because she did not obtain the express leave of court for her demurrer to evidence, thereby
reflecting her voluntary and knowing waiver of her right to present evidence. The RTC did not need
to inquire into the voluntariness and intelligence of the waiver, for her opting to file her demurrer to
evidence without first obtaining express leave of court effectively waived her right to present her
evidence.

It is true that the Court has frequently deemed the failure of the trial courts to conduct an inquiry into
the voluntariness and intelligence of the waiver to be a sufficient cause to remand cases to the trial
courts for the purpose of ascertaining whether the accused truly intended to waive their
constitutional right to be heard, and whether they understood the consequences of their
waivers.17 In People v. Bodoso,18 a prosecution for a capital offense, we leaned towards the
protection of the accused’s constitutional right to due process by outlining the proper steps to be
taken before deeming the right to present evidence as waived, thus:

Henceforth, to protect the constitutional right to due process of every accused in a capital
offense and to avoid any confusion about the proper steps to be taken when a trial court comes face
to face with an accused or his counsel who wants to waive his client’s right to present evidence and
be heard, it shall be the unequivocal duty of the trial court to observe, as a prerequisite to the validity
of such waiver, a procedure akin to a "searching inquiry" as specified in People v. Aranzado when an
accused pleads guilty, particularly –

1. The trial court shall hear both the prosecution and the accused with their respective
counsel on the desire or manifestation of the accused to waive the right to present evidence
and be heard.

2. The trial court shall ensure the attendance of the prosecution and especially the accused
with their respective counsel in the hearing which must be recorded. Their presence must be
duly entered in the minutes of the proceedings.

3. During the hearing, it shall be the task of the trial court to –

a. ask the defense counsel a series of question to determine whether he had

conferred with and completely explained to the accused that he had the right to
present evidence and be heard as well as its meaning and consequences, together
with the significance and outcome of the waiver of such right. If the lawyer for the
accused has not done so, the trial court shall give the latter enough time to fulfill this
professional obligation.

b. inquire from the defense counsel with conformity of the accused whether he wants
to present evidence or submit a memorandum elucidating on the contradictions and
insufficiency of the prosecution evidence, if any, or in default theory, file a demurrer
to evidence with prior leave of court, if he so believes that the prosecution evidence
is so weak that it need not even be rebutted. If there is a desire to do so, the trial
court shall give the defense enough time to this purpose.

c. elicit information about the personality profile of the accused, such as his age,
socio-economic status, and educational background, which may serve as a
trustworthy index of his capacity to give a free and informed waiver.

d. all questions posed to the accused should be in a language known and

understood by the latter, hence, the record must state the language used for this
purpose as well as reflect the corresponding translation thereof in English.

In passing, trial courts may also abide by the foregoing criminal procedure when the waiver of the
right to be present and be heard is made in criminal cases involving non-capital offenses. After
all, in whatever action or forum the accused is situated, the waiver that he makes if it is to be binding
and effective must still be exhibited in the case records to have been validly undertaken, that is, it
was done voluntarily, knowingly and intelligently with sufficient awareness of the relevant
circumstances and likely consequences. As a matter of good court practice, the trial court would
have to rely upon the most convenient, if not primary, evidence of the validity of the waiver which
would amount to the same thing as showing its adherence to the step-by-step process outlined
above.

Also, in Rivera v. People,19 which involved an accused charged with a non-capital offense who filed a
demurrer to evidence without leave of court, the Court, citing People v. Bodoso, supra, remanded
the case to the Sandiganbayan for further proceedings upon finding that the accused had

not been asked whether he had understood the consequences of filing the demurrer to evidence
without leave of court.

Yet, the accused cannot be extended the benefit of People v. Bodoso and Rivera v. People. The
factual milieus that warranted the safeguards in said criminal cases had nothing in common with the
factual milieu in which the RTC deemed the herein accused to have waived her right to present
evidence. The accused in People v. Bodoso, without filing a demurrer to evidence, expressly waived
the right to present evidence. The Court felt that the trial court ought to have followed the steps
outlined therein. The accused in Rivera v. People filed a demurrer to evidence without having to
obtain an express leave of court, considering that the Sandiganbayan itself had told him to file the
demurrer to evidence. Thus, after the demurrer to evidence was denied, the accused was held to be
still entitled to present his evidence.

The accused and her counsel should not have ignored the potentially prejudicial consequence of the
filing of a demurrer to evidence without the leave of court required in Section 15, Rule 119, of the
Revised Rules of Court.20They were well aware of the risk of a denial of the demurrer being high, for
by demurring the accused impliedly admitted the facts adduced by the State and the proper
inferences therefrom.21 We cannot step in now to alleviate her self-inflicted plight, for which she had
no one to blame but herself; otherwise, we may unduly diminish the essence of the rule that gave
her the alternative option to waive presenting her own evidence.

4.

Petitioner’s handwritten letter

is admissible in evidence

The next issue concerns the admissibility of the accused’s letter dated January 4, 1996 to Prudential
Bank’s President explaining the shortage of her dollar collection as bank teller,22 the relevant portion
of which follows:

xxx Sometime in the month of September, a man approached me at my counter and handed me a
note demanding me (sic) to give him a big amount of money of P600,000. I looked at him and told
him I don’t have any. He told me to get at my drawer and not to tell anybody because their
companions are at the nearby of my house (sic) and threatened me that something will happened
(sic) to my kids. That time he looked back and I also saw another man w/ radio at his waist, who
stood up and went out. I nervously handed him the money. While doing this, I tried to pull the alarm
at my counter but it was out of order. This alarm was out of order for quite sometime but I was still
hoping it might work. Since that day, time and again, he kept on coming back and I could’nt do
anything but to give in to his request. His second, he demanded for (sic) another P600,000 but I
gave him only P530,000. The 3rd & 4th was P550,000 each. Last December 29, 1995 at around
3:00 pm, I was surprised to see him at my counter, again, he was asking for money. I was balancing
my dollar transaction. But that time, I had delivered my peso cash box to our cashier. He saw the
bundle of $10,000 which was on top of my desk because I was writing the breakdown on my cash
count. He wanted me to give it to him & this time he pointed a gun at me and I got so nervous &
gave him the dollars.

During this time, in order for me to be balance with (sic) my transactions, I cash out checks (suppose
to be for late deposit) & included them in today’s clearing. The following day, I validated the deposit
slips as cash deposit xxx.

The accused submits that the letter was inadmissible for being in reality an uncounselled
extrajudicial confession, and for not being executed under oath.

The submission lacks persuasion.

The letter was not an extrajudicial confession whose validity depended on its being executed with
the assistance of counsel and its being under oath, but a voluntary party admission under Section
26,23 Rule 130 of the Rules of Court that was admissible against her. An admission, if voluntary, is
admissible against the admitter for the reason that it is fair to presume that the admission
corresponds with the truth, and it is the admitter’s fault if the admission does not.24 By virtue of its
being made by the party himself, an admission is competent primary evidence against the admitter.25

Worth pointing out is that the letter was not a confession due to its not expressly acknowledging the
guilt of the accused for qualified theft. Under Section 30,26 Rule 130 of the Rules of Court, a
confession is a declaration of an accused acknowledging guilt for the offense charged, or for any
offense necessarily included therein.

Nonetheless, there was no need for a counsel to have assisted the accused when she wrote the
letter because she spontaneously made it while not under custodial investigation. Her insistence on
the assistance of a counsel might be valid and better appreciated had she made the letter while
under arrest, or during custodial investigation, or under coercion by the investigating authorities of
the Government. The distinction of her situation from that of a person arrested or detained and under
custodial investigation for the commission of an offense derived from the clear intent of insulating the
latter from police coercion or intimidation underlying Section 12 of Article III (Bill of Rights) of the
1987 Constitution, which provides:

Section 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 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.
To reiterate, the rights under Section 12, supra, are available to "any person under investigation for
the commission of an offense." The phrase does not cover all kinds of investigations, but
contemplates only a situation wherein "a person is already in custody as a suspect, or if the person
is the suspect, even if he is not yet deprived in any significant way of his liberty."27 The situation of
the accused was not similar to that of a person already in custody as a suspect, or if the person is
the suspect, even if she is not yet deprived in any significant way of his liberty.

5.

Penalty was correctly determined

We quote and adopt with approval the CA’s discourse on why the penalty of reclusion perpetua was
appropriate for the offense committed by the accused, to wit:

The foregoing considered, appellant’s conviction must perforce be affirmed. The sentence imposed
by the Trial Court should, however, be modified.

The Trial Court sentenced the appellant to imprisonment of ten (10) years and one (1) day of prision
mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. The correct penalty,
however, should be reclusion perpetua with the accessory penalties of death under Article 40 of the
Revised Penal Code.

Article 310 of the Revised Penal Code provides that qualified theft shall be punished by the penalties
next higher by two degrees than those specified in Article 309 of the Revised Penal Code.
Paragraph (1) of Article 309 states that if the value of the thing stolen exceeds P22,000, the penalty
shall be the maximum period of prision mayor in its minimum and medium periods, and one year for
each P10,000.00 in excess of P22,000.00, but the total of the penalty which may be imposed shall
not exceed twenty years (or reclusion temporal).

Appellant stole US$10,000.00 or P262,140.00 computed based on the exchange rate on December
29, 1995 when the appropriation took place.

Under Article 309, the basic penalty is prision mayor in its minimum and medium periods to be
imposed in the maximum period since the amount stolen exceeded P22,000.00. To determine the
additional years of imprisonment prescribed in Article 309 (1), the amount of P22,000.00 should be
deducted from P262,140.00, thus, leaving the amount of P240,140.00. The net amount should then
be divided by P10,000.00, disregarding any amount below P10,000.00. The result is the incremental
penalty of twenty-four (24) years which must then be added to the basic penalty of the maximum
period of prision mayor minimum and medium periods. The penalty of prision mayor in its minimum
and medium periods has a range of six years (6) and one (1) day to ten (10) years. Its maximum
period is eight (8) years, eight (8) months and one (1) day to ten (10) years, and the incremental
penalty is twenty-four (24) years. Had appellant committed simple theft, the penalty should have
been twenty years of reclusion temporal, the maximum penalty allowable under Article 309, subject
to the Indeterminate Sentence Law.

Considering that the theft is qualified by grave abuse of confidence, the penalty is two degrees
higher than that specified under Article 309. Under Article 25 of the Revised Penal Code, two
degrees higher than reclusion temporal is death. However, Article 74 of the same Code provides that
in cases in which the law prescribes a penalty higher than another given penalty, without specifically
designating the name of the former, and if such higher penalty should be that of death, the same
penalty and the accessory penalties of Article 40, shall be considered as the next higher penalty. 1âw phi1
The Supreme Court held that in such a case, the accused should be meted the penalty of reclusion
perpetua for forty years with the accessory penalties of death under Article 40 of the Revised Penal
Code.

WHEREFORE, we deny the petition for review on certiorari, and affirm the decision promulgated on
July 31, 2003 in CA-G.R. CR No. 24556.

SO ORDERED.

MIRANDA RIGHTS

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 169431 April 3, 2007

[Formerly G.R. Nos. 149891-92]

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JERRY RAPEZA y FRANCISCO, Appellant.

DECISION

TINGA, J.:

In the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a
position of primacy, way above the articles on governmental power.1 Once again, the Court extends
fresh vitality to the rights of a person under custodial investigation, which, beginning with the 1987
Constitution, has been accorded equal but segregate weight as the traditional right against self-
incrimination, to tip the scales of justice in favor of the presumption of innocence and the lot of an
unlettered confessant.

This treats of the appeal from the Decision2 dated 1 July 2005 of the Court of Appeals affirming the
Consolidated Judgment3 dated 24 July 2001 of the Regional Trial Court (RTC) of Palawan, Puerto
Princesa City in Criminal Case Nos. 13064 and 13202 where Jerry Rapeza (appellant) was found
guilty of two (2) counts of murder and sentenced to the penalty of reclusion perpetua for each count,
plus a total of ₱100,000.00 as indemnity for the heirs of the two (2) victims.

In two (2) separate Informations, appellant, together with Mike Regino, was charged with the murder
of the Spouses Cesar Ganzon and Priscilla Libas,4 with the following accusatory allegations:

Criminal Case No. 13064

That on or about the 21st day of October, [sic] 1995, more or less 4:00 o’clock in the afternoon at
Cawa-Cawa District, Municipality of Culion, Province of Palawan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together
and mutually helping each other, with evident premeditation, treachery and abuse of superior
strength, with intent to kill and while armed with bladed weapons, did then and there wilfully [sic],
unlawfully and feloniously attack, assault and stab with their bladed weapons, to wit: knives,
PRI[S]CILLA LIBAS, hitting her in the different vital parts of her body and inflicting upon her multiple
stab wounds which causes (sic) hypovolemic shock which were (sic) the direct and immediate cause
of her instantaneous death.5

Criminal Case No. 13202

That on or about the 21st day of October, [sic] 1995, more or less 4:00 o’clock in the afternoon at
Cawa-Cawa District, Municipality of Culion, Province of Palawan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together
and mutually helping each other, with evident premeditation, treachery and abuse of superior
strength, with intent to kill and while armed with bladed weapons, did then and there wilfully, [sic]
unlawfully and feloniously attack, assault and stab with their bladed weapons, to wit: knives, CESAR
GANZON, hitting him in the different vital parts of his body and inflicting upon him multiple stab
wounds which causes hypovolemic shock which were the direct and immediate cause of his
instantaneous death.6

As Mike Regino was at large, only appellant was arraigned and he pleaded not guilty. Forthwith, joint
trial ensued which resulted in the judgment of guilt against appellant as co-principal for two (2)
counts of murder, with conspiracy and evident premeditation attending the commission of the
felonies. Both cases were thereafter elevated to this Court on automatic review, but later referred to
the Court of Appeals per People v. Mateo.7 The Court of Appeals affirmed the judgment of guilt.8

The prosecution had sought to establish the facts and events recited below.

In the afternoon of 21 October 1995, an unidentified woman went to the Culion Municipal Station and
reported a killing that had taken place in Sitio Cawa-Cawa, Barangay Osmeña, Culion,
Palawan.9 The officer-in-charge, SPO2 Ciriaco Gapas, sent to the victims’ house which was the
scene of the crime an investigating team led by SPO2 Crisanto Cuizon, Jr. and PO2 Isidro
Macatangay. There they saw two bloodied bodies, that of a woman lying on the floor of the sala and
that of a man inside the bedroom. The investigating team wrapped the bodies in blankets and loaded
them in a banca to be brought to the morgue.10 The victims were later identified as Priscilla Libas
and Cesar Ganzon.

The Autopsy Reports11 show that the common cause of death of both victims was hypovolemic
shock secondary to massive bleeding secondary to multiple stab wounds and that both bodies were
in the early stages of decomposition. The medico-legal officer testified that Ganzon sustained six (6)
wounds on different parts of his body while Libas bore sixteen (16) wounds.12 All the wounds of the
victims were fatal and possibly caused by a sharp instrument.

Upon information supplied by a certain Mr. Dela Cruz that appellant had wanted to confess to the
crimes, SPO2 Gapas set out to look for appellant.13 He found appellant fishing in Asinan Island and
invited the latter for questioning. Appellant expressed his willingness to make a confession in the
presence of a lawyer.14 Appellant was then brought to the police station after which SPO2 Gapas
requested Kagawad Arnel Alcantara to provide appellant with a lawyer. The following day, appellant
was brought to the house of Atty. Roberto Reyes, the only available lawyer in the municipality.15 The
typewriter at the police station was out of order at that time and Atty. Reyes could not go to the
police station as he was suffering from rheumatism.16 At the house of Atty. Reyes, in the presence of
Vice-Mayor Emiliano Marasigan of Culion, two (2) officials of the Sangguniang Barangay, SPO2
Cuizon and an interpreter, SPO2 Gapas proceeded with the custodial investigation of appellant who
was assisted by Atty. Reyes. Appellant was expressly advised that he was being investigated for the
death of Libas and Ganzon.

Per the Sinumpaang Salaysay17 that appellant executed, he was informed of his constitutional rights
in the following manner:

xxxx

Tanong: Bago kita kunan ng isang salaysay, ikaw ay mayroong karapatan sa ating Saligang Batas
na sumusunod:

a) Na, ikaw ay maaaring hindi sumagot sa tanong na sa iyong akala ay makaka-apekto sa

iyong pagkatao;

b) Na, ikaw ay may karapatang pumili ng isang manananggol o abogado na iyong sariling
pili;

c) Na, kung ikaw ay walang kakayahan kumuha ng isang ab[u]gado ang Pulisya ang siyang
magbibigay sa iyo.

d) Na, ang lahat na iyong sasabihin ay maaaring gawing ebidensya pabor o laban sa iyo.

Sagot: Opo, sir.

Tanong: Nakahanda ka na bang ipag-patuloy ang pagsisiyasat na ito, na ang ating gagamiting salita
ay salitang Tagalog, na siyang ginagamit nating [sic]?

Sagot: Opo, sir.

x x x18

Thereupon, when asked about the subsequent events, appellant made the following narration:

xxx

Tanong: Maari mo bang isalaysay ang pang-yayari [sic]?

Sagot: Opo, [n]oong Sabado ng umaga alas 8:00[,] petsa 21 ng Oktobre, 1995, kami ni Mike ay
nagkaroon ng pag-iinuman sa kanilang bahay sa Cawa-Cawa at sinabi sa akin [sic] puntahan
naming iyong matanda, dahil may galit daw si Mike sa dalawang matanda [Pris]cilla Libas at Cesar
Ganzon) na nakatira din sa Cawa-Cawa at ang layo ay humigit-kumulang isang daang metro sa
aming pinag-iinuman at kami ay nakaubos ng labing dalawang bote ng beer, mula umaga hanggang
alas kuatro ng hapon at habang kami ay nag-iinom aming pinag-uusapan [sic] ang pagpatay sa
dalawang matanda. Noong sinasabi sa akin ni Mike, ako umayaw ngunit ako ay pinilit at sinabihan
ko rin siya (Mike) at pinag-tatapon [sic] pa niya ang bote ng beer at may sinabi pa si Mike "hindi ka
pala marunong tumulong sa akin, pamangkin mo pa naman ako." At ang sagot ko sa kanya, ay
maghintay ka, mamayang hapon natin[g] puntahan. At noong humigit-kumulang [sa alas] [sic] kuatro
ng hapon, amin ng pinuntahan ang bahay ng mag-asawa, at pagdating namin sa bahay na dala
naming [sic] ang patalim, tuloy-tuloy na kaming umakyat, at hinawakan ni Mike ang babae (Presing)
at nilaslas na ang leeg at sinaksak ng sinaksak niya sa iba’t ibang parte ng katawan at ako ay
umakyat din sa bahay at nakita kong nakataob ang lalaki (Cesar)[,] aking hinawakan [sic] ko sa
kanyang balikat, at siya ay nakaalam [sic] na mayroong tao sa kanyang likuran, akin nang sinaksak
sa kaliwang tagiliran [sic] ng kanyang katawan, at hindi ko na alam ang sumunod na pang-yayari
[sic] dahil ako[’]y tuliro. At kami ay umalis at tumalon sa likod ng kusina, nang alam na naming [sic]
na patay [na] iyong dalawang matanda.

x x x x19

An interpreter was provided appellant as he was not well versed in Tagalog being a native of Samar.
As he is illiterate, appellant affixed only his thumbmark on the statement above his printed name.
Bonifacio Abad, the interpreter, and Atty. Reyes, as the assisting counsel, also signed the statement.
Atty. Reyes signed again as the notary public who notarized the statement.

Thereafter, a complaint for multiple murder was filed against appellant, and Regino was likewise
arrested. Judge Jacinto Manalo of the Municipal Trial Court (MTC) of Culion conducted a preliminary
investigation. Finding probable cause only as against appellant, Regino was ordered released.20 The
Provincial Prosecutor, however, reversed the finding of the MTC by including Regino in the
Informations, but by then the latter had already left Culion.21

Testifying in his defense, appellant presented a different story during the trial. The defense
presented no other witness.

Appellant testified that he did not know the victims and that he had nothing to do with their deaths.
He was a native of Samar and he did not know how to read or write as he never attended
school.22 He arrived in Culion as a fisherman for the Parabal Fishing Boat.23 As his contract had
already expired, he stayed in Culion to look for work. He lived with Regino as the latter was his only
friend in Cawa-Cawa.24 Regino’s house was about 40 meters away from the victims’ house.

Several days after appellant’s arrival, the killings took place. Appellant, along with Regino and
another man named Benny Macabili, was asked by a police officer to help load the bodies of the
victims in a banca. Shortly thereafter, appellant was arrested and brought to the municipal hall where
he was mauled by PO2 Macatangay and placed in a small cell.25 Regino, too, was arrested with him.
While under detention, appellant told the police that it was Regino who was responsible for the killing
of the victims but the police did not believe appellant. But appellant later testified that he implicated
Regino only in retaliation upon learning that the latter pointed to him as the perpetrator.26Appellant
was then asked by SPO2 Gapas to sign a document so that he will be released. When appellant
replied that he did not know how to sign his name, SPO2 Gapas took appellant’s thumb, dipped it in
ink and marked it on the document. 27 Appellant claimed he did not resist because he was afraid of
being mauled again.

Appellant further denied going to the house of Atty. Reyes or meeting Abad, the alleged interpreter.
He never left the jail from the time he was arrested except to attend the hearing before the
MTC.28 When appellant was brought to the MTC, nobody talked to him during the hearing nor did
counsel assist him.29 He was thereafter brought by a police officer to a hut in a mountain where he
was told to go a little bit farther. He refused for fear of being shot. The police officer then got angry
and punched him in the stomach.30

On the basis of appellant’s extrajudicial confession, the RTC found him guilty of both crimes. The
Court of Appeals upheld the trial court.
Appellant submits for our resolution two issues, namely: (1) whether his guilt was proven beyond
reasonable doubt; and (2) whether the qualifying circumstance of evident premeditation was likewise
proven beyond reasonable doubt.

Appellant mainly contends that the extrajudicial confession upon which the trial court placed heavy
emphasis to find him guilty suffers from constitutional infirmity as it was extracted in violation of the
due process guidelines. Specifically, he claims that he affixed his thumbmark through violence and
intimidation. He stresses that he was not informed of his rights during the time of his detention when
he was already considered a suspect as the police had already received information of his alleged
involvement in the crimes. Neither did a competent and independent counsel assist him from the
time he was detained until trial began. Assuming Atty. Reyes was indeed designated as counsel to
assist appellant for purposes of the custodial investigation, said lawyer, however, was not appellant’s
personal choice.

Appellant likewise maintains that although the Sinumpaang Salaysay states that his rights were read
to him, there was no showing that his rights were explained to him in a way that an uneducated
person like him could understand. On the assumption that the confession is admissible, appellant
asserts that the qualifying circumstance of evident premeditation was not amply proven as the trial
court merely relied on his alleged confession without presenting any other proof that the
determination to commit the crime was the result of meditation, calculation, reflection or persistent
attempt.

The Solicitor General, on the other hand, contends that the constitutional guidelines on custodial
investigation were observed. Hence, appellant’s Sinumpaang Salaysay is admissible. Even if
appellant was not informed of his constitutional rights at the time of his alleged detention, that would
not be relevant, the government counsel argues, since custodial investigation began only when the
investigators started to elicit information from him which took place at the time he was brought to the
house of Atty. Reyes. Moreover, appellant did not interpose any objection to having Atty. Reyes as
his counsel. As to the qualifying circumstance of evident premeditation, the Solicitor General submits
that the same was sufficiently proven when accused proceeded to the victims’ house together with
Regino, armed with bladed weapons, in order to consummate their criminal design. He further
argues that appellant’s defense of denial and his lame excuse of being illiterate must be rejected in
the face of a valid voluntary extrajudicial confession.

The fundamental issue in this case is whether appellant’s extrajudicial confession is admissible in
evidence to warrant the verdict of guilt.

There is no direct evidence of appellant’s guilt except for the alleged confession and the corpus
delicti. Upon careful examination of the alleged confession and the testimony of the witnesses, we
hold that the alleged confession is inadmissible and must perforce be discarded.

A confession is admissible in evidence if it is satisfactorily shown to have been obtained within the
limits imposed by the 1987 Constitution.31 Sec. 12, Art. III thereof states in part, to wit:

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 Section 17 hereof shall be
inadmissible in evidence against him.

xxxx

Republic Act No. 7438,32 approved on 15 May 1992, has reinforced the constitutional mandate
protecting the rights of persons under custodial investigation. The pertinent provisions read:

SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public
Officers.—

a. Any person arrested, detained or under custodial investigation shall at all times be
assisted by counsel.

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

xxxx

f. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a
person who is investigated in connection with an offense he is suspected to have committed, without
prejudice to the liability of the "inviting" officer for any violation of law.

If the extrajudicial confession satisfies these constitutional standards, it must further be tested for
voluntariness, that is, if it was given freely by the confessant without any form of coercion or
inducement,33 since, to repeat, Sec. 12(2), Art. III of the Constitution explicitly provides:

(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.

Thus, the Court has consistently held that an extrajudicial confession, to be admissible, must
conform to the following requisites: 1) the confession must be voluntary; 2) the confession must be
made with the assistance of a competent and independent counsel, preferably of the confessant’s
choice; 3) the confession must be express; and 4) the confession must be in writing.34

If all the foregoing requisites are met, the confession constitutes evidence of a high order because it
is presumed that no person of normal mind will knowingly and deliberately confess to a crime unless
prompted by truth and conscience.35 Otherwise, it is disregarded in accordance with the cold
objectivity of the exclusionary rule.36 The latter situation obtains in the instant case for several
reasons.

Appellant was not informed of his constitutional rights in custodial investigation.

A person under custodial investigation essentially has the right to remain silent and to have
competent and independent counsel preferably of his own choice and the Constitution requires that
he be informed of such rights. The raison d' etre for this requirement was amply explained in People
v. Ayson37 where this Court held, to wit:

xxxx

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 statement 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.

x x x 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.

x x x x38

We note that appellant did not voluntarily surrender to the police but was "invited" by SPO2 Gapas to
the police station. There he was detained from 11 o’clock in the morning of 22 October 1995 up to
the morning of 23 October 1995 before his extrajudicial statement was allegedly taken. At this
juncture, appellant should have been informed of his constitutional rights as he was already
considered a suspect, contrary to the finding of the trial court that the mandatory constitutional
guidelines only attached when the investigators started to propound questions to appellant on 23
October 1995 in the house of Atty. Reyes.39 In People v. Dueñas, Jr.,40 we ruled, to wit:

Custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a
general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.
According to PO3 Palmero, right after appellant’s arrest, the latter already insinuated to him that he
would confess his participation in the killing. As he testified on cross-examination:
Q On December 18, 1996, when you arrested him what did he actually told [sic] you?

A Before we put him in jail at the Baler Police Station he told us that he has [sic] to reveal something
about the death of Elvira Jacob.

Q So you already know [sic] that on December 18, 1996 that whatever Catalino Duenas will reveal to
you will give you lead in solving the investigation in connection with the death of Elvira Jacob, isn’t
it?

A Yes, sir.

Q So, you still waited until December 23, 1996 for that revelation, isn’t it?

A Yes, sir. That’s all, your honor.41

In the case at bar, SPO2 Gapas testified:

Q By the way, when you conducted the investigation in the house of Atty. Reyes in Culion, why was
Jerry Rapeza there?

A I invited Jerry Rapeza and upon my invitation he voluntarily came to me.

Q In the first place, why did you invite him?

A To ask [a] question about the crime committed in the Island of Cawa-Cawa.

xxx

Q That was the only reason why you invited him, being a transient in that place you made him a
suspect?

A In the first place[,] Your Honor, he was not a suspect but 2 days after the commission of the crime
a certain person came to me and said that Jerry Rapeza requested that he will give his confession
but in front of a lawyer, so he said: "Puntahan nating [sic] ang isang taong nagngangalang Jerry
Rapeza."

xxx

Q And based on your experienced [sic], would it not be quite strange that a person who committed a
crime would voluntarily give confession because ordinarily a criminals [sic] will find a way to escape?

A Yes, sir. [B]ut at that time the person who assisted me strongly believed that Jerry Rapeza would
confess so I did not make any "tanong-tanong" in order to solve that crime so I proceeded to that
place and talked to the suspect.

Q So you already considered Jerry Rapeza as a suspect?

A When that person informed me that Jerry Rapeza would like to confess.

x x x x [Emphasis ours.]42
Already being held as a suspect as early as 21 October 1995, accused should have been informed
of his constitutional rights. SPO2 Gapas admitted that appellant was not so informed, thus:

Q What was he doing?

A He was fishing, sir.

Q And you told him that you’re going to arrest him?

A He did not refuse to go with me, sir.

xxxx

Q From the Island you brought him to the station?

A Yes, sir.

Q And there you arrived at the station at around 11:00 o’clock in the morning?

A Yes, sir.

Q And then you started to conduct the investigation as Investigator of the Police Station?

A Yes, sir.

xxxx

Q And what was the[,] result of your investigation?

A According to him he would confess and he would give his confession in the presence of a lawyer
so I talked to Kgd. Arnel Alcantara.

x x x x43

Q On October 22, 1995[,] when you brought him to the Police Station, did you start the investigation
at that time?

A Not yet sir, I only talked to him.

Q When did you start the investigation?

A I started the investigation when Jerry Rapeza was in front of his lawyer.

Q When was that?

A October 23, 1995[,] noon time, sir.

Q From the Island you just talked to him?

A Yes, sir.
Q You did not consider that as part of the investigation?

A Yes sir, my purpose at that time was to certain (sic) the suspect of the said crime.

xxxx

Q Please answer my question[,] Mr. Witness, on October 22, 1995, did you inform him of his
constitutional rights?

A No sir, I did not.

x x x x(Emphasis ours.)44

Even supposing that the custodial investigation started only on 23 October 1995, a review of the
records reveals that the taking of appellant’s confession was flawed nonetheless.

It is stated in the alleged confession that prior to questioning SPO2 Gapas had informed appellant in
Tagalog of his right to remain silent, that any statement he made could be used in evidence for or
against him, that he has a right to counsel of his own choice, and that if he cannot afford the services
of one, the police shall provide one for him.45However, there is no showing that appellant had
actually understood his rights. He was not even informed that he may waive such rights only in
writing and in the presence of counsel.

In order to comply with the constitutional mandates, there should likewise be meaningful
communication to and understanding of his rights by the appellant, as opposed to a routine,
peremptory and meaningless recital thereof.46Since comprehension is the objective, the degree of
explanation required will necessarily depend on the education, intelligence, and other relevant
personal circumstances of the person undergoing investigation.47

In this case, it was established that at the time of the investigation appellant was illiterate and was
not well versed in Tagalog.48 This fact should engender a higher degree of scrutiny in determining
whether he understood his rights as allegedly communicated to him, as well as the contents of his
alleged confession.

The prosecution underscores the presence of an interpreter in the person of Abad to buttress its
claim that appellant was informed of his rights in the dialect known to him. However, the presence of
an interpreter during the interrogation was not sufficiently established. Although the confession bears
the signature of Abad, it is uncertain whether he was indeed present to assist appellant in making
the alleged confession.

For one thing, SPO2 Cuizon did not mention Abad as one of the persons present during the
interrogation. He testified:

Q Who were present during that investigation?

A Vice Mayor Marasigan and the two other SB members.

Q Can you identify who are these two SB members?

A SB Mabiran and SB Alcantara.

Q Who else?

A No more, sir.

Q So, there were two SB members, Vice Mayor Atty. Reyes, Gapas and you?

A Yes, sir.

x x x x49

For another, the prosecution did not present Abad as witness. Abad would have been in the best
position to prove that he indeed made the translation from Tagalog to Waray for appellant to
understand what was going on. This significant circumstance lends credence to appellant’s claim
that he had never met Abad.

According to the appellate court, appellant admitted in his Brief that the confession was made in the
presence of an interpreter. The passage in appellant’s Brief on which the admission imputed to him
was based reads, thus:

The extra-judicial confession was allegedly made in Tagalog when accused-appellant is admittedly
not well versed in said language. Even if the confession was made in the presence of an interpreter,
there is no showing that the rights of a person under investigation were effectively explained and/or
interpreted to accused-appellant. The interpreter was not even presented in Court to prove that said
rights were translated in a language understood by accused-appellant. 50

Clearly, the imputation is erroneous. Throughout his Brief, appellant disputes the allegation that he
ever met the interpreter much less made the confession with the latter’s assistance. The evident
import of the passage is that on the assumption that there was an interpreter present still there was
no indication that the rights of a person under investigation were effectively imparted to appellant, as
the interpreter could not translate that which was not even said in the course of the proceeding.

Moreover, SPO2 Gapas testified on direct examination:

Q As a way of refreshing your mind[,] Mr. Witness, can you take a look at this statement [referring to
appellant’s Sinumpaang Salaysay] those appearing on page 1 of the same up to the word "Opo sir,"
kindly take a look at this, do you remember that you were the one who profounded (sic) this (sic)
questions?

A Yes, sir, I was the one who profounded [sic] that [sic] questions.

Q And you are very definite that the answer is in [the] affirmative, in your question and answer?

A I am not very sure, sir.

Q You are not very sure because he has a lawyer?

A Yes, sir.

x x x x51
SPO2 Gapas could not say for certain if appellant had indeed understood his rights precisely
because he did not explain them to appellant. In any event, SPO2 Gapas would be incompetent to
testify thereon because appellant’s alleged confession was made through an interpreter as he did
not understand Tagalog. SPO2 Gapas’ testimony as regards the contents of appellant’s confession
would in fact be hearsay. In U.S. v. Chu Chio,52 this Court rendered inadmissible the extrajudicial
confession of the accused therein because it was not made immediately to the officer who testified,
but through an interpreter. Thus, the officer as witness on the stand did not swear of his own
knowledge as to what the accused had said. Similarly in this case, SPO2 Gapas’s testimony as to
what was translated to appellant and the latter’s responses thereto were not of his personal
knowledge. Therefore, without the testimony of Abad, it cannot be said with certainty that appellant
was informed of his rights and that he understood them.

Not having been properly informed of his rights prior to questioning and not having waived them
either, the alleged confession of appellant is inadmissible.

Confession was not made with the assistance of competent and independent counsel of appellant’s
choice.

Appellant denies that he was ever assisted by a lawyer from the moment he was arrested until
before he was arraigned. On the other hand, the prosecution admits that appellant was provided with
counsel only when he was questioned at the house of Atty. Reyes to which appellant was allegedly
taken from the police station.

SPO2 Gapas testified that he "talked" to appellant when they got to the police station at 11 o’clock in
the morning of 22 October 1995 and the result of their "talk" was that appellant would give his
confession in the presence of a lawyer. Appellant was then held in the police station overnight before
he was allegedly taken to the house of Atty. Reyes.

The constitutional requirement obviously had not been observed. Settled is the rule that the moment
a police officer tries to elicit admissions or confessions or even plain information from a suspect, the
latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the
presence of counsel.53 Appellant did not make any such waiver.

Assuming that Atty. Reyes did assist appellant, still there would be grave doubts as to his
competence and independence as appellant’s counsel for purposes of the custodial investigation.
The meaning of "competent counsel" and the standards therefor were explained in People v.
Deniega54 as follows:

The lawyer called to be present during such investigations should be as far as reasonably possible,
the choice of the individual undergoing questioning. If the lawyer were one furnished in the
accused’s behalf, it is important that he should be competent and independent, i.e., that he is willing
to fully safeguard the constitutional rights of the accused, as distinguished from one who would be
merely be giving a routine, peremptory and meaningless recital of the individual’s constitutional
rights. In People v. Basay, this Court stressed that an accused’s right to be informed of the right to
remain silent and to counsel "contemplates the transmission of meaningful information rather than
just the ceremonial and perfunctory recitation of an abstract constitutional principle."

Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could
not afford one) "should be engaged by the accused (himself), or by the latter’s relative or person
authorized by him to engage an attorney or by the court, upon proper petition of the accused or
person authorized by the accused to file such petition." Lawyers engaged by the police, whatever
testimonials are given as proof of their probity and supposed independence, are generally suspect,
as in many areas, the relationship between lawyers and law enforcement authorities can be
symbiotic.

x x x The competent or independent lawyer so engaged should be present from the beginning to
end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn
of the investigation, and stopping the interrogation once in a while either to give advice to the
accused that he may either continue, choose to remain silent or terminate the interview.

x x x x (Emphasis supplied)55

The standards of "competent counsel" were not met in this case given the deficiencies of the
evidence for the prosecution. Although Atty. Reyes signed the confession as appellant’s counsel and
he himself notarized the statement, there is no evidence on how he assisted appellant. The
confession itself and the testimonies of SPO2 Gapas and SPO2 Cuizon bear no indication that Atty.
Reyes had explained to appellant his constitutional rights. Atty. Reyes was not even presented in
court to testify thereon whether on direct examination or on rebuttal. It appears that his participation
in the proceeding was confined to the notarization of appellant’s confession. Such participation is not
the kind of legal assistance that should be accorded to appellant in legal contemplation.

Furthermore, Atty. Reyes was not appellant’s counsel of choice but was picked out by the police
officers allegedly through the barangay officials. Appellant’s failure to interpose any objection to
having Atty. Reyes as his counsel cannot be taken as consent under the prevailing circumstances.
As discussed earlier, appellant was not properly informed of his rights, including the right to a
counsel preferably of his own choice. SPO2 Gapas testified thus:

xxxx

Q Now Mr. Witness, you will agree with me that the accused[,] when he allegedly gave his voluntary
confession[,] he [sic] did not read the document when he made his thumbmark?

A He did not because according to him he is illiterate.

Q Illiterate because he only placed his thumbmark and you have all the freedom to manipulate him
and in fact he doesn’t know that he is entitled to have a lawyer of his own choice?

A He doesn’t know.

x x x x56

Strikingly, while it was made to appear in the alleged confession that appellant was informed of his
right to a counsel of his own choice and that if he cannot afford the services of one, the police shall
provide him with one, it was overlooked that it was not similarly made to appear in the same
statement that appellant was advised that he had the option to reject the counsel provided for him by
the police authorities.57

Set against the clear provisions of the Constitution and the elucidations thereof in jurisprudence, the
foregoing lapses on the part of the police authorities preclude the admissibility of appellant’s alleged
confession.

Confession is not voluntary.

It is settled that a confession is presumed voluntary until the contrary is proved and the confessant
bears the burden of proving the contrary.58 The trial court found that appellant’s bare denials failed to
overcome this presumption. However, several factors constrain us to hold that the confession was
not given under conditions that conduce to its admissibility.

First, the confession contains facts and details which appear to have been supplied by the
investigators themselves.

The voluntariness of a confession may be inferred from its language such that if, upon its face, the
confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being
replete with details—which could only be supplied by the accused–reflecting spontaneity and
coherence, it may be considered voluntary.59 The trial court applied this rule but without basis. On
closer examination of the evidence, the key details in the alleged confession were provided not by
appellant but by the police officers themselves.

The prosecution failed to establish the actual date of the killings. This is disturbing, to say the least.

The trial court found that the killings were reported to the police at four o’clock in the afternoon of 21
October 1995. That when the investigating team arrived at the scene of the crime, the bodies of the
victims were already rank and decomposing,60 and that two days after the crimes were committed,
SPO2 Gapas had set out to look for appellant following information from a certain Mr. Dela Cruz that
appellant would like to confess to the crimes.

Indeed, SPO2 Gapas testified that he received a report of the killings on 21 October 1995 and sent a
team to investigate the incident. On direct examination, he declared that two days after the
commission of the crime, he received information that appellant would give his confession in front of
a lawyer.61 However, on cross-examination, he stated that it was on the following day or on 22
October 1995 when he found appellant and invited him to the police station and that appellant’s
custodial investigation had taken place on 23 October 1995.

Likewise, SPO2 Cuizon’s testimony is far from enlightening. He testified, thus:

xxxx

Q Now, on October 24, 1995, where were you?

A I was in Culion Police Station.

Q While you were there in the Police Station, what happened?

A A woman reported to us regarding this incident.62

xxxx

Q When was the investigation conducted?

A October 24, 1995.

Q On the same day that you discover [sic] the cadavers?

A The investigation was conducted on October 25, 1995.

x x x x63

The actual date of the commission of the crimes is material in assessing the credibility of the
prosecution witnesses and of the admissibility of the alleged confession.

While the prosecution insists through the recitals of the Informations and the testimony of its
witnesses that the killings took place on 21 October 1995, the totality of its evidence shows
otherwise, i.e. the killings took place earlier. When the bodies were discovered on 21 October 1995,
they were already decomposing, a factor that indicates that the victims had been dead long before
then. How then could appellant have killed the victims at 4 o’clock in the afternoon of 21 October
1995 as expressly stated in the confession, when that was the same date and time when the bodies
were discovered? Had appellant voluntarily confessed and had he really been the killer, he would
have given the correct date and time when he committed the horrid acts. The only sensible way to
sort out the puzzle is to conclude that the police officers themselves supplied 21 October 1995 and
four o’clock in the afternoon as the date and time of the killings in appellant’s statement, a barefaced
lie on which the prosecution based its allegations in the Informations and which SPO2 Gapas
repeated on the witness stand.

Moreover, the police officers went to the house of the victims on 21 October 1995 where they found
the bodies. The autopsy on the victims’s bodies was done the following day or on 22 October 1995
while appellant’s statement was allegedly taken on 23 October 1995. By then, the investigators knew
how and where the victims were killed, circumstances that could have enabled them to fill up the
details of the crime in the extrajudicial confession.64

Curiously, the autopsy report on Ganzon’s body shows that he sustained six (6) stab wounds, four
(4) on the right side of his body and two (2) on the left side. Yet, it is stated in appellant’s
extrajudicial confession that he stabbed Ganzon on his left side. Quite oddly, SPO2 Cuizon testified
that Ganzon was wounded on the left arm only. His full account on this aspect runs, thus:

Q Where did you go?

A I immediately proceeded to the house of the victim.

Q What did you find out when you went to the house of the victim?

A I have seen blood on the ground floor of the house.

xxxx

Q When you opened the house[,] you are [sic] with Macatangay?

A Yes, sir[.] I was with POII Macatangay but he was a little bit far from the victim and I was the one
who opened the door and went upstairs.

Q What did you find out inside the house?

A I have seen a woman lying down with her hands "nakadipa" on the ground and blooded (sic).

xxxx

Q Where else did you go when you were already inside the house?
A I went to the other bedroom.

Q And what did you find out?

A An old man with his face facing downward.

Q The woman already dead was in the sala?

A Yes, sir.

x x x x65

Q Do you know in what bedroom (sic) of her body she was wounded?

A The neck was slashed and both arms and both foot (sic) were wounded.

Q How about the man?

A Left arm, sir.

Q Where else?

A No more, sir.

x x x x66 (Emphasis ours.)

The prosecution’s evidence likewise fails to establish when the custodial investigation had taken
place and for how long appellant had been in detention. Strangely, the confession is undated and it
cannot be ascertained from it when appellant made the confession or affixed his thumbmark
thereon. What emerges only is the bare fact that it was notarized by Atty. Reyes on 23 October
1995. One can only speculate as to the reason behind what seems to be a lack of forthrightness on
the part of the police officers.

These unexplained inconsistencies cast doubt on the integrity and voluntariness of appellant’s
alleged confession.

Second, again appellant was not assisted by counsel.

To reiterate, the purpose of providing counsel to a person under custodial investigation is to curb the
police-state practice of extracting a confession that leads appellant to make self-incriminating
statements.67 And in the event the accused desires to give a confession, it is the duty of his counsel
to ensure that the accused understands the legal import of his act and that it is a product of his own
free choice.

It bears repeating that appellant was held in the police station overnight before he was allegedly
taken to the house of Atty. Reyes. He was not informed of his rights and there is no evidence that he
was assisted by counsel. Thus, the possibility of appellant having been subjected to trickery and
intimidation at the hands of the police authorities, as he claims, cannot be entirely discounted.

Confession was not sufficiently corroborated.

Courts are slow to accept extrajudicial confessions when they are subsequently disputed unless they
are corroborated.68 There must be such corroboration so that when considered in connection with
the confession, it will show the guilt of accused beyond a reasonable doubt.69

As a general rule, a confession must be corroborated by those to whom the witness who testified
thereto refers as having been present at the time the confession was made70 or by any other
evidence.71

The inconsistencies in the testimonies of the police officers as well as any lingering doubt as to the
credibility of appellant’s statement could have been laid to rest by the testimonies of Atty. Reyes, of
Abad, and of those allegedly present during the custodial investigation. However, they were not
presented in court.

Abad’s testimony was likewise crucial in proving that appellant had understood every part of his
alleged confession. Confessions made in a language or dialect not known to the confessant must
also be corroborated by independent evidence.72 As appellant is unschooled and was not familiar
with the Tagalog dialect, his confession which was in Tagalog necessarily had to be read and
translated to Waray allegedly by Abad. This Court has held that "such a multiple process of reading
and translating the questions and translating and typing the answers and reading and translating
again the said answers is naturally pregnant with possibilities of human, if unintentional,
inadequacies and incompleteness which render the said confession unsafe as basis of conviction for
a capital offense, unless sufficiently corroborated."73 A confession may be admissible if it is shown to
have been read and translated to the accused by the person taking down the statement and that the
accused fully understood every part of it.74 To repeat, we cannot accept SPO2 Gapas’ testimony as
regards the contents of appellant’s alleged confession for being hearsay evidence thereon. Since
appellant allegedly made the confession to SPO2 Gapas through Abad, Abad’s testimony is thus
indispensable in order to make the confession admissible. 1a\^/phi 1.net

Consequently, the non-production of these material witnesses raises a doubt which must be
resolved in favor of appellant75 and the confession should be disregarded as evidence.76 Verily, we
are left with the unconvincing testimony of two police officers against whose abuse of authority the
Constitution protects the appellant. As their respective testimonies are sated with inconsistencies
and hearsay evidence, we find the same insufficient bases to hold appellant’s extrajudicial
confession admissible against him.

The only other prosecution evidence under consideration are the autopsy reports with which the
alleged confession supposedly dovetails, as the trial court concluded. However, a perusal of the
alleged confession would reveal that does not fit the details in the autopsy report. As discussed
earlier, Ganzon was found to have sustained six (6) stab wounds on different parts of his body while
appellant allegedly admitted stabbing him on his left side only. The confession does not even state
how many times appellant stabbed the old man. SPO2 Cuizon testified that he saw only one stab
wound on Ganzon’s body and it was on the latter’s left arm. Thus, it is not with the autopsy reports
that the alleged confession dovetails but rather with what the police authorities would like us to
believe as the truth.

Nevertheless, since the confession is inadmissible, it becomes irrelevant whether it dovetails with
the autopsy reports. The corroboration that medico-legal findings lend to an extrajudicial confession
becomes relevant only when the latter is considered admissible. In People v. De la Cruz,77 we held,
to wit:

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.78

No motive could be ascribed to appellant.

For the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential
for conviction when there is doubt as to the identity of the perpetrator.79 In view of the inadmissibility
of the confession, there is no other evidence that directly points to appellant as the culprit. However,
the prosecution failed to show any motive on appellant’s part to commit the felonies. Appellant
consistently denied having known the victims. Although the confession states that Regino allegedly
sought appellant’s help in killing the victims as Regino was his nephew, the fact of their relationship
was denied by appellant and was never established by the prosecution. In People v. Aguilar,80 we
held that "the absence of apparent motive to commit the offense charged would, upon principles of
logic, create a presumption of the innocence of the accused, since, in terms of logic, an action
without a motive would be an effect without a cause."81

Furthermore, appellant’s conduct after the killings was not that of a guilty person. He never
attempted to flee even if he knew that the police authorities were already investigating the incident
as he was summoned to help load the bodies in a banca. Being a transient in the place, he could
have easily disappeared and left the island but he remained there to continue looking for work.

Taken together, these circumstances generate serious doubts that must be resolved in appellant’s
favor, congruently with the constitutional presumption of innocence.

In view of the inadmissibility of appellant’s confession, which is the sole evidence of the prosecution
against him, the resolution of the issue of whether the qualifying circumstance of evident
premeditation had attended the commission of the crimes has become academic. Indeed, there
exists no other prosecution evidence on which appellant’s guilt beyond reasonable doubt may be
based.

In conclusion, the overriding consideration in criminal cases is not whether appellant is completely
innocent, but rather whether the quantum of evidence necessary to prove his guilt was sufficiently
met. With the exclusion of appellant’s alleged confession, we are left with no other recourse but to
acquit him of the offenses charged for the constitutional right to be presumed innocent until proven
guilty can be overcome only by proof beyond reasonable doubt. In fact, unless the prosecution
discharges the burden of proving the guilt of the accused beyond reasonable doubt, the latter need
not even offer evidence in his behalf.82

WHEREFORE, the Decisions of the Regional Trial Court, Branch 52, Palawan, Puerto Princesa City
in Criminal Case Nos. 13064 and 13202 and the Court of Appeals in CA-G.R. CR-H.C. No. 00642
are REVERSED and SET ASIDE. Appellant Jerry Rapeza y Francisco is hereby ACQUITTED for
insufficiency of evidence leading to reasonable doubt. The Director of the Bureau of Prisons is
ordered to cause the immediate release of appellant from confinement, unless he is being held for
some other lawful cause, and to report to this Court compliance herewith within five (5) days from
receipt hereof.

SO ORDERED.
DUTY OF ASSISTINMG COUNSEL

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 94549 August 9, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

RICKY SUETA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Justiniani Prado & Associates for accused-appellant.

REGALADO, J.:

Persistent in his avowals of innocence, accused-appellant Ricky Sueta seeks the reversal of his
conviction by Branch 19 of the Regional Trial Court of Roxas City for the crime of rape in Criminal
Case No. C-3070 thereof. Deplorably, that conviction also stands as a societal indictment, for the
unfortunate victim, Goldie Ruth T. Fuentes, was only five years of age at the time.

The sworn complaint initiated by the girl's grandmother and guardian, Fedelina A. Tan, and the
corresponding information signed by Assistant City Prosecutor Victor C. Posadas, both of which
were filed before the said trial court on January 5, 1990, charged that on December 30, 1990,
appellant willfully, unlawfully and feloniously had carnal knowledge of Goldie Ruth T. Fuentes in
Roxas City. 1

Appellant was apprehended by elements of the Roxas City Police Force a few hours after the
incident at the place where the rape allegedly took place. Although no bail was recommended by the
prosecution for his temporary release, appellant nonetheless prayed that he "be granted bail in the
amount of P40,000.00." The trial court consequently set the application for hearing on January 15,
1990, with the stipulation that the evidence adduced therein would be considered part of the
evidence in the trial on the merits. 2

On February 9, 1990, the trial court issued an order denying appellant's application for bail. The
court opined that the prosecution had clearly established in prima facie case for the crime charged
and the evidence it had adduced was strong enough to show appellant's guilt and to warrant the
filing of an information in court. 3Upon his arraignment on February 13, 1990 with the assistance of
counsel, appellant pleaded not guilty to the charge against him. The trial court thereafter set and
conducted the trial of the case on the merits. 4

The factual antecedents of the present case, as established by the evidence, are well recounted by
the trial court in its decision and are best reproduced hereunder:
In her testimony, the alleged victim of rape, Goldie Ruth Fuentes, at 5 a girl of very
tender age and a kindergarten pupil, told the court that as of December 30, 1989,
she was living with and under the care of her maternal grandparents who were
operating a store at Roxas Avenue, Roxas City, because her parents were working
abroad. Her mother was working in Italy and her father was in Hongkong. In terms
surprisingly clear and unambiguous for a child so young and tender, she related
before the court her story.

At about 12 noon of December 30, 1989, she and a playmate, Temar Hoo, also a girl
about her age, were playing "monkey-monkey", jumping up and down in a small hut
standing on a vacant lot behind a bakeshop in Roxas Avenue, Roxas City, near her
grandparents' store. Suddenly, accused Ricky Sueta whom she identified and
pointed to in court asked her and Temar to play a game couples play. Sueta was
lying down on the flooring of the hut and he told her to sit on his thighs, at the same
time pulling down her panties. And then Sueta inserted, to use her term, his "bird"
into her "flower". Because it was done with some force, she shouted as it was
painful. She felt something hard and solid and then warm liquid getting inside her
genitals. The accused was moving his body sideways and intently looking at her as
he did so.

At this juncture, a certain "Cano" (Lolito Obligacion), who was tending to a few
fighting cocks nearby, shouted, "Goldie, your grandmother is coming." On hearing
that, she stood up, descended the stairs of the hut, and rushed to her grandma and
guardian, Fedelina A. Tan. Grandmother and granddaughter then went home
together.

On reaching home, she confided to her Lola that she felt pain in her "flower" because
Ricky Sueta inserted his "bird" into it. Then her aunt, Marie Lis A. Tan, a registered
nurse, and her uncle, Wilfredo Tan, a physician, took a look at her genitals and
decided to take her to the Roxas Memorial General Hospital here in Roxas City for
physical examination.

At the Roxas Memorial General Hospital, Goldie Ruth Fuentes was subjected to a
pelvic examination by Dr. Ma. Lourdes Lanada, the resident physician then on duty.
Her findings are reflected in a medical certificate marked by the defense as Exh. "1"
(p. 22, record). It shows that the genitalia was grossly normal, that in the labia minora
there was a 1 cm. old healed laceration, lower 3rd right, that the hymen was open
and intact, and that there was no presence of spermatozoa.

The grandmother and guardian of Goldie, Fedelina Tan, testified that at about noon
of December 30, 1989, she was tending their grocery store along Roxas Avenue,
Roxas City. A few minutes before, she saw Goldie playing with a playmate. At about
noon, she started looking for her granddaughter as the child had not come home as
she used to before noontime. She sent one of their salesgirls to look for her in the
neighboring establishments. The salesgirl having failed to find the child, she herself
went out to look for her. She went to several stores nearby and when she entered the
Family Bakeshop a man informed her that Goldie was playing in the backyard, near
the poultry. She hastened to the place, and as she was approaching a small hut that
man shouted, "Goldie, your grandmother is here." When she called her, Goldie came
down from the hut. She saw the accused lying down.
 When they reached home, Fedelina said she bathed Goldie and changed her
clothes. It was then that the little girl started complaining that her genitals were
painful. Asked why, the girl answered it was because the accused inserted his sex
organ into hers. The little girl said this in a more picturesque language: "My flower is
painful because Ricky inserted his bird inside it." Hearing that, she took a good look
at her genitals and she saw a small laceration and a little bleeding. She quickly
summoned her son, Dr. Wilfredo Tan, and his wife, Marie Liz, a registered nurse, and
told them to examine the child. The two quickly concluded that their niece was a
victim of a criminal assault. And so the two took Goldie to the hospital for physical
examination.

From the hospital, Dr. Tan took Goldie to the Roxas City Police Station to lodge their
complaint for rape against the accused. Patrolman Rosendo Abo-ol and three other
policemen were then ordered by a police lieutenant to proceed to the Family
Bakeshop to pick the accused up (sic) for questioning. The policemen found the
accused behind the Bakeshop to pick the accused up (sic) for questioning. The
policemen took the accused to the police station, and on arrival, Pat. Abo-ol saw
Goldie point to the accused as the man who criminally assaulted her.

The girl's uncle, Dr. Wilfredo Tan, told the court that when his mother Fedelina called
him and his wife Marie Liz to examine the little girl who was complaining of pain in
the vagina, they made her lie down, spread her legs and took a look at her genitals.
They saw a laceration at the right labia minora, with redness and swelling. Certain
that his niece was criminally assaulted, he and his wife took her to the hospital for
pelvic examination. A few days later, he accompanied his niece to Dr. Bisnar, and
then to Dr. Jaboneta in Iloilo City for further pelvic examination.

The testimony of Dr. Tan was corroborated in all its material points by his wife, Marie
Liz A. Tan. 5

Appellant does not deny that he was with the victim and her playmate, Thissa Marie ("Temar") Hoo,
at the time of the incident. What he vehemently disputes is the alleged commission of the rape on
the victim. He recalled at the witness stand that in the morning of December 30, 1990, Goldie Ruth
and Temar Hoo were playing children's games at the hut where he usually rested and slept. He had
been recently hired by his brother-in-law, Wilfredo Hoo, to take care of the latter's fighting cocks.
Apart from serving as his sleeping quarters, it was in that hut that he kept watch over Wilfredo Hoo's
game fowls. 6

Appellant further claims that an assistant, Lolito ("Cano") Rodriguez, tended to the fighting cocks
nearby. As noontime approached, appellant decided to take an early nap and he soon fell asleep.
After a while, he was roused from slumber by the noise created by the playful girls. It was then
almost high noon and it was at this time that Goldie Ruth's grandmother arrived to fetch the girl.
Appellant narrated that when her grandmother called out for her, Goldie Ruth clambered out of the
hut but fell on her buttocks. The girl was aided back on her feet by her grandmother and, together,
they departed for home. Shortly thereafter, appellant resumed his interrupted sleep. 7

A few hours later, appellant was awakened by his father who told Sueta that some policemen were
looking for him. Appellant then appeared before the law enforcers and went voluntarily with them to
the Roxas City police station. There, he was surprised to know of the accusation against him.
According to appellant, he was maltreated by the policemen when he professed his innocence.
Since then, he has been under detention. 8
Satisfied beyond reasonable doubt that appellant had indeed perpetrated the dastardly deed on
Goldie Ruth Fuentes, the court a quo rendered its verdict of guilt on June 21, 1990, sentencing
appellant to serve a term of "imprisonment for life (reclusion perpetua), 9to indemnify the victim, her
guardian and/or parents in the amount of P25,000.00, and to pay them P7,000.00 "as
reimbursement for the private prosecutor's fee." The court also credited appellant in the service of
his sentence with the full time that he spent under preventive imprisonment. 10

In this appeal, appellant insists that the trial court committed a grave error when it gave more
credence to the testimonies of the witnesses for the prosecution, particularly the testimony of the
victim herself, Goldie Ruth, than to the version of the defense. He contends that the trial court failed
to take into account the "story-telling" habit of the girl and the inconclusive medical findings of the
doctors who examined Goldie Ruth. 11

After a thorough and careful review of the records, we have perforce to reject appellant's
contentions, fully convinced as we are of the utter lack of merit in the theory and evidence of the
defense.

At the outset, it may be well to recall some doctrines that generally guide the courts in arriving at a
just verdict in prosecutions for rape, to wit: (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 refute; (2) In view of
the intrinsic nature of the crime where two persons are usually involved, the tes timony of the
complainant must be received with extreme caution; and (3) The evidence for the prosecution must
stand or fall on its own merits, and must not be allowed to draw strength from the weakness of the
evidence for the
defense. 12

As in most criminal cases, the issue here boils down to the favorable appreciation by the trial court of
the testimonies proffered by the litigants. In this particular case, the trial court gave more weight and
credence to the declarations of the witnesses for the prosecution and, on that score, the settled rule
is that such a finding must be respected, given the natural advantage that a trial judge has in the
calibration of such evidence. 13

As earlier stated, the offended party, Goldie Ruth T. Fuentes, was only five years old at the time of
the rape. At such a tender age, she could not be expected to weave with uncanny recollection such
a complicated tale as the sexual assault that appellant unconscionably perpetrated on her. She
spontaneously narrated to her grandmother, uncle and aunt, to Wilfredo Hoo and his spouse, and
ultimately to the court, her ordeal at the hands of appellant.

Witness the spontaneity and clarity of her testimony on the stand:

Q On Dec. 30, 1989, at about noontime, can you recall where were
you?

A Yes, sir.

Q Where were you on December 30, 1989 at about noontime?

A I was in a nipa hut.

Q What were you doing in the nipa hut on that date and time?
A I was playing.

Q With whom?

A I was playing with Timar.

Q Who else were present when you were playing with Timar?

A Ricky.

Q Will you please look around and tell us if Ricky Sueta is inside this
courtroom now?

A He is the one. (Witness pointing to a man inside the courtroom who

when asked answered that his name is Ricky Sueta).

Q What kind of game did you play with Timar on December 30, 1989,
at the nipa hut?

A We were playing just like couples.

Q Now who told you to play a game of just like couples?

A Ricky.

Q Now, did Ricky participate in your game just like couples?

A Yes, sir.

Q Could you tell us what did Ricky do to you?

A He forced his organ (in)to my genitals.

Q When he forced his organ in(to) your genitals, what did you do?

A I shouted.

Q Why did you shout?

A Because it was painful.

Q When the organ of Ricky was forced inside your genitals, what did
Ricky do with his body if any?

A His body was moving.

Q Can you demonstrate to us how his body was moving?

A He was moving his body like this. (witness moving her body from
side to side.)
Q While the body of Ricky was moving, did you see his face?

A Yes, sir.

Q How would you describe the face of Ricky?

A He was looking.

Q He was looking to (sic) whom?

A Me.

xxx xxx xxx

Q What was the position of Ricky when he inserted his organ inside
your genitals?

A Lying down.

Q How about you, what was your position when Ricky inserted

is organ inside your genitals?

A I was sitting on his lap.

Q Before Ricky inserted his pennis (sic) inside your organ, were you
wearing panty?

A He pulled it down.

Q And before Ricky inserted his pennis (sic) inside your organ, was
Ricky wearing pants?

A None.

Q What do you mean when you said "None"?

A He was naked.

Q Now, can you tell the Honorable Court if the pennis (sic) of Ricky
penetrated your sex organ?

A His organ penetrated my genitals.

Q Now, while you were sitting on the lap of Ricky who was lying down
and his organ was inside your private part, you said you shouted
because it was painful, after that what happened?

A Cano said, "your grandmother is coming".

 Q Where was Cano when he told you that?

A He was just around.

Q When you heard that your grandmother was coming, what did you
do?

A I went home.

Q Can you recall if that nipa hut had stairs?

A Yes, sir.

Q And your grandmother saw you coming out of the nipa hut?

A Yes, sir.

Q Where were you when your grandmother saw you?

A I was going down when she saw me.

Q Upon seeing your grandmother, what did you do?

A I went to her.

Q Did you tell her anything?

A Yes, sir.

Q What did you tell your grandmother?

A That the organ of Ricky penetrated my organ.

Q And after you told your grandmother that the pennis (sic) of the
accused was inserted in your private part, what did your grandmother
do?

A She brought me to the hospital. 14

Thus, in its order of February 9, 1990 on appellant's application for bail, the court below correctly and
aptly observed: "In the case at bar, Goldie Ruth Fuentes clearly and unequivocally testified that she
felt pain when the accused forced his penis into her genitals. And that pain was her chief complaint
to the examining physician in the hospital. Her narration before the court of when and how the
accused did it was so clear and convincing as to make the court believe that hers was not a
contrived story, as she appeared so young and innocent, as not being capable of contriving stories
that could cause her and her family to suffer shame and humiliation. . . . ." 15Verily, courts usually
lend credence to the testimonies of young girls, especially where the established facts indubitably
point to their having been sexually assaulted. 16
Moreover, Goldie Ruth positively pointed to appellant as her assailant not only once but twice, firstly,
when appellant was brought by the police for questioning at the Roxas City police station and,
secondly, when she was called to testify on the witness stand. 17In both instances, Goldie Ruth
definitely and without hesitation pointed to and identified appellant as her rapist.

Appellant takes issue with the failure of the trial court to appreciate the fact that during her cross-
examination, the victim disclosed that she had earlier been sexually abused by Sueta. The girl stated
that she also reported this to her grandmother and for which she was likewise taken to the hospital
for examination. 18

However, as perceptively observed by the Solicitor General, and with which we agree, the victim
may in all probability have been molested twice by appellant not on different dates but on the same
day and occasion. At any rate, the indubitable fact is that all throughout her testimony, she remained
as assertive and unflinching about the abominable attack on her chastity and the identity of her
attacker as she was when she initially revealed that fact ever so innocently to her grandmother.

What further enervates the case for appellant is his failure to present strong and credible evidence to
rebut the positive testimonies of the prosecution witnesses. Indeed, his bare denials of culpability
and self-serving assertions that he was asleep inside the hut at the time of the incident do not inspire
the slightest consideration in view of his clear and positive identification by the victim as the
paraphiliac predator. 19Appellant has not even presented to the court any plausible reason why the
victim, her grandmother, uncle and aunt would heap upon him such a serious accusation as the rape
of Goldie Ruth.

The defense of denial, when not supported by clear and convincing evidence, deserves no weight in
law. It cannot be given greater evidentiary weight than the testimony of credible witnesses who
testify on affirmative matters, for as between positive and categorical testimony which bears the
earmarks of truth, on one hand, and a bare denial, on the other, the former is generally held to
prevail. 20Further, in the absence of evidence to indicate that the prosecution witnesses were moved
by improper motives, the presumption is that they were not so moved and their testimony should
accordingly be entitled to full credit. 21

Appellant's protestations to the effect that the trial court was moved by considerations of bias since
the victim was a hapless five-year old girl is at best a flaccid and futile attempt to shore a tottering
defense. In the pretensions of appellant, the trial court "was evidently under emotional excitement
transformed into directional sympathy toward the version of the alleged victim largely all because the
one telling the story is young". 22Precisely, the trial court was impressed by the candid and forthright
declaration of the victim despite her tender years. Indeed, while her statement that "Ricky inserted
his bird inside my flower" spoke eloquently, albeit sadly, of the utter innocence and naivete of Goldie
Ruth, it also spelled out volumes of truth to her cries of rape.

It is simply hard to conceive that a young girl would invent such a sordid tale as her violation by
appellant unless it was the plain truth. Time and again, and with indisputable applicability to this
case, the Court has held that when an alleged victim of rape says that she has been violated, she
says in effect all that is necessary to show that rape has been inflicted on her and so long as her
testimony meets the test of credibility, the accused may be convicted on the basis thereof. 23

Appellant makes much of the apparent conflict in the medical findings of the doctors who conducted
physical examinations on Goldie Ruth. Indeed, while those of Dr. Helen Bisnar, a private practitioner,
and Dr. Lourdes Lanaga, a resident physician at the Roxas City Memorial Hospital, indicated that the
victim's hymen was intact, that of Dr. Ricardo H. Jaboneta, the NBI Medico-Legal Officer for Region
VI, showed that the girl's hymen had suffered a laceration through "intra-labial sexual intercourse
with a man on or about the alleged date of commission".24Appellant's arguments on this point are
clearly specious submissions.

The well-entrenched rule is that a medical examination is not an indispensable element in a

prosecution for rape.25Nevertheless, it may be taken into consideration in determining the veracity of
the victim's claim. 26In the case at bar, all the aforestated medical reports submitted by the examining
physicians were one in declaring that the offended party had suffered a one centimeter laceration in
her sexual organ, thus corroborating and lending truth to the victim's account that she had been
violated.

In fact, Dr. Jaboneta, on whose objective medical findings and testimony the court below evidently
relied upon with good reason, was emphatic in declaring before said lower court that the laceration
which he found on the victim's sexual organ was definitely caused by the insertion of a male organ
into the girl's vagina at about the time of the alleged rape. 27In any event, it is beyond cavil that the
mere penetration of the male organ into the labia majora of the victim's genitalia consummates the
felony.

We, therefore, hold that the trial court did not commit a reversible error in convicting appellant since
the constitutional but disputable presumption of innocence in his favor has been clearly and
convincingly breached by the superior evidence of the prosecution. In view, however, of this court's
current policy with regard to the amount of indemnity that may be awarded in rape cases of this
nature, that is, rape of a woman who is below twelve years of age, the indemnification to the victim
and her family should be increased to
P50,000.00. 28Furthermore, the penalty to be imposed on appellant should be reclusion perpetua.

ACCORDINGLY, the judgment convicting accused-appellant Ricky Sueta of the crime of rape is
hereby AFFIRMED, with the MODIFICATIONS that said accused-appellant is hereby ordered to pay
the victim and her family the amount of P50,000.00 as and by way of indemnification, and that the
penalty imposed on him by the trial court is hereby amended to reclusion perpetua.

SO ORDERED.

SECOND DIVISION

G.R. No. 133188 July 23, 2004

PEOPLE OF THE PHILIPPINES, appellee, appellee,

vs.
ELIZAR TOMAQUIN, appellant.

DECISION

AUSTRIA-MARTINEZ, J.:
Once again, the Court is confronted with the issue of the admissibility of an extrajudicial confession.
This appeal particularly involves the question of whether a barangay captain who is a lawyer can be
considered an independent counsel within the purview of Section 12, Article III of the 1987
Constitution.

On December 17, 1996, the Cebu City Prosecutor filed an Information charging appellant with
Murder, committed as follows:

That on or about the 15th day of December, 1996, about 2:30 a.m., in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with
a bladed instrument (tres cantos), with deliberate intent, with intent to kill, with treachery and
evident premeditation, did then and there suddenly and unexpectedly attack, assault and use
personal violence upon one Jaquelyn Luchavez Tatoy, by stabbing her with said bladed
instrument, hitting her on the vital parts of her body, thereby inflicting upon her physical
injuries causing:

"CARDIO RESPIRATORY ARREST DUE TO SHOCK & HEMORRHAGE SEC. TO

STAB WOUNDS TO THE TRUNK (POSTERIOR ASPECT)"

as a consequence of which, Jaquelyn Luchavez Tatoy died almost instantaneously.

CONTRARY TO LAW.1

On arraignment, appellant pleaded "not guilty" to the charge,2 and trial thereafter ensued.

There were no eyewitnesses to the incident, and the prosecution’s evidence, aside from appellant’s
extrajudicial confession, was mainly circumstantial.

As presented by the prosecution, the facts are as follows:

At around 11:00 in the evening of December 14, 1996, appellant Elizar Tomaquin @ Hapon,
together with Rico and Romy Magdasal, Noel Labay, and a certain Cardo, were drinking "Red
Horse" beer in Itom Yuta, Lorega, Cebu City. Appellant left the group at around 1:00 in the morning,

saying he has a headache. At the behest of Rico Magdasal, the group transferred to Lorega proper.
A few minutes later, they heard Rustica Isogan shouting for help as the latter heard Jaquelyn3 Tatoy,
her goddaughter, asking for help. Isogan got two flashlights and they proceeded upstairs to
Jaquelyn’s house. The first to go up was a certain Moises, followed by the brothers Rico and Romy
Magdasal, while Noel and Cardo remained downstairs. Rico noticed that the hinge and the "walling"
of the main door were damaged, as if it were kicked open, and only the light in the kitchen was
turned on. Rico also saw a black shoe on the stairs and another in the sala, which he claims belong
to appellant. When they went into the kitchen, they saw Jaquelyn bloodied and sprawled face-up on
the floor, with her head inside a plastic container. Jaquelyn was brought to the hospital, where she
expired. A neighbor later found a tres cantos with blood on it by the stairs, which Rico also identified
to be appellant’s.4 A certain Rey got the black pair of shoes and tres cantos for safekeeping which
were later turned over to Policeman Tariao of the Homicide Section, Ramos Police Station. The
person who turned over the objects to Policeman Tariao was not identified.5

At around 12:00 in the afternoon of December 15, 1996, barangay tanods Julius Yosores and
Armando Zabate of Lorega, Cebu City, searched for appellant because of the information given by
Rico Magdasal that the shoes and tres cantos found in the scene of the crime belonged to appellant.
Together with Rico, they went to the house of Wilson Magdasal where appellant was temporarily
staying, and found him sleeping. Appellant was wearing a bloodstained maong shorts.
The tanods told appellant that he is a suspect in the killing of Jaquelyn, and brought him to the
house of barangay captain Atty. Fortunato Parawan. There, appellant was asked about the shirt he
was wearing and he told them that it was in Wilson Magdasal’s house. It was Edgar Magdasal who
found his shirt, wet and bloodstained, among the soiled clothes. Atty. Parawan then told his tanods
to take appellant to the police station.6

In the morning of the next day, December 16, 1996, appellant was investigated by SPO2 Mario
Monilar of the Homicide Section, Ramos Police Station in Cebu City. After being apprised of his
constitutional rights, appellant told SPO2 Monilar that he was willing to confess and asked for Atty.
Parawan, the barangay captain, to assist him. SPO2 Monilar called Atty. Parawan but the latter told
him that he will be available in the afternoon. When Atty. Parawan arrived at 2:00 in the afternoon,
he conferred with appellant for around fifteen minutes. Atty. Parawan then called SPO2 Monilar and
told him that appellant was ready to give his statement.7 Appellant’s extrajudicial confession, which
was taken down completely in the Cebuano dialect,8 reads:

Pasiuna: Mr. ELIZAR TOMAQUIN, pahibaloon ko ikaw nga ubos sa atong batakang balaod
(Constitution) aduna kay katungod nga pahibaloon sa imong mga katungod, sama sa imong
katungod sa pagpakahilum, ingon man duna kay katungod sa pagdamgop/pagpilig sa
abogado o manlalaban aron motabang kanimo niining maong imbestighasyon nga may
kalabutan sa kamatayon ni Jaqueline Tatoy niadtong mga alas 2:30 sa kaadlawon kapin
kongkulang niadtong petsa 15 sa bulan sa Disyembra 1996, didto sa Brgy Lorega proper,
Siyudad sa Sugbo. Kong ugaling dili ka maka-abot pagbayad o pagpangitago abogado aron
motabang kanimo karon, ako isip negrepresenttar sa Estado mohatag akong abogado
kanimo. Nasabtan ba kini nimo?

Tubag: OO, nasabtan ka ang akong katungod?

Pangutana: Pahabloon ko usab ikaw nga sumala usab sa atong Batakang Balaod, anfg
tanan nga imong isulti karon dinhi, mahimong magamit ebedensya pabor o batok kanimo sa
bisan asaing husgado sa atong nasud. Nasabtan be usab kini nimo?

Tubag: OO, nasabtan ko usab kanang taan.

Pangutana: Tinuod ba gayod nga nasabtan pag-ayo nimo anf mao nimong mga katungod ug
anadam ka ba nga moperma karon dinhi timailhan sa imong tina-aw nga nga pagsabut?
ingon man andam ka ba sa pagsulti sa matuod walay lain kon kili ang matuod lamang
gayud?

Tubag: O

Tubag: Oo, andam ako nga mpemar Sir ug ania karon dinhi ai Atty Parawan ang among
Brgy Captain nga maoy akong giisip nga abogado nga akong pinili nga maoy motabang
kanako karon. Aron sa pagmatuod, ako kining pirmahan ning ika petsa 16 sa bulan sa
Disyembre 1996.

...

Pangutana: Sunlion ko, andama bas a pagsulti sa matuod Elizar Tomaquin kon dili ang
matuod lamang gayud? Ingon man andam ka ba nga modawat sa resulta o linugdangan
niini?
Tubag: Oo, andam gyud ako.

Pangutana: Palihog isulti ang imong ngalan inong man ang tanan nga circumstacia o rmay
kalambigitan sa imong pagkatawo, sa imong grado, imong trabaho, imong pinuy-anan ug
uban pa?

Tubag: Ako si Elizar Tomaquin kinsa nagdala sa bansagon o apelyedo sa akong mama
sanglit dili man kasado and akong mama ug papa. Ang apelyedo sa akong papa, Cabagui
ug and akon angga Hapon. Ako 19 anyos ang panuigon, ulitawo ug kasamtangan nga
nagpuyo sa Brgy Lorega proper duol sa kapilaya San Roque apan ako lumad nga taga Bo.
Tunga, Moalboal, Cebu diin didto ano nakatungha sa grade six.

Pangutana: Niadtong kaadlawon sa petsa 15 sa bulan sa Disyembre 1996, diin ka man?

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

Pangutana: Nganong nakahiabwo ka man na duna silay TV nga colored?

Tubag: Suweto man ko kay permi ko magtan-awan sa ilang colored TV.

Pangutana: Niadtong niagi ka sa ilang bentana aron pagkawat sa ilang TV, diin ka man
punta deretso.

Tubag: Deretso ako sa may lamesa sa ilang sala diin didto gibutang ilang TV.

Pangutana: Nakuha ba gayod nimo anf maong TV?

Tubag: Wala, kay sa akong pag-alsa sa among TV nisyagit man si Jaqueline Tatoy nga
naghidga sa ilang may terrace ug nidagan siya padulong sa kusina nila ug diha-diha akong
siyang ginsunod, gilayog ug gidunggab makadaghan pinaagi sa akong tres kantps nga
hinagiban (Gidtudo ni Eliza rang Tres Kantos nga nakit-an didto sa patyang lawas nga
Jaqueline Tatoy).

Pangutana: Kapila nimo dunggaba ug diin maigo si Jaqueline Totay?

Tubag: Dili na ko nakahinumdom, ingon man dili sba ko makahinumdom kon diin to siya
maigo. Basta manadaghan to nako siya dunggaba ginamit ko ang akong Tres kantos.

Pangutana: Gawas nga imo to siyang gidunggab, wala ba nimo pahimudsi and iyang
pagkapbabye o wala ka bay plano sa pag rape kaniya niadtong higayona?

Tubag: Wala gyud to nako siya pahimudsi og wala gyud koy tuyo sa pag rape niya. Ang ako
ra gyud nga tuyo mao ra gyud and pagkawat sa ilang TV apan kay nisiyagit man siyang
nakaila man kayo siya nako, nahadlok kong mahibaw-an sa ako untang pagkawat sa ilang
TV, hinungdan nga ako siyang gilayog ug gidunggab makadaghan.
Pangutana: Nganog nakahibawo or nakaila ka man nga si Jaqueline Tatoy tong naisiyagit ug
imong gidunggab?

Tubag: Duna ma hayag nga suga sa elektresidad sa ilang may kusina.

Pangutana: Kaila ba nimong daan si Jaqueline Tatoy?

Tubag: Oo, Sir ka saw ala pa ang among hitabo permi man kong nagtan-awan sa ilang TV.

Pangutana: Human nim dunggaba si Jaqueline Tatoy unsa may sunod nimonh gibuhat?

Tubag: Dihang sa akong pagtoo nga patay na siya, ako naidagan agi sa pultahan nga akong
gisikaran dayon kanaog subay sa hagdan didto nabiyaan nako ang akong sapatos.

Pangutana: Diin ka man paduiong dagan?

Tubag: Didto ako padulong sa akong gipuya-an sa ilang Wilson Magdasal sa maong Brgy.

Pangutana: Unya unsa may sunod nimonh gibuhat og nahibaw-an?

Tubag: Niadtong hapon sa petsa 15 sa bulan sa Disyembre 1996, didtoy mga Brgy Tanods
sa balay ni Wilson Magdasal diin ila akong gipangutaan tali sa maong hitabo og igo lan ako
nitudlo sa akong white Slave shirt nga akong gihumulan ug tubig sa planggana sa tumong
nga makuha ang mansa sa dugo nga pinisik sa akong paggdunggab patay ni Jaqueline
Tatoy.

Pangutana: Ngano ug unsa may diay kalabutan niadtong maong slaveless white shirt nimo?

Tubag: Mao na ang akong gisul-ob dihang akog kawaton unta ang TV nila ni Jaqueline ug sa
iyang pagsiyagit ako siyang gidunggab-dunggab patay. (Elizar Yomaquin postivo nga nitudlo
ug niangkon sa maong whitel sleve less shirt)

Pangutana: Kinign nia karon dinhi nga sapatos itom nga nakuha didto so hagdan sa balay
nila ni Jaqueline Tatoy human siya nakit-i nga patay, unsa may imong ikasulti niini?

Tubag: Mao kana ang akong sapatos nga nabiyaan didto sa ilang hagdan human sa hitabo
ug gain sa akong pagdagan akong napatiran kadtong ilang container.

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

Tubag: Wala na akoy ikadugang pagsulti ni bakwion ba hinnon. Nao kana ang tanan.

Pangutana: Andam ka ba pagperme niini sa pagmatuod nga wlay tawo nga nagpugos,
naghulga, nagsaad ug gnate o nag hadlok ba hinoon kon dili sa imong kaugalingon nga
kabubut-on lamang.

Tubag: Oo, andam ako pageram. Aron matuoron kining tanan kini akong permaahn ning
petsa 16 sa Diusyembre 1996, Siyudad Sugbo, Pilipinas.9
On the witness stand, appellant did not deny that he had a drinking spree with Rico Magdasal and
three other persons. His version of the incident is that it was Rico who committed the crime and not
him. Appellant testified that Rico asked his help in stealing the television set from the Tatoy’s
residence. When Jacquelyn saw them, she ran towards the kitchen but she did not reach it as Rico
had stabbed her on the back with the tres cantos. Appellant claims that it was Rico who owns
the tres cantos, as well as the pair of shoes, left inside Tatoy’s house. Afraid of what happened,
appellant went home to Wilson Magdasal’s house and slept there. He was awakened the next
morning by barangay tanod Julius Yosores who kicked him. Yosores also boxed and poked a gun at
him. Appellant claims that Rico and Edgar Magdasal maltreated him in the presence
of barangay captain Atty. Fortunato Parawan when he was brought to the latter’s house. He was
made to admit committing the crime because Rico has a family while he is single.10

Appellant also repudiated his extrajudicial confession, saying that Atty. Parawan merely asked him
to sign a blank sheet of paper and in exchange, Atty. Parawan promised to assist and help him with
his expenses.11

After trial, the Regional Trial Court of Cebu City (Branch 18) (RTC for brevity) rendered its decision
on October 24, 1997, convicting appellant of the crime of Murder, to wit:

WHEREFORE, in view of all the foregoing considerations, accused Elizar Tomaquin is found
guilty beyond reasonable doubt of the crime of Murder and is hereby imposed the penalty of
RECLUSION PERPERTUA, with the accessory penalties of the law; to indemnify the heirs of
Jaquelyn Tatoy in the sum of P50,000.00 and to pay the costs. The accused is, however,
credited in full during the whole period of his detention provided he will signify in writing that
he will abide by all the rules and regulations of the penitentiary.

SO ORDERED.12

Hence, this appeal.

In his Brief, appellant raises the following Assignment of Errors:

1. THE TRIAL COURT ERRED WHEN SHE (SIC) CONVICTED ACCUSED-APPELLANT

BASED ON HIS UNCOUNSELLED CONFESSION;

2. THE TRIAL COURT LIKEWISE ERRED WHEN SHE (SIC) GAVE FULL CREDENCE
AND FULL FAITH ON THE TESTIMONY OF THE PROSECUTION WITNESSES;13

Appellant’s extrajudicial confession was taken and transcribed entirely in the Cebuano dialect. Rule
132, Section 33 of the Revised Rules on Evidence provides:

Sec. 33. Documentary evidence in an unofficial language.-- Documents written in an

unofficial language shall not be admitted as evidence, unless accompanied with a translation
into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are
directed to have such translation prepared before trial.

The rule is that when there is presented in evidence an exhibit written in any language other than the
official language (Filipino or English), if there is an appeal, that exhibit should be translated by the
official interpreter of the court, or a translation should be agreed upon by the parties, and both
original and translation sent to this court.14 In this case, there is no official translation of appellant’s
extrajudicial confession in the Filipino or English language. If the Court were to strictly follow the rule,
then appellant’s extrajudicial confession should not have been admitted by the trial court as
evidence for the prosecution.

Nevertheless, considering that appellant did not interpose any objection thereto, and the parties and
the judicial authorities or personnel concerned appeared to be familiar with or knowledgeable of
Cebuano in which the document was written,15 such extrajudicial confession was appropriately
considered by the trial court as evidence for the prosecution.

As stated at the outset, the crucial issue in this case is whether or not the extrajudicial confession
executed by appellant, with the assistance of Atty. Fortunato Parawan, is admissible in evidence
against him. There is no need at this point to secure an official translation of the confession to
English.

Section 12, Article III of the 1987 Constitution provides:

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

The words "competent and independent counsel" in the constitutional provision is not an empty
rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a
custodial investigation, an informed judgment on the choices explained to him by a diligent and
capable lawyer.16

As heretofore stated, Atty. Fortunato Parawan, at that time, was the barangay captain of Barangay
Lorega, Cebu City. Under the 1991 Local Government Code, a barangay captain performs the
following duties and functions:

(a) The punong barangay, as the chief executive of the barangay government, shall exercise
such powers and perform such duties and functions, as provided by this Code and other
laws.

(b) For efficient, effective and economical governance, the purpose of which is the general
welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong
barangay shall:

(1) Enforce all laws and ordinances which are applicable within the barangay;

...

(3) Maintain public order in the barangay and, in pursuance thereof, assist the city or
municipal mayor and the sanggunian members in the performance of their duties and
functions; . . .17

Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the law and ordinances in
his barangayand ensure peace and order at all times.

In fact, as barangay captain, Atty. Parawan is deemed a person in authority under Article 152 of the
Revised Penal Code, to wit:
 ART. 152. Persons in authority and agents of persons in authority. – Who shall be deemed
as such. – In applying the provisions of the preceding and other articles of this Code, any
person directly vested with jurisdiction, whether as an individual or as a member of some
court or government corporation, board, or commission, shall be deemed a person in
authority. A barrio captain and a barangay chairman shall also be deemed a person in
authority.

On these bases, it is not legally possible to consider Atty. Parawan as an independent counsel of
appellant.

In People vs. Culala,18 the Court reiterated the rule that a municipal attorney cannot be an
independent counsel because as a legal officer of the municipality, he provides legal assistance and
support to the mayor and the municipality in carrying out the delivery of basic services to the
people, including the maintenance of peace and order, and it was seriously doubted whether he can
effectively undertake the defense of the accused without running into conflict of interests. Thus, the
Court held that he is no better than a fiscal or a prosecutor who cannot represent the accused during
custodial investigations.19

This is reiterated in People vs. Taliman,20 and People vs. Velarde,21 where we further ruled that a
municipal mayor cannot likewise be an independent counsel as required by the Constitution.

Similarly in this case, considering that Atty. Parawan’s role as a barangay captain, was a
peacekeeping officer of his barangay and therefore in direct conflict with the role of providing
competent legal assistance to appellant who was accused of committing a crime in his jurisdiction,
Atty. Parawan could not be considered as an independent counsel of appellant, when the latter
executed his extrajudicial confession. What the Constitution requires is the presence of an
independent and competent counsel, one who will effectively undertake his client’s defense without
any intervening conflict of interest.22

Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective and vigilant counsel.
An "effective and vigilant counsel" necessarily and logically requires that the lawyer be present and
able to advise and assist his client from the time the confessant answers the first question asked by
the investigating officer until the signing of the extrajudicial confession. As held in People vs.
Velarde:23

. . . The competent and independent lawyer so engaged should be present at all stages of
the interview, counseling or advising caution reasonably at every turn of the investigation,
and stopping the interrogation once in a while either to give advice to the accused that he
may either continue, choose to remain silent or terminate the interview.24

Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person
under investigation fully understands the nature and the consequence of his extrajudicial confession
in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and to be presumed innocent.25

The assistance rendered by Atty. Parawan to appellant cannot be fittingly described as effective and
vigilant. As testified by Atty. Parawan, hereinbelow quoted verbatim, this was what transpired when
he went to the Ramos police station to assist appellant during the investigation:

Q What happened when you arrived at the Ramos Police Station at around 2:00 o’clock in
the afternoon of December 16, 1996?
A I go (sic) to the room where Policeman Monilar and the accused and had a conversation
with the accused.

Q What transpired during that conversation with the accused.

A I asked him. Are you going to get me as your lawyer?

Q And may we know what did he answer?

A Yes, Cap. Okay Cap.

Q When you said "Cap" what did he mean by that word "Cap."

A Being a Barangay Captain.

Q After the accused told you that you were his counsel of choice. What did you do next if
any?

A I informed Elizar Tomaquin that do you know what will be the implication of your
admission, you will be imprisoned.

Q After you asked him whether he knew of the implication of his confession that could be …
because of that confession. What was his reaction?

A Yes Cap. I know. And then I told him as follows: "Because of this confession you will be
imprisoned."

Q And what did he say after you told him again that if he would execute that affidavit of
confession he would surely be imprisoned?

A No I even continue that "why did he do that?"

Q And what did he answer?

A He answered to me that he was drunk at that time.

Q And so what transpired next?

A So I told him are you willing now to give your confession, then policeman Monilar went
inside the room and we had that investigation.

Q Now how was the investigation of the accused done?

A It was made in a question and answer form.

Q And in what language were the questions framed?

A In the vernacular, vesaya.

Q What did you do during the question and answer form of investigation?
 A I just observed them.

Q But did you stay there until the whole taking of the confession was over?

A Yes I was there in the presence of two persons coming from my Barangay.

...

Q When you arrived and saw Mr. Monilar with the accused as an Attorney did you
immediately inquire what had happened before you arrived like; Did you start the
investigation? did you inquire from that from Mr. Monilar?

A He was already preparing this top portion here.

INTERPRETER:

Q Witness pointing to the upper portion of the certification up to the signature to that portion
above the names typewritten thereon.

...

Q And that means to say that when he prepared this from the top most portion to that portion
immediately right before the typewritten name Elizar Tomaquin and Atty. Fortunato Parawan
you were not around. Correct?

A I was not around but we have already a conversation earlier with Monilar.26

Records also show that appellant was presented to SPO2 Monilar in the morning of December 16,
1996. When appellant intimated that he was willing to confess and requested the presence of Atty.
Parawan, SPO2 Monilar called up Atty. Parawan and informed him of appellant’s decision. Atty.
Parawan arrived at the Ramos Police Station only at 2:00 in the afternoon.27 By the time Atty.
Parawan arrived, the investigation had already started and SPO2 Monilar had already asked and
elicited information from appellant. Worse, Atty. Parawan merely "observed" during the entire
investigation and failed to advise or explain to appellant the questions being propounded by SPO2
Monilar. He did not even bother to ask appellant if the extrajudicial confession he was about to
execute was being voluntarily given.

Moreover, that Atty. Parawan is not an effective and vigilant counsel is bolstered by his own
testimony that he already suspected appellant as having committed the crime when the latter was
brought to his house by the barangay tanods, viz.:

Q Being an attorney naturally your first question to your arresting tanods was where was he
arrested and how was he arrested and what is the reason why he was arrested. Correct?

A Yes.

...

Q You are telling this Court now Atty. Parawan that before the Barangay Tanods could
explain to you the circumstances of his arrest you already started to ask questions like; Why
 did you have blood in your pants. Where is your t-shirt you wore. Where did you get that
information since you were not in the house of Jaqueline Tatoy when she was killed?

A It was like this. I heard that the victim suffered multiple stab wounds. So when I saw blood
stains with all probability it might come from the victim. It was conclusion something like
when I saw that t-shirt stained with blood.

Q So you mean to this Court that you already reached the conclusion of mine (sic) that Elizar
Tomaquin one of your constituents in the Barangay was already on your conclusion in mine
(sic) the killer of Jacquilyn Tatoy before your tanods turned it over to the police for
investigation. Is that what you are telling Atty. Parawan?

A It is somewhat like that. That is why I ordered my tanod to bring him to the Homicide.28

The Court cannot imagine how Atty. Parawan could have effectively safeguarded appellant’s rights
as an accused during the investigation when he himself entertained the suspicion that appellant is
guilty of the crime charged, and naturally, he would want appellant to admit having committed it.

It was posited that appellant cannot challenge Atty. Parawan’s qualification as a competent and
independent counsel because he was his choice.

As provided in Section 12, Article III of the 1987 Constitution, "(A)ny person under investigation for
the commission of an offense shall have the right … to have competent and independent
counsel preferably of his own choice. Ideally, the lawyer called to be present during such
investigations should be as far as reasonably possible, the choice of the individual undergoing
questioning, but the word "preferably" does not convey the message that the choice of a lawyer by a
person under investigation is exclusive as to preclude other equally competent and independent
attorneys from handling his defense.29 What is imperative is that the counsel should be competent
and independent. That appellant chose Atty. Parawan does not estop appellant from complaining
about the latter’s failure to safeguard his rights.

It appears that appellant chose Atty. Parawan because he was the barangay captain of Brgy. Lorega
where appellant resides, and apparently, appellant trusts Atty. Parawan to protect his rights. The
latter, however, fell short in tending to the trust reposed on him. Appellant did not finish Grade 1 and
does not know how to read and write.30As between him and Atty.

Parawan who presumably knows the intricacies of the law and appellant’s predicament, Atty.
Parawan should have known better and exercised his sound judgment before conceding to
appellant’s choice. But it did not occur to him to inhibit himself from acting as appellant’s counsel and
instead, he even let appellant go through the investigation and execute the extrajudicial confession
knowing fully well that he was biased as regards appellant’s innocence. Quoted verbatim, Atty.
Parawan testified thus:

Q Atty. Parawan comparing yourself to the accused who is a graduate of Batchelor (sic) of
Law compared to your constituent who is jobless, illiterate [and] of low intelligence. The
question is this: It did not occur to your mine (sic) to inhibit yourself despite the request by
telling the accused as barangay Captain there could be a conflict of interest and bias that I
would not be in (sic) effective counsel or assistance to you. Did it not occur toy our mine (sic)
or not?

A It did not occur to my nime (sic).

 ...

Q But as experienced attorney you know very well that when you assist a suspect in the
police station and the circumstances he was arrested the best assistance a lawyer could give
is would be to tell the accused to remain silent. Would you agree?

...

A It did not occur to my mine (sic) that time.31

Clearly, Atty. Parawan failed to meet the exacting standards of

an independent and competent counsel as required by the Constitution. Thus, the extrajudicial
confession executed by appellant, even if gospel truth, is deemed an uncounselled confession and
therefore, inadmissible in evidence.

In this regard, it may not be amiss to repeat the declaration of the Court in People vs.
Deniega,32 stressing the role of the courts in ascertaining that extrajudicial confessions meet the
exacting standards of the Constitution:

Every so often, courts are confronted with the difficult task of taking a hard look into the
sufficiency of extra-judicial confessions extracted by law enforcement authorities as the sole
basis for convicting accused individuals. In cases of crimes notable for their brutality and
ruthlessness, the impulse to find the culprits at any cost occasionally tempts these agencies
to take shortcuts and disregard constitutional and legal safeguards intended to bring about a
reasonable assurance that only the guilty are punished. Our courts, in the process of
establishing guilt beyond reasonable doubt, play a central role in bringing about this
assurance by determining whether or not the evidence gathered by law enforcement
agencies scrupulously meets exacting standards fixed by the Constitution. If the
standards are not met, the Constitution provides the corresponding remedy by
providing a strict exclusionary rule, i.e., that "[a]ny confession or admission obtained
in violation of (Article III, Section 12(1) . . . hereof shall be inadmissible in evidence."

Without appellant’s extrajudicial confession, the prosecution’s case now teeters precariously on
circumstantial evidence, namely:

(1) Rico Magdasal’s testimony that:

(a) appellant left their drinking session at 1:00 in the morning of December 16, 1996;

(b) the tres cantos and pair of shoes found inside Jaquelyn’s residence belongs to
appellant; and

(c) appellant was wearing a pair of maong shorts and white sando shirt on the night
of the crime, which blood-stained shirt was found among the soiled clothes in Wilson
Magdasal’s house;

(2) Medical Technologist Jude Daniel Mendoza’s testimony that the blood stains on
appellant’s sando shirt and the tres cantos was of human origin.33

These circumstances, however, are not sufficient to demonstrate positively and convincingly that it
was appellant who killed Jaquelyn.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to
convict if (a) there is more than one circumstance; (b) the facts from which the inferences are
derived are proven; and (c) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.34 As jurisprudentially formulated, a judgment of conviction
based on circumstantial evidence can be upheld only if the circumstances proven constitute an
unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the
exclusion of all others, as the guilty person, i.e., the circumstances proven must be consistent with
each other, consistent with the hypothesis that the accused is guilty, and at the same time
inconsistent with any other hypothesis except that of guilty.35

The circumstantial evidence in this case does not constitute an unbroken chain leading to one fair
and reasonable conclusion that appellant is the guilty person.

For one, appellant’s act of leaving the drinking session at 1:00 in the morning does not establish
appellant’s whereabouts at the time the crime was committed. There is nothing in the testimony of
Rico Magdasal and the other prosecution witnesses that will show if appellant indeed went to
Jaquelyn’s house after he left the group. No one saw him enter or leave her residence. If at all, what
was proved is that appellant was found by the barangay tanodssleeping at home in the afternoon of
the same day.

Added to that is the prosecution’s failure to establish the chain of custody of these valuable pieces of
evidence.

Prosecution witness Armando Zabate testified that the pair of black shoes and tres cantos were
given to a certain Rey for safekeeping. These were later turned over to a Policeman Tariao of the
Ramos Police Station. Zabate, however, did not identify the person who turned over the objects to
the police.36 There was no showing who turned over those articles to the police and Rey was not
presented to identify if these were the same pair of shoes and tres cantos found in Jaquelyn’s house
and turned over to the police. Policeman Tariao was not called to the witness stand so as to confirm
if those articles were the same evidence turned over to him and later presented in court. Ordinarily, it
would not be indispensable for the prosecution to allege and prove every single fact of the case. But
in this case, the pieces of evidence are crucial to the prosecution’s case. Also, the fact that a civilian
obtained and received the evidence, the possibility that the integrity of these articles could have
been compromised cannot be ignored. The Court even noted that during his direct examination,
SPO2 Monilar was confused as to whether the pair of shoes presented in court was the same ones
that were turned over to the police. It turned out that the marking he made on the shoes were
washed off because at one time, the shoes fell in the canal located in front of the police station and
they had to clean and wash the shoes! 37 Such sloppy handling renders the chain of custody of those
pieces of evidence dubious, and damaging to the prosecution’s case.

And even if appellant did own the pair of shoes and tres cantos, the fact that it was found in the
scene of the crime merely proved that he was in the residence of Jaquelyn at some point in time. But
it does not prove when particularly he was there, his authorship of the crime or his motive for being

there. While the motive of an accused in a criminal case is generally held to be immaterial, not being
an element of the crime, motive becomes important when, as in this case, the evidence of the
commission of the crime is purely circumstantial.38

The prosecution’s evidence that is perceived to be conclusive of appellant’s guilt is mainly the
testimony of Rico Magdasal. Such testimony, however, is uncorroborated. The rule is that the
testimony of one witness is sufficient to sustain a conviction, if such testimony positively
establishes the guilt of the accused beyond reasonable doubt.39 Moreover, the doctrine of long
standing that the testimony of a lone witness, if credible and positive, is sufficient to convict an
accused applies only to eyewitnesses. Thus, an uncorroborated circumstantial evidence is
certainly not sufficient for conviction when the evidence itself is in serious doubt.40 Rico’s lone
testimony is not sufficient to establish appellant’s guilt beyond reasonable doubt.

In addition, appellant vehemently denied Rico’s allegations. According to appellant, it was Rico who
actually owns the pair of shoes and tres cantos; that it was he who bid appellant to go to the Tatoys’
residence and lift their TV set; and that it was Rico who stabbed Jaquelyn. Considering appellant’s
denial and his different version of the incident, it became incumbent upon the prosecution to rebut
appellant's allegations with further evidence to corroborate the statement of Rico. It must be noted
that there were other persons present during their drinking spree, namely, Romy Magdasal, Noel
Labay, and a certain Cardo. These persons could have been presented as witnesses to back up
Rico’s claim but the prosecution did not do so. Rico testified that appellant owned the tres
cantos found by the stairs; but Rico also stated he only "heard" that the tres cantos was found by the
stairs.41 Who found the tres cantosthat was supposed to have been used to stab Jaquelyn? The
neighbor who allegedly found it by the stairs was not presented in court to identify if the tres
cantos presented by the prosecution was the alleged weapon in the stabbing of Jaquelyn. Such
failure of the prosecution to corroborate the material points of Rico’s testimony weakened their case.

The Court also has serious misgivings on the probative value of the white sando shirt that appellant
was allegedly wearing at the time of stabbing Jaquelyn, which Edgar Magdasal later found
bloodstained among the soiled clothes.

First, when appellant was asked by the barangay tanods about the shirt he was wearing, he told
them that it was in Wilson Magdasal’s house. According to barangay tanod Armando Zabate, it was
Edgar Magdasal who found the shirt, "somewhat wet and bloody," among the soiled clothes.42 Edgar
Magdasal, however, was not presented to testify as to where he found the shirt, the state the shirt
was in when he found it, and how he knew that it was the shirt worn by appellant.

Second, Medical Technologist Jude Daniel Mendoza testified that the bloodstains on
appellant’s sando shirt, as well as the tres cantos, were human blood.43 Mendoza, however, did not
conduct further tests to ascertain the type of blood found on these pieces of evidence nor did he
match it with the victim’s blood type,44 hence, it does not connect the bloodstains to the herein victim.
In People vs. Rodriguez, the Court ruled that the maong pants allegedly belonging to appellant and
found positive of type O blood has no probative value since the blood type of appellant and the
victim were not taken for purposes of comparison.45

The same ruling applies with regard to the bloodstains found on the tres cantos.

Appellant enjoys in his favor the presumption of innocence until the contrary is proven. Proof of the
guilt of the accused should not be tainted with ambiguity. Although appellant’s defense is weak,
conviction must come from the strength of the prosecution's evidence and not from the weakness of
the defense. In this case, the prosecution’s evidence is not strong enough to justify a finding of guilt
beyond reasonable doubt.46 Acquittal, therefore, is inevitable.

WHEREFORE, appellant Elizar Tomaquin is hereby ACQUITTED and

ordered RELEASED immediately, unless he is being detained for some other legal cause.

The Director of the Bureau of Corrections is directed to cause the immediate release of appellant
unless he is being lawfully held for another cause, and to inform this Court of the date of his release,
or the ground for his continued confinement, within ten (10) days from notice of herein decision.
Costs de oficio.

SO ORDERED.