[G.R. No. 231989. September 4, 2018.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMY LIM y

MIRANDA, accused-appellant.

DECISION

PERALTA, J p:

On appeal is the February 23, 2017 Decision 1 of the Court of Appeals (CA) in CA-
G.R. CR HC No. 01280-MIN, which affirmed the September 24, 2013 Decision 2of Regional
Trial Court (RTC), Branch 25, Cagayan de Oro City, in Criminal Case Nos. 2010-1073 and
2010-1074, finding accused-appellant Romy Lim y Miranda (Lim)guilty of violating Sections
11 and 5, respectively, of Article II of Republic Act (R.A.) No. 9165, or the Comprehensive
Dangerous Drugs Act of 2002. HEITAD
In an Information dated October 21, 2010, Lim was charged with illegal possession
of Methamphetamine Hydrochloride (shabu), committed as follows:
That on or about October 19, 2010, at more or less 10:00 o'clock in
the evening, at Cagayan de Oro City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, without being authorized
by law to possess or use any dangerous drugs, did then and there, willfully,
unlawfully, criminally and knowingly have in his possession, custody and
control one (1) heat-sealed transparent plastic sachet containing
Methamphetamine hydrochloride, locally known as Shabu, a dangerous drug,
with a total weight of 0.02 gram, accused well-knowing that the substance
recovered from his possession is a dangerous drug.
Contrary to, and in violation of, Section 11, Article II of Republic Act
No. 9165. 3
On even date, Lim, together with his stepson, Eldie Gorres y Nave (Gorres), was
also indicted for illegal sale of shabu, committed as follows:
That on or about October 19, 2010, at more or less 10:00 o'clock in
the evening, at Cagayan de Oro City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring, confederating
together and mutually helping one another, without being authorized by law to
sell, trade, administer, dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drugs, did then and there
willfully, unlawfully, criminally and knowingly sell and/or offer for sale, and
give away to a PDEA Agent acting as poseur-buyer One (1) heat-sealed
transparent plastic sachet containing Methamphetamine hydrochloride,
locally known as Shabu, a dangerous drug, with a total weight of 0.02 gram,
accused knowing the same to be a dangerous drug, in consideration of Five
Hundred Pesos (Php500.00) consisting of one piece five hundred peso bill,
with Serial No. FZ386932, which was previously marked and recorded for the
purpose of the buy-bust operation.
 Contrary to Section 5, Paragraph 1, Article II of Republic Act No.
9165. 4
In their arraignment, Lim and Gorres pleaded not guilty. 5 They were detained in the
city jail during the joint trial of the cases. 6
The prosecution presented Intelligence Officer (IO) 1 Albert Orellan, IO1 Nestle
Carin, IO2 Vincent Orcales, and Police Senior Inspector (PSI) Charity Caceres. Aside from
both accused, Rubenia Gorres testified for the defense.

Version of the Prosecution

Around 8:00 p.m. on October 19, 2010, IO1 Orellan and his teammates were at
Regional Office X of the Philippine Drug Enforcement Agency (PDEA). Based on a report of
a confidential informant (CI) that a certain "Romy" has been engaged in the sale of
prohibited drugs in Zone 7, Cabina, Bonbon, Cagayan de Oro City, they were directed by
their Regional Director, Lt. Col. Edwin Layese, to gather for a buy-bust operation. During the
briefing, IO2 Orcales, IO1 Orellan, and IO1 Carin were assigned as the team leader, the
arresting officer/back-up/evidence custodian, and the poseur-buyer, respectively. The team
prepared a P500.00 bill as buy-bust money (with its serial number entered in the PDEA
blotter), the Coordination Form for the nearest police station, and other related documents.
Using their service vehicle, the team left the regional office about 15 minutes before
10:00 p.m. and arrived in the target area at 10:00 p.m., more or less. IO1 Carin and the CI
alighted from the vehicle near the corner leading to the house of "Romy," while IO1 Orellan
and the other team members disembarked a few meters after and positioned themselves in
the area to observe. IO1 Carin and the CI turned at the corner and stopped in front of a
house. The CI knocked at the door and uttered, "ayo, nong Romy." Gorres came out and
invited them to enter. Inside, Lim was sitting on the sofa while watching the television. When
the CI introduced IO1 Carin as a shabu buyer, Lim nodded and told Gorres to get one inside
the bedroom. Gorres stood up and did as instructed. After he came out, he handed a small
medicine box to Lim, who then took one piece of heat-sealed transparent plastic
of shabu and gave it to IO1 Carin. In turn, IO1 Carin paid him with the buy-bust money.
After examining the plastic sachet, IO1 Carin executed a missed call to IO1 Orellan,
which was the pre-arranged signal. The latter, with the rest of the team members,
immediately rushed to Lim's house. When they arrived, IO1 Carin and the CI were standing
near the door. They then entered the house because the gate was opened. IO1 Orellan
declared that they were PDEA agents and informed Lim and Gorres, who were visibly
surprised, of their arrest for selling dangerous drug. They were ordered to put their hands on
their heads and to squat on the floor. IO1 Orellan recited the Miranda rights to them.
Thereafter, IO1 Orellan conducted a body search on both. When he frisked Lim, no deadly
weapon was found, but something was bulging in his pocket. IO1 Orellan ordered him to pull
it out. Inside the pocket were the buy-bust money and a transparent rectangular plastic box
about 3x4 inches in size. They could see that it contained a plastic sachet of a white
substance. As for Gorres, no weapon or illegal drug was seized. ATICcS
IO1 Orellan took into custody the P500.00 bill, the plastic box with the plastic sachet
of white substance, and a disposable lighter. IO1 Carin turned over to him the plastic sachet
that she bought from Lim. While in the house, IO1 Orellan marked the two plastic sachets.
Despite exerting efforts to secure the attendance of the representative from the media
and barangay officials, nobody arrived to witness the inventory-taking.
 The buy-bust team brought Lim and Gorres to the PDEA Regional Office, with IO1
Orellan in possession of the seized items. Upon arrival, they "booked" the two accused and
prepared the letters requesting for the laboratory examination on the drug evidence and for
the drug test on the arrested suspects as well as the documents for the filing of the case.
Likewise, IO1 Orellan made the Inventory Receipt of the confiscated items. It was not signed
by Lim and Gorres. Also, there was no signature of an elected public official and the
representatives of the Department of Justice (DOJ) and the media as witnesses. Pictures of
both accused and the evidence seized were taken.
The day after, IO1 Orellan and IO1 Carin delivered both accused and the drug
specimens to Regional Crime Laboratory Office 10. IO1 Orellan was in possession of the
sachets of shabu from the regional office to the crime lab. PSI Caceres, who was a Forensic
Chemist, and Police Officer 2 (PO2) Bajas 7 personally received the letter-requests and the
two pieces of heat-sealed transparent plastic sachet containing white crystalline substance.
PSI Caceres got urine samples from Lim and Gorres and conducted screening and
confirmatory tests on them. Based on her examination, only Lim was found positive for the
presence of shabu. The result was shown in Chemistry Report No. DTCRIM-196 and 197-
2010. With respect to the two sachets of white crystalline substance, both were found to be
positive of shabu after a chromatographic examination was conducted by PSI Caceres. Her
findings were reflected in Chemistry Report No. D-228-2010. PSI Caceres, likewise, put her
own marking on the cellophane containing the two sachets of shabu. After that, she gave
them to the evidence custodian. As to the buy-bust money, the arresting team turned it over
to the fiscal's office during the inquest.

Version of the Defense

Around 10:00 p.m. on October 19, 2010, Lim and Gorres were in their house in
Cabina, Bonbon, Cagayan de Oro City. Lim was sleeping in the bedroom, while Gorres was
watching the television. When the latter heard that somebody jumped over their gate, he
stood up to verify. Before he could reach the door, however, it was already forced opened
by the repeated pulling and kicking of men in civilian clothing. They entered the house,
pointed their firearms at him, instructed him to keep still, boxed his chest, slapped his ears,
and handcuffed him. They inquired on where the shabu was, but he invoked his innocence.
When they asked the whereabouts of "Romy," he answered that he was sleeping inside the
bedroom. So the men went there and kicked the door open. Lim was then surprised as a
gun was pointed at his head. He questioned them on what was it all about, but he was told
to keep quiet. The men let him and Gorres sit on a bench. Lim was apprised of his Miranda
rights. Thereafter, the two were brought to the PDEA Regional Office and the crime
laboratory. During the inquest proceedings, Lim admitted, albeit without the assistance of a
counsel, ownership of the two sachets of shabu because he was afraid that the police would
imprison him. Like Gorres, he was not involved in drugs at the time of his arrest. Unlike him,
however, he was previously arrested by the PDEA agents but was acquitted in the case.
Both Lim and Gorres acknowledged that they did not have any quarrel with the PDEA
agents and that neither do they have grudges against them or vice-versa.
Rubenia, Lim's live-in partner and the mother of Gorres, was at her sister's house in
Pita, Pasil, Kauswagan the night when the arrests were made. The following day, she
returned home and noticed that the door was opened and its lock was destroyed. She took
pictures of the damage and offered the same as exhibits for the defense, which the court
admitted as part of her testimony.
 RTC Ruling

After trial, the RTC handed a guilty verdict on Lim for illegal possession and sale
of shabu and acquitted Gorres for lack of sufficient evidence linking him as a conspirator.
The fallo of the September 24, 2013 Decision states:
WHEREFORE, premises considered, this Court finds that:
1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA is
hereby found GUILTY of violating Section 11, Article II of R.A. 9165 and is
hereby sentenced to suffer the penalty of imprisonment ranging from twelve
[12] years and one [1] day to thirteen [13] years, and to pay a Fine in the
amount of Three Hundred Thousand Pesos [P300,000.00] without subsidiary
imprisonment in case of non-payment of Fine;
2. In Criminal Case No. 2010-1074, accused ROMY LIM y MIRANDA is
hereby found GUILTY of violating Section 5, Article II of R.A. 9165, and is
hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay
the Fine in the amount of Five Hundred Thousand Pesos [P500,000.00].
3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y NAVE is
hereby ACQUITTED of the offense charged for failure of the prosecution to
prove his guilt beyond reasonable doubt. The Warden of the BJMP having
custody of ELDIE GORRES y Nave, is hereby directed to immediately
release him from detention unless he is being charged of other crimes which
will justify his continued incarceration. 8
With regard to the illegal possession of a sachet of shabu, the RTC held that the
weight of evidence favors the positive testimony of IO1 Orellan over the feeble and
uncorroborated denial of Lim. As to the sale of shabu, it ruled that the prosecution was able
to establish the identity of the buyer, the seller, the money paid to the seller, and the delivery
of the shabu. The testimony of IO1 Carin was viewed as simple, straightforward and without
any hesitation or prevarication as she detailed in a credible manner the buy-bust transaction
that occurred. Between the two conflicting versions that are poles apart, the RTC found the
prosecution evidence worthy of credence and no reason to disbelieve in the absence of an
iota of malice, ill-will, revenge or resentment preceding and pervading the arrest of Lim. On
the chain of custody of evidence, it was accepted with moral certainty that the PDEA
operatives were able to preserve the integrity and probative value of the seized
items. TIADCc
In so far as Gorres is concerned, the RTC opined that the evidence presented were
not strong enough to support the claim that there was conspiracy between him and Lim
because it was insufficiently shown that he knew what the box contained. It also noted
Chemistry Report No. DTCRIM 196 & 197-2010, which indicated that Gorres was
"NEGATIVE" of the presence of any illicit drug based on his urine sample.

CA Ruling

On appeal, the CA affirmed the RTC Decision. It agreed with the finding of the trial
court that the prosecution adequately established all the elements of illegal sale of a
dangerous drug as the collective evidence presented during the trial showed that a valid
buy-bust operation was conducted. Likewise, all the elements of illegal possession of a
dangerous drug was proven. Lim resorted to denial and could not present any proof or
justification that he was fully authorized by law to possess the same. The CA was
unconvinced with his contention that the prosecution failed to prove the identity and integrity
of the seized prohibited drugs. For the appellate court, it was able to demonstrate that the
integrity and evidentiary value of the confiscated drugs were not compromised. The
witnesses for the prosecution were able to testify on every link in the chain of custody,
establishing the crucial link in the chain from the time the seized items were first discovered
until they were brought for examination and offered in evidence in court. Anent Lim's
defense of denial and frame-up, the CA did not appreciate the same due to lack of clear and
convincing evidence that the police officers were inspired by an improper motive. Instead,
the presumption of regularity in the performance of official duty was applied.
Before Us, both Lim and the People manifested that they would no longer file a
Supplemental Brief, taking into account the thorough and substantial discussions of the
issues in their respective appeal briefs before the CA. 9 Essentially, Lim maintains that the
case records are bereft of evidence showing that the buy-bust team followed the procedure
mandated in Section 21 (1), Article II of R.A. No. 9165.

Our Ruling

The judgment of conviction is reversed and set aside, and Lim should be acquitted
based on reasonable doubt.
At the time of the commission of the crimes, the law applicable is R.A. No.
9165. 10 Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, which
implements the law, defines chain of custody as —
the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping to presentation in court for destruction.
Such record of movements and custody of seized item shall include the
identity and signature of the person who held temporary custody of the seized
item, the date and time when such transfer of custody were made in the
course of safekeeping and use in court as evidence, and the final
disposition. 11
The chain of custody rule is but a variation of the principle that real evidence must be
authenticated prior to its admission into evidence. 12 To establish a chain of custody
sufficient to make evidence admissible, the proponent needs only to prove a rational
basis from which to conclude that the evidence is what the party claims it to be. 13 In other
words, in a criminal case, the prosecution must offer sufficient evidence from which the trier
of fact could reasonably believe that an item still is what the government claims it to
be. 14 Specifically in the prosecution of illegal drugs, the well-established federal evidentiary
rule in the United States is that when the evidence is not readily identifiable and is
susceptible to alteration by tampering or contamination, courts require a more stringent
foundation entailing a chain of custody of the item with sufficient completeness to render it
improbable that the original item has either been exchanged with another or been
contaminated or tampered with. 15 This was adopted in Mallillin v. People, 16 where this
Court also discussed how, ideally, the chain of custody of seized items should be
established:
 As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence sufficient
to support a finding that the matter in question is what the proponent claims it
to be. It would include testimony about every link in the chain, from the
moment the item was picked up to the time it is offered into evidence, in such
a way that every person who touched the exhibit would describe how and
from whom it was received, where it was and what happened to it while in the
witness' possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These witnesses would
then describe the precautions taken to ensure that there had been no change
in the condition of the item and no opportunity for someone not in the chain to
have possession of the same. 17 AIDSTE
Thus, the links in the chain of custody that must be established are: (1) the seizure
and marking, if practicable, of the illegal drug recovered from the accused by the
apprehending officer; (2) the turnover of the seized illegal drug by the apprehending officer
to the investigating officer; (3) the turnover of the illegal drug by the investigating officer to
the forensic chemist for laboratory examination; and (4) the turnover and submission of the
illegal drug from the forensic chemist to the court. 18
Seizure and marking of the illegal
drug as well as the turnover by the
apprehending officer to the
investigating officer

Section 21 (1), Article II of R.A. No. 9165 states:

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. — The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized and/or surrendered, for
proper disposition in the following manner:
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence
of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the Department
of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a
copy thereof[.] 19
Supplementing the above-quoted provision, Section 21 (a) of the Implementing
Rules and Regulations (IRR) of R.A. No. 9165 mandates:
(a) The apprehending officer/team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically inventory
and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
 Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof:
Provided, that the physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the nearest police station
or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that non-
compliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items. 20
On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among
other modifications, it essentially incorporated the saving clause contained in the IRR, thus:
(1) The apprehending team having initial custody and control of the
dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment shall, immediately
after seizure and confiscation, conduct a physical inventory of the seized
items and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official and a representative
of the National Prosecution Service or the media who shall be required to
sign the copies of the inventory and be given a copy thereof: Provided, That
the physical inventory and photograph shall be conducted at the place where
the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures: Provided, finally, That noncompliance of these
requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures
and custody over said items.
In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A.
No. 10640, Senator Grace Poe admitted that "while Section 21 was enshrined in the
Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence acquired
and prevent planting of evidence, the application of said section resulted in the
ineffectiveness of the government's campaign to stop increasing drug addiction and also, in
the conflicting decisions of the courts." 21Specifically, she cited that "compliance with the
rule on witnesses during the physical inventory is difficult. For one, media representatives
are not always available in all corners of the Philippines, especially in more remote areas.
For another, there were instances where elected barangay officials themselves were
involved in the punishable acts apprehended." 22 In addition, "[t]he requirement that
inventory is required to be done in police station is also very limiting. Most police stations
appeared to be far from locations where accused persons were apprehended." 23 AaCTcI
Similarly, Senator Vicente C. Sotto III manifested that in view of the substantial
number of acquittals in drug-related cases due to the varying interpretations of the
prosecutors and the judges on Section 21 of R.A. No. 9165, there is a need for "certain
adjustments so that we can plug the loopholes in our existing law" and "ensure [its] standard
implementation." 24 In his Co-sponsorship Speech, he noted:
Numerous drug trafficking activities can be traced to operations of
highly organized and powerful local and international syndicates. The
 presence of such syndicates that have the resources and the capability to
mount a counter-assault to apprehending law enforcers makes the
requirement of Section 21 (a) impracticable for law enforcers to comply with.
It makes the place of seizure extremely unsafe for the proper inventory and
photograph of seized illegal drugs.
xxx xxx xxx
Section 21(a) of RA 9165 needs to be amended to address the
foregoing situation. We did not realize this in 2002 where the safety of the law
enforcers and other persons required to be present in the inventory and
photography of seized illegal drugs and the preservation of the very existence
of seized illegal drugs itself are threatened by an immediate retaliatory action
of drug syndicates at the place of seizure. The place where the seized drugs
may be inventoried and photographed has to include a location where the
seized drugs as well as the persons who are required to be present during
the inventory and photograph are safe and secure from extreme danger.
It is proposed that the physical inventory and taking of photographs of
seized illegal drugs be allowed to be conducted either in the place of seizure
or at the nearest police station or office of the apprehending law enforcers.
The proposal will provide effective measures to ensure the integrity of seized
illegal drugs since a safe location makes it more probable for an inventory
and photograph of seized illegal drugs to be properly conducted, thereby
reducing the incidents of dismissal of drug cases due to technicalities.
Non-observance of the prescribed procedures should not
automatically mean that the seizure or confiscation is invalid or illegal, as long
as the law enforement officers could justify the same and could prove that the
integrity and the evidentiary value of the seized items are not tainted. This is
the effect of the inclusion in the proposal to amend the phrase "justifiable
grounds." There are instances wherein there are no media people or
representatives from the DOJ available and the absence of these witnesses
should not automatically invalidate the drug operation conducted. Even the
presence of a public local elected official also is sometimes impossible
especially if the elected official is afraid or scared. 25
We have held that the immediate physical inventory and photograph of the
confiscated items at the place of arrest may be excused in instances when the safety and
security of the apprehending officers and the witnesses required by law or of the items
seized are threatened by immediate or extreme danger such as retaliatory action of those
who have the resources and capability to mount a counter-assault. 26 The present case is
not one of those.
Here, IO1 Orellan took into custody the P500.00 bill, the plastic box with the plastic
sachet of white substance, and a disposable lighter. IO1 Carin also turned over to him the
plastic sachet that she bought from Lim. While in the house, IO1 Orellan marked the two
plastic sachets. IO1 Orellan testified that he immediately conducted the marking and
physical inventory of the two sachets of shabu. 27 To ensure that they were not
interchanged, he separately marked the item sold by Lim to IO1 Carin and the one that he
recovered from his possession upon body search as BB AEO 10-19-10 and AEO-RI 10-19-
10, respectively, with both bearing his initial/signature. 28
 Evident, however, is the absence of an elected public official and representatives of
the DOJ and the media to witness the physical inventory and photograph of the seized
items. 29 In fact, their signatures do not appear in the Inventory Receipt.
The Court stressed in People v. Vicente Sipin y De Castro: 30
The prosecution bears the burden of proving a valid cause for non-
compliance with the procedure laid down in Section 21 of R.A. No. 9165, as
amended. It has the positive duty to demonstrate observance thereto in such
a way that during the trial proceedings, it must initiate in acknowledging and
justifying any perceived deviations from the requirements of law. Its failure to
follow the mandated procedure must be adequately explained, and must be
proven as a fact in accordance with the rules on evidence. It should take note
that the rules require that the apprehending officers do not simply mention a
justifiable ground, but also clearly state this ground in their sworn affidavit,
coupled with a statement on the steps they took to preserve the integrity of
the seized items. Strict adherence to Section 21 is required where the
quantity of illegal drugs seized is miniscule, since it is highly susceptible to
planting, tampering or alteration of evidence. 31 EcTCAD
It must be alleged and proved that the presence of the three witnesses to the
physical inventory and photograph of the illegal drug seized was not obtained due to
reason/s such as:
(1) their attendance was impossible because the place of arrest was a
remote area; (2) their safety during the inventory and photograph of the
seized drugs was threatened by an immediate retaliatory action of the
accused or any person/s acting for and in his/her behalf; (3) the elected
official themselves were involved in the punishable acts sought to be
apprehended; (4) earnest efforts to secure the presence of a DOJ or
media representative and an elected public official within the period
required under Article 125 of the Revised Penal Code prove futile
through no fault of the arresting officers, who face the threat of being
charged with arbitrary detention; or (5) time constraints and urgency of
the anti-drug operations, which often rely on tips of confidential assets,
prevented the law enforcers from obtaining the presence of the required
witnesses even before the offenders could escape. 32
Earnest effort to secure the attendance of the necessary witnesses must be
proven. People v. Ramos 33 requires:
It is well to note that the absence of these required witnesses does
not per se render the confiscated items inadmissible. However, a justifiable
reason for such failure or a showing of any genuine and sufficient effort
to secure the required witnesses under Section 21 of RA 9165 must be
adduced. In People v. Umipang, the Court held that the prosecution must
show that earnest efforts were employed in contacting the representatives
enumerated under the law for "a sheer statement that representatives were
unavailable without so much as an explanation on whether serious attempts
were employed to look for other representatives, given the circumstances is
to be regarded as a flimsy excuse." Verily, mere statements of unavailability,
absent actual serious attempts to contact the required witnesses are
unacceptable as justified grounds for noncompliance. These considerations
arise from the fact that police officers are ordinarily given sufficient time —
 beginning from the moment they have received the information about the
activities of the accused until the time of his arrest — to prepare for a buy-
bust operation and consequently, make the necessary arrangements
beforehand knowing full well that they would have to strictly comply with the
set procedure prescribed in Section 21 of RA 9165. As such, police officers
are compelled not only to state reasons for their non-compliance, but must in
fact, also convince the Court that they exerted earnest efforts to comply with
the mandated procedure, and that under the given circumstances, their
actions were reasonable. 34
In this case, IO1 Orellan testified that no members of the media and barangay
officials arrived at the crime scene because it was late at night and it was raining, making it
unsafe for them to wait at Lim's house. 35 IO2 Orcales similarly declared that the inventory
was made in the PDEA office considering that it was late in the evening and there were no
available media representative and barangay officials despite their effort to contact
them. 36 He admitted that there are times when they do not inform the barangay officials
prior to their operation as they might leak the confidential information. 37 We are of the view
that these justifications are unacceptable as there was no genuine and sufficient attempt to
comply with the law.
The testimony of team-leader IO2 Orcales negates any effort on the part of the buy-
bust team to secure the presence of a barangay official during the operation:
ATTY. DEMECILLO:
xxx xxx xxx
Q x x x Before going to the house of the accused, why did you not contact a
barangay official to witness the operation?
A There are reasons why we do not inform a barangay official before our
operation, Sir.
Q Why?
A We do not contact them because we do not trust them. They might leak our
information. 38
The prosecution likewise failed to explain why they did not secure the presence of a
representative from the Department of Justice (DOJ). While the arresting officer, IO1
Orellan, stated in his Affidavit that they only tried to coordinate with the barangay officials
and the media, the testimonies of the prosecution witnesses failed to show that they tried to
contact a DOJ representative.
The testimonies of the prosecution witnesses also failed to establish the details of an
earnest effort to coordinate with and secure presence of the required witnesses. They also
failed to explain why the buy-bust team felt "unsafe" in waiting for the representatives in
Lim's house, considering that the team is composed of at least ten (10) members, and the
two accused were the only persons in the house. HSAcaE
It bears emphasis that the rule that strict adherence to the mandatory requirements
of Section 21 (1) of R.A. No. 9165, as amended, and its IRR may be excused as long as the
integrity and the evidentiary value of the confiscated items are properly preserved applies
not just on arrest and/or seizure by reason of a legitimate buy-bust operation but also on
those lawfully made in air or sea port, detention cell or national penitentiary, checkpoint,
moving vehicle, local or international package/parcel/mail, or those by virtue of a consented
search, stop and frisk (Terry search), search incident to a lawful arrest, or application of
plain view doctrine where time is of the essence and the arrest and/or seizure is/are not
planned, arranged or scheduled in advance.
To conclude, judicial notice is taken of the fact that arrests and seizures related to
illegal drugs are typically made without a warrant; hence, subject to inquest proceedings.
Relative thereto, Sections 1 (A.1.10) of the Chain of Custody Implementing Rules and
Regulations directs:
A.1.10. Any justification or explanation in cases of noncompliance with
the requirements of Section 21 (1) of R.A. No. 9165, as amended, shall be
clearly stated in the sworn statements/affidavits of the apprehending/seizing
officers, as well as the steps taken to preserve the integrity and evidentiary
value of the seized/confiscated items. Certification or record of coordination
for operating units other than the PDEA pursuant to Section 86 (a) and (b),
Article IX of the IRR of R.A. No. 9165 shall be presented. 39
While the above-quoted provision has been the rule, it appears that it has not been
practiced in most cases elevated before Us. Thus, in order to weed out early on from the
courts' already congested docket any orchestrated or poorly built up drug-related cases, the
following should henceforth be enforced as a mandatory policy:
1. In the sworn statements/affidavits, the apprehending/seizing officers must state
their compliance with the requirements of Section 21 (1) of R.A. No. 9165, as
amended, and its IRR.
2. In case of non-observance of the provision, the apprehending/seizing officers must
state the justification or explanation therefor as well as the steps they have
taken in order to preserve the integrity and evidentiary value of the
seized/confiscated items.
3. If there is no justification or explanation expressly declared in the sworn
statements or affidavits, the investigating fiscal must not immediately file the
case before the court. Instead, he or she must refer the case for further
preliminary investigation in order to determine the (non) existence of probable
cause.
4. If the investigating fiscal filed the case despite such absence, the court may
exercise its discretion to either refuse to issue a commitment order (or
warrant of arrest) or dismiss the case outright for lack of probable cause in
accordance with Section 5, 40 Rule 112, Rules of Court.
WHEREFORE, premises considered, the February 23, 2017 Decision of the Court of
Appeals in CA-G.R. CR HC No. 01280-MIN, which affirmed the September 24, 2013
Decision of Regional Trial Court, Branch 25, Cagayan de Oro City, in Criminal Cases Nos.
2010-1073 and 2010-1074, finding accused-appellant Romy Lim yMiranda guilty of violating
Sections 11 and 5, respectively, of Article II of Republic Act No. 9165,
is REVERSED and SET ASIDE. Accordingly, accused-appellant Romy Lim y Miranda
is ACQUITTED on reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from
detention, unless he is being lawfully held for another cause. Let an entry of final judgment
be issued immediately.
Let a copy of this Decision be furnished the Superintendent of the Davao Prison and
Penal Farm, B.E. Dujali, Davao del Norte, for immediate implementation. The said Director
is ORDERED to REPORT to this Court within five (5) days from receipt of this Decision the
action he has taken.
 Let copies of this Decision be furnished to the Secretary of the Department of
Justice, as well as to the Head/Chief of the National Prosecution Service, the Office of the
Solicitor General, the Public Attorney's Office, the Philippine National Police, the Philippine
Drug Enforcement Agency, the National Bureau of Investigation, and the Integrated Bar of
the Philippines for their information and guidance. Likewise, the Office of the Court
Administrator is DIRECTED toDISSEMINATE copies of this Decision to all trial courts,
including the Court of Appeals.
SO ORDERED.
||| (People v. Lim y Miranda, G.R. No. 231989, [September 4, 2018])
 [G.R. No. 140863. August 22, 2000]

SOLAR TEAM ENTERTAINMENT, INC. and PEOPLE OF THE PHILIPPINES, petitioners,

vs. HON. ROLANDO HOW, in his capacity as Presiding Judge of the Regional Trial
Court Branch 257 of Paraaque and MA. FE F. BARREIRO, respondents.

DECISION
GONZAGA-REYES, J.:

The question raised in this instant petition for certiorari and mandamus is whether or not the
trial court can indefinitely suspend the arraignment of the accused until the petition for review
with the Secretary of Justice (SOJ) has been resolved.
The facts of this case are not disputed.
On May 28, 1999, the City Prosecutor of Paraaque filed an Information[1] for estafa against
Ma. Fe Barreiro (private respondent) based on the complaint[2] filed by Solar Team
Entertainment, Inc. (petitioner). The case was docketed as Criminal Case No. 99-536 entitled
People of the Philippines vs. Ma. Fe F. Barreiro before the Regional Trial Court of Paraaque
City, Branch 257, presided by public respondent Judge Rolando G. How.
Before the scheduled arraignment of private respondent on August 5, 1999 could take
place, respondent court issued an Order[3]dated June 29, 1999, resetting the arraignment of
private respondent on September 2, 1999 on the ground that private respondent had filed an
appeal with the Department of Justice (DOJ).[4] Private respondent manifested in the same
Order that she would submit a certification from the DOJ granting due course to her appeal on
or before the second scheduled arraignment.[5] On September 24, 1999, respondent court
issued an Order[6] denying petitioners motion for reconsideration of the order that previously
reset the arraignment of private respondent. Said order further rescheduled the arraignment of
private respondent to November 18, 1999.
On November 10, 1999, private respondent filed another Motion to Defer Arraignment. [7] On
November 15, 1999, before the scheduled date of the arraignment of private respondent and
before the date set for the hearing of private respondents Motion to Defer Arraignment,
respondent court issued an Order[8] further deferring the arraignment of private respondent until
such time that the appeal with the said office (SOJ) is resolved.[9] Petitioners motion for
reconsideration of the order was denied by respondent court on November 22, 1999.[10]
Petitioner bewails the fact that six months have elapsed since private respondent appeared
or submitted herself to the jurisdiction of respondent court and up to now she still has to be
arraigned.[11] Respondent court allegedly violated due process when it issued the assailed order
before petitioner received a copy of the Motion to Defer Arraignment of private respondent and
before the hearing for the same motion could be conducted.[12] Petitioner points out that despite
the order of respondent court dated September 26, 1999 which stated that the arraignment of
private respondent on November 18, 1999 is intransferable, respondent court, in utter disregard
of its own order, issued the now assailed order indefinitely suspending the arraignment of
private respondent.[13]
Petitioner is convinced that the twin orders further delaying the arraignment of private
respondent and denying the motion for reconsideration of petitioner violate Section 7, of the
Speedy Trial Act of 1998 (RA 8493) and Section 12, Rule 116 of the Revised Rules on Criminal
Procedure.
Petitioner further submits that this instant petition raises a pure question of law of first
impression[14] since it involves the application and interpretation of a law of very recent vintage,
namely Republic Act No. 8493, otherwise known as the Speedy Trial Act of 1998.[15] Petitioner
mainly relies on Section 7 of said law that states that:

Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment
and Trial. The arraignment of an accused shall be held within thirty (30) days from the filing of
the information, or from the date the accused has appeared before the justice, judge or court in
which the charge is pending, whichever date last occurs. xxx

By issuing the assailed order, respondent court allegedly committed grave abuse of
discretion amounting to lack/excess of jurisdiction.[16] Hence, this petition
for certiorari and mandamus to nullify and set aside the order of respondent court dated
November 15, 1999.
Petitioner limits the issues to the following:
I.

RESPONDENT COURT ERRED IN REFUSING TO ARRAIGN THE PRIVATE RESPONDENT

DESPITE THE LAPSE OF THE TIME LIMIT OF THIRTY (30) DAYS MANDATORILY IMPOSED
BY SECTION 7, OF REPUBLIC ACT NO. 8493, OTHERWISE KNOWN AS THE SPEEDY
TRIAL ACT OF 1998; AND

II.

RESPONDENT COURT ERRED IN DEFYING SECTION 12, RULE 116, OF THE REVISED
RULES ON CRIMINAL PROCEDURE.[17]

The instant petition is devoid of merit.

The power of the Secretary of Justice to review resolutions of his subordinates even after
the information has already been filed in court is well settled. In Marcelo vs. Court of
Appeals,[18] reiterated in Roberts vs. Court of Appeals,[19] we clarified that nothing in Crespo vs.
Mogul[20] forecloses the power or authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases despite an information already having been filed in court.[21]
The nature of the Justice Secretarys power of control over prosecutors was explained
in Ledesma vs. Court of Appeals [22] in this wise:

Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who,
under the Revised Administrative Code,[23] exercises the power of direct control and supervision
over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.

Section 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the
Code gives the secretary of justice supervision and control over the Office of the Chief
Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of
supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the
Code:
(1) Supervision and Control. Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify acts
and decisions of subordinate officials or units; x x x x.

Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act
4007, which read:

Section 3. x x x x

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be
assigned to them by the Secretary of Justice in the interest of public service.

xxxxxxxxx

Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a
specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office,
division or service, the same shall be understood as also conferred upon the proper Department
Head who shall have authority to act directly in pursuance thereof, or to review, modify, or
revoke any decision or action of said chief of bureau, office, division or service.

Supervision and control of a department head over his subordinates have been defined in
administrative law as follows:

In administrative law, supervision means overseeing or the power or authority of an officer to

see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the
former may take such action or step as prescribed by law to make them perform such
duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the performance of his duties and to substitute
the judgment of the former for that of the latter.

Review as an act of supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that
mistakes, abuses or negligence committed in the initial steps of an administrative activity or by
an administrative agency should be corrected by higher administrative authorities, and not
directly by courts. As a rule, only after administrative remedies are exhausted may judicial
recourse be allowed.[24]

Procedurally speaking, after the filing of the information, the court is in complete control of
the case and any disposition therein is subject to its sound discretion.[25] The decision to
suspend arraignment to await the resolution of an appeal with the Secretary of Justice is an
exercise of such discretion. Consistent with our ruling in Marcelo,[26] we have since then held in
a number of cases that a court can defer to the authority of the prosecution arm to resolve, once
and for all, the issue of whether or not sufficient ground existed to file the information. [27]This is
in line with our general pronouncement in Crespo[28] that courts cannot interfere with the
prosecutors discretion over criminal prosecution.[29] Thus, public respondent did not act with
grave abuse of discretion when it suspended the arraignment of private respondent to await the
resolution of her petition for review with the Secretary of Justice.
 In several cases, we have emphatically cautioned judges to refrain from arraigning the
accused precipitately to avoid a miscarriage of justice.[30] In Dimatulac vs. Villon,[31] the judge in
that case hastily arraigned the accused despite the pending appeal of the accused with the DOJ
and notwithstanding the existence of circumstances indicating the probability of miscarriage of
justice. Said judge was reminded that he should have heeded our statement in Marcelo[32] that
prudence, if not wisdom, or at least respect for the authority of the prosecution agency, dictated
that he (respondent judge therein) should have waited for the resolution of the appeal then
pending with the DOJ.[33]
It bears stressing that the court is however not bound to adopt the resolution of the
Secretary of Justice since the court is mandated to independently evaluate or assess the merits
of the case, and may either agree or disagree with the recommendation of the Secretary of
Justice.[34] Reliance alone on the resolution of the Secretary of Justice would be an abdication of
the trial courts duty and jurisdiction to determine prima facie case.[35]
Petitioner insists that in view of the passage of the Speedy Trial Act of 1998, the review
authority of the Secretary of Justice after an information has been already filed in court may
possibly transgress the right of a party to a speedy disposition of his case, in light of the
mandatory tenor of the Speedy Trial Act of 1998 requiring that the accused must be arraigned
within thirty (30) days from the filing of an information against him. Petitioner then impresses
upon this Court that there is a need to reconcile the review authority of the Secretary of Justice
and the Speedy Trial Act of 1998, and submits that the Secretary of Justice must review the
appeal and rule thereon within a period of thirty (30) days from the date the information was filed
or from the date the accused appeared in court (surrendered or arrested) [36] if only to give
meaning to the Speedy Trial Act.
We are not persuaded. The authority of the Secretary of Justice to review resolutions of his
subordinates even after an information has already been filed in court does not present an
irreconcilable conflict with the thirty-day period prescribed by Section 7 of the Speedy Trial Act.
Contrary to the urgings of petitioner, Section 7 of the Speedy Trial Act of 1998 prescribing
the thirty-day period for the arraignment of the accused is not absolute. In fact, Section 10 of the
same law enumerates periods of delay that shall be excluded in computing the time within which
trial must commence. The pertinent portion thereof provides that:

SEC. 10. Exclusions. - The following periods of delay shall be excluded in computing the time
within which trial must commence:

xxx

(f) Any period of delay resulting from a continuance granted by any justice or
judge motu propio or on motion of the accused or his/her counsel or at the request of the
public prosecutor, if the justice or judge granted such continuance on the basis of his/her
findings that the ends of justice served by taking such action outweigh the best interest of
the public and the defendant in a speedy trial. No such period of delay resulting from a
continuance granted by the court in accordance with this subparagraph shall be excludable
under this section unless the court sets forth, in the record of the case, either orally or in
writing, its reasons for finding that the ends of justice served by the granting of such
continuance outweigh the best interests of the public and the accused in a speedy trial.

Accordingly, the view espoused by petitioner that the thirty-day period prescribed by
Section 7 of the Speedy Trial Act must be strictly observed so as not to violate its right to a
speedy trial finds no support in the law itself. The exceptions provided in the Speedy Trial Act of
1998 reflect the fundamentally recognized principle that the concept of speedy trial is a relative
term and must necessarily be a flexible concept.[37] In fact, in implementing the Speedy Trial Act
of 1998, this Court issued SC Circular No. 38-98, Section 2 of which provides that:

Section 2. Time Limit for Arraignment and Pre-trial. The arraignment, and the pre-trial if the
accused pleads not guilty to the crime charged, shall be held within thirty (30) days from the
date the court acquires jurisdiction over the person of the accused. The period of the pendency
of a motion to quash, or for a bill of particulars, or other causes justifying suspension of
arraignment shall be excluded. (Emphasis ours)

As stated earlier, prudence and wisdom dictate that the court should hold in abeyance the
proceedings while the Secretary of Justice resolves the petition for review questioning the
resolution of the prosecutor. The delay in such a case is justified because the determination of
whether the delay is unreasonable, thus amounting to a transgression of the right to a speedy
trial, cannot be simply reduced to a mathematical process. Hence, the length of delay is not the
lone criterion to be considered, several factors must be taken into account in determining
whether or not the constitutional right to a speedy trial has been violated. The factors to
consider and balance are the duration of the delay, reason thereof, assertion of the right or
failure to assert it and the prejudice caused by such delay.[38]
The importance of the review authority of the Secretary of Justice cannot be
overemphasized; as earlier pointed out, it is based on the doctrine of exhaustion of
administrative remedies that holds that mistakes, abuses or negligence committed in the initial
steps of an administrative activity or by an administrative agency should be corrected by higher
administrative authorities, and not directly by courts.[39]
We are not unmindful of the principle that while the right to a speedy trial secures rights to
the defendant, it does not preclude the rights of public justice.[40] However, in this case,
petitioner as private complainant in the criminal case, cannot deprive private respondent,
accused therein, of her right to avail of a remedy afforded to an accused in a criminal case. The
immediate arraignment of private respondent would have then proscribed her right as accused
to appeal the resolution of the prosecutor to the Secretary of Justice since Section 4 of DOJ
Order No. 223 of June 30, 1993 forestalls an appeal to the Secretary of Justice if the
accused/appellant has already been arraigned.[41] Hence, in this case, the order suspending the
arraignment of private respondent merely allowed private respondent to exhaust the
administrative remedies available to her as accused in the criminal case before the court could
proceed to a full-blown trial. Conversely, in case the resolution is for the dismissal of the
information, the offended party in the criminal case, herein petitioner, can appeal the adverse
resolution to the Secretary of Justice.[42] In Marcelo vs. Court of Appeals, this Court aptly pointed
out that:

the trial court in a criminal case which takes cognizance of an accuseds motion for review
of the resolution of the investigating prosecutor or for reinvestigation and defers the
arraignment until resolution of the said motion must act on the resolution reversing the
investigating prosecutors finding or on a motion to dismiss based thereon only upon proof
that such resolution is already final in that no appeal was taken therefrom to the
Department of Justice.[43] (Emphasis ours)

The fact that public respondent issued the assailed order suspending the arraignment of
private respondent before the Motion to Defer Arraignment of private respondent could be heard
is not tantamount to grave abuse of discretion. It was well within the power of public respondent
to grant the continuance since Section 10 (f) of the Speedy Trial Act of 1998 clearly confers this
authority.
Public respondent substantially complied with the requirement of Section 10 (f) of the
Speedy Trial Act when it stated its reasons for the deferment and eventual suspension of the
arraignment of private respondent in its orders dated September 24, 1999[44] and November 22,
1999[45]. In said orders, public respondent reasoned that the suspension of the arraignment of
private respondent was to give the opportunity to the accused to exhaust the procedural
remedies available,[46] to allow the Secretary of Justice to review the resolution of the City
Prosecutor[47]so as not to deprive the former of his power to review the action of the latter by a
precipitate trial of the case,[48] and based on the discretionary power of the trial judge to grant or
deny the motion to suspend the arraignment of the accused pending determination of her
petition for review at the Department of Justice.[49] Despite the absence of a law or regulation
prescribing the period within which the Secretary of Justice must dispose of an appeal, the
presumption still holds true that in the regular performance of his functions, the Secretary of
Justice will decide the appeal in the soonest possible time. Recently, the Department of Justice
issued Memorandum Order No. 12 dated July 3, 2000 mandating that the period for the
disposition of appeals/petitions for review shall be 75 days.[50] In view of this memorandum, the
indefinite suspension of proceedings in the trial court because of a pending petition for review
with the Secretary of Justice is now unlikely to happen.
Section 16 of Rule 110 of the Rules of Court does entitle the offended party to intervene in
the criminal case if he has not waived the civil action or expressly reserved his right to institute it
separately from the criminal action. However, the prosecution of the criminal case through the
private prosecutor is still under the direction and control of the public prosecutor[51]and such
intervention must be with the permission of the public prosecutor.[52] In this case, based on the
power of control and supervision of the Secretary of Justice over public prosecutors, the
pendency of the appeal of private respondent with the Secretary of Justice should have impelled
the public prosecutor to move for the suspension of the arraignment of private
respondent. Considering that private respondent had already informed the court of her appeal
with the Secretary of Justice and had moved for the suspension of her arraignment, the public
prosecutor should have desisted from opposing the abeyance of further proceedings.
Lastly, petitioners argument that the suspension of the arraignment in this case was in
violation of Section 12, Rule 116 of the Revised Rules on Criminal Procedure is likewise not
tenable. Section 12, Rule 116 of the Revised Rules on Criminal Procedure provides that:

Section 12. Suspension of Arraignment. The arraignment shall be suspended, if at the time
thereof:

(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the case against him and to plead
intelligently thereto. In such case, the court shall order his mental examination and,
if necessary, his confinement for such purpose.
(b) The court finds the existence of a valid prejudicial question.
There is nothing in the above-quoted provision that expressly or impliedly mandates that the
suspension of arraignment shall be limited to the cases enumerated therein. Moreover,
jurisprudence has clearly established that the suspension of arraignment is not strictly limited to
the two situations contemplated in said provision.[53] In fine, no grave abuse of discretion
attended the issuance of the assailed order suspending the arraignment of private respondent
until her petition for review with the Secretary of Justice is resolved.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. L-18792 February 28, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GUILLERMO BELLO, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

Ferdinand E. Marcos for defendant-appellant.

REYES, J.B.L., J.:

Appeal from a judgment of the Court of First Instance of Quezon in its Criminal Case No. 592-G,
for murder.

The information filed against the accused alleged four (4) aggravating circumstances, namely:
treachery, evident premeditation, nighttime, and superior strength. The trial court made a finding
of "treachery, evident premeditation and in cold blood and without any provocation"; however,
the dispositive portion of the appealed decision states as follows:

... the Court finds the accused Guillermo Bello guilty beyond reasonable doubt of the
crime of murder defined an punished by Article 248 of the Revised Penal Code with the
aggravating circumstances of (1) nighttime, (2) abuse of confidence and obvious
ungratefulness, (3) superior strength offset only by his surrender to the authorities and
hereby sentence him to DIE by electrocution in the manner provided by law ordering his
heirs, after his death, to indemnify the heirs o the deceased Alicia Cervantes in the sum
of P3,000.00, wit costs.

The record bears out, the Office of the Solicitor General does not challenge, and the counsel de
oficio agree with, and adopts, the following findings of fact of the trial court:

From the evidence adduced at the hearing of the case, it has been established to the
satisfaction of the Court (1) that on September 17, 1954, the accused Guillermo Bello, a
widower who at that time was about 54 years of age, took a young peasant lady named
Alicia Cervantes, about 24 years old his common-law wife; (2) that from that day they
lived together apparently in blissful harmony as man and wife without the benefit of
marriage bearing, however, no child, ...; (3) that on May 15, 1958, the accused who had
no means of substantial livelihood except that of making "kaingin" and who apparently
was then in financial straits induced Alicia Cervantes to accept an employment as
entertainer in a bar and restaurant establishment known as Maring's Place situated the
corner of Aguinaldo and Bonifacio Streets, Gumaca, Quezon (4) that Alicia Cervantes
entered the service of Maring's Place on that day as a public hostess; (5) that the
accused being infatuated with his young bride used to watch her movements in Maring's
Place everyday; (6) that on May 16 he saw Alicia enter the Gumaca theater in Gumaca
with a man whom the accused found later was caressing his common-law wife inside the
movie house; (7) that being in love with her he took her out from the movie and warned
her to be more discreet in her personal conduct in Gumaca; (8) that Alicia Cervantes
continued to serve at Maring's Place as a public hostess; (9) that on May 20, 1958, at
3:00 p.m. the accused went to Maring's Place to ask for some money from Alicia; (10)
that Maring, the owner of the place, and Alicia refused to give money, Maring telling him
to forget Alicia completely because he was already an old man, an invalid besides and
 should stop bothering Alicia; (11) that having failed to obtain financial assistance from
his paramour, accused left the place somewhat despondent and went home passing
Bonifacio Street; (12) that on his way home he met the brothers Justo Marasigan and
Luis Marasigan who greeted the accused, Luis saying to his brother Justo the following:
"So this is the man whose wife is being used by Maring for white slave trade"; (13) that
these remarks of Luis Marasigan naturally brought grief to the accused, to drown which
he sought Paty's place in Gumaca where he drank 5 glasses of tuba; (14) that from
Paty's place he went to Realistic Studio which is in front of Maring's Place and from
there watched the movements of Alicia; (15) that at about 9:00 o'clock that night he
entered Maring's Place and without much ado held Alicia from behind with his left hand
in the manner of a boa strangulating its prey and with his right hand stabbed Alicia
several times with a balisong; (16) that seeing Alicia fallen on the ground and believing
her to be mortally wounded, he fled and went to the municipal building and there
surrendered himself to the police of Gumaca.

Both the prosecution and the defense also agree that the crime committed is not murder but
only homicide, but they disagree in the qualifying or aggravating and mitigating circumstances.
The prosecution holds that the crime is homicide, aggravated by abuse of superior strength, but
offset by voluntary surrender. On the other hand, the defense maintains that the accused is
entitled to the additional mitigating circumstance of passion and obfuscation. The trial court held
a different conclusion, as earlier stated.

While it cannot be denied that Alicia was stabbed at the back, the wound was but a part and
continuation of the aggression. The four (4) stab wounds (the 3 others were in the breast,
hypogastric region, and in the left wrist as shown in the certificate of the Municipal Health
Officer) were inflicted indiscriminately, without regard as to which portion of her body was the
subject of attack. The trial court itself found that the stab in the back was inflicted as Alicia was
running away. For this reason, treachery cannot be imputed (People v. Cañete, 44 Phil. 478).

Evident premeditation was, likewise, not established. The accused had been carrying
a balisong with him for a long time as a precaution against drunkards, and without any present
plan or intent to use it against his common-law wife. That he watched her movements daily
manifest his jealous character, but there is no evidence that from this jealousy sprouted a plan
to snuff out her life.1äwphï1.ñët

The evidence does not show, either, any superior strength on the part of the accused, and, not
possessing it, he could not take advantage of it. True that he was armed with a balisong, but he
was old and baldado (invalid), while Alicia was in the prime of her youth, and not infirm. The
facts are not sufficient to draw a comparison of their relative strength. Possession of
a balisong gives an aggressor a formidable advantage over the unarmed victim, but the
physique of the aggressor ought also to be considered. At any rate, taking into account the
emotional excitement of the accused, it is not clearly shown that there was "intencion deliberada
de prevalerse de la superioridad o aprovecharse intencionadamente de la misma" (Sent. TS. 5
Oct. 1906), i.e., deliberate intent to take advantage of superior strength.

The crime was committed at nighttime, but the accused did not seek or take advantage of it the
better to accomplish his purpose. In fact, Maring's Place was bright and well-lighted; hence, the
circumstance did not aggravate the crime. (U.S. vs. Ramos, et al., 2 Phil. 434; U.S. vs. Bonete,
40 Phil. 958.)
We can not understand how the trial court came to couple the crime with the aggravating
circumstance of abuse of confidence and obvious ungratefulness. There is nothing to show that
the assailant and his common-law wife reposed in one another any special confidence that
could be abused, or any gratitude owed by one to the other that ought to be respected, and
which would bear any relation, or connection, with the crime committed. None is inferable from
the fact that the accused was much older than his victim, or that he was penniless while she
was able to earn a living and occasionally gave him money, since both lived together as
husband and wife. Neither is it shown that the accused took advantage of any such special
confidence in order to carry out the crime.

Since the aggravating circumstances of treachery, evident premeditation, and abuse of superior
strength, which could have qualified the crime as murder, were not present, and since the
generic aggravating circumstances of nighttime and abuse of confidence and obvious
ungratefulness have not been established, the accused can only be liable for homicide.

Both defense and prosecution agree that the accused-appellant is entitled to the benefit of the
mitigating circumstances of voluntary surrender to the authorities. The remaining area of conflict
is reduced to whether the accused may lay claim to a second mitigating circumstance, that of
having acted on a provocation sufficiently strong to cause passion and obfuscation. The
defense submits that accused is so entitled, because the deceased's flat rejection of petitioner's
entreaties for her to quit her calling as a hostess and return to their former relation, aggravated
by her sneering statement that the accused was penniless and invalid (baldado), provoked the
appellant, as he testified, into losing his head and stabbing the deceased. The state disputes
the claim primarily on the strength of the rule that passion and obfuscation can not be
considered when "arising from vicious, unworthy, and immoral passions" (U.S. vs. Hicks, 14
Phil. 217).

We are inclined to agree with the defense, having due regard to the circumstances disclosed by
the record. It will be recalled that the lower court found that the accused had previously
reproved the deceased for allowing herself to be caressed by a stranger. Her loose conduct was
forcibly driven home to the accused by Marasigan's remark on the very day of the crime that the
accused was the husband "whose wife was being used by Maring for purposes of prostitution,"
a remark that so deeply wounded the appellant's feelings that he was driven to consume a large
amount of wine (tuba) before visiting Alicia (the deceased) to plead with her to leave her work.
Alicia's insulting refusal to renew her liaison with the accused, therefore, was not motivated by
any desire to lead a chaste life henceforth, but showed her determination to pursue a lucrative
profession that permitted her to distribute her favors indiscriminately. We can not see how the
accused's insistence that she live with him again, and his rage at her rejection of the proposal,
can be properly qualified as arising from immoral and unworthy passions. Even without benefit
of wedlock, a monogamous liaison appears morally of a higher level than gainful promiscuity.

WHEREFORE, the appealed decision should be, and hereby is, modified. This Court finds the
accused-appellant, Guillermo Bello, guilty beyond reasonable doubt of the crime of homicide,
attended by two (2) mitigating circumstances: (a) passion and obfuscation, and (b) voluntary
surrender, and, therefore, imposes upon him an indeterminate sentence ranging from a
minimum of six (6) years and one (1) day of prision mayor to a maximum of ten (10) years
of prision mayor; orders him also to personally indemnify the heirs of Alicia Cervantes in the
amount of P6,000.00, and to pay the costs. So ordered.
G.R. No. L-30146 February 24, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSEPH CASEY alias "Burl" and RICARDO FELIX alias "CARDING TUWAD", defendants-
appellants.

GUERRERO, J.:

Automatic review of the judgment of the Circuit Criminal Court in Criminal Case No. CCC-VI -6
Rizal (1 7857), imposing upon Joseph Casey alias "Burl" and Ricardo Felix alias "Carding
Tuwad" the capital punishment for the death of Alfredo Valdez. The dispositive portion thereof,
states:

WHEREFORE, the Court finds the accused, Joseph Casey alias "Buri" and
Ricardo Felix alias "Carding Tuwad", GUILTY, beyond reasonable doubt, of the
commission of the crime of Murder, under Article No. 248 of the Revised Penal
Code, as charged in an Information, and hereby sentences them to suffer the
PENALTY OF DEATH, with accessory penalties as prescribed by law; to
indemnify the heirs of the deceased, Alfredo Valdez, in the amount of TWELVE
THOUSAND (P12,000) PESOS, jointly and severally; and to pay the costs.

On May 22, 1968, Assistant Fiscal Herminio I. Benito filed an Information for Murder against
accused-appellant Joseph Casey alias "Burl", alleging:

That on or about the 31st day of March, 1968, in the municipality of San Juan,
province of Rizal, a place within the jurisdiction of this Honorable Court, the
above- named accused, being then armed with a knife, together with one Ricardo
Felix alias "Carding Tuwad" who is then armed with a firearm and who was (sic)
still at large, and the two of them conspiring and confederating together and
mutually helping and aiding one another, with intent to kill, evident premeditation
and treachery and taking advantage of superior strength, did, then and there
wilfully, unlawfully and feloniously attack, assault and shoot and stab with the
said firearm and knife one Alfredo Valdez, thereby inflicting upon the latter fatal
wounds which directly caused his death.

Contrary to law. 1

On June 24, 1968, upon arraignment, said accused pleaded not guilty to the crime charged in
the said complaint. Then, sometime in September, 1968, accused ' appellant Ricardo Felix alias
"Carding Tuwad" was arrested. Accordingly, an Amended Information was filed by the same
fiscal to include Ricardo Felix as an accused, stating as follows:

That on or about the 31st day of March, 1968, in the municipality of San Juan,
province of Rizal, a place within the jurisdiction of this Honorable Court, the
above named accused Joseph Casey alias "Burl" being then armed with a
knife, together with the accused Ricardo Felix alias "Carding Tuwad" who was
then armed with a firearm, and the two of them conspiring and confederating
 together and mutually helping and aiding one another, with intent to kill, evident
premeditation and treachery and taking advantage of superior strength, did, then
and there wilfully, unlawfully and feloniously attack, assault and shoot and stab
with the said firearm and knife one Alfredo Valdez, thereby inflicting upon the
latter fatal wounds which directly caused his death.

Contrary to law. 2

On October 15, 1968, accused Ricardo Felix entered the plea of not guilty upon being arraigned
and trial was accordingly had.

Mercedes Palomo, 28, resident of 242 Mahinhin Street, San Juan, Rizal, testified that on March
31, 1968, at around three o'clock in the afternoon, while in the house of her aunt, she heard a
shot coming from the pool room located near her aunt's place. She then looked towards the
direction of the pool room and saw three men coming out, one of them being pursued by the two
others. She recognized the man being pursued as Alfredo Valdez alias "G.I." She, however, did
not know the names of the pursuers but described one of them as a short man, with curly black
hair and black complexion while the other as having a fair complexion. When asked as to
whether she can Identify them, she answered in the affirmative and pointed to Joseph Casey
and Ricardo Felix. 3

Continuing her testimony, she said that she saw the one with curly hair overtake and stab the
victim several times, while in the meantime, Ricardo Felix stood nearby holding a gun which he
later fired once at the victim. 4

Jose Rivera, 57 years old, a policeman, was presented by the prosecution to testify on the
investigation he conducted before Judge Alfredo M. Gorgonio on April 1, 1968 involving the
accused Joseph Casey. He submitted in evidence the extrajudicial statement of the said
accused, contained in a two page sworn statement wherein said accused narrated having a
rendezvous with the accused Ricardo Felix and with another person named Rudy at Cubao
Rotonda, Quezon City at about nine o'clock in the morning of March 31, 1968 and thereafter
proceeding to Barrio Halo-Halo, San Juan, Rizal at about three o'clock in the afternoon, where
the incident happened. 5

Patrolman Honorio Carritero, 46 years old, also a policeman, testified that in the afternoon of
March 31, 1968. he was awakened by noise that somebody was stabbed and shot. Upon going
out to investigate, he saw the victim lying down near the toilet with stab wounds but still alive,
hovering between life and death. He then called for a jeep and brought him to a hospital. 6

Finally, Dr. Mariano B. Cueva, 32 years of age, a physician, was presented to testify on the
Necropsy Report No. 58-425 of Alfredo Valdez, herein quoted as follows:

Marked paleness of lips, nailbeds, and integument.

Abrasion, 1.5 x 0.7 cm., right scapular region of back, 12.0 cm. from posterior
median line.

Stab wounds: (1) 1.1 cm. long, spindle shape, located at left hypochondriac
region of abdomen, 11.0 cm. from anterior median line, level of 8th intercostal
space; long axis is oriented horizontally, medial extremity sharp, lateral extremity
 contused, edges clean-cut and slightly gaping, with bevelled lower border; attract
is directed backward upward medially, entering abdominal cavity and perforating
along its track the greater momentum, body of stomach, body of pancreas, and
partly severing the abdominal aorta at the level of 12th thoracic vertebra;
approximate depth, 10.0 cms.

(2) 1.1 cm. long, spindle shape, located at umbilical region of abdomen, 2.3. cm.
to the left of anterior median line, 6.0 cm. above the level of navel; long axis
oriented horizontally, medial extremity sharp, lateral extremity contused, edges
clean- cut and gaping, with bevelled lower border; track is directed backward
upward and medially, entering abdominal cavity and perforating along its track
the greater momentum, pylorus of stomach and body of pancreas; approximate
depth, 10.0 cms.

(3) 1.0 cm. long, spindle shape, located at left infra scapular region of the back,
8.5 cm. from posterior median line, level of 9th rib; long axis is oriented slightly
downward and laterally, lateral extremity sharp, medial extremity contused,
edges clean-cut and gaping with bevelled upper border; track is directed
downward slightly forward and medially taking a deep intra-muscular route at left
posterior lumbar region to a depth of 9.0 cm.

(4) 1.2 cm. long, slightly curvilinear in shape, located at right posterior lumbar
region, 8.0 cm. from posterior lumbar region, 8.0 cm. from posterior median line,
12.0 cm. above iliac crest convexity of wound is directed upward, medial
extremity sharp, lateral extremity contused, edges clean-cut and gaping, with
bevelled upper border; track is directed downward slightly forward and laterally,
taking a subcutaneous route at right lateral lumbar region to a depth of 6.5 cm.

Hemoperitoneum — 840 cc.

Hematomas, retroperitoneal, severe, bilateral.

Heart and its big vessels, almost empty of blood.

Brain and other visceral organs, markedly pale.

7
Stomach, filled with dark fluid and clotted blood about 800 cc.

Case of Death: Hemorrhage, severe, secondary to stab wounds of

abdomen.

On the other hand, the evidence for the defense consisted of the testimonies of the two
accused. Joseph Casey, when called to testify on his behalf, admitted having stabbed the
victim, Alfredo Valdez but alleged that he did so in self-defense. His version of the incident was
that on March 31, 1968, he went to the house of Ricardo Felix but was told that he was not in.
So he proceeded to the pool room, located around two or three meters away from the residence
of Ricardo Felix. At the start, he simply witnessed those playing pool and when they were
through, he himself played. While playing, he accidentally bumped the victim with the pool cue
(tako). He accordingly asked for apoloy but the victim simply ignored him and left the place
immediately. 8
When he was through playing, he went out and saw the victim waiting for him outside,
accompanied by six or seven persons holding pieces of wood. As the place had no other exit,
he proceeded on his way together with one person named "Rody." While passing by, the victim
suddenly drew a "balisong" and lunged it on him. But he was able to parry the thrust. He then
took hold of the victim's right hand and grappled with him. In the process, he successfully
wrested the knife from him. He then used the weapon against him, hitting him about two or three
times. While he was contending with the victim, the latter's companions joined in and hit him
with pieces of wood, inflicting "gasgas" or abrasions on his back. 9

The other accused, Ricardo Felix, testified that he did not see Joseph Casey on March 31,
1968. Likewise, he said that he knew the victim, Alfredo Valdez; that he last saw him alive in a
store on the same day that he was killed when he was about to leave for Manila; and that he
learned that he was dead when he returned home. 10

On the basis of the aforesaid evidence, the court a quo rendered the aforementioned judgment
of conviction. It found that two aggravating circumstances attended the commission of the
crime, namely: employing or taking advantage of superior strength and evident premeditation,
one of which qualified the killing to murder. Hence, this automatic review.

The able counsel de oficio for the accused-appellant raised the following assignments of errors
in a well-prepared brief:

FIRST ASSIGNMENT OF ERROR

The Court a quo erred in illegally trying appellant Casey on the amended
information without arraignment, and in finding him guilty after such illegal trial.

SECOND ASSIGNMENT OF ERROR

The Court a quo erred in holding that the appellants acted with evident
premeditation and abuse of superior strength, and in qualifying the crane
committed as aggravated murder.

THIRD ASSIGNMENT OF ERROR

The Court a quo erred in holding that the appellants had forged a conspiracy to
kill the victim, Alfredo Valdez.

FOURTH ASSIGNMENT OF ERROR

The Court a quo erred in holding that both appellants were liable for the death of
Alfredo Valdez; if any crime had been committed at all, the only person
responsible therefore was appellant Casey, and, at that, only for homicide,
instead of murder.

FIFTH ASSIGNMENT OF ERROR

The Court a quo erred in discounting appellant Casey's defense that he acted in
legitimate self-defense.
 SIXTH ASSIGNMENT OF ERROR

The Court a quo erred in discounting the defense of alibi interposed by appellant
Felix.

SEVENTH ASSIGNMENT OF ERROR

The Court a quo erred in not acquitting both appellants. 11

We do not find merit in the first assignment of error. The lack of arraignment under the amended
information is objected to by accused-appellant Joseph Casey allegedly on the ground that
there is a violation of his constitutional right to be informed of the charge against him. There can
be a violation of such right, however, only when the amendment pertains to matters of
substance. In the case at bar, the alterations introduced in the information refer to the inclusion
of accused appellant Ricardo Felix to the same charge of murder. They do not change the
nature of the crime against accused-appellant Casey. Conspiracy, evident premeditation,
treachery and taking advantage of superior strength are similarly alleged in both informations.
No extenuating circumstance is likewise alleged in both. Thus the amendment of the information
as far as accused-appellant Casey is concerned is one of form and not of substance as it is not
prejudicial to his rights.

The test as to whether a defendant is prejudiced by the amendment of an information has been
said to be whether a defense under the information as it originally stood would be available after
the amendment is made, and whether any evidence defendant might have would be equally
applicable to the information in the one form as in the other. 12A look into Our jurisprudence on
the matter shows that an amendment to an information introduced after the accused has
pleaded not guilty thereto, which does not change the nature of the crime alleged therein, does
not expose the accused to a charge which could call for a higher penalty, does not affect the
essence of the offense or cause surprise or deprive the accused of an opportunity to meet the
new averment had each been held to be one of form and not of substance — not prejudicial to
the accused and, therefore, not prohibited by Section 13, Rule 110 of the Revised Rules of
Court. 13

We, however, find the second assignment of error of accused- appellants meritorious. The lower
court erred in its findings and conclusions, herein quoted below, that the aggravating
circumstances of evident premeditation and abuse of superior strength attended the
commission of the crime:

In the morning of March 31, 1968, from the evidence on the record, the two (2)
accused, Joseph Casey and Ricardo Felix, had rendezvous in Cubao, Quezon
City, and planned to kill the victim, Alfredo Valdez. (Evident premeditation and
conspiracy) There was superior strength that was used because the victim,
Alfredo Valdez, was alone, being pursued by the two accused, who were both
armed. The two accused did not waste time in planning the killing of the victim on
March 31, 1968. They clung to their determination of killing the victim. From 9:00
o'clock in the morning, they had the firm conviction and strong determination of
killing the victim up to the time of the execution of their evil motive. (People vs.
Caushi, G. R. No. L16495) 14
Indeed, accused-appellant Joseph Casey gave an extrajudicial sworn statement that he met
accused-appellant Ricardo Felix and another person named Rudy in Cubao, Quezon City on
that fateful day. However, there is no showing that this meeting was purposely arranged to plan
the killing of the victim. In fact, the following questions and answers in the said sworn statement
show that there was no preconceived design to kill the victim:

7. T— Sino ang sinasabi mong binaril at sinaksak mo?

S — Hindi ko po kilala dahil noon ko po lamang nakita ang

nasabing tao.

8. T— Maari mo bang isalaysay ang buong pangyayari?

S — Kami po ay nagkita nila Carding Tuwad at isang

nagngangalang Rody sa Cubao, Quezon City, ng mga alas 9:00
ng umaga, Marzo 31, 1968, at kami ay nag-inuman. Matapos
kaming mag-inuman, ng mga mag-aalas 3:00 ng hapon ng araw
ding iyon, nagyaya po si Carding doon sa kanila sa Barrio Halo-
Halo, San Juan, Rizal, at sa paglalakad namin doon sa daang
Mahinhin, San Juan, Rizal, nakita ni Carding ang isang lalaki, at
ang ginawa ay nilapitan niya. Ng makita ng lalaki si Carding,
tumakbo po, at ang ginawa ni Carding ay kanyang hinabol. 15

The subsequent portions of the said sworn statement further militate against the existence of
evident premeditation. Thus, when accused-appellant Casey was asked why Ricardo Felix shot
the victim, he answered: "Noon pong nakasakay na kami sa jeep, tinanong ko siya kung bakit
nangyari ang away na yaon at ang sabi ni Carding ay. DATI KO NANG NAKAENKWENTRO
YAONG TAO" (Question No. 28). And when asked why he stabbed the victim, he replied:
Dahilan kasama ko po si Carding kaya ko po nasaksak ang tao. Hindi ko kusang kagustuhan na
saksakin ang tao kung hindi dahil sa nakasama ko si Carding.

(Question No. 29)

There is evident premeditation when the killing had been carefully planned by the offender or
when he had previously prepared the means which he had considered adequate to carry it out,
when he had prepared beforehand the means suitable for carrying it into execution, when he
has had sufficient time to consider and accept the final consequences, and when there had
been a concerted plan. 16 It has also been held that to appreciate the circumstances of evident
premeditation, it is necessary to establish the following; (1) the time when the offender
determined to commit the crime; (2) the act manifestly indicating that the culprit has clung to his
determination; and (3) a sufficient lapse of time between the determination and execution to
snow him to reflect upon the consequences of his act and to allow his conscience to overcome
the resolution of his will had he desired to hearken to its warning. 17

From the answers of accused-appellant Casey in said sworn statement, it can be gleaned that
the killing was not a preconceived plan. It was not preceded by any reflection or deep thought. It
was just a spontaneous decision reached when the victim started to run away upon being
approached by accused-appellant Ricardo Felix. Evident premeditation cannot, thus, be
considered in this case. The Solicitor General himself agrees with the defense that this
circumstance has not been duly proved (People's Brief, p. 8). Hence, the crime committed is
simple homicide (Article 249, Revised Penal Code).

There are indeed two accused-appellants in this case charged with the murder of not one victim
but superiority in number does not necessarily mean superiority in strength. It is necessary to
show that the aggressors "cooperated in such a way as to secure advantage from their
superiority in strength." 18 In the case of U.S. vs.. Devela, et al., 19there were two accused who
were armed with a bolo and a dagger. But the circumstance of abuse of superiority was not
taken into consideration because the mere fact, according to this Court, of there being a
superiority of number is not sufficient to bring the case within this provision. There must be proof
of the relative physical strength of the aggressors and the assaulted party; 20 or proof that the
accused simultaneously assaulted the deceased. 21As likewise held in People vs. Trumata and
Baligasa, 22 the mere fact that the two accused may have inflicted fatal wounds on the deceased
with their respective bolos does not justify a finding that advantage was taken of superior
strength in the absence of proof showing that they cooperated in such a way as to secure
advantage from their superiority of strength.

Thus, in the face of the evidence on record showing that although the victim was pursued by
both of the accused-appellants 23 and that he was unarmed 24 while the accused-appellants
were both armed, one with a gun and the other with a long pointed weapon, 25 since it is also
duly proved that it was only accused-appellant Casey who assaulted and inflicted stab wounds
on him as the other accused-appellant merely stood nearby toying with his gun, abuse of
superiority cannot be said to have attended the commission of the crime.

The third essential issue to be resolved is whether or not there is conspiracy between the two
accused in the commission of the crime. Conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide to commit it. 26 This agreement
need not be in writing or be expressly manifested. 27 It is sufficient that there is a mutual implied
understanding between the malefactors as shown by their concerted action towards the
fulfillment of the same objective. In People v. Cadag, 28 it was held: "Conspiracy to exist does
not require an agreement for an appreciable period prior to the occurrence; from the legal
viewpoint, conspiracy exists if, at the time of the commission of the offense, the accused had
the same purpose and were united in its execution." To the same effect is the ruling in other
cases decided by this Court. 29

Pursuant to this uniform and consistent jurisprudence on the existence of conspiracy by the
mere proof of community of design and purpose on the part of the accused, We hold that
conspiracy exists in this case, True enough that there is no direct showing that the accused had
conspired together, but their acts and the attendant circumstances disclose that common motive
that would make accused Ricardo Felix as a co-principal with the actual slayer, Joseph Casey.
Without doubt, he performed overt acts in furtherance of the conspiracy. In People vs.
Peralta, 30 it was held that such overt act may consist in actively participating in the actual
commission of the crime, in lending moral assistance to his co-conspirators by being present at
the scene of the crime, or in exerting moral ascendancy over the rest of the conspirators as to
move them to executing the conspiracy. In the case at bar, Ricardo Felix's overt acts consist in
instigating the pursuit of the deceased, in firing a shot at him and in giving Joseph Casey
encouragement by his armed presence while the latter inflicted the fatal wounds on the
deceased.
From the extrajudicial confession of the accused-appellant Joseph Casey, it can also be inferred
that Ricardo Felix was the moving factor of the evil act perpetrated by the former against the
victim. While it was Joseph Casey who inflicted the mortal wounds that caused the death of the
victim, he did so out of his perverted sense of friendship or companionship with Ricardo Felix.

Hence, it would be incongruous to acquit Ricardo Felix and put all the blame of the killing on
Joseph Casey when it was the latter who merely joined the former in his criminal resolution. The
fact that he did nothing but toyed with his gun when Joseph Casey successively stabbed the
victim means that he concurred with the wife of Casey to do away with the victim. For this
reason, he should also be held accountable, notwithstanding the fact that his shot did not hit the
victim and that the cause of death of the victim is the stab wounds inflicted by Casey. In People
vs. Peralta, 31 it was held that the moment it is established that the malefactors conspired and
confederated in the commission of the felony proved, collective liability of the accused
conspirators attaches by reason of the conspiracy, and the court shall not speculate nor even
investigate as to the actual degree of participation of each of the perpetrators present at the
scene of the crime.

The above discussion also disposes of the fourth assignment of error of accused-appellants. So
We proceed with the fifth assignment of error.

We find that the respondent court correctly disregarded Joseph Casey's claim of self-defense.
Besides being unworthy of credence, said claim is uncorroborated and contrary to the testimony
of the eyewitness, Mercedes Palomo.

The fact that the victim sustained four stab wounds while the accused complained merely of
abrasions on his back indicates the falsity of the claim. The accused failed to present a medical
certificate for the bruises he allegedly sustained. He likewise failed to present anybody to attest
to the truth of his allegations. There is no clear and convincing evidence that the elements of
self-defense are present. On the other hand, the prosecution had not only one but several
eyewitnesses to the crime as shown by the different affidavits attached to the records of the
case. Although only one of the eyewitnesses was presented in court, her lone testimony on
what actually transpired, negating the claim of self-defense, is more credible than the version of
Joseph Casey. Evidence, to be believed, must not only proceed from the mouth of a credible
witness, but it must be credible in itself. Human perception can be warped by the impact the
events and testimony colored by the unconscious workings of the mind. No better test has yet
been found to measure the value of a witness' testimony than its conformity to the knowledge
and common experience of mankind. 32

We likewise find that respondent court correctly denied the defense of alibi of Ricardo Felix.
Alibi, in order to be given full faith and credit must be clearly established and must not leave any
room for doubt as to its plausibility and verity. 33 In the case at bar, said accused-appellant failed
to show clearly and convincingly that he was at some other place about the time of the alleged
crime. He merely said that he was at home and that he went to Manila. 34 As pointed out by the
Solicitor General, he did not even specify the exact place at Manila where he had gone and the
purpose for going there. Then, while said defense was corroborated by Joseph Casey, the
latter's testimony lacks that character of trustworthiness since it is very apparent that he was
merely attempting to assume full and exclusive responsibility for the crime. Finally, said defense
is unavailing when there is positive Identification. Prosecution witness, Mercedes Palomo, gave
distinct attributes of Ricardo Felix in her sworn statement that leave no iota of doubt that he was
one of the perpetrators of the crime.
WHEREFORE, the judgment of the trial court under automatic review is MODIFIED in that the
accused-appellants Joseph Casey and Ricardo Felix are found guilty beyond reasonable doubt
of the crime of homicide without any attending circumstances and should be sentenced
to reclusion temporal in its medium period. But applying the Indeterminate Sentence Law, each
of the accused is sentenced to an indeterminate penalty of ten (10) years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. The
accused are likewise sentenced to indemnify the heirs of the deceased Alfredo Valdez in the
amount of TWELVE THOUSAND PESOS (P12,000.00) jointly and severally, and to pay the
costs.

SO ORDERED.
 [G.R. No. 128888. December 3, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHARITO ISUG

MAGBANUA, accused-appellant.

DECISION
KAPUNAN, J.:

Before the Court for automatic review is the decision[1] rendered by the Regional Trial Court
of San Jose, Occidental Mindoro, Branch 46,[2] in Criminal Case No. R-3996, finding accused-
appellant Charito Isug Magbanua guilty of the crime of rape against his own daughter and
sentencing him to suffer the supreme penalty of death and to indemnify the victim in the amount
of P50,000.00 as damages.
In an Information filed on 29 May 1996, Charito Magbanua was charged with the crime of
rape allegedly committed as follows:

That sometimes (sic) on (sic) the year 1991 and the days thereafter, in Barangay Pawican,
Municipality of San Jose, Province of Occidental Mindoro, Philippines and within the jurisdiction
of this Honorable Court, the accused, with lewd design, by means of force and intimidation, did
then and there willfully, unlawfully and feloniously have carnal knowledge of Poblica Magbanua,
against her will and consent.

CONTRARY TO LAW.[3]

Upon his arraignment on 23 July 1996, appellant entered a plea of NOT

GUILTY.[4] Thereafter, trial on the merits ensued.
The prosecution presented three witnesses, namely: Poblica Magbanua, the complaining
witness; Leonilo Magbanua, the uncle of Poblica and older brother of appellant; and Dra. Arlene
Sy, the physician who examined Poblica and issued the medical certificate.
The evidence for the prosecution is detailed as follows:
Poblica Magbanua, the complaining witness, is the eldest among the seven (7) children of
appellant with his wife, Aniceta Magbanua.[5] She was eighteen (18) years old, single, jobless
and a resident of Ilin, San Jose, Occidental Mindoro, at the time of the trial.
Poblica testified that in the year 1991, when she was barely thirteen (13) years old and not
yet having her menstrual period, she was sexually abused by appellant, her own father. [6] It was
around noon when appellant first molested her. She averred that appellant approached her and
poked a knife at her.[7] Appellant then removed her panty and laid her down. Thereafter, he took
off his own underwear and placed himself on top of Poblica. He directed his penis towards her
vagina and pushed up and down.[8] Poblica felt appellants penis enter her vagina.[9] During the
sexual encounter, she experienced pain in her vagina. Unable to resist appellant because the
knife was constantly pointed at her, she could only cry. After the sexual intercourse, appellant
warned Poblica not to tell anyone about what happened.Appellant then dressed up while
Poblica put on her underwear. She then noticed that blood oozed from her vagina.[10] She
narrated that her defilement did not end there. Since then until 1995, appellant continuously
abused her several times a month.[11] The sexual assaults usually took place at noontime when
she was left alone with appellant while her mother went to town to buy their basic needs and
while her brother and sisters were at the house of their grandmother which was quite far from
their house.
As a result of the frequent sexual violations, Poblica became pregnant. She gave birth to a
baby boy on 15 November 1995[12] at the house of her grandmother where she temporarily
transferred. She named the child Roger Roldan Magbanua and registered his birth with the local
civil registry without stating the name of the natural father in the certificate of birth. [13] When
asked about the identity of the father of the child, Poblica categorically answered that it was
appellant who sired the baby. She explained that appellant fathered the child since he was the
one who abused her from 1991 until she became pregnant.[14]
According to Poblica, she did not report the rape incidents to her mother because appellant
threatened to kill her.[15] When her mother noticed her pregnancy and asked her about the
supposed father, she did not tell her that it was appellant who authored her pregnancy. Instead,
as suggested by appellant, she named one Ricky Pacaul as the one who impregnated
her. However, later on, she claimed that she does not know any person by that name.[16]
Three months after she gave birth, she went to live with her Uncle Leonilo and his wife at
Malvar Street, San Jose, Occidental Mindoro. She stayed with them and did not return any more
to their residence at Pawican. While there, she disclosed to her aunt the harrowing experience
she had in the hands of her father. Her uncle learned about her story and assisted her in filing
the complaint for rape against appellant. She went to the police station where she voluntarily
executed a Sinumpaang Salaysay[17] before SPO2 Resurrecion Atlas concerning the rape
incidents.[18]
Prosecution witness Dr. Arlene S. Sy, Rural Helath Physician of San Jose, Occidental
Mindoro, testified that she examined Poblica on 20 February 1996.[19] In the course of her
physical examination of Poblica, she made the following findings:

P.E.:

Vagina admits 2-3 fingers

Hymen not intact, with cervicitis

Grms. Staining: with pus cells

RBC moderate

Negative to spermatozoa.[20]

Dr. Sy explained that Poblicas vagina admits two (2) to three (3) fingers with less degree of
resistance because its orifice was already wide and elastic as a result of the entry of a foreign
object.[21] At the time of the examination, Poblicas hymen was no longer intact and based on the
cervical discharge she collected from the patient, it showed signs of cervicitis, an infection of the
cervix.[22] According to Dr. Sy, cervicitis could have been sustained from the delivery of the
child. When asked by the trial court to clarify this point, she averred that cervicitis may also be
contracted through sexual intercourse with a man having a venereal disease. However, she did
not negate the possibility that cervicitis could also result from the delivery of a child and by the
poor hygiene of the patient.
 The last witness presented by the prosecution was Leonilo Magbanua. Leonilo testified that
sometime in November 1995, his mother, Perpetua Magbanua informed him about the
pregnancy of Poblica.Perpetua then requested him to convince Poblica to stay with him so that
he would be in the position to elicit from her the identity of the person who caused her
pregnancy. Leonilo agreed and talked with his niece who had then a three (3) month old
son. Poblica acceded and stayed with Leonilo and his wife at Malvar Street, San Jose,
Occidental Mindoro. While he was away at work in his store Poblica related to his wife that it
was appellant who sired her child.[23] Upon learning this, he immediately summoned appellant to
discuss the matter with him. However, appellant did not heed his invitation. Thereupon, he
asked Poblica if she would like to file a complaint against his father. Poblica answered in the
affirmative. He then assisted her in filing a complaint for rape against appellant. He, likewise,
executed a Sinumpaang Salaysay[24] to the effect that Poblica told him that she was raped by
her father.[25] During the cross-examination, he declared that he bore no grudge against
appellant.
On the other hand, the defense presented only one witness, the appellant himself. On the
witness stand, appellant admitted that Poblica is his daughter, the latter being the eldest among
his seven children.[26] However, he denied raping Poblica.[27] He pinned the commission of the
crime on someone else. He claimed that, at one time, Poblica told him that it was a certain
Ricky Pacaul who molested her.[28] He, likewise, disputed the allegation that he caused Poblicas
pregnancy. Again he pointed to Ricky Pacaul as the culprit. However, appellant could not recall
the time when Poblica allegedly revealed to him the identity of her aggressor. When subjected
to cross-examination, he stated that he does not know any Ricky Pacaul.[29] He likewise
admitted that despite the information he received regarding the identity of the person who
allegedly molested her daughter, he did not find it necessary to locate him since they had no
money to spend on the search for his whereabouts. He also did not attempt to investigate nor
file a complaint against Ricky Pacaul. Finally, he alleged that he does not know of any reason
why Poblica and his brother Leonilo testified against him and pointed to him as the perpetrator
of the offense.[30] The defense tried to present appellants wife and mother of Poblica, Aniceta
Magbanua, but she refused to testify in appellants favor.
After hearing the evidence from both sides, the trial court was convinced that appellant was
guilty of the crime charged. The trial court believed the testimony of Poblica who positively
identified appellant as the author of the sexual attack. The lower court rationalized that no
daughter in her right mind would fabricate a rape charge against her own father unless the
same had actually been committed.The lower court opined that Poblica, being unschooled and
illiterate, could not be sophisticated enough to ascribe such a heinous crime against
appellant. The trial court also noted that Poblica had no axe to grind against him and, in fact,
was only nobly motivated to tell her story in order to protect her younger female siblings from
possible abuse from their father. Thus, in a Decision, dated 27 February 1997, the trial court
convicted appellant of rape and sentenced him to death. The dispositive portion of the trial
courts decision reads:

WHEREFORE, finding the accused Charito Isug Magbanua, guilty beyond reasonable doubt of
the crime of rape, described and penalized under Article 335 of the Revised Penal Code and
Section 11 of Republic Act No. 7659, otherwise referred to as the Death Penalty Law, this Court
hereby sentences him to suffer the capital penalty of DEATH.

The accused is ordered to indemnify the offended party, damages in the amount of FIFTY
THOUSAND PESOS (P50,000.00).
The accused who is presently detained at the Provincial Jail at Magbay, San Jose, Occidental,
Mindoro is ordered immediately transferred to the New Bilibid Prisons, Muntinlupa City.

SO ORDERED.[31]

The above decision is now the subject of the present review.

In his brief, appellant imputes the following errors allegedly committed by the trial court, to
wit:
I

THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE INFORMATION

INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION FOR ITS FAILURE TO
STATE THE PRECISE DATE OF THE OFFENSE, IT BEING AN ESSENTIAL
INGREDIENT OF THE CRIME CHARGED.

II

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF

DEATH UPON ACCUSED-APPELLANT BY APPLYING RETROACTIVELY REPUBLIC
ACT NO. 7659 (DEATH PENALTY LAW).[32]

Appellant faults the trial court in convicting him on the basis of an allegedly insufficient
information for its failure to specify the exact dates when the rapes were perpetrated because it
merely stated that these rapes were committed sometimes (sic) on (sic) the year 1991 and the
days thereafter. He asserts that since each sexual act is considered a separate crime, each of
these acts should have been established as executed on certain dates or times and set forth in
the information as such. He further argues that the indefiniteness of the information with respect
to time could not have been cured by evidence presented by the prosecution in derogation of
his right to be informed of the nature of the crime charged against him. In support of the above
arguments, appellant cites the case of US vs. Dichao.[33]
Corollary to the first assignment of error, appellant contends that the trial court erred in
imposing upon him the penalty of death. Since the information did not state the actual dates
when the rapes took place, the sexual attacks on those unspecified dates should not have been
considered as included within the coverage of Republic Act No. 7659 or the Death Penalty Law;
thus, the Death Penalty Law should not have been applied retroactively in order to encompass
the rapes which took place in 1991.
With respect to the allegation of insufficiency of the information, we find the contention
devoid of merit. Failure to specify the exact dates or time when the rapes occurred does
not ipso facto make the information defective on its face. The reason is obvious. The date or
time of the commission of rape is not a material ingredient of the said crime [34] because
the gravamen of rape is carnal knowledge of a woman through force and intimidation. Infact, the
precise time when the rape takes place has no substantial bearing on its commission.[35] As
such, the date or time need not be stated with absolute accuracy.[36] It is sufficient that the
complaint or information states that the crime has been committed at any time as near as
possible to the date of its actual commission. The purpose of the requirement is to give the
accused an opportunity to defend himself.
Section 11, Rule 110 of the Rules of Court states thus:
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 the 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.

Although the information did not state with particularity the dates when the sexual attacks
took place, we believe that the allegations therein that the acts were committed on (sic) the year
1991 and the days thereafter substantially apprised appellant of the crime he was charged with
since all the essential elements of the crime of rape were stated in the information. As such,
appellant cannot complain that he was deprived of the right to be informed of the nature of the
case filed against him. An information can withstand the test of judicial scrutiny as long as it
distinctly states the statutory designation of the offense and the acts or omissions constitutive
thereof.[37]
Nevertheless, appellant insists that on the basis of US vs. Dichao, the information should
have been considered as fatally defective, hence, void and incapable of supporting a judgment
of conviction. The reliance of appellant in US vs. Dichao is misplaced. The dictum expressed by
the Court therein is not applicable to the present case due to the difference in factual
scenario. A careful study of the Dichao case reveals that what was questioned therein was an
order of the trial court sustaining a demurrer to an information on the ground that it failed to
substantially conform to the prescribed form when it did not allege the time of the commission of
the offense with definiteness. The information therein stated that the sexual intercourse
occurred [o]n or about and during the interval between October, 1910, to August, 1912, which
statement of time the Court described as x x x so indefinite and uncertain that it does not give
the accused the information required by law x x x and the x x x opportunity to prepare his
defense x x x.[38] The lower court in allowing the demurrer authorized the dismissal of the case
against the accused therein. The Court upheld the order of the trial court. In the case at bar,
however, no such demurrer to the information was ever filed. As a matter of fact, no objection to
the sufficiency of the information was ever raised by appellant before the trial court, unlike
in Dichao; hence, appellant is deemed to have waived whatever formal defect in the
information. The case in point is People vs. Garcia[39] where the Court ruled:

Assuming that this is still good case law (referring to Dichao) reliance cannot be placed thereon
by appellant since the dicta are not applicable to the present case due to factual
differences. Taking into consideration the circumstances obtaining herein vis--
vis the Dichao case, the distinguishing factor which is immediately apparent is the existence of a
motion to quash in that case as pointed out in the aforequoted decision. There is no such
motion in the case at bar, and this spells the big difference.

The rule is that at any time before entering his plea, the accused may move to quash the
information on the ground that it does not conform substantially to the prescribed form. The
failure of the accused to assert any ground for a motion to quash before he pleads to the
information, either because he did not file a motion to quash or failed to allege the same in said
motion, shall be deemed a waiver of the grounds for a motion to quash, except the grounds of
no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or
penalty, and jeopardy.

Perforce, a formal defect in the information not being one of the exceptions to the rule,
appellants failure to invoke the same through a motion to quash is deemed to be a waiver of
such objection and he cannot now be heard to seek affirmative relief on that ground. Moreover,
objections as to matters of form or substance in the information cannot be made for the first time
on appeal.[40]

Explaining further why appellant therein cannot seek refuge in Dichao, the Court in People
vs. Garcia said:

It may readily be inferred from the decision in Dichao that where there is such
an indefinite allegation in the information as to the time of the commission of the offense which
would substantially prejudice the defense, a motion to quash the information may be granted
and the case dismissed without the benefit of an amendment. On the other hand, where there
is variance between the date of the commission of the crime alleged in the information and that
proved at the trial, and it is shown to the trial court that the accused is surprised thereby, and
that by reason thereof, he is unable to properly defend himself, the court may in the exercise of
sound discretion based on all the circumstances, order the information amended so as to set
forth the correct date. It may further grant an adjournment for such a length of time as will
enable the accused to prepare himself to meet the variance in date which was the cause of his
surprise.

Apparently, that distinction was premised on the theory that the question on whether the
allegations of the information are sufficiently definite as to time, and the question which arises
from the variance between the particulars of the indictment and the proof, are different in nature
and legal effect, and are decided on different principles.

It would then result that, on the basis of the foregoing disquisition in Dichao, an amendment will
not be allowed, and the motion to quash should instead be granted, where the information is, on
its face, defective for failure to state with certainty when the offense was committed, and such
ambiguity is so gross as to deprive the accused of the opportunity to defend himself. For all
intents and purposes, however, a strict adherence thereto would no longer be a sound
procedural practice, especially in criminal proceedings which bears the mandate on speedy trial
and where in the availability of bills of particulars have over time been adopted and
recognized.[41]

The above ruling firmly sustained the pronouncement the Court made in Rocaberte vs.
People[42] which we adopted in People vs. Garcia were we held:

We believe that the principle laid down in the more recent case of Rocaberte vs. People, et al.
involving exactly the same issue, presents the more logical and realistic interpretation of the
rules. While the Court there adverted to the Dichao case, it nevertheless resorted to a less
restrictive application of the rules by disposing of the case in this wise:

A defect in the averment as to the time of the commission of the crime charged is not, however,
a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion
for quashal on that account will be denied since the defect is one that can be cured by
amendment; instead, the court shall order the amendment to be made by stating the time with
particularity.

The remedy against an indictment that fails to allege the time of the commission of the offense
with sufficient definiteness is a motion for bill of particulars, provided for in Section 6, Rule 116
of the Rules of Court of 1964.[43]
 As may be deduced from the above discussion, it is already too late in the day for appellant
to question the sufficiency of the information. He had all the time to raise this issue during the
course of the trial, particularly during his arraignment. He could have filed for a bill of particulars
in order to be properly informed of the dates of the alleged rapes. However, appellant chose to
be silent and never lifted a finger to question the information. As a result, he is deemed to have
waived whatever objections he had and he cannot now be heard to seek affirmative
relief. Furthermore, objections as to matters of form or substance in the information cannot be
made for the first time on appeal.[44]
Moreover, in Dichao it cannot be denied that the information alleging the commission of one
(1) rape between October, 1910, to August, 1912 is so indefinite and uncertain as to afford the
accused the necessary information to enable him to defend himself. The situation is different in
the case at bar. The time specified in the information of the present case states that rape was
committed, on (sic) 1991 and the days thereafter. Clearly, the time set therein was particularly
focused on a certain year, 1991, while the succeeding words and the days thereafter simply
referred to a limited number of days following the year 1991. This is definitely a much shorter
time than that involved in Dichao. Whereas in Dichao, only one sexual intercourse was proven
to have been committed, in the present case, the victim testified that when she was barely
thirteen (13) years old she was raped several times in a month which went on until she became
pregnant and delivered a child four years later. It cannot, therefore, be logically argued that
appellant was not sufficiently informed of the acts he was accused of to enable him to prepare
his defense.
At any rate, although the prosecution failed to specify the particular dates in 1991 when the
sexual assaults took place, we are convinced that it was able to establish the fact of rape. Thus,
whatever vagueness may have attended the information was clarified when Poblica testified that
she was defiled by appellant when she was barely 13 years old, having been born on 3 March
1978.[45] Poblica testified thus:
Fiscal Salcedo:
xxx
Q Now, will you recall that sometime when you were 13 years old if ever your father Charito
Isug Magbanua had sexually abused you?
A I was sexually abused when I was 13 years old. I am not yet having (sic) my monthly
menstrual period, sir.
Q Will you kindly tell us how did your father abused you?
A He was abusing me by poking me with a knife, sir.
Q Tell us, the first time that you were abused by your own father what were you doing?
A I was crying, sir.
Q My question is, was it night time or day time that you were abused by your father?
A Noon time, sir.
Q During that noon time what particular activity were you doing?
A None, sir.
Q Were you sleeping at that time?
FISCAL SALCEDO:
 The witness has already stated, Your Honor please, that she did not even finish grade I
and she couldnt write her name and that neither she could read. The way I appreciate
the testimony of the witness, it would seem that she could not catch my direct question,
perhaps of low mental ability. In view of this, predicament, Your Honor, may we request
that we be allowed to propound direct leading question.
xxx
COURT:
Your motion is granted.
FISCAL SALCEDO:
Q You were not doing anything during that noon time that your father first sexually abused
you?
A None, sir.
Q And your father poked a knife at you?
A Yes, sir.
Q And after your father poked the knife at you, he removed your underwear?
A Yes, sir.
Q And after he removed your panty he laid you down?
A Yes, sir.
Q And he also removed his underwear?
A Yes, sir.
Q And he placed himself on top of you?
A Yes, sir.
Q Why did you not resist?
A Because the knife was poked at me that time, sir.
Q When he placed himself on top of you, he directed his penis into your vagina, is it not?
A Yes, sir.
Q He pushed up and downward?
A Yes, sir.
Q And what did you feel when he was pushing up and downward?
A I felt pain, sir.
Q You feel (sic) that the private part of your father entered your private part?
A Yes, sir.
Q What did you do at the time that your father was performing his sexual act?
A I just cried, sir.
Q For how long did your father stay on top of you?
A Sandali lang po, sir.
Q After your father perform (sic) that sexual intercourse what did he say if he said anything?
A He told me not to report to anybody what he did to me, sir.
Q And after that he wore his underwear?
A Yes, sir.
Q How about you, what did you do?
A I also wore my underwear, sir.
Q But before you wore your underwear what did you notice in your vagina?
A I felt pain, I did not notice anything, sir.
Q Was it bleeding?
A Yes, sir.
Q Now, thereafter, your father again sexually abused you?
A Yes, sir.
Q If you could remember, how many times did your father sexually abused (sic) you in one
month[s] time?
A Many times, sir.
Q What time of the day or night [did] your father usually abused (sic) you?
A Noon time, sir.
Q Why, were was your mother during noon time?
A She is in the town, sir.
Q Why was she going to the town (sic)?
A She used to go to town to buy our needs, sir.
Q How about your sisters and brothers, where are (sic) they during the time that your father
was abusing you?
A They were staying in my grandmothers house, sir.
Q How far is the house of your grandmother from your house?
A It is quite far, sir.
Q Now, as a result of [the] sexual abuses made by your father to you, what happened to
you?
A I got pregnant, sir.
Q You got pregnant and you delivered a child?
A Yes, sir.
Q Do you remember when did you give birth?
 A I can not remember, sir.
Q Is it not a fact that you gave birth on November 15, 1995?
A Yes, sir.
Q What is your baby, boy or girl?
A Boy, sir.
Q Who is the father of this baby boy that you delivered?
A Charito, sir.
Q Why do you say that it is Charito, your father who is the father of your child?
A Because he was the one who sexually abused me, sir.
Q Do you want to tell us that from 1991 up to the time that you gave birth to your baby boy
your father regularly had sexual intercourse with your?
A Yes, sir.[46]
Against this direct and categorical testimony of Poblica, appellant could only offer bare
denial of the commission of the crime. The Court has of pronounced that denial, just like alibi, is
insufficient to overcome the positive identification made by the witness for the
prosecution.[47] Denial is an inherently weak defense which cannot prevail over the credible
testimony of the witness that the accused committed the crime charged.[48] It must be supported
by strong evidence of non-culpability in order to merit acceptability.[49] Appellant, in the present
case, failed to discharge this burden. His lame attempt to shift the blame to a certain Ricky
Pacaul, who may not even exist, in order to exculpate himself, cannot save him. Moreover,
where there is no evidence to show any dubious reason or improper motive why a prosecution
witness would testify falsely against an accused or falsely implicate him in a heinous crime, the
testimony is worthy of full faith and credit.[50] Hence, appellants denial must fail.
Nevertheless, in view of the circumstances surrounding his case, we sustain his second
assignment of error and hold that the trial court erred in imposing upon him the penalty of death
by applying Republic Act No. 7659 retroactively.
Republic Act No. 7659 took effect on 31 December 1993.[51] Accordingly, the said law only
applies to crimes defined therein, including rape, which were committed after its effectivity. It
cannot be applied retroactively because, to do so, would go against the constitutional prohibition
on ex post facto laws.[52] For this reason, in order for the death penalty to be imposable, it is
incumbent upon the prosecution to establish beyond a shadow of doubt that the case of the
accused is already covered by Republic Act No. 7659.
In the case at bar, the prosecution failed to discharge this burden. A perusal of the
information reveals that the alleged rapes were committed in 1991 and the days thereafter.
Clearly, since the time frame specified in the information antedates the effectivity date of
Republic Act No. 7659, said law cannot be made applicable to the case of appellant.
However, the trial court opined that the prosecution was able to establish the fact that
Poblica was continuously raped from 1991 until she gave birth, as a consequence of the
successive rapes, on 15 November 1995. Thus, the lower court argued that since the last rape
occurred in the early part of 1995, which was approximately 280 days prior to the birth of the
child, appellants case was already covered by the Death Penalty Law. We do not agree.
 Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. 7659, provides in
pertinent part:

Article 335. When and how rape is committed.-

xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.
xxx
In People vs. Perez,[53] this Court has declared that the special circumstances of rape
introduced by R.A. 7659, including the above which call for the automatic application of the
penalty of death, partake of the nature of qualifying circumstances since these circumstances
increase the penalty of rape by one degree. As such, these circumstances should be pleaded in
the information in order to be appreciated in the imposition of the proper penalty. Thus, the
concurrence of the minority of the victim and her relationship to the offender should be
specifically alleged in the information conformably with the accuseds right to be informed of the
nature and cause of the accusation against him.[54] In this case, although the minority of Poblica
and her relationship with appellant were established by the prosecution beyond doubt, the death
penalty cannot be imposed because these qualifying circumstances were not specified in the
information. It would be a denial of the right of the appellant to be informed of the charges
against him, and consequently, a denial of due process, if he is charged with simple rape and
convicted of its qualified form punishable by death although the attendant circumstances
qualifying the offense and resulting in capital punishment were not set forth in the indictment on
which he was arraigned.[55] Therefore, despite the many rapes committed by appellant he
cannot be meted the supreme penalty. Accordingly, the penalty of death imposed by the trial
court must be reduced to reclusion perpetua. The Court, however, is sentencing appellant to a
single punishment of reclusion perpetua only because despite the several rapes perpetrated by
appellant on Poblica the information merely stated a lone allegation of rape. Appellant can only
be penalized correspondingly.
Concerning the damages imposable upon appellant, we sustain the lower courts award
of P50,000.00 as civil indemnity. However, we are giving Poblica an additional amount
of P50,000.00 as moral damages, without the necessity of proof,[56] it being assumed that a
victim of rape, such as her, suffered wounded feelings, besmirched reputation and other moral
injuries.
WHEREFORE, the decision of the court a quo is AFFIRMED, with the MODIFICATION that
accused-appellant Charito Isug Magbanua is hereby sentenced to suffer the penalty of reclusion
perpetuaand to indemnify the offended party, Poblica Magbanua, in the amount of P50,000.00,
plus an additional amount of P50,000.00, as moral damages, and to pay the costs.
SO ORDERED.