EN BANC [G.R. No. 82585. November 14, 1988.] MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K.

AGCAOILI, and GODOFREDO L. MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA AND PRESIDENT CORAZON C. AQUINO, respondents. [G.R. No. 82827. November 14, 1988.] LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, AND THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents. [G.R. No. 83979. November 14, 1988.] LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE FISCAL OF MANILA JESUS F. GUERRERO, AND JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents. Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Perfecto V . Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. No. 82827 and 83979. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW; RESPONDENT IN A CRIMINAL CASE NEED NOT FILE HIS COUNTER-AFFIDAVITS BEFORE PRELIMINARY INVESTIGATION IS DEEMED COMPLETED. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. 2. ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS; ISSUANCE OF WARRANT OF ARREST; PROBABLE CAUSE; THE JUDGE HAS EXCLUSIVE AND PERSONAL RESPONSIBILITY TO DETERMINE EXISTENCE OF; THE PRESIDENT. This case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. 3. ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL PROSECUTION; SUPREME COURT SHOULD DRAW THE DEMARCATION LINE WHERE HARASSMENT GOES BEYOND USUAL DIFFICULTIES ENCOUNTERED BY ANY ACCUSED. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government

handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. 4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; WHILE DEFAMATION IS NOT AUTHORIZED, CRITICISM IS TO BE EXPECTED AND SHOULD BE BORNE FOR THE COMMON GOOD. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. 5. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; LIBEL; RULES THEREON SHOULD BE EXAMINED FROM VARIOUS PERSPECTIVES IF DIRECTED AT A HIGH GOVERNMENT OFFICIAL; THE SUPREME COURT SHOULD DRAW A FINE LINE INSTEAD OF LEAVING IT TO A LOWER TRIBUNAL. In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. 6. ID.; ID.; FREEDOM OF EXPRESSION; SAFEGUARDS IN THE NAME THEREOF SHOULD BE FAITHFULLY APPLIED IN TRIAL OF LIBEL CASE. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied. GUTIERREZ, JR., J., concurring: 1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; COURT SHOULD NOT HESITATE TO QUASH A CRIMINAL PROSECUTION IN INTEREST OF MORE ENLIGHTENED AND SUBSTANTIAL JUSTICE. Consistent with our decision in Salonga v. Cruz Pao (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. 2. ID.; ID.; PROSECUTION OF OFFENSES; LIBEL; CASE NOT A SIMPLE PROSECUTION THEREFOR WHERE COMPLAINANT IS THE PRESIDENT; JUDGE NOT REQUIRED TO PERSONALLY EXAMINE COMPLAINANT AND HIS WITNESSES. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 3. ID.; EXECUTIVE DEPARTMENT; PRESIDENT; IMMUNITY FROM SUIT; RATIONALE. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder's time, also demands undivided attention.

4. ID.; ID.; ID.; ID.; PRIVILEGE PERTAINS TO PRESIDENT BY VIRTUE OF THE OFFICE AND MAY BE INVOKED ONLY BY HOLDER OF OFFICE. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. 5. ID.; ID.; ID.; ID.; EXERCISE OF PRIVILEGE IS SOLELY THE PRESIDENT'S PREROGATIVE. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. RESOLUTION PER CURIAM p: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioner's contention that they have been denied the administrative remedies available under the law has lost factual support. It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counteraffidavits, he filed a "Motion to Declare Proceeding Closed", in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the

witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit". He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the officeholder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point. The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Separate Opinions GUTIERREZ, JR., J ., concurring: I concur with the majority opinion insofar as it revolves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pao (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in s seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx

". . . No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. 'In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious. Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). The United States Supreme Court is even more emphatic, to wit: "In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet 'libel' than we have to other 'mere labels' of state law. N.A.A.C.P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. xxx xxx xxx

"Those who won our independence believed .. that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law the argument of force in its worst form. . . . "Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. . . " (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to deter the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers stand in the way of public duty. But why should we subject them to this problem? And why should we allow possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult is involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said. "If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression."

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied. FIRST DIVISION [G.R. No. 144692. January 31, 2005.] CELSA P. ACUA, petitioner, vs. DEPUTY OMBUDSMAN FOR LUZON, PEDRO PASCUA and RONNIE TURLA, (Angeles City National Trade School), respondents. Public Attorney's Office for petitioner. Renato H. Collado for respondents. SYLLABUS 1. REMEDIAL LAW; APPEALS; REPUBLIC ACT NO. 6770, SECTION 27 THEREOF; DOES NOT APPLY TO APPEALS FROM THE OMBUDSMAN'S RULINGS IN CRIMINAL CASES. Private respondents contend that petitioner filed this petition beyond the ten-day period provided in Section 27 of Republic Act No. 6770. The contention has no merit. Section 27 is no longer in force because this Court in Fabian v. Desierto declared it unconstitutional for expanding the Court's jurisdiction without its consent in violation of Article VI, Section 30 of the Constitution. Furthermore, Section 27 relates only to appeals from rulings of the Ombudsman in administrative disciplinary cases. It does not apply to appeals from the Ombudsman's rulings in criminal cases such as the present case. HcISTE 2. ID.; SPECIAL CIVIL ACTIONS; PETITION FOR CERTIORARI BEFORE THE SUPREME COURT; PROPER REMEDY OF A PARTY AGGRIEVED BY ORDERS OR DECISIONS OF THE OMBUDSMAN IN CRIMINAL CASES; TIME FOR FILING; CASE AT BAR. The remedy of an aggrieved party in criminal complaints before the Ombudsman is to file with this Court a petition for certiorari under Rule 65. Thus, we held in Tirol, Jr. v. Del Rosario: The Ombudsman Act specifically deals with the remedy of an aggrieved party from orders, directives and decisions of the Ombudsman in administrative disciplinary cases. As we ruled in Fabian, the aggrieved party [in administrative cases] is given the right to appeal to the Court of Appeals. Such right of appeal is not granted to parties aggrieved by orders and decisions of the Ombudsman in criminal cases, like finding probable cause to indict accused persons. However, an aggrieved party is not without recourse where the finding of the Ombudsman . . . is tainted with grave abuse of discretion, amounting to lack [or] excess of jurisdiction. An aggrieved party may file a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner precisely availed of such remedy when she filed this petition for certiorari under Rule 65 alleging that public respondent gravely abused his discretion in dismissing her complaint against private respondents. Under Section 4 of Rule 65, as amended, petitioner had 60 days from her receipt of the 19 June 2000 Order within which to file this petition. Petitioner received a copy of the 19 June 2000 Order on 13 July 2000. Thus, petitioner had until 11 September 2000 within which to file this petition. Petitioner did so on 11 August 2000. Hence, petitioner filed this petition on time. 3. ID.; ID.; ID.; GRAVE ABUSE OF DISCRETION; WHEN PRESENT. There is grave abuse of discretion where power is exercised in arbitrary or despotic manner by reason of passion or hostility. The abuse must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty or to act at all in contemplation of law. No such conduct can be imputed on public respondent. Public respondent disposed of petitioner's complaint consistent with applicable law.

4. ID.; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATIONS; PROBABLE CAUSE, DEFINED. Petitioner contends that public respondent committed grave abuse of discretion in dismissing her complaint for perjury for lack of probable cause. The contention is untenable. Probable cause, as used in preliminary investigations, is defined as the "existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted". 5. POLITICAL LAW; ACCOUNTABILITY OF PUBLIC OFFICERS; OFFICE OF THE OMBUDSMAN; COURT WILL NOT INTERFERE WITH THE OMBUDSMAN'S EXERCISE OF HIS INVESTIGATORY AND PROSECUTORY POWERS; REASON. We reiterate this Court's policy of non-interference with the Ombudsman's exercise of his constitutionally mandated prosecutory powers. We explained the reason for such policy in Ocampo, IV v. Ombudsman: The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant. The Court, in the present case, finds no reason to deviate from this long-standing policy. cHDaEI 6. CRIMINAL LAW; PERJURY; ELEMENTS; NOT PRESENT IN CASE AT BAR. The elements of perjury under Article 183 of the Revised Penal Code are: (a) that the accused made a statement under oath or executed an affidavit upon a material matter; (b) that the statement or affidavit was made before a competent officer, authorized to receive and administer oath; (c) that in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and, (d) that the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose. Public respondent correctly ruled that the first and third elements are absent here in that private respondents' statements in their counter-affidavits in OMB-ADM-1-99-0387 were not material to that case nor do they constitute willful and deliberate assertion of falsehood. 7. ID.; ID.; ID.; MATERIALITY; MUST BE ESTABLISHED BY EVIDENCE AND NOT LEFT TO INFERENCE; CASE AT BAR. In prosecutions for perjury, a matter is material if it is the "main fact which was the subject of the inquiry, or any circumstance which tends to prove that fact . . . ." To hold private respondents liable, there must be evidence that their assailed statements in OMB-ADM-1-990387 were the subject of inquiry in that case. Petitioner has presented no such evidence. The records are hardly helpful, as petitioner did not furnish the Court a copy of her complaint in OMB-ADM-1-990387. What is before the Court is a portion of respondent Pascua's counter-affidavit in that case as quoted by public respondent in his 4 April 2000 Resolution. Admittedly, some inference is possible from this quoted material, namely, that the basis of petitioner's complaint in OMB-ADM-1-99-0387 is that respondent Pascua prevented her from taking part in the 16 July 1998 meeting. However, it would be improper for the Court to rely on such inference because the element of materiality must be established by evidence and not left to inference. At any rate, petitioner's complaint for perjury will still not prosper because respondent Pascua's statement that OMB-ADM-1-99-0387 is significantly the same as petitioner's and Yabut's administrative complaint against respondent Pascua before the DECS is immaterial to the inferred issue. 8. ID.; ID.; ID.; WILLFUL AND DELIBERATE ASSERTION OF FALSEHOOD; GOOD FAITH OR LACK OF MALICE IS A VALID DEFENSE; CASE AT BAR. The third element of perjury requires that the accused willfully and deliberately assert a falsehood. Good faith or lack of malice is a valid defense. Here, the Court finds that respondent Pascua's statement in his counter-affidavit in OMB-ADM-1-99-0387 that he

called the 16 July 1998 meeting does not constitute a deliberate assertion of falsehood. While it was Yabut and some unidentified ACNTS personnel who requested a dialogue with respondent Pascua, it was respondent Pascua's consent to their request which led to the holding of the meeting. Thus, respondent Pascua's statement in question is not false much less malicious. It is a good faith interpretation of events leading to the holding of the meeting. AacDHE DECISION CARPIO, J p: The Case This is a petition for certiorari 1 of the Resolution dated 4 April 2000 and the Order dated 19 June 2000 of the Deputy Ombudsman for Luzon. The 4 April 2000 Resolution dismissed for lack of probable cause the complaint for perjury of petitioner Celsa P. Acua against respondents Pedro Pascua and Ronnie Turla. The 19 June 2000 Order denied the motion for reconsideration. aIcTCS The Facts Petitioner Celsa P. Acua ("petitioner") is a former teacher of the Angeles City National Trade School ("ACNTS") in Angeles City, Pampanga. Respondent Pedro Pascua ("respondent Pascua") was ACNTS' Officer-In-Charge while respondent Ronnie Turla ("respondent Turla") was a member of its faculty. 2 On 13 July 1998, a certain Erlinda Yabut ("Yabut"), another ACNTS teacher, together with other school personnel, requested a dialogue with respondent Pascua on some unspecified matter. Respondent Pascua agreed to the request and the meeting took place on 16 July 1998. Respondent Turla attended the meeting upon respondent Pascua's directive. Petitioner, whom Yabut apparently invited, also attended the meeting. aCSDIc As an offshoot to an incident during the 16 July 1998 meeting, petitioner charged respondent Pascua with misconduct ("OMB-ADM-1-99-0387") and with violation of Article 131 3 of the Revised Penal Code ("OMB 1-99-903") before the Office of the Ombudsman ("Ombudsman"). 4 In his sworn counteraffidavit in OMB-ADM-1-99-0387, respondent Pascua alleged, among others, that: (1) OMB-ADM-1-990387 is a "rehash and a duplication with a slight deviation of fact" of an administrative case pending with the Department of Education, Culture and Sports ("DECS") which petitioner and Yabut earlier filed against him and (2) Yabut had no authority to invite to the 16 July 1998 meeting a non-employee of ACNTS like petitioner considering that he (respondent Pascua) was the one who called the meeting. 5 Respondent Pascua also submitted a sworn statement of respondent Turla confirming that respondent Pascua and not Yabut called the 16 July 1998 meeting. 6 The Ombudsman dismissed OMB-ADM-1-99-0387 and OMB 1-99-0903. Contending that private respondents perjured themselves in their sworn statements in OMB-ADM-199-0387, petitioner charged private respondents with perjury ("OMB 1-99-2467") before the office of the Deputy Ombudsman for Luzon ("public respondent"). Petitioner alleged that private respondents were liable for perjury because: (1) the complaint she and Yabut filed against respondent Pascua before the Civil Service Commission, later endorsed to the DECS, was not "the same" as her complaint in OMB-ADM-1-99-0387 and (2) it was Yabut and not respondent Pascua who called the 16 July 1998 meeting. 7 Private respondents denied the charge against them and sought the dismissal of the complaint. 8

The Ruling of the Public Respondent Public respondent dismissed petitioner's complaint in his 4 April 2000 Resolution, 9 thus: Upon careful evaluation of the case record, we find no evidence to indict respondents for perjury. xxx xxx xxx

Public respondent, in his Comment, maintains that he did not commit grave abuse of discretion in dismissing petitioner's complaint in OMB 1-99-2467. 12 In their Comment, private respondents claim that petitioner filed this petition out of time. Hence, this petition should be dismissed outright. On the merits, private respondents submit that public respondent correctly dismissed the perjury charge against them. 13 In her Reply, petitioner counters that she timely filed her petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure ("Rule 65"). 14 The Issues The petition raises these issues:

It could not be established by the evidence on record that it was Erlinda Yabut who called the meeting on July 16, 1998 and invited complainant. Annex "B-1" . . . of the complaint is the letter of Erlinda Yabut to Dr. Pedro Pascua, dated July 13, 1998, which shows that Ms. Yabut was requesting respondent to have a dialogue (sic). The letter states: "We, the undersigned would like to request your good office to allow us to have a dialogue on Thursday, July 1[6], to once and for all ventilate our complaints/observations and also listen to the rebuttal of the other side. It is the desire of everybody who attended the meeting last time that whatever is the outcome of this confrontation will be the basis of the next appropriate step. We would like to request the incoming Administrator or somebody from the DECS to act as moderator." Pursuant to such circumstance, respondent Pascua stated, among others, in his counter-affidavit in OMB-ADM-1-99-0387 that: "5. Be that as it may, I vehemently deny the charge that I prevented Complainant Celsa Acu[]a from testifying against Mrs. Amelia Yambao on July 16, 1998 the truth of the matter being that there was no hearing or investigation conducted or called by the undersigned on said date but a dialogue among the teachers of Angeles City National Trade School which I previously headed. Mrs. Acu[]a at that time was not a teacher to attend the said dialogue, thus I stated openly on said occasion that I will not start the meeting if there are outsiders, and Mr. ROGELIO GUTIERREZ asked herein Complainant to step out of the room so we could start the dialogue, . . . ; 6. I also deny the charge that she was invited by Mrs. Erlinda Yabut, co-complainant of hers in the DECS Administrative case, because I was the one who called for that dialogue and not Mrs. Yabut, thus I never gave any authority to anyone to invite any person who was not a member of the school faculty or an employee thereof." Clearly, the letter of Ms. Yabut and the aforequoted counter-affidavit of respondent Pascua belie the commission of perjury since there was no deliberate assertion of falsehood on a material matter. CDAHaE Respondent Ronnie Turla could not likewise be indicted for the crime charged. Since it was respondent Pascua who called him to that meeting, it would be truthful of him to state that way. There was also no willful and deliberate assertion of falsehood on the part of respondent Ronnie Turla. 10 Petitioner sought reconsideration but public respondent denied her motion in the 19 June 2000 Order. Hence, petitioner filed this petition. Petitioner contends that public respondent committed grave abuse of discretion in dismissing her complaint for lack of probable cause. 11

1.

Whether petitioner filed the petition on time; and

2. Whether public respondent committed grave abuse of discretion in dismissing the complaint in OMB 1-99-2467 for lack of probable cause. The Ruling of the Court The petition, while filed on time, has no merit. The Petition was Filed on Time Private respondents contend that petitioner filed this petition beyond the ten-day period provided in Section 27 of Republic Act No. 6770. 15 Section 27 states in part: Effectivity and Finality of Decisions. . . . In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. (Emphasis supplied) The contention has no merit. Section 27 is no longer in force because this Court in Fabian v. Desierto 16 declared it unconstitutional for expanding the Court's jurisdiction without its consent in violation of Article VI, Section 30 of the Constitution. Furthermore, Section 27 relates only to appeals from rulings of the Ombudsman in administrative disciplinary cases. It does not apply to appeals from the Ombudsman's rulings in criminal cases such as the present case. 17 The remedy of an aggrieved party in criminal complaints before the Ombudsman is to file with this Court a petition for certiorari under Rule 65. Thus, we held in Tirol, Jr. v. Del Rosario: 18 The Ombudsman Act specifically deals with the remedy of an aggrieved party from orders, directives and decisions of the Ombudsman in administrative disciplinary cases. As we ruled in Fabian, the aggrieved party [in administrative cases] is given the right to appeal to the Court of Appeals. Such right of appeal is not granted to parties aggrieved by orders and decisions of the Ombudsman in criminal cases, like finding probable cause to indict accused persons.

However, an aggrieved party is not without recourse where the finding of the Ombudsman . . . is tainted with grave abuse of discretion, amounting to lack [or] excess of jurisdiction. An aggrieved party may file a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. (Emphasis supplied) Petitioner precisely availed of such remedy when she filed this petition for certiorari under Rule 65 alleging that public respondent gravely abused his discretion in dismissing her complaint against private respondents. Under Section 4 of Rule 65, as amended, petitioner had 60 days from her receipt of the 19 June 2000 Order within which to file this petition. Petitioner received a copy of the 19 June 2000 Order on 13 July 2000. Thus, petitioner had until 11 September 2000 within which to file this petition. Petitioner did so on 11 August 2000. Hence, petitioner filed this petition on time. The Public Respondent did not Gravely Abuse His Discretion in Dismissing OMB 1-99-2467 We reiterate this Court's policy of non-interference with the Ombudsman's exercise of his constitutionally mandated prosecutory powers. 19 We explained the reason for such policy in Ocampo, IV v. Ombudsman: 20 The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant. The Court, in the present case, finds no reason to deviate from this long-standing policy. Petitioner contends that public respondent committed grave abuse of discretion in dismissing her complaint for perjury for lack of probable cause. The contention is untenable. Probable cause, as used in preliminary investigations, is defined as the "existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted." 21 The elements of perjury under Article 183 22 of the Revised Penal Code are: (a) that the accused made a statement under oath or executed an affidavit upon a material matter; (b) that the statement or affidavit was made before a competent officer, authorized to receive and administer oath; (c) that in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and, (d) that the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose. 23 (Emphasis supplied) Public respondent correctly ruled that the first and third elements are absent here in that private respondents' statements in their counter-affidavits in OMB-ADM-1-99-0387 were not material to that case nor do they constitute willful and deliberate assertion of falsehood. On the Element of Materiality In prosecutions for perjury, a matter is material if it is the "main fact which was the subject of the inquiry, or any circumstance which tends to prove that fact . . . ." 24 To hold private respondents

liable, there must be evidence that their assailed statements in OMB-ADM-1-99-0387 were the subject of inquiry in that case. Petitioner has presented no such evidence. The records are hardly helpful, as petitioner did not furnish the Court a copy of her complaint in OMB-ADM-1-99-0387. aSIHcT What is before the Court is a portion of respondent Pascua's counter-affidavit in that case as quoted by public respondent in his 4 April 2000 Resolution. Admittedly, some inference is possible from this quoted material, namely, that the basis of petitioner's complaint in OMB-ADM-1-99-0387 is that respondent Pascua prevented her from taking part in the 16 July 1998 meeting. However, it would be improper for the Court to rely on such inference because the element of materiality must be established by evidence and not left to inference. 25 At any rate, petitioner's complaint for perjury will still not prosper because respondent Pascua's statement that OMB-ADM-1-99-0387 is significantly the same as petitioner's and Yabut's administrative complaint against respondent Pascua before the DECS is immaterial to the inferred issue. On the Element of Deliberate Assertion of Falsehood The third element of perjury requires that the accused willfully and deliberately assert a falsehood. Good faith or lack of malice is a valid defense. 26 Here, the Court finds that respondent Pascua's statement in his counter-affidavit in OMB-ADM-1-99-0387 that he called the 16 July 1998 meeting does not constitute a deliberate assertion of falsehood. While it was Yabut and some unidentified ACNTS personnel who requested a dialogue with respondent Pascua, it was respondent Pascua's consent to their request which led to the holding of the meeting. Thus, respondent Pascua's statement in question is not false much less malicious. It is a good faith interpretation of events leading to the holding of the meeting. Regarding respondent Pascua's allegation in his counter-affidavit in OMB-ADM-1-99-0387 that petitioner's complaint was a mere "rehash and duplication with a slight deviation of fact" of the DECS administrative case petitioner and Yabut filed against respondent Pascua, petitioner has not shown why this is false. Petitioner again did not furnish the Court a copy of her and Yabut's complaint with the DECS. Respondent Turla's statement in OMB-ADM-1-99-0387 that respondent Pascua called the 16 July 1998 meeting was a mere reiteration of what respondent Pascua told him. Consequently, it was correct for public respondent to hold that since respondent Turla merely repeated what he heard from respondent Pascua, he could not be held liable for making a false and malicious statement. IEHTaA There is grave abuse of discretion where power is exercised in arbitrary or despotic manner by reason of passion or hostility. The abuse must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty or to act at all in contemplation of law. 27 No such conduct can be imputed on public respondent. Public respondent disposed of petitioner's complaint consistent with applicable law. WHEREFORE, we DISMISS the petition. The Resolution dated 4 April 2000 and the Order dated 19 June 2000 of respondent Deputy Ombudsman for Luzon are AFFIRMED. ScEaAD SO ORDERED.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago and Azcuna, JJ., concur. EN BANC [G.R. No. 101978. April 7, 1993.] EDUARDO P. PILAPIL, petitioner, vs. SANDIGANBAYAN, FRANCIS E. GARCHITORENA and PEOPLE OF THE PHILIPPINES, respondents. Ramon A. Gonzales for petitioner. The Solicitor General for public respondents. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; ABSENCE OF PRELIMINARY INVESTIGATION, NOT A GROUND. The absence of a preliminary investigation is not a ground to quash a complaint or information under Section 3, Rule 117 of the Rules of Court. 2. ID.; ID.; PRELIMINARY INVESTIGATION; ABSENCE THEREOF DOES NOT AFFECT JURISDICTION OF COURTS NOR IMPAIR VALIDITY OF INFORMATION. The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective, but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the Information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted . . . (Sanciangco, Jr. vs. People, G.R. No. 72830, 149 SCRA 1 [1987] and reiterated in Doromal vs. Sandiganbayan, G.R. No. 85468, 177 SCRA 354 [1989]). 3. ID.; ID.; MOTION TO QUASH; LACK OF JURISDICTION BY THE COURT AS A GROUND, CONSTRUED. The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised Rules of Court refers to the lack of any law conferring upon the court the power to inquire into the facts, to apply the law and to declare the punishment for an offense in a regular course of judicial proceeding. When the court has jurisdiction, as in this case, any irregularity in the exercise of that power is not a ground for a motion to quash. 4. ID.; JURISDICTION; ABSENCE THEREOF, NOT SUBJECT TO WAIVER. Lack of jurisdiction is not waivable but absence of preliminary investigation is waivable. In fact, it is frequently waived. 5. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; NOT DENIED WHERE PETITIONER WAS REQUIRED TO ANSWER THE CHARGES AGAINST HIM. The facts on record show that in an order dated October 3, 1990, Deputy Ombudsman Domingo required petitioner to answer the charges against him as stated in the affidavits-complaints and supporting documents thereto. Petitioner fully complied with said order and filed his and his witnesses' affidavits. In other words, petitioner was properly apprised of the act complained of and given ample opportunity to rebut the same. Thus, petitioner could not validly raise violation of his right to due process because the bases for the information filed by the Ombudsman were all reflected in the complaint and the evidence supporting it. 6. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; NOTHING MORE THAN THE SUBMISSION OF THE PARTIES' AFFIDAVITS AND COUNTER-AFFIDAVITS. In Cinco vs.

Sandiganbayan, (G.R. Nos. 92362-67, 202 SCRA 727 [1991]) this Court held that preliminary investigation is nothing more than the submission of the parties' respective affidavits, counteraffidavits and evidence to buttress their separate allegations. 7. ID.; ID.; ID.; MERELY INQUISITORIAL. Preliminary investigation is merely inquisitorial, and it is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. 8. ID.; ID.; NATURE OF CRIMINAL CHARGES DETERMINED BY ACTUAL RECITAL OF FACTS. The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information. . . . it is not the technical name given by the Fiscal appearing in the title of the information that determines the character of the crime but the facts alleged in the body of the Information. 9. ID.; ID.; PRELIMINARY INVESTIGATION; DEEMED WAIVED BY FAILURE TO SEASONABLY INVOKED RIGHT THERETO. The right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. Failure of accused to invoke his right to a preliminary investigation constituted a waiver of such right and any irregularity that attended it. The right may be forfeited by inaction and can no longer be invoked for the first time at the appellate level. 10. ID.; ID.; ID.; MAY BE AVAILED OF EVEN AFTER THE CASE HAS BEEN FILED. Under the last paragraph of Section 7, Rule 112 of 1985 Rules on Criminal Procedure, the right to ask for preliminary investigation is recognized even after the case has already been filed. 11. ID.; ID.; PROBABLE CAUSE, DEFINED. Probable cause has been defined in the leading case of Buchanan vs. Vda. de Esteban (32 Phil. 365) as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. 12. ID.; SPECIAL CIVIL ACTION; CERTIORARI; FINDING BY THE SANDIGANBAYAN OF PROBABLE CAUSE FOR VIOLATION OF ANTI-GRAFT AND PRACTICES ACT, NOT IN EXCESS OF JURISDICTION NOR WITH GRAVE ABUSE OF DISCRETION. Having found that respondent court has not acted in excess of jurisdiction nor with grave abuse of discretion in finding the existence of probable cause in the case at bar and consequently, in denying the motion to quash and motion for reconsideration of petitioner, We dismiss as clearly unfounded the insinuations of petitioner that Presiding Justice Francis Garchitorena used the influence of his office in initiating the complaint against him. We agree with respondent court that the act of bringing to the attention of appropriate officials possible transgression of the law is as much an obligation of the highest official of the land as it is the responsibility of any private citizen. DECISION NOCON, J p: In this petition for certiorari and mandamus, petitioner seeks to annul the resolutions of respondent Sandiganbayan in Criminal Case No. 16672, entitled "People of the Philippines vs. Eduardo P. Pilapil" dated June 27, 1991 denying his motion to quash the information for Violation of Section 3(e) of

Republic Act No. 3019, as amended. as well as the resolution dated September 5, 1991 denying his motion for reconsideration. Petitioner predicated his motion to quash on the ground of lack of jurisdiction over his person because the same was filed without probable cause. In addition thereto, petitioner cites the fact that the information for violation of the Anti-Graft Law was filed although the complaint upon which the preliminary investigation was conducted is for malversation. LexLib The antecedent facts of the case are as follows: On October 16, 1987, the Philippine Charity Sweepstakes Office (PCSO) donated one ambulance (a Mitsubishi L-300) to the Municipality of Tigaon, Camarines Sur. Petitioner, who is the Congressman of the 3rd District of Camarines Sur, received the ambulance in behalf of the municipality. However, he did not deliver the ambulance to said municipality. Unaware of the donation, the Sangguniang Bayan of the municipality passed a resolution (Resolution No. 16, Series of 1988) requesting PCSO for an ambulance. Said request was reiterated in their Resolution No. 117, Series of 1988. The mayor of the municipality, Eleanor P. Lelis, thereafter sought the intercession of Sandiganbayan Presiding Justice Francis Garchitorena, who is from the said municipality, regarding said request. Thereafter, Justice Garchitorena contacted the PCSO and learned about the ambulance previously donated by the latter to Tigaon through petitioner. He accordingly informed Mayor Lelis that the municipality's request cannot be favorably acted upon in view of the previous donation. Mayor Lelis reiterated the municipality's request for an ambulance making reference to the certification of the municipal treasurer that no vehicle from the PCSO or from anyone has been received. Upon verification of the whereabouts of the Mitsubishi L-300 by the PCSO from the petitioner, the latter indicated his willingness to return the ambulance. In a letter dated December 22, 1988, he requested that said vehicle be donated instead to the Municipality of Tinambac, same province. Finally, on December 26. 1988, he personally returned the ambulance, then already painted to cover the logo of the PCSO and the other markings thereon. With the return of the Mitsubishi L-300 to the PCSO, the Municipality of Tigaon, through Mayor Lelis, finally received a brand new Besta Kia Ambulance unit complete with all accessories. On January 2, 1989, Justice Garchitorena wrote the then Chief Justice Marcelo B. Fernan relating to him the whole story of the ambulance. On January 25, 1989, Justice Garchitorena also sent Deputy Ombudsman Jose C. Colayco a lettercomplaint against petitioner regarding said ambulance. Said letter-complaint was referred by Ombudsman Conrado M. Vasquez to the Deputy Ombudsman for Luzon, Manuel C. Domingo, for appropriate action. Thereupon, Deputy Ombudsman Domingo required Justice Garchitorena to submit all relevant records and documents, as well as his affidavit and those of his witnesses. Failing in this regard, Justice Garchitorena was requested anew to comply. In his stead, Anthony D. Jamora, the Regional manager of the Special Projects Department of the PCSO and Mayor Lelis of Tigaon, Camarines Sur, submitted their respective affidavits. On October 3, 1990, Deputy Ombudsman Domingo issued an order requiring petitioner to submit his counter-affidavit, affidavits of his witnesses and other controverting evidence. This order was captioned as Case No. OMB-1-89-0168 for "Malversation of Public Property under Article 217 of the Revised Penal Code."

On October 22, 1990, petitioner submitted his counter-affidavit denying the imputation of said offense claiming that the vehicle was not equipped with any medical attachments or facilities so he was constrained to request PAGCOR for assistance to finance its conversion into a medical ambulance which is evidenced by his letter dated November 15, 1987 to Mrs. Alice Reyes. He claimed that it was only on April 28, 1988 that PAGCOR acted on his request, but in lieu of financial assistance, said office donated accessories, which can be installed at an estimated cost of P5,000.00. Thus, he allegedly made personal representations with PAGCOR for the latter to shoulder the expenses of the installation. While awaiting for the financial assistance, petitioner claimed, in explanation why the logo of PCSO and the other markings on the vehicle were removed, that he acceded to the suggestion of his staff to include the name of PAGCOR on the sides of the ambulance in view of the substantial contribution of the latter. cdphil On December 5, 1990, Ombudsman Investigator Isaac D. Tolentino issued a resolution finding no probable cause for malversation and recommended that the case be dismissed, which recommendation was approved by Deputy Ombudsman Domingo. On January 5, 1991, Assistant Ombudsman Abelardo Aportadera, Jr. recommended the disapproval of the aforesaid resolution and instead, suggested the filing of criminal information for violation of Article 217 of the Revised Penal Code. This was followed by another resolution to the same effect by Special Prosecution Officer Wilfredo Orencia dated February 14, 1991. On April 1, 1991, Ombudsman Conrado Vasquez issued a resolution sustaining the finding of Ombudsman Investigator Tolentino that there is no malversation but found in the same resolution, a prima facie case for violation of Section 3(e) of Republic Act No. 3019, the dispositive part of which states: "WHEREFORE, it is hereby directed that the information to be filed against the respondent should be for a violation of Section 3(e) of R.A. 3019." 1 On April 3, 1991, an information for violation of Section 3(e) of Republic Act No. 3019, docketed as Criminal Case No. 16672, against petitioner was filed, to wit: "The undersigned Special Prosecution Officer III accuses EDUARDO P. PILAPIL of the crime for 'Violation of Section 3(e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: 'That on or about October 16, 1987 and subsequent thereto, in the Municipality of Tigaon, Province of Camarines Sur and within the jurisdiction of this Honorable Court, the accused is a public officer, he being the Congressman of the Third Congressional District of Camarines Sur, while in the discharge of his official functions and taking advantage of his public position, acted with manifest partiality and evident bad faith, did then and there willfully cause undue injury to the Municipality of Tigaon, Camarines Sur, when he failed to deliver the ambulance, Mitsubishi Van L-300, received by him on behalf of the said municipality in a Deed of Donation executed by the Philippine Charity Sweepstakes Office in its favor, to the prejudice and damage of the said municipal government. CONTRARY TO LAW." 2 On April 12, 1991, a warrant of arrest was issued against petitioner. On April 18, 1991, he was allowed to deposit the sum of P15,000.00 in court to be considered as bail bond and the warrant of arrest was recalled.

On May 2, 1991, petitioner filed a motion to quash on the ground that respondent Sandiganbayan has no jurisdiction over his person because the information was filed without probable cause since there is absolutely no proof adduced in the preliminary investigation of any of the elements of the crime defined in Section 3(e) of Republic Act No. 3019. On June 27, 1991, respondent court denied the said motion to quash holding that the factual and legal issues and/or questions raised are evidentiary in nature and are matters of defense, the validity of which can be best passed upon after a full-blown trial on the merits. On September 5, 1991, respondent court denied petitioner's motion for reconsideration of the said resolution and set the arraignment of petitioner on October 21, 1991 at 8:30 a.m. On October 12, 1991, petitioner filed the present petition and by reason of such filing, respondent court ordered that the arraignment be held in abeyance. Petitioner enumerates the following as his reasons for filing the petition: "I. THAT RESPONDENT COURT IS ACTING WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION TO QUASH. II. THAT RESPONDENT COURT IS NEGLECTING A LEGAL DUTY IN NOT QUASHING THE INFORMATION OR DISMISSING THE CASE. III. THAT PETITIONER HAS NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW EXCEPT THE PRESENT PETITION." 3 Stated otherwise, the issue in this case is whether or not the Sandiganbayan committed grave abuse of discretion in denying petitioner's motion to quash and motion for reconsideration. Petitioner harps on the lack of preliminary investigation on the specific charge of violation of Sec. 3(e), Republic Act No. 3019, as amended, filed before the Sandiganbayan. He alleges that the preliminary investigation was conducted for the charge of malversation. cdphil At the outset, this Court bears mention of the rudimentary rule that the absence of a preliminary investigation is not a ground to quash a complaint or information under Section 3, Rule 117 of the Rules of Court. The proper procedure in case of lack of preliminary investigation is to hold in abeyance the proceedings upon such information and the case remanded to the Office of the Provincial Fiscal or the Ombudsman, for that matter, for him or the Special Prosecutor to conduct a preliminary investigation. 4 Thus, We enunciated in Sanciangco, Jr. vs. People, 5 and reiterated in Doromal vs. Sandiganbayan, 6 that: "The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective, but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the Information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted . . ." Petitioner takes exception to the doctrine and urges this Court to take a second look arguing that lack of preliminary investigation affects the court's jurisdiction because it is violative of due process. He reasons out that jurisprudence abounds with the rule that denial of due process is grave jurisdictional defeat rendering the judgment void.

We are not persuaded. The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised Rules of Court refers to the lack of any law conferring upon the court the power to inquire into the facts, to apply the law and to declare the punishment for an offense in a regular course of judicial proceeding. When the court has jurisdiction, as in this case, any irregularity in the exercise of that power is not a ground for a motion to quash. Reason is not wanting for this view. Lack of jurisdiction is not waivable but absence of preliminary investigation is waivable. In fact, it is frequently waived. We now come to the question of whether there was no preliminary investigation conducted in this case necessitating the suspension of the proceedings in the case until after the outcome of such preliminary investigation. The facts on record show that in an order dated October 3, 1990, Deputy Ombudsman Domingo required petitioner to answer the charges against him as stated in the affidavits-complaints and supporting documents thereto. Petitioner fully complied with said order and filed his and his witnesses' affidavits. In other words, petitioner was properly apprised of the act complained of and given ample opportunity to rebut the same. Thus, petitioner could not validly raise violation of his right to due process because the bases for the information filed by the Ombudsman were all reflected in the complaint and the evidence supporting it. In Cinco vs. Sandiganbayan, 7 this Court held that preliminary investigation is nothing more than the submission of the parties' respective affidavits, counter-affidavits and evidence to buttress their separate allegations. Petitioner attaches significance to the fact that the preliminary investigation conducted by the Ombudsman against him was under the title of "malversation." According to him, this is not sufficient to justify the filing of the charge of violation of Anti-Graft and Corrupt Practices Law. Petitioner loses sight of the fact that preliminary investigation is merely inquisitorial, and it is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. The preliminary designation of the offense in the directive to file a counter-affidavit and affidavits of one's witnesses is not conclusive. Such designation is only a conclusion of law of Deputy Ombudsman Domingo. The Ombudsman is not bound by the said qualification of the crime. Rather, he is guided by the evidence presented in the course of a preliminary investigation and on the basis of which, he may formulate and designate the offense and direct the filing of the corresponding information. In fact, even, the designation of the offense by the prosecutor in the information itself has been held inconclusive, to wit: ". . . the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information . . . it is not the technical name given by the Fiscal appearing in the title of the information that determines the character of the crime but the facts alleged in the body of the Information." 8 Petitioner cites the case of Luciano vs. Mariano, 9 in support of its view that a new preliminary investigation is needed. In said case, however, the original charge for falsification was dismissed for being without any factual or legal basis and the category of the offense was raised as the alleged violation of the Anti-Graft Law was a graver charge. In the case at bar, there is no dismissal to speak of because under the rules of procedure of the office of the Ombudsman, a complaint may be dismissed only upon the written authority or approval of the Ombudsman. Besides, even the petitioner admits that the violation of the Anti-Graft law did not raise the category of the offense of malversation. LLphil

The case of Doromal vs. Sandiganbayan, 10 also cited by petitioner as another authority, is likewise inapplicable as in said case, the information was annulled as the then incumbent Tanodbayan was without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. With the annulment of the information, this Court held that a new preliminary investigation of the charge was in order not only because the first was a nullity but also because the accused demands it as his right. In the case at bar, there is no old or new information. Only one information was filed as a result of the preliminary investigation conducted by the office of the Ombudsman. Even on the assumption that no preliminary investigation was conducted for the information filed, petitioner waived his right thereto for failure to ask the Sandiganbayan or the Ombudsman for a new preliminary investigation. On this score again, petitioner's case is different from the Luciano and Doromal cases where the attention of the lower court was called to the lack of a new preliminary investigation. Petitioner bewailed the absence of a new preliminary investigation only before this Court. It is noteworthy that his only basis for quashing the information is the alleged lack of jurisdiction of the court over his person because there is no probable cause for the filing of the information. It is well-settled that the right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. 11 Failure of accused to invoke his right to a preliminary investigation constituted a waiver of such right and any irregularity that attended it. 12 The right may be forfeited by inaction and can no longer be invoked for the first time at the appellate level. 13 Petitioner's argument that he could not have asked for a new preliminary investigation in the Office of the Ombudsman since he came to know about the charge only after the information was filed in the Sandiganbayan, is not tenable. Under the last paragraph of Section 7, Rule 112 of 1985 Rules on Criminal Procedure, the right to ask for preliminary investigation is recognized even after the case has already been filed, to wit: "If the case has been filed in court without a preliminary Investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence to his favor in the manner prescribed in this Rule." Clearly, the alleged lack of a valid preliminary investigation came only as an afterthought to gain a reversal of the denial of the motion to quash. Sad to say, this last ditch effort came a bit late. His failure to invoke this right below constituted a waiver of such right. As aforesaid, what was submitted for consideration below was the motion to quash of petitioner on the ground of want of jurisdiction by the trial court over his person because of the filing of an information without probable cause. There being no probable cause, according to petitioner, then there could be no basis to issue a warrant of arrest and hence, the respondent court had no jurisdiction over his person. Contesting the findings of respondent court that probable cause exists in this case, petitioner insists that there is no competent proof that all the elements of Section 3(e) of the Anti-Graft law are present, namely: that an act was done (1) causing undue injury to the government, (2) with manifest partiality or evident bad faith, and (3) by a public officer in the discharge of his official duties. Petitioner argues that the injury contemplated under the law is real or actual damage and since there is absolutely no proof of real or actual damages suffered by the municipality, the finding of undue

injury by the Ombudsman has no factual basis. Concomitantly, he says that since there is no undue injury, then, there can be no bad faith, as bad faith is inseparable from undue injury for undue injury must be through bad faith. He claims that failure to inform the mayor of the donation, that he returned the vehicle after one year; that he kept the vehicle in storage; and that he caused the repainting to erase the words PCSO are not evidence of bad faith since they cannot manifest a deliberate intent to do wrong or cause damage. Finally, petitioner claims that the element of "public office in the discharge of official duties" is also absent as his acceptance of the vehicle in question from PCSO and its non-delivery to the municipality of Tigaon was not done in the discharge of his duty as a congressman tasked with enacting laws. If at all, he admits, the act was done in his private capacity as political leader in his district. LLphil We agree with respondent court that the presence or absence of the elements of the crime are evidentiary in nature and are matters of defense, the truth of which can best be passed upon after a full-blown trial on the merits. Probable cause has been defined in the leading case of Buchanan vs. Vda. de Esteban 14 as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so" 15 The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. Whether an act was done causing undue injury to the government and whether the same was done with manifest partiality or evident bad faith can only be made out by proper and sufficient testimony. Necessarily, a conclusion can be arrived at when the case has already proceeded on sufficient proof. At the moment, in passing on a motion to set aside an information on the ground that the accused has been charged without probable cause, the court should not be guided by the rule that accused must be shown to be guilty beyond a reasonable doubt, but rather whether there is sufficient evidence which inclines the mind to believe, without necessarily leaving room for doubt, that accused is guilty thereof. Having thus found that respondent court has not acted in excess of jurisdiction nor with grave abuse of discretion in finding the existence of probable cause in the case at bar and consequently, in denying the motion to quash and motion for reconsideration of petitioner, We dismiss as clearly unfounded the insinuations of petitioner that Presiding Justice Francis Garchitorena used the influence of his office in initiating the complaint against him. We agree with respondent court that the act of bringing to the attention of appropriate officials possible transgression of the law is as much an obligation of the highest official of the land as it is the responsibility of any private citizen. prcd WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED for lack of merit. SO ORDERED.

Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Campos, Jr. and Quiason, JJ., concur. THIRD DIVISION [G.R. No. 142356. April 14, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. LITA AYANGAO y BATONG-OG, appellant. Yabut Yabut & Coronel Law Firm for accused-appellant. SYNOPSIS For transporting 14.75 kilograms of marijuana, appellant was found guilty of violating Section 4, Article II of the Dangerous Drugs Act. In this appeal, the Court affirmed the conviction of appellant with the corresponding penalty of reclusion perpetua and P500,000 fine. CTEaDc While appellant alleged the illegality of the warrantless arrest and of the warrantless search done against her, the Court ruled that she had waived any objection therefor when she entered a plea upon arraignment and actively participated in trial. Nonetheless, the Court ruled that the arrest of appellant was lawful as she was actually committing a crime at the time. Thus, the resulting warrantless search and seizure was valid. That although the police had a tip prior to the arrest, they did not apply for a search warrant as the exact day of appellant's arrival was not known to the informant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL COURT, RESPECTED. Regarding the credibility of witnesses, this Court has ruled time and again that this is a matter best assessed by the trial court judge since he has the opportunity to observe the witnesses' demeanor and deportment on the stand. Besides, in this case, the inconsistencies criticized by the appellant were minor ones involving negligible details which did not negate the truth of the witnesses' testimonies nor detract from their credibility. The judgment call of the trial court on which of the conflicting testimonies to believe should prevail because it involved the assessment of the credibility of witnesses. Thus, without proof that some facts or circumstances of weight or substance having a bearing on the result of the case have been overlooked, misunderstood or misapplied, this Court will not overturn such finding as the judge was in a better position to observe the demeanor of the witnesses. IHEDAT 2. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST ILLEGAL ARREST AND WARRANTLESS SEARCH; WAIVED BY ENTERING A PLEA UPON ARRAIGNMENT AND ACTIVELY PARTICIPATING IN TRIAL. Appellant also assigns as error the illegality of her arrest because she was not read her Miranda rights. (This is in addition to her argument that the 15 bricks of marijuana were inadmissible since the warrantless search was invalid, not having been made pursuant to a lawful arrest.) This contention is without merit since this Court has repeatedly ruled that, by entering a plea upon arraignment and by actively participating in the trial, an accused is deemed to have waived any objection to his arrest and warrantless search. Any objection to the arrest or acquisition of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is deemed waived. Here, in submitting herself to the jurisdiction of the trial court when she entered a plea of not guilty and participated in the trial, the appellant waived any irregularity that may have attended her arrest.

3. ID.; ID.; ID.; RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE; NOT VIOLATED WHEN WARRANTLESS SEARCH AND SEIZURE CONDUCTED AFTER ACCUSED WAS ARRESTED WHILE ACTUALLY COMMITTING A CRIME. Assuming, however, that there was no such waiver, pursuant to People vs. Barros, reiterated in People vs. Aruta, the waiver of the non-admissibility of the "fruits" of an invalid warrantless arrest and warrantless search and seizure is not to be casually presumed for the constitutional guarantee against unreasonable searches and seizures to retain vitality. The Court finds that the arrest was lawful as appellant was actually committing a crime when she was arrested transporting marijuana, an act prohibited by law. Since a lawful arrest was made, the resulting warrantless search on appellant was also valid as the legitimate warrantless arrest authorized the arresting police officers to validly search and seize from the offender (1) any dangerous weapons and (2) the things which may be used as proof of the commission of the offense. TIaEDC 4. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN PERSON ARRESTED IS ACTUALLY COMMITTING A CRIME AT THE TIME; PROBABLE CAUSE IN MAKING ARREST; CASE AT BAR. In the present case, the warrantless arrest was lawful because it fell under Rule 113, Section 5(a) of the Revised Rules of Criminal Procedure. This section provides that a peace officer may arrest a person even without a warrant when, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense. However, the police officer should be spurred by probable cause in making the arrest. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged. The determination of probable cause must be resolved according to the facts of each case. In this case, the arresting officers had probable cause to make the arrest in view of the tip they received from their informant. This Court has already ruled that tipped information is sufficient probable cause to effect a warrantless search. Although the apprehending officers received the tip two weeks prior to the arrest, they could not be faulted for not applying for a search warrant inasmuch as the exact date of appellant's arrival was not known by the informant. 5. ID.; ID.; SEARCH WITHOUT WARRANT; PROPER AS ON-THE-SPOT TIP CALLS FOR IMMEDIATE RESPONSE FROM OFFICERS. In those cases where this Court invalidated a warrantless search on the ground that the officers could have applied for a search warrant, the concerned officers received the tip either days prior to the arrival or in the afternoon of a working day. In the present case, the informant arrived at the police station at 5:00 A.M. on August 13, 1999 and informed the officers that the appellant would be arriving at 6:00 A.M. (just an hour later) that day. The circumstances clearly called for an immediate response from the officers. In People vs. Valdez, this Court upheld the validity of the warrantless arrest and corresponding search of accused Valdez as the officer made the arrest on the strength of a similar on-the-spot tip. In the case at bar, though all other pertinent details were known by the officers except the date, they could not have applied for a search warrant since the validity of a warrant was only for 10 days. Considering that the officers did not know when the appellant was going to arrive, prudence made them act the way they did. cCaEDA 6. ID.; EVIDENCE; ALIBI; REQUISITES. Appellant's alibi could not prevail over the overwhelming evidence presented by the prosecution. Alibi as a defense is inherently weak and for it to serve as basis for an acquittal, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility to be at the scene of the crime. The appellant failed to meet these two requirements. Jaime Alarcon's house where appellant claimed to be sleeping at the time of her arrest, was only 10 meters from the tricycle terminal where she was arrested by the officers. Thus, the trial court was correct in ruling that the alibi of appellant was not enough to acquit her of the charges.

7. CRIMINAL LAW; DANGEROUS DRUGS ACT; TRANSPORTING PROHIBITED DRUGS; PROPER PENALTY WHERE 14.75 KILOGRAMS OF MARIJUANA IS INVOLVED AND ABSENT ANY AGGRAVATING OR MITIGATING CIRCUMSTANCE. With the effectivity of RA 7659, Section 4 of RA 6425, provides the penalty of reclusion perpetua to death and a fine ranging from P500,000 to P10,000,000 if the marijuana involved weighs 750 grams or more. Since the penalty is composed of two indivisible penalties, the rules for applying the penalties in Article 63 of the Revised Penal Code are applicable, pursuant to the ruling in People vs. Simon wherein the Court recognized the suppletory application of the rules on penalties in the Revised Penal Code and the Indeterminate Sentence Law to the Dangerous Drugs Act after its amendment by RA 7659. Thus, as the appellant was found to be transporting 14.75 kilograms of marijuana, the trial court was correct in imposing the lesser penalty of reclusion perpetua since there was no aggravating or mitigating circumstance, and in not applying the Indeterminate Sentence Law which is not applicable when indivisible penalties are imposed. The fine of P500,000 is hereby AFFIRMED. CASaEc DECISION CORONA, J p: This is an appeal from the February 29, 2000 decision 1 of the Regional Trial Court, Branch 59, Angeles City in Criminal Case no. 99-1261 convicting the appellant of violating Section 4, Article 2 of RA 7659, as amended, also known as the Dangerous Drugs Act. ACIESH Appellant Lita Ayangao was charged with transporting 14.75 kilograms of marijuana in an information 2 that read: That on or about the 13th day of August, 1999, in the Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, LITA AYANGAO y BATONG-OG, without any authority of law, did then and there wilfully, unlawfully and feloniously dispatch in transit or transport fifteen (15) bricks of dried marijuana leaves with the actual total weight of FOURTEEN KILOGRAMS AND SEVENTY FIVE HUNDREDTHS (14.75) of kilogram, a prohibited drug. IEAacS The appellant, through counsel, filed a motion to quash on the ground that the facts charged did not constitute an offense. This was denied by the trial court. Upon arraignment, the appellant pleaded not guilty. 3 Thereafter, trial ensued. The prosecution presented three witnesses: PO3 Nestor Galvez, PO3 Bienvenido Sagum and Chief Forensic Chemist Daisy Panganiban-Babor. The prosecution's version 4 of the facts, as aptly summarized by the trial court, was: Two weeks before August 13, 1999, PO3 Bienvenido Sagum and PO3 Nestor A. Galvez, members of the Criminal Detection and Intelligence Group based at Diamond Subdivision, Balibago, Angeles City, received information from one of their informants that a certain woman from Mountain Province delivers dried marijuana leaves for sale at Sapang Biabas, Mabalacat, Pampanga to some drug pushers. Said information was also relayed by the informant to C/Insp. Rhodel O. Sermonia who instructed the two operatives to conduct surveillance operation against their target female who was described by their informant as about 50 years old, 5 feet in height, straight long hair and coming from Kalinga province. At around 5:00 o'clock in the morning of August 13, 1999, their informant went to their headquarters and informed them that their suspect is due to arrive at Sapang Biabas, Mabalacat. PO3 Sagum and

PO3 Galvez, together with the informant, immediately went to Sapang Biabas and parked their car near the entrance of the road going to Sapang Biabas. While they were in their car, the informer pointed to them a woman bearing the same description given by the former. The woman alighted from the tricycle and subsequently loaded two sacks with camote fruits on top. The two officers proceeded to the place where the woman was and noticed marijuana dried leaves protruding through a hole of one of the sacks. Sagum and Galvez introduced themselves as police officers and requested the woman to put out the contents of the said sacks. The sacks yielded sweet potatoes mixed with 15 brick-like substance wrapped in brown paper and masking tape. A brick, which was damaged on the side and in plain view of the officers revealed dried marijuana leaves. The woman who was arrested identified herself as accused Lita Ayangao y Batong-Og of Lacnog, Agbanawag Tabuk, Kalinga Province. Ayangao and the suspected dried marijuana leaves were brought to the police officer's headquarter at Diamond Subdivision, Angeles City. The evidence confiscated from the accused were sent to the PNP Crime Laboratory at Camp Olivas where it was examined by Chief Forensic Chemist Daisy P. Babor. The Initial Laboratory Report issued indicated that the specimens from the 15 bricks of suspected dried marijuana leaves weighing 14.75 kilograms were found to be positive for marijuana. The defense, through the testimonies of the appellant and Reynaldo Nunag, purok chairman of Sitio Makabakle, presented a different version, again summarized by the trial court: 5 Accused Lita Ayangao denied the charge made against her and alleged that she has nothing to do with the marijuana allegedly found in her possession. She went to Sapang Biabas "Marimar," Camachile, Mabalacat, Pampanga from Tabuk, Kalinga Province on August 13, 1999 only upon the request of a certain Magda Dumpao. Allegedly, Magda bought a house in Mawaque, Mabalacat and learned that it was being sold again. Magda then requested her (accused) to talk to Jaime Alarcon who acted as Magda's agent in buying the house. It was Magda who instructed her on how to go to the house of Jaime Alarcon. She arrived at the house of Alarcon at around 3:00 o'clock in the morning and was welcomed inside by Gloria and Jocelyn Alarcon, Jaime's wife and daughter-in-law. As Jaime was not around, she asked the Alarcon's permission if she can have a nap. Gloria and Jocelyn allowed her to sleep on the sofa and while she was resting, at around 6:00 o'clock in the morning, somebody knocked at the door. Gloria opened it and two men, who identified themselves as CIS agents, told Gloria that they were looking for somebody who came from Baguio City. One of the men went to where she was then lying and asked Gloria who she was. Gloria answered that she came from Tabuk. The police officers asked her (accused) to go with them as they wanted to talk to her. When she refused, the policemen forced her out of the house and boarded her to their car. While she was inside the car, she saw a sack and a carton box. The police brought her to their headquarters at Diamond Subd., Angeles City. She was made to sit in a chair and in her view, the sack was opened and its contents were placed in (sic) a table. She then heard from the policemen that the contents of the sack were marijuana and accused her of owning it. CaDATc Reynaldo Nunag, purok chairman of Sitio Makabakle, Marimar, Biabas, Mabalacat, Pampanga, testified that, as tricycle driver whose terminal is near the house of Jaime Alarcon, he did not see any unusual incident that happened in said vicinity in the morning of August 13, 1999. He also did not see how the accused was arrested and did not see the policemen's car. The trial court found the prosecution's version to be credible, reasoning that appellant's defense of frame-up was not supported by evidence and thus could not prevail over the testimonies of the prosecution witnesses. The law enforcer's testimonies carried the presumption of regularity in the performance of official duties. The dispositive portion of the decision read: WHEREFORE, premises considered, accused Lita Ayangao y Batong-og is found GUILTY beyond reasonable doubt of violating Section 4 of Article II of R.A. 6425 as amended by R.A. 7659 by

transporting fourteen kilograms and seventy five hundredths (14.75) of a kilogram of marijuana, a prohibited drug, without authority. Said accused is hereby sentenced to suffer the penalty of reclusion perpetua. Accused Lita Ayangao-Batong-og (sic) is further ordered to pay a fine of five hundred thousand (P500,000.00) pesos. SO ORDERED. 6 The following assignments of error are raised in this appeal:7 I. THE LOWER COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES DESPITE EXISTING SERIOUS INCONSISTENCIES AND INCREDIBILITY THEREBY CREATING DOUBT REGARDING THEIR TRUTHFULNESS AND CREDIBILITY. II. THE TRIAL COURT ERRED IN NOT CONSIDERING FAVORABLY THE DEFENSE OF ALIBI AS A GROUND FOR ACQUITTAL OF THE DEFENDANT-APPELLANT IN SPITE OF THE WEAKNESS OF THE PROSECUTION EVIDENCE WHICH IS INSUFFICIENT TO OVERCOME THE PRESUMPTION OF INNOCENCE IN HER FAVOR. III. THE TRIAL COURT ERRED IN NOT ACQUITTING HEREIN DEFENDANT-APPELLANT ON GROUND OF REASONABLE DOUBT. IV. THE LOWER COURT ERRED IN FAILING TO HOLD THAT THE APPREHENDING OFFICERS VIOLATED DEFENDANT-APPELLANT'S MIRANDA RIGHTS. After a thorough review of the records, this Court finds that the prosecution was able to discharge its burden of proving the appellant's guilt beyond reasonable doubt. The decision of the trial court was supported by the evidence on record. cEaTHD Regarding the credibility of witnesses, this Court has ruled time and again that this is a matter best assessed by the trial court judge since he has the opportunity to observe the witnesses' demeanor and deportment on the stand. 8 Besides, in this case, the inconsistencies criticized by the appellant were minor ones involving negligible details which did not negate the truth of the witnesses' testimonies nor detract from their credibility. 9 Appellant also assigns as error the illegality of her arrest because she was not read her Miranda rights. (This is in addition to her argument that the 15 bricks of marijuana were inadmissible since the warrantless search was invalid, not having been made pursuant to a lawful arrest.) This contention is without merit since this Court has repeatedly ruled that, by entering a plea upon arraignment and by actively participating in the trial, an accused is deemed to have waived any objection to his arrest and warrantless search. 10 Any objection to the arrest or acquisition of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is deemed waived. 11 Here, in submitting herself to the jurisdiction of the trial court when she entered a plea of not guilty and participated in the trial, the appellant waived any irregularity that may have attended her arrest. 12

Assuming, however, that there was no such waiver, pursuant to People vs. Barros, 13 reiterated in People vs. Aruta, 14 the waiver of the non-admissibility of the "fruits" of an invalid warrantless arrest and warrantless search and seizure is not to be casually presumed for the constitutional guarantee against unreasonable searches and seizures to retain vitality. The Court finds that the arrest was lawful as appellant was actually committing a crime when she was arrested transporting marijuana, an act prohibited by law. Since a lawful arrest was made, the resulting warrantless search on appellant was also valid as the legitimate warrantless arrest authorized the arresting police officers to validly search and seize from the offender (1) any dangerous weapons and (2) the things which may be used as proof of the commission of the offense. 15 In the present case, the warrantless arrest was lawful because it fell under Rule 113, Section 5(a) of the Revised Rules of Criminal Procedure. This section provides that a peace officer may arrest a person even without a warrant when, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense. However, the police officer should be spurred by probable cause in making the arrest. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged. 16 The determination of probable cause must be resolved according to the facts of each case. In this case, the arresting officers had probable cause to make the arrest in view of the tip they received from their informant. This Court has already ruled that tipped information is sufficient probable cause to effect a warrantless search. 17 Although the apprehending officers received the tip two weeks prior to the arrest, they could not be faulted for not applying for a search warrant inasmuch as the exact date of appellant's arrival was not known by the informant. Apprehending officer PO3 Sagum testified 18 as follows: Q So what were the information given you by your informer?

A Ang kausap po nila iyong hepe namin[g] si Maj. Rhodel Sermonia tapos po sinabi lang po sa amin ni Maj. Sermonia ang sinabi ng informant. Q A Q So you did not hear the report of the informant? Yes, sir. What was the information given by your superior?

A He told us that somebody will be delivering marijuana at Sapang Bayabas and the informer knew the person. Q Give us the complete report? IHEDAT

A Sinabi po ng hepe namin na sinabi ng informant na merong babaeng magdedeliver ng marijuana sa Sapang Bayabas at babalik daw po siya kung kailan magdedeliver. Q office? A Q On the date in question August 13 at around 6:00 o'clock in the morning you were in your

We were already at Sapang Bayabas, sir. Which is which now?

A Q A Q A Q A Q A Q A Q A

Nasa Sapang Bayabas na po, sir. Before going to Sapang Bayabas where did you come from? We were in the office, sir. What time where you in the office? That is where we were sleeping. You were sleeping there? Yes, sir, we are stay-in.

Q A Q A Q

So you were not listening to them? No, sir. EcDSTI

So you do not know what they have talked about? Yes, sir. And then what were the instruction given by your superior?

A He said we will proceed to Sapang Bayabas because there is a lady going there bringing marijuana. Q Did you ask the identity of the woman? Yes, sir. What did he say? About 50 years of age, 5 feet and with straight long hair? How about the name, was the name given to you? No, sir, he just said she came from Kalinga. Aside from that, was the quantity of the drugs given to you that was to be brought? No, sir. So you just learned that the woman will be arriving at Sapang Bayabas at 6:00 o'clock? I do not know the time she is arriving. He did not tell you? He does not know, sir. The informant did not tell you? Yes, sir, he just said she will be coming in Sapang Bayabas. You did not ask for the time? He does not know, sir. What about the particular place where the woman will deliver the drugs?

And then what happened? A Our informant came, sir. Q What time? A 5:00 o'clock, sir. Q What was the purpose of the informant? A Sinabi po niya sa amin na darating na raw po iyong ano. Q

Q I thought that your superior already informed you that the suspect or the accused will be arriving at 6:00 o'clock the first time? A Sabi po sa amin noong magpunta iyong informer sa office namin August 13 darating daw po iyong babae. Q A Q A Q A Q A Q A It was on August 13 when he said that?

A Q A Q

Yes, sir. A Who was he talking with then? Q Iyong Chief po namin tapos kinausap ko rin po siya. A What time was that? Q Before 5:00, sir. A So they were talking before 5:00 with your Chief? Q Yes, sir. Where were you? I was outside, sir. A Hindi niya po alam basta doon sa entrance daw po ng Sapang Bayabas doon na po kami mag-istambay. (Emphasis and Italics supplied). Although there was testimony by PO3 Galvez that the informant told them the exact date of arrival, the trial court gave more weight to the testimony of PO3 Sagum that stated otherwise, as evidenced

by his finding that the informant arrived at the police station at 5:00 A.M. on August 13, 1999 and informed them that the appellant was arriving at 6:00 A.M. 19 The judgment call of the trial court on which of these two conflicting testimonies to believe should prevail because it involved the assessment of the credibility of witnesses. 20 Thus, without proof that some facts or circumstances of weight or substance having a bearing on the result of the case have been overlooked, misunderstood or misapplied, this Court will not overturn such finding as the judge was in a better position to observe the demeanor of the two witnesses. 21 In those cases where this Court invalidated a warrantless search on the ground that the officers could have applied for a search warrant, the concerned officers received the tip either days prior to the arrival or in the afternoon of a working day. In People vs. Aminnudin, 22 this Court found that the officers received the tip two days prior to the actual date of arrival of accused Aminnudin. In People vs. Encinadak, 23 the police officers were tipped off at 4:00 P.M. on May 20, 1992 that accused Encinada would arrive at 7:00 A.M. the next day. Thus, the officers had time to obtain search warrants inasmuch as Administrative Circulars 13 and 19 of the Supreme Court allowed the application for search warrants even after office hours. In People vs. Aruta, 24 the police officers received the information on December 13, 1988 that accused Aruta would arrive on a Victory Liner Bus at 6:30 P.M. on December 14, 1999, giving them a day to obtain a warrant. DHAcET In the present case, the informant arrived at the police station at 5:00 A.M. on August 13, 1999 and informed the officers that the appellant would be arriving at 6:00 A.M. (just an hour later) that day. The circumstances clearly called for an immediate response from the officers. In People vs. Valdez, 25 this Court upheld the validity of the warrantless arrest and corresponding search of accused Valdez as the officer made the arrest on the strength of a similar on-the-spot tip. In the case at bar, though all other pertinent details were known by the officers except the date, they could not have applied for a search warrant since the validity of a warrant was only for 10 days. 26 Considering that the officers did not know when the appellant was going to arrive, prudence made them act the way they did. The appellant also faults the trial court for failing to give weight to her defense of alibi. Appellant's alibi could not prevail over the overwhelming evidence presented by the prosecution. Alibi as a defense is inherently weak 27 and for it to serve as basis for an acquittal, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility to be at the scene of the crime. 28 The appellant failed to meet these two requirements. Jaime Alarcon's house where appellant claimed to be sleeping at the time of her arrest, was only 10 meters from the tricycle terminal where she was arrested by the officers. 29 Thus, the trial court was correct in ruling that the alibi of appellant was not enough to acquit her of the charges. DTSaHI With the effectivity of RA 7659, Section 4 of RA 6425, provides the penalty of reclusion perpetua to death and a fine ranging from P500,000 to P10,000,000 if the marijuana involved weighs 750 grams or more. Since the penalty is composed of two indivisible penalties, the rules for applying the penalties in Article 63 of the Revised Penal Code are applicable, pursuant to the ruling in People vs. Simon 30 wherein the Court recognized the suppletory application of the rules on penalties in the Revised Penal Code and the Indeterminate Sentence Law to the Dangerous Drugs Act after its amendment by RA 7659. Thus, as the appellant was found to be transporting 14.75 kilograms of marijuana, the trial court was correct in imposing the lesser penalty of reclusion perpetua since there was no aggravating or mitigating circumstance, and in not applying the Indeterminate Sentence Law which is not applicable when indivisible penalties are imposed.

WHEREFORE, the judgment of the Regional Trial Court, Branch 59, of Angeles City, finding the appellant guilty of transporting a prohibited drug and sentencing her to reclusion perpetua and to pay the fine of P500,000, is hereby AFFIRMED. SO ORDERED. Vitug, Sandoval-Gutierrez and Carpio-Morales, JJ ., concur. FIRST DIVISION [G.R. No. 74869. July 6, 1988.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendantappellant. The Solicitor General, for plaintiff-appellee. Herminio T. Llariza counsel de-officio, for defendant-appellant. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; WARRANTLESS ARREST AND SEIZURE BASED ON AN INFORMER'S TIP, AT A TIME WHEN ACCUSED WAS NOT COMMITTING A CRIME, ILLEGAL; EVIDENCE OBTAINED, INADMISSIBLE. Where it is not disputed that the PC officers had no warrant when they arrested Aminnudin while he was descending the gangplank of the M/V Wilcon 9 and seized the bag he was carrying, and that their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana, the search was not an incident of a lawful arrest because there was no warrant of arrest and warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained was inadmissible. 2. ID.; ID.; ID.; ID.; NO URGENCY COULD BE INVOKED IN PRESENT CASE TO DISPENSE WITH OBTENTION OF ARREST AND SEARCH WARRANT. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." 3. ID.; ID.; ID.; ID.; ACCUSED IN CASE AT BAR WAS NOT COMMITTING A CRIME WHEN HE WAS ARRESTED. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by

the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. AQUINO, J., Dissenting: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; ARREST AT TIME OF COMMISSION OF CRIME IS LAWFUL; SEARCH LIKEWISE LAWFUL. I hold that the accused was caught in flagrante, for he was carrying marijuana leaves in his bag at the moment of his arrest. He was not "innocently disembarking from the vessel." The unauthorized transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his arrest could be lawfully effected without a warrant (Sec. 6-a, Rule 113, Rules of Court), and the search of his bag (which yielded the marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). DECISION CRUZ, J p: The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1 Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a "thorough investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted. 6 According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was

alleged to have been carrying was not properly identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14 The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19 There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities. The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release. There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest. It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follow: "Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984? "A "Q "A Yes, sir. When did you receive this intelligence report? Two days before June 25, 1984 and it was supported by reliable sources.

"Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date?

"A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin. "Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9? "A "Q Yes, sir. Did you receive any other report aside from this intelligence report?

"A Before June 23, 1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he has already consummated the act of selling and shipping marijuana stuff. "COURT: "Q "A "Q "A And as a result of that report, you put him under surveillance? Yes, sir. In the intelligence report, only the name of Idel Aminnudin was mentioned? Yes, sir. Are you sure of that? On the 23rd he will be coming with the woman.

"A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation. "COURT:

"Q "Q Previous to that particular information which you said two days before June 25, 1984, did you also receive any report regarding the activities of Idel Aminnudin? "A "Q "A "Q Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin. What were those activities? "A Purely marijuana trafficking. From whom did you get that information? "A

"Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984? Only on the 23rd of June.

"Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report? "A "Q No, more. Why not? Because we were very very sure that our operation will yield positive result.

"A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot identify the person. "Q "A But you received it from your regular informer?

"A Yes, sir.

"ATTY. LLARIZA: "Q drugs? "A Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with

"Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore? "A Search warrant is not necessary." 23

Marijuana, sir.

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men. The mandate of the Bill of Rights is clear: "Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."

"Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing? "A "Q "A "Q Not a report of the particular coming of Aminnudin but his activities. You only knew that he was coming on June 25, 1984 two days before? Yes, sir. You mean that before June 23, 1984 you did not know that Aminnudin was coming?

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that "search warrant was not necessary." In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees. While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him. Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminal should escape than that the government should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself. We find that with the exclusion of the illegally seized marijuana as evidence against the accusedappellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent. ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered. Narvasa, Gancayco and Medialdea JJ. concur. Separate Opinion GRIO-AQUINO, J., dissenting: I respectfully dissent. I hold that the accused was caught in flagrante for he was carrying marijuana leaves in his bag at the moment of his arrest. He was not "innocently disembarking from the vessel." The unauthorized transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime, (Sec. 4, Rep. Act No. 6425). Since he was committing a crime his arrest could be lawfully effected without a warrant (Sec. 6-a, Rule 113, Rules of Court), and the search of his bag (which yielded the marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). I vote to affirm the judgment of the trial court finding him guilty of illegally transporting marijuana. THIRD DIVISION [G.R. No. L-63630. April 6, 1990.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MEDEL TANGLIBEN Y BERNARDINO, defendantappellant. The Office of the Solicitor General for plaintiff-appellee. Katz N. Tierra for defendant-appellant. SYLLABUS 1. REMEDIAL LAW; 1985 RULES ON CRIMINAL PROCEDURE; EXCEPTIONS TO THE REQUIRING SEARCH WARRANT; CASE AT BAR. One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on

Criminal Procedure provides: "Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." Meanwhile, Rule 113, Sec. 5(a) provides: ". . . A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense." Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest and is consequently valid. Although the trial court's decision did not mention it, the transcript of stenographic notes reveals that there was an informer who pointed to the accused-appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information, the police officers had to act quickly. There was not enough time to secure a search warrant. We cannot therefore apply the ruling in Aminnudin to the case at bar. To require search warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain the crimes with which these persons are associated. 2. ID.; EVIDENCE; CREDIBILITY OF WITNESS; TRIAL COURT'S FINDING; ENTITLED TO GREAT RESPECT AND ACCORDED THE HIGHEST CONSIDERATION. As to doubtfulness of evidence, wellsettled is the rule that findings of the trial court on the issue of credibility of witnesses and their testimonies are entitled to great respect and accorded the highest consideration by the appellate court. Since credibility is a matter that is peculiarly within the province of the trial judge, who had first hand opportunity to watch and observe the demeanor and behavior of witnesses both for the prosecution and the defense at the time of their testimony (People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason to disturb the following findings. 3. ID.; ID.; REGULARITY OF OFFICIAL ACTS RELATIVE TO ADMISSIBILITY OF STATEMENT TAKEN DURING IN-CUSTODY INTERROGATION, MUST BE PROVED DURING TRIAL. The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon. Even assuming it to be true, the extrajudicial confession cannot be admitted because it does not appear in the records that the accused, during custodial investigation, was apprised of his rights to remain silent and to counsel and to be informed of such rights. In People v. Duero, 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that: "In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionally protected rights." 4. ID.; ID.; DANGEROUS DRUG ACT (R.A. 6425); PROPER AUTHENTICATION OF MARIJUANA LEAVES SEIZED; SUFFICIENTLY COMPLIED IN CASE AT BAR. Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from him was never authenticated and therefore should not have been admitted as evidence. He capitalizes on the fact that the marijuana package brought by Patrolman Roberto Quevedo to the PC Crime Laboratory for examination did not contain a tag bearing the name of the accused. We rule, however, that since Patrolman Quevedo testified that he gave the marijuana package together with a letter-request for examination, and the forensic chemist Marilene Salangad likewise testified that she received the marijuana together with the letterrequest and said letter-request bore the name of the accused, then the requirements of proper

authentication of evidence were sufficiently complied with. The marijuana package examined by the forensic chemist was satisfactorily identified as the one seized from accused. Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly authenticated, still, we cannot discount the separate field test conducted by witness Roberto Quevedo which yielded positive results for marijuana. 5. ID.; ID.; ID.; NON-PRESENTATION OF INFORMER NOT FATAL TO PROSECUTION'S CASE. Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and doubtful and that the prosecution failed to prove his guilt. In attacking the sufficiency of evidence, the appellant avers that the informer should have been presented before the lower court. We discard this argument as a futile attempt to revive an already settled issue. This Court has ruled in several cases that non-presentation of the informer, where his testimony would be merely corroborative or cumulative, is not fatal to the prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; People v. Viola, G.R. No. 64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA 538). 6. ID.; ID.; ID.; ACTUAL POSSESSION OF MARIJUANA LEAVES; PROVED BEYOND REASONABLE DOUBT. The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that although the information stated the weight to be approximately one kilo, the forensic chemist who examined the marijuana leaves testified that the marijuana weighed only 600 grams. Such amount is not a considerable quantity as to conclusively confer upon the accused an intent to transport the marijuana leaves. Nor can it be said that the intent to transport is clearly established from the fact that the accused was arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with an extremely severe penalty must be based on evidence which is clearer and more convincing than the inferences in this case. What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana leaves but his actual possession. DECISION GUTIERREZ, JR., J p: This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at San Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of 1972 as amended) and sentencing him to life imprisonment, to pay a fine of P20,000 and to pay the costs. The information filed against the appellant alleged: "That on or about the 2nd day of March, 1982, in the municipality of San Fernando, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused MEDEL TANGLIBEN y BERNARDINO, knowing fully well that Marijuana is a prohibited drug, did then and there willfully, unlawfully and feloniously have in his possession, control and custody one (1) bag of dried marijuana leaves with an approximate weight of one (1) kilo and to transport (sic) the same to Olongapo City, without authority of law to do so." (At p. 6, Rollo) The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is narrated by the trial court as follows: "It appears from the evidence presented by the prosecution that in the late evening of March 2, 1982, Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San Fernando Police Station, together with

Barangay Tanod Macario Sacdalan, were conducting surveillance mission at the Victory Liner Terminal compound located at Barangay San Nicolas, San Fernando, Pampanga; that the surveillance mission was aimed not only against persons who may commit misdemeanors at the said place but also on persons who may be engaging in the traffic of dangerous drugs based on informations supplied by informers; that it was around 9:30 in the evening that said Patrolmen noticed a person carrying a red traveling bag (Exhibit G) who was acting suspiciously and they confronted him; that the person was requested by Patrolmen Quevedo and Punzalan to open the red traveling bag but the person refused, only to accede later on when the patrolmen identified themselves; that found inside the bag were marijuana leaves (Exhibit B) wrapped in a plastic wrapper and weighing one kilo, more or less; that the person was asked of his name and the reason why he was at the said place and he gave his name as Medel Tangliben and explained that he was waiting for a ride to Olongapo City to deliver the marijuana leaves; that the accused was taken to the police headquarters at San Fernando, Pampanga, for further investigation; and that Pat. Silverio Quevedo submitted to his Station Commander his Investigator's Report (Exhibit F). It appears also from the prosecution's evidence that in the following morning or on March 3, 1982, Pat. Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo, who happens to be his brother and who has had special training on narcotics, to conduct a field test on a little portion of the marijuana leaves and to have the remaining portion examined by the PCCL at Camp Olivas, San Fernando, Pampanga; that Pat. Roberto Quevedo conducted a field test (Exhibit H) on the marijuana leaves and found positive result for marijuana (Exhibit E); that the remaining bigger quantity of the marijuana leaves were taken to the PCCL at Camp Olivas by Pat. Roberto Quevedo that same day of March 3, 1982 (Exhibit A and A-1) and when examined, the same were also found to be marijuana (Exhibit C and C-1)." (At pp. 910, Rollo) Only the accused testified in his defense. His testimony is narrated by the trial court as follows: "The accused declared that he got married on October 25, 1981 and his wife begot a child on June 10, 1982; that he was formerly employed in the poultry farm of his uncle Alejandro Caluma in Antipolo, Rizal; that he is engaged in the business of selling poultry medicine and feeds, including chicks, and used to conduct his business at Taytay, Rizal; that he goes to Subic at times in connection with his business and whenever he is in Subic, he used to buy C-rations from one Nena Ballon and dispose the same in Manila; that he never left his residence at Antipolo, Rizal, on March 2, 1982; that on March 3, 1982, he went to Subic to collect a balance of P100.00 from a customer thereat and to buy C-rations; that he was able to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00 o'clock because he had a drinking spree with Nena's son; that he tried to catch the 8:00 o'clock trip to Manila from Olongapo City but he failed and was able to take the bus only by 9:00 o'clock that evening; that it was a Victory Liner Bus that he rode and because he was tipsy, he did not notice that the bus was only bound for San Fernando Pampanga; that upon alighting at the Victory Liner Compound at San Fernando, Pampanga he crossed the street to wait for a bus going to Manila; that while thus waiting for a bus, a man whom he came to know later as Pat. Punzalan, approached him and asked him if he has any residence certificate; that when he took out his wallet, Pat. Punzalan got the wallet and took all the money inside the wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken to the municipal building for verification as he may be an NPA member; that at the municipal building, he saw a policeman, identified by him later as Pat. Silverio Quevedo, sleeping but was awakened when he arrived; that Pat. Quevedo took him upstairs and told him to take out everything from his pocket saying that the prisoners inside the jail may get the same from him; that inside his pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him that it shall be returned to him but that it was never returned to him; that he was thereafter placed under detention and somebody told him that he is being charged with possession of marijuana and if he would like to be bailed out, somebody is willing to help him; and, that when he was visited by his wife, he told his

wife that Patrolman Silverio Quevedo took away all his money but he told his wife not to complain anymore as it would be useless." (Rollo, pp. 10-11) Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his appeal: "THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND FINDING HIM GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL EVIDENCE." (At p. 48, Rollo) The Solicitor-General likewise filed his brief, basically reiterating the lower court's findings. However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan died. Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra, and pursuant thereto, the Deputy Clerk of Court, in behalf of the Clerk of Court, required the new counsel to file her appellant's brief. The latter complied and, in her brief, raised the following assignment of errors: I "THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF MARIJUANA ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A PRODUCT OF AN UNLAWFUL SEARCH WITHOUT A WARRANT. II THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE OF MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT WAS NEVER AUTHENTICATED. III THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF DEFENDANT-APPELLANT." (At pp. 92-93, Rollo) It is contended that the marijuana allegedly seized from the accused was a product of an unlawful search without a warrant and is therefore inadmissible in evidence. This contention is devoid of merit. One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides: "Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." Meanwhile, Rule 113, Sec. 5(a) provides: ". . . A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense."

Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest and is consequently valid. In the case of People v. Claudio, 160 SCRA 646, [1988] this Court, confronted with the same issue, held that: "Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not need a warrant to arrest Claudio as the latter was caught in flagrante delicto. The warrantless search being an incident to a lawful arrest is in itself lawful. (Nolasco v Pano, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana." We are not unmindful of the decision of this Court in People v. Aminnudin, 163 SCRA 402 [1988]. In that case the PC officers had earlier received a tip from an informer that accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. Acting on this tip, they waited for him one evening, approached him as he descended from the gangplank, detained him and inspected the bag he was carrying. Said bag contained marijuana leaves. The Court held that the marijuana could not be admitted in evidence since it was seized illegally. The records show, however, that there were certain facts, not existing in the case before us, which led the Court to declare the seizure as invalid. As stated therein: prLL "The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant of arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a 'search warrant was not necessary.' " In contrast, the case before us presented urgency. Although the trial court's decision did not mention it, the transcript of stenographic notes reveals that there was an informer who pointed to the accusedappellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information, the police officers had to act quickly. There was not enough time to secure a search warrant. We cannot therefore apply the ruling in Aminnudin to the case at bar. To require search warrants during on-thespot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain the crimes with which these persons are associated. Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from him was never authenticated and therefore should not have been admitted as evidence. He capitalizes on the fact that the marijuana package brought by Patrolman Roberto Quevedo to the PC Crime Laboratory for examination did not contain a tag bearing the name of the accused. We rule, however, that since Patrolman Quevedo testified that he gave the marijuana package together with a letterrequest for examination, and the forensic chemist Marilene Salangad likewise testified that she received the marijuana together with the letter-request and said letter-request bore the name of the accused, then the requirements of proper authentication of evidence were sufficiently complied with. The marijuana package examined by the forensic chemist was satisfactorily identified as the one seized from accused.

Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly authenticated, still, we cannot discount the separate field test conducted by witness Roberto Quevedo which yielded positive results for marijuana. Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and doubtful and that the prosecution failed to prove his guilt. In attacking the sufficiency of evidence, the appellant avers that the informer should have been presented before the lower court. We discard this argument as a futile attempt to revive an already settled issue. This Court has ruled in several cases that non-presentation of the informer, where his testimony would be merely corroborative or cumulative, is not fatal to the prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; People v. Viola, G.R. No. 64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA 538). As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of credibility of witnesses and their testimonies are entitled to great respect and accorded the highest consideration by the appellate court. Since credibility is a matter that is peculiarly within the province of the trial judge, who had first hand opportunity to watch and observe the demeanor and behavior of witnesses both for the prosecution and the defense at the time of their testimony (People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason to disturb the following findings: LLjur "The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan are positive and sufficiently clear to show the commission by the accused of the offense herein charged. These prosecution witnesses have no motive to fabricate the facts and to foist a very serious offense against the accused. The knowledge on what these witnesses testified to were (sic) acquired by them in the official performance of their duties and their (sic) being no showing that they are prejudiced against the accused, their testimonies deserve full credit. The testimonies of the afore-mentioned patrolmen that what they found in the possession of the accused were marijuana leaves were corroborated by the examination findings conducted by Pat. Roberto Quevedo (Exhibit H) and by Forensic Chemist Marlene Salangad of the PCCL, with station at Camp Olivas, San Fernando, Pampanga (Exhibits C and C-1). (Rollo, p. 11) "Moreover, if there is truth in the testimony of the accused to the effect that Pat. Punzalan got all the money from his wallet when he was accosted at the Victory Liner Terminal and was told just to keep quiet, otherwise he will be 'salvaged', why will Pat. Punzalan still bring the accused to the Municipal Building for interrogation and/or verification? Would not Pat. Punzalan be exposing his identity to the accused? This is unnatural. And this is also true on the testimony of the accused that Pat. Silverio Quevedo got his fifty-peso bill and never returned the same to him. If the two policemen really got any money from the accused and that the marijuana leaves do not belong to the accused, why will the two policemen still produce in Court as evidence that expensive-looking traveling red bag (Exhibit G) taken from the accused and which contained the marijuana leaves in question if the instant case is a mere fabrication? As already stated, all the evidence, oral and documentary, presented by the prosecution in this case were all based on personal knowledge acquired by the prosecution witnesses in the regular performance of their official duties and there is nothing in their testimonies to show that they are bias (sic) or that they have any prejudice against the herein accused. Between the testimonies of these prosecution witnesses and that of the uncorroborated and self-serving testimony of the accused, the former should prevail." (Rollo, p. 13)

Likewise, the appellant chose to limit his defense to his own testimony. He could have availed himself through compulsory court processes of several witnesses to buttress his defense. Since not one other witness was presented nor was any justification for the non-appearance given, the inadequacy of his lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the positive testimonies given by the prosecution witnesses. Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the lower court, is an added circumstance tending to establish his guilt. LibLex We take exception, however, to the trial court's finding that: "The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more or less. The intent to transport the same is clear from the testimony of Pat. Silverio Quevedo who declared, among other things, that when he confronted the accused that night, the latter told him that he (accused) is bringing the marijuana leaves to Olongapo City. Moreover, considering the quantity of the marijuana leaves found in the possession of the accused and the place he was arrested which is at San Fernando, Pampanga, a place where the accused is not residing, it can be said that the intent to transport the marijuana leaves has been clearly established." (Rollo, pp. 13-14) The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon. Even assuming it to be true, the extrajudicial confession cannot be admitted because it does not appear in the records that the accused, during custodial investigation, was apprised of his rights to remain silent and to counsel and to be informed of such rights. In People v. Duero, 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that: "In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionally protected rights." The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that although the information stated the weight to be approximately one kilo, the forensic chemist who examined the marijuana leaves testified that the marijuana weighed only 600 grams. Such amount is not a considerable quantity as to conclusively confer upon the accused an intent to transport the marijuana leaves. Nor can it be said that the intent to transport is clearly established from the fact that the accused was arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with an extremely severe penalty must be based on evidence which is clearer and more convincing than the inferences in this case. LexLib What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana leaves but his actual possession.

The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972 as amended). WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED. The appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos. SO ORDERED. Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur. EN BANC [G.R. No. L-34248. November 21, 1978.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO MOLLEDA y GERONA alias TIKBOY, VIRGILIO BALUYOT y DIESTRO alias BOY BAKAL, REYNALDO NICOLAS y MANANSALA alias BOY MIROY and EVELYN DUAVE y ORTEGA alias BABY CHINA, defendants-appellants. Joshua T. Caponong for appellants Baluyot and Nicolas. Marcial Desiderio and Gamaliel G. Bongco for appellant Evelyn Duave. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan and Solicitor Nathaniel P. de Pano, Jr. for appellee. DECISION SANTOS, J p: Mandatory review of the decision of the Circuit Criminal Court, Manila, Judge Manuel R. Pamaran, presiding, in Criminal Case No. CCC-IV-548(71) in which the above-named accused were each and all convicted as principals in the crime of murder, qualified by taking advantage of superior strength and with the aggravating circumstance of "deceit", and sentenced, each and all, to death, to jointly and severally indemnify the heirs of the deceased in the sum of P12,000.00, to pay P8,000.00 as exemplary, and P8,000.00 as moral, damages, and the costs. On April 6, 1971, the above-named accused were charged with murder in an information, filed by Assistant Fiscal Bernabe Tiongco, to wit The undersigned accuses Roberto Molleda y Gerona alias Tikboy, Virgilio Baluyot alias Boy Bakal, Reynaldo Nicolas alias Boy Miroy and Evelyn Duave alias Baby China. That on or about January 7, 1971, in the City of Manila, Philippines, the said accused, conspiring and confederating together with one whose true name and identity are still unknown, and helping one another with the use of superior strength, did then and there willfully, unlawfully and feloniously, with intent to kill, and with treachery and evident premeditation, attack, assault and use personal violence on one Alfredo Bocaling then and there stabbing him with a knife on the stomach and left arm, hitting him several times on the head with a piece of wood and kicking him, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death thereafter.

Contrary to law. At the trial, the prosecution presented the testimony of Ramon Ching, an eye- and ear-witness to the killing, Dr. Abelardo Lucero, Medico-Legal officer of the Manila Police Department, Detective Amador Jose, Manila Police Department (MPD), Patrolman Nestor Miguel, MPD and Investigator, Precinct 9, and Exhibits A, a Sketch; B, Identification Slip; C, Human Sketch; D, Certificate of Death; E, Postmortem findings; F, Necropsy report; G, Statement of Roberto Molleda; H, Statement of Virgilio Baluyot; and I, Statement of Reynaldo Nicolas. The defense presented the testimonies of the accused Roberto Molleda, Reynaldo Nicolas, Virgilio Baluyot and Evelyn Duave and Exhibits 1, Duave, a sketch; 1-a (Molleda) Statement of Sta. Brigida; 2 (Molleda) I.D. of Molleda; 2-a (Molleda) I.D. of Molleda; 2-b (Molleda) I.D. of Molleda; 2-c (Molleda) Voter's I.D. of Molleda. The operative facts of and circumstances surrounding the commission of the crime and the apprehension and investigation of the accused as gleaned from the testimonies of the witnesses and the extra-judicial statements of three of the accused follow. At or about 8:00 in the evening of January 7, 1971, Alfredo Bocaling and Ramon Ching were in the ground floor of the Good Earth Emporium on Rizal Avenue, Manila, waiting for one Daniel Morosi. While thus waiting for Morosi, they were invited by two women, Evelyn Duave alias Baby China and Melinda, to join them as they Evelyn and Melinda will return a radio at Suter St., near Herran. Since Ramon Ching had known Evelyn Duave alias Baby China for two years already as a call girl, the two Bocaling and Ching agreed to go with them because they were also going to one Gordon, their friend, to whom the transistor radio will be returned. They rode in a bus and at some point on Herran (now Pedro Gil St.) alighted therefrom and then took a taxi for the house where Gordon lived. They arrived at Suter Street, whereupon, Melinda alighted from the taxi in which they were riding, while the three remained inside. Melinda said that she would talk to somebody. When Melinda returned, she was with a male companion. Ching and Bocaling were introduced to her male companion, a certain Paking. They were thereafter told to alight from the taxi and to proceed to a certain house nearby with Evelyn. llcd Ching and Bocaling saw four persons drinking, namely, Bay, Paking, a certain cursillista whom they did not know and one Ngongo. They joined the four and drank with them. A little while later, Melinda asked permission from them to go out to buy something. After about five minutes, she returned with three men, one of whom is a friend of Gordon, Reynaldo Nicolas alias Boy Miroy, who joined them. After drinking and conversing for sometime, Evelyn stood up and asked permission to go to a nearby store to buy lollipop. Actually, Evelyn contacted Roberto Molleda alias Tikboy, Virgilio Baluyot alias Boy Bakal and Reynaldo Nicolas alias Boy Miroy, all members of the Sigue-Sigue Sputnik gang. She informed them that the persons who robbed and raped her were there in the house. She then returned with Roberto Molleda, and Virgilio Baluyot to the house. They were introduced to each other and the group continued with their drinking. A while later, at or about 10:00 P.M., Ching and Bocaling indicated that they wanted to go home. The rest of the group also prepared to leave. When they stepped out of the house, the group saw a wake in another house, nearby. They dropped there and stayed for a while, after which the group went to the corner of Suter and Tejeron streets. As they were proceeding towards Herran, now Pedro Gil, Nicolas alias Boy Miroy placed his hand on the shoulder of Ching, while Baluyot alias Boy Bakal did the same to Bocaling in an apparent show of friendliness to dispel any suspicion on the part of the two. A little while later, as they reached the corner of Suter and Tejeron streets, Ching was suddenly boxed on the nape by Nicolas and at almost

the same time, Baluyot boxed Bocaling also on the nape. Ching sensing trouble, shouted to Bocaling, "Takbo na tayo, Freddie," and ran towards Pedro Gil. He was chased by two or three male companions who were earlier introduced to them. Alfredo Bocaling fell at the corner of Suter and Tejeron streets, possibly because he tripped; but Ching was able to make good his escape. While Ching was being chased, he turned his head towards Suter and saw several persons ganging up (pinagtutulungan) on Freddie Bocaling. He was being hit with bottles and pieces of wood by Molleda, Baluyot and Nicolas, and Baby China hit Bocaling with a belt. Ching hastily boarded a passenger jeep and proceeded to Rizal Park to look for Danny Morosi. Ching, however, failed to see Morosi and instead saw one Ruding Bakal. At or around 11.00 P.M., Ching returned to the corner of Suter and Tejeron, with Rudy Aguilar, another person also by the name of Rudy and Junior. He informed them of what had happened to Freddie Bocaling They did not see Bocaling anymore. On the following day, Ching learned that Bocaling was dead, whereupon he reported the incident to the authorities. The police investigated him. Alfredo Bocaling died as a result of the mauling. According to the post-mortem findings, Exhibit "E", he suffered the following injuries (1) Stab wounds measuring 2 x 1 x 18 cm. located at the right axillary line at the level of the 6th interspace. . . . . (2) chest. Punctured wound measuring 0.2 x 1 cm. x 3 cm. located in the anterior upper left lateral

(3) Stab wound measuring 1.5 x 0.5 x 2 cm. located in the left anterior chest at the level of the anterior axillary line (slight). (4) Stab wound measuring 2.5 x 1 x 6 cm. located in the posteroateral portion of the upper 3rds of the left arm. . . . . (5) (6) Multiple (2) lacerated wounds in the parietal region of the head. Multiple (4) hematoma located in the frontal region.

(7) Multiple (3) abrasions in the anterior left chest, right knee and another in the anterior surface of the lower right lip. Dr. Abelardo Lucero, medical examiner of the Manila Police Department, who examined the cadaver of Bocaling, said that the cause of death was "intrapericardial tamponade due to multiple four (4) stab wounds lacerating the heart, liver and diaphragm; blunt injuries, contributing." Stab wound No. (1) which was "directed obliquely upwards to the left and slightly to the back lacerating the right lobe, liver, diaphragm, through the right ventricle of the heart" was fatal. The incident was reported to Precinct 9 at Sta. Ana. It was investigated by Detective Amador Jose, Manila Police Department (MPD), who was on duty as investigator of the Precinct. The statements of Ramon Ching and one Manuel Sta. Brigida were taken. After a follow-up of the case, Detective Jose found and established the identities of the suspects as the abovenamed accused Roberto Molleda alias Tikboy, Virgilio Baluyot alias Boy Bakal, Reynaldo Nicolas alias Boy Miroy all members of the Sigue-Sigue Sputnik gang and Evelyn Duave alias Baby China. LLpr

Meanwhile, shortly after the mauling incident, on the evening of January 7, 1971, Molleda, Nicolas, Baluyot, Duave and Melinda proceeded to Cine Rey. Thereafter, they went to the house of a friend, Chiqui, where they tarried for a while. They then proceeded to the house of Evelyn Duave who gave her electric fan to Nicolas who in turn hocked the same to her aunt, Alicia Nicolas, who lives at Sta. Ana, Pateros, Rizal. Thereafter, they proceeded to Olongapo City after they received information that masked men were coming back to Suter Street. While in Olongapo, the group stayed in the house of another friend, one Carling Esmeralda on Pag-asa street. After a day or so they rented a house near Gordon Avenue somewhere near Pag-asa street. Evelyn and Melinda continued with their calling and worked as hostesses to provide the expenses of the group, who were then in hiding. But the long arm of the law finally caught up with them in their hiding place and on March 5, 1971, Roberto Molleda fell into the hands of the operatives of the Anti-Hoodlum Unit thru which the alarm for the apprehension of the suspects was flashed. Molleda was brought to Manila for investigation in connection with the killing of Bocaling on January 7, 1971. Virgilio Baluyot, Reynaldo Nicolas and Evelyn Duave also fell into the hands of the law and were also likewise brought to Precinct 9, Sta. Ana, Manila, for investigation. Melinda, the common-law-wife of Reynaldo Nicolas was able to evade the operatives of the Anti-Hoodlum Unit and has remained at large. During the investigation Roberto Molleda, who was investigated by Det. Amador Jose, gave his statement on April 5, 1971; while Virgilio Baluyot and Reynaldo Nicolas gave their written statements on April 4 and 5, respectively before Pat. Nestor T. Miguel. Evelyn Duave was present when the three pointed to her as their companion and incriminated her; she did not contradict their statements. Molleda's account of the killing follows xxx xxx xxx

ang dalawa sa mga lalaking nagnakaw ng kanyang pera at ng rape sa kanya ay nanduon sa isang bahay duon sa Suter. Sta. Ana, Manila at kami ay naglakad na papunta doon sa nasabing bahay. Nagdaan ako sa isang patay duon sa Suter at sina Boy Miroy, Boy Bakal, Baby China at Melinda na lamang ang nagpunta duon sa bahay na pinagiinuman na binangit ni Baby China. Pagkaraan ng humigit kumulang sa beinte minutos ay nakita ko silang nagdaan papunta ng Tejeron at akbay ni Boy Miroy ang isang lalaki at akbay din ni Boy Bakal ang isa pang lalaki at kasama nila sina Baby China at Melinda at ako'y sumunod sa kanila. Nang malapit na kami sa kanto ng Tejeron ay pinalo ni Boy Bakal ng hibilya ng sinturon sa ulo ang lalaking akbay niya at sinuntok naman ni Boy Miroy iyong lalaking akbay niya at nakatakbo ang nasabing lalaki. Nahawakan ni Boy Bakal iyong lalaking akbay niya, hinabol namin ni Boy Miroy iyong lalaking nakatakbo at hindi namin siya inabutan at nagbalik at nakita ko na bagsak na sa daan dahil sa palo iyong lalaking nahawakan ni Boy Bakal. Dumampot ng isang kahoy si Boy Miroy at pinagpapalo sa ulo iyong lalaki. Sinaksak ko naman ang nasabing lalaki ng isang kutsilyo sa kanyang tiyan at pinagpapalo pa ni Boy Bakal at Boy Miroy ang lalaking sinaksak ko habang sinasabi ni Baby China na tuluyan siyang patayin kung hindi isasauli iyong pera niya. Pagkatapos na murahin ng marami ang lalaking sinaksak ko ay umalis na kami at nagpunta kami duon sa bahay na may patay at pagkatapos ay nagpunta kami sa Pateros, Rizal, at duon kami nagpaumaga at kinabukasan ay nagpunta kami sa Olongapo City. cdll Baluyot's account in turn, follows 06. T Maaari ba naman na isalaysay mo sa pagsisiyasat na ito, kung ano ang mga bagaybagay na iyong nalalaman na may kinalaman din naman sa patayan na naganap sa Suter St., Sta. Ana, Manila? S Ganito po iyon, kami pong tatlo nina BOY MIROY, TIKBOY at AKO ay nag-inuman sa Makati, Rizal, sa Tejeron St., sa loob ng Bagong Bituin Restaurant nuong gabi ng mga oras na humigitkumulang sa ika 9:00 ng gabi ng bago mangyari ang patayan sa daang Suter at matapos na kami ay makapag-inuman ay umuwi na at pagdating namin sa kanto ng Suter at Tejeron ay aming nakita itong si Baby China tinawag po ni Baby China sina BOY MIROY at TIKBOY at niyaya na magtuloy sa bahay nila POPOY na ang tunay na pangalan ay MANUEL STA. BRIGIDA at sila po ay nag-inuman samantalang ako po naman ay nasa bahay nina ELSA na nakaburol ng mga pagkakataong iyon na malapit sa bahay nina POPOY at hindi po natagalan ay lumabas sina TIKBOY, BOY MIROY, MELINDA, BABY CHINA, at may kasama pang dalawang lalaki na hindi ko po kilala at ako po ay kinalabit ni BOY MIROY at sinenyasan naman ako ni TIKBOY na sumunod sa kanila at nang kami po ay naglalakad ay aking tinanong si BOY MIROY kung bakit at sinabi niya sa akin na ang dalawang lalaki na kanilang kasabay ay mayroong atraso kina BABY CHINA at MELINDA at mayroon tatak na BAHALA NA GANG, inakbayan po ni BOY MIROY ang isa sa dalawang lalaki at ang isa po naman sa kanila ay kinausap namin ni TIKBOY, at tinanong kung saan sila umuuwi at ako po ay nagpakilala na ako si BOY at samantalang kami po ay naglalakad na, nauuna si BOY MIROY at kaakbay ang isa sa dalawang lalaki ay nakita ko na sinuntok ni BOY MIROY ang kanyang kaakbay at ang kasabay naman namin ni TIKBOY ay tumakbo at kami naman ni TIKBOY ay tumakbo palapit kay BOY MIROY at tinanong ko si BOY MIROY kung bakit niya sinuntok o inumpisahan at sinabi niya sa amin ni TIKBOY na iyon ang siyang nagnakaw ng pera ni BABY CHINA at matapos na aking malaman kay BOY MIROY na iyon ang siyang nagnakaw ng pera ni BABY CHINA ay sinuntok ko po iyon (lalaki) at bumagsak sa lupa at ng iyon po ay bumulagda ay nilapitan naman siya ni TIKBOY at sinaksak at si BOY MIROY po naman ay kumuha ng isang pirasong kahoy, pinalo po niya sa ulo, likod at ibang parte ng katawan ang nakahandusay na tao at ako po naman ay hinugot ko ang aking sinturon at pinalo ng hibilya ang taong nakahandusay at bago kami umalis ay minsan ko pang hinataw ng hibilya ng aking sinturon ang tao na tumama sa kanyang noo at ako po at si BOY MIROY ay tinawag ni TIKBOY at nagsabi na "PARE, HALIKA NA KAYO, TAMA NA YAN" at habang kami po ay papalayo sa lugar na pinangyarihan ay sinabi niya sa amin ni BOY MIROY na sinaksak niya iyong tao at kami ay nagtuloy sa patay at hindi nagtagal ay mayroong dumating na taong lalaki at kinausap si BOY

07. T Sino sino ang mga kasama mo sa pagpatay sa isang lalaki duon sa Suter, Sta. Ana, Manila, nuong 10:00 ng gabi, Enero 7, 1971 na binanggit mo sa itaas nito? S Ang mga kasama po ay sina Reynaldo Molleda alias Boy Miroy, si Virgilio Baluyot alias Boy Bakal, at si Baby China, at si Melinda. 08. T Saan naruroon ngayon sina Virgilio Baluyot, Reynaldo Nicholas, Baby China at Melinda?

S Ayun po sina Reynaldo Nicholas, alias Boy Miroy, Virgilio Baluyot, alias Boy Bakal, Baby China na ang tunay na pangalan ay Evelyn Duave y Ortega at si Melinda po ay wala rito. (Itinuro ang mga nabanggit na mga tao na nasa loob ng opisina). 09. T Maaari mo bang sabihin dito sa amin ang mga bagay-bagay tungkol sa ginawa ninyong pagpatay duon sa isang lalaking ipinaalam namin sa iyo na si Alfredo Bocaling y Barcenas ng mga 10:00 ng gabi, Enero 7, 1971, sa Suter, Sta. Ana, Maynila? S Opo. Nuong hapon ng Enero 7, 1971, kami nina Reynaldo Nicolas alias Boy Miroy at Virgilio Baluyot alias Boy Bakal ay nag-inuman ng alak sa Bagong Bituin Restaurant sa J. Rizal Ave., Makati, Rizal, at inabot kami ng gabi doon. Nuong mga 10:00 ng gabi ng araw na iyon ay umalis kami sa nasabing restaurant at sumakay kami ng isang pangpasaherong jeep at bumaba kaming tatlo sa kanto ng Tejeron at Suter at sinalubong kami ni Baby China at Melinda at sinabi ni Baby China sa amin na pinagnakawan siya ng pera at nirape pa siya sa isang hotel ng ilang lalaki. Sinabi ni Baby China na

MIROY at TIKBOY at ng bumalik po sina BOY MIROY at TIKBOY, tinawag ako na nang mga pagkakataong iyon ay umiinom ng kape at sinabi sa akin noong tao na tumawag sa kanila na patay na iyong tao at ako nga po ay niyaya na nilang magtago. xxx xxx xxx

Makati, Rizal. Kinuha ni Evelyn ang kanyang bentilador at iyon po ay ibinigay sa akin at isinanla ko naman kay Alicia Nicholas na aking tiyahin na nakatira sa Sta. Ana Pateros, Rizal, at nagtuloy na kaming magkakasama sa Olongapo City. xxx xxx xxx

11. T Ayon sa iyo ay nagkasama kayo nina BABY CHINA, MELINDA, TIKBOY at BOY MIROY, sa isang bahay na inyong inupahan sa Olongapo, nalalaman mo ba naman kung saan ngayon naroroon itong iyong mga kasamahan na ito? S Si BABY CHINA at BOY MIROY po ay narito ngayon dito sa presinto ng Sta. Ana at nakakulong at si TIKBOY po naman ay nakakulong din sa Olongapo City ayon sa kina BABY CHINA at BOY MIROY, dahilan iyon daw po sa mayroong pending case doon at si Melinda po naman ay hindi ko alam. 16. T Sinabi mo na itong si MIROY ay narito ngayon dito sa presinto ng Sta. Ana, Manila, at itong si Baby China, sila ba ay narito ngayon? S Opo, ito po si BOY MIROY (Declarant pointing to the person Reynaldo Nicholas y Manansala) at iyon po naman si Baby CHINA (Declarant pointing to the person Evelyn Duave y Ortega). xxx xxx xxx

20. T Saan naman kayo kumuha ng inyong iniuupa sa bahay na inyong inupahan sa Gordon Avenue? S Nag-hostess po si BABY CHINA at ang aking asawa na si MELINDA. xxx xxx xxx

On June 11, 1971, after trial, the court a quo rendered its decision, which in detailing its rationale for its findings on the guilt of the herein accused-appellants and its sentence held as follows: As to the proofs on record, i.e., the eyewitness testimony of Ching and the extrajudicial statements which establish the conspiracy to kill Alfredo Bocaling xxx xxx xxx

And Nicolas' account follows xxx xxx xxx

09. T Sinabi mo na ikaw ay narito sa aming tanggapan, dahilan sa pagkakapatay ninyong magkakasama na iyong binanggit sa salaysay na ito, sa isang tao, noong ika-7 ng Enero, 1971, sa Suter St., maaari ba naman isalaysay mo sa lalong maikling pananalita ang buong pangyayari? S Ganito po iyon, nasa Makati po kami at nag-iinuman sa Bagong Bituin Restaurant na nasa daang J. Rizal. Matapos po kaming mag-inuman, kami ay umuwi at pagdating namin sa kalye Suter, Maynila ay nasalubong namin si Evelyn at nagsumbong sa akin na iyon daw pong tao na nagnakaw ng kanyang pera ay naroon sa bahay nina Manuel Sta. Brigida na nasa kalye Suter, kami nina BOY MIROY, EVELYN at TIKBOY ay nagpunta doon at sa pagdating po namin doon ay tamangtama na lumalabas na sila, tinawag ko po sila ng "PARE PUEDE BANG MAKAUSAP KAYO SANDALI" at kinalabit po ni TIKBOY SI BOY BAKAL o VIRGILIO BALUYOT na ng mga sandaling iyon ay nasa lamayan at aming sinabayan ang dalawang tao sa paglakad nila sa kalye Tejeron hanggang kanto ng kalye Suter at aking sinuntok iyong isa sa dalawang magkasama at lumapit sina BOY BAKAL at TIKBOY sa akin at ako po ay tinanong ni BOY BAKAL kung bakit ko sinuntok, ang sagot ko ay ito raw ang nagnakaw ng pera ni Evelyn at matapos na malaman ni BOY BAKAL ay sinuntok niya iyong tao at bumagsak naman at lumapit si TIKBOY at sinaksak iyong tao at pagkatapos po niyon ay hinagupit ng sinturon ni BOY BAKAL iyong tao at kami ay tinawag ni TIKBOY at sinabi na tama na pare at umalis na kami. xxx 14. xxx xxx

The testimony of Ramon Ching indubitably shows that the four (4) accused conspired and confederated with one another in killing the victim. Ching testified in a categorical, spontaneous, straightforward and logical manner with marked ease and fluency that while he and the victim (Alfredo Bocaling) were on the way to the intersection of Suter and Tejeron Streets, Manila, with the four (4) accused and others like a certain Melinda, he was boxed by Nicolas on the nape. Bocaling was also boxed on the nape either by Molleda or Baluyot and for which he shouted "Takbo na tayo, Freddie". He ran towards Herran St. with two or three persons chasing him, while Bocaling fell at the corner of Suter and Tejeron possibly because he tripped. While he was being chased, he turned his back towards Suter and saw several persons helping one another in mauling the victim. The victim was being hit by a belt, bottles and pieces of wood. Accused Molleda, Baluyot and Nicolas were among those persons mauling the victim. Accused Duave also participated in the mauling of the victim by hitting him with a belt. The positive categorical testimony of Ching became more convincing in the cross-examination to which he had been exposed wherein he reiterated in full details the mauling of the victim. He declared that he was running sidewise when he saw Bocaling being mauled and he was only eighteen (18) meters away from him. There was even a light at the corner about twelve (12) meters away from where the victim was mauled. He looked back three (3) times while running and the first time he looked back, he saw the victim already being mauled. He even demonstrated with particularity how Duave hit the victim with a belt by taking hold of a leather belt, rolled the end of it around her right palm and with the buckle at the other end made a swinging motion of the belt from his back to the front and at the same time made a step forward. The fact that no evil or bad motive was presented by the accused why Ching will testify in the manner he did if such were not the fact further augments his testimony. Settled is the rule that where no evidence whatsoever have been presented to show bad or evil motive why the witnesses for the prosecution should have testified falsely against the defendant (People versus Macalindong, 76 Phil. 719), and where the defendant failed to show that the prosecution witnesses have any special interest in the conviction of the accused, the logical conclusion is that no such improper motive existed and their testimony is worthy of full faith and credit (People vs. Borbono, 76 Phil. 702; People vs. Baquio, 77 Phil. 427). Prosecution witnesses who had no reason to falsely impute on the defendants the commission of so grave an offense deserve credence (People vs. Albapara, L-25001, March 15, 1968).

T Ano naman ang ginawa ninyo matapos na inyong mapag-alaman na patay na iyong tao?

S Amin po ipinaalam kay BOY BAKAL na patay na ang tao na aming binugbog sa kalye Suter at kami po ay nagpunta sa bahay ni EVELYN Sa kalye San Jose malapit sa kanto ng Legaspi,

It cannot be assumed that in seeking justice and the punishment of the assailant, prosecution witnesses would indiscriminately and without any motive, point to the wrong parties (People vs. Ricaplaza, L-25856, April 29, 1968). The testimony of Ching that the accused helped one another in assaulting the victim is corroborated by the extra judicial confessions of accused Molleda, Baluyot and Nicolas. Accused Roberto Molleda admitted in his statement (Exhibit 'G') that he stabbed the victim on the stomach with a kitchen knife while Baluyot and Nicolas were hitting the victim all to the tune of Duave's utterances that they kill the victim if he will not return her money. Virgilio Baluyot also admitted in his statement (Exhibit 'H') that after he was informed by Nicolas that the victim was the one who stole the money of Duave, he boxed the victim who fell on the ground. While already in that position, Molleda approached the victim and stabbed him while Nicolas got a piece of wood and hit the victim on the head, at the back and other parts of his body. At this juncture, he pulled his belt and hit the victim with the buckle while the latter was lying flat on his back. In the process, Duave was giving orders to maul the victim as he was really the one who stole her money. Before they finally left, he even hit again the victim's forehead with the buckle of his belt. Reynaldo Nicolas likewise admitted in his statement (Exhibit 'I') that he boxed the victim and thereafter, the victim was boxed again by Baluyot and stabbed by Molleda. The trial court then explained why the extra-judicial confessions of the three Molleda, Baluyot and Nicolas were admissible against Evelyn Duave alias Baby China, and cited decisions in support thereof These extra-judicial confessions of Molleda, Baluyot and Nicolas which identically show also that Duave instigated the assault on the victim can be taken likewise against Duave. It has been repeatedly held that 'extra judicial confessions independently made without collusions, which are identical with each other in their essential details and are corroborated by other evidence on records are admissible as circumstantial evidence against the person implicated to show the probability of the latter's actual participation in the commission of the crime. (People v. Condemena, L-22426, May 29, 1968; People vs. Provo, L-28347, January 20, 1971). In this particular case, Ching corroborated the fact that Duave was one of those who assaulted the victim by hitting him with the buckle of a belt. xxx xxx xxx

concocted by the investigators the said statements are considered to have been voluntarily given (People v. Dorado, L-23464, Oct. 30, 1969). The Court has likewise observed that the statements of the accused were not only subscribed but signed before the Inquest Fiscal who, before swearing the accused, even inquired from them whether their statements contained the truth and they so answered in the affirmative. They did not make any complaint or protests before the Fiscal. It is well established jurisprudence that where the confession was subscribed and sworn to by the appellant before an Assistant City Fiscal of Manila and it was not shown at all that appellant ever hesitated or refused to sign and swear to the same, much less did he protest to the fiscal regarding the way he was investigated, the confession is considered to have been voluntarily given. (People v. Racca, et al., L-15812, December 30, 1961; People v. Dorado, L-23464, October 31, 1969). The Court then observed that the injuries inflicted on the victim as revealed in the statements of the accused were corroborated by the post-mortem findings and the testimony of the lone eye-and earwitness to the killing It is also worthwhile to note that the injuries inflicted on the victim as confessed by Molleda, Baluyot and Nicolas in their respective statements were corroborated by the post-mortem findings of Dr. Lucero. The post-mortem findings (Exhibit 'E') shows that the victim actually suffered stab wounds on the front part of his body, namely, one 'in the left anterior chest at the level of the anterior axillary line' (wound no. 3) and another one 'in the right axillary line at the level of the 6th interspace' (wound no. 1). These wounds corroborated the stabbing of the victim as admitted by Molleda. The four (4) hematomas located in the frontal region or on the forehead of the accused (wound no. 6, Exhibit 'E'), corroborated the fact that the victim was hit with a piece of wood by Nicolas or a buckle and the two (2) lacerated wounds on the parietal region of the head (wound no. 5, Exhibit 'E') bolster the fact that accused was hit also by a blunt or a hard object. The same is true with the abrasions on the anterior left chest, right knee and on the anterior surface of the right lower lip (wound no. 7, Exhibit 'E'). They indicate that the victim had really been hit by a blow of a blunt object. llcd It is important to stress that the facts narrated in the confession of the accused were more or less corroborated by the testimony of Ramon Ching. In the statements of Molleda (Exhibit 'G'), it was admitted therein that a companion of the victim was boxed but be was able to run away, hence, they chased him. Ching testified that he was boxed on the nape and he was able to run away but chased by the friends of the accused. Ching also testified that the four (4) accused helped one another in assaulting the victim. The Court noted that all the accused fled to Olongapo City after the murder The fact that accused Molleda, Baluyot and Nicolas truthfully confessed their participation in the commission of the crime is further augmented by the fact that they, with Duave and Melinda, fled from the crime scene to Olongapo City immediately after the happening of the incident. Nicolas testified in Court that he and Baluyot went to Olongapo the day immediately after the incident and there saw Duave and Melinda Baluyot also testified that they all did not go home that evening but went straight to Olongapo City after staying for a while in Chiqui's house but two (2) weeks after, he left Olongapo and went to the house of his aunt in Pasig, Rizal, instead of going to his residence in Suter, where he was apprehended. Duave likewise testified that she went to Olongapo with Melinda on January 8, 1971. And it has been held that 'the wicked flee, when no man pursueth but the righteous are as bold as a lion' (US vs. Algad, 25 Phil. 510; U.S. vs. Uy, 37 Phil. 618; People vs. Manalo and Atienza, 46 Phil. 572). This is especially true in this case where all the accused were not able to

In passing upon the claims of the accused that their statements were extracted from them through third degree, i.e., maltreatment, force and intimidation, the trial court observed The claim of accused Molleda, Baluyot and Nicolas that they were forced to give their statements has the earmark of artificiality. Their statements contain details which could only be given by them and for which the police could not be much interested or possibly concoct like for example, the fact that they assaulted the victim because according to Duave he was the one who raped her and stole her money; that they first came from the Bagong Bituin Restaurant in Rizal, Makati, where they had a drinking spree before they proceeded to Suter and many more. The answers to the questions appearing in the statements of the accused appear also to be fully informative and even beyond the requirements of the question indicating that the minds of the accused were free from extraneous restrain. It has been held that where the statements of the appellants in answer to the questions are responsive and informative containing details which only the declarant could have furnished, and could not have

explain their flight to Olongapo, and flight, when unexplained, is proof of guilty (People vs. Bacra, L11485, July 11, 1958; People vs. Cidro, L-11804, February 28, 1959). Only Baluyot made the explanation that he went to Olongapo because they received news that masked men were coming back, which explanation however, being uncorroborated and made in general terms is too flimsy to discuss. The Court also considered the defenses alibi and non-participation put up by the accused Accused interposed different defenses. Roberto Molleda interposed the defense of alibi for the reason that in the evening of January 7, 1971, he was in Olongapo City. But alibi, however, is considered a weak defense not only because of the facility with which it is fabricated but also because it is so easy for witnesses to get confused as to the dates (People vs. Ramos, L-17404-03, August 31, 1963) and becomes worthless in the face of positive identification by prosecution witnesses pointing to the accused as particeps criminis (People vs. Peralta et al., L-19019, October 29, 1968). In this particular case, the alibi of Molleda does not measure up to that standard for here he was categorically and positively identified by witness Ramon Ching. He was even invariably implicated by his co-accused Baluyot and Nicolas in their respective statements and which statements according to the case of People v. Condemena and People v. Provo, supra, can be considered against him. Accused Baluyot, Nicolas and Duave admitted their presence in the crime scene but denied, however, having inflicted any injury on the victim. but their testimony lack the sincerity and candidness of a credible testimony. They cannot prevail over and above the positive, categorical and clear testimony of Ramon Ching whom this Court found to have passed the test of credibility as he appeared to be very truthful in his behavior giving quick, frank and straight-forward answers to all material questions in an easy and fluent manner. The denial of Baluyot and Nicolas likewise falls by its own weight in the light of their respective extra-judicial confessions which this Court found to have been voluntarily given. But what exposed the inherent weakness of the denial of Baluyot, Nicolas and Duave is, as discussed before, their failure to explain why they fled to Olongapo in the following morning after the incident. Finally, as to the nature of the crime committed by the accused, the trial court held The crime committed is murder qualified by taking advantage of superior strength. It is clear from the testimony of Ramon Ching and the extra-judicial confessions of Molleda, Baluyot and Nicolas that all of the four accused armed with pieces of wood, bladed instrument and belt helped one another in assaulting the victim who was alone and unarmed. The fact that said accused took advantage of the superiority that their number and arms can afford is shown by the fact that they were able to mercilessly and indiscriminately assault the victim inflicting on him three (3) stab wounds, one (1) punctured wound, two (2) multiple lacerated wounds, four (4) hematomas and eight (8) abrasions on the different parts of his body (Exhibits 'C' and 'E'). The said injuries show that the victim was not match at all to the accused. The aggravating circumstance of deceit is considered against all the accused. It appears from the statement of Molleda (Exhibit 'G') and that of Baluyot (Exhibit 'H') that all of the accused, with murder in their hearts, pretended to accompany the victim in a friendly manner in going home. And in order to lure the victim into a full sense of security and make him unmindful of the tragedy that will befall upon him one of the accused even placed his hand on the shoulder of the victim while walking, but before reaching the corner of Tejeron and Suter, the victim and his companions were immediately assaulted. s a matter of fact, there was deceit right from the start when Duave invited the victim and Ching to Suter upon meeting them in the Good Earth Emporium in Rizal Avenue, Manila, under the pretext of returning a radio. Upon arrival thereat, the victim and Ching were entertained in a drinking

spree and in the course thereof Duave left and contacted her co-accused and informed them that the persons who raped and robbed her in the hotel are in the house drinking. All the while, the victim and Ching did not know of the evil plot to liquidate them. These facts were established by the testimony of Ching and the statements of Molleda, Baluyot and Nicolas. The Court did not consider anymore treachery as it is absorbed already in abuse of superior strength (People vs. Redoa, 87 Phil. 743; People v. Alcantara, 33 SCRA 812). Neither did it consider evident premeditation because there was no showing that there was a sufficient length of time that transpired from the plan to kill to the actual killing of the victim for the accused to coolly and serenely think and deliberate on the consequences of their evil act (People v. Mendoza, et al. 91 Phil, 64). The penalty imposed herein may seem harsh especially on Evelyn Duave but considering, however, the gruesome killing of the victim whom they beat and stabbed to death with extreme cruelty the Court has no alternative but to impose it for the law gives no mercy to perpetrators of heinous crime. As a matter of fact, even the Beatitudes says that only the merciful shall receive mercy. xxx xxx xxx

The four accused-appellants filed three separate briefs. * Roberto Molleda alias Tikboy raises the following Assignments of Errors: I THE TRIAL COURT ERRED IN NOT REJECTING THE SUPPOSED CONFESSION OF MOLLEDA, AS NOT ALL THE WITNESSES TO IT TESTIFIED, PARTICULARLY CONSIDERING THAT IT WAS REPUDIATED BY SAID ACCUSED AND THAT THIS CASE INVOLVES THE CAPITAL PENALTY. II THE TRIAL COURT ERRED IN TAKING AS PROOF OF GUILT OF MOLLEDA THE CIRCUMSTANCE OF FLIGHT TO OLONGAPO AS HE WAS A RESIDENT OF AND EMPLOYEE IN THAT CITY. III THE TRIAL COURT ERRED IN REJECTING MOLLEDA'S OF ALIBI. IV ASSUMING, IN GRATIA ARGUMENTI, THAT ACCUSED HELPED KILL THE OFFENDED PARTY, THE TRIAL COURT ERRED IN CONVICTING HIM FOR MURDER, AS THE QUALIFYING CIRCUMSTANCE OF SUPERIOR STRENGTH ALLEGED IN THE INFORMATION WAS NOT DULY PROVED DURING THE TRIAL. V ASSUMING, IN GRATIA ARGUMENTI, THAT ACCUSED HELPED KILL THE VICTIM, THE TRIAL COURT ERRED IN FINDING THAT THE COMMISSION OF THE OFFENSE WAS CHARACTERIZED BY DECEIT. VI

ASSUMING, IN GRATIA ARGUMENTI, THAT ACCUSED HELPED KILL THE VICTIM, THE TRIAL COURT ERRED IN FINDING THAT CONSPIRACY EXISTED AMONG APPELLANT MOLLEDA AND HIS CO-ACCUSED. VII

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS OF THE CRIME OF MURDER ON THE GROUND THAT THE ALLEGED QUALIFYING CIRCUMSTANCE OF USE OF SUPREME (SIC) STRENGTH WAS NOT PROVED BEYOND REASONABLE DOUBT. V

ASSUMING, IN GRATIA ARGUMENTI, THAT ACCUSED HELPED KILL THE VICTIM, THE TRIAL COURT ERRED IN NOT FINDING THAT ACCUSED WAS ENTITLED TO THE MITIGATING CIRCUMSTANCE OF INTOXICATION. VIII THE TRIAL COURT ERRED IN ADMITTING ACCUSED'S SUPPOSE I CONFESSION SINCE, DURING THE INTERROGATION, HE WAS NOT DULY AFFORDED THE RIGHT TO COUNSEL AND OTHER CONSTITUTIONAL RIGHTS GUARANTEED TO SUSPECTS. IX THE TRIAL COURT ERRED IN CONSIDERING AGAINST MOLLEDA EVIDENCE COMPRISING THE FRUITS OF AN ILLEGAL ARREST WITHOUT A WARRANT. X THE TRIAL COURT ERRED IN NOT FINDING THAT THE WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED WAS EXTORTED BY FORCE, VIOLENCE AND INTIMIDATION. XI THE TRIAL COURT ERRED IN FINDING MOLLEDA GUILTY BEYOND A REASONABLE DOUBT. Evelyn Duave y Ortega alias Baby China raises the following Assignments of Errors: I THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF RAMON CHING IMPLICATING ACCUSED-APPELLANT EVELYN DUAVE ON THE GROUND THAT SAID TESTIMONY IS INCREDIBLE AND CONTRARY TO THE NATURAL COURSE OF THINGS. II THE LOWER COURT ERRED IN FINDING THAT ACCUSED-APPELLANT EVELYN DUAVE HAD NO EXCUSE IN HER FLIGHT TO OLONGAPO CITY. III THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE TESTIMONIES OF ACCUSED APPELLANTS. IV

THE LOWER COURT ERRED IN FINDING THAT THERE WAS A QUALIFYING CIRCUMSTANCE OF DECEIT IN THE INSTANT CASE. VI THE LOWER COURT ERRED IN GIVING CREDENCE TO THE STATEMENTS MARKED EXHS. 'G', 'H' AND 'I' BECAUSE THEY WERE OBTAINED THROUGH FORCE AND MALTREATMENT AND MOREOVER, THEY ARE INADMISSIBLE AGAINST ACCUSED-APPELLANT EVELYN DUAVE. VII THE LOWER COURT DENIED THE ACCUSED-APPELLANTS DUE PROCESS OF LAW WHEN IT GAVE THEM ONLY ONE DAY TO PREPARE THEIR DEFENSE. Reynaldo Nicolas alias Boy Miroy and Virgilio Baluyot alias Boy Bakal raise the following Assignments of Errors: I IN GIVING CREDENCE TO THE STATEMENT OF APPELLANT MARKED EXHIBITS 'G', 'H' AND 'I', ALLEGED EXTRA-JUDICIAL CONFESSIONS OF ACCUSED ROBERTO MOLLEDA, VIRGILIO BALUYOT AND REYNALDO NICOLAS, RESPECTIVELY, DURING THE INVESTIGATION OF THE SAID ACCUSED IN PRECINCT 9 OF THE MANILA POLICE DEPARTMENT. II IN NOT GIVING CREDENCE ON THE TESTIMONIES OF THE HEREIN APPELLANTS. III IN FINDING THAT THE FOUR ACCUSED CONSPIRED AND CONFEDERATED WITH ONE ANOTHER IN KILLING THE VICTIM. IV IN FINDING THAT THERE WERE QUALIFYING CIRCUMSTANCES OF USE OF SUPERIOR STRENGTH AND DECEIT IN THE INSTANT CASE. V IN DENYING THE ACCUSED-APPELLANT DUE PROCESS OF LAW. For the purpose of this mandatory review and in the interest of logical and systematic treatment of the foregoing several assignments of errors raised by the four accused-appellants in their separate briefs, the errors alleged and relied upon by them in their respective briefs for the reversal of the trial

court's findings and sentence which are similar and therefore duplicate each other in many respects may be collated and discussed logically as follow. Accused-appellants, in synthesis, claim that the Circuit Criminal Court erred (1) In according credence to the testimony of prosecution witness, Ramon Ching, (Error I, Duave); (2) In admitting the confessions of accused-appellants Molleda, Nicolas and Baluyot (Exhibits "G", "H" and "I") (Errors I, VIIl, IX & X, Molleda; Error I, Nicolas and Baluyot); (3) In according credence to the extra-judicial confessions of accused Molleda, Nicolas and Baluyot and in holding that the same are admissible against accused-appellant Duave (Error VI, Duave); (4) In rejecting accused-appellant's defenses (Error III, Molleda; Error III, Duave; Error II, Nicolas and Baluyot); (5) In not according credence to the testimonies of accused-appellants (Error III, Duave; Error II, Nicolas and Baluyot): (6) In appreciating the qualifying circumstance of superior strength (Error IV, Molleda; Error IV, Duave; Error IV, Nicolas and Baluyot); (7) In appreciating the aggravating circumstances of "deceit" (Error V, Molleda; Error V, Duave; Error IV, Nicolas and Baluyot); (8) In finding that conspiracy existed among the appellants (Error VI, Molleda; Error III, Nicolas and Baluyot); (9) In taking their trip to Olongapo as proof of guilt (Error II, Molleda; Error II, Duave); and,

ease. . .", that while he and the victim (Alfredo Bocaling) were at the intersection of Suter and Tejeron streets, Manila, he saw Bocaling being mauled and ganged upon (pinagtutulungan) by all the herein accused including appellant Evelyn Duave alias Baby China. LexLib The bare, self-serving assertion of appellant Duave, which is a mere generalized hypotheses, i.e., that as a woman she could not have committed the acts imputed to her, cannot prevail over the positive and categorical testimony of Ching on a matter of fact, which was able to withstand the crossexamination of appellant's counsel. In addition, as the trial court observed, appellant Duave could not point to any evil or bad motive on the part of Ching to testify in the manner that he did, positively naming the herein accused Duave as having taken an active part in mauling the victim by hitting him with the buckle of a belt. In a clash between a fact, as testified to by a credible witness, and a self-serving hypotheses, as alleged by the accused herself, the trial court cannot be faulted for electing to accord credence to the former and disbelieving the latter. This is specially so where, as in the case at bar, the eye-witness account is corroborated by other evidence on record, consisting of confessions of her co-conspirators and now, co-accused [Exh. "G" (Molleda), "H" (Baluyot) and "I" (Nicolas)]. 2. That the extra-judicial confessions of accused Molleda, Nicolas and Baluyot are not admissible in evidence. It is urged in connection with the second common error assigned, that, as the case involves a capital offense, there was need for the prosecution to call on everyone who witnessed the execution of Exhibit "G", the extra-judicial confession of accused Molleda (Error I, Molleda); that accused Molleda was not afforded the right to counsel during the interrogation (Error VII, Molleda); and that his extra-judicial confession should not have been taken into account, since the same is the result of an illegal arrest without a warrant (Error IX, Molleda). It is also urged that the extra-judicial statements of Baluyot and Nicolas (Exhibits "H" and "I", respectively) were obtained thru maltreatment, torture and intimidation and should have been rejected (Error I, Baluyot and Nicolas). In brief, appellants Baluyot and Nicolas argue that their extrajudicial confessions (Exhibits "H" and "I") were extracted thru intimidation and maltreatment; and appellant Molleda in turn claims that the offense charged being capital in nature, the prosecution should have called on everyone who witnessed the execution of Exhibit "G" to testify thereon; that he was not afforded the services of counsel in the course of his investigation; and, that, having been allegedly illegally arrested, his statement is inadmissible in evidence. Appellants Nicolas' and Baluyot's claim that the trial court should have rejected their extra-judicial confessions, to wit, Exhibit "H" and Exhibit "I" on the ground that these were not voluntarily given but were obtained by force, violence and coercion, is bereft of any evidentiary support apart from their own testimonies to this effect. The records also show that they never complained to anyone that they were maltreated or tortured in the course of their investigations. Upon the other hand, the trial court's finding that the statements including that of appellant Molleda (Exh. "G") were voluntarily executed, is premised on the facts that the accused were investigated in the open and before several witnesses; that they were thereafter brought in the presence of the Inquest Fiscal before whom they signed and affirmed to the truth of their statements; and that the same contain details which could have been given only by the accused themselves. The trial court, therefore as maintained by the Solicitor General in his reply briefs correctly concluded that the same were voluntarily given and consequent are admissible in evidence. 1 Since no evidence was adduced by the appellants to support their claim that the confessions were extracted thru third degree, i.e., force and intimidation, apart from their self-serving assertions, there

(10) In denying the accused-appellants due process of law when it gave them only one day to prepare for their defense (Error VII, Duave; Error V, Nicolas and Baluyot). Now, to consider and resolve the foregoing, seriatim. 1. That the testimony of prosecution witness Ramon Ching should not have been accorded belief. It is urged as the main thrust of this assigned error by appellant Evelyn Duave that the account of the incident by prosecution witness Ramon Ching should not have been accorded belief because ". . . it is very unnatural for a woman to be standing amidst the mauling"; that ". . . it is hard to imagine a girl who would have the nerve to stand a gruesome sight"; and that it was impossible for the lone prosecution witness Ramon Ching to have observed, as he testified, that she hit the victim with a belt, in the manner he demonstrated in Court (Brief, Duave, pp. 14-18; Rollo, p. 194). We find this assigned error without merit. In the first place, the findings and conclusions of the trial court on the credibility of a witness are matters that are left mainly to its discretion because the trial court observed the demeanor and the manner of his testimony. And, as a matter of established jurisprudence, the findings of the trial court on the credibility of a witness are not disturbed on appeal unless it is shown that it failed to consider certain facts and circumstances which would change the same. The trial court held the eye and earwitness account of witness Ching as credible because he ". . . testified in a natural, systematic, straight-forward and logical manner with marked fluency and

was clearly no need on the part of the prosecution to present all the persons who witnessed the investigation to testify on the voluntary character of the confessions. Molleda's claim that he is entitled to counsel is without merit. The right to be represented by counsel at custodial investigation became effective and enforceable only after the enactment of the Constitution on January 17, 1973. 2 The investigations of the accused-appellants having taken place much earlier or in April 1971, the right to counsel was not applicable in their case. 3 Molleda's claim that his statement is inadmissible in evidence because it is the fruit of an illegal arrest is also not well-taken. Accused-appellants were apprehended by the Anti-Hoodlum Unit of the Manila Police Department while in hiding in Olongapo City on April 5, 1971, pursuant to an alarm flashed after they were identified and verified to be the perpetrators of the killing of Alfredo Bocaling on the evening of January 7, 1971. Upon being discovered in their hideouts in Olongapo, they were invited by the Anti-Hoodlum Unit for investigation on well-grounded suspicions for their part in the killing. The justification for arrests on reasonable suspicion that a person has committed an offense has been stated thus One of the duties of the policeman is to arrest lawbreakers in order to place them at the disposal of the judicial or executive authorities upon whom devolves the duty to investigate the act constituting the violation or to prosecute and secure the punishment thereof. One means of conducting to these ends is identification of the alleged criminal or lawbreaker, who should be arrested by the police for the purpose of such investigation. Thus, the policeman who in compliance with the orders of his chief, arrests a suspected criminal for the purpose of identification is not guilty of arbitrary detention. He has acted in the performance of his duty. It is not necessary that the crime should have been established as a fact in order to regard the detention as legal. 'The legality of the detention does not depend upon the actual commission of the crime but upon the nature of the deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen. 4 In point of fact, they were transported from Olongapo City to Precinct 9 at Sta. Ana of the Manila Police Department, which had police jurisdiction over the place where the offense was committed In the course of their investigations, all the three accused in the presence of several witnesses including their co-accused, Evelyn Duave who, it should be noted, did not give any statement confessed freely and voluntarily to the commission of the offense in Exhibits "G", "H" and "I". Their statements, as observed by the trial court, are rich in details which jibe with and corroborate each other, and thus show the earmarks of a free and voluntary statement. It is apparent that all the three accused wanted to make a clean breast of their respective participation in the commission of the offense, which they perpetrated on the evening of January 7, 1971, or three months earlier. Their claim now that they have been illegally arrested is rather late in the day and is clearly an after-thought, a transparent defense gimmick, to delay the trial and postpone their punishment. llcd 3. That the extra-judicial confessions, Exhibits "G", "H" and "I", should not have been accorded belief and credence; and that the same are not admissible as against accused Duave alias Baby China. It is urged in connection with the third common error that the trial court erred in according credence to the extra-judicial confessions. This, obviously is clearly without merit. The confessions having been voluntary and freely given are admissible in evidence. That they are rich in details which only the accused themselves could have given to the police rendered each and every statement not merely competent but also relevant and credible. Finally, the statements are corroborated by other evidence on record.

With respect to the claim that the same is not admissible against accused Evelyn Duave, the general rule is ". . . that an extra-judicial confession is admissible against the maker; it is incompetent evidence against his co-accused, with respect to whom it is hearsay." 5 This general rule is not without its exceptions. 6 Thus, it is now settled that "extra-judicial confessions independently made without collusion which are identical with each other in their essential details and are corroborated by other evidence on record are admissible, as circumstantial evidence, against the person implicated to show the probability of the latter's actual participation in the commission of the crime." 7 This doctrine was upheld by this Court as early as November 5, 1915 in U.S. v. Perez, 32 Phil. 163, 173, and has been repeatedly acknowledged and applied by this Court in several cases, e.g., People v. Lumahong, L-6357, May 7, 1954 and so forth. 8 In addition, the records show that accused-appellant Evelyn Duave alias Baby China was present personally when their statements were taken from each of the affiants, Molleda, Baluyot and Nicolas [Exhibit "G", Molleda, Question and Answer (Q & A) No. 08; Exhibit "H", Nicolas, Q & A No. 06; and Exhibit "I", Baluyot, Q & A, No. 11]. In each instance, the affiants pointed to Duave alias Baby China as a participant in the killing of the victim (Id., Molleda, Q & A No. 09; id., Nicolas, Q & A No. 09; and id., Baluyot, Q & A No. 06). Appellant Duave, thus acquiesced to these statements, because she did not contradict the same during the investigation. The same are, therefore, admissible in evidence even as against her. 9 4. That the lower court should not have rejected accused-appellants' defenses. It is urged in this fourth common error that the trial court erred in rejecting appellant's defenses. Appellant Molleda defended on the ground of alibi. But, as the trial court observed, the defense of alibi is a weak defense not only because of the facility with which it is fabricated but also because it is not uncommon for witnesses to get confused with the dates. In this case, not only did Molleda not present any witness to support his alibi, the records also show that he was implicated by his co-accused Nicolas and Baluyot in their extra-judicial confessions. Baluyot, Nicolas and Duave, in turn, admitted their presence at the scene of the crime at Suter street on the fatal night of January 7, 1971. They denied, however, having inflicting any injury on the victim. Their testimonies, however, as the trial court observed ". . . lacked sincerity and candidness" and, therefore, cannot prevail over the positive identification of eye-and ear witness Ramon Ching. This defense was also properly discredited in the face of Baluyot's and Nicolas' confessions of their participation in their extra-judicial confessions, where they implicated accused Duave who not only took an active and direct part in assaulting Bocaling, but urged them to do so as well. [Exh. "G" (Molleda), Q & A No. 09; Exh. "H" (Baluyot), Q & A No. 06; Exh. "I", Q & A No. 09]. This assignment of error is clearly without merit. 5. That the trial court should have accorded credence to the testimonies of the accusedappellants. Appellant Duave urges that the theory of the prosecution that because she was raped and robbed by Ching and Bocaling, she and Melinda lured and invited the two to join them from the Good Earth Emporium to Suter street, is improbable because their meeting was admittedly accidental; that, as the accused-appellants explained, the immediate cause of the incident in the evening of January 7 was when Ching molested Melinda by placing his hand over her shoulder, which Nicolas resented. Finally, she claims that the appellants testified clearly, logically and in a straight-forward manner (Brief, Duave, p. 19). Upon the other hand, appellants Nicolas and Baluyot urge in this regard, that the prosecution presented no evidence to support its theory that Duave was raped and robbed by Ching and Bocaling, except Exhs. "G", "H" and "I", and that the incident was triggered when Ching molested Melinda. (Brief, Nicolas and Baluyot, pp. 12-13).

The rule is well-settled that the issue of credibility is left to the discretion of the trial judge who has had the opportunity to observe the conduct and demeanor of the witnesses during the trial. Time and again, this Court has held that it will not alter the findings of the trial court on credibility of witnesses principally because they are in a better position to assess the same than the appellate court. Appellants herein have not shown any special or compelling reason why this rule should not be observed in their case. Cdpr The trial court accorded credence to the theory that Bocaling and Ching were lured and invited by accused-appellant Duave alias Baby China and Melinda to join them from the Good Earth Emporium to Suter street; that Duave and Melinda thereafter contacted their co-accused Molleda alias Tikboy, Nicolas alias Boy Miroy and Baluyot alias Boy Bakal all Sigue-Sigue Sputnik gang members whom they informed to the effect that the two Ching and Bocaling previously raped and robbed Baby China. That thereafter and as their intended victims, Bocaling and Ching, were on their way home, all the accused with obvious concert of purpose taking advantage of superiority and by means of craft, killed Bocaling and nearly succeeded to kill Ching, who was barely able to escape from their clutches. The trial court based its findings as to the motive behind the killing upon the confessions of the accused themselves (Exhibits "G", "H" and "I"). It should be noted that these confessions which were voluntarily and freely given and thereafter subscribed before the Inquest Fiscal of the City of Manila, immediately after they were apprehended at their hiding place in Olongapo were made when they had no opportunity to contrive their defense. This assignment of error, therefore, which is a mere statement of a self-serving assertion on their part, without any supporting evidence, is clearly without merit. The efforts during the trial on the part of the accused to show that the incident was triggered when Ching allegedly molested Melinda by placing his hand over her shoulder which action was allegedly resented by Nicolas, her common-law-husband, are clearly an after-thought which they have contrived as part of their defense to delay the trial and their punishment for an offense to which they had earlier confessed. 6. It is urged in connection with the sixth common error, that the trial court should not have appreciated the qualifying circumstance of superior strength. The records, however, do not show any evidence adduced on the part of the accused to discredit the testimony of eye- and ear-witness Ramon Ching that they ganged upon their hapless victim, Alfredo Bocaling, after he tripped and fell. Ching testified that when Bocaling fell after he tripped, the four accused, with clear and obvious concert of purpose ganged up ( pinagtulungan) the fallen victim thru a series of intermittent blows with belt, bottles and pieces of wood and a bladed weapon until he succumbed to their merciless assault. But the evidence that they ganged upon their hapless and defenseless victim did not come from Ching alone it is provided by their own statements, wherein they described in detail the gruesome manner in which they subjected Bocaling to their vicious attack until he died. The concerted action of the above-named accused, three of whom Molleda, Baluyot and Nicolas, are known SigueSigue Sputnik members to the urgings of accused Baby China fully justified the appreciation of the employment of superior strength upon a hapless and defenseless victim. 10 7. It is urged that the lower court erred in appreciating the aggravating circumstance of "deceit" (craft). It is argued, instead, that the attack was spontaneous and without any preconceived design on the part of all the accused, including Evelyn Duave alias Baby China. The trial court appreciated the generic aggravating circumstance of "deceit" (sic, should be craft) upon its finding which is based upon the statements of Molleda and Baluyot (Exhibits "G" and "H", respectively) that all the accused ". . . with murder in their hearts pretended to accompany the victim in a friendly manner in going home and in order to lure the victim into a false sense of security and making him unmindful of the tragedy that will befall him, one of the accused even 'placed his

hands on the shoulder of the victim while walking. . .'"; that, as a matter of fact, "there was deceit right from the start when Duave invited the victim and Ching to Suter . . . under the pretext of returning a radio"; and upon arrival thereat, the victim and Ching were entertained in a drinking spree in the course of which Duave left and surreptitiously contacted her co-accused and informed them that the persons "who raped and robbed" her were in the house drinking. All the while the victim and Ching did not know of the evil plot to liquidate them. These findings find support in the testimony of Ching, and are affirmed by the confessions of the three (3) accused Molleda, Nicolas and Baluyot. The bare assertions of the appellants, to the effect that the incident which led to the killing of the victim was Ramon Ching's alleged attention to Melinda that aroused the jealousy of her common-law-husband Nicolas which they did not state in their confessions, cannot prevail over the lower court's findings which are based on substantial evidence on record. This error is, therefore, clearly without merit. cdphil 8. It is urged that the trial court erred in finding that conspiracy existed among the appellants. In support, it is argued that according to the statement of appellant Molleda, he and his co-accused Nicolas and Baluyot had been drinking at the Bagong Bituin Restaurant at J. Rizal, Makati, up to 10:00 o'clock in the evening of January 7, 1971 and they must have been drank when they were met by Baby China and Melinda; that there is no direct proof available to show that he and his co-accused conspired, since conspiracy must be consciously and deliberately entered into by sober persons. That appellants conspired in the commission of the offense finds support in the testimony of Ching corroborated by the appellants' own statements that they attacked their victim, Alfredo Bocaling, in a manner indicating community and concert of purpose by inflicting upon him several wounds, as soon as he fell to the ground, with each of the conspirators doing his part to achieve their common objective to avenge Baby China (Exhs. "G", "H" and "I", Q & A Nos. 09, 06 and 09, respectively). Conspiracy arose the very moment they agreed to attack their victim and it is clear that the assault was not the lone and solitary act of one but of all the accused. Direct proof of conspiracy is not necessary it may be inferred from the circumstances surrounding the commission of the offense. 11 9. It is urged in this connection that the trial court erred in taking the accused's trip to Olongapo as proof of guilt. It is argued specifically in the case of appellant Molleda that he had been living and working in Olongapo since 1967 and that he was in Olongapo all the time. With respect to appellant Duave, it is argued that she went to Olongapo because she joined her sister and Melinda, and, as a friend of Melinda, she was expected to accompany her to Olongapo City where Melinda's commonlaw-husband, Nicolas, had gone. The trial court did not err in considering the appellants' hasty and clandestine refuge to Olongapo after the killing as a circumstantial evidence indicating guilt, on the biblical adage that ". . . the wicked flee when no man pursueth, but the righteous are as bold as the lion." It was fully justified in doing so because it is established by the evidence on record that they were the ones who assaulted the victim. That they fled from the scene of the crime is a form of admission by conduct which gives rise to the inference that they committed it. 12 Baluyot's explanation that he went to Olongapo because they received news that masked men were coming back lends additional support for the inference. Finally, Nicolas' statement that Baby China gave him her ventilador (electric fan) to be pawned (isinanla) with one Alicia Nicolas, his aunt, of Sta. Ana, Pateros, to finance their trip to Olongapo leave no room for doubt that they fled to said City [Exh. "I" (Nicolas), Q & A No. 14; See p. 14, supra]. 10. That the accused were denied due process. It is urged, finally, that the accused were denied due process of law when they were given only one day to prepare their defense. It is argued that after the prosecution rested its case on May 1971, the trial court ordered the accused-appellants to present

their evidence on the following day; that they have a right to know the accusation against them; that it was only on May 26 when they knew of the nature of the accusation; and, that the one day allowed them to prepare for the defense is tantamount to denial of due process. A review of the records, on the other hand, shows that the trial court gave full consideration to the rights of the accused-appellants to be assisted by counsel; to be informed of the nature and the charge against them; and to be confronted by the witnesses who were cross-examined by their counsel. If appellants believed that one day was not sufficient for them to prepare for their defense, they should have moved for a longer period within which to present their evidence, which they did not. In resume, the qualitative and quantitative preponderance of the evidence adduced by the prosecution consisting of the eye-and ear-witness account of the killing by Ramon Ching who was present at the scene of the killing, and, in fact, barely escaped death by the skin of his teeth; the extra-judicial confessions of Roberto Molleda alias Tikboy, Exh. "G", Virgilio Baluyot alias Boy Bakal, Exh. "H" and Reynaldo Nicolas alias Boy Miroy, Exh. "I", which taken separately and without collusion corroborated each other in material respects, and implicated accused Duave alias Baby China; the circumstantial evidence of flight; and the corroboration and congruence of the evidence as to the injuries inflicted upon the victim Bocaling, as revealed in the autopsy report considered, viz a viz, the self-serving and uncorroborated testimonies of each of the accused, which are not supported by any other evidence on record, but which in an important aspect contradict their own statements e.g., that the incident was triggered by Ching's placing of his hand on Melinda's shoulders and the resultant jealousy of Nicolas alias Boy Miroy, who by the way is the common-law-husband of Melinda and not a legitimate spouse, which was not even mentioned in accused' statements and is, therefore, an obvious defense tactic to camouflage the conspiracy and convert the nature of the offense to homicide merely fully justify the finding of guilt of herein appellants beyond reasonable doubt. cdphil We have taken note that the Solicitor General in the People's briefs, filed by way of answer to the three briefs submitted by the accused-appellants, took the position that the assignments of errors which assail the trial court's findings of the presence of "abuse of superior strength" as qualifying and "craft" as generic aggravating circumstances in the commission of the crime, should be favorably considered and/or appears to have merit (Reply to the Brief of Nicolas and Baluyot, p. 13; Reply to the Brief of Molleda, p. 10; Reply to the Brief of Duave, p. 12). In justifying his recommendation in this respect, the Solicitor General argues that (1) Melinda and Baby China were picked up by the victim and Ching from the Good Earth Emporium; (2) that later, while Ramon Ching and Alfredo Bocaling were walking towards Herran street on their way home, Ching held Melinda on the shoulder, which action irked and angered Reynaldo Nicolas, her commonlaw-husband; that Nicolas boxed prosecution witness Ching in the nape; that the hot-blooded and spontaneous attack upon Bocaling and Ching by the appellants is shown by the fact that the weapons used were belts, bottles and pieces of wood; that the only evidence concerning the presence and use of bladed instrument was given by accused Duave, not the prosecution, who testified that ". . . Bocaling drew a knife . . . then I saw the bladed instrument with Roberto Molleda"; (3) that the eternal human triangle represented by Melinda as the common point of interest between Ching and Nicolas spurred the sudden and spontaneous attack in the heat of jealousy and injured pride, and, (4) that, therefore, the accused did not deliberately seek or take advantage of superiority of numbers or deceit (craft) to commit the crime against Bocaling. As a result, the Solicitor General submits that the killing falls under Art. 249 of the Revised Penal Code on homicide, rather than murder, and that the penalty should not be imposed in the maximum degree.

We are not persuaded to give our favorable consideration to these conclusions drawn from a consideration of the evidence on record; nor do We concur in the recommendations as to the nature of the offense committed and the penalty to be imposed. The findings of fact submitted by the Solicitor General are not supported by the evidence on record and the conclusions therefrom are, therefore, unjustified. The pivotal and basic premises upon which the Solicitor General bases his view of the case are that the killing was a spur-of-the moment incident arising from the alleged act of Ching in placing his hand on the shoulder of Melinda which in turn spurred the jealousy of Nicolas, her common-law-husband; that close upon this provocative act of Ching, the four accused engaged the two, Bocaling and Ching, in a fight, which resulted in the death of Bocaling; that the killing was thus a result of a chance encounter with no foreknowledge on the part of the appellants, who acted as anybody would in a melee. From these factual premises, the People's brief concludes that the offense is merely homicide, not murder, and the qualifying and aggravating circumstances of superior strength and "deceit" (craft), which the trial court appreciated, should be overruled. We cannot agree. In the over-all context of the evidence on record consisting mainly of the accused's own confessions and the testimony of Ramon Ching the conclusion is inescapable, that the assault on Bocaling and Ching, which resulted in the death of the former, was, as the trial court found it to be, qualified by superior strength and aggravated by craft. The confessions of the accused taken at a time when they could not have contrived their defense leave no room for doubt that the two, Ching and Bocaling, were lured by Duave and Melinda from the Good Earth Emporium; that once they were in a house at Suter street, Duave and Melinda lost no time in contacting and then pointing to the three co-accused, Molleda, Baluyot and Nicolas, three hardened members of the Sigue-Sigue Sputnik gang, Bocaling and Ching as having allegedly raped and robbed Duave, without their awareness; that the three who were told that the two had previously robbed and raped Duave contrived to execute their scheme to kill them, and that in the process, as the lower court observed, they managed thru craft to make them unaware of their impending fate. The appellants' claim that the incident was triggered by the indiscreet act of Ching is very obviously an after-thought, a clear but transparent attempt to show that the killing was not the result of a conspiracy among them. But the fact that none of the accused, not even Nicolas, the common-lawhusband of Melinda revealed this to the investigators, shows the utter falsity of this defense. Furthermore, all the three without exception, specifically mentioned the role of Duave and one of them even said that she gave the orders to kill as long as Bocaling will not return her money [Exh. "G" (Molleda), Q & A No. 09; See pp. 9-10, supra]. The concerted action among all the accused, the manner in which they pounced and ganged upon Bocaling and the merciless assault they perpetrated upon his person when he fell down after the initial blow leave no room for doubt that they did in fact avail of their superior strength to snuff the life of their victim, while the manner in which they perpetrated this act by first making them believe that no harm will befall them and keep them off-guard, clearly underlined the craft by which they executed their nefarious scheme. Accordingly, the trial court committed no error in finding all of the accused guilty of the crime of murder qualified by taking advantage of superior strength and attended by the generic aggravating circumstance of craft with no mitigating circumstance to offset the same. prcd Hence, the correct penalty for the crime committed is death pursuant to Art. 248, in relation to Art. 64 (3) of the Revised Penal Code. However, after the deliberation of the Court en banc, only eight (8) Justices 13 voted to affirm the judgment of conviction with respect to defendants Roberto Molleda, Virgilio Baluyot and Reynaldo Nicolas, and only seven (7) 14 with respect to defendant Evelyn Duave. It results, therefore, that with respect to defendants Roberto Molleda, Virgilio Baluyot and Reynaldo Nicolas, the penalty of reclusion perpetua is to be imposed. As regards defendant Evelyn Duave, only

seven (7) Justices concurred in holding her guilty. Thus, pursuant to Section 3, Rule 125 of the Revised Rules of Court, or for lack of the requisite eight votes, the judgment of conviction as regards defendant Evelyn Duave alias "Baby China" should be reversed and said defendant should be acquitted. WHEREFORE, the decision under review is hereby AFFIRMED as regards defendants Roberto Molleda, Virgilio Baluyot and Reynaldo Nicolas, with the only modification that the penalty of death imposed upon them is reduced to reclusion perpetua; but REVERSED as regards defendant Evelyn Duave - as to whom only seven (7) Justices concurred in the finding of guilty - and is, therefore, acquitted of the crime charged. SO ORDERED. Castro, C.J., Makasiar, Aquino, Concepcion Jr., Fernandez and Guerrero, JJ., concur. Fernando, J., concurs except as to appellant Evelyn Duave, as to whose appeal, he takes no part. EN BANC [G.R. No. 81567. October 3, 1991.] IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents. [G.R. Nos. 84581-82. October 3, 1991.] AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents. [G.R. Nos. 84583-84. October 3, 1991.] IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents. [G.R. No. 83162. October 3, 1991.] IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioner, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents. [G.R. No. 85727. October 3, 1991.] IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents. [G.R. No. 86332. October 3, 1991.]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO NAZARENO, petitioner, vs. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO, respondents. Efren H. Mercado for petitioners in G.R. No. 81567 and G.R. No. 83162. Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82. Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84. Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727. The Solicitor General for the respondents. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; CAN NOT BE SUPPRESSED BY THE EXIGENCIES OF AN ARMED CONFLICT; GARCIA-PADILLA v ENRILE (121 SCRA 472) CITED. The treatment of persons apprehended for the continuing offense of Rebellion suggested in Garcia-Padilla v. Enrile, 121 SCRA 472 envisions an actual state of war and is justified only when a recognition of belligerency is accorded by the legitimate government to the rebels, resulting in the application of the laws of war in the regulation of their relations. The rebels are then considered alien enemies to be treated as prisoners of war when captured and cannot invoke the municipal law of the legitimate government they have disowned. It is in such a situation that the processes of the local courts are not observed and the rebels cannot demand the protection of the Bill of Rights that they are deemed to have renounced by their defiance of the government. But as long as that recognition has not yet been extended, the legitimate government must treat the rebels as its citizens, subject to its municipal law and entitled to all the rights provided thereunder, including and especially those guaranteed by the Constitution. Principal among these in our country are those embodied in the Bill of Rights, particularly those guaranteeing due process, prohibiting unreasonable searches and seizures, allowing bail, and presuming the innocence of the accused. The legitimate government cannot excuse the suppression of these rights by the "exigencies" of an armed conflict that at this time remains an internal matter governed exclusively by the laws of the Republic of the Philippines. Treatment of the rebels as if they were foreign invaders or combatants is not justified in the present situation as our government continues to prosecute them as violators of our own laws. Under the doctrine announced in Garcia-Padilla, however, all persons suspected as rebels are by such suspicion alone made subject to summary arrest no different from the unceremonious capture of an enemy soldier in the course of a battle. The decision itself says that the arrest "need not follow the usual procedure in the prosecution of offenses" and "the absence of a judicial warrant is no impediment" as long as the person arrested is suspected by the authorities of the "continuing offense" of subversion or rebellion or other related crimes. International law is thus substituted for municipal law in regulating the relations of the Republic with its own citizens in a purely domestic matter. 2. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST; PROBABLE 'CAUSE'; MUST BE DETERMINED BY JUDGE ISSUING THE WARRANT, NOT THE ARRESTING OFFICER WHO SAYS IT IS NOT NECESSARY. In the case of Dural, the arrest was made while he was engaged in the passive and innocuous act of undergoing medical treatment. The fiction was indulged that he was even then, as he lay supine in his sickbed, engaged in the continuing offense of rebellion against the State. In further justification, the Court says that the arresting officers acted on "confidential information" that he was in the hospital, which information "was found to be true." This is supposed to have validated

the determination of the officers that there was "probable cause" that excused the absence of a warrant. Justice Cruz's own impression is that probable cause must be established precisely to justify the issuance of a warrant, not to dispense with it; moreover, probable cause must be determined by the judge issuing the warrant, not the arresting officer who says it is not necessary. 3. ID.; ID.; ID.; REQUISITE THAT OFFENSE "HAS IN FACT JUST BEEN COMMITTED"; REQUIRES IMMEDIACY AFTER THE COMMISSION OF THE ACT. In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly seditious remarks made by him the day before. The Court says his case is not covered by the Garcia-Padilla doctrine but approves the arrest just the same because the remarks were supposed to continue their effects even to the following day. The offense was considered as having been just committed (to make it come under Rule 113, Section 5, of the Rules of Court) despite the considerable time lapse. It was worse in the case of Nazareno, who was also arrested without warrant, and no less than fourteen days after the killing. In sustaining this act, the Court says that it was only on the day of his arrest that he was identified as one of the probable killers, thus suggesting that the validity of a warrantless arrest is reckoned not from the time of the commission of an offense but from the time of the identification of the suspect. Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter "has committed, is actually committing, or is attempting to commit an offense" or when an offense "has in fact just been committed." The requirement of immediacy is obvious from the word "just," which, according to Webster, means "a very short time ago." The arrest must be made almost immediately or soon after these acts, not at any time after the suspicion of the arresting officer begins, no matter how long ago the offense was committed. FELICIANO, J., concurring and dissenting opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; ARREST MADE WITHOUT A WARRANT ISSUED BY A JUDGE AFTER COMPLYING WITH THE CONSTITUTIONAL PROCEDURE; PRIMA FACIE UNREASONABLE SEIZURE OF PERSON. Under the Article III Section 2 of the Constitution, arrests, i.e., the constraint and seizure of the persons of individual members of society, must, as a general rule, be preceded by the securing of a warrant of arrest, the rendition of which complies with the constitutional procedure specified in Article III Section 2. Arrests made without a warrant issued by a judge after complying with the constitutional procedure, are prima facie unreasonable seizures of persons within the meaning of Article III Section 2. 2. ID.; ID.; ID.; ID.; EXCEPTIONS. Well-recognized exception to the norm that warrantless arrests are unreasonable seizures of persons. Those exceptions are, in our day, essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the situations where an officer of the law, or a private person for that matter, may lawfully arrest a person without previously securing a warrant of arrest. 3. ID.; ID.; ID.; ID.; ID.; MUST BE STRICTLY CONSTRUED; REASONS THEREFOR. Section 5(a) and (b) of Rule 113 of the Rules of Court it is important to recall that judicial interpretation and application of Section 5(a) and (b) must take those provision for what they are: they are exceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to such a norm must be strictly construed so as not to render futile and meaningless the constitutional rule requiring warrants of arrests before the persons of individuals may be lawfully constrained and seized. The ordinary rule generally applicable to statutory provisions is that exceptions to such provisions must not be stretched beyond what the language in which they are cast fairly warrants, and all doubts should be resolved in favor of the general provision, rather than the exception. This rule must apply with special exigency and cogency where we deal, not with an ordinary statutory provision, but with a constitutional guarantee. Exceptions to such a guarantee must be read with especial care and

sensitivity and kept within the limits of their language so as to keep vital and significant the general constitutional norm against warrantless arrests. 4. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST; CRIME IS COMMITTED OR ATTEMPTED TO BE COMMITTED IN THE PRESENCE OF THE ARRESTING OFFICER; MUST BE PROPERLY AND RESPECTIVELY CONSTRUED TO RELATE TO ACTS TAKING PLACE WITHIN THE OPTICAL OR PERHAPS THE AUDITORY PERCEPTION OF THE ARRESTING OFFICER. Section 5(a) of Rule 113 of the Rules of Court relates to situations where a crime is committed or attempted to be committed in the presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under the circumstances, for the securing of a warrant of arrest. In such a situation, there is an obvious need for immediate, even instantaneous, action on the part of the arresting officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term "presence" in this connection is properly and restrictively construed to relate to acts taking place within the optical or perhaps auditory perception of the arresting officer. If no overt, recognizably criminal, acts occur which are perceptible through the senses of the arresting officer, such officer could not, of course, become aware at all that a crime is being committed or attempted to be committed in his presence. It is elementary that purely mental or psychological phenomena, not externalized in overt physical acts of a human person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it is not enough that mens rea be shown, there must also be an actus reus. If no such overt acts are actually taking place in the presence or within the sensory perception of the arresting officer, there would, in principle, be ample time to go to a magistrate and ask for a warrant of arrest. There would, in other words, not be that imperious necessity for instant action to prevent an attempted crime, to repress the crime being committed, or to capture the doer of the perceived criminal act, the necessity which serves as the justification in law of warrantless arrests under Section 5(a). 5. ID.; ID.; ID.; OFFENSE MUST HAVE JUST BEEN COMMITTED AND PERSONAL KNOWLEDGE OF ARRESTING OFFICER OF FACTS INDICATING THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE OFFENSE; CONSTRUED . Section 5(b) of Rule 113 of the Revised Rules of Court, two (2) elements must be coincide before a warrantless arrest may be sustained under this subsection: (1) the offense must have "just been committed" when the arresting officer arrived in the scene; and 2) the officer must have "personal knowledge" of facts indicating that the person to be arrested has committed the offense. In somewhat different terms, the first requirement imports that the effects of corpus of the offense which has just been committed are still visible: e.g. a person sprawled on the ground, dead of a gunshot wound; or a person staggering around bleeding profusely from stab wounds. The arresting officer may not have seen the actual shooting or stabbing of the victim, and therefore the offense can not be said to have been committed "in [his] presence." The requirement of "personal knowledge" on the part of the arresting officer is a requirement that such knowledge must have been obtained directly from sense perception by the arresting officer. That requirement would exclude information conveyed by another person, no matter what his reputation for truth and reliability might be. Thus, where the arresting officer comes upon a person dead on the street and sees a person running away with a knife from where the victim is sprawled on the ground, he has personal knowledge of facts which rendered it highly probable that the person fleeing was the doer of the criminal deed. The arresting officer must, in other words, perceive through his own senses some act which directly connects the person to be arrested with the visible effects or corpus of a crime which has "just been committed." 6. ID.; ID.; ID.; THAT THE CRIME "HAS IN FACT JUST BEEN COMMITTED"; UNDERSCORES THE REQUIREMENT THAT THE TIME INTERVAL BETWEEN THE ACTUAL COMMISSION OF THE CRIME AND THE

ARRIVAL OF THE ARRESTING OFFICER MUST BE BRIEF; CASE AT BAR. The use of the words "has in fact just been committed" underscores the requirement that the time interval between the actual commission of the crime and the arrival of the arresting officer must be brief indeed. In the first place, the word "just" was fairly recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in order to underscore the point here being made. In the second place, a latitudinarian view of the phrase "has in fact just been committed" would obviously render pointless the requirement in Section 5 (a) that the crime must have been committed "[in] the presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14-days after the occurrence of the killing with which he was charged along with other persons, cannot by any standard be justified under Section 5(b). In G.R. No. 81567, Dural was arrested without warrant while being treated in a hospital the day after the shooting of the policemen in which he was suspected to have been a participant. While 1-day may be substantially different from 14-days, still it must be pointed out that at the time Dural was arrested in the hospital, the killing of the two (2) policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could not reasonably be said to have been just committed. There was no showing, nor did the Court require it, that the arresting officers had been in "hot pursuit" of Dural beginning at the scene of the killing and ending the next day in the hospital. 7. ID.; ID.; ID.; REQUIREMENT OF PERSONAL KNOWLEDGE OF ARRESTING OFFICER; MORE EXACTING THAN THE STANDARD IMPOSED BY THE CONSTITUTION UPON A JUDGE ISSUING A WARRANT; REASONS THEREFOR. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer who is determining "probable cause" right at the scene of the crime, is in a sense more exacting than the standard imposed by the Constitution upon the judge who, in the seclusion of his chambers, ascertains "probable cause" by examining the evidence submitted before him. The arresting officer must himself have "personal knowledge"; the magistrate may rely upon the personal knowledge of the witnesses examined by or for him in issuing a warrant of arrest. In the present Resolution, the majority begins with noting the requirement of "personal knowledge" in Section 5(b), but winds up in the next page with a very diluted standard of "reasonable belief" and "good faith" on the part of the arresting officers. The stricter standard is properly applicable to the officers seizing a person without a warrant of arrest, for they are acting in derogation of a constitutional right. That the person unlawfully arrested without a warrant may later turn out to be guilty of the offense he was suspected of in the first place is, of course, quite beside the point. Even a person secretly guilty of some earlier crime is constitutionally entitled to be secure from warrantless arrest, unless he has in fact committed physically observable criminal acts in the presence of the arresting officer, or had just committed such acts when the arresting officer burst upon the scene. 8. ID.; ID.; ID.; DOCTRINE OF CONTINUING CRIMES; DOES NOT DISPENSE THE REQUIREMENT THAT OVERT ACTS RECOGNIZABLY CRIMINAL IN CHARACTER MUST TAKE PLACE IN THE PRESENCE OF THE ARRESTING OFFICER OR MUST HAVE BEEN COMMITTED WHEN THE ARRESTING OFFICER ARRIVED. Examination of the utilization in the majority Resolution of the doctrine of "continuing crimes," shows that doctrine is here being used as a substitute for the requirement under Section 5(a) that the crime must have been committed in the presence of the arresting officer, and to loosen up the strict standard established in Section 5(b) that the offense "has in fact just been committed" at the time the arresting officers arrived. But relaxing the standards established in Section 5(a) and (b) for lawful warrantless arrests necessarily means the eroding of the protection afforded by the constitutional provision against unreasonable seizures of persons. Moreover, the majority may be seen to be using the "continuing crime" doctrine to justify a warrantless arrest, not because an offense has been committed in the presence of the arresting officer or because an offense has in fact just been committed when the arresting officer arrived, but rather because the person to be arrested in suspected of having committed a crime in the past and will, it is conclusively presumed, commit a similar crime in the future. I respectfully submit that an examination of the "continuing crimes"

doctrine as actually found in our case law offers no reasonable basis for such use of the doctrine. More specifically, that doctrine, in my submission, does not dispense with the requirement that overt acts recognizably criminal in character must take place in the presence of the arresting officer, or must have just been committed when the arresting officer arrived, if the warrantless arrest is to be lawful. The "continuing crimes" doctrine in our case law before rendition of Garcia-Padilla v. Enrile does not sustain warrantless arrests of person who, at the time of the actual arrests, were performing ordinary acts of day-to-day life, upon the ground that the person to be arrested is, as it were, merely resting in between specific lawless and violent acts which, the majority conclusively presumes, he will commit the moment he gets an opportunity to do so. 9. ID.; ID.; ID.; ID.; APPLICATION. Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two (2) problems: the first problem is that of determination of whether or not a particular offense was committed within the territorial jurisdiction of the trial court; the second problem is that of determining whether a single crime or multiple crimes were committed where the defense of double jeopardy is raised. In respect of the first problem, the gist of our case law is that where some of the ingredients or elements of an offense take place within the territorial jurisdiction of one court and some other ingredients or elements of the same offense occur in the territory of another court, (e.g., estafa or malversation) either one of the two courts has jurisdiction to try the offense. Where all of the essential elements of a crime take place within the territory of one court but "by reason of the very nature of the offense committed" the violation of the law is deemed to be "continuing", then the court within whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try a person charged with such offense. In the latter case, the offense is deemed to be continuing because some or all of the elements constituting the offense occurred within jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of service of sentence). The criminal acts are regarded as repeated or as continuing within the province or city where the defendant was found and arrested. Clearly, overt acts of the accused constituting elements of the crime charged must be shown to have been committed within territorial jurisdiction of the court where he is charged. Turning to the second type of problem, the question is normally presented in terms of whether one crime or multiple crimes were committed by the accused. Where the series of acts actually alleged and proven to have been committed by the accused constituted only one and the same crime, the defense of double jeopardy becomes available where a second information is filed covering acts later in the series. Upon the other hand, where the acts of the accused constituted discrete, multiple offenses, each act comprising a distinct and separate offense, the double jeopardy defense is non-available. The point worth stressing is that in passing upon the issue relating to the unity or multiplicity of offenses committed, the overt acts of the accused constitutive either of the single offense or of the plural offenses, must be shown. 10. ID.; ID.; ID.; ID.; CANNOT BE INVOKED FOR WEAKENING AND DISSOLVING THE CONSTITUTIONAL GUARANTEE AGAINST WARRANTLESS ARREST. My final submission, is that, the doctrine of "continuing crimes", which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrests. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consists of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt

constitutive acts may be morally natural in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association." FERNAN, C.J., concurring and dissenting opinion: 1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST; NOT LAWFUL WHEN LAW ENFORCEMENT AGENT HAD TIME TO SECURE A WARRANT. In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any 'continuing offense, but for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo na." Apparently, such statement was, in the perception of the arresting officers, inciting to sedition. While not conceding the validity of such perception, realizing that it is indeed possible that Espiritu was merely exercising his right to free speech, the resolution nonetheless supports the authority of peace officers "only for purposes of the arrest." Chief Justice Fernan finds this position to be adverse to the very essence of the resolution which sanctions warrantless arrests provided they are made in accordance with law. In the first place, Espiritu may not be considered as having "just committed" the crime charged. He allegedly first uttered seditious remarks at the National Press Club in the afternoon of November 22, 1988. The second allegedly seditious remark aforequoted was made at around 5:00 o'clock in the same afternoon. Under these circumstances, the law enforcement agents had time, short though it might seem, to secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered as covered by Section 5(b) of Rule 113 which allows warrantless arrests "when an offense has in fact just been committed." The same observation applies with greater force in the case of Nazareno who was arrested 14 days after the commission of the crime imputed to him. 2. ID.; ID.; ID.; MAY NOT BE ALLOWED IF THE ARRESTING OFFICERS ARE NOT SURE WHAT PARTICULAR PROVISION OF LAW HAD BEEN VIOLATED BY THE PERSON ARRESTED. Warrantless arrests may not be allowed if the arresting officers are not sure what particular provision of law had been violated by the person arrested. True it is that law enforcement agents and even prosecutors are not all adept at the law. However, erroneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution, p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action. 3. ID.; ID.; ID.; INCITING TO SEDITION, NOT A CONTINUOUS CRIME FOR WHICH THE OFFENDER MAY BE ARRESTED WITHOUT A WARRANT. Inciting to sedition is not a continuous crime for which the offender may be arrested without a warrant duly issued by the proper authority. By its nature, a single act of urging others to commit any of the acts enumerated in Article 142 of the Revised Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs. People, 90 Phil. 524 [1951]), it should be remembered that any of the prohibited acts in Article 142 may infringe upon the fundamental freedoms of speech and expression. There arises, therefore, the necessity of balancing interests: those of the State as against those of its individual citizen. Here lies the urgency of judicial intervention before an arrest is made. Added to this is the subjectivity of the determination of what may incite other people to sedition. Hence, while the police should act swiftly when a seditious statement has been uttered in view of the jeopardy it may cause the government, speedy action should consist not in warrantless arrests but in securing warrants for such arrests. 4. ID.; ID.; ID.; IN CASE OF VIOLATION OF ANTI-SUBVERSION LAW; VIOLATORS MUST BE KNOWN MEMBER THEREOF. On the legality of warrantless arrests of violators of the Anti-Subversion Law, it

should be underscored that anyone who undertakes such arrest must see to it that the alleged violator is a knowing member of a subversive organization as distinguished from a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even if he has not committed overt acts of overthrowing the government such as the bombing of government offices or the assassination of government officials provided there is probable cause to believe that he is in the roll of members of a subversive organization. It devolves upon the accused to prove membership by force or coercion. Certainly, one may not be in such a roll without undergoing the conscious act of enlistment. 5. ID.; ID.; ID.; REQUIRES THAT AS OFFENSE HAS IN FACT JUST BEEN COMMITTED. It bears repeating that warrantless arrest are governed by law and subject to stringent application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense "has in fact just been committed." According to the late Chief Justice Teehankee, this "connotes immediacy in point of time and excludes cases under the old rule where an offense 'has in fact been committed no matter how long ago.' Similarly, the arrestor must have 'personal knowledge of the facts indicating that the [arrestee] has committed it' (instead of just 'reasonable ground to believe that the [arrestee] has committed it' under the old rule)." (Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408). 6. ID.; ID.; ID.; GUIDELINES IN EFFECTING THEREOF. Chief Justice deems it apt herein to recall other Court rulings providing guidelines in effecting arrests without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986, 144 SCRA 1), the Court considered as illegal the warrantless arrest of a subversive not based on the arresting officer's personal knowledge of such subversion and held that any rule on arrests without warrants must be strictly construed. We categorically stated therein that warrantless arrests should "clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rules" (144 SCRA at 14). Moreover, "it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually (has just) been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator." 7. ID.; ID.; ID.; PROCEDURE. Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out the procedure to be observed the moment a person is arrested: "At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition on his behalf, or appointed by the court upon the petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part shall be inadmissible in evidence." These judicial pronouncements must be observed by everyone concerned: the military and civilian components of the government tasked with law enforcement as well as the ordinary citizen who faces a situation wherein civic duty demands his intervention to preserve peace in the community. GUTIERREZ, JR., J., concurring and dissenting opinion:

1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST; GROUNDS PROVIDED IN SEC. 5(a) and (b) OF RULE 113 OF THE RULES OF COURT; MUST BE STRICTLY APPLIED. Justice Gutierrez vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant. Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the tendency should be to declare the warrantless arrest illegal. 2. ID.; ID.; ID.; VALID, IF A PERSON WAS ARRESTED AFTER HAVING BEEN APPREHENDED WHILE IN POSSESSION OF ILLEGAL FIREARMS OR AMMUNITION. Insofar as G.R. Nos. 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the petitioners were arrested after having been apprehended while in possession of illegal firearms and ammunitions. They were actually committing a crime when arrested. 3. ID.; ID.; ID.; DOCTRINE OF CONTINUING OFFENSE; NOT A SUFFICIENT GROUND TO EFFECT THEREOF; REASONS THEREFOR. Insofar as G.R. No. 81567 is concerned, Justice Gutierrez joins the other dissenting Justices in their observations regarding "continuing offenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, He fails to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government. 4. ID.; ID.; ID.; SUBSEQUENT CONVICTION OF PERSON ARRESTED; DOES NOT VALIDATE AN ILLEGAL ARREST. The belief of law enforcement authorities, no matter how well grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. He cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and pounce on him with no legal authority instead of securing warrants of arrest for his apprehension. The subsequent conviction of a person arrested illegally does not validate the warrantless arrest. The subsequent conviction of a person arrested illegally does not reach back into the past and render legal what was illegal. The violation of the constitutional right against illegal seizures is not cured by the fact that the arrested person is indeed guilty of the offense for which he was seized. A government of laws must abide by its own Constitution. 5. CRIMINAL LAW; INCITING TO SEDITION; NOT PRESENT WHEN A PERSON URGED JEEPNEY AND BUS DRIVERS TO JOIN A STRIKE OF TRANSPORT WORKERS; REASONS THEREFOR. Justice Gutierrez votes to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was arrested while urging jeepney and bus drivers to join a strike of transport workers on the ground that he was inciting to sedition. This impresses him as Court validation of a clear infringement of an individual's freedom of speech. "Inciting to sedition" is a term over which the most learned writers and jurists will differ when applied to actual cases. He doubts if there are more than a handful of policemen in the whole country who would know the full dimensions of the fine distinctions which separate the nation's interest in the liberty to fully and freely discuss matters of national importance on one hand and the application of the clear and present danger rule as the test when claims of national security and public safety are asserted, on the other. In fact, the percentage of knowledgeability would go down further if we consider that "inciting to sedition" requires the ability to

define, among others, (1) what kinds of speeches or writings fall under the term "inciting"; (2) the meaning of rising publicly and tumultuously; (3) when does a certain effort amount to force, intimidation, or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a scurrilous libel against the Philippines. If we allow public speakers to be picked up simply because what they say is irritating or obnoxious to the ears of a peace officer or critical of government policy and action, we will undermine all pronouncements of this Court on the need to protect that matrix of all freedoms, which is freedom of expression. At the very least, a warrant of arrest after a preliminary examination by a Judge is essential in this type of offense. REGALADO, J., dissenting opinion: 1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST; REQUIREMENT THAT THE PERSON MAKING THE ARREST MUST HAVE HAD PERSONAL KNOWLEDGE OF FACTUAL INDICATIONS REGARDING THE COMPLICITY OR LIABILITY OF THE ARRESTEE FOR THE CRIME; PURPOSE. The requirement in Section 5(b) of Rule 113 of the Rules of Court that the person making the arrest must have had personal knowledge of factual indications regarding the complicity or liability of the arrestee for the crime. Yet, that amendment requiring such personal knowledge must have been designed to obviate the practice in the past of warrantless arrests being effected on the basis of or supposed reliance upon information obtained from third persons who merely professed such knowledge or, worse, concocted such reports for variant reasons not necessarily founded on truth. 2. ID.; ID.; ID.; REQUIREMENT THAT THE CRIME HAVE BEEN COMMITTED; CONTEMPLATES THE RECENCY OF TIME WHEN THE CRIME WAS IN FACT COMMITTED. As an added deterrent to the possibility that such arrest without a warrant may result from imputations based on dubious motives, it is now required that the crime must have just been committed. The recency contemplated here, in relation to the making of the warrantless arrest, is the time when the crime was in fact committed, and not the time when the person making the arrest learned or was informed of such commission. Otherwise, at the risk of resorting to reductio ad absurdum, such warrantless arrests could be validly made even for a crime committed, say, more than a year ago but of which the arresting officer received information only today. 3. ID.; ID.; ID.; INTERVAL OF TIME BETWEEN THE COMMISSION OF THE CRIME AND THE ARREST; CONSTRUED. The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section 5(b), must have been dictated by the consideration, among others, that by reason of such recency of the criminal occurrence, the probability of the arresting officer acquiring personal and/or reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if not assured. The longer the interval, the more attenuated are the chances of his obtaining such verifiable knowledge. In the case under consideration, the obtention of information of a crime committed fourteen (14) days earlier necessarily undermines the capacity of the arresting officer to ascertain the reliability of the information he is acting upon and to acquire personal knowledge thereof after such verification. SARMIENTO, J., dissenting opinion: 1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST; TO JUSTIFY THEREOF, THE OVERT ACT OF SUBVERSION SHOULD BE VISIBLE TO THE EYES OF THE POLICE OFFICER MAKING THE ARREST. Subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order No. 276, in relation to Republic Act No. 1700, is made up of "overt acts." In People v. Ferrer, Nos. L-32613-14, December 27, 1972, 48 SCRA 382, this Court defined "overt acts" as follows: . . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more would suffice to secure their punishment. But the

undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power. As Ferrer held, the above "overt acts" constitute the essence of "subversion", and as Ferrer has taken pains to explain, the law requires more than mere membership in a subversive organization to make the accused liable. Justice Sarmiento respectfully submits that for purposes of arrest without a warrant, the above "overt acts" should be visible to the eyes of the police officers (if that is possible), otherwise the accused can not be said to be committing any offense within the contemplation of the Rules of Court, to justify police action, and otherwise, we would have made "subversion" to mean mere "membership" when, as Ferrer tells us subversion means more than mere membership. 2. ID.; ID.; ID.; PERSONAL KNOWLEDGE MUST BE COUPLED WITH GOOD FAITH. Justice Sarmiento finds strained the majority's interpretation of "personal knowledge", as the majority would interpret it, as no more than "actual belief or reasonable suspicion," that is, "suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled with good faith . . ." He submits that personal knowledge means exactly what it says - that the peace officer is aware that the accused has committed an offense, in this case, membership in a subversive organization with intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then Section 6) spoke of simple "reasonable ground" - which would have arguably encompassed "actual belief or suspicion . . . coupled with good faith" referred to by the majority. Section 5 (b) as amended, however, speaks of "personal knowledge"; He respectfully submits that to give to "personal knowledge" the same meaning as "reasonable ground" is to make the amendment a useless exercise. 3. ID.; ID.; ID.; REQUIREMENT OF PERSONAL KNOWLEDGE; NOT SATISFIED WHEN ACQUIRED SOLELY FROM CONFIDENTIAL INFORMATION. A mere "confidential information" that a "sparrow man" had been wounded and was recuperating in the hospital, and that person was Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay, information, and needless to say, not personal knowledge. He would like to point out that in the case of People v. Burgos, G.R. No. 68955, September 4, 1986, 144 SCRA 1, this Court rejected a similar arrest because of lack of personal knowledge, and, as the Court held, "[w]hatever knowledge was possessed by the arresting officers came in its entirety from the information furnished by [another] . . . He does not see how they can act differently here. As far as the information leading to the arrest of Dural is concerned, the majority would quite evidently swallow the version of the military as if in the first place, there truly was an information, and that it was reliable, and that "it was found to be true"; and as if, in the second place, the hospital authorities (the alleged informants could have legally tipped the military under existing laws. We have, it should be noted, previously rejected such a species of information because of the lack of "compulsion for [the informant] to state truthfully his charges under pain of criminal prosecution. Here it is worse, because we do not even know who that informant was. 4. ID.; ID.; ID.; NOT JUSTIFIED WHEN THE ACCUSED WAS NEITHER ON THE VERGE OF FLIGHT OR ESCAPE NOR THERE WAS AN IMPEDIMENT FOR THE PUBLIC OFFICER TO GO THROUGH THE JUDICIAL PROCESSES. Justice Sarmiento is concerned that if the military were truly armed with reliable information and if it did have personal knowledge to believe that Dural had committed an offense, there was no reason for the military to ignore the courts, to which the Constitution after all, gives the authority to issue warrants. As People v. Burgos held: More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing

that the whereabouts of the accused were unknown. In the case of Espiritu, he was picked up the following day, and in no way is "the following day" "soon thereafter." Second, we would have stretched the authority of peace officers to make warrantless arrests for acts done days before. He does not think this is the contemplation of the Rules of Court. As in the case of Burgos in People v. Burgos, Espiritu was neither "on the verge of flight or escape" and there was no impediment for the military to go through the judicial processes, as there was none in the case of Burgos. In the case of People v. Aminnudin, this Court held that unless there "was a crime about to be committed or had just been committed," and unless there existed an urgency as where a moving vehicle is involved, instant police action can not be justified. 5. ID.; ID.; ID.; NOT JUSTIFIED BY SUBSEQUENT ADMISSION OF THE ACCUSED THAT THEY WERE MEMBERS OF THE NATIONAL PEOPLE'S ARMY; CASE AT BAR. Justice Sarmiento does not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Aonuevo, Ramon Casiple, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked up under similar circumstances. As the majority points out, the military had (again) acted on a mere tip the military had no personal knowledge (as he elaborated what personal knowledge means). Second, I do not think that the majority can say that since Amelia Roque, et al. "were NPA's anyway" (as Roque, et al. allegedly admitted), immediate arrests were "prudent" and necessary. As I said, that Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely, the subject of controversy. Justice Sarmiento thinks it is imprudent for this Court to pass judgment on the guilt of the petitioners--since after all, and as the majority points out, we are talking simply of the legality of the petitioners' arrests. More important, that Roque, et al. "ere NPA's anyway" is evidently, a mere say-so of the military, and evidently, the Court is not bound by bare say-so's. Evidently, we can not approve an arrest simply because the military says it is a valid arrest (the accused being 'NPA's anyway")--that would be abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious "confidential information." According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence of the accused. Justice Sarmiento certainly hopes not, after the majority referred to Rolando Dural as a "sparrow man" and having Amelia Roque, et al. admit to being "NPA's."

6. ID.; ID.; ID.; GUILT OF THE ACCUSED; IMMATERIAL IN THE DETERMINATION OF THE LEGALITY THEREOF. It is to gloss over at any rate, the nature of arrest as a restraint on liberty. It is to me immaterial that the guilt of the accused still has to be established, since meanwhile, the accused are in fact being deprived of liberty. Arrest to me, is something to crow about, even if in the opinion of the majority, it is nothing to crow about (a mere "administrative measure"). 7. ID.; ID.; ID.; ISSUED AGAINST PERSON INCITING TO SEDITION; NOT PROPER IN CASE AT BAR. Justice Sarmiento can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly picked up for inciting to sedition, in uttering supposedly, on November 22, 1988, the following: Bukas tuloy ang welga natin . . . hanggang sa magkagula na. Espiritu however was arrested on November 23, 1988, a day later and in no way is "inciting to sedition" a continuing offense. And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected speech but apparently, that is also of no moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as far as arrests are concerned, "the Court has, in this case titled in favor of authority," and (3) we have anyway, given a reduced bail to the accused. First, that the accused's statement is in the category of free speech is not only plain to my mind, it is a question He does not think the majority can rightly evade in these petitions without shirking the Court's constitutional duty. It is to my mind plain, because it does not contain enough "fighting words" recognized to be seditious. Secondly, it is the very question before

the Court whether or not the statement in question constitutes an offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind and He is wondering why we can not answer it. What the majority has not answered, as He indicated is that inciting to sedition is in no way a continuing offense, and as He said, the majority is not apparently convinced that it is, either. Of course, the majority would any way force the issue: "But the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing." 8. ID.; ID.; ID.; REQUIREMENT THAT OFFENSE HAS BEEN JUST COMMITTED AND PERSONAL KNOWLEDGE; NOT SATISFIED WHEN THE ARREST WAS MADE FOURTEEN DAYS AFTER THE CRIME WAS IN FACT COMMITTED. With all due respect, Justice Sarmiento does not think that the majority is aware of the serious implications of its pronouncement on individual rights (and statutory construction in general), and He feels He is appropriately concerned because as a member of the Court, He is coresponsible for the acts of His colleagues and He is afraid that He may, rightly or wrongly, be in time made to defend such an indefensible pronouncement. Section 5 (b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the authorities must have "personal knowledge." In no way can an offense be said to have been "just committed" fourteen days after it was in fact (allegedly) committed. In no way can the authorities be said to have "personal knowledge" two weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal knowledge" of a crime that had "just been committed"; whatever "personal knowledge" they have is necessarily "personal knowledge" of a crime committed two weeks before. As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by way of an exception, precisely, to the general rule, mandated by the Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority has in fact given the military the broadest discretion to act, a discretion the law denies even judges today it is fourteen days, tomorrow, one year, and sooner, a decade. He submits that a year, a decade, would not be in fact unreasonable, following the theory of the majority, since the military can claim anytime that it "found out only later," as the majority did not find it unreasonable for the Capital Command to claim that it "came to know that Nazareno was probably one of those guilty in the killing of Bunye and none of us can possible dispute it. 9. ID.; ID.; ID.; NEITHER COMMUNIST THREAT NOR NATIONAL SECURITY ARE VALID GROUNDS THEREOF. Justice Sarmiento respectfully submits that the cases Garcia v. Padilla, G.R. No 61388, April 20, 1983, 121 SCRA 472 and Ilagan v. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, have seen better days. Justice Sarmiento does not see how this Court can continuously sustain them "where national security and stability are still directly challenged perhaps with greater vigor from the communist rebels. First and foremost, and as the majority has conceded, we do not know if we are in fact dealing here with "Communists." The case of Deogracias Espiritu, for one, hardly involves subversion. Second, "Communism" and "national security" are old hat the dictator's own excuses to perpetuate tyranny, and He is genuinely disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on supposed grounds that can not be possibly justified in a regime that respects the rule of law that the Presidential Commitment Order (PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective arrest (Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor "national security" are valid grounds for warrantless arrests under Section 5 (b) of Rule 113. RESOLUTION PER CURIAM p:

Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part: "WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs." The Court avails of this opportunity to clarify its ruling and begins with the statement that the decision did not rule as many misunderstood it to do that mere suspicion that one is a Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing laws to the factual situations obtaining in the several petitions. Among these laws are those outlawing the Communist Party of the Philippines (CPP) and similar organizations and penalizing membership therein (to be dealt with shortly). It is elementary, in this connection, that if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people not the Court that should repeal, change or modify them. In their separate motions for reconsideration, petitioners, in sum, maintain: 1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested; 2. That the doctrine laid down in Garcia vs. Enrile abandoned; 1 and Ilagan vs. Enrile 2 should be

3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions; 4. 5. That the assailed decision is based on a misappreciation of facts; That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.

We find no merit in the motions for reconsideration. It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwith released. In the petitions at bar, to ascertain whether the detention of petitioners was illegal or not, the Court before rendering the decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, it would follow that the detention resulting from such arrests is also in accordance with law. There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyone without a warrant of arrest, except in those cases expressly authorized by law. 6 The

law expressly allowing arrests without warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid arrest, without warrant, can be conducted. In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read: "SEC. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and . . ." (emphasis supplied). The Court's decision of 9 July 1990 rules that the arrest of Rolando Dural (G.R. No. 81567) without warrant is justified as it can be said that, within the contemplation of Section 5(a), Rule 113, he (Dural) was committing an offense, when arrested, because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership is penalized, 7 and for subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, 8 a continuing offense, thus: "The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude . . ." Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other socalled "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained. Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter. Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrest without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal

knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person. It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. 9 The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar. In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Bian, Laguna. 12 Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Barrio, Caloocan City by five (5) "sparrows" including Dural; second a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural. In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources. As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers who arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been ill-motivated in arresting Dural. 15 It is, therefore clear that the arrest, without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few days after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as distinguished from custody of the arresting officers). On 31 August 1988, he was convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921. As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found with unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec. 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few days after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition for habeas corpus by announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities. More specifically, the antecedent facts in the "in flagrante" cases are: 1. On 27 June 1988. the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantino, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantino was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16 2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantino and other members of the rebel group. 3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agent found subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18 4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantino in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19 5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises of the house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20 It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to

the military authorities that two (2) safehouses (one occupied by Renato Constantino and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantino and Benito Tiamzon as residents or occupants thereof. And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantino safehouse; second: found in the safehouse was a person named Renato Constantino, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed. With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent man can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved. For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prose cute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities. In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23 The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions. In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Valencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things:

"Bukas tuloy ang welga natin . . . hanggang sa magkagulo na." 27 (emphasis supplied). and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition. Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled. In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29 Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight. As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows: ". . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II was filed with the Regional Trial Court of Makati, Metro Manila. The case is docketed therein as Criminal Case No. 731. On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his coaccused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of Bian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition. At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which had taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him)." This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with the conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests. Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date (CA-G.R. No. still undocketed). Petitioners contend that the decision of 9 July 1990 ignored the constitutional requisites for the admissibility of an extrajudicial admission. In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her. The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits. As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly in the light of prevailing conditions where national security and stability are still directly challenged perhaps with greater vigor from the communist rebels. What is important is that every arrest without warrant be tested as to its legality via habeas corpus proceedings. This Court will promptly look into and all other appropriate courts are enjoined to do the same the legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence. A Final Word.

This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is important is that the Court be right. ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL. SO ORDERED. Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ., concur.