FIRST DIVISION

G. R. No. 133025 - February 17, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RADEL GALLARDE, Accused-
Appellant.
DAVIDE, JR., C.J.:
This is an appeal from the judgment of the Regional Trial Court of Tayug, Pangasinan, Branch
51, finding accused-appellant Radel Gallarde1 (hereafter GALLARDE) guilty beyond reasonable
doubt of the crime of murder in Criminal Case No. T-1978 and sentencing him to suffer the penalty
of reclusion perpetua and to pay the heirs of Editha Talan (hereafter EDITHA) the amount of
P70,000 as actual damages.2
On 24 June 1997, GALLARDE was charged with the special complex crime of rape with homicide
in an information whose accusatory portion reads as follows:
That on or about the 6th day of May 1997, in the evening, amidst the field located at Brgy.
Trenchera, [M]unicipality of Tayug, [P]rovince of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, and by means of force, violence
and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse
with one EDITHA TALAN, a minor-10 years of age, against her will and consent, and thereafter,
with intent to kill, cover the nose and mouth of the said minor resulting to her death and then bury
her in the field, to the damage and prejudice of the heirs of said EDITHA TALAN.3
During the arraignment on 1 September 1997, GALLARDE, with the assistance of counsel,
entered a plea of not guilty.4 Trial of the case immediately ensued as the defense waived the
holding of the pre-trial conference.
The witnesses presented by the prosecution were Mario Fernandez, Jaime Cabinta, Rosy
Clemente, Felicisimo Mendoza, Alfredo Cortez, Renato Fernandez, SPO4 Oscar B. Lopez, and
Dr. Perfecto Tebangin. The relevant and material facts established by their testimonies are
faithfully summarized in the Appellee's Brief as follows:
In the evening of May 26, 1997, at the house of spouses Eduardo and Elena Talan in Brgy.
Trenchea, Tayug, Pangasinan, their neighbors converged. Among them were appellant Radel
Gallarde, Francisco, Renato, Edwin, all surnamed Fernandez, Romel Hernandez, Jaime Cabinta,
Rosy Clemente, Jon Talen, Noel Arellaga and Ramil Bargon. Idling by was Editha, 10 year old
daughter of spouses Talan. A fluorescent lamp illuminated them as they partook beer (TSN dated
October 13, 1997, pp. 3-4).
After a while, Roger stood up and invited Jaime and appellant to dine in the kitchen. As they
partook of the meal, appellant suddenly left. Jaime, too, stepped out of the kitchen to urinate.
Outside the house, he chanced upon appellant and Editha talking to each other. Jaime whistled
at appellant but instead of minding him, the latter sprinted towards the road leading to his house
(Id., pp. 4-6).
Thereafter, Editha entered the kitchen and took hold of a kerosene lamp. Jaime followed her and
asked where she was going. Editha answered that she would look for appellant. Soon Editha left
enroute to where appellant fled (Id., pp. 7-8).
By 10:00 o'clock that evening, the drinking buddies had dispersed but Jaime, Francisco, Edwin
and Rose regrouped at Renato's place where they talked and relaxed. Moments later, Roger
arrived and informed them that Editha was missing. Roger asked the group to help look for her
(Id., p. 10).
Elena Talan informed his uncle, Barangay Ex-kagawad Mario Fernandez, about her daughter's
disappearance. The latter, together with his son Edwin, wife Virginia and nephew Freddie Cortez
wasted no time in joining their neighbors search the houses, dikes and fields to look for the
missing child. The searchers used a lighted rubber tire (TSN dated Sept. 24, 1997, pp. 8-10 and
24).
When Jaime mentioned that appellant was the last person he saw talking to Editha, the searchers
went back to the house of appellant. About 7 meters away from appellant's house, one of the
searchers, Alfredo Cortez, found Editha's left foot slipper (TSN dated October 22, 1997, pp. 4-6).
Suddenly, Edwin Fernandez announced: "Tata, Radel is here!" pointing to the toilet about 6
meters away from appellant's house. The searchers found appellant squatting with his short
pants. His hands and knees were covered with soil. When confronted by ex-kagawad Hernandez
why he was there, appellant answered he was relieving himself (Id., pp. 11-16).
Asked where Editha was, appellant replied: "I do not know, I did not do anything to her." When
told "according to Jimmy, you were with Editha." appellant responded "I let her go and brought
her back to the dike and let her go home." To the next question, "where did you come from since
a while a go you were not yet in this toilet?" appellant answered "I was with Kiko, I was asleep in
their house. One of the searchers Mario Bado, got angry and countered that appellant's statement
was impossible because Kiko was with him drinking (Id., pp. 16-20).
After the confrontation at the toilet, Ex-kagawad Fernandez brought appellant to Brgy. Captain
Felicisimo Mendoza, informing the latter that appellant was the last person seen talking with the
missing child. Fernandez then rejoined the searchers (Id., pp. 21-22).
Back in the field, Virginia Fernandez tripped on a wet ground. As she reached for her slipper, she
saw Editha's right foot slipper (the other one was earlier found near the house of appellant) ( Id.,
pp. 23-24).
Around 3 meters farther from Editha's right foot slipper; another slipper was found. It was old, 8
to 9 inches in length and appellant was seen wearing it in the morning of that day (TSN dated
Sept. 25, 1997, pp. 25).
The searchers, thereafter, noticed disheveled grasses. Along the way, they saw a wide hole
among the disheveled grass. Ex-kagawad Fernandez accidentally dropped the lighted rubber tire
and as his nephew Freddie picked it up, the latter exclaimed: "Uncle, look at this loose soil!" Ex-
kagawad Fernandez forthwith scratched some earth aside and then Editha's hand pitted out. The
Fernandez screamed in terror (Id., pp. 5-6).
Meantime, Barangay Captain Mendoza heard shouts saying: "She is here, she is now here
already dead!" Mindful of appellant's safety, Brgy. Captain Mendoza decided to bring appellant to
the municipal building. On their way though, they met policemen on board a vehicle. He flagged
them down and turned over the person of appellant, saying: "Here is the suspect in the
disappearance of the little girl. Since you are already here, I am giving him to you" (TSN dated
Oct. 21, 1997, pp. 4-5).
The policemen together with appellant proceeded to where the people found Editha. One of the
policemen shoved more soil aside. The lifeless Editha was completely naked when she was
recovered. (Id., pp. 9-10)
The cause of Editha's death as revealed in the post-mortem examination showed "suffocation of
the lungs as a result from powerful covering of the nose and mouth, associated with laceration of
the vagina and raptured hymen (Exh. "T", TSN dated Oct. 23, 1997, pp. 22-23).5
On the other hand, GALLARDE was the lone witness for the defense. He interposed a denial and
the alibi that he was at home with his mother and brothers at the time the crime occurred. He
declared that he is 18 years old, single, a former construction worker. He knew EDITHA, a
neighbor whom he considered as a sister because she used to come to his house. They never
had a quarrel or misunderstanding. He neither raped not killed Editha. 6
On cross-examination by the prosecutor and to questions propounded by the court, GALLARDE
admitted that he saw Editha on the night of 6 May 1997 in her parent's house, particularly in the
kitchen. He was there because he joined a group drinking Colt 45 beer, as he was called by Rudio
Fernandez. He drank and had dinner in the kitchen. After dinner he returned to the drinking place
and eventually went home because he was then a little drunk. He knows Kgd. Mario Fernandez,
but after he left the Talan residence he did not see Kgd. Fernandez anymore. Kgd. Fernandez
saw him inside his (Gallarde's) toilet on the night of May 6; thereafter Fernandez took him to the
barangay captain and later he was turned over to the PNP at Camp Narciso Ramos. The police
informed him that he was a suspect in the rape and killing of Editha Talan, and he told them that
he did not commit the crime. At the Talan residence he was wearing short pants and rubber
slippers. Fernandez asked him at the police headquarters to pull down his shorts and he complied.
He was then wearing briefs with a hemline that was a little loose. He was informed that a cadaver
was recovered near his house. When he was asked questions while in police custody, he was not
represented by any lawyer.
GALLARDE further declared on cross-examination and on questions by the court that he
considered Editha Talan as a sister and her parents also treated him in a friendly manner. When
he came to know that Editha's parents suspected him of the crime, he was still on friendly terms
with them. However, he did no go to them to tell them he was innocent because they brandished
a bolo in anger.
Finally, he testified that in the evening of May 6 he came to know that Editha died. She was still
alive when he was drinking at the back of the Talan house and left for home. From the time he
arrived, he never left again that night, and his mother and brothers knew it for a fact. 7
On 12 February 1998, the trial court rendered a decision convicting GALLARDE of the crime of
murder only, not of the complex crime of rape with homicide because of the lack of proof of carnal
knowledge. It observed:
Exh. "T" and Dr. Tebangin's testimony thereon show that the late Editha Talan sustained slit
wounds inflicted as a means of suffocating her to death, a laceration of the lower portion of her
vagina, and a ruptured hymen. What allegedly oozed from her vagina was blood, coupled with
dirt. Had then been observed the presence of even just a drop of seminal fluid in or around her
vagina, the Court would readily conclude that the laceration and rupture resulted from phallic
intrusion. Without such observation, however, "carnal knowledge" as element of rape would be
an open question.
The trial court did not appreciate the alternative circumstance of intoxication either as a mitigating
or aggravating circumstance pursuant to Article 15 of the Revised Penal Code because
GALLARDE's alleged inebriation on the night of 6 May 1997, was not satisfactorily proven.
As to the civil aspect of the case, the trial court considered the stipulation of the parties on 27
October 1997 fixing a liquidated amount of P70,000 as actual damages, and leaving the matter
of moral damages to the discretion of the court. The trial court was not inclined to award moral
damages because the "evidence before it tends to disclose that on the night of 6 May 1997, before
she died, Editha was a much-neglected child."
Accordingly, in its decision 8 of 12 February 1998, the trial court decreed:
WHEREFORE, his guilt having been established beyond a reasonable doubt, the Court hereby
convicts the accused RADEL GALLARDE Y HERMOSA of the crime of MURDER, and sentences
him to suffer the penalty of reclusion perpetua and to indemnify the heirs of the late Editha Talan
in the negotiated sum of P70,000.00.9
His motion for reconsideration,10 having been denied by the trial court in its Resolution 11 of 28
February 1998, GALLARDE seasonably appealed to us.
We accepted the appeal on 9 September 1998.
In his Appellant's Brief filed on 16 March 1999, GALLARDE alleges that the trial court committed
the following errors:
1. In convicting [him] of the crime of murder in an information for rape with homicide.
2. In concluding that the prosecution has proven beyond reasonable doubt that [he] was
responsible for the death of Editha Talan.
3. In not acquitting [him] on the ground of notches of proof beyond reasonable doubt. 12
We sustain GALLARDE's contention that the trial court erred in convicting him of murder in an
information charging him of rape with homicide. A reading of the accusatory portion of the
information shows that there was no allegation of any qualifying circumstance. Although it is true
that the term "homicide" as used in special complex crime of rape with homicide is to be
understood in its generic sense, and includes murder and slight physical injuries committed by
reason or on the occasion of rape,13 it is settled in this jurisdiction that where a complex crime is
charged and the evidence fails to support the charge as to one of the component offense, the
accused can be convicted of the other.14 In rape with homicide, in order to be convicted of murder
in case the evidence fails to support the charge of rape, the qualifying circumstance must be
sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be
informed of the nature of the offense with which he is charged. 15 It is fundamental that every
element of the offense must be alleged in the complaint or information. The main purpose of
requiring the various elements of a crime to be set out in an information is to enable the accused
to suitably prepare his defense. He is presumed to have no independent knowledge of the facts
that constitute the offense.16
In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE
cannot be convicted of murder. An accused cannot be convicted of an offense higher than that
with which he is charged in the complaint or information under which he is tried. It matters not
how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted
of any offense, unless it is charged in the complaint or information for which he is tried, or is
necessarily included in that which is charged. He has a right to be informed of the nature of the
offense with which he is charged before he is put on trial. To convict an accused of a higher
offense than that charged in the complaint or information under which he is tried would be an
unauthorized denial of that right.17
Nevertheless, we agree with the trial court that the evidence for the prosecution, although
circumstantial, was sufficient to establish beyond reasonable doubt the guilt of GALLARDE for
the death of EDITHA.
Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may
draw its conclusion and finding of guilt.18 The prosecution is not always tasked to present direct
evidence to sustain a judgment of conviction; the absence of direct evidence does not necessarily
absolve an accused from any criminal liability.19 Even in the absence of direct evidence, conviction
can be had on the basis of circumstantial evidence, provided that the established circumstances
constitute an unbroken chain which leads one to one fair and reasonable conclusion which points
to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved
must be consistent with each other, consistent with the hypothesis that the accused is guilty, and
at the same time inconsistent with any other hypothesis except that of guilty.20
The rules on evidence and precedents sustain the conviction of an accused through circumstantial
evidence, as long as the following requisites are present: (1) there must be more than one
circumstance; (2) the inference must be based on proven facts; and (3) the combination of all
circumstances produces a conviction beyond doubt of the guilt of the accused. 21
The importance of circumstantial evidence is more apparent in the prosecution of cases of rape,
where it is homicide. The nature of the crime of rape, where it is usually only the victim and the
rapist who are present at the scene of the crime, makes prosecutions for the complex crime of
rape with homicide particularly difficult since the victim can no longer testify against the
perpetrator of the crime. In these cases pieces of the evidence against the accused are usually
circumstantial.22
The circumstantial evidence in the case at bar, when analyzed and taken together, leads to no
other conclusion than that GALLARDE, and no other else, killed EDITHA and that he is guilty
therefor. We quote with approval the lower court's enumeration of the circumstantial evidence in
this case:
1. Gallarde, 18, and Editha, 10, were neighbors and friends, even as she used to frequent his
place.
2. Both were at the Talan residence on the night of May 6, 1997 while neighbors indulged
themselves in beer.
3. Among said neighbors Cabinta saw them hand in hand by the toilet situated five (5) meters
east of the Talan kitchen.
4. After Cabinta whistled he saw Gallarde run home towards north after letting go of Editha's
hands. Neighbor Clemente also noticed that Gallarde disappeared, and that Editha returned to
the kitchen.
5. Cabinta followed Editha back to the kitchen, and saw her holding a kerosene lamp. She told
him that she was going to look for "Dalpac," and off she went in the same direction Gallarde took.
6. Gallarde wore short pants and rubber slippers at the drinking place. Subsequently he was seen
wearing shorts in his own toilet.
7. At past 10:00 in the evening during an intensive search for the then missing Editha, her lifeless
body was found in a shallow grave situated some distance behind Gallarde's residence.
8. Before Editha's body was discovered, a searcher found a girl's slipper (Exh. "B"), 5-6 inches
long, among thickets seven meters away from Gallarde's house.
9. Another searcher saw a second slipper (Exh. B-1), of the same color and size as the first one.
Both slippers were Editha's, the searchers recalled.
10. A third rubber slipper (Exh. "C") was thereafter found in the field, near Exh. "B-1." It was an
old slipper, 8-9 inches long and with a hole at the rear end.
11. Soil stuck to each one of the three slippers.
12. Gallarde was not at home when searchers went to look for him there, after Cabinta told them
that Editha was last seen with Gallarde.
13. When Gallarde was discovered squatting in the dark toilet behind his house and beside the
thickets, his shorts were up and on. His hands and knees were soiled.
14. At the toilet he was asked the innocent question of where Editha was and he answered
revealingly, thus: "I did not do anything to her" and "I let her go and brought her back to the dike
and let her go home."
15. When asked where he had been, as the toilet was first seen empty, Gallarde said he was with
Kiko and he slept at the latter's house, which answer Mario Bado promptly refuted saying, "Vulva
of your mother. . . Kiko was with me drinking." Bado and Kiko were not at the place of the Talans
that night.
16. Yanked out of the dark toilet near his own house, Gallarde joined Kgd. Mario Fernandez sans
protest.
17. Dr. Tebangin found on Editha's cheeks two slit wounds, each being an inch away from her
nostrils. Both wounds were fresh and reddish.
From the lower portion of Editha's vagina blood oozed, accompanied by dirt.
Her hymen was ruptured and was still bleeding.
The medico-legal concluded that there must have been a forceful covering of Editha's nose and
mouth because of the presence of the slit wounds on both sides of her face, and that in 30 seconds
unconsciousness and weakening resulted, with the vaginal injuries contributing to her death. 23
As to the crime of rape, there is much to be desired with respect to the prosecution's evidence
therefor, but not for the reason adduced by the trial court, namely, the absence of spermatozoa
in EDITHA's private part and thereabout. It is well settled that the absence of spermatozoa in or
around the vagina does not negate the commission of rape. 24 Our doubt on the commission of
rape is based on the fact that there is at all no convincing proof that the laceration of the vagina
and the rupture of the hymen of EDITHA were caused in the course of coitus or by a male organ.
Our meticulous reading of the testimony of Dr. Tebangin disclosed that he was never asked if the
laceration and the rupture could have been caused by the penis of a human being. Needless to
state, these could have been caused by any object other than the penis of a person.
We cannot sustain the contention of GALLARDE that he was not positively identified as the
assailant since there was no eyewitness to the actual commission of the crime. It does not follow
that although nobody saw GALLARDE in the act of killing EDITHA, nobody can be said to have
positively identified him. Positive identification pertains essentially to proof of identity and not per
se to that of being an eyewitness to the very act of commission of the crime. There are two types
of positive identification. A witness may identity a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a witness may
not have actually seen the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the
person or one of the persons last seen with the victim immediately before and right after the
commission of the crime. This is the second type of positive identification, which forms part of
circumstantial evidence, which, when taken together with other pieces of evidence constituting an
unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the
author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones
allowed to possibly positively identify a suspect or accused to the exclusion of others, then nobody
can ever be convicted unless there is an eyewitness, because it is basic and elementary that
there can be no conviction until and unless an accused is positively identified. Such a proposition
is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not
the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. 25 If resort to
circumstantial evidence would not be allowed to prove identity of the accused on the absence of
direct evidence, then felons would go free and the community would be denied proper protection.
As discussed above, the circumstantial evidence as established by the prosecution in this case
and enumerated by the trial court positively established the identity of GALLARDE, and no one
else, as the person who killed EDITHA.
We cannot agree with the trial court's rejection of the photographs (Exhibits "I," "J" and "K") taken
of GALLARDE immediately after the incident on the ground that "the same were taken while
[GALLARDE] was already under the mercy of the police." The taking of pictures of an accused
even without the assistance of counsel, being a purely mechanical act, is not a violation of his
constitutional right against self-incrimination.
The constitutional right of an accused against self-incrimination26 proscribes the use of physical
or moral compulsion to extort communications from the accused and not the inclusion of his body
in evidence when it may be material. Purely mechanical acts are not included in the prohibition
as the accused does not thereby speak his guilt, hence the assistance and guiding hand of
counsel is not required.27 The essence of the right against self-incrimination is testimonial
compulsion, that is, the giving of evidence against himself through a testimonial act. 28 Hence, it
has been held that a woman charged with adultery may be compelled to submit to physical
examination to determine her pregnancy; 29 and an accused may be compelled to submit to
physical examination and to have a substance taken from his body for medical determination as
to whether he was suffering from gonorrhea which was contracted by his victim; 30 to expel
morphine from his mouth;31 to have the outline of his foot traced to determine its identity with
bloody footprints;32 and to be photographed or measured, or his garments or shoes removed or
replaced, or to move his body to enable the foregoing things to be done. 33
There is also no merit in GALLARDE's argument that the failure of the prosecution to prove
beyond reasonable doubt the place and time of the commission of the crime is fatal and will justify
his acquittal.
The place, time and date of the commission of the offense are not essential elements of the crime
of rape with homicide. The gravamen of the offense is the carnal knowledge of a woman and that
on the occasion of or as a reason thereof, the crime of homicide was committed. Conviction may
be had on proof of the commission of the crime provided it appears that the specific crime charged
was in fact committed prior to the date of the filing of the complaint or information, within the period
of the statute of limitation, and within the jurisdiction of the court. 34
The allegation of the place of commission of the crime in the complaint or information is sufficient
if it can be understood therefrom that the offense was committed or some of the essential
ingredients thereof occurred at some place within the jurisdiction of the court. 35 The rule merely
requires that the information shows that the crime was committed within the territorial jurisdiction
of the court. The Court may even take judicial notice that said place is within its jurisdiction. 36
As to the time of the commission of the crime, the phrase "on or about" employed in the
information does not require the prosecution "to prove any precise date or time," but may prove
any date or time which is not so remote as to surprise and prejudice the defendant." 37
Contrary to the claim of GALLARDE, the prosecution was able to establish the proximate time of
the commission of the crime, which was sometime between 9:00 p.m., when GALLARDE left the
house of Talan followed by EDITHA, and 10:30 p.m., when the body of EDITHA was found. This
was further corroborated by the examining physician who testified, on the basis of the degree of
rigor mortis, that EDITHA died more or less, at 10:00 p.m. of 6 May 1997.38
Likewise, GALLARDE's alibi and bare denial deserve no consideration. He did not present
witnesses who could confirm his presence in his house. No member of his family corroborated
him on this matter. The defenses of denial and alibi, if unsubstantiated by clear and convincing
evidence, are negative and self-serving, deserve no weight in law, and cannot be given
evidentiary value over the testimony of credible witnesses who testify on affirmative matters.39
Moreover, even assuming that GALLARDE's claim is true, his stay in his house did not preclude
his physical presence at the locus criminis or its immediate vicinity. The place where the body of
EDITHA was found buried was a few meters from his house, the place pointed to in the alibi and
can be reached in a short while. For the defense of alibi to prosper, the requirements of time and
place must be strictly met. It is not enough to prove that the accused was somewhere else when
the crime was committed, he must demonstrate that it was physically impossible for him to have
been at the scene of the crime at the time of its commission. 40
Besides, no evil motive has been established against the witnesses for the prosecution that might
prompt them to incriminate the accused or falsely testify against him. It is settled that when there
is no showing that the principal witnesses for the prosecution were actuated by improper motive,
the presumption is that the witnesses were not so actuated and their testimonies are thus entitled
to full faith and credit.41 Testimonies of witnesses who have no motive or reason to falsify or
perjure their testimonies should be given credence. 42
With respect to GALLARDE's claim that he was arrested without warrant, suffice it to say that any
objection, defect, or irregularity attending an arrest must be made before the accused enters his
plea.43 The records show no objection was ever interposed prior to arraignment and trial. 44
GALLARDE's assertion that he was denied due process by virtue of his alleged illegal arrest is
negated by his voluntary submission to the jurisdiction of the trial court, as manifested by the
voluntary and counsel-assisted plea he entered during arraignment and by his active participation
in the trial thereafter.45 It is settled that any objection involving a warrant of arrest or procedure in
the acquisition by the court of jurisdiction over the person of an accused must be made before he
enters his plea, otherwise the objection is deemed waived. 46 It is much too late in the day to
complain about the warrantless arrest after a valid information had been filed and the accused
arraigned and trial commenced and completed and a judgment of conviction rendered against
him.47 Verily, the illegal arrest of an accused is not sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after trial free from error; such arrest does not
negate the validity of the conviction of the accused.48
Homicide, which we find to be the only crime committed by GALLARDE, is defined in Article 249
of the Revised Penal Code and is punished with reclusion temporal. In the absence of any
modifying circumstance, it shall be imposed in its medium period. GALLARDE is entitled to the
benefits of the Indeterminate Sentence Law. Accordingly, he can be sentenced to suffer an
indeterminate penalty ranging from ten (10) years of the medium period of prision mayor as
minimum to seventeen (17) years and four (4) months of the medium period of reclusion temporal
as maximum.
As to the civil aspect of the case, the parties agreed on P70,000 as liquidated damages. This
should be construed as actual damages. However, as indemnity for death, the additional sum of
P50,000, per current case law, should be awarded.
WHEREFORE, the assailed decision of the Regional Trial Court, Branch 51, Tayug, Pangasinan,
in Criminal Case No. T-1978 finding accused-appellant RADEL GALLARDE guilty of the crime of
murder is hereby modified. As modified, RADEL GALLARDE is hereby found guilty beyond
reasonable doubt, as principal, of the crime of Homicide, defined under Article 249 of the Revised
Penal Code, and is hereby sentenced to suffer an indeterminate penalty ranging from ten (10)
years of the medium period of of prision mayor as minimum to seventeen (17) years and four (4)
months of the medium period of reclusion temporal as maximum, and to pay the heirs of the
victim, Editha Talan, the sum of P70,000 as liquidated actual damages and P50,000 as indemnity
for the death of Editha Talan.
Costs against accused-appellant RADEL GALLARDE in both instances.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 7081 September 7, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
TAN TENG, defendant-appellant.
Chas A. McDonough, for appellant.
Office of the Solicitor General Harvey, for appellee.
JOHNSON, J.:
This defendant was charged with the crime of rape. The complaint alleged:
That on or about September 15, 1910, and before the filing of this complaint, in the city of Manila,
Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally, and employing force,
lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7 years of age.
After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant guilty
of the offense of abusos deshonestos, as defined and punished under article 439 of the Penal
Code, and sentenced him to be imprisoned for a period of 4 years 6 months and 11 days of prision
correccional, and to pay the costs.
From that sentence the defendant appealed and made the following assignments of error in this
court:
I. The lower court erred in admitting the testimony of the physicians about having taken a certain
substance from the body of the accused while he was confined in jail and regarding the chemical
analysis made of the substance to demonstrate the physical condition of the accused with
reference to a venereal disease.
II. The lower court erred in holding that the complainant was suffering from a venereal disease
produced by contact with a sick man.
III. The court erred in holding that the accused was suffering from a venereal disease.
IV. The court erred in finding the accused guilty from the evidence.
From an examination of the record it appears that the offended party, Oliva Pacomio, a girl seven
years of age, was, on the 15th day of September , 1910, staying in the house of her sister, located
on Ilang-Ilang Street, in the city of Manila; that on said day a number of Chinamen were gambling
had been in the habit of visiting the house of the sister of the offended party; that Oliva Pacomio,
on the day in question, after having taken a bath, returned to her room; that the defendant followed
her into her room and asked her for some face powder, which she gave him; that after using some
of the face powder upon his private parts he threw the said Oliva upon the floor, placing his private
parts upon hers, and remained in that position for some little time. Several days later, perhaps a
week or two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal
disease known as gonorrhea. It was at the time of this discovery that Oliva related to her sister
what happened upon the morning of the 15th of September. The sister at once put on foot an
investigation to find the Chinaman. A number of Chinamen were collected together. Oliva was
called upon to identify the one who had abused her. The defendant was not present at first. later
he arrived and Oliva identified him at once as the one who had attempted to violate her.
Upon this information the defendant was arrested and taken to the police station and stripped of
his clothing and examined. The policeman who examined the defendant swore from the venereal
disease known as gonorrhea. The policeman took a portion of the substance emitting from the
body of the defendant and turned it over to the Bureau of Science for the purpose of having a
scientific analysis made of the same. The result of the examination showed that the defendant
was suffering from gonorrhea.
During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on
the ground that because of her tender years her testimony should not be given credit. The lower
court, after carefully examining her with reference to her ability to understand the nature of an
oath, held that she had sufficient intelligence and discernment to justify the court in accepting her
testimony with full faith and credit. With the conclusion of the lower court, after reading her
declaration, we fully concur. The defense in the lower court attempted to show that the venereal
disease of gonorrhea might be communicated in ways other than by contact such as is described
in the present case, and called medical witnesses for the purpose of supporting the contention.
Judge Lobingier, in discussing that question said:
We shall not pursue the refinement of speculation as to whether or not this disease might, in
exceptional cases, arise from other carnal contact. The medical experts, as well as the books,
agree that in ordinary cases it arises from that cause, and if this was an exceptional one, we think
it was incumbent upon the defense to bring it within the exception.
The offended party testified that the defendant had rested his private parts upon hers for some
moments. The defendant was found to be suffering from gonorrhea. The medical experts who
testified agreed that this disease could have been communicated from him to her by the contact
described. Believing as we do the story told by Oliva, we are forced to the conclusion that the
disease with which Oliva was suffering was the result of the illegal and brutal conduct of the
defendant. Proof, however, that Oliva constructed said obnoxious disease from the defendant is
not necessary to show that he is guilty of the crime. It is only corroborative of the truth of Oliva's
declaration.
The defendant attempted to prove in the lower court that the prosecution was brought for the
purpose of compelling him to pay to the sister of Oliva a certain sum of money.
The defendant testifed and brought other Chinamen to support his declaration, that the sister of
Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It seems impossible
to believe that the sister, after having become convinced that Oliva had been outraged in the
manner described above, would consider for a moment a settlement for the paltry sum of P60.
Honest women do not consent to the violation of their bodies nor those of their near relatives, for
the filthy consideration of mere money.
In the court below the defendant contended that the result of the scientific examination made by
the Bureau of Science of the substance taken from his body, at or about the time he was arrested,
was not admissible in evidence as proof of the fact that he was suffering from gonorrhea. That to
admit such evidence was to compel the defendant to testify against himself. Judge Lobingier, in
discussing that question in his sentence, said:
The accused was not compelled to make any admissions or answer any questions, and the mere
fact that an object found on his person was examined: seems no more to infringe the rule invoked,
than would the introduction in evidence of stolen property taken from the person of a thief.
The substance was taken from the body of the defendant without his objection, the examination
was made by competent medical authority and the result showed that the defendant was suffering
from said disease. As was suggested by Judge Lobingier, had the defendant been found with
stolen property upon his person, there certainly could have been no question had the stolen
property been taken for the purpose of using the same as evidence against him. So also if the
clothing which he wore, by reason of blood stains or otherwise, had furnished evidence of the
commission of a crime, there certainly could have been no objection to taking such for the purpose
of using the same as proof. No one would think of even suggesting that stolen property and the
clothing in the case indicated, taken from the defendant, could not be used against him as
evidence, without violating the rule that a person shall not be required to give testimony against
himself.
The question presented by the defendant below and repeated in his first assignment of error is
not a new question, either to the courts or authors. In the case of Holt vs. U.S. (218 U.S., 245),
Mr. Justice Holmes, speaking for the court upon this question, said:
But the prohibition of compelling a man in a criminal court to be a witness against himself, is a
prohibition of the use of physical or moral compulsion, to extort communications from him, not an
exclusion of his body as evidence, when it may be material. The objection, in principle, would
forbid a jury (court) to look at a person and compare his features with a photograph in proof.
Moreover we are not considering how far a court would go in compelling a man to exhibit himself,
for when he is exhibited, whether voluntarily or by order, even if the order goes too far, the
evidence if material, is competent.
The question which we are discussing was also discussed by the supreme court of the State of
New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that case the court said,
speaking through its chancellor:
It was not erroneous to permit the physician of the jail in which the accused was confined, to
testify to wounds observed by him on the back of the hands of the accused, although he also
testified that he had the accused removed to a room in another part of the jail and divested of his
clothing. The observation made by the witness of the wounds on the hands and testified to by
him, was in no sense a compelling of the accused to be a witness against himself. If the removal
of the clothes had been forcible and the wounds had been thus exposed, it seems that the
evidence of their character and appearance would not have been objectionable.
In that case also (State vs. Miller) the defendant was required to place his hand upon the wall of
the house where the crime was committed, for the purpose of ascertaining whether or not his
hand would have produced the bloody print. The court said, in discussing that question:
It was not erroneous to permit evidence of the coincidence between the hand of the accused and
the bloody prints of a hand upon the wall of the house where the crime was committed, the hand
of the accused having been placed thereon at the request of persons who were with him in the
house.
It may be added that a section of the wall containing the blood prints was produced before the
jury and the testimony of such comparison was like that held to be proper in another case decided
by the supreme court of New Jersey in the case of Johnson vs. State (30 Vroom, N.J. Law
Reports, 271). The defendant caused the prints of the shoes to be made in the sand before the
jury, and the witnesses who had observed shoe prints in the sand at the place of the commission
of the crime were permitted to compare them with what the had observed at that place.
In that case also the clothing of the defendant was used as evidence against him.
To admit the doctrine contended for by the appellant might exclude the testimony of a physician
or a medical expert who had been appointed to make observations of a person who plead insanity
as a defense, where such medical testimony was against necessarily use the person of the
defendant for the purpose of making such examination. (People vs. Agustin, 199 N.Y., 446.) The
doctrine contended for by the appellants would also prevent the courts from making an
examination of the body of the defendant where serious personal injuries were alleged to have
been received by him. The right of the courts in such cases to require an exhibit of the injured
parts of the body has been established by a long line of decisions.
The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled
to be a witness against himself, is simply a prohibition against legal process to extract from the
defendant's own lips, against his will, an admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:
If, in other words, it (the rule) created inviolability not only for his [physical control] in whatever
form exercised, then it would be possible for a guilty person to shut himself up in his house, with
all the tools and indicia of his crime, and defy the authority of the law to employ in evidence
anything that might be obtained by forcibly overthrowing his possession and compelling the
surrender of the evidential articles — a clear reductio ad absurdum. In other words, it is not merely
compulsion that is the kernel of the privilege, . . . but testimonial compulsion. (4 Wigmore, sec.
2263.)
The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination
of prisoners before trial. or upon trial, for the purpose of extorting unwilling confessions or
declarations implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)
The doctrine contended for by appellant would prohibit courts from looking at the fact of a
defendant even, for the purpose of disclosing his identity. Such an application of the prohibition
under discussion certainly could not be permitted. Such an inspection of the bodily features by
the court or by witnesses, can not violate the privilege granted under the Philippine Bill, because
it does not call upon the accused as a witness — it does not call upon the defendant for his
testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused,
is not testimony but his body his body itself.
As was said by Judge Lobingier:
The accused was not compelled to make any admission or answer any questions, and the mere
fact that an object found upon his body was examined seems no more to infringe the rule invoked
than would the introduction of stolen property taken from the person of a thief.
The doctrine contended for by the appellant would also prohibit the sanitary department of the
Government from examining the body of persons who are supposed to have some contagious
disease.
We believe that the evidence clearly shows that the defendant was suffering from the venereal
disease, as above stated, and that through his brutal conduct said disease was communicated to
Oliva Pacomio. In a case like the present it is always difficult to secure positive and direct proof.
Such crimes as the present are generally proved by circumstantial evidence. In cases of rape the
courts of law require corroborative proof, for the reason that such crimes are generally committed
in secret. In the present case, taking into account the number and credibility of the witnesses,
their interest and attitude on the witness stand, their manner of testifying and the general
circumstances surrounding the witnesses, including the fact that both parties were found to be
suffering from a common disease, we are of the opinion that the defendant did, on or about the
15th of September, 1910, have such relations as above described with the said Oliva Pacomio,
which under the provisions of article 439 of the Penal Code makes him guilty of the crime of
"abusos deshonestos," and taking into consideration the fact that the crime which the defendant
committed was done in the house where Oliva Pacomio was living, we are of the opinion that the
maximum penalty of the law should be imposed. The maximum penalty provided for by law is six
years of prision correccional. Therefore let a judgment be entered modifying the sentence of the
lower court and sentencing the defendant to be imprisoned for a period of six years of prision
correccional, and to pay the costs. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2154 April 26, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO OTADORA, ET AL., defendants.
HILARIA CARREON, appellant.
Victorino C. Teleron for appellant.
Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor General Guillermo E.
Torres for appellee.
BENGZON, J.:
In August, 1947 in the Court of First Instance of Leyte, Antonio Otadora and Hilaria Carreon were
charged with the murder of the spouses Leon Castro and Apolonia Carreon. Otadora pleaded
guilty, and was sentenced to life imprisonment. Denying her guilt, Hilaria Carreon was tried, found
guilty and sentenced to death and other accessory penalties. The court declared that with
promises of monetary reward, she had induced Antonio Otadora to do the killing. Motive for the
instigation was the grudge she bore against the deceased spouse on account of disputes with
them over inherited property. This woman convict appealed in due time.
Her attorney filed here a voluminous brief wherein he attempted painstakingly to break down the
position of the prosecution and to expound the theory that Antonio Otadora is the only person
responsible for the slaying, and that Hilaria Carreon is just "the unfortunate victim of a vicious
frame-up concocted against her." She necessarily had to offer a satisfactory explanation for the
conduct of Otadora, who has pleaded guilty and has declared for the prosecution against her,
explaining the circumstances under which she had promised to him compensation for liquidating
the unfortunate couple.
There is no question about these facts:
Early in the morning of June 16, 1947, Leon Castro and his wife Apolonia Carreon were shot dead
in their house in the City of Ormoc, Leyte. In the afternoon of June 21, 1947, Antonio Otadora
was arrested in Ormoc City while preparing to escape to Camotes Island, Cebu. The next day he
confessed in an extra-judicial statement (Exhibit 1) wherein he implicated the herein accused and
appellant Hilaria Carreon asserting that, with offers of pecuniary gain, the latter had induced him
to commit the crime. On June 25, 1947, a complaint for double murder was filed against both
defendants in the justice of the peace court of Ormoc, Leyte. Preliminary investigation was waived
and the record was forwarded to the court of first instance, where on September 3, 1947, Otadora
pleaded guilty with the assistance of counsel. Hilaria Carreon pleaded not guilty, and asked for a
separate trial, which was immediately held, with Otadora as the first witness for the prosecution.
The evidence presented on behalf of the People proved that:
(1) Apolonia Carreon was the sister of Hilaria. Due to a family quarrel, Apolonia filed in August,
1946, a criminal complaint for serious threats against Hilaria and her husband Francisco Galos
(Exhibit P-1). These were arrested and had to file a bond. The case was later withdrawn by
Apolonia upon the advice of friendly mediators.
In December of 1946, Leon Castro as guardian ad litem of some minors surnamed Carreon filed
a civil complaint for partition of real property and damages against Hilaria Carreon. This suit was
set for hearing on June 24, 1947.
(2) Antonio Otadora met Hilaria Carreon sometime in April, 1947, through Amando Garbo.
Thereafter they converse on several occasions. In the early part of May, 1947, she saw him going
to barrio Matica-a and then she told him that if he would liquidate the spouses Leon Castro and
Apolonia Carreon she would give him P3,000. He did not agree. In the last week of May he was
invited to Hilaria's house. The proposal was renewed, better conditions being offered. (1/3 of
P10,000 plus carabaos, plus P300.) He must have demurred alleging that he had no adequate
weapon, Hilaria is reported to have engaged to supply it.
(3) Around the first week of June, 1947, Hilaria Carreon sent for Otadora. She gave him the
revolver Exhibit A; but the revolver turned out to be defective so he handed it back to Hilaria. The
latter ordered it repaired by Benigno Baltonado who had previously sold it to her. Three days later,
Baltonado returned the gun in good condition with more than ten bullets, and appellant in turn
delivered the weapon to Otadora who was then in her house, advising him at the same time to
carry out soon their plan so that Leon Castro may not attend the hearing of the civil case. Appellant
also gave Otadora the bolo Exhibit B, a pair of trousers of her husband Francisco Galos (Exhibit
C), a hat Exhibit D and a flashlight Exhibit E.
(4) Otadora set out to do his part in the morning of June 16; but Apolonia was not in her residence.
He reported to appellant the next day and the latter urged him to execute it that day, giving him
P6.50 for transportation. That night, at about one o'clock, Antonio climbed up the house of the
Castros, passing through the window. He saw them sleeping side by side. He opened the door to
the kitchen to prepare his exit. Returning to the place where the couple lay, he stumbled on Leon
Castro, who exclaimed, "who are you?". Otadora replied, "I am" "I don't have any purpose except
you, get up and fight." As Castro was about to stand up, Otadora fired. Apolonia was awakened,
and embraced her husband who meantime had fallen. Otadora shot her too. The couple died
immediately of shock and hemorrhage.
(5) After committing the murders, Otadora returned to barrio Matica-a intending to go to Hilaria's
home; but as he was nearing the kitchen, Francisco Galos signalled him to go away. (He was
seen, crossing the cornfield near Hilaria Carreon's house by Juanita Garbo, who so testified in
court.) Otadora went to his home in Sitio Hubas. On June 20, at a dance, he received word from
Hilaria through her husband Galos, that he was wanted by the police, and that he should decamp.
the next morning he passed by the residence of Hilaria, and the latter gave him P5, plus two
packages of cigarettes, adding that he should not attempt to visit her further, because she was
being watched. The next day, she again sent him P45 through Amando Garbo, who delivered the
money at the back of the house of Menes Tahur in Canangca-an. After receiving the money,
Otadora prepared to escape to Camotes Islands. But he was caught before he could run away.
The above statement of principal facts is a condensation of the testimonies of Antonio Otadora,
Benigno Baltonado, Amando Garbo, Alejandro Bensig, Macario Bensig, Juanita Garbo, and
others. It is substantially in accord with the findings of His Honor, the trial judge. Of course it is
founded mainly upon the declarations of Antonio Otadora that necessarily are persuasive
inasmuch as he himself admits his direct participation and his assertions are fully corroborated
by a series of circumstances competently established.
Hilaria denied connection with the assassination. And naturally the defense exerted effort to
discredit Otadora's version, by submitting the following theory:
Antonio Otadora planned a revenge upon Castro because the latter as a spy caused the death of
his father Sergio Otadora at the hands of the Japanese. He, however, found himself in the
necessity of eliminating Apolonia Carreon because the latter was a witness to his deed. On the
other hand, Antonio Otadora (and the other witnesses who are his relatives) also desire to take
revenge upon Hilaria Carreon because the latter, during the Japanese occupation, saved Leon
Castro from death at the hands of the guerrillas. The defense says that to those who had been
prejudiced by the espionage activities of Leon Castro, Hilaria Carreon appears to be just as
responsible as Leon Castro.
The theory can not be lawfully accepted. Firstly, Otadora denies that his father died at the hands
of the Japanese. Secondly, the alleged "saving" of Leon Castro was not sufficiently established.
Loreto Micabel, the superior officer of the guerrillas, who ordered the release of Leon Castro, did
not mention Hilaria as one of those who interceded for the prisoner (p. 286, stenographic notes).
Thirdly, nobody in his right senses holds Pedro criminally responsible for the crime of Juan simply
because a few days before the crime Pedro saved Juan from drowning.
On the other hand, the grudge which Otadora supposedly held against Castro, readily explains
why for a consideration he undertook to kill. It is likewise probable that knowing such desire for
vengeance, Hilaria selected him to carry out the dangerous and delicate job. And if it is true that
Hilaria saved Leon Castro during the Japanese occupation, it is very likely that she hated her
"ungrateful" brother-in-law and sister, (who on two subsequent occasions brought her to court),
so much that she hired Otadora to eliminate them.
The assertions of Otadora are decisively ratified by Benigno Baltonado who swore that it was
Hilaria who had purchased the murderous gun from him for P55, and who ordered him to fix it;
that on the third day he returned the gun to her in her home with rounds of ammunition; and that
Otadora was there on that occasion. The remarks and arguments of counsel on pages 87-92 of
his brief do not, in our opinion, destroy Baltonado's credibility.
Then there is the witness Amando Garbo, whose brother Esteban is married to the sister of Hilaria,
and whose sister married a younger brother of Hilaria. Amando Garbo declared that he was on
friendly terms with Hilaria, taking care of her fighting cock; that in December, 1946 in the fiesta of
Palompon, she tried to persuade him to kill the spouses Castro; that he declined; that she asked
him to look for another for another whom she could hire; that he introduced Hilaria to Antonio
Otadora; that it was he who, at the request of Hilaria, secretly delivered P45 in paper bills of
different denominations to Antonio Otadora after the crime was committed.
And Juanita Garbo, niece of Hilaria Carreon, confirmed the various meetings of Otadora and
Hilaria in the latter's house. And there is the witness Macario Bensig who swore that in May, 1947,
at Tabogocon, Ormoc City, during the wedding of his brother Benito with Luisa Pilapil in May,
1947, Hilaria Carreon told him that if he would kill Leon Castro and Apolonia Carreon he would
be given money as a reward.
Again there is the witness Sgt. Tomada who said that when the accused Hilaria Carreon was
arrested on June 25, 1947, she was committed to his custody because there was no adequate
place in the municipal jail for her; that she requested him confidentially to get a lock of hair of
Antonio Otadora explaining to him that if that hair is burned Otadora would become insane, and
therefore would not be able to declare against her.
Further corroboration of appellant's criminal connection with the bloody affair is the undisputed
possession by Otadora of the pants of Francisco Galos (Exhibit C) and his hat Exhibit D. It
appears that when Francisco Galos denied ownership of the pants he was ordered to put it on;
and the judge found that it fitted him perfectly. This incident gave the defense opportunity for
extended argument that the constitutional protection against self-incrimination had been
erroneously disregarded. But we discover in the record no timely objection upon that specific
ground. And it is to be doubted whether the accused could benefit from the error, if any.
Furthermore, and this is conclusive, "measuring or photographing the party is not within the
privilege" (against self-incrimination). "Nor is the removal or replacement of his garments or
shoes. Nor is the requirement that the party move his body to enable the foregoing things to be
done." (Wigmore on Evidence, Vol. 4, p. 878, quoted in Beltran vs. Samson and Jose, 53 Phil.,
570, 576).
In conclusion, we are fully satisfied from a reading of the whole expediente that the appellant
induced Antonio Otadora to commit the double murder, and furnished him with the deadly firearm.
She is just as guilty as if she herself had perpetrated the murderous assaults. The slaying is
qualified by the circumstance of treachery. It is aggravated by evident premeditation; but for lack
of sufficient votes the appellant is sentenced to suffer life imprisonment for each murder, (not
exceeding 40 years, art. 70, Rev. Penal Code), and to indemnify the heirs of the Castros in the
sum of P4,000. The appealed judgment will be thus modified.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 16444 September 8, 1920
EMETERIA VILLAFLOR, petitioner,
vs.
RICARDO SUMMERS, sheriff of the City of Manila, respondent.
Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner.
Assistant City of Fiscal Felix for respondent.
MALCOLM, J.:
The petitioner prays that a writ of habeas corpus issue to restore her to her liberty.
The facts are not dispute. In a criminal case pending before the Court of First Instance of the city
of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On
this case coming on for trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the
petitioner of the assistant fiscal for the city of Manila, the court ordered the defendant Emeteria
Villaflor, nor become the petitioner herein, to submit her body to the examination of one or two
competent doctors to determine if she was pregnant or not. The accused refused to obey the
order on the ground that such examination of her person was a violation of the constitutional
provision relating to self-incrimination. Thereupon she was found in contempt of court and was
ordered to be committed to Bilibid Prison until she should permit the medical examination required
by the court.
The sole legal issue from the admitted facts is whether the compelling of a woman to permit her
body to be examined by physicians to determine if she is pregnant, violates that portion of the
Philippine Bill of Rights and that portion of our Code of Criminal Procedure which find their origin
in the Constitution of the United States and practically all state constitutions and in the common
law rules of evidence, providing that no person shall be compelled in any criminal case to be a
witness against himself. (President's Instructions to the Philippine Commission; Act of Congress
of July 1, 1902, section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph
3; Code of Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.)
Counsel for petitioner argues that such bodily exhibition is an infringement of the constitutional
provision; the representative of the city fiscal contends that it is not an infringement of the
constitutional provision. The trial judge in the instant case has held with the fiscal; while it is
brought to our notice that a judge of the same court has held on an identical question as
contended for by the attorney for the accused and petitioner.
The authorities are abundant but conflicting. What may be termed the conservative courts
emphasize greatly the humanitarianism of the constitutional provisions and are pleased to extend
the privilege in order that its mantle may cover any fact by which the accused is compelled to
make evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs.
Ah Chuey [1879], 14 Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., 506; State
vs. Height [1902]. 117 Iowa., 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant
with this view and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216). A
woman was charged with the crime of infanticide. The corner directed two physicians to go to the
jail and examine her private parts to determine whether she had recently been delivered of a child.
She objected to the examination, but being threatened with force, yielded, and the examination
was had. The evidence of these physicians was offered at the trial and ruled out. The court said
that the proceeding was in violation of the spirit and meaning of the Constitution, which declares
that "no person shall be compelled in any criminal case to be a witness against himself."
Continuing, the court said: "They might as well have sworn the prisoner, and compelled her, by
threats, to testify that she had been pregnant, and had been delivered of a child, as to have
compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to
ascertain whether she had been pregnant and been delivered of a child. . . . Has this court the
right to compel the prisoner now to submit to an examination they are of the opinion she is not a
virgin, and has had a child? It is not possible that this court has that right; and it is too clear to
admit of argument that evidence thus obtained would be inadmissible against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly
impressed with the weight of these decisions, especially the one written by Mr. Justice McClain,
in State vs. Height, supra, the instant case was reported by the writer with the tentative
recommendation that the court should lay down the general rule that a defendant can be
compelled to disclose only those parts of the body which are not usually covered. Buth having
disabused our minds of a too sensitive appreciation of the rights of accused persons, and having
been able, as we think, to penetrate through the maze of law reports to the policy which lies
behind the constitutional guaranty and the common law principle, we have come finally to take
our stand with what we believe to be the reason of the case.
In contradistinction to the cases above-mentioned are others which seem to us more progressive
in nature. Among these can be prominently mentioned decisions of the United States Supreme
Court, and the Supreme Court of these Islands. Thus, the always forward looking jurist, Mr. Justice
Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection
based upon what he termed "an extravagant extension of the Fifth Amendment," said: "The
prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition
of the use of physical or moral compulsion to extort communications from him, not an exclusion
of his body as evidence when it may be material." (See also, of same general tenor, decision of
Mr. Justice Day in Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the
Philippine Islands, in two decisions, has seemed to limit the protection to a prohibition against
compulsory testimonial self-incrimination. The constitutional limitation was said to be "simply a
prohibition against legal process to extract from the defendant's own lips, against his will, an
admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917],
36 Phil., 735, and the derivatory principle announced in 16 Corpus Juris, 567, 568, citing the
United States Supreme Court and the Supreme Court of the Philippine Islands as authority.)
Although we have stated s proposition previously announced by this court and by the highest
tribunal in the United States, we cannot unconcernedly leave the subject without further
consideration. Even in the opinion Mr. Justice Holmes, to which we have alluded, there was
inserted the careful proviso that "we need not consider how far a court would go in compelling a
man to exhibit himself." Other courts have likewise avoided any attempt to determine the exact
location of the dividing line between what is proper and what is improper in this very broad
constitutional field. But here before us is presented what would seem to be the most extreme case
which could be imagined. While the United States Supreme Court could nonchalantly decree that
testimony that an accused person put on a blouse and it fitted him is not a violation of the
constitutional provision, while the Supreme Court of Nuevada could go so far as to require the
defendant to roll up his sleeve in order to disclose tattoo marks, and while the Supreme Court of
the Philippine Islands could permit substances taken from the person of an accused to be offered
in evidence, none of these even approach in apparent harshness an order to make a woman,
possibly innocent, to disclose her body in all of its sanctity to the gaze of strangers. We can only
consistently consent to the retention of a principle which would permit of such a result by adhering
steadfastly to the proposition that the purpose of the constitutional provision was and is merely to
prohibit testimonial compulsion.
So much for the authorities. For the nonce we would prefer to forget them entirely, and here in
the Philippines, being in the agrreable state of breaking new ground, would rather desire our
decision to rest on a strong foundation of reason and justice than on a weak one blind adherence
to tradition and precedent. Moreover, we believe that an unbiased consideration of the history of
the constitutional provisions will disclose that our conclusion is in exact accord with the causes
which led to its adoption.
The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in
early days, but not in the other legal systems of the world, in a revolt against the thumbscrew and
the rack. A legal shield was raised against odious inquisitorial methods of interrogating an
accused person by which to extort unwilling confessions with the ever present temptation to
commit the crime of perjury. The kernel of the privilege as disclosed by the textwriters was
testimonial compulsion. As forcing a man to be a witness against himself was deemed contrary
to the fundamentals of republican government, the principle was taken into the American
Constitutions, and from the United States was brought to the Philippine Islands, in exactly as wide
— but no wider — a scope as it existed in old English days. The provision should here be
approached in no blindly worshipful spirit, but with a judicious and a judicial appreciation of both
its benefits and its abuses. (Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891],
p. 71, and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on Evidence, pp. 3069 et seq., and
U. S. vs. Navarro [1904], Phil., 143.)
Perhaps the best way to test the correctness of our position is to go back once more to elements
and ponder on what is the prime purpose of a criminal trial. As we view it, the object of having
criminal laws is to purgue the community of persons who violate the laws to the great prejudice
of their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions, are
then provided, not to protect the guilty but to protect the innocent. No rule is intemended to be so
rigid as to embarrass the administration of justice in its endeavor to ascertain the truth. No
accused person should be afraid of the use of any method which will tend to establish the truth.
For instance, under the facts before us, to use torture to make the defendant admit her guilt might
only result in including her to tell a falsehood. But no evidence of physical facts can for any
substantial reason be held to be detrimental to the accused except in so far as the truth is to be
avoided in order to acquit a guilty person.
Obviously a stirring plea can be made showing that under the due process of law cause of the
Constitution every person has a natural and inherent right to the possession and control of his
own body. It is extremely abhorrent to one's sense of decency and propriety to have the decide
that such inviolability of the person, particularly of a woman, can be invaded by exposure to
another's gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S.,
250) said, "To compel any one, and especially a woman, to lay bare the body, or to submit to the
touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass."
Conceded, and yet, as well suggested by the same court, even superior to the complete immunity
of a person to be let alone is the inherent which the public has in the orderly administration of
justice. Unfortunately, all too frequently the modesty of witnesses is shocked by forcing them to
answer, without any mental evasion, questions which are put to them; and such a tendency to
degrade the witness in public estimation does not exempt him from the duty of disclosure.
Between a sacrifice of the ascertainment of truth to personal considerations, between a disregard
of the public welfare for refined notions of delicacy, law and justice cannot hesitate.
The protection of accused persons has been carried to such an unwarranted extent that criminal
trials have sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the
lawyers as players, the criminal as guest of honor, and the public as fascinated spectators.
Against such a loose extension of constitutional guaranties we are here prepared to voice our
protest.
Fully conscious that we are resolving a most extreme case in a sense, which on first impression
is a shock to one's sensibilities, we must nevertheless enforce the constitutional provision in this
jurisdiction in accord with the policy and reason thereof, undeterred by merely sentimental
influences. Once again we lay down the rule that the constitutional guaranty, that no person shall
be compelled in any criminal case to be a witness against himself, is limited to a prohibition against
compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular
inspection of the body of the accused is permissible. The proviso is that torture of force shall be
avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course,
be decided as cases arise.
It is a reasonable presumption that in an examination by reputable and disinterested physicians
due care will be taken not to use violence and not to embarass the patient any more than is
absolutely necessary. Indeed, no objection to the physical examination being made by the family
doctor of the accused or by doctor of the same sex can be seen.
Although the order of the trial judge, acceding to the request of the assistant fiscal for an
examination of the person of the defendant by physicians was phrased in absolute terms, it
should, nevertheless, be understood as subject to the limitations herein mentioned, and therefore
legal. The writ of habeas corpus prayed for is hereby denied. The costs shall be taxed against the
petitioner. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
Prec. Rec. No. 714-A July 26, 1937
MARIA BERMUDEZ, complainant,
vs.
LEODEGARIO D. CASTILLO, respondent.
G. Viola Fernando for complainant.
Office of the Solicitor-General hilado for the Government.
The respondent in his own behalf.
DIAZ, J.:
In the course of the investigation which was being conducted by the office of the Solicitor-General
against the respondent, in connection with this administrative case, said respondent filed, in
addition to other evidence in support of this defense, the six letters which, for purposes of
identification, were marked as Exhibits 32, 34, 35, 36 and 37. He then contended, as he now
continues to contend, that said six letters are the complainant's, but the latter denied it while she
was testifying as a witness in rebuttal. she admitted, however, that the letters marked as Exhibits
38, 39 and 40 were in her own handwriting.
As the respondent believed that the three letters admitted by the complainant to be hers were
insufficient for purposes of comparison with those questioned in this case and as he was
determined to show that said Exhibits 38, 39 and 40 were the complainant's, he required her to
copy them in her own handwriting in the presence of the investigator. The complainant, upon
advice of her attorney, refused to submit to the trial to which it was desired to subject her, invoking
her right not to incriminate herself and alleging that Exhibits 38, 39 and 40 and the other letters
already in the respondent's possession, were more than sufficient for what he proposed to do.
The investigator, upholding the complainant, did not compel her to submit to the trial required,
thereby denying the respondent's petition. As respondent did not agree to this decision of the
investigator, he instituted these proceedings praying that the investigator and the Solicitor-
General in whose representation he acted, be ordered to require and compel the complainant to
furnish new specimens of her handwriting by copying said Exhibits 32 to 37 for that purpose.
The question raised before this court is not new. In the case of Beltran vs. Samson and Jose
([1929], 53 Phil., 570), a similar question was raised before this court. The respondents therein
desired to compel the petitioner to write by hand what was then dictated to him. The petitioner,
invoking the constitutional provision contained in section 3, paragraph 3, of the Jones Law which
reads: ". . . nor shall be compelled in any criminal case to witness against himself", refused to
write and instituted prohibition proceedings against the therein respondents. This court granted
the petition and ordered the respondents to desist and abstain absolutely from compelling the
petitioner to take down dictation by hand for the purpose of comparing his handwriting. The
reasons then adduced therein can and must be adduced in this case to decide the same question;
and all the more so because Article III, section 1, No. 18, of the Constitution of the Philippines is
worded in such a way that the protection referred to therein extends to all cases, be they criminal,
civil or administrative. The constitution provides: "No person shall be compelled to be a witness
against himself." It should be noted that before it was attempted to require the complainant to
copy the six documents above-stated, she had sworn to tell the truth before the investigator
authorized to receive statements under oath, and under said oath she asserted that the
documents in question had not been written by her. Were she compelled to write and were it
proven by means of what she might write later that said documents had really been written by
her, it would be impossible for her to evade prosecution for perjury, inasmuch as it would be
warranted by article 183 of the Revised Penal Code, which reads:
The penalty of arresto mayor in its maximum period to prision correccional in its minimum period
shall be imposed upon any person who, knowingly making untruthful statements and not being
included in the provisions of the next preceding articles, shall testify under oath, or make an
affidavit, upon any material matter before a competent person authorized to administer an oath in
cases in which the law so requires.
Any person who, in case of a solemn affirmation made a lieu of an oath shall commit any of the
falsehoods mentioned in this and the preceding articles of this section, shall suffer the respective
penalties provided therein.
The respondent invokes in his support the doctrine laid sown in Ex Parte Crow (14 Pac. [2d
series], 918), to the effect that ". . . a witness may not arbitrarily refuse to answer a question on
the ground that his answer might incriminate him when the court can determine as a matter of law
that 'no direct answer which the witness may make can tend to criminate him.'" It must be taken
into account that the question asked the petitioner in said case, as stated by the prosecuting
attorney, was only a preliminary question, as it was simply attempted to learn from her who was
with her on a certain occasion, and on what date, to the best of her recollection, had she visited
Dr. Groose. She refused to answer said questions alleging that her answer might incriminate her.
The court upheld her saying:
We are therefore of the opinion that the trial court erred when it determined as a matter of law
that petitioners answer to the questions propounded could have no tendency to incriminate her.
They clearly might have such tendency, and it was petitioners right and privilege to decline to
answer any of the above-mentioned questions upon the ground stated. We fully realize the
difficulty encountered in the prosecution of cases under section 274 of the Penal Code when
those present and capable of establishing the facts are unwilling to testify because of fear of
subjecting themselves to prosecution. But the constitutional and statutory guaranties accorded to
petitioner cannot be swept aside merely because they may result in making difficult, or even
impossible, the conviction of the accused.
The respondent likewise invokes in his support doctrine laid down in re Mackenzie (100 Vt. Rep.,
325). This court is of the opinion that what had been said in the above-cited case is not applicable
to the case under consideration. The petitioner Mackenzie, upon being required after he had
pleaded guilty of intoxication to disclose the person or persons who had furnished him the liquor,
said that they were stranger to him, whom he met late in the evening in Barre. The court,
considering his alleged disclosure unsatisfactory, ordered him committed to jail until he should tell
the truth or until further orders. He instituted habeas corpus proceedings in his favor alleging in
his pleading that as he had already made a truthful disclosure, the result of his commitment would
be to compel him to deny his former statements and make others which would make him guilty of
perjury. The court, deciding the question, said:
The privilege against self-crimination is a personal one. . . . But the privilege is an option of refusal,
not a prohibition of inquiry. Hence, when an ordinary witness is on the stand, and self-criminating
act relevant to the issue is desired to be shown by him, the question may be asked, and then it is
for the witness to say whether he will answer it or claim its privilege, for it cannot be known
beforehand what he will do.
It further state that "the proper place in which to claim the privilege is in the trial court, when the
question is propounded, not here." This is exactly the case of the herein complainant. She
opportunely invoked the privilege when it was desired to subject her to trial by copying the six
letters in question, which Mackenzie failed to do.
It is true that in said case of Mackenzie, it was likewise stated that "No reason appears why the
examination on disclosure should not be subject to the ordinary rule of cross-examination. The
person making the disclosure is in the petition of a witness called by the State, and is subject to
the rule permitting the impeachment of such a witness. It is no invasion of the constitutional
guaranty against self-crimination to compel the witness to answer questions relating to the
truthfulness of his previous testimony." This court, however, is of the opinion that the foregoing is
not applicable to the case of the herein complainant, firstly, because she has made no disclosure;
she confined herself to denying the letters in question were hers when the respondent, appressing
in court with them, said rather than insinuated, that they were hers, presenting in support of his
statement, other letters which, by reason of the handwriting, were to all appearances similar
thereto; and secondly, because her testimony, denying that she was the author of the letters in
question, may be attacked by means of other evidence in the possession of the respondent, which
is not precisely that coming from the complaint herself.
The reason for the privilege appears evident. The purpose thereof is positively to avoid and
prohibit thereby the repetition and recurrence of the certainly inhuman procedure of compelling a
person, in a criminal or any other case, to furnish the missing evidence necessary for his
conviction. If such is its purpose, then the evidence must be sought elsewhere; and if it is desired
to discover evidence in the person himself, then he must be promised and assured at least
absolute immunity by one authorized to do so legally, or he should be asked, one for all, to furnish
such evidence voluntarily without any condition. This court is the opinion that in order that the
constitutional provision under consideration may prove to be a real protection and not a dead
letter, it must be given a liberal and broad interpretation favorable to the person invoking it.
In view of the foregoing consideration and holding, as it is hereby held, that the complainant is
perfectly entitled to the privilege invoked by her, the respondent's petition is denied. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial
Fiscal of Isabela, respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent
judge ordered him to appear before the provincial fiscal to take dictation in his own handwriting
from the latter.
The order was given upon petition of said fiscal for the purpose of comparing the petitioner's
handwriting and determining whether or not it is he who wrote certain documents supposed to be
falsified.
There is no question as to the facts alleged in the complaint filed in these proceedings; but the
respondents contend that the petitioner is not entitled to the remedy applied for, inasmuch as the
order prayed for by the provincial fiscal and later granted by the court below, and again which the
instant action was brought, is based on the provisions of section 1687 of the Administrative Code
and on the doctrine laid down in the cases of People vs. Badilla (48 Phil., 718); United States vs.
Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the
respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order
in question.
Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon
motion of the fiscal, may compel witnesses to be present at the investigation of any crime or
misdemeanor. But this power must be exercised without prejudice to the constitutional rights of
persons cited to appear.
And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the
constitutional provision contained in the Jones Law and incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining whether the constitutional provision
invoked by the petitioner prohibits compulsion to execute what is enjoined upon him by the order
against which these proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni
se le obligara a declarar en contra suya en ningun proceso criminal" and has been incorporated
in our Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 ) and section 56.
As to the extent of the privilege, it should be noted first of all, that the English text of the Jones
Law, which is the original one, reads as follows: "Nor shall be compelled in any criminal case to
be a witness against himself."
This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned
with a principle contained both in the Federal constitution and in the constitutions of several states
of the United States, but expressed differently, we should take it that these various phrasings
have a common conception.
In the interpretation of the principle, nothing turns upon the variations of wording in the
constitutional clauses; this much is conceded (ante, par. 2252). It is therefore immaterial that the
witness is protected by one constitution from 'testifying', or by another from 'furnishing evidence',
or by another from 'giving evidence,' or by still another from 'being a witness.' These various
phrasings have a common conception, in respect to the form of the protected disclosure. What is
that conception? (4 Wigmore on Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or
furnishing of evidence.
The rights intended to be protected by the constitutional provision that no man accused of crime
shall be compelled to be a witness against himself is so sacred, and the pressure toward their
relaxation so great when the suspicion of guilt is strong and the evidence obscure, that is the duty
of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit
any steps tending toward their invasion. Hence, there is the well-established doctrine that the
constitutional inhibition is directed not merely to giving of oral testimony, but embraces as well the
furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact
which the accused has a right to hold secret. (28 R. C. L., paragraph 20, page 434 and notes.)
(Emphasis ours.)
The question, then, is reduced to a determination of whether the writing from the fiscal's dictation
by the petitioner for the purpose of comparing the latter's handwriting and determining whether
he wrote certain documents supposed to be falsified, constitutes evidence against himself within
the scope and meaning of the constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain
writing or signature is in his own hand, he may on cross-examination be compelled to write in
open court in order that the jury maybe able to compare his handwriting with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the
defendant, in offering himself as witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the
defendant to write his name during the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before us. We are not concerned
here with the defendant, for it does not appear that any information was filed against the petitioner
for the supposed falsification, and still less as it a question of the defendant on trial testifying and
under cross-examination. This is only an investigation prior to the information and with a view to
filing it. And let it further be noted that in the case of Sprouse vs. Com., the defendant performed
the act voluntarily.
We have also come upon a case wherein the handwriting or the form of writing of the defendant
was obtained before the criminal action was instituted against him. We refer to the case of People
vs. Molineux (61 Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse
vs. Com., the defendant voluntarily offered to write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives prominence to the defendant's right
to decline to write, and to the fact that he voluntarily wrote. The following appears in the body of
said decision referred to (page 307 of the volume cited):
The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to the
latter's request, and we can discover no ground upon which the writings thus produced can be
excluded from the case. (Emphasis ours.)
For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N. W.,
199), that the defendant could not be compelled to write his name, the doctrine being stated as
follows:
The defendant being sworn in his own behalf denied the endorsement.
He was then cross-examined the question in regard to his having signed papers not in the case,
and was asked in particular whether he would not produce signatures made prior to the note in
suit, and whether he would not write his name there in the court. The judge excluded all these
inquiries, on objection, and it is of these rulings that complaint is made. The object of the questions
was to bring into the case extrinsic signatures, for the purpose of comparison by the jury, and we
think that the judge was correct in ruling against it.
It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says:
Measuring or photographing the party is not within the privilege. Nor it is the removal or
replacement of his garments or shoes. Nor is the requirement that the party move his body to
enable the foregoing things to be done. Requiring him to make specimens of handwriting is no
more than requiring him to move his body . . ." but he cites no case in support of his last assertion
on specimens of handwriting. We note that in the same paragraph 2265, where said authors treats
of "Bodily Exhibition." and under preposition "1. A great variety of concrete illustrations have been
ruled upon," he cites many cases, among them that of People vs. Molineux (61 N. E., 286) which,
as we have seen, has no application to the case at bar because there the defendant voluntary
gave specimens of his handwriting, while here the petitioner refuses to do so and has even
instituted these prohibition proceedings that he may not be compelled to do so.
Furthermore, in the case before us, writing is something more than moving the body, or the hands,
or the fingers; writing is not a purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means that the petitioner herein is to
furnish a means to determine whether or not he is the falsifier, as the petition of the respondent
fiscal clearly states. Except that it is more serious, we believe the present case is similar to that
of producing documents or chattels in one's possession. And as to such production of documents
or chattels. which to our mind is not so serious as the case now before us, the same eminent
Professor Wigmore, in his work cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of Documents and Chattels. — 1. It follows that the production
of documents or chattels by a person (whether ordinary witness or party-witness) in response to
a subpoena, or to a motion to order production, or to other form of process treating him as a
witness ( i.e. as a person appearing before a tribunal to furnish testimony on his moral
responsibility for truthtelling), may be refused under the protection of the privilege; and this is
universally conceded. (And he cites the case of People vs. Gardner, 144 N. Y., 119; 38 N.E.,
1003)
We say that, for the purposes of the constitutional privilege, there is a similarity between one who
is compelled to produce a document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish evidence against himself.
And we say that the present case is more serious than that of compelling the production of
documents or chattels, because here the witness is compelled to write and create, by means of
the act of writing, evidence which does not exist, and which may identify him as the falsifier. And
for this reason the same eminent author, Professor Wigmore, explaining the matter of the
production of documents and chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in form, and though the documents or chattels
be already in existence and not desired to be first written and created by testimonial act or
utterance of the person in response to the process, still no line can be drawn short of any process
which treats him as a witness; because in virtue it would be at any time liable to make oath to the
identity or authenticity or origin of the articles produced. (Ibid., pp. 864-865.) (Emphasis ours.)
It cannot be contended in the present case that if permission to obtain a specimen of the
petitioner's handwriting is not granted, the crime would go unpunished. Considering the
circumstance that the petitioner is a municipal treasurer, according to Exhibit A, it should not be
a difficult matter for the fiscal to obtained genuine specimens of his handwriting. But even
supposing it is impossible to obtain specimen or specimens without resorting to the means
complained herein, that is no reason for trampling upon a personal right guaranteed by the
constitution. It might be true that in some cases criminals may succeed in evading the hand of
justice, but such cases are accidental and do not constitute the raison d' etre of the privilege. This
constitutional privilege exists for the protection of innocent persons.
With respect to the judgments rendered by this court and cited on behalf of the respondents, it
should be remembered that in the case of People vs. Badilla (48 Phil., 718), it does not appear
that the defendants and other witnesses were questioned by the fiscal against their will, and if
they did not refuse to answer, they must be understood to have waived their constitutional
privilege, as they could certainly do.
The privilege not to give self-incriminating evidence, while absolute when claimed, maybe waived
by any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442, and cases noted.)
The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the
defendant did not oppose the extraction from his body of the substance later used as evidence
against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to
rest its decision on the reason of the case rather than on blind adherence to tradition. The said
reason of the case there consisted in that it was the case of the examination of the body by
physicians, which could be and doubtless was interpreted by this court, as being no compulsion
of the petitioner therein to furnish evidence by means of testimonial act. In reality she was not
compelled to execute any positive act, much less a testimonial act; she was only enjoined from
something preventing the examination; all of which is very different from what is required of the
petitioner of the present case, where it is sought to compel him to perform a positive, testimonial
act, to write and give a specimen of his handwriting for the purpose of comparison. Besides, in
the case of Villamor vs. Summers, it was sought to exhibit something already in existence, while
in the case at bar, the question deals with something not yet in existence, and it is precisely sought
to compel the petitioner to make, prepare, or produce by this means, evidence not yet in
existence; in short, to create this evidence which may seriously incriminate him.
Similar considerations suggest themselves to us with regard to the case of United States vs. Ong
Siu Hong (36 Phil., 735), wherein the defendant was not compelled to perform any testimonial
act, but to take out of his mouth the morphine he had there. It was not compelling him to testify or
to be a witness or to furnish, much less make, prepare, or create through a testimonial act,
evidence for his own condemnation.
Wherefore, we find the present action well taken, and it is ordered that the respondents and those
under their orders desist and abstain absolutely and forever from compelling the petitioner to take
down dictation in his handwriting for the purpose of submitting the latter for comparison.
Without express pronouncement as to costs. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 200748 July 23, 2014
JAIME D. DELA CRUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, CJ:
This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision 1
dated 22 June 2011 issued by the Twentieth Division of the Court of Appeals (CA) and Resolution 2
dated 2 February 2012 issued by the Former Twentieth Division of the CA in CA-G.R. C.R. No.
00670.
THE ANTECEDENT FACTS
Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act
No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation
and Prosecution Officer of the Office of the Ombudsman - Visayas, in an Information3 dated 14
February 2006, which reads:
That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction
of this Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer,
having been duly appointed and qualified to such public position as Police Officer 2 of the
Philippine National Police (PNP) assigned in the Security Service Group of the Cebu City Police
Office, after having beenarrested by agents of the National Bureau of Investigation (NBI) in an
entrapment operation, was found positive for use of METHAMPHETAMINE
HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug after a confirmatory test
conducted on said accused.
CONTRARY TO LAW.
When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The
records do not reveal whether De la Cruz was likewise charged for extortion.
VERSION OF THE PROSECUTION
The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and
special investigators of the National Bureau of Investigation, Central Visayas Regional Office
(NBI-CEVRO) or simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito
Escobido (Charito). The complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido
(Ariel), the live-in partner of Corazon and son of Charito, was picked up by several unknown male
persons believed to be police officers for allegedly selling drugs. An errand boy gave a number to
the complainants, and when the latter gave the number a ring, they were instructed to proceed to
the Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said police office, they
met "James" who demanded from them ₱100,000, later lowered to ₱40,000, in exchange for the
release of Ariel. After the meeting, the complainants proceeded to the NBI-CEVRO to file a
complaint and narrate the circumstances of the meeting to the authorities. While at the NBI-
CEVRO, Charitoeven received calls supposedly from "James" instructing her to bring the money
as soon as possible.
The special investigators at the NBI-CEVRO verified the text messages received by the
complainants.1âwphi1 A team was immediately formed to implement an entrapment operation,
which took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues,
Cebu City. The officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted
with fluorescent powder, which was made part of the amount demanded by "James" and handed
by Corazon. Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where
forensic examination was done by forensic chemist Rommel Paglinawan. Petitioner was required
to submit his urine for drug testing. It later yielded a positive result for presence of dangerous
drugs as indicated in the confirmatory test result labeled as Toxicology (DangerousDrugs) Report
No. 2006-TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE
The defense presented petitioner as the lone witness. He denied the charges and testified that
while eating at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents.
When he was at the NBI Office, he was required to extract urine for drug examination, but he
refused saying he wanted it to be done by the Philippine National Police (PNP) Crime Laboratory
and not by the NBI. His request was, however, denied. He also requested to be allowed to call
his lawyer prior to the taking of his urine sample, to no avail.
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision 4 dated 6 June 2007, found
the accused guilty beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and
sentenced him to suffer the penalty of compulsory rehabilitation for a period of not less than six
(6) months at the Cebu Center for the Ultimate Rehabilitation of Drug Dependents located at
Salinas, Lahug, Cebu City.5
Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test
despite its dubiousness having been admitted in spite of the lack of legal basis for itsadmission.
First, he alleges that the forensic laboratory examination was conducted despite the fact that he
was not assisted by counsel, in clear violation of his constitutional right. Secondly, he was
allegedly held guilty beyond reasonable doubt notwithstanding the lack of sufficient basis to
convict him.
THE RULING OF THE CA
The CA found the appeal devoid of merit and affirmed the ruling of the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing
jurisprudence, which states that drug testing conducted under circumstancessimilar to his would
violate a person’s right to privacy. The appellate court nevertheless denied the motion.
Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of
hearsay evidence as basis for his conviction and the questionable circumstances surrounding his
arrest and drug test.
Respondent, through the Office of the Solicitor General, filed its Comment, 6 saying that
"petitioner’s arguments cannot be the subject of a petition for review on certiorariunder Rule 45,
as they involve questions of facts which may not be the subject thereof; after his arraignment, he
can no longer contest the validity of his arrest, less so at this stage of the proceedings; his guilt
has been adequately established by direct evidence; and the manner in which the laboratory
examination was conducted was grounded on a valid and existing law.
THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the issue of whether
or not the drug test conducted upon the petitioner is legal.
OUR RULING
We declare that the drug testconducted upon petitioner is not grounded upon any existing law or
jurisprudence.
We gloss over petitioner’s non-compliance with the Resolution 7 ordering him to submit clearly
legible duplicate originals or certified true copies of the assailed Decision and Resolution.
Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent provision
of which reads:
Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be
positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a
minimum of six (6) months rehabilitation in a government center for the first offense, subject to
the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second
time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day
to twelve (12) years and a fine ranging from Fifty thousand pesos (₱50,000.00) to Two hundred
thousand pesos (₱200,000.00): Provided,That this Section shall not be applicable where the
person tested is also found to have in his/her possession such quantity of any dangerous drug
provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. 8
The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were
established: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3)
the confirmatory test shows that he used a dangerous drug.
Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also
reasoned that "a suspect cannot invoke his right to counsel when he is required to extract urine
because, while he is already in custody, he is not compelled to make a statement or testimony
against himself. Extracting urine from one’s body is merely a mechanical act, hence, falling
outside the concept of a custodial investigation."
We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the
CA, erroneous on three counts.
The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act,
but only for unlawful acts listed under Article II of R.A. 9165.
First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or
arrested for any crime.The phrase must be read in context and understood in consonance with
R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed
under Article II of the law.
Hence, a drug test can be made upon persons who are apprehended or arrested for, among
others, the "importation,"9 "sale, trading, administration, dispensation, delivery, distribution and
transportation",10 "manufacture"11 and "possession"12 of dangerous drugs and/or controlled
precursors and essential chemicals; possession thereof "during parties, social gatherings or
meetings"13 ; being "employees and visitors of a den, dive or resort"; 14 "maintenance of a den,
dive or resort";15 "illegal chemical diversion of controlled precursors and essential chemicals" 16 ;
"manufacture or delivery" 17 or "possession"18 of equipment, instrument, apparatus, and other
paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals;
possession of dangerous drugs "during parties, social gatherings or meetings"19 ; "unnecessary"20
or "unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as dangerous drugs
or are sources thereof";22 and "maintenance and keeping of original records of transactions on
dangerous drugs and/orcontrolled precursors and essential chemicals." 23 To make the provision
applicable to all persons arrested or apprehended for any crime not listed under Article II is
tantamount to unduly expanding its meaning. Note thataccused appellant here was arrested in
the alleged act of extortion.
A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to
rehabilitate persons apprehended or arrested for the unlawful acts enumerated above instead of
charging and convicting them of other crimes with heavier penalties. The essence of the provision
is more clearly illustrated in People v. Martinez 24 as follows:
On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of
Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the
charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing
charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession
is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11.
Although not incorrect, it would be more in keeping withthe intent of the law to file charges under
Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided thatthere is a
positive confirmatory test result as required under Sec. 15.The minimum penalty under the last
paragraph of Sec. 11 for the possession of residue isimprisonment of twelve years and one day,
while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months
rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone
would frustrate the objective of the law to rehabilitate drug users and provide them with an
opportunity to recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of residue on the
drug paraphernalia, and the accused were found positive for use of dangerous drugs. Granting
that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the
law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous
drugs and, if there was no residue at all, they should have been charged under Sec. 14
(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under
Sec. 12(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument,
apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is
imprisonment of four years and a fine of ₱50,000.00. In fact, under the same section, the
possession of such equipment, apparatus or other paraphernalia is prima facieevidence that the
possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.
In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on
law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing
charges when the presence of dangerous drugs isonly and solely in the form of residue and the
confirmatory test required under Sec. 15 is positive for use of dangerous drugs.In such cases, to
afford the accused a chance to be rehabilitated, the filing of charges for or involving possession
of dangerous drugs should only be done when another separate quantity of dangerous drugs,
other than mere residue, is found in the possession of the accused as provided for in Sec. 15.
(Emphasis supplied)
Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to
all persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other
crimes, is tantamount to a mandatory drug testing of all persons apprehended or arrested for any
crime. To overextend the application of thisprovision would run counter to our pronouncement in
Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, 25 to
wit:
x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness
and being suspicionless are antithetical to their being made defendants in a criminal complaint.
They are not randomly picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded against their will. The
persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably
submitting themselves to drug testing, if that be the case, do not necessarily consent to the
procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused
is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 6195. Drug testing in this case would violate a person’s right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves. (Emphasis supplied)
The drug test is not covered by allowable non-testimonial compulsion.
We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and
raises the issue only now before this tribunal; hence, he is deemed to have waived his right to
question the validity of his arrest curing whatever defect may have attended his arrest. 26 However,
"a waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest." 27
We are aware of the prohibition against testimonial compulsion and the allowable exceptions to
such proscription. Cases where non-testimonial compulsion has been allowed reveal, however,
that the pieces of evidence obtained were all material to the principal cause of the arrest.
The constitutional right of an accused against self-incrimination proscribes the use of physical or
moral compulsion to extort communications from the accused and not the inclusion of his body in
evidence when it may be material. Purely mechanical acts are not included in the prohibition as
the accused does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel
is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against
selfincrimination is testimonial compulsion, that is, the giving of evidence against himself through
a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455
[1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman charged
with adultery may be compelled to submit to physical examination to determine her pregnancy;
(Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to submit to physical
examination and to have a substance taken from his body for medical determination as to whether
he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil.
145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to
have the outline of his foot traced todetermine its identity with bloody footprints; (U.S. vs. Salas,
25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or
his garments or shoes removed or replaced, or to move his body to enable the foregoing things
to be done.(People vs. Otadora, 86 Phil. 244 [1950])28 (Emphasis supplied)
In the instant case, we fail to see howa urine sample could be material to the charge of
extortion.1âwphi1 The RTC and the CA, therefore, both erred when they held that the extraction
of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling
outside the concept of a custodial investigation."
We note a case where a urine sample was considered as admissible. In Gutang v. People,29 the
petitioner therein and his companions were arrested in connection with the enforcement of a
search warrant in his residence. A PNP-NARCOM team found and confiscated shabu materials
and paraphernalias. The petitioner and his companions in that case were also asked to give urine
samples, which yielded positive results. Later, the petitioner therein was found guilty of the crime
of illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample
was inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial
confession.
In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of
physical or moral compulsion to extort communication from the accused, but not an inclusion of
his body in evidence, when it may be material." The situation in Gutangwas categorized as falling
among the exemptions under the freedom from testimonial compulsion since what was sought
tobe examined came from the body of the accused. The Court said:
This was a mechanical act the accused was made to undergo which was not meant to unearth
undisclosedfacts but to ascertain physical attributes determinable by simple observation. In fact,
the record shows that petitioner and his co-accused were not compelled to give samples of their
urine but they in fact voluntarily gave the same when they were requested to undergo a drug test.
Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence,
we agree with the trial court that the record is replete with other pieces of credible evidence
including the testimonial evidence of the prosecution which point to the culpability of the petitioner
for the crimes charged.
We emphasize that the circumstances in Gutangare clearly different from the circumstances of
petitioner in the instant case.1awp++i1 First, Gutang was arrested in relation to a drug case.
Second, he volunteered to give his urine. Third, there were other pieces of evidence that point to
his culpability for the crimes charged. In the present case, though, petitioner was arrested for
extortion; he resisted having his urine sample taken; and finally, his urine sample was the only
available evidencethat was used as basis for his conviction for the use of illegal drugs.
The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.
It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He
also asked for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of
his efforts proved futile, because he was still compelled to submit his urine for drug testing under
those circumstances.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. The right of the people to be securein their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
Section 17. No person shall be compelled to be a witness against himself.
In the face of these constitutional guarantees, we cannot condone drug testing of all arrested
persons regardless of the crime or offense for which the arrest is being made.
While we express our commendation of law enforcement agents as they vigorously track down
offenders intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs
on our society, they must, however, be constantly mindful of the reasonable limits of their
authority, because it is not unlikely that in their clear intent to purge society of its lawless elements,
they may be knowingly or unknowingly transgressing the protected rights of its citizens including
even members of its own police force.
WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the
Twentieth Division, and the Resolution dated 2 February 2012 issued by the former Twentieth
Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby
ACQUITTED.
SO ORDERED.
 FIRST DIVISION

[G.R. No. 110357. August 17, 1994.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CARLOS TRANCA Y ARELLANO,

Accused-Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACTS OF THE TRIAL COURT,

GENERALLY NOT DISTURBED ON APPEAL. — Long settled in criminal jurisprudence is the
rule that when the issue is one of credibility of witnesses, appellate courts will generally not disturb
the findings of the trial court, considering that the latter is in a better position to decide the
question, having heard the witnesses themselves and observed their deportment and manner of
testifying during the trial, unless it has plainly overlooked certain facts of substance and value
that, if considered, might affect the result of the case. We do not find any such oversight on the
part of the trial court.

2. ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; PRESUMPTION OF REGULARITY IN

THE PERFORMANCE OF OFFICIAL DUTIES; NOT OVERTURNED IN CASE AT BAR. — The
NARCOM agents have in their favor the presumption of regularity in the performance of their
official duties. The accused was not able to prove that the police officers had any improper or
ulterior motive in arresting him. The police officers are thus presumed to have regularly performed
their official duty in the absence of any evidence to the contrary. His contention that the marked
money was wiped on his hands and pocket was supported by nothing more than his bare
allegation. We have stated that an allegation that one was framed can be made with ease. That
allegation must therefore be proved by clear and convincing evidence. The presumption that law
enforcers have regularly performed their duties perforce requires that proof of a frame-up must
be strong.

3. CRIMINAL LAW; ENTRAPMENT; PRIOR SURVEILLANCE, NOT A PREREQUISITE

THERETO. — A prior surveillance is not a prerequisite for the validity of an entrapment operation.
There is no rigid or textbook method of conducting buy-bust operations. Flexibility is a trait of good
police work. The police officers may decide that time is of the essence and dispense with the need
for prior surveillance.

4. ID.; BUY-BUST OPERATION; MISSION ORDER, NOT AN ESSENTIAL REQUISITE

THERETO. — The accused also harps on the fact that there was no mission order for the buy-
bust operation and that there was no investigation report made after the operation. A mission
order is not an essential requisite for a valid buy-bust operation. The execution of an investigation
report is likewise not indispensable considering further that SPO3 San Jose had testified that he
prepared the booking sheet, receipt of property seized, and the affidavit of arrest. To ask that
every buy-bust operation be conducted in a textbook or blue ribbon manner is to ask for too much
from our law enforcers.

5. REMEDIAL LAW; EVIDENCE; NON-PRESENTATION OF INFORMER, NOT FATAL TO CASE

WHERE HIS TESTIMONY IS MERELY CORROBORATIVE. — The testimony of the informer
would at best be corroborative since the testimonies of Sgt. Latumbo and SPO1 Matundan had
sufficiently established how the crime was committed. The testimony or identity of the informer
may be dispensed with since his narration would be merely corroborative and cumulative with
that of the poseur-buyer who was himself presented and who took the witness stand for the
precise purpose of attesting to the sale of the illegal drug.

6. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST SELF-INCRIMINATION; NOT

VIOLATED WHERE ACCUSED WAS MADE TO UNDERGO AN ULTRA VIOLET RAY
EXAMINATION. — The defense contends that the right of the accused against self-incrimination
was violated when he was made to undergo an ultraviolet ray examination. The defense also
argues that Chief Chemist Teresita Alberto failed to inform the accused of his right to counsel
before subjecting him to the examination. These contentions are without merit. What is prohibited
by the constitutional guarantee against self-incrimination is the use of physical or moral
compulsion to extort communication from the witness, not an inclusion of his body in evidence,
when it may be material. Stated otherwise, it is simply a prohibition against legal process to extract
from the defendant’s own lips, against his will, an admission of guilt. Nor can the subjection of the
accused’s body to ultraviolet radiation, in order to determine the presence of ultraviolet powder,
be considered a custodial investigation so as to warrant the presence of counsel.

7. CRIMINAL LAW; DANGEROUS DRUGS ACT; ILLEGAL SALE OF REGULATED DRUG

(METHAMPHETAMINE HYDROCHLORIDE [SHABU]); PENALTY. — In fine, we affirm the
finding of the trial court that the accused was caught in flagrante selling shabu to the members of
the buy-bust team. The penalty imposed upon the accused, however, must be modified in view
of the new amendments introduced by R.A. No. 7659 to Section 15, Article III, and Section 20,
Article IV of R.A. No. 6425, as amended. R.A. No. 7659 was approved on 13 December 1993 and
took effect on 31 December 1993. As thus further amended, the penalty prescribed in Section 15
was changed from "life imprisonment to death and a fine ranging from twenty thousand to thirty
thousand pesos" to" reclusion perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos." However, pursuant to Section 17 of R.A. No. 7659, which amends
Section 20 of R.A. No. 6425, the new penalty shall be applied if the quantity of the dangerous
drugs involved falls within the first paragraph of the amended Section 20, and if the quantity would
be lower than than specified in said first paragraph, the penalty shall be from" prision correccional
to reclusion perpetua." The penalty then in Section 15 is now based on the quantity of the
regulated drugs involved, except where the victim is a minor or where the regulated drug involved
in any offense under Section 15 is the proximate cause of the death of the victim, in which case
the maximum penalty prescribed in Section 15 shall be imposed regardless of the quantity of the
regulated drugs involved. With the foregoing as our touchstones, and it appearing from Chemistry
Report No. D-464-91 (Exhibit "H") signed by Police Lt. Julita T. De Villa, PNP Forensic Chemist,
that the quantity of the shabu recovered from the accused in this case is only 1.10 grams, the
imposable penalty under the second paragraph of Section 20 of R.A. No. 6425, as further
amended by Section 17 of R.A. No. 7659, should be prision correccional. Applying the
Indeterminate Sentence Law, the accused may then be sentenced to suffer an indeterminate
penalty ranging from six (6) months of arresto mayor as minimum to six (6) years of prision
correccional as maximum. Accused CARLOS TRANCA Y ARELLANO is hereby sentenced to
suffer an indeterminate penalty ranging from six (6) months of arresto mayor as minimum to six
(6) years of prision correccional as maximum.

DECISION

DAVIDE, JR., J.:

In an information filed on 10 May 1991 with the Regional Trial Court (RTC) of Makati, Accused
Carlos Tranca y Arellano was charged with the violation of Section 15, Article III of R.A. No. 6425,
as amended, otherwise known as the Dangerous Drugs Act of 1972. The accusatory portion of
the information reads:jgc:chanrobles.com.ph

"That on or about 07 May 1991, in the Municipality of Makati, Metro Manila, Philippines, a place
within the jurisdiction of the Honorable Court, the above-named accused, without the
corresponding license, prescription or being authorized by law, did, then and there, willfully,
unlawfully and feloniously sell, deliver and distribute Methamphetamine Hydrocholoride (shabu),
which is a regulated drug, in violation of the above-cited law." 1

The case was docketed as Criminal Case No. 2574 and assigned to Branch 136 of the said court.

At the trial of the case on its merits after the accused had pleaded not guilty at his arraignment on
25 October 1991, 2 the prosecution presented as witnesses for its evidence in chief Sgt. Jose
Latumbo of the National Capital Region NARCOM Unit (NCRNU) with office of Camp Crame,
Quezon City, SPO1 Francisco Matundan, Police Lt. Julita De Villa, and Teresita Alberto, and
presented in rebuttal SPO1 Francisco Matundan and SPO3 Alberto San Jose. The accused took
the witness stand and presented his sister, Clarita Chen, as his witness.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph

Through the testimonies of Sgt. Jose Latumbo and SPO1 Francisco Matundan, the prosecution
established the following facts:chanrob1es virtual 1aw library

On 6 May 1991 at 11:00 p.m., a "confidential agent" or informer went to the office of the NCRNU
and proceeded to the desk of their superior, Capt. Jonathan Miano. Sgt. Jose Latumbo, SPO3
Oliver Tugade, SPO2 Albert San Jose, SPO1 Francisco Matundan, and PO3 Lilia Ochia were
summoned by Capt. Miano to a briefing. The latter told them that the informer had revealed that
a certain "Jon-Jon" (later identified as the accused) was selling shabu along Kalayaan Avenue,
Makati, Metro Manila. Capt. Miano then former a buy-bust team with himself as the team leader,
Sgt. Latumbo as the poseur-buyer, and the rest, including the informer, forming the support group.
Capt. Miano gave to Sgt. Latumbo a P100 bill with serial number SN886097 (Exhibit "B") and
which had been dusted with fluorescent powder to be used in the buy-bust operation.

The team, riding in two cars, then proceeded to the target area. At the corner of Kalayaan Avenue
and J.B. Roxas Street, the informer spotted the accused, who was standing in front of the house,
and pointed him out to the team members. The team then circled back and alighted from their
vehicles. As planned, Sgt. Latumbo and the informer approached the accused while the rest of
the team took vantage points so as to observe the operation and close in at the opportune
time.chanrobles.com.ph : virtual law library

The informer introduced Sgt. Latumbo to the accused and told the latter that his companion was
interested in buying shabu. The informer then asked the accused if he had any for sale. The
accused answered in the affirmative and asked for the quantity to be bought. Sgt. Latumbo
replied, "Pare, tapatan mo na lang itong piso ko." (In illegal drug parlance, "piso" means one
hundred pesos) The accused emerged, he gave a package (Exhibit "F-2) to Sgt. Latumbo who in
turn handed to the accused the P100 marked money. Sgt. Latumbo examined the package he
received and upon ascertaining that it was really shabu, gave the pre-arranged signal by
scratching his head. Capt. Miano and the rest of the police officers then closed in on the accused.
They introduced themselves as NARCOM agents and arrested the accused. Upon interrogation
by Capt. Miano, the accused voluntarily surrendered one plastic bag of shabu (Exhibit "F-3") and
the P100 marked money (Exhibit "B"). The accused was handcuffed and taken to the NARCOM
headquarters. 3

On 7 May 1991, SPO1 Matundan requested Teresita Alberto, the Chief Chemist of the Physical
Identification Division of the PNP Crime Laboratory Service at Camp Crame, to examine the
person of the accused and a P100 bill with serial number SN886097. She exposed the P100 bill
to ultraviolet radiation and found the presence of fluorescent powder thereon. She likewise
exposed the person of the accused to ultraviolet radiation and discovered flourescent power on
his hands, face and on the opening of the left-side pocket of the white shorts that he was then
wearing. The results of her examination are contained in her Physical Identification Report No.
PI-073-91 (Exhibit "C"). 4 On the same date, SPO1 Matundan came to the office of Police Lt.
Julita De Villa, a forensic chemist at the PNP Crime Laboratory Service in Camp Crame, to deliver
specimens consisting of a 0.06-gram substance wrapped in aluminum foil (Exhibit "F-2") and a
1.04-gram substance contained in a plastic bag (Exhibit "F-3"), together with a letter-request
(Exhibit "E") asking her to examine the two specimens. She subjected both specimens to three
different laboratory tests, viz., chemical examination, thin-layer chromatographic examination,
and infrared spectrometric record analysis. Both specimens were confirmed to be
methamphetamine hydrochloride (shabu), as stated in her Initial Chemistry Report No. D-464-91
dated 7 May 1991 (Exhibit "G") and her (Final) Chemistry Report No. D-464-91 (Exhibit "H"). 5

The accused denied the allegations against him and contended that he was framed by the police
officers. According to him, on 6 May 1991, he was inside his house from morning till night with his
parents, three sisters (one of whom is Clarita Cheng), a brother, two nieces, a nephew, his wife,
and one of his neighbors. At about 11:40 p.m., while he was fixing his videocassette recorder, he
heard a knocking at the front door. He called to ask who was knocking and someone replied,
"Joey." As he was busy, he asked his nephew, John David, to open the door. When the latter did
so, four men suddenly barged in. He did not know the man then but he later came to know that
they were Police Officers Latumbo, Matundan, Tugade, and San Jose, who had said that he was
"Joey." San Jose grabbed him by the collar and asked if he was "Jon-Jon." He answered that he
was. They told him, "Kung puede kailangan namin ng pera, kaya magturo ka na." He replied that
he knew nothing. Capt. Miano, who by then had appeared, slapped him while San Jose poked a
pistol at him and said, "Kung gusto mo, patayin ka na lang namin." He, together with his parents
and the occupants of the house, pleaded with the police officers to stop. He was then brought out
of the house by the men. He wanted to bring his sister, Clarita Cheng, with him but she was not
allowed to board a police vehicle. He saw Matundan talking to her sister. Although he could not
hear what they were saying, he noticed his sister giving some money to Matundan. He was first
brought to a damaged building at the Metropolitan along Ayala Avenue, Makati, where he was
made to alight and talk to Capt. Miano who told him to point to someone selling shabu; he
answered that he knew no one selling shabu. After half an hour, he was brought to the NARCOM
headquarters at Camp Crame.chanrobles lawlibrary : rednad

At 10:40 a.m. the following day, he was investigated by Matundan. After he was investigated, he
was made to stand up and place his hands behind his back after which he was handcuffed.
Latumbo then got a P100 bill from a drawer and wiped this on the accused’s hands and left pocket
of his shorts. His handcuffs were then removed and he was brought back to his cell. After thirty
minutes, he was brought to the PNP Crime Laboratory for ultraviolet ray examination and then
returned to his cell. 6

Clarita Cheng’s testimony corroborates that of the accused, his brother. She declared that she
asked the police officers why they were treating her brother like that and told them that if they do
no believe him, they should rather just kill him. She wanted to accompany her brother but they
would not let her. Matundan told her not to worry because her brother would be brought back. He
asked from her P1,000.00 for gasoline which she gave. His brother, however, was never returned.
She searched for him and found that he was detained at Camp Crame. 7

On rebuttal, SPO3 San Jose and SPO1 Matundan denied that they barged into the accused’s
house and illegally arrested him. SPO1 Matundan denied that he received P1,000.00 from Clarita
Cheng. SPO3 San Jose also denied that he wiped a P100 bill on the accused’s hands and pocket
while the latter was detained. 8

On 23 March 1993, the trial court promulgated its decision 9 finding the accused guilty as charged
and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P30,000.00.

The accused appealed the decision to this Court. He asseverates that the constitutional
presumption of innocence in his favor was not overcome by proof of guilt beyond reasonab le
doubt.

After assiduously going over the appellant’s brief and the records of this case, we find no reason
to overturn the trial court’s judgment of conviction.

The trial court found the testimony given by the prosecution witnesses to be more credible and
logical. It said that the prosecution witnesses "testified candidly and in a straightforward manner
that exuded all the marks of truthfulness." 10

Long settled in criminal jurisprudence is the rule that when the issue is one of credibility of
witnesses, appellant courts will generally not disturb the findings of the trial court, considering that
the latter is in a better position to decide the question, having heard the witnesses themselves
and observed their deportment and manner of testifying during the trial, unless it has plainly
overlooked certain facts of substance and value that, if considered, might affect the result of the
case. 11 We do not find any such oversight on the part of the trial court.chanrobles virtual
lawlibrary

The NARCOM agents have in their favor the presumption of regularity in the performance of their
official duties. 12 The accused was not able to prove that the police officers had any improper or
ulterior motive in arresting him. The police officers are thus presumed to have regularly performed
their official duty in the absence of any evidence to the contrary. The accused’s allegation that
the policemen barged into his house and demanded that he point to anybody selling drugs is
somewhat hard to believe. As noted by the trial court:jgc:chanrobles.com.ph

"The . . . version advanced by the accused and his sister is not only by itself weak and easily
contrived, it suffers in logic and cause. Why would police officers barge into a private dwelling in
the middle of the night only to force somebody to inform on unnamed drug dealers? They could
much easier pick somebody on a street at a more convenient time when their target is alone and
away from his family. And it is not logical that they would do it to extort money from the accused
since by his own testimony none was demanded from the accused, As such, the defense raised
merits scant considerations." 13

Likewise, his contention that the marked money was wiped on his hands and pocket was
supported by nothing more than his bare allegation. We have stated that an allegation that one
was framed can he made with ease. That allegation must therefore be proved by clear and
convincing evidence. The presumption that law enforcers have regularly performed their duties
perforce requires that proof of a frame-up must be strong. 14

The accused also assails the fact that there was no prior surveillance before the alleged
entrapment was effected and contends that this casts doubt on the regularity of the police
operation. This contention is untenable. A prior surveillance is not a prerequisite for the validity of
an entrapment operation. There is not rigid or textbook method of conducting buy-bust operations.
15 Flexibility is a trait of good police work. The police officers may decide that time is of the
essence and dispense with the need for prior surveillance.chanrobles virtual lawlibrary

The accused also harps on the fact that there was no mission order for the buy-bust operation
and that there was no investigations report made after the operation. A mission order is not an
essential requisite for a valid buy-bust operation. The execution of an investigation report is
likewise not indispensable considering further that SPO3 San Jose had testified that he prepared
the booking sheet, receipt of property seized, and the affidavit of arrest. 16 To ask that every buy-
bust operation be conducted in a textbook or blue ribbon manner is to ask for too much from our
law enforcers.

The defense questions the non-presentation of the informer. There is no merit in this objection.
The testimony of the informer would at best be corroborative since the testimonies of Sgt.
Latumbo and SPO1 Matundan had sufficiently established how the crime was committed. The
testimony or identity of the informer may be dispensed with since his narration would be merely
corroborative and cumulative with that of the poseur-buyer who was himself presented and who
took the witness stand for the precise purpose of attesting to the sale of the illegal drug. 17

The defense contends that the rights of the accused against self-incrimination was violated when
he was made to undergo an ultraviolet ray examination. The defense also argues that Chief
Chemist Teresita Alberto failed to inform the accused of his right to counsel before subjecting him
to the examination. These contentions are without merit. What is prohibited by the constitutional
guarantee against self-incrimination is the use of physical or moral compulsion to extort
communication from the witness, not an inclusion of his body in evidence, when it may be material.
18 Stated otherwise, it is simply a prohibition against his will, an admission of guilt 19 Nor can the
subjection of the accused’s body to ultraviolet powder, be considered a custodial investigation so
as to warrant the presence of counsel.chanrobles.com:cralaw:red

In fine, we affirm the finding of the trial court that the accused was caught in flagrante selling
shabu to the members of the buy-bust team. The penalty imposed upon the accused, however,
must be modified in view of the new amendments introduced by R.A. No. 7659 20 to Section 15,
Article III, and Section 20, Article IV of R.A. No. 6425, as amended. R.A. No. 7659 was approved
on 13 December 1993 and took effect on 31 December 1993. As thus further amended, the
penalty prescribed in Section 15 was charged from "life imprisonment to death and a fine ranging
from twenty thousand to thirty thousand pesos" to" reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos." However, pursuant to Section 17 of R.A.
No. 7659, which amended Section 20 of R.A. No. 6425, the new penalty shall be applied if the
quantity of the dangerous drugs involved falls within the first paragraph of the amended Section
20, and if the quantity would be lower than that specified in said first paragraph, the penalty shall
be from" prision correccional to reclusion perpetua." The pertinent portion of the amended Section
20 reads as follows:jgc:chanrobles.com.ph

"SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of
the Crime. — The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections
14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in
any of the following quantities:chanrob1es virtual 1aw library
 x x x

3. 200 grams or more of shabu or methylamphetamine hydrochloride;

x x x

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range
from prision correccional to reclusion perpetua depending upon the quantity."cralaw virtua1aw
library

The penalty then in Section 15 is now based on the quantity of the regulated drugs involved,
except where the victim is a minor or where the regulated drug involved in any offense under
Section 15 is the proximate cause of the death of the victim, in which case the maximum penalty
prescribed in Section 15 shall be imposed regardless of the quantity of the regulated drugs
involved. 21

In People v. Martin Simon y Sunga, 22 decided on 29 July 1994, this Court ruled as
follows:chanrob1es virtual 1aw library

(1) Provisions of R.A. No. 7659 which are favorable to the accused shall be given retroactive
effect pursuant to Article 22 of the Revised Penal Code.

(2) Where the quantity of the dangerous drug involved is less than the quantities stated in the first
paragraph of Section 20 of R.A. No. 6425, the penalty to be imposed shall range from prision
correccional to reclusion temporal, and not reclusion perpetua. The reason is that there is an
overlapping error, probably through oversight in the drafting, in the provisions on the penalty of
reclusion perpetua as shown by its dual imposition, i.e., as the minimum of the penalty where the
quantity of the dangerous drugs involved is more than those specified in the first paragraph of the
amended Section 20 and also as the maximum of the penalty where the quantity of the dangerous
drugs involved is less than those so specified in the first paragraph.

(3) Considering that the aforesaid penalty of prision correccional to reclusion temporal shall
depend upon the quantity of the dangerous drugs involved, each of the component penalties
thereof — prision correccional, prision mayor, and reclusion temporal — shall be considered as
a principal imposable penalty depending on the quantity, such that the quantity of the drugs
enumerated in the second paragraph should then be divided into three, with the resulting quotient,
and double or treble the same, as the bases for determining the appropriate component penalty.

(4) The modifying circumstances in the Revised Penal Code may be appreciated to determine
the proper period of the corresponding imposable penalty or even to effect its reduction by one or
more degrees; provided, however, that in no case should such graduation of penalties reduce the
imposable penalty lower than prision correccional.
(5) In appropriate instance, the Indeterminate Sentence Law shall be applied and considering that
R.A. No. 7659 has unqualifiedly adopted the penalties under the Revised Penal Code with their
technical signification and effects, then the crimes under the Dangerous Drugs Act shall now be
considered as crimes punished by the Revised Penal Code; hence, pursuant to Section 1 of the
Indeterminate Sentence Law, the indeterminate penalty which may be imposed shall be one
whose maximum shall be within the range of the imposable penalty and whose minimum shall be
within the range of the penalty next lower in degree to the imposable penalty.

With the foregoing as our touchstones, and it appearing from Chemistry Report No. D-464-91
(Exhibit "H") 23 signed by Police Lt. Julita T. De Villa, PNP Forensic Chemist, that the quantity of
the shabu recovered from the accused in this case is only 1.10 grams, the imposable penalty
under the second paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17
of R.A. No. 7659, should be prision correccional.chanrobles virtual lawlibrary

Applying the Indeterminate Sentence Law, the accused may then be sentenced to suffer an
indeterminate penalty ranging from six (6) months or arresto mayor as minimum to six (6) years
of prision correccional as maximum.

WHEREFORE, the challenged decision of Branch 136 of the Regional Trial Court of Makati in
Criminal Case No. 2754 is hereby AFFIRMED subject to the modification of the penalty. Accused
CARLOS TRANCA Y ARELLANO is hereby sentenced to suffer an indeterminate penalty ranging
from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as
maximum.

Costs against the accused.

SO ORDERED.

FIRST DIVISION
G.R. No. 133025. February 17, 2000
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RADEL GALLARDE, Accused-
Appellant.
DECISION
 DAVIDE, JR., C.J.:
This is an appeal from the judgment of the Regional Trial Court of Tayug, Pangasinan, Branch
51, finding accused-appellant Radel Gallarde1 (hereafter GALLARDE) guilty beyond reasonable
doubt of the crime of murder in Criminal Case No. T-1978 and sentencing him to suffer the penalty
of reclusion perpetua and to pay the heirs of Editha Talan (hereafter EDITHA) the amount of
P70,000 as actual damages.2cräläwvirtualibräry
On 24 June 1997, GALLARDE was charged with the special complex crime of rape with homicide
in an information whose accusatory portion reads as follows:
That on or about the 6th day of May 1997, in the evening, amidst the field located at Brgy.
Trenchera, [M]unicipality of Tayug, [P]rovince of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, and by means of force, violence
and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse
with one EDITHA TALAN, a minor-10 years of age, against her will and consent, and thereafter,
with intent to kill, cover the nose and mouth of the said minor resulting to her death and then bury
her in the field, to the damage and prejudice of the heirs of said EDITHA TALAN.3cräläwvirtualibräry
During the arraignment on 1 September 1997, GALLARDE, with the assistance of counsel,
entered a plea of not guilty.4 Trial of the case immediately ensued as the defense waived the
holding of the pre-trial conference.
The witnesses presented by the prosecution were Mario Fernandez, Jaime Cabinta, Rosy
Clemente, Felicisimo Mendoza, Alfredo Cortez, Renato Fernandez, SPO4 Oscar B. Lopez, and
Dr. Perfecto Tebangin. The relevant and material facts established by their testimonies are
faithfully summarized in the Appellees Brief as follows:
In the evening of May 26, 1997, at the house of spouses Eduardo and Elena Talan in Brgy.
Trenchea, Tayug, Pangasinan, their neighbors converged. Among them were appellant Radel
Gallarde, Francisco, Renato, Edwin, all surnamed Fernandez, Romel Hernandez, Jaime Cabinta,
Rosy Clemente, Jon Talen, Noel Arellaga and Ramil Bargon. Idling by was Editha, 10 year old
daughter of spouses Talan. A fluorescent lamp illuminated them as they partook beer (TSN dated
October 13, 1997, pp. 3-4).
After a while, Roger stood up and invited Jaime and appellant to dine in the kitchen. As they
partook of the meal, appellant suddenly left. Jaime, too, stepped out of the kitchen to urinate.
Outside the house, he chanced upon appellant and Editha talking to each other. Jaime whistled
at appellant but instead of minding him, the latter sprinted towards the road leading to his house
(Id., pp. 4-6).
Thereafter, Editha entered the kitchen and took hold of a kerosene lamp. Jaime followed her and
asked where she was going. Editha answered that she would look for appellant. Soon Editha left
enroute to where appellant fled (Id., pp. 7-8).
By 10:00 oclock that evening, the drinking buddies had dispersed but Jaime, Francisco, Edwin
and Rose regrouped at Renatos place where they talked and relaxed. Moments later, Roger
arrived and informed them that Editha was missing. Roger asked the group to help look for her
(Id., p. 10).
Elena Talan informed his uncle, Barangay Ex-kagawad Mario Fernandez, about her daughters
disappearance. The latter, together with his son Edwin, wife Virginia and nephew Freddie Cortez
wasted no time in joining their neighbors search the houses, dikes and fields to look for the
missing child. The searchers used a lighted rubber tire (TSN dated Sept. 24, 1997, pp. 8-10 and
24).
When Jaime mentioned that appellant was the last person he saw talking to Editha, the searchers
went back to the house of appellant. About 7 meters away from appellants house, one of the
searchers, Alfredo Cortez, found Edithas left foot slipper (TSN dated October 22, 1997, pp. 4-6).
Suddenly, Edwin Fernandez announced: "Tata, Radel is here!" pointing to the toilet about 6
meters away from appellants house. The searchers found appellant squatting with his short pants.
His hands and knees were covered with soil. When confronted by ex-kagawad Hernandez why
he was there, appellant answered he was relieving himself (Id., pp. 11-16).
Asked where Editha was, appellant replied: "I do not know, I did not do anything to her." When
told "according to Jimmy, you were with Editha," appellant responded "I let her go and brought
her back to the dike and let her go home." To the next question, "where did you come from since
a while a go you were not yet in this toilet?" appellant answered "I was with Kiko, I was asleep in
their house. One of the searchers Mario Bado, got angry and countered that appellants statement
was impossible because Kiko was with him drinking (Id., pp. 16-20).
After the confrontation at the toilet, Ex-kagawad Fernandez brought appellant to Brgy. Captain
Felicisimo Mendoza, informing the latter that appellant was the last person seen talking with the
missing child. Fernandez then rejoined the searchers (Id., pp. 21-22).
Back in the field, Virginia Fernandez tripped on a wet ground. As she reached for her slipper, she
saw Edithas right foot slipper (the other one was earlier found near the house of appellant) (Id.,
pp. 23-24).
Around 3 meters farther from Edithas right foot slipper; another slipper was found. It was old, 8 to
9 inches in length and appellant was seen wearing it in the morning of that day (TSN dated Sept.
25, 1997, pp. 25).
The searchers, thereafter, noticed disheveled grasses. Along the way, they saw a wide hole
among the disheveled grass. Ex-kagawad Fernandez accidentally dropped the lighted rubber tire
and as his nephew Freddie picked it up, the latter exclaimed: "Uncle, look at this loose soil!" Ex-
kagawad Fernandez forthwith scratched some earth aside and then Edithas hand pitted out. The
Fernandez screamed in terror (Id., pp. 5-6).
Meantime, Barangay Captain Mendoza heard shouts saying: "She is here, she is now here
already dead!" Mindful of appellants safety, Brgy. Captain Mendoza decided to bring appellant to
the municipal building. On their way though, they met policemen on board a vehicle. He flagged
them down and turned over the person of appellant, saying: "Here is the suspect in the
disappearance of the little girl. Since you are already here, I am giving him to you" (TSN dated
Oct. 21, 1997, pp. 4-5).
The policemen together with appellant proceeded to where the people found Editha. One of the
policemen shoved more soil aside. The lifeless Editha was completely naked when she was
recovered. (Id., pp. 9-10).
The cause of Edithas death as revealed in the post-mortem examination showed "suffocation of
the lungs as a result from powerful covering of the nose and mouth, associated with laceration of
the vagina and raptured hymen (Exh. "T", TSN dated Oct. 23, 1997, pp. 22-23)."5cräläwvirtualibräry
On the other hand, GALLARDE was the lone witness for the defense. He interposed a denial and
the alibi that he was at home with his mother and brothers at the time the crime occurred. He
declared that he is 18 years old, single, a former construction worker. He knew EDITHA, a
neighbor whom he considered as a sister because she used to come to his house. They never
had a quarrel or misunderstanding. He neither raped not killed Editha. 6cräläwvirtualibräry
On cross-examination by the prosecutor and to questions propounded by the court, GALLARDE
admitted that he saw Editha on the night of 6 May 1997 in her parents house, particularly in the
kitchen. He was there because he joined a group drinking Colt 45 beer, as he was called by Rudio
Fernandez. He drank and had dinner in the kitchen. After dinner he returned to the drinking place
and eventually went home because he was then a little drunk. He knows Kgd. Mario Fernandez,
but after he left the Talan residence he did not see Kgd. Fernandez anymore. Kgd. Fernandez
saw him inside his (Gallardes) toilet on the night of May 6; thereafter Fernandez took him to the
barangay captain and later he was turned over to the PNP at Camp Narciso Ramos. The police
informed him that he was a suspect in the rape and killing of Editha Talan, and he told them that
he did not commit the crime. At the Talan residence he was wearing short pants and rubber
slippers. Fernandez asked him at the police headquarters to pull down his shorts and he complied.
He was then wearing briefs with a hemline that was a little loose. He was informed that a cadaver
was recovered near his house. When he was asked questions while in police custody, he was not
represented by any lawyer.
GALLARDE further declared on cross-examination and on questions by the court that he
considered Editha Talan as a sister and her parents also treated him in a friendly manner. When
he came to know that Edithas parents suspected him of the crime, he was still on friendly terms
with them. However, he did no go to them to tell them he was innocent because they brandished
a bolo in anger.
Finally, he testified that in the evening of May 6 he came to know that Editha died. She was still
alive when he was drinking at the back of the Talan house and left for home. From the time he
arrived, he never left again that night, and his mother and brothers knew it for a fact. 7cräläwvirtualibräry
On 12 February 1998, the trial court rendered a decision convicting GALLARDE of the crime of
murder only, not of the complex crime of rape with homicide because of the lack of proof of carnal
knowledge. It observed:
Exh. "T" and Dr. Tebangins testimony thereon show that the late Editha Talan sustained slit
wounds inflicted as a means of suffocating her to death, a laceration of the lower portion of her
vagina, and a ruptured hymen. What allegedly oozed from her vagina was blood, coupled with
dirt. Had there been observed the presence of even just a drop of seminal fluid in or around her
vagina, the Court would readily conclude that the laceration and rupture resulted from phallic
intrusion. Without such observation, however, "carnal knowledge" as element of rape would be
an open question.
The trial court did not appreciate the alternative circumstance of intoxication either as a mitigating
or aggravating circumstance pursuant to Article 15 of the Revised Penal Code because
GALLARDEs alleged inebriation on the night of 6 May 1997, was not satisfactorily proven.
As to the civil aspect of the case, the trial court considered the stipulation of the parties on 27
October 1997 fixing a liquidated amount of P70,000 as actual damages, and leaving the matter
of moral damages to the discretion of the court. The trial court was not inclined to award moral
damages because the "evidence before it tends to disclose that on the night of 6 May 1997, before
she died, Editha was a much-neglected child."
Accordingly, in its decision8 of 12 February 1998, the trial court decreed:
WHEREFORE, his guilt having been established beyond a reasonable doubt, the Court hereby
convicts the accused RADEL GALLARDE Y HERMOSA of the crime of MURDER, and sentences
him to suffer the penalty of reclusion perpetua and to indemnify the heirs of the late Editha Talan
in the negotiated sum of P70,000.00.9cräläwvirtualibräry
His motion for reconsideration,10 having been denied by the trial court in its Resolution 11 of 28
February 1998, GALLARDE seasonably appealed to us.
We accepted the appeal on 9 September 1998.
In his Appellants Brief filed on 16 March 1999, GALLARDE alleges that the trial court committed
the following errors:
1....... In convicting [him] of the crime of murder in an information for rape with homicide. X
2....... In concluding that the prosecution has proven beyond reasonable doubt that [he] was
responsible for the death of Editha Talan.
3....... In not acquitting [him] on the ground of notches of proof beyond reasonable
doubt.12cräläwvirtualibräry
We sustain GALLARDEs contention that the trial court erred in convicting him of murder in an
information charging him of rape with homicide. A reading of the accusatory portion of the
information shows that there was no allegation of any qualifying circumstance. Although it is true
that the term "homicide" as used in special complex crime of rape with homicide is to be
understood in its generic sense, and includes murder and slight physical injuries committed by
reason or on the occasion of rape,13 it is settled in this jurisdiction that where a complex crime is
charged and the evidence fails to support the charge as to one of the component offense, the
accused can be convicted of the other.14 In rape with homicide, in order to be convicted of murder
in case the evidence fails to support the charge of rape, the qualifying circumstance must be
sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be
informed of the nature of the offense with which he is charged. 15 It is fundamental that every
element of the offense must be alleged in the complaint or information. The main purpose of
requiring the various elements of a crime to be set out in an information is to enable the accused
to suitably prepare his defense. He is presumed to have no independent knowledge of the facts
that constitute the offense.16cräläwvirtualibräry
In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE
cannot be convicted of murder. An accused cannot be convicted of an offense higher than that
with which he is charged in the complaint or information under which he is tried. It matters not
how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted
of any offense, unless it is charged in the complaint or information for which he is tried, or is
necessarily included in that which is charged. He has a right to be informed of the nature of the
offense with which he is charged before he is put on trial. To convict an accused of a higher
offense than that charged in the complaint or information under which he is tried would be an
unauthorized denial of that right.17x
Nevertheless, we agree with the trial court that the evidence for the prosecution, although
circumstantial, was sufficient to establish beyond reasonable doubt the guilt of GALLARDE for
the death of EDITHA.
Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may
draw its conclusion and finding of guilt.18 The prosecution is not always tasked to present direct
evidence to sustain a judgment of conviction; the absence of direct evidence does not necessarily
absolve an accused from any criminal liability.19 Even in the absence of direct evidence, conviction
can be had on the basis of circumstantial evidence, provided that the established circumstances
constitute an unbroken chain which leads one to one fair and reasonable conclusion which points
to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved
must be consistent with each other, consistent with the hypothesis that the accused is guilty, and
at the same time inconsistent with any other hypothesis except that of guilty. 20cräläwvirtualibräry
The rules on evidence and precedents sustain the conviction of an accused through circumstantial
evidence, as long as the following requisites are present: (1) there must be more than one
circumstance; (2) the inference must be based on proven facts; and (3) the combination of all
circumstances produces a conviction beyond doubt of the guilt of the accused. 21cräläwvirtualibräry
The importance of circumstantial evidence is more apparent in the prosecution of cases of rape
with homicide. The nature of the crime of rape, where it is usually only the victim and the rapist
who are present at the scene of the crime, makes prosecutions for the complex crime of rape with
homicide particularly difficult since the victim can no longer testify against the perpetrator of the
crime. In these cases pieces of the evidence against the accused are usually
circumstantial.22cräläwvirtualibräry
The circumstantial evidence in the case at bar, when analyzed and taken together, leads to no
other conclusion than that GALLARDE, and no other else, killed EDITHA and that he is guilty
therefor. We quote with approval the lower courts enumeration of the circumstantial evidence in
this case:
1. Gallarde, 18, and Editha, 10, were neighbors and friends, even as she used to frequent his
place.
2. Both were at the Talan residence on the night of May 6, 1997 while neighbors indulged
themselves in beer.
3. Among said neighbors Cabinta saw them hand in hand by the toilet situated five (5) meters
east of the Talan kitchen.
4. After Cabinta whistled he saw Gallarde run home towards north after letting go of Edithas
hands. Neighbor Clemente also noticed that Gallarde disappeared, and that Editha returned to
the kitchen.
5. Cabinta followed Editha back to the kitchen, and saw her holding a kerosene lamp. She told
him that she was going to look for "Dalpac," and off she went in the same direction Gallarde took.
6. Gallarde wore short pants and rubber slippers at the drinking place. Subsequently he was seen
wearing shorts in his own toilet.
7. At past 10:00 in the evening during an intensive search for the then missing Editha, her lifeless
body was found in a shallow grave situated some distance behind Gallardes residence.
8. Before Edithas body was discovered, a searcher found a girls slipper (Exh. "B"), 5-6 inches
long, among thickets seven meters away from Gallardes house.
9. Another searcher saw a second slipper (Exh. "B-1"), of the same color and size as the first one.
Both slippers were Edithas, the searchers recalled.
10. A third rubber slipper (Exh. "C") was thereafter found in the field, near Exh. "B-1." It was an
old slipper, 8-9 inches long and with a hole at the rear end.
11. Soil stuck to each one of the three slippers.
12. Gallarde was not at home when searchers went to look for him there, after Cabinta told them
that Editha was last seen with Gallarde.
13. When Gallarde was discovered squatting in the dark toilet behind his house and beside the
thickets, his shorts were up and on. His hands and knees were soiled.
14....... At the toilet he was asked the innocent question of where Editha was and he answered
revealingly, thus: "I did not do anything to her" and "I let her go and brought her back to the dike
and let her go home."
15. When asked where he had been, as the toilet was first seen empty, Gallarde said he was with
Kiko and he slept at the latters house, which answer Mario Bado promptly refuted saying, "Vulva
of your mother Kiko was with me drinking." Bado and Kiko were not at the place of the Talans that
night.
16. Yanked out of the dark toilet near his own house, Gallarde joined Kgd. Mario Fernandez sans
protest.
17. Dr. Tebangin found on Edithas cheeks two slit wounds, each being an inch away from her
nostrils. Both wounds were fresh and reddish.
...... From the lower portion of Edithas vagina blood oozed, accompanied by dirt.
...... Her hymen was ruptured and was still bleeding.
...... The medico-legal concluded that there must have been a forceful covering of Edithas nose
and mouth because of the presence of the slit wounds on both sides of her face, and that in 30
seconds unconsciousness and weakening resulted, with the vaginal injuries contributing to her
death.23cräläwvirtualibräry
As to the crime of rape, there is much to be desired with respect to the prosecutions evidence
therefor, but not for the reason adduced by the trial court, namely, the absence of spermatozoa
in EDITHAs private part and thereabout. It is well settled that the absence of spermatozoa in or
around the vagina does not negate the commission of rape. 24 Our doubt on the commission of
rape is based on the fact that there is at all no convincing proof that the laceration of the vagina
and the rupture of the hymen of EDITHA were caused in the course of coitus or by a male organ.
Our meticulous reading of the testimony of Dr. Tebangin disclosed that he was never asked if the
laceration and the rupture could have been caused by the penis of a human being. Needless to
state, these could have been caused by any object other than the penis of a person.
We cannot sustain the contention of GALLARDE that he was not positively identified as the
assailant since there was no eyewitness to the actual commission of the crime. It does not follow
that although nobody saw GALLARDE in the act of killing EDITHA, nobody can be said to have
positively identified him. Positive identification pertains essentially to proof of identity and not per
se to that of being an eyewitness to the very act of commission of the crime. There are two types
of positive identification. A witness may identity a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a witness may
not have actually seen the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the
person or one of the persons last seen with the victim immediately before and right after the
commission of the crime. This is the second type of positive identification, which forms part of
circumstantial evidence, which, when taken together with other pieces of evidence constituting an
unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the
author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones
allowed to possibly positively identify a suspect or accused to the exclusion of others, then nobody
can ever be convicted unless there is an eyewitness, because it is basic and elementary that
there can be no conviction until and unless an accused is positively identified. Such a proposition
is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not
the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. 25 If resort to
circumstantial evidence would not be allowed to prove identity of the accused on the absence of
direct evidence, then felons would go free and the community would be denied proper protection.
As discussed above, the circumstantial evidence as established by the prosecution in this case
and enumerated by the trial court positively established the identity of GALLARDE, and no one
else, as the person who killed EDITHA.
We cannot agree with the trial courts rejection of the photographs (Exhibits "I," "J" and "K") taken
of GALLARDE immediately after the incident on the ground that "the same were taken while
[GALLARDE] was already under the mercy of the police." The taking of pictures of an accused
even without the assistance of counsel, being a purely mechanical act, is not a violation of his
constitutional right against self-incrimination.
The constitutional right of an accused against self-incrimination26 proscribes the use of physical
or moral compulsion to extort communications from the accused and not the inclusion of his body
in evidence when it may be material. Purely mechanical acts are not included in the prohibition
as the accused does not thereby speak his guilt, hence the assistance and guiding hand of
counsel is not required.27 The essence of the right against self-incrimination is testimonial
compulsion, that is, the giving of evidence against himself through a testimonial act. 28 Hence, it
has been held that a woman charged with adultery may be compelled to submit to physical
examination to determine her pregnancy; 29 and an accused may be compelled to submit to
physical examination and to have a substance taken from his body for medical determination as
to whether he was suffering from gonorrhea which was contracted by his victim;30 to expel
morphine from his mouth;31 to have the outline of his foot traced to determine its identity with
bloody footprints;32 and to be photographed or measured, or his garments or shoes removed or
replaced, or to move his body to enable the foregoing things to be done. 33cräläwvirtualibräry
There is also no merit in GALLARDEs argument that the failure of the prosecution to prove beyond
reasonable doubt the place and time of the commission of the crime is fatal and will justify his
acquittal.
The place, time and date of the commission of the offense are not essential elements of the crime
of rape with homicide. The gravamen of the offense is the carnal knowledge of a woman and that
on the occasion of or as a reason thereof, the crime of homicide was committed. Conviction may
be had on proof of the commission of the crime provided it appears that the specific crime charged
was in fact committed prior to the date of the filing of the complaint or information, within the period
of the statute of limitation, and within the jurisdiction of the court. 34cräläwvirtualibräry
The allegation of the place of commission of the crime in the complaint or information is sufficient
if it can be understood therefrom that the offense was committed or some of the essential
ingredients thereof occurred at some place within the jurisdiction of the court. 35 The rule merely
requires that the information shows that the crime was committed within the territorial jurisdiction
of the court. The Court may even take judicial notice that said place is within its
jurisdiction.36cräläwvirtualibräry
As to the time of the commission of the crime, the phrase "on or about" employed in the
information does not require the prosecution "to prove any precise date or time," but may prove
any date or time which is not so remote as to surprise and prejudice the
defendant."37chanroblesvirtuallawlibrary
Contrary to the claim of GALLARDE, the prosecution was able to establish the proximate time of
the commission of the crime, which was sometime between 9:00 p.m., when GALLARDE left the
house of Talan followed by EDITHA, and 10:30 p.m., when the body of EDITHA was found. This
was further corroborated by the examining physician who testified, on the basis of the degree of
rigor mortis, that EDITHA died more or less, at 10:00 p.m. of 6 May 1997.38cräläwvirtualibräry
Likewise, GALLARDEs alibi and bare denial deserve no consideration. He did not present
witnesses who could confirm his presence in his house. No member of his family corroborated
him on this matter. The defenses of denial and alibi, if unsubstantiated by clear and convincing
evidence, are negative and self-serving, deserve no weight in law, and cannot be given
evidentiary value over the testimony of credible witnesses who testify on affirmative matters. 39jo
Moreover, even assuming that GALLARDEs claim is true, his stay in his house did not preclude
his physical presence at the locus criminis or its immediate vicinity. The place where the body of
EDITHA was found buried was a few meters from his house, the place pointed to in the alibi and
can be reached in a short while. For the defense of alibi to prosper, the requirements of time and
place must be strictly met. It is not enough to prove that the accused was somewhere else when
the crime was committed, he must demonstrate that it was physically impossible for him to have
been at the scene of the crime at the time of its commission.40cräläwvirtualibräry
Besides, no evil motive has been established against the witnesses for the prosecution that might
prompt them to incriminate the accused or falsely testify against him. It is settled that when there
is no showing that the principal witnesses for the prosecution were actuated by improper motive,
the presumption is that the witnesses were not so actuated and their testimonies are thus entitled
to full faith and credit.41 Testimonies of witnesses who have no motive or reason to falsify or
perjure their testimonies should be given credence. 42cräläwvirtualibräry
With respect to GALLARDEs claim that he was arrested without warrant, suffice it to say that any
objection, defect, or irregularity attending an arrest must be made before the accused enters his
plea.43 The records show no objection was ever interposed prior to arraignment and trial. 44
GALLARDEs assertion that he was denied due process by virtue of his alleged illegal arrest is
negated by his voluntary submission to the jurisdiction of the trial court, as manifested by the
voluntary and counsel-assisted plea he entered during arraignment and by his active participation
in the trial thereafter.45 It is settled that any objection involving a warrant of arrest or procedure in
the acquisition by the court of jurisdiction over the person of an accused must be made before he
enters his plea, otherwise the objection is deemed waived. 46 It is much too late in the day to
complain about the warrantless arrest after a valid information had been filed and the accused
arraigned and trial commenced and completed and a judgment of conviction rendered against
him.47 Verily, the illegal arrest of an accused is not sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after trial free from error; such arrest does not
negate the validity of the conviction of the accused.48cräläwvirtualibräry
Homicide, which we find to be the only crime committed by GALLARDE, is defined in Article 249
of the Revised Penal Code and is punished with reclusion temporal. In the absence of any
modifying circumstance, it shall be imposed in its medium period. GALLARDE is entitled to the
benefits of the Indeterminate Sentence Law. Accordingly, he can be sentenced to suffer an
indeterminate penalty ranging from ten (10) years of the medium period of prision mayor as
minimum to seventeen (17) years and four (4) months of the medium period of reclusion temporal
as maximum.
As to the civil aspect of the case, the parties agreed on P70,000 as liquidated damages. This
should be construed as actual damages. However, as indemnity for death, the additional sum of
P50,000, per current case law, should be awarded.
WHEREFORE , the assailed decision of the Regional Trial Court, Branch 51, Tayug, Pangasinan,
in Criminal Case No. T-1978 finding accused-appellant RADEL GALLARDE guilty of the crime of
murder is hereby modified. As modified, RADEL GALLARDE is hereby found guilty beyond
reasonable doubt, as principal, of the crime of Homicide, defined under Article 249 of the Revised
Penal Code, and is hereby sentenced to suffer an indeterminate penalty ranging from ten (10)
years of the medium period of of prision mayor as minimum to seventeen (17) years and four (4)
months of the medium period of reclusion temporal as maximum, and to pay the heirs of the
victim, Editha Talan, the sum of P70,000 as liquidated actual damages and P50,000 as indemnity
for the death of Editha Talan.
Costs against accused-appellant RADEL GALLARDE in both instances.
SO ORDERED.