[A.M. No. RTJ-99-1483.

September 17, 1999]

ATTY. LAURO D. GACAYAN and NOEL SAROL, complainants, vs. Hon. FERNANDO VIL PAMINTUAN in hiscapacity as Presiding Judge, Regional Trial Court, Branch 3, Baguio City, respondent.

DECISION YNARES_SANTIAGO, J.:

In this administrative complaint, respondent stands charged with Gross Ignorance of the Law, Incompetence, Partiality and Conduct Unbecoming of a Judge. The factual and procedural antecedents as summed by the Office of the Court Administrator (OCA) are as follows: Complainant Noel Sarol is the accused in Criminal Case No. 14549-R, for Homicide, which was filed before the Regional Trial Court, Branch 3, Baguio City, in aninformation dated September 26, 1996.

On October 14, 1996, complainant Sarol was allegedly arraigned and thereafter, trial followed. The Honorable Joven Costales was then the Acting Presiding Judgeof the Regional Trial Court, Branch 3, Baguio City.

After the prosecution rested its case, the then Presiding Judge Hon. Joven Costales, directed the accused to present his evidence on March 2, 1998 at 8:30 in themorning. Complainant Sarol through counsel instead of presenti ng his evidence filed a Motion for Leave to File Demurrer to Evidence with the Demurrer to Evidencealready attached to said Motion.

On March 2, 1998, the Demurrer to Evidence was scheduled for hearing. The Trial Prosecutor, however, asked for ten (10) days within which to submit hisOpposition thereto. Thus, Judge Costales was constrained to set the hearing on the Demurrer to Evidence on May 4, 1998 at 8:30 in the morning.

Meanwhile, the Honorable Fernando Vil Pamintuan took over as the Presiding Judge of the Regional Trial Court, Branch 3, Baguio City. For the first time hepresided in the hearing of the case. He then inquired from the Tri al Prosecutor about his announced Opposition to the Demurrer to Evidence and the lattermanifested off-therecord that he is not submitting anymore said Opposition. Thereafter respondent directed the trial prosecutor and complainant Atty. Gacayan tosee him in his chambers where he reportedly said the following: You see somebody died here and I can not just dismiss this case as a result of insufficiency of evidence. I want to talk to the mother of the deceased.

or words to that effect. Consequently, he issued an order which directed the mother and the brother of the deceased who were not listed as witnesses in the information to appear in theHEARING ON THE DEMURRER TO EVIDENCE scheduled for May 25, 1998 at 8:30 in the morning. No other persons were required to appear on May 25,1998.

On May 25, 1998, complainants herein were surprised to see inside the courtroom the witnesses who were already presented by the prosecution, namely, RestitutoAbuan and Alejandro Castaneda. The record of the case show s that a subpoena was issued to all prosecution witnesses, including the policemen who alreadytestified to appear on said date without any motion from the prosecution or from the accused requesting for their appearance cons idering that the same was for thehearing on the Demurrer to Evidence only. It was allegedly based purely on the initiative of the respondent judge. The mother and brother of the deceased as well as the other witnesses subpoenaed by respondent Judge on his own discretion, were absent on said day thus, heset the hearing on the Demurrer to Evidence on June 23, 1998 at 8:30 oclock in the morning sharp. Thereafter, complainant Atty. Gacayan made the observationthat the proceedings then taking place was unprocedural. He was warned that he would be cited for contempt if he shall say th at again.

Complainant Atty. Gacayan claims that at about 10:30 in the morning of May 25, 1998 while he was about to leave the sala of RTC, Branch 4, Baguio City, which isnext to RTC, Branch 3, he observed that the prosecution wi tnesses (Alejandro Castaneda and Restituto Abuan) who allegedly testified for the prosecution were seentalking to the respondent Judge. Thus, he (Atty. Gacayan) went near the door of the Session Hall of RTC Branch 3 and when seen by respondent Judge, asked himto approach the bench. Thereafter respondent Judge continued asking questions to said witnesses on whether they saw complainant Sarol stabbed (sic) the victim,which they answer ed no.

Complainant contends that when said witnesses testified, they categorically stated under oath that they did not witness the incident. It was obvious that theHonorable Respondent Judge wanted the said witnesses to admit that they saw the killing. Thereupon, he again manifested his objections to the procedure beingfollowed by the Honorable Respondent judge considering that:

1] the prosecution had long rested its case; 2.] the Court had long granted the accuseds Motion for Leave to File Demurrer to Evidence and that the hearing being conducted is supposed to be a hearingon the Demurrer to Evidence, not [the] presentati on of prosecutions evidence; and 3] the hearing for that day insofar as the Sarol case had been adjourned and terminated. On June 17, 1998, respondent Judge ordered the arrest of one Mirriam Dominguez whom he described as an eyewitness to the incident. This was done withoutany motion from the Prosecution and though there is no record whatsoever supporting said conclusion that she is an eyewitness. Thereafter respondent Judge talkedalone to said witness in his chambers

In view of the unusual interest exhibited by the respondent Judge in favor of the prosecution and the highly unusual procedure he was then conducting the hearing onthe Demurrer to Evidence, they filed a Motion to Suspend f urther Proceedings on the Demurrer to Evidence until the Motion for Inhibition is resolved by theHonorable Court.

Considering that there is no resolution yet on his Motion for Inhibition as well as the pending Motion to Suspend Further Proceedings, complainant Atty. Gacayan didnot appear in the hearing on the Demurrer to Evidence.

The minutes of the hearing on June 23, 1998 shows that the respondent Judge made the following orders:

a. DENYING the Motion for Inhibition; b. DENYING the Motion to Suspend Further Proceedings; c. ORDERING the prosecution to present the witness who was ordered arrested by the Honorable Court though: 1. There was no valid motion complying with the requisites of Rule 15 of the Rules of Court, filed by the prosecution praying that it be allowed topresent further evidence assuming such a procedure is allowed considering that it had long rested its case and there is a pending DEMURRER TOEVIDENCE; 2. There is no resolution yet on the demurrer to evidence. d. ORDERING the PAO lawyer who was then present in court to act as counsel de officio without giving said lawyer sufficient time to study the case. e. ORDERING the continuation of hearing of said case to June 24, 1998 at 8:30 in the morning and 2 oclock in the afternoon. In the morning of June 24, 1998 at 8:30, respondent Judge again called the above case for hearing despite the fact that there was no notice sent to complainant Atty.Gacayan. At 2:00 oclock in the afternoon of June 24, 1998, he appeared as counsel for the accused and right then and there, he was ordered by the respondentJudge to conduct the cross-examination of the witness he ordered arrested despite:

a. his vigorous objections to the unprocedural manner in which the hearing on the Demurrer to Evidence is being conducted by the respondent judge; b. his objection that there was no motion duly set for hearing for the re-opening of the prosecutions evidence;

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c. the fact that he has not heard the testimony of the witness presented by the prosecution who was ordered arrested by the respondent Judge without anymotion from the prosecution; d. the fact that there was no transcript of records of the testimony of the witness ordered arrested by the respondent Judge on his own without any motionfrom the prosecution.

Consequently, respondent Judge agreed to the resetting of the crossexamination of the witnesses but ordered the resumption of the hearing of said case on July 1,1998 at 2:00 p.m. despite his (Atty. Gacayans) vigorous objection considering his obvious partiality. This is so because as early a s June 22, 1998, respondentinformed the lawyers that the calendar of the court is already full, yet he scheduled for June 24, 1998 at both 8:30 a.m. and 2:00 p.m. the Sarol case when thetestimony of the witness he ordered arre sted was not completed on June 23, 1998. Complainants contend that the act of respondent Judge is highly unusual to saythe least and a blatant violation of the unwritten rule on how a judge shall conduct himself.

Complainants stressed that considering the patent disregard by the respondent Judge of the basic rules governing the trial of the criminal case, they were left with noother recourse but to bring the matter to the attention of this Honorable Court in order for it to exercise its function as well as its disciplinary powers over men inrobes who are causing litigants to lose trust in our judicial system.

On August 7, 1996, Hon. Court Administrator Benipayo directed respondent Judge Fernando Vil Pamintuan to comment on the complaint of Atty. Lauro Gacayanand Mr. Noel Sarol.

Respondent Judge in his comment alleged in sum that: 1. He was a newly-appointed Judge of barely a few months when introduced to Criminal Case No. 14549-R, it was still on a hearing stage on accusedsDemurrer to Evidence; 2. On May 4, 1998, as the new Judge inquired into the nature of the case and called for the Public Prosecutor Benedicto T. Carantes and counsel for theaccused, Atty. Lauro D. Gacayan, in his Chamber and informed them that he would need time to examine the testimony of the witnesses and otherevidence already on record. Thus, the hearing of the Demurrer to Evidence was reset on May 25, 1998, at 8: 30 oclock in the morning with the agreementof both Public Prosecutor and counsel for the accused. However, he takes exception to counsel for the accuseds allegation that he would not dismiss thec ase for insufficiency of evidence. He simply said that he had to study the record of this case and see the witnesses and the private complainant/relativesof the victim in Court so that he could be properl y oriented as to the evidence in this case; 3. On May 25, 1998, only two (2) prosecutions witnesses appeared, Restituto Abuan and Alejandro Castaneda, whose presence were (sic) known to counselfor the accused, Atty. Lauro D. Gacayan. These witnesses affirmed that they did not see the killing of the victim. This was in the presence of counsel forthe accused, Atty. Lauro D. Gacayan. Then, he issued an order requiring the witnesses who fail ed to appear to show cause why they should not be cited incontempt of court. The hearing on the Demurrer to Evidence was reset to June 23, 1998, at 8:30 oclock in the morning. Again, said resettin g was with theconsent of the Public Prosecutor and counsel for the accused. 4. For failure of the prosecutions witnesses Mirriam Dominguez and Joseph Sarol to appear in Court, despite notice, and again failure to show cause why theyshould not be cited in contempt of court, the C ourt issued a warrant for their arrest. Mirriam Dominguez was arrested on June 16, 1998. Since the nexthearing on the Demurrer to Evidence was still on June 23, 1998, Mirriam Dominguez could ha ve been detained at the Baguio City Jail until the said nexthearing. That was the reason why she had to see him for her possible release before June 23, 1998. Had he not granted an audience to prosec utionwitness Mirriam Dominguez, she could have been detained at the Baguio City Jail from June 17, 1998 to June 23, 1998. With the commitment that shewould appear on the June 23, 1998 hearing, and further commitment to bring along [the] prosecutions eyewitness Neil Joseph Sarol, she was released. This occasion was transparent and properly recorded in the minutes of the proceedings of Ju ne 17, 1998; 5. On June 23, 1998, [the] prosecutions eyewitness Joseph Sarol appeared in Court and upon motion of the Public Prosecutor that the prosecutor is resting itscase (sic) be set aside given the appearance of a n eyewitness to the crime who could not be found before, the Court granted the same in the interest ofjustice. His act in allowing the prosecution to introduce an eyewitness in a crime despite the fact t hat the prosecution had already rested its case issupported by a legion of cases in jurisprudence.[1] Also in the scheduled hearing, counsel for the accused, Atty. Lauro D. Gacayan, failed to appear, despite notice. Prompting him to appoint a counsel deofficio for the accused in the person of Atty. Rey naldo Banta [the] detailed PAO lawyer in court. Testimony of the eyewitness Neil Joseph Sarol on directand initial cross-examination was completed. 6. On June 24, 1998 for the continuance of the crossexamination of eyewitness Neil Joseph Sarol, said eyewitness manifested that he had a class examinationat 11:00 oclock in the morning and understanding the plight of said eyewitness, he reset the he aring for the afternoon of June 24, 1998; On June 24, 1998, in the afternoon, the hearing was cancelled on the ground that counsel for the accused, Atty. Lauro D. Gacayan, had to study thetranscript of stenographic notes of the direct testimon y of eyewitness Neil Joseph Sarol and moved for resetting of this case which the Court granted. Thiscase was reset to July 1, 1998, at 2:00 oclock in the afternoon. On July 1, 1998, at 2:00 in the afternoon, counsel for the accused, Atty. Lauro D. Gacayan, manifested that he did not have a copy of the transcript ofstenographic notes of the testimony of eyewitness Neil Joseph Sarol and he had to study the same, and moved for the resetting of the hearing which theCourt granted, so that the crossexamination was reset to September 9, 1998 at 8:30 oclock in the morning SHARP. 7. On the matter of his inhibition, the same has been denied and extensively discussed in the Order dated June 23, 1998.

The pertinent portion reads as follows: Also before this Court is the accuseds motion for inhibition of this Court from hearing this case the same is denied for lack of factual and legal basis. Furthermore,the counsel for the accused, Atty. Lauro Gacayan who filed this motion for inhibition failed to appear in todays hearing despite notice and therefore failed tosubstantiate this motion in open court. It must be stressed that this Court is not only a Court of Law but also a Court of Justice . This Presiding judge does notpersonally know neither accused Noel Sarol [n]or the other people involved in this case. The Presiding Judge does not come from Baguio City and, therefore, doesnot have any special interest as to any person from Baguio City.

The Presiding Judge is only interested that justice shall be realized in the hearing of every case. It does not personally matter to this Presiding Judge if the accused willbe convicted or acquitted on the basis of the evidence an d law. If the accused is to be acquitted, so be it. If there is no evidence against him to prove his guiltbeyond reasonable doubt, therefore, he should be acquitted. But the Court cannot close its eyes to the fact that there is still an eyewitness in this Homicide case, bythe name of Neil Joseph Sarol whose written affidavit is even on record (p. 4, Record), and can possibly shed light to the killing of the victim Cesar Dominguez in thiscase. The Judge of this Court does not sit in this chair as a mute witness of what is going on in a case. It is the duty of this Judge to see to it that justice is dispensedwith. Whether or not [the] accused Noel Sarol is convicted is none of the per sonal concern of this Judge. Conversely, whether or not the accused will be acquittedis none of the personal concern of this Judge. Let the accused be convicted or acquitted as the evidence and the law warrant. There lies a dead victim in my Court, so to speak a victim of the crime of Homicide. It is the sacred duty of this Court to judicially determine the truth regarding thedeath of this victim. If the accused did not kill the victim, so be it. If according to the evidence and law, the killing of this victim is justified, so be it. If the killing ofthis victim falls under an exempting circumstance favorable to the accused, so be it. This court will have no choice but to acquit the accused in this case under thosecir cumstances. But for as long as there is a vital eyewitness whose written affidavit is on record and who can tell the Court and the public as to what really happenedin this capital homicide case, this Court which should be true to its duty, as a dispenser of justice shall not rest finding out the truth. Much more, this Court cannot bea party to the suppression of an eyewitness to a homicide case.

As the new Presiding Judge of this Court, of only a few months, I cannot help but remember my declared sworn solemn Covenant with God and the people gatheredin my oathtaking as a new judge in the conference room of the Court of Appeals, Manila last February 28, 1998. In my Covenant, I vowed: That I shall be an efficient, impartial and honest judge; That I shall never compromise a case for money or any other considerations; and That justice shall prevail in my Court whatever it takes.

I have not forgotten said Covenant.

Thus finding no factual nor legal basis on this motion for the inhibition of this Presiding Judge who does not know any one of the parties in this case, and whoseconscience is clear on the matter, the same motion is hereby den ied xxx 8. Finally, he does not see any factual and legal basis for the complainants charge against him. He has been simply doing his job as a dispenser of justice inthe best way he could. From the foregoing factual findings, the OCA recommends that respondent Judge be severely reprimanded for his obvious partiality with a warning that arepetition of the same or similar act in the future will be dealt with more severely reasoning that The sole purpose of courts of justice is to enforce the laws uniformly and impartially without regard to persons or their circumstances or the opinion of one. A judgethus should strive to be at all times wholly free, disinteres ted, impartial and independent. Elementary due process requires a hearing before an impartial anddisinterested tribunal. A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely f ree from the suspicion as to its fairnessand as to its integrity. Hence, judges should not only be impartial but should also appear impartial. While judges should possess proficiency in the law or order thatthey can completely construe and enforce the law, it is more important that they should act and behave in such a manner that the parties before them should haveconfidence in their impartiality.[2]

The issue before us is whether or not a Judge can motu proprio order the case to be re-opened without being perceived as partial in favor of the prosecution.

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The re-opening of the case by a court on its own motion was largely a matter in its discretion and for the orderly administration of justice, and there is no merit in thefirst assignment of error.[3]

There is no specific provision in the Rules of Court governing motion[s] to reopen a case for the reception of evidence after a case has been submitted for decisionbut before judgment. This is a judicial action which is controlled only by the paramount interest of justice and rest[s] entirely on the sound discretion of the trialcourt. This [is] supported by existing jurisprudence on the matter, to wit: x x x it is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and the discretion will not bereviewed except where it has clearly been abused.[4] More, it is within the sound discretion of the court whether or not it will allow the case to be reopened for thefurther introduction of the evidence after a motion or request for a nonsuit, or a demurrer to the evidence; and the case may be reopened after the court hasannounced its intention as to its ruling on the request, motion or demurrer, or has granted it or has denied the same, or after the motion has b een granted, if the orderhad not been written, or entered upon the minutes or signed.[5]

In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, ithas been held, the court, for good reasons, in the furtheran ce of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbedin the appellate court where no abuse of discretion appears.[6] So, generally, additional evidence is allowed when it is newly discovered or where it has been omittedthrough inadvertence or mistake or where the purpose of the evidence is to correct evidence previously offered.[7]

In the light of the foregoing jurisprudence, it is thus necessary to determine whether respondent judge acted within the bounds of his authority.

There is no doubt as borne by the previous resolutions of this Honorable Court thru (sic) respondent Judge may in his own initiative order the reopening of a case orupon motion of one of the parties for the orderly administrat ion of justice. It must not, however, be done whimsically, capriciously and/or unreasonably.

The records show that the subject case was filed on September 27, 1996. It took the prosecution no less than one (1) year and four (4) months to adduce evidenceagainst the accused, and when the defense filed a Demurrer to Evidence due to an apparent failure of the prosecution to prove its case, respondent all of a suddenreopened the case. He subpoenaed witnesses to appear before him and directed them to testify on what they know about the c ase. This he made because of thefact that there lies a dead victim and he is to determine who is responsible thereof. Thus, in so doing his actuation was viewed as partial by the complainants. Heacted as though he was active ly prosecuting the case at the expense of the accused. Moreover, there was no paramount interest of justice to speak of in this case which would have justified the actuations of respondent in reopening the case. Theprosecution was given all the opportunity to present its eviden ce and to order anew the presentation of additional evidence is but a superfluity, especially so that thesame will not materially affect the position of the prosecution.

Hence, the complainants have all the reasons to doubt the impartiality of respondent Judge.

It is, thus well to remind the members of the Judiciary: x x x to so conduct themselves as to be beyond reproach and suspicion and be free from any appearance of impropriety in their personal behavior not only in thedischarge of their official duties but also in their everyday life, for as we have earlier stressed no position exacts a greater demand on [the] moral righteousness anduprightness of an individual than a seat in the Judiciary so that (a) magistrate of the law must comport himself at all times i n such a manner that his conduct, official orotherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice.[8]

We agree with the factual findings of the OCA. However, the penalty recommended, i.e., reprimand, is too light given the facts of the case. Apropos the charge of partiality, the Court pointed out in Dawa v. De Asa[9] that the [p]eoples confidence in the judicial system is founded not only on themagnitude of legal knowledge and the diligence of the mem bers of the bench, but also on the highest standard of integrity and moral uprightness they are expected topossess.[10] It is towards this sacrosanct goal of ensuring the peoples faith and confidence in the judiciary that the Code of Judicial Conduct mandates the following: CANON 2 A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES. RULE 2.01 A judge should so behave at all times to promote public confidence in the integrity and impartiality of the judiciary. CANON 3 A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, AND WITH IMPARTIALITY AND DILIGENCE. RULE 3.01 A judge shall be faithful to the law and maintain professional competence. RULE 3.02 In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion or fear ofcriticism. The Canons of Judicial Ethics further provides that: [A] judges official conduct should be free from the appearance of impropriety, and his personal behavior,not only upon the bench and in the performance of judic ial duties, but also his everyday life should be beyond reproach. Thus, the Court in taking the respondent totask in Sarah B. Vedana v. Judge Eudarlo B. Valencia,[11] minced no words when it said: . . . his being a public official, holding a position in the Judiciary and specifically entrusted with the sacred duty of administering justice, breached Canon 2 of theCode of Judicial Conduct and Canon 3 of the Canons of Judic ial Ethics which mandate respectively, that a judge should avoid impropriety in all activities, and thata judges official conduct should be free from the appearance of impropriety, and his personal behavior, not only upon th e bench and in the performance of judicialduties, but also in everyday life, should be beyond reproach. These most exacting standards of decorum are demanded from magistrates if only, in the language ofRule 2.01 of Canon 2 of the Code of Judicial Conduct, to promote public confidence in the integrity and impartiality of the judiciary. The spirit and philosophy underlying these Canons is best expressed in Castillo v. Calanog[12] thus:

The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of impropriety not only with respect to his performance of his judicial duties,but also to his behavior outside his sala and as a private in dividual. There is no dichotomy of morality; a public official is also judged by his private morals. The Codedictates that a judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must b ehave with propriety at all times. As we have veryrecently explained, a judges official life can not simply be detached or separated from his personal existence. Thus:

Being the subject of constant public scrutiny, a judge should freely and willingly accept restrictions on conduct that might be viewed as burdensome by the ordinarycitizen. A judge should personify judicial integrity and exemplify honest public service. The personal behavior of a judge, both in the performance of official duties and inprivate life should be above suspicion.[13]

Verily, no position is more demanding as regards moral righteousness and uprightness of any individual than a seat on the Bench. Within the hierarchy of courts, trialcourts stand as an important and visible symbol of govern ment, especially considering that as opposed to appellate courts, trial judges are those directly in contactwith the parties, their counsel and the communities which the Judiciary is bound to serve. Occupying as he does an exal ted position in the administration of justice, ajudge must pay a high price for the honor bestowed upon him. Thus, the judge must comport himself at all times in such manner that his conduct, official orotherwise, can bear th e most searching scrutiny of the public that looks up to him as the epitome of integrity and justice.[14] In insulating the Bench from theunwarranted criticism, thus preserving our democratic way of life, it is essential that judge s, like Caesars wife, should be above suspicion. A judge is not only required to be impartial; he must appear to be impartial.[15] Fraternizing with litigants tarnishes this appearance.[16] It was, thus, held that it isimproper for a judge to meet privately with the accused without the presence of the complainant.[17] Talking privately alone to an alleged eyewitness to the incident inthe seclusion of his chambers, as what transpired in this case, likewise taints this image much more so considering the circumstances surrounding the production ofsaid witness. Verily, [n]o position exacts a greater demand on [the] moral righteousness and uprightness of an individual than a seat in the judiciary. A magistrate of the lawmust comport himself at all times in such a manner that his conduct, official or otherwise can bear the most searching scrutiny of the public that looks up to him as anepitome of integrity and justice.[18] Indeed, more than simply projecting an image of probity, a judge must not onl y appear to be a good judge; he must alsoappear to be a good person.[19] As has been stated by this Court in Ruperto v. Banquerigo[20] [T]he office of a judge exists for one solemn end to promote the ends of justice byadministering it speedily and impartially. The judge as the person presiding over that court, is the visible representation of the law and justice. These are selfevident dogmas which do not even have to be emphasized, but to which we are wont to advert when some members of the judiciary commit legal missteps or strayfrom the axioms of judicial ethics x x x. The rule on inhibition and disqualification of judges is laid down in Section 1, Rule 137 of the Rules of Court, which states: SECTION 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir,legatee, creditor, or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree,computed according to the rules of civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferiorcourt whe n his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

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A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just and valid reasons other than those mentioned above. While the second paragraph does not expressly enumerate the specific grounds for inhibition and leaves it to the sound discretion of the judge, such should bebased on just and valid reasons.[21] The import of the rule on voluntary inhibition of judges is that the decision on whether or not to inhibit is left to the sounddiscretion and conscience of the trial judge based on his rational and logical assessment of the circumstances prevailing in th e case brought before him. It points outto members of the bench that outside of pecuniary interest, relationship or previous participation in the matter that calls for adjudication, there might be other causesthat could conceivab ly erode the trait of objectivity, thus calling for inhibition for, indeed, the factors that lead to preferences and predilections are many and varied.[22] Considering the high-handed manner in which the respondent resolved the motion seeking his inhibition vis--vis his manifest partiality in favor of the prosecutionin Criminal Case No. 14549R, his attention is called to the pronouncement of the Court in Pimentel v. Salanga[23] reiterated in Gutang v. Court of Appeals:[24] All the foregoing notwithstanding, this should be a good occasion as any to draw attention of all judges to appropriate guidelines in a situation where their capacity totry and decide a case fairly and judiciously comes to the f ore by way of challenge from any one of the parties. A judge may not be legally prohibited from sitting in alitigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arisingout of circumstance[s] reasonably capable of inciting such a state of mind, he should conduct a careful selfexamination. He should exercise hisdiscretion in a way that the peoples faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing partymight nurture at the back of his mi nd the thought that the judge unmeritoriously tilted the scales of justice against him. That passion on the part of a judgemay be generated because of serious charges of misconduct against him by a suitor or his counsel, if not altogether remote. He is a man subject to the frailties ofother men. He should, therefore, exercise great care and caution before making up his mind to act or withdraw from a suit where that party or counsel is involved. He c ould in good grace inhibit himself where that case could be heard by another judge and where no appreciable prejudice would be occasioned to theothers involved therein. On the result of his decision to sit or not to sit may depend on a great extent the allimportant confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives and fairness might be seriously impugned, his action is to beinterprete d as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice.

A presiding judge, to be sure, must maintain and preserve the trust and faith of the partieslitigants. He must hold himself above reproach and suspicion. At thevery first sign of lack of faith and trust in his actions, whether wellgrounded or not, the judge has no other alternative but to inhibit himself from the case.[25] Heshould exercise his discretion in a way that the peoples faith in the Courts of Justice is not impaired. The better course for the judg e under such circumstances is todisqualify himself. That way, he avoids being misunderstood, his reputation for probity and objectivity is preserved. What is more important, the ideal of impartialadministration of justice is li ved up to.[26] Anent the charge of gross ignorance of the law, it needs be stressed that to be able to render substantial justice and to maintain public confidence in the legalsystem, judges are expected to keep abreast of all laws and prevailing jurisprudence,[27] consistent with the standard that magistrates must be the embodiment ofcompetence, integrity and independence.[28] As aptly stated in Borromeo v. Mariano[29] [O]ur conception of good judges has been, and is, of men who have a mastery of the principles of law, whodischarge their duties in accordance with law x x x. Thus, it h as been held that when the judges inefficiency springs from a failure to consider so basic and elementala rule, a law or a principle in the discharge of his duties, a judge is either too incompetent and undeserving of the positio n and title he holds or he is too vicious that theoversight or omission was deliberately done in bad faith and in grave abuse of judicial authority.[30] Indeed, everyone, especially a judge, is presumed to know the law. When, as in this case, the law is so elementary, not to be aware of it constitutes grossignorance of the law.[31] Judges are expected to exhibit more t han just a cursory acquaintance with statutes and procedural rules. They must know the laws andapply them properly in all good faith. Judicial competence requires no less.[32] It is imperative that a judge be conversant with basic legal principles and that he beaware of wellsettled authoritative doctrines.[33] He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification ofjustice and the rule of law.[34] Needless to state, respondent was in this instance wanting in the desired level of mastery of a fundamental rule on criminal procedure. In Cortes v. Judge Catral;[35] this Court found respondent judge therein guilty of gross ignorance of the law for granting bail to the accused without therequisite hearing. The respondent judge was ordered to pay a fi ne of P20,000.00 with the warning that a repetition of the same or similar acts in the future would bedealt with more severely. In Mamolo, Sr. v. Narisma,[36] the Court held respondent judge guilty of gross ignorance of the la w and penalized him with a fine ofP20,000.00. The same penalty was imposed by this Court on respondent judge in Buzon, Jr. v. Velasco,[37] who was found to have fallen short of the standard setforth in Rule 1.01, Canon 1 of the Code of Judicial Conduct, thereby eroding the litigants confidence in his competence and knowledge. Based on the foregoing jurisprudence, We find the recommended penalty of reprimand not commensurate with the misdeed committed. A fine of P10,000.00and reprimand, with a warning that a commission of simil ar acts in the future shall be dealt with more severely is a more appropriate penalty. Furthermore, in view of the prevailing circumstances in this case, the Court deems it the better course for respondent Judge to inhibit himself from further hearingCriminal Case No. 14549R. In that way, he avoids being misunderstood, his reputation for probity and objectivity is preserved. Most important of all, the ideal ofimpartial administration of justice is lived up to.[38] WHEREFORE, for violations of Canon 2 of the Code of Judicial Conduct and Canon 3 of the Code of Judicial Ethics which amount to grave misconduct,conduct unbecoming of an officer of the Judiciary and cond uct prejudicial to the best interests of the service, respondent Judge FERNANDO VIL PAMINTUAN,Presiding Judge, Regional Trial Court, Branch 3, Baguio City, is hereby FINED the amount of P10,000.00. He is likewise REPRIMANDED and sternlyWARNED that a repetition of the foregoing or similar transgressions shall be dealt with more severely. Finally, he is ORDERED to inhibit himself from furtherhearing Criminal Case No. 14549 -R. The Executive Judge is ordered to re-raffle the case with dispatch to another sala. PEOPLE OF THE PHILIPPINES, Appellee, Promulgated: - versus April 23, 2010 BENANCIO MORTERA y BELARMINO, Appellant. G.R. NO. 188104

DECISION MENDOZA, J.: This is an appeal from the January 23, 2009 Decision[1] of the Court of Appeals which affirmed with modification the Decision[2] of the Regional Trial Court, Branch 16, Zamboanga City (RTC), in Criminal Case No. 19311, which found accused Benancio[3] Belarmino guilty beyond reasonable doubt of the crime of murder for the killing of one Robelyn Rojas. The accusatory portion of the Amended Information[4] charging the accused with murder reads: That on or about August 25, 2002, in the City of Zamboanga, Philippines and within the jurisdiction of this Honorable Court, the above named accused, armed with a knife, by means of treachery and with intent to kill, did then and there willfully, unlawfully and feloniously, assault, attack and stab from behind with the use of said weapon that he was then armed with, at the person of ROBELYN ROJAS y MALLARI, employing means, manner and form which tended directly and specially to insure its execution without any danger to the person of the accused, and as a result of which attack, the said Robelyn Rojas y Mallari sustained stabbed wound on the fatal part of the latters body which directly caused his death to the damage a nd prejudice of the heirs of said victim. CONTRARY TO LAW. Upon arraignment on February 6, 2004, the accused pleaded Not Guilty.[5] At the trial, the prosecution presented the following witnesses: (1) Ramil Gregorio, an eyewitness; (2) Jovel Veales, another eyewitness; (3) Dr. Jamella Marbella, examining physician; (4) Leticia Rojas, mother of Robelyn; and (5) PO1 Yaser Hakim. The prosecutions version of the incident, as found by the trial court and adopted by the Office of the Solicitor General, appears in the Appellees Brief as follows: Robelyn Mallari Rojas, 23 years old, single, was stabbed and killed on August 25, 2002 at Cabato Lane, Gov. Camins,Zamboanga City. Post mortem examination conducted by Dr. Jamella Marbella, Medical Officer V of Zamboanga City Health Office showed that Robelyn Rojas sustained the following injuries: 1. Penetrating wound, clean edges, 2-5 cm width 1.5 cm. gaping located at 5 cm. from spine below the left sub-scapular region. 19 cm. deep upward towards axilla, and 11 cm. deep downward towards left flank region. 2. Linear abrasion 5.5 cm. in length at the left lateral aspect of left arm (Ex. B).
[6]

The cause of his death was cardio pulmonary arrest probably secondary to hemorrhagic shock secondary to stab wound, penetrati ng left back (Exh. A-1).

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Prosecution witness Ramil Gregorio y Toribio, 24 years old, single, testified that on August 25, 2002, at about 3:00 oclock in the afternoon, he together with Jovel Veales, Archie Saavedra, John Carpio, Plong Siano and Alberto Rojas were drinking tuba at Cabato Lane, near Acapulco Drive, Governor Camins, Zamboanga City. Four of them were sitting on a chair leaning on a concrete wall while two of their companions sat on the ground. They have just started drinking when Benancio Mortera, Jr. arrived. He wanted to hit Alberto Rojas with a Nescafe glass. Alberto Rojas ran away. Mortera said, Sayang. He listened while the group of Ramil Gregorio were (sic) singing accompanied by a guitar. Jomer Diaz, brother-in-law of Alberto Diaz, arrived. He bought something from a store five meters away from the place where Gregorio and his companions were drinking. Mortera said, Here comes another Rojas. Gregorio and his companions told Jomer Diaz to run away. Mortera hurled a stone at Diaz but the latter was not hit. Mortera left but he said that he will return. After a few minutes, Mortera came back. When Jomer Diaz ran, Robelyn Rojas, brother of Alberto Rojas went to Jomer. Mortera met Robelyn at a distance of about seven meters from the place where Ramil Gregorio and his companions were drinking. Mortera and Robelyn discussed with each other. After their discussion, Mortera and Robelyn shook hands. Robelyn turned his face and walked three steps. Mortera suddenly stabbed Robelyn Rojas at the back with a knife about 9 inches long. Robelyn was hit at the back. After stabbing Robelyn, Mortera ran away. Robelyn Rojas tried to chase Mortera but he was not able to catch up with the latter. Robelyn fell down mortally wounded. He was brought to the hospital by his brother Ricky but he was *pronounced+ dead on arrival at the hospital (Exh. A). Jovel Veales y Bandian, 23 years old, who was drinking together with Ramil Gregorio, Archie Saavedra, John Carpio, Plong Siano and Alberto Rojas, in the afternoon of August 25, 2002 corroborated Ramil Gregorios testimony. Mrs. Leticia Rojas y Mallari, 48 years old, married, is the mother of Robelyn Rojas y Mallari. She testified that Robelyn is one of her eight children. xxx She was at work at Zamboanga Puericulture Lyingin Maternity Hospital as laundry woman when her daughter Marilyn called her by telephone informing her that Robelyn was stabbed. She went to Western MindanaoMedical Center where she saw Robelyn already dead with stab wound at the back. At past 6:00 oclock in the evening, Robelyns body was brought to Remedios Funeral Parlor. Mrs. Rojas testified that she spent a total of Php38,653.00 in connection with her sons death (Exh. J; J-1, J-1-A to J-1-V). Although the accused pleaded not guilty when arraigned,[7] during the trial, he admitted having stabbed the victim whom he referred to as Tonying, but claimed self-defense.[8] By his account, after leaving his uncles house at Gov. Camins, he passed by a corner and saw a group of people drinking. They were Ramil Gregorio, Jonel Veales and Tonying. Upon seeing him, Tonying ran away and called his brother, Alberto Rojas. When the accused was about to reach the main road, Alberto Rojas, Tonying and a certain Duk (brother -in-law of Tonying) accosted him and asked him for liquor money. When he refused, the three men got angry. After telling them that he had to go, Tonying hit him with a spray gun (for painting), causing him to fall down. While he was in a supine position, Tonying attempted to hit him again. It was at that point that he was able to get hold of his knife and thrust it forward and hit someone. He did not know who got stabbed. He then immediately fled to Ayala and later to Lintangan, Zamboanga del Norte. [9] The defense witness, Roden Macasantos, claimed that he was drinking with the group of Alberto Rojas when he saw the accused having an argument with Jomer Diaz. After they had pacified the two, he saw Diaz run away. Later, he returned with Robelyn Rojas. Robelyn also argued with the accused, and they were likewise pacified by the others in the group. The dispute apparently settled, the group left Robelyn and the accused alone. After about five minutes, they heard women shouting. When they went to find out what it was all about, they saw Robelyn wounded. He, however, did not see the person who stabbed him. [10] On January 23, 2007, the RTC rendered judgment finding the accused guilty of murder. The trial court disposed of the case as follows: WHEREFORE, the Court finds the accused BENANCIO MORTERA, JR. Y BELARMINO GUILTY BEYOND REASONABLE DOUBT of the crime of murder, as principal, for the unjustified killing of Robelyn Rojas y Mallari and SENTENCES said accused to suffer the penalty of RECLUSION PERPETUA and its accessory penalties, to pay the heirs of the victim Php50, 000.00 as indemnity for his death; Php50,000.00 as moral damages; Php30,000.00 as exemplary damages; Php38,653.00 as actual damages; and to pay the costs. SO ORDERED. In rejecting the claim of self-defense, the trial court stated that it was not worthy of belief as it was belied by the credible testimonies of the prosecution witnesses. [11] The accused appealed to the Court of Appeals raising the issues of denial of due process of law and his right to an impartial trial. He claimed that the trial court judge, Judge Jesus Carbon, was hostile towards him and prejudged his guilt as could be inferred from his prosecutor -like conduct. The accused likewise reiterated his claim of self-defense. In its decision, the Court of Appeals affirmed the decision of the RTC with modification as to the civil liability of the accused. The CA ruled that the trial judge did not transgress the standard of cold neutrality required of a magistrate and added that the questions he propounded were substantially clarificatory. The claim of self-defense was rejected for failure to prove the element of unlawful aggression by clear and convincing evidence. With respect to his civil liability, temperate damages in the amount of P25,000.00 was awarded, in lieu of the actual damages awarded by the trial court, for failure of Leticia Rojas to substantiate her claim with official receipts. The amount of exemplary damages was likewise reduced to P25,000.00. Specifically, the dispositive portion of the decision of the Court of Appeals reads: WHEREFORE, in view of the foregoing, the Decision dated January 16, 2007 in Criminal Case No. 19311 finding accused-appellant guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua and its accessory penalties is hereby AFFIRMED WITH MODIFICATION that accused-appellant is ORDERED to pay the heirs of victim Robelyn Rojas the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages in lieu of actual damages, and P25,000 as exemplary damages; and costs. SO ORDERED. Still not satisfied, the accused now comes before this Court. [12] In seeking his acquittal, he has assigned three errors for the courts resolution, to wit: (i) there was a denial of his righ t to due process and of his right to have an impartial trial; (ii) there was no appreciation of the justifying circumstance of self defense; and (iii) assuming that not all the requirements of self-defense were present, there was no appreciation of the special mitigating circumstance of incomplete self-defense. After an assiduous assessment of the records, the Court finds no reason to reverse the judgment of conviction or even appreciate the special mitigating circumstance of incomplete self-defense. We, thus, affirm. For a better grasp of the assertion of the defense that he was denied his right to due process of law and his right to an impartial trial, we quote at length the transcript of stenographic notes. Thus: DIRECT EXAMINATION ON THE WITNESS VENANCIO MORTERA, JR. COURT: Q: A: During the arraignment you said you did not kill this Robelyn Rojas. Did you say that? Yes, Your Honor.

COURT: And, its here where the accused interposed a negative defense because, you said you have nothing to do with the death of Rob elyn Rojas. WITNESS: As far as I could remember Your Honor, he hit me then I fell down then he still approached me so what I did, I was able to thrust my knife. COURT: Q: You were suggesting that you might have killed him in self-defense? A: Yes, Your Honor.

Q: A:

As if there is something wrong to your story last February 6, 2004, you invoked a negative defense? Not intentional.

Q: A:

So, you are changing your story now? From a negative defense you are now asserting affirmative defense? He hit me first then I fell down just the same he continued approaching me so I was able to do it?

COURT:

Page 5 of 41

In effect, while you were in the middle of the river you are changing boat and when you change boat in the middle of the river, sometimes you get drowned. Because you told even your own lawyer Atty. Mendoza, said that you interpose a negative defense that is why we did not have reverse trial. You were not even telling the truth to Atty. Mendoza. Because had you told him the truth, it could have been

Q: A:

Why did Atty. Mendoza, invoke negative defense? Yes, Your Honor.

ATTY. MENDOZA: Yes, Your Honor, I insisted that, in fact, he told me that he dont * sic+ know that person by that name COURT: Well, if he had nothing to do with the death of said person, negative defense. So, if you are not telling the truth to your lawyer, how would I know now that you are telling the truth? Anyway if you killed a person you will have to pay for it Mr. Mortera, do you agree also? WITNESS: Yes, Your Honor. COURT:

So, cross-examination.

PROSECUTOR LEDESMA: CROSS EXAMINATION ON THE WITNESS VENANCIO MORTERA, Jr.

Prosecutor Ledesma:

xxx

Q: A:

And you said earlier that it was this Tingay [deceased] who attacked you with this spray gun then you fell down? Yes. Then he still approached me and at the same time asked money and I asked for what? Then he said, for their vices.

Q: A:

You were having this conversation while you were down? Not yet.

Q: A:

He was holding the spray gun on his hand, correct? Yes.

Q: A:

Then you said while you were down you were able to thrust your knife upward, correct? Well, after hitting me, when I was already down he was still approaching me and wanted to hit me again.

Q: A:

Yes, approaching you and in the process of hitting you, that was the time that you thrusted [ sic] the knife, correct? Yes.

Q: A:

And it was you, who advanced personally that you were able to hit him, correct? Yes.

COURT:

Q: A:

You felt the blade of the knife slicing a person? Yes, Your Honor.

Q: A:

As if the knife hit a pig you were used to selling? That knife is stainless used in cutting rope.

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Q: A:

Its a long white knife? Not so long Your Honor

Q: A:

But, enough to kill a person? Somewhat like that Your Honor.

Q: A:

But, not enough to kill a pig? No, Your Honor. That is only used in cutting rope.

Q: A:

Where is that evil knife? Well, it is in the place at Bagsakan where we are having a place.

COURT:

You tell them to throw it away or bury that knife because that is a bad knife. So long as that knife is there the one in possession of that will always have bad luck. It is cursed. Eventually, Tingay is already dead.

Q: A:

Did your uncle also tell you that Tingay, sustained a single wound at his back? Yes.

COURT:

Q: A:

So, when you stabbed him he was trying to hit you with a very small spray gun. How was it that he was hit at the back? Well, when he was in the act of hitting me again, I thrusted [sic] the knife to shall we say towards him Your Honor.

Q: A:

That is why, it is impossible because if he was trying to hit you with a spray gun, you thrusted [sic] the knife towards him, how was it that he was hit at the back? He was hit Your Honor, when he was in the act of hitting me again.

COURT:

Proceed, Atty. Ledesma.

xxx

COURT:

Robelyn Rojas, was 23 years old when you killed him.

WITNESS:

I do not know the age.

COURT:

Of course, you do not know. The life span of a Filipino now is about 70 years old, Fiscal? .. Because we expect that long. So, if you did not kill him he will still have 47 years to live.

PROSECUTOR LEDESMA:

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I believed [sic] 80 years Your Honor.

COURT:

80 for purposes of compensation.

PROSECUTOR LEDESMA:

Yes.

COURT:

He has 57 years more to live. That is the trouble of killing people because you are depriving the person of his right to live and even if what you are saying is true, you could not have been killed with that small spray gun You have no right to stab him. Besides, that is not what your witness said even your own witness here is not supporting your story. Who is that witness?

WITNESS:

Denden Macasantos

COURT:

Yes, Denden Macasantos. He did not declare what you are saying now. You are just making a story.

Q: A:

So, even the story of your witness who I think was telling the truth, dont *sic+ support your story Mr. Mortera Your story now is different Did you hear Denden? Yes.

Q: A:

They did not tell the same story as you are saying now about the spray gun being used to hit you? I do not know with them Your Honor, but in my case I was really hit with that spray gun.

Q: A:

Were you injured? No.

Q: A:

Thats the whole trouble. Why will you have injury when you were not hit? I was hit Your Honor.

Q: A:

You were hit? Yes, I fell down and he continued approaching me.

COURT:

You did more than what Robelyn, did to you. You killed him. Proceed.

PROSECUTOR LEDESMA:

Q: A:

You did not report to the police that incident involving Tingay and his group, correct? Yes, I did not.

Q:

Instead, you immediately left for Ayala?

Page 8 of 41

A:

Well, after the incident I ran away towards Ayala.

COURT:

Q: A:

By your running away because you were afraid, you were committing something wrong? That is why, I ran away I have done something I was able to kill somebody.

Q: A:

Why did you run to Ayala then run to Lintangan then return to Acapulco Drive, knowing that you have a Warrant of Arrest, you went back to Lintangan? Because you felt guilty? Yes, Your Honor.

Q: A:

Robelyn, has seven brothers and sisters? So, maybe you should have some vacation in Jail you are supposed to serve? Yes. (Italics supplied)

Citing the foregoing as basis, the accused argues that Judge Jesus Carbon, Jr. displayed his hostility towards him and condemned him even before the defense could rest its presentation of evidence. By saying that he was just making a story, the judge already concluded his guilt during trial.

The Court is not unaware of the case of Tabuena v. Sandiganbayan,[13] where it was written:

The Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. But not only should his examination be limited to asking clarificatory questions, the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of trial hardly in fact can one avoid the impression that the Sandiganbayan h ad allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta. The cold neutrality of an impartial judge requirement of due process was certainly denied Tabuena and Peralta when t he court, with its overzealousness, assumed the dual role of magistrate and advocate A substantial portion of the TSN was incorporated in the majority opinion not to focus on numbers alone, but more important ly to show that the court questions were in the interest of the prosecution and which thus depart from the common standard of fairness and impartiality. (emphasis added)

The situation in the case at bench is, however, different.

As correctly pointed out by the Court of Appeals, although the trial judge might have made improper remarks and comments, it did not amount to a denial of his right to due process or his right to an impartial trial. Upon perusal of the transcript as a whole, it cannot be said that the remarks were reflective of his partiality. They were not out of context. Not only did the accused mislead the court by initially invoking a negative defense only to claim otherwise during trial, he was also not candid to his own lawyer, who was kept in the dark as to his intended defense.

The accused having admitted the killing, a reverse order of trial could have proceeded. [14] As it turned out, the prosecution undertook to discharge the burden of proving his guilt, when the burden of proof to establish that the killing was justified should have been his.[15]

Most probably, the trial judge was peeved at the strategy he adopted. The trial judge cannot be faulted for having made those remarks, notwithstanding the sarcastic tone impressed upon it. The sarcasm alone cannot lead us to conclude that the trial judge had taken the cudgels for the prosecution. The invocation of Opida[16] fails to persuade us either. The facts therein are not at all fours with the case at bench. InOpida, we did not fail to notice the malicious, sadistic and adversarial manner of questioning by the trial judge of the accused therein, including their defense witness. In Opida, the accused never admitted the commission of the crime, and so the burden of proof remained with the prosecution.

In his second assigned error, the accused invokes self-defense. By asserting it, however, it became incumbent upon him to prove by clear and convincing evidence that he indeed had acted in defense of himself. The requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means employed to repel or prevent it; and (3) lack of sufficient provocation on the part of the person defending himself. [17]

The issue of whether or not the accused acted in self-defense is undoubtedly a question of fact, and it is well entrenched in jurisprudence that findings of fact of the trial court command great weight and respect unless patent inconsistencies are ignored or where the conclusions reached are clearly unsupported by evidence. [18] In the present case, we find no cogent reason to disturb the decision of the trial court, as modified by the CA. In debunking his claim, we quote with approval the ruling of the CA.

In the instant case, accused-appellant claims that there was unlawful aggression on the part Robelyn Rojas when the latter allegedly hit him with a spray gun. However, except this self-serving statement, no other evidence was presented to prove that indeed he was hit by Robelyn. Accused-appellant failed to show where he was hit and what injuries he sustained, if any. Moreover, his own defense witness Roden Macasantos did not see him being hit by a spray gun. On the contrary, the prosecution has clearly shown that before Robelyn was stabbed, the two even discussed with each other and accused-appellant even shook hands with him. Moreover, if indeed it was true that Robelyn was carrying a spray gun and tried to hit him, accused-appellant, while he was in a supine position, could have easily just flaunted his knife to scare his alleged attackers away. On the other hand, even if we assume to be true that he was in a supine position when he thrust the knife at his attacker, it is however impossible that the back of Robelyn would be hit, unless the latter could also fell (sic) on his back, which is again far from reality. In a myriad of cases, it has been ruled that the location, number or seriousness of the stab or hack wounds inflicted on the victim are important indicia which may disprove accuseds plea of self defense. In the instant case, it is clear that the victim was stabbed at the back negating any indication that accused-appellant acted in self defense.

Finding the primordial requisite of unlawful aggression wanting, the Court cannot appreciate the mitigating circumstance of incomplete self-defense.

As regards damages, we affirm the modification made by the Court of Appeals. Considering that only P14,653.50 of theP38,653.00 actual damages awarded by the trial court is supported by receipts, the award of P25,000.00 as temperate damages is proper.[19] We, however, reinstate the amount of exemplary damages to P30,000.00 to be in accord with current jurisprudence.[20]

WHEREFORE, the January 23, 2009 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00518-MIN isAFFIRMED.

Page 9 of 41

G.R. No. L-46272 June 13, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO OPIDA y QUIAMBAO and VIRGILIO MARCELO, accused-appellants.

CRUZ, J.:

This is an automatic review of the Decision of the Circuit Criminal Court, Seventh Judicial District, imposing the death penalty upon Alberto Opida and Virgilio Marcelo for the crime of murder.

Unlike the victim in this case, who died from only one stab wound, the decision under review suffers from several fatal flaws, all equally deadly. It suffices to discuss only one of them. Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. 1 Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. 2 The parties are entitled to no less than this, as a minimum guaranty of due process. This guaranty was not observed in this case.

On July 31, 1976, in Quezon City, several persons ganged up on Fabian Galvan, stoned and hit him with beer bottles until finally one of them stabbed him to death. The actual knife-wielder was identified as Mario del Mundo. 3Nonetheless, Alberto Opida and Virgilio Marcelo were charged with murder as conspirators and, after trial, sentenced to death. 4

The basis of their conviction by the trial court was the testimony of two prosecution witnesses, neither of whom positively said that the accused were at the scene of the crime, their extrajudicial confessions, which were secured without the assistance of counsel, and corroboration of the alleged conspiracy under the theory of interlocking confession. 5

What is striking about this case is the way the trial judge conducted his interrogation of the two accused and their lone witness, Lilian Layug. It was hardly judicious and certainly far from judicial, at times irrelevant, at Worst malicious. Reading the transcript, one gathers the impression that the judge had allied himself with the prosecution to discredit at the outset the credibility of the witnesses for the defense. Opida is a police character, admittedly a member of the Commando gang and with a string of convictions for robbery, theft and vagrancy. 6 It is worth noting that the judge took special interest in his tattoos, required him to remove his shirt so they could be examined, and even described them in detail for the record. 7

Besides belaboring Opida's criminal activities and his tattoos, the judge asked him if he had "ever been convicted at the National Mental Hospital with what else but malice and suggested to him that his claim of manhandling by the police was a lie because investigators leave no mark when they torture a suspect. 8 This was a point that could have been validly raised by the prosecution but certainly not by the court. The judge also made it of record that the witness was gnashing his teeth, was showing signs of hostility, that he was uneasy and that he was restless. "Now, whom do you want to fool the judge asked, "the prosecutor, your lawyer, or the court? 9

In the hearing of September 22, 1976, the interrogation of Virgilio Marcelo, the other accused, was conducted almost wholly by the judge who started cross-examining the witness even before the defense counsel could ask his first question, and took over from the prosecution the task of impeaching Marcelo's credibility. 10 The judge asked him about his drug addiction, his membership in the Commando gang, his tattoos, his parentage, his activities, his criminal record all when he was supposed to be under direct examination by his own lawyer. Defense counsel could hardly put in a word edgewise because the judge kept interrupting to ask his own questions. 11

The questions were not clarificatory but adversary; and when they were not adversary, they were irrelevant, and sometimes also cruel. At one point, the judge drew from the witness the statement that his mother was living with another man; forthwith he suggested that the mother was unfaithful to his father. 12 We deplore this sadistic treatment of the witness, especially as, for all his supposed "toughness," he could not answer back. We fail to see what possible connection the mother's infidelity could have had, by any stretch of the imagination, with the instant prosecution.

But the judge was to save the best or worst of his spite for the third witness, Lilian Layug, a waitress in the restaurant where the appellant Opida was working as a cook. Noting at the outset that she spoke English, he wanted to know where she had learned it and asked in ill-concealed insinuation if she had worked in Angeles City or Olongapo or Sangley. 13 Because she was gesturing nervously, he asked, "Are you a conductor? 14 Of the two accused, he asked her, "They are very proud of belonging to the Commando gang to which the witness answered, putting him in his place, "That I do not know, Your Honor." 15

One cannot but note the mockery in the following questions put by the judge to the witness, who was probably wondering what the interrogation was all about

Court

Q You are a very good friend of Alberto Opida?

A Yes, Your Honor.

Q You have known him for years?

A One year only, Your Honor.

Q He always feed you with his favorite menu?

A Yes, Your Honor.

Q He is a very good cook?

A Yes, Your Honor.

Q Because what he could cook, you could not cook?

A I know also how to cook, Your Honor.

Q Answer my question.

A Yes, Your Honor.

Q Whenever you try to cook what he cooked, you could not imitate it, because he is a good cook?

A Yes, Your Honor.

Q So, your admiration developed because of his cooking?

A Yes, Your Honor.

Q What favorite dish does he cook that you like, as far as you are concerned?

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A Adobo, Your Honor.

Q Most often you request him to cook adobo for you?

A Yes, Your Honor.

Q That is precisely one of the reasons why you also admire him?

A That is also a part, Your Honor,

Q Whenever you request him to cook adobo for you, he always accommodate you?

A Yes, Your Honor.

Q As a matter of fact, the moment that he starts cooking adobo, you could smell it already?

A Yes, Your Honor,

Q That starts your admiration for him.

A Yes, Your Honor.

Q And in return you reciprocate?

A Yes, Your Honor.

Q What kind of reciprocation do you give to Alberto Opida, whenever you admire his cooking of adobo for you, cooking just for you?

A None, Your Honor.

Q Whenever he cooks adobo, he was singing?

A Sometimes, Your Honor.

Q What kind of song?

A He is singing a song with intended for Cora, Your Honor.

Q And you were also affected by it?

A No, Your Honor.

Q You mean to say, you are not very fond of emotional songs?

A I am not, because Cora is not minding him, Your Honor.

Q But sometimes he sings in the absence of Cora because, as you said, he is cooking adobo for you?

A Yes, Your Honor.

Q What does he sings (sic) for you?

A He sings many songs, Your Honor.

Q For example, give the title

A Milagro, Your Honor.

Q He also sings Diyos Lamang Ang Nakakaalam?

A Sometimes, Your Honor.

Q He also sings Kapantay ay Langit?

A Yes, Your Honor.

Q He also sings Sapagkat Tayo'y Tao Lamang?

A I did not hear, Your Honor.

Q But, you said he also sings even in the absence of Cora?

A Yes, Your Honor.

Q You smell adobo while he cooks and sings. So, you developed admiration also?

A Little only, Your Honor.

Q One way or another you have appreciated him, but the only thing, as you know, he is related to Cora in the same way?

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A Yes, Your Honor.

Q That is why you are testifying in his favor? Because of the smell of adobo and his songs and it is an admiration. Therefore, there is that tendency to testify in his favor?

A Yes, Your Honor. 16

On direct examination, Opida challenged his extrajudicial confession, claiming it had been obtained without observance of the rights available under Article IV, Section 20 of the Constitution, particularly the right to counsel.17 Parenthetically, the extrajudicial confession of Marcelo was also made without assistance of counsel. 18 Opida also testified, under questioning from his counsel, that he had been repeatedly hit with a "dos por dos" by a police officer while he was being investigated. 19

We have consistently held that the rights guaranteed during a custodial investigation are not supposed to be merely communicated to the suspect, especially if he is unlettered, but must be painstakingly explained to him so he can understand their nature and significance. Moreover, manhandling of any sort will vitiate any extrajudicial confession that may be extracted from him and renders it inadmissible in evidence against him. 20

Those principles were given mere lip service by the judge, who did not bother to look deeper into the validity of the challenged confessions.

Given the obvious hostility of the judge toward the defense, it was inevitable that all the protestations of the accused in this respect would be, as they in fact were, dismissed. And once the confessions were admitted, it was easy enough to employ them as corroborating evidence of the claimed conspiracy among the accused.
21

The accused are admittedly notorious criminals who were probably even proud of their membership in the Commando gang even as they flaunted their tattoos as a badge of notoriety. they were entitled to be presumed innocent until the contrary was proved and had a right not to be held to answer for a criminal offense without due process of law. 22

Nevertheless,

The judge disregarded these guarantees and was in fact all too eager to convict the accused, who had manifestly earned his enmity. When he said at the conclusion of the trial, "You want me to dictate the decision now?" 23, he was betraying a pre-judgment long before made and obviously waiting only to be formalized.

The scales of justice must hang equal and, in fact, should even be tipped in favor of the accused because of the constitutional presumption of innocence. Needless to stress, this right is available to every accused, whatever his present circumstance and no matter how dark and repellent his past. Despite their sinister connotations in our society, tattoos are at best dubious adornments only and surely not under our laws indicia of criminality. Of bad taste perhaps, but not of crime.

In any event, convictions are based not on the mere appearance of the accused but on his actual commission of crime, to be ascertained with the pure objectivity of the true judge who must uphold the law for all without favor or malice and always with justice.

Accused-appellants Opida and Marcelo, who have been imprisoned since 1976, have sent us separate letters pleading for the resolution of their death sentences one way or the other once and for all. Considering the way they were tried, we now declare that they should not be detained in jail a minute longer. While this is not to say that the accused are not guilty, it does mean that, because their constitutional rights have been violated, their guilt, if it exists, has not been established beyond reasonable doubt and so cannot be pronounced. Due process has stayed the uneven hand of the quick condemnor and must set the defendants free.

WHEREFORE, the conviction of Alberto Opida and Virgilio Marcelo is reversed and they are hereby ordered released immediately. No costs.

G.R. No. 74799 March 28, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. VIVENCIO TUAZON Y DIZON, defendant-appellant.

YAP, J.:

This case was elevated to us for automatic review on June 13, 1986, in view of the death penalty imposed by Judge Eduardo C. Tutaan, Regional Trial Court, National Capital Judicial Region, Branch 84, Quezon City, on the accused- appellant Vivencio Tuazon y Dizon for the crime of murder, in a decision dated March 5, 1986, the dispositive portion of which reads as follows:

WHEREFORE the Court qqqfin the accused Vivencio Tuazon y Dizon GUILTY as principal and beyond reasonable doubt of the qqqe of Murder under Article 248 of the Revised Penal Code, the killing of Lolita Labia being attended with the qualifying circumstances of treachery and evident premeditation and the aggravating circumstance of use of a motor vehicle, He is sentenced to suffer the supreme penalty of death. Further, he is sentenced to pay to the child of Lolita Labia (Rowena L. Nicolas) and the parents of Lolita the amount of P20,000.00 as actual damages incurred for the funeral, P30,000.00 as civil indemnity, P20,000.00 as moral damages, and P10,000.00 as exemplary damages. He is also sentenced to pay the costs of the proceedings. The Branch Clerk of Court is ordered to forward immediately the records of the case together with all evidence testimonial and documentary adduced during the trial, to the Honorable Supreme Court for the automatic review of the case.

Let copy of the decision be furnished Brigadier General Alfredo Lim, Superintendent, Northern Police District, and the National Police Commission for the further investigation of the highly irregular and suspicious actuations of police investigator Orlando (sic) Fernandez of the Station Investigation Division of the Quezon City Police Station, in the investigation and re-investigation of this case with the strong recommendation that proper action be taken thereon.

SO ORDERED.

The brief for appellant was filed by his counsel on August 3, 1987. The Solicitor General filed a Manifestation in lieu of Appellee's Brief, on January 11, 1988, recommending that the judgment of conviction be set aside and the accused acquitted and that the Quezon City Fiscal be directed by the Court to investigate anew the felonious death of Lolita Labia and, if the results of the investigation be positive, to file the corresponding complaint or information for murder against the real person or persons responsible for said crime.

After a careful review of the record, we agree with the conclusion of the Solicitor General and find the evidence not sufficient to establish beyond reasonable doubt the guilt of the accused appellant of the offense of murder as charged in the information.

The victim of the crime, Lolita Labii was shot to death right in front of the gate of her residence, a rented apartment located at 37-A Matapang Street, Barangay Pinahan Quezon City, between 12:30 and 1:30 P.M. on December 19, 1984. As she alighted from her car, a man approached her and, after ascertaining her Identity, pumped several bullets into her, and got away in a car bearing license plate No. NHZ-479 driven by another man. The victim was rushed by her brother, Froilan Labii to the Hospital ng Bagong Lipunan where she succumbed about twenty minutes from her arrival.

Upon request of Police Sgt. Rodolfo Desierto of the Quezon City Police Station (Exh. "I") the PC Crime Laboratory, through Major Dario L. Gajardo, a medico-legal examiner, performed an autopsy of the cadaver of the deceased Lolita Labii for the purpose of detemining the cause of death. Major Gajardo submitted his Medico-Legal Report No. M-3584-84 (Exh. "J"), indicating therein, as the cause of death, the five-shot wounds he found on the body of the deceased. The first wound, located on the right mammary region, was a infliction, while the other four gunshot, wounds, located on the left mammary region, on the middle 3rd of the right forearm, were inflicted from behind the assailant. Mayor Gallardo concluded that the cause of death was "cardio-respiratory arrest due to shock and hemorhage secondary to gunshot wounds of the trunk and upper extremity." 1

The police investigator assigned to investigate the case was Patrolman Rolando Fernandez of the Quezon City Police, who was not presented by the prosecution as its witness as is normally done, but by the defense. Pat. Fernandez recounted (as defense witness) what he did upon receiving the order to investigate the shooting incident. As summarized by the trial court in its decision, 2 Pat. Fernandez testified that, on December 19, 1984, he was on duty when the Labii shooting incident was referred to him by the desk officer. He got the plate number, NHZ-479, of the get-away vehicle from an informant. Checking the records of the Land Transportation, he found that the vehicle was registered in the name of Vicencio Tuazon. Proceeding to the residence of the acussed at San Andres Bukid, Manila, he was told that Tuazon was in Sta. Ana, Pampanga. Tuazon was apprehended and brought to the police headquaters in Quezon City. Tuazon denied that he was the triggerman, although he admitted ownership of the car. Pat Fernandez then formed a line-up of seven (7) male persons which included Tuazon. All four (4) witnesses, Venus Madriagas, Ligaya Sison, Belinda Tapia and Andres Bongat, picked out and pointed to Vicencio Tuazon was the triggerman. Tuazon insisted that his car was rented out to certain Victor Yago, Jr. to fetch a balikbayan from the Manila International Airport. After taking the statements of witnesses, Pat. Fernandez forwarded the case to the inquest fiscal.

Page 12 of 41

At the time Pat. Rolando Fernandez endorsed the case to the City Fiscal's Office for filing of the proper criminal charges, Victor Yago was not yet apprehended and could not be madeto deny or confirm the appellant's claim. Based on the statements of the alleged eyewitnesses, Andres Bongat, Venus Madriaga and Ligaya Sison to the effect that the appellant was the gunwielder, the City Fiscal Office filed the corresponding information for Murder against Vicencio Tuazon y Dizon, together with several John Does, on January 3, 1985, before the RTC of Quezon City docketed as Criminal Case No. Q37369. The information alleges:

That on or about the 19th day of December, 1984, in Quezon City, Philippines and within the jurisdiction of his Honorable Court, the abovenamed accused, conspiring together, confedarating with, and mutually helping one another, with intent to kill, without any jutifiable cause, with treachery and evident premeditation, did then and there, wilfully, unlawfully and feleniuosly attack, assault and employ personal violence upon the person of LOLITA LABII Y NEFALAR by then there shooting at the latter several times on the body with the use of .45 caliber firearm, thereby inflicting upon her serious and mortal wounds which were the direct and and immediate cause of her in such amount as may be awarded under the provisions of the new Civil Code of the Philippines.

That in the commission of the crime, a motor vehicle was used by the accused.

Upon arraignment on January 9, 1985, the accused, assisted by his counsel de officio, enterred a plea of "not guilty".

However, on April 1, 1985, Pat. Fernandez received information that Victor or Restituto Yago, Jr. had been apprehended by the Makati Police. He then conducted a reinvestigation of the case, in the couse of which he unearthed certain facts and developments contrary to the theory of the case which he had earlier developed. According to Pat. Fernandez, Restituto Yago, Jr. admitted that he rented the car of the appellant on that day, which was used as the get-away car in the killing of Lolita Labii. Yago further admitted that he was the driver of the get-away car but stated that it was Danilo Lim, when apprehended, readily admitted that he was the triggerman. Danilo Lim, when apprehended, readily admitted that he was the triggerman, but implicated Tony Apiladoas the mastermind. Froilan Labii, brother of Lolita, knew Antonio Apilado as the latter had a case with his sister, Lolita, involving fake dollar. After Antonio Apilado was apprehended, he was brought face to face with Danilo Lim, and the latter pointed to the former as the person who ordered Lim (Danilo) to kill Lolita. The statements of Restituto Yago, Jr. 3 and of Danilo Lim 4 were later presented at the trial.

The foregoing developments were brought to the attention of the trial court through the testimony of Pat. Fernandez, testifyi ng as a defense witness, on May 13, 1985, or barely six (6) days after the prosecution had rested its case on May 7, 1985. They are of a serious nature, damaging to the prosecution's theory.

We agree with the observation of the Solicitor General that in the interest of justice, the trial court should have suspended the proceedings in the criminal case and should have ordered the re-investigation of the case by the City Fiscal's Office, directing special attention to the confessions of Restituto Yago, Jr., driver of the get-away car, and the triggerman, Danilo Lim. Said the Solicitor General in his Manifestation: 5

This action was the least that the Presiding Judge of the trial court could have taken, considering that Fiscal Rolando Beltran, the trial fiscal, was blatantly uncooperative with the request of the relatives of the appellant for a reinvestigation of the case. Fiscal Beltran excused himself from taking action on the said request by simply claiming that there were no witnesses against Restituto Yago (pp. 14-15, tsn, May 13, 1985). This excuse of the trial is not legally acceptable or valid since there were the statemnets of the appellant and his corroborating witnesses, and the written admission of Restituto Yago himself, that he was the driver of the get-away car during the shooting of Lolita Labii.

The Solicitor General noted that the transcripts of the stenographic notes of the proceedings in this criminal case are spiced with statements by the Presiding Judge of the trial court intimidating the defense witnesses, brow-beating the defense cousel, and making threats of possible sanctions against the police investigator, Pat. Rolando Fernandez, who testified as a defense witness. 6 At one time, he warned the defense counsel against taking asking leading questions, and when the defense counsel manifested that he was sorry for doing so, presiding Judge emphatically stated: "You don't have to be sorry for that. You be sorry for your client." 7 He reapetedly berated Pat. Fernandez for contituting his investigation of the case without informing the Fiscals Office, even after the information was already filed agaist Tuazon, despite explanation of the defense counsel that the police investigator, Pat. Rolando Fernandez had to proceed with the investigation of the case due to certain new developments that were brought to his attention. The Presiding Judge could not hide his anger with the police investigator, as the following outbursts and threats ilustrate (emphasis supplied):

What are you trying to do with the office of the City Fiscal? Make them look like stupid. You better wacth out. ( tsn, May 20, 1985, p. 14)

To be fair with you, Patrolman, youare not testifying as defense witness. If ever the Court finds that theres something wrong with it, the court will not hesitate to throw the book at you and recommend proper action on you. (id, pp. 10-11)

But you referred the case to the City Fiscal for filing ... of the Information in the case and yet, without consulting the office of the City Fiscal, you try to continue investigating to formulate another theory after they filed the Information. You better watch out, Patrolman ... Not only the Fiscal, but the Office the City Fiscal, you are making the Office the City Fiscal a fool. (id., p.14)

You watch out. In this proceedings, you are on trial here. The way you conduct the investigation here is terrible ... (tsn, May 27, 1985, p. 28)

The intemperate remarks of the Presiding Judge betray a mind already closed to the Idea of deviating from the theory of prosecution regarding the perpetrator of the crime. Granting that the Police Investigator should not have conducted a further investigation of the case without informing the City Fiscal Office, the trial court if it is to remain true to its first and foremost duty to ferret out the truth at the trial should have taken a serious look at the new facts which the subsequent investigation of the police had unfolded, instead of closing it mind and berating and brow-beating the police investigator for making the Fiscal's Office "look stupid." For truth never makes any one look like a fool, but a fool can make truth look stupid.

The new facts brougth out by the subsequent investigation conducted by Pat. Fernandez should have been taken seriously and at least checked out for their veracity, instead of being met with disbelief and outrigth hostility by the trial court. After all, it should be clear to anyone whose mind is unwarped by bias or partiality thst Pat. Fernandez was not just taking though his hat. His findings were butressedby the written statements of self confessed driver of get-away car, Restituto Yago, Jr. and the triggerman, Danilo Lim, and by the testimony in court of Yago himself. These declarations, both extrajudicial and judicial, can not be taken lightly, for these are not selfserving declarations, but admissions against interest.

The conduct of the trial judge in this case betrays a close mind lacking in objectibity and impartiality, hardly benefitting that of a judicial officer whose main concern is to search for the truth and to see to it that justice be done to the accused without fear of favor. He appeared more concerned in sparing the Fiscal's Office from being made to look "like fools", rather than in ferreting out the truth of the interest opf justice and fair play.

As pointed out by Solicitor General, even as the defense proceeded to present its evidence, establishing firmly Tuazon's defense of alibi, and his explanation that he had rented out the car to someone, the Presiding Judge, obviously nurturing a presenceived judgment of the case, openly and disdainfully disregarded all such evidence presented by the defense. This is apparent from the reasons the Presiding Judge cited in disregarding the testimonies of the appellant and his corroborating witnesses. 8 On the other hand, the trial court closed its mind to the eyewitnesses who pointed to the appellant as the triggerman could have been mistaken in view of resemblance between the appellant and Danilo Lim. 9 Since none of the "eyewitness" knew the accused beforehand, the possibility of mistaking someone else for him cannot be discounted, especially as the incident took but a fleeting moment and was so startling.

All things considered, we hold that the appellant is a victim of a grave miscarriage of justice. The Court is not convinced with moral certainty that he is guilty beyond reasonable doubt of the offense charged, for which reason he is entitled to be acquitted, We agree with the recommendation of the Solicitor General that the City Fiscal of Quezon City should investigate anew the felonious death of the victim Lolita Labia and find the real perpetrators of the crime so that the proper information or complaint can be filed against them.

Accordingly, the judgment of conviction against appellant Vivencio Tuazon y Dizon is REVERSED and SET ASIDE, and appellant is hereby ACQUITTED. The City Fiscal of Quezon City is directed to investigate anew the felonious death of Lolita Labia and to prosecute and bring to justice the real perpetrators of the crime

G.R. No. L-54558 May 22, 1987

EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS LAZARO, REYNALDO MACLANG, MAGDALENA DE LOS SANTOS-MACLANG, TEODORICO N. DIESMOS, RENE J. MARCIANO, DANILO R. DE OCAMPO, VICTORIANO C. AMADO and MAC ACERON, petitioners, vs. MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY COMMISSION NO. 34, and THE MINISTER OF NATIONAL DEFENSE, respondents.

No. L-69882 May 22, 1987

EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and ESTER MISA-JIMENEZ, petitioners, vs. THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE GENERAL, AFP, MINISTER OF NATIONAL DEFENSE and THE DIRECTOR OF PRISONS, respondents.

GANCAYCO, J.:

Page 13 of 41

Filed with this Court are two Petitions wherein the fundamental question is whether or not a military tribunal has the jurisdiction to try civilians while the civil courts are open and functioning. The two Petitions have been consolidated inasmuch as the issues raised therein are interrelated.

On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez, Ester Misa-Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De Los Santos Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De Ocampo and Victoriano C. Amado were arrested by the military authorities. They were all initially detained at Camp Crame in Quezon City. They were subsequently transferred to the detention center at Camp Bagong Diwa in Bicutan except for petitioner Olaguer who remained in detention at Camp Crame. Petitioner Mac Aceron voluntarily surrendered to the authorities sometime in June, 1980 and was, thereafter, also incarcerated at Camp Bagong Diwa. All of the petitioners are civilians.

On May 30, 1980, the petitioners were charged for subversion 1 upon the recommendation of the respondent Judge Advocate General and the approval of the respondent Minister of National Defense. 2 The case was designated as Criminal Case No. MC-34-1. On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the Philippines 3 created the respondent Military Commission No 34 to try tile criminal case filed against the petitioners. 4 On July 30, 1980, an amended charge sheet was filed for seven (7) offenses, namely: (1) unlawful possession of explosives and incendiary devices; (2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roo and Onofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit rebellion, and inciting to rebellion. 5 Sometime thereafter, trial ensued. In the course of the proceedings, particularly on August 19, 1980, the petitioners went to this Court and filed the instant Petition for prohibition and habeas corpus." 6 They sought to enjoin the respondent Military Commission No. 34 from proceeding with the trial of their case. They likewise sought their release from detention by way of a writ of habeas corpus. The thrust of their arguments is that military commissions have no jurisdiction to try civilians for offenses alleged to have been committed during the period of martial law. They also maintain that the proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of law. On September 23, 1980, the respondents filed their Answer to the Petition. 7 On November 20, 1980, the petitioners submmitted their reply to the Answer. 8 In a Motion filed with this Court on July 25, 1981, petitioner Olaguer requested that the Petition be considered withdrawn as far as he is concerned. 9 In the Resolution of this Court dated July 30, 1981, the said prayer was granted." 10 On August 31, 1984, the respondents filed a Rejoinder to the Reply submitted by the petitioners. 11

On December 4, 1984, pending the resolution of the Petition, the respondent Military Commission No. 34 passed sentence convicting the petitioners and imposed upon them the penalty of death by electrocution. Thus, on February 14, 1985, petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and filed the other instant Petition, this time for habeas corpus, certiorari, prohibition and mandamus. They also sought the issuance of a writ of preliminary injunction. 12 The respondents named in the Petition are the Chief of Staff of the Armed Forces of the Philippines, Military Commission No. 34, the Judge Advocate General, the Minister of National Defense and the Director of the Bureau of Prisons.

In sum, the second Petition seeks to enjoin the said respondents from taking any further action on the case against the petitioners, and from implementing the judgment of conviction rendered by the respondent Military Commission No. 34 for the reason that the same is null and void. The petitioners also seek the return of all property taken from them by the respondents concerned. Their other arguments in the earlier Petition are stressed anew.

On August 9, 1985, the respondents filed their Answer to the Petition. 13 On September 12, 1985, this Court issued a temporary restraining order enjoining the respondents from executing the Decision of the respondent Military Commission No. 34 14 On February 18, 1986, the petitioners submitted an extensive Brief. 15 Thereafter, and in due time, the cases were submitted for decision. In resolving these two Petitions, We have taken into account several supervening events which have occurred hitherto, to wit

(1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No. 2045 officially lifting martial law in the Philippines. The same Proclamation revoked General Order No. 8 (creating military tribunals) and directed that "the military tribunals created pursuant thereto are hereby dissolved upon final determination of case's pending therein which may not be transferred to the civil courts without irreparable prejudice to the state in view of the rules on double jeopardy, or other circumstances which render prosecution of the cases difficult, if not impossible."; and

(2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981. On the other hand, petitioners Eduardo Olaguer and Othoniel Jimenez obtained provisional liberty on January 23, 1986.16 The rest of the petitioners have been released sometime before or after President Corazon C. Aquino assumed office in February, 1986.

The sole issue in habeas corpus proceedings is detention. 17 When the release of the persons in whose behalf the application for a writ of habeas corpus was filed is effected, the Petition for the issuance of the writ becomes moot and academic. 18 Inasmuch as the herein petitioners have been released from their confinement in military detention centers, the instant Petitions for the issuance of a writ of habeas corpus should be dismissed for having become moot and academic.

We come now to the other matters raised in the two Petitions. The main issue raised by the petitioners is whether or not military commissions or tribunals have the jurisdiction to try civilians for offenses allegedly committed during martial law when civil courts are open and functioning.

The petitioners maintain that military commissions or tribunals do not have such jurisdiction and that the proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of law. The respondents, however, contend otherwise.

The issue on the jurisdiction of military commissions or tribunals to try civilians for offenses allegedly committed before, and more particularly during a period of martial law, as well as the other issues raised by the petitioners, have been ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2. 19 The pertinent portions of the main opinion of the Court are as follows

We hold that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with jurisdiction to hear the cases against civilians, including the petitioner.

l. The Court has previously declared that the proclamation of Martial Law ... on September 21, 1972, ... is valid and constitutional and that its continuance is justified by the 20 danger posed to the public safety.

2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily possesses broad authority compatible with the imperative requirements of the emergency. On the basis of this, he has authorized in General Order No. 8 . . . the Chief of Staff, Armed Forces of the Philippines, to create military tribunals to try and decide cases "of military personnel and such other cases as may be referred to them." In General Order No. 12 ... , the military tribunals were vested with jurisdiction "exclusive of the civil courts," among others, over crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and preservation of the safety and security of the Republic. ... These measures he had the authority to promulgate, since this Court recognized that the incumbent President (President Marcos), under paragraphs 1 and 2 of Secti on 3 of Article XVII of the new (1973) Constitution, had the authority to "promulgate proclamations, orders and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection or secession or the threat thereof ... " 21

3. Petitioner nevertheless insists that he being a civilian, his trial by military commission deprives him of his right to due process, since in his view the due process guaranteed by the Constitution to persons accused of "ordinary" crimes means judicial process. This argument ignores the reality of the rebellion and the existence of martial law. It is, of course, essential that in a martial law situation, the martial law administrator must have ample and sufficient means to quell the rebellion and restore civil order. Prompt and effective trial and punishment of offenders have been considered as necessary in a state of martial law, as a mere power of detention may be wholly inadequate for the exigency. 22 " ... martial law ... creates an exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the law of war, as well as those of a civil character, triable, ... by military tribunals. 23"Public danger warrants the substitution of executive process for judicial process." 24 . ... "The immunity of civilians from military jurisdiction must, however, give way in areas governed by martial law. When it is absolutely imperative for public safety, legal processes can be superseded and military tribunals authorized to exercise the jurisdiction normally vested in courts. 25 . ..."

xxx xxx xxx

5. ... The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due process of law does not necessarily mean a judicial proceeding in the regular courts. 26 ... This ruling has been affirmed, although not unanimously, in at least six other cases, to wit: Gumaua v.Espino, 27Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v. Special Military Commission No. 1, 30 Ocampo v. Military Commission No. 25, 31 and Buscayno v. Military Commission Nos. 1, 2, 6 and 25. 32

These rulings notwithstanding, the petitioners anchor their argument on their prayer that the ruling in Aquino, Jr. be appraised anew and abandoned or modified accordingly. After a thorough deliberation on the matter, We find cogent basis for re-examining the same.

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Some recent pronouncements of this Court could be considered as attempts to either abandon or modify the ruling in Aquino, Jr. In De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of the Philippines and several other persons were charged with Serious Illegal Detention before the Court of First Instance of Maguindanao sometime in October, 1982. The military officer sought to effect the transfer of the case against him to the General Court Martial for trial pursuant to the provisions of Presidential Decree No. 1850. The trial court disallowed such transfer for the reason that the said Decree is unconstitutional inasmuch as it violates the due process and equal protection clauses of the Constitution, as well as the constitutional provisions on social justice, the speedy disposition of cases, the republican form of government, the integrity and independence of the judiciary, and the supremacy of civilian authority over the military,

When the matter was elevated to this Court by way of a Petition for certiorari, prohibition and mandamus, the Court decided that a ruling on the constitutional issues raised was not necessary. With the view that practical and procedural difficulties will result from the transfer sought, this Court resolved to dismiss the Petition for lack of merit. In Animas v. The Minister of National Defense, 34 a military officer and several civilians were charged with murder alleged to have been committed sometime in November, 1971. All of the said accused were recommended for prosecution before a military tribunal. in the course of the proceedings, the said accused went to this Court on a Petition for certiorari and challenged the jurisdiction of the military tribunal over their case. The petitioners contended that General Order No. 59 upon which the jurisdiction of the military tribunal is anchored refers only to the crime of illegal possession of firearms and explosives in relation to other crimes committed with a political complexion. They stressed that the alleged murder was devoid of any political complexion.

This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the criminal proceedings to the civil courts after noting that with martial law having been lifted in the country in 1981, all cases pending before the military tribunals should, as a general rule, be transferred to the civil courts. The Court was also of the view that the crime alleged to have been committed did not have any political complexion. We quote the pertinent portions of the Decision of the Court, to wit

Inspite or because of the ambiguous nature of ... civilian takeover of jurisdiction was concerned and notwithstanding the shilly-shallying and vacillation characteristic of its implementation, this Court relied on the enunciated policy of normalization in upholding the primacy of civil courts. This policy meant that as many cases as possible involving civilians being tried by military tribunals as could be transferred to civil courts should be turned over immediately. In case of doubt, the presumption was in favor of civil courts always trying civilian accused.

xxx xxx xxx

The crime for which the petitioners were charged was committed ... long before the proclamation of martial law. ... Now that it is already late 1986, and martial law is a thing of the past, hopefully never more to return, there is no more reason why a murder committed in 1971 should still be retained, at this time, by a military tribunal. We agree with the dissenting views of then Justice, now Chief Justice Claudio Teehankee 35 and Madame Justice Cecilia Munoz Palma tribunals have no jurisdiction to try civilians for alleged offenses when the civil courts are open and functioning.
36

in Aquino, Jr. in so far as they hold that military commissions or

Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his liberty), the accused shall be entitled to, among others, a trial. 37 The trial contemplated by the due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process. Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial system. As explained by Justice Teehankee in his separate dissenting opinion-

... Civilians like (the) petitioner placed on trial for civil offenses under general law are entitled to trial by judicial process, not by executive or military process.

Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law. Judicial power exists only in the courts, which have "exclusive power to hear and determine those matters which affect the life or liberty or property of a citizen. 38

Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly 39 functioning. ... And in Toth v. Quarles, 40 the U.S. Supreme Court furtherstressed that the assertion of military authority over civilians cannot rest on the President's power as Commander-inChief or on any theory of martial law.

xxx xxx xxx

The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army veterans (estimated to number more than 22.5 million) could not be rendered "helpless before some latter-day revival of old military charges" and subjected to military trials for offenses committed while they were in the military service prior to their discharge, that "the presiding officer at a court martial is not a judge whose objectivity and independence are protected by tenure and undiminished salary and nurtured by the judicial tradition, but is a military law officer. Substantially different rules of evidence and procedure apply in military trials. Apart from these differences, the suggestion of the possibility of influence on the actions of the court martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger."

The late Justice Black ... added that (A) Court-Martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the over-all mechanism by which military discipline is preserved," and that ex-servicemen should be given "the benefits of a civilian court trial when they are actually civilians ... Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.

Moreover, military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of the executive power, provided by the legislature for the President as Commander-inChief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives. 41 Following the principle of separation of powers underlying the existing constitutional organization of the Government of the Philippines, the power and the duty of interpreting the laws as when an individual should be considered to have violated the law) is primarily a function of the judiciary. 42 It is not, and it cannot be the function of the Executive Department, through the military authorities. And as long as the civil courts in the land remain open and are regularly functioning, as they do so today and as they did during the period of martial law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by the civil courts. 43 To have it otherwise would be a violation of the constitutional right to due process of the civilian concerned.

In addition to this pronouncement, We take note of the observation made by the Solicitor General to the effect that the death penalty imposed upon the petitioners by the respondent Military Commission No. 34 appears to have been rendered too hastily to the prejudice to the petitioners, and in complete disregard of their constitutional right to adduce evidence on their behalf. We quote the pertinent portions of the Manifestation submitted by the Solicitor General, to wit

Prior to the session of December 4, 1984, when the respondent Commission rendered its sentence, petitioners have requested the prosecution to provide them with copies of the complete record of trial, including the evidences presented against them, but the prosecution dillydallied and failed to provide them with the document requested. According to petitioners, they needed the documents to adequately prepare for their defense.

But a few days before December 4, 1984 the prosecution suddenly furnished them with certain transcripts of the proceedings which were not complete. Petitioner Othoniel Jimenez was scheduled to start with the presentation of his evidence on said date and he requested that his first witness be served with subpoena. The other petitioners, as agreed upon, were to present their evidence after the first one, Othoniel Jimenez, has finished presenting his evidence. But on that fateful day, December 4, 1984, the witness requested to be served with subpoena was not around, because as shown by the records, he was not even served with the requested subpoena. But in spite of that, respondent Military Commission proceeded to ask each one of the petitioners if they are ready to present their evidence.

Despite their explanation that Othoniel Jimenez cannot proceed because the prosecution, which performs the duties and functions of clerk of court, failed to subpoena his witness, and that the other petitioners were not ready because it was not yet their turn to do so, the Commission abruptly decided that petitioners are deemed to have waived the presentation of evidence in their behalf, and considered the case submitted for resolution.

After a recess of only twenty-five (25) minutes, the session was resumed and the Commission rendered its sentence finding petitioners guilty of all the charges against them and imposing upon them the penalty of death by electrocution. 44

Thus, even assuming arguendo that the respondent Military Commission No. 34 does have the jurisdiction to try the petitioners, the Commission should be deemed ousted of its jurisdiction when, as observed by the Solicitor General, the said tribunal acted in disregard of the constitutional rights of the accused. Indeed, it is well-settled that once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgment in question is deemed ousted of jurisdiction. 45

Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting martial law in the Philippines and abolishing all military tribunals created pursuant to the national emergency effectively divests the respondent Military Commission No. 34 (and all military tribunals for that matter) of its supposed authority to try civilians, including the herein petitioners.

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The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the jurisdiction to try civilians as long as the period of national emergency (brought about by public disorder and similar causes) lasts. Undoubtedly, Proclamation No. 2045 is an acknowledgment on the part of the Executive Department of the Government that the national emergency no longer exists. Thereafter, following the theory relied upon in the main opinion, all military tribunals should henceforth be considered functus officio in their relationship with civilians.

By virtue of the proclamation itself, all cases against civilians pending therein should eventually be transferred to the civil courts for proper disposition. The principle of double jeopardy would not be an obstacle to such transfer because an indispensable element of double jeopardy is that the first tribunal which tried the case must be of competent jurisdiction. 46 As discussed earlier, the military tribunals are devoid of the required jurisdiction.

We take this opportunity to reiterate that as long as the civil courts in the land are open and functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them. Whether or not martial law has been proclaimed throughout the country or over a part thereof is of no moment. The imprimatur for this observation is found in Section 18, Article VII of the 1987 Constitution, to wit

A state of martial law, does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. (Emphasis supplied.)

This provision in the fundamental law is just one of the many steps taken by the Filipino people towards the restoration of the vital role of the judiciary in a free country-that of the guardian of the Constitution and the dispenser of justice without fear or favor.

No longer should military tribunals or commissions exercise jurisdiction over civilians for offenses allegedly committed by them when the civil courts are open and functioning. No longer may the exclusive judicial power of the civil courts, beginning with the Supreme Court down to the lower courts 47 be appropriate by any military body or tribunal, or even diluted under the guise of a state of martial law, national security and other similar labels. At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of Mr. Justice Gutierrez in Animas v. The Minister of National Defense , 48 viz

The jurisdiction given to military tribunals over common crimes and civilian(s) accused at a time when all civil courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of the Philippine judiciary.

The downgrading of judicial prestige caused by the glorification of military tribunals, the instability and insecurity felt by many members of the judiciary due to various causes both real and imagined, and the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure.

The immediate return to civil courts of all cases which properly belong to them is only a beginning. And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had this to say

I only wish to add that the great significance of our judgment in this case is that we reestablish and reinstate the fundamental principle based on civilian supremacy over the military as urged in vain in my dissent in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al . that "Civilians placed on trial for offenses under general law are entitled to trial by judicial process, not by executive or military process. Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law. Military commissions, or tribunals, are not courts and do not form part of the judicial system. Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning.

xxx xxx xxx

The terrible consequences of subjecting civilians to trial by military process is best exemplified in the sham military trial of the martyred former Senator Benigno S. Aquino, Jr., whereby he was deprived (1) by the summary ex parte investigation by the Chief prosecution staff of the JAGO of his right to be informed of the charges against him and of his right to counsel as expressly recognized by Section 20 of the Bill of Rights of the 1973 Constitution; (2) of his vested statutory right to a preliminary investigation of the subversion charges against him before the proper court of first instance as required under Section 5 of the Anti-Subversion Act, R.A. 1700 and of the other charges against him before the proper civilian officials and to confront and cross-examine the witnesses against him under R.A. 5180; (3) of the right to be tried by judicial process, by the regular independent courts of justice, with all the specific constitutional, statutory and procedural safeguards embodied in the judicial process and presided over not by military officers; and (4) of the right to appeal to the regular appellate courts and to judicial review by this Court in the event of conviction and imposition of a sentence of death or life imprisonment which the charges carry and wherein a qualified majority of ten (10) votes for affirmance of the death penalty i s required. In fine, he was denied due process of law as guaranteed under the Bill of Rights which further ordains that "No person shall be held to answer for a criminal offense without due process of law."Worse, his trial by a military tribunal created by the then President and composed of the said President's own military subordinates without tenure and of non-lawyers (except the law member) and of whose decision the President is the final reviewing authority as Commander-in-Chief of the Armed Forces deprived him of a basic constitutional right to be heard by a fair and impartial tribunal, considering that the said President had publicly declared the evidence against petitioner "not only strong (but) overwhelming" and thereby prejudged and predetermined his guilt, and none of his military subordinates could be expected to go against their Commander-in-Chief's declaration.

Hopefully, an these aberrations now belong to the dead and nightmarish past, when time-tested doctrines, to borrow a phrase from the then Chief Justice, "shrivelled in the effulgence of the overpowering rays of martial rule. 49

As stated earlier, We have been asked to re-examine a previous ruling of the Court with a view towards abandoning or modifying the same. We do so now but not without careful reflection and deliberation on Our part. Certainly, the rule of stare decisis is entitled to respect because stability in jurisprudence is desirable. Nonetheless, reverence for precedent, simply as precedent, cannot prevail when constitutionalism and the public interest demand otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all, more important than anything else is that this Court should be right. 50

Accordingly, it is Our considered opinion, and We so hold, that a military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned. 51 For the same reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2 52 and all decided cases affirming the same, in so far as they are inconsistent with this pronouncement, should be deemed abandoned.

WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for having become moot and academic. The Petitions for certiorari and prohibition are hereby GRANTED. The creation of the respondent Military Commission No. 34 to try civilians like the petitioners is hereby declared unconstitutional and all its proceedings are deemed null and void. The temporary restraining order issued against the respondents enjoining them from executing the Decision of the respondent Military Commission No. 34 is hereby made permanent and the said respondents are permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the petitioners. The sentence rendered by the respondent Military Commission No. 34 imposing the death penalty on the petitioners is hereby vacated for being null and void, and all the items or properties taken from the petitioners in relation to the said criminal case should be returned to them immediately. No pronouncement as to costs.

G.R. Nos. L-34756-59 March 31, 1973

MANUEL MATEO, JR., ROBERTO MARTINEZ alias RUBEN MARTINEZ, ENRIQUE CONCEPCION and ESMERALDO CRUZ, petitioners, vs. HON. ONOFRE VILLALUZ, as Judge of the Circuit Criminal Court, Seventh Judicial District, respondents.

Jose W. Diokno, Apolinar S. Fojas, Sixto F. Santiago and Damian S. Villaseca for petitioners.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Octavio R. Ramirez and Solicitor Guillermo C. Nakar, Jr. for respondent.

FERNANDO, J.: The novel issue presented in this prohibition proceeding arose from the gnawing fear that the prized ideal of "the cold neutrality of an impartial judge" 1 implicit in the due process guarantee may be set at naught. Petitioners are among those being tried by respondent Judge for the offense of robbery in band with homicide. Thereafter, an extrajudicial statement by one Rolando Reyes, who was later on likewise indicted for the same offense, implicating petitioners, was subscribed before respondent Judge. That was the background of a motion for his disqualification, as the aforesaid Rolando Reyes, when called upon to testify as an additional witness for the prosecution impugned his written declaration stating that it was executed as a result of a threat by a government agent. It is now contended that

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such a repudiation would not sit well with respondent Judge, who had thus placed himself in a position of being unable to pass on such question with that degree of objectivity required by due process, although admittedly, such a move did not fall squarely within one of the specific grounds to inhibit judges. 2 Respondent Judge turned down this plea for disqualification. Hence, this petition, based on the asserted violation of a constitutional right not to be convicted of an offense without due process of law. This Court, after a careful consideration of the matter and in the light of past decisions to be hereafter noted, looks upon such failure of respondent Judge to disqualify himself as a grave abuse of discretion correctible by prohibition. The petition is meritorious.

The facts, in the language of the petition, follow: "On or about June 4, 1971, the American Express Bank at Sangley Point, Cavite, was robbed and an American serviceman was killed. In connection with that robbery, and the death of the serviceman, four (4) criminal actions were filed against petitioners and docketed as Criminal Cases Nos. CCC-VII-843 to 846, Cavite, for robbery in band with homicide, all captioned 'People of the Philippines, Plaintiff, vs. Manuel Mateo, et al., Accused '. ... The Information fell in the sala of the Honorable Respondent Judge because the complaints were filed there; and, in fact, it was the Honorable Respondent Judge who ordered District State Prosecutor Cornelio Melendres [or] Assistant City Fiscal Enrique A. Cube to conduct the preliminary investigation. Petitioners Manuel Mateo, Jr. and Esmeraldo Cruz were arraigned on June 24, 1971 while petitioners Roberto Martinez @ Ruben Martinez filed a Motion To Dismiss on the ground of "insufficiency of evidence for failure of prosecution (1) to prove the existence of conspiracy, and (2) to identify the accused by competent evidence." On September 25, 1971, petitioner Roberto Martinez @ Ruben Martinez amplified his motion to dismiss with a Supplemental Motion based on the claim that "the pre-trial identification by prosecution witness Elliot Grey of your accused Roberto Martinez in a police line-up in the absence of defendant's counsel is unconstitutional; and the in-court testimony of said Elliot Grey identifying your accused Roberto Martinez is inadmissible in evidence and should be stricken out from the records". The. prosecution opposed the motion to dismiss. To date, the motions to dismiss have not been decided by the Honorable Respondent Judge. ... In the meantime, another suspect in the Sangley Point Robbery one Rolando Reyes was arrested. On October 5, 1971, when petitioner's Motion to Dismiss together with the Opposition thereto were submitted for resolution, the Honorable Presiding Judge in an Order ruled that 'pursuant to Sec. 6, Rule 135 of the New Rules of Court, let the Motion to Dismiss be resolved until after the prosecution has presented and rested its evidence as against Rolando Reyes. ... It appears that the said Rolando Reyes had executed an extra-judicial statement on October 1, 1971 and had signed and sworn to its truth before the Honorable Respondent Judge; and, in that statement had implicated petitioners; evidently, the Honorable Respondent Judge was aware of this, and it was for this reason that he had deferred ruling on petitioner Ruben Martinez' motions and supplemental motion to dismiss 'until after the prosecution has presented and rested its evidence as against Rolando Reyes.' Rolando Reyes, however, was tried separately from and in the absence of petitioners; so that the proceedings against him did not constitute evidence against petitioner. So, on November 26, 1971, while petitioner Martinez' Motion and Supplemental Motion to Dismiss remained unresolved, the prosecution filed a 'Motion to Present Additional Evidence.' ... On December 4, 1971, petitioner Manuel Mateo filed an Opposition to the prosecution's Motion to Present Additional Evidence on the ground that 'to allow the prosecution to present additional evidence in favor of the State after the prosecution has rested, while the accused has a pending motion to dismiss under consideration would be prejudicial to the substantial rights of herein accused because it would effectively deprive him of a fair trial.' ...On December 24, 1971, respondent Judge granted the prosecution's 'Motion to Present Additional Evidence' ruling that 'it is well settled jurisprudence in this jurisdiction and elsewhere that it is within the sound discretion of the court whether or not to allow the presentation of additional evidence after the parties have rested their case.' ... On February 3, 1972, the prosecution called Rolando Reyes as an additional witness, and in the course of his testimony, marked an extrajudicial statement purportedly executed by him on October 1, 1971 as Exh. 'P'. ... Rolando Reyes repudiated it, stated that he had executed it because he had been threatened by a government agent. The statement, Exh. 'P' ..., purports to have been subscribed and sworn to before the respondent Judge on October 1, 1971. As soon as the foregoing facts were made of record in the case, defendants [petitioners herein) verbally moved to suspend the proceedings to enable them to file a motion to disqualify the Honorable Respondent Judge; and the motion for suspension was granted. On February 5, 1971, petitioners filed a Joint Motion for Disqualification of respondent Judge contending that respondent Judge 'in the exercise of his sound discretion [should] disqualify himself from sitting in this case under the second paragraph of Section 1 of Rule 137 of the Rules of Court,' because Rolando Reyes had repudiated the statement that he, Reyes, had sworn to before the Honorable Respondent Judge and the latter perforce would have to pass upon that repudiation. ... On February 11, 1972, the prosecution filed an Opposition to petitioners' Joint Motion for Disqualification. ... On February 12, 1972, respondent Judge denied petitioners' Joint Motion for Disqualification." 3

The specific question raised not having been passed upon previously, coupled with the exhaustive petition submitted by counsel for petitioners, Senator Jose W. Diokno, led this Court, in its resolution of February 25, 1972 to require comment from respondent Judge, with a temporary restraining order likewise being issued. The then Solicitor General, now Associate Justice, Felix Antonio, did so in an equally well-researched pleading on March 16, 1972 which, by our resolution of March 22, was considered his answer. Thereafter, with memoranda being submitted by both parties, the case was deemed submitted for decision on August 4 last year. There is, to repeat, a highly persuasive and scholarly quality in the manner in which the plea for petitioners was made. Nonetheless, with due recognition of the imperative character of the safeguard of due process connoting, at the very least, an impartial tribunal, the Court cannot consider the circumstances disclosed as sufficient to call for the disqualification of respondent Judge.

1. It is now beyond dispute that due process cannot be satisfied in the absence of that degree of objectivity on the part of a judge sufficient to reassure litigants of his being fair and being just. Thereby there is the legitimate expectation that the decision arrived at would be the application of the law to the facts as found by a judge who does not play favorites. For him, the parties stand on equal footing. In the language of Justice Dizon: "It has been said, in fact, that due process of law requires a hearing before an impartial and disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of an impartial judge." 4 He should, to quote from another decision "at all times manifest depth of commitment and concern to the cause of justice according to legal norms, a cerebral man who deliberately holds in cheek the tug and pull of purely personal preferences and prejudices which he shares with the rest of his fellow mortals." 5 A judge then, to quote from the latest decision in point, Geotina v. Gonzales, 6 penned by Justice Castro, should strive to be at all times "wholly free, disinterested, impartial and independent. Elementary due process requires a hearing before an impartial and disinterested tribunal. A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely free from suspicion as to its fairness and as to his integrity." 7 Nor is this to imply that prior to Gutierrez, there had been no awareness of the due process aspect of an impartial tribunal even if not explicitly referred to. As noted by Justice Street as far back as 1926 in Government v. Abella, 8 a 1926 decision, if the Supreme Court "were of the opinion that the litigant had not had a fair trial, a new trial could be granted." 9 There was a reiteration of such a view in a case decided in 1933, Dais v. Torres, 10 with Justice Vickers as ponente, in these words: "Although a judge may not have been disqualified [according to the Code of Civil Procedure], nevertheless if it appears to this court that the appellant was not given a fair and impartial trial because of the trial judge's bias or prejudice, this court will order a new trial, if it deems it necessary, in the interest of justice." 11

2. Conformably to what was so emphatically asserted in Gutierrez as the fundamental requisite of impartiality for due process to be satisfied, the Rules of Court provision on disqualification when revised three years later in 1964 contains this additional paragraph: "A judge may, in the exercise of sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above." 12 Thereby, it is made clear to the occupants of the bench that outside of pecuniary interest, relationship or previous participation in the matter that calls for adjudication, there may be other causes that could conceivably erode the trait of objectivity, thus calling for inhibition. That is to betray a sense of realism, for the factors that lead to preferences or predilections are many and varied. It is well, therefore, that if any such should make its appearance and prove difficult to resist, the better course for a judge is to disqualify himself. That way, he avoids being misunderstood. His reputation for probity and objectivity is preserved. What is even more important, the ideal of an impartial administration of justice is lived up to. Thus is due process vindicated. There is relevance to what was said by Justice Sanchez in Pimentel v. Salanga, 13 drawing "attention of all judges to appropriate guidelines in a situation where their capacity to try and decide a case fairly and judiciously comes to the fore by way of challenge from any one of the parties. A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstance reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that: the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him. That passion on the part of a judge may be generated because of serious charges of misconduct against him by a suitor or his counsel, is not altogether remote. He is a man, subject to the frailties of other men. He should, therefore, exercise great care and caution before making up his mind to act or withdraw from a suit where that party or counsel is involved. He could in good grace inhibit himself where that case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved therein. On the result of his decisions to sit or not to sit may depend to a great extent the all important confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice." 14

3. The imperfections of human institutions being such, what is fit and proper is not always achieved. The invitation to judges to disqualify themselves is not always heeded. For that matter, it is not always desirable that they should do so. It could amount in certain cases to their being recreant to their trust. Justice Perfecto's warning is not to be ignored; "to shirk the responsibility" entails "the risk of being called upon to account for his dereliction." 15 It could be an instrument whereby a party could inhibit a judge in the hope of getting another more amenable to his persuasive skill. With all such considerations in mind, there is still cogency in the approach that would look with favor on the exercise of discretion in favor of disqualification, given the likelihood that bias or prejudice is unavoidable. Even before the amendment of Section 1 of Rule 137, this Court, in at least two decisions, 16 gave its approval to such a move. Then came People v. Gomez, 17 where this Court, the ponente being Justice J. P. Bengzon, held: "Now considering that the Revised Rules of Court, already in effect when respondent Judge filed his answer herein containing the prayer to be disqualified from the case, although not yet in effect when the proceedings at issue were taken in the court below, states in Section 1 of Rule 137 that, "A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons' other than the usual grounds for disqualification, this Court, after considering all the circumstances of the case, finds as' reasonable, respondent Judge's aforestated request for disqualification from further sitting in the Richard case, and We rule that he is thereby deemed, in light of the new Rules, to have inhibited himself from further taking cognizance of the case." 18 There is even greater deference paid to the due process requirement of impartiality when, in Luque v. Kayanan,19 decided in 1969, this Court, through justice Sanchez, could categorically rule: "All suitors, we must say, are entitled to nothing short of the cold neutrality of an independent, wholly free, disinterested and impartial tribunal. It has been said that "next in importance to the duty of rendering a right judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge." Let it be said that the administration of justice in this country suffers from too many human imperfections. To our mind, respondent judge should inhibit himself since it has become apparent that his further continuance in Case 4871 would be in the best interest of justice, which he is bound to serve." 20 There was a reiteration of such a principle in Paredes v. Gopengco, 21 where the following appears in the opinion Justice Teehankee for the Court: "It is pertinent to state the restriction provided in the Rule against appeal or stay of the proceedings where the trial judge denies a motion for disqualification is not an absolute rule even in civil cases, has not been taken as precluding a resort in appropriate to the special civil actions of prohibition and certiorari the higher courts for determination, ahead of the judgment the merits, whether the trial judge committed a grave abuse of discretion amounting to lack or excess of jurisdiction refusing to disqualify himself." 22 There is thus respectable authority for the view that with the possibility of a trial tainted by partiality, this Court can step in to assure for the demands of due process.

4. Petitioners can assert then, and rightly so, that we the power to set aside the order denying the motion disqualification. While the discretion in the first instance belongs to respondent Judge, its exercise is subject to our corrective authority. Certainly, there can be no question as to its being considered abused if it can be shown that to refuse inhibition is to cast valid doubts as to a court's impartiality. The specific issue then that must be resolved is whether the circumstance of a party having subscribed before respondent Judge an extra-judicial statement purporting to describe the manner in which an offense was committed, later on repudiated by him as the product of intimidation in the course of his having been asked to testify against petitioners, would suffice to negate that degree of objectivity the Constitution requires? The answer must be in the affirmative. Petitioners are thus entitled to the relief sought. Respondent Judge could not be totally immune to what apparently was asserted before him in such extrajudicial statement. Moreover, it is unlikely that he was not in the slightest bit offended by the affiant's turnabout with his later declaration that there was intimidation by a government agent exerted on him. That was hardly flattering to respondent Judge. It is not only that. His sense of fairness under the circumstances could easily be blunted. The absence of the requisite due process element is thus noticeable. There is this circumstance even more telling. It was he who attested to its due execution on October 1, 1971 wherein Rolando Reyes admitted his participation in the crime and in addition implicated petitioners. At that time, their motion for dismissal of the charges against them was pending; its resolution was deferred by respondent Judge until after the prosecution had presented and rested its evidence against affiant, who was himself indicted and tried for the same offense, but in a separate proceeding. It cannot be doubted then that respondent Judge in effect ruled that such extra-judicial statement was executed freely. With its repudiation on the ground that it was not so at all, coercion having come into the picture there is apparent the situation of a judge having to pass on a question that by implication had already been answered by him. Such a fact became rather obvious. For respondent Judge was called upon to review a matter on which he had previously given his opinion. It is this inroad in one's objectivity that is sought to be avoided by the law on disqualification. The misgivings then as to the requirement of due process for "the cold neutrality of an impartial judge" not being met are more titan justified. Hence the conclusion reached by us.

5. To avoid any further controversies of this nature, lower court judges are well-advised to limit themselves to the task of adjudication and to leave to others the role of notarizing declarations. The less an occupant of the bench fritters away his time and energy in tasks more incumbent on officials of the executive branch the less the danger of his being a participant in any event that might lend itself to the interpretation that his impartiality has been compromised. There is much to be said for displaying zeal and eagerness in stamping out criminality, but that role is hardly fit for a judge who must bide his time until the case is before him. He must ever be on guard lest what is done by him, even from the best of motives, may be thought of as eroding that objectivity and sobriety which are the hallmarks of judicial conduct. Thus should he attend to the performance of the sacred trust that is his.

WHEREFORE, the petition for prohibition granted. The restraining order is issued by this Court on February 25, 1972 is made permanent. Without pronouncement as to costs.

Page 17 of 41

G.R. No. L-33254 & G.R. No. L-33253 January 20, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LICERIO P. SENDAYDIEGO, JUAN SAMSON and ANASTACIO QUIRIMIT, defendants. JUAN SAMSON anddefendant-appellant.

PROVINCE OF PANGASINAN, offended party-appellee, vs. HEIRS OF LICERIO P. SENDAYDIEGO, defendants-appellants. *

Norberto J. Quisumbing for appellant Sendaydiego.

Donato & Rillera for appellant Samson.

Office of the Solicitor General for appellee.

AQUINO, J.:

In these three cases of malversation through falsification, the prosecution's theory is that in 1969 Licerio P. Sendaydiego, the provincial treasurer of Pangasinan, in conspiracy with Juan Samson y Galvan, an employee of a lumber and hardware store in Dagupan City, and with Anastacio Quirimit, the provincial auditor, as an accomplice, used six (6) forged provincial vouchers in order to embezzle from the road and bridge fund the total sum of P57,048.23.

The provincial voucher in these cases has several parts. In the upper part with the legend "ARTICLE OR SERVICE" the nature of the obligation incurred is indicated. That part is supposed to be signed by two officials of the provincial engineer's office and by the governor's representative.

The middle part of the voucher contains five numbered printed paragraphs. Paragraph 1 is a certificate to be signed by the creditor. It is stated therein that the creditor vouches that the expenses "were actually and necessarily incurred". In the instant cases paragraph 1 was not signed presumably because it is not relevant to the purchase of materials for public works projects.

Paragraph 2 is a certification that the expenses are correct and have been lawfully incurred. It is signed by the provincial engineer.

Paragraph 3 contains these words: "Approved for pre-audit and payment, appropriations and funds being available therefore." This is signed by the provincial treasurer.

Paragraph 4 is a certification which, as filed up in Exhibit K, Voucher No. 10724 dated February 28, 1969, reads:

I certify that this voucher has been pre-audited and same may be paid in the amount of sixteen thought seven hundred twenty-seven and 52/100 (P16,727.52) in cash or in check, provided there is sufficient fund cover the payment.

This is signed by the auditor.

Paragraph 5 is a certification signed by the provincial treasurer that the account mentioned in the provincial engineer's certification "was paid in the amount and on the date shown below and is chargeable as shown in the summary hereof. ... ." It may be noted that the provincial treasurer signs two part of the voucher.

Following paragraph 5, and as referred to therein, is the receipt of the signed by the creditor. As accomplished in Exhibit K, the receipt reads (it was signed according to the prosecution by Juan Samson, a point which is disputed by him):

Received this 31st day of March, 1969, from L P. Sendaydiego, Province of Pangasinan the sum of seven hundred twenty-seven pesos & 52/100 (16,727.52) in full payment of the above stated account, which I hereby certify to be correct. Paid by Check No. .................................

CARRIED CONSTR. SUPPLY CO. By: (Sgd.) JUAN SAMSON

According to the prosecution, Samson also signed on the left margin of the six vouchers below the stamped words: "Presented to Prov. Treasurer. By Juan Samson." Voucher No. 10724 (Exh. K). This Provincial voucher, dated February 28, 1969, evidences the payment of PI 6,727.52 to the Carried Construction Supply Co. of Dagupan City for lumber and hardware materials supposedly used in the repair of the bridge in Barrio Libertad at the Umingan-Tayug road in Pangasinan along the Nueva Ecija boundary (Exh. K). The voucher makes reference to invoice No. 3327 and other supporting papers.

The falsity of that provincial voucher is proven by the following intances:

(a) That there was no project for the repair of the bridge at Barrio Libertad (P. 1; Exh. Z).

(b) That the amount of P16,727.52 was never received by the Carried Construction Supply Co The alleged official receipt No. 3025 of the company dated March, 1969 (Exh. K-6) is forged.

(c) That the lumber and materials mentioned in Exhibit K were never delivered by the company to the provincial government

(d) That in the provincial voucher, Exhibit K, and in the supporting requisition and issue voucher (RIV) No. 2206 dated January 29, 1969 (Exh. A), covering the same lumber and hardware ma the signatures of the following office were forged: Salvador F. Oropilla senior civil engineer; Rodolfo P. Mencias, supervising civil engineer Victoriano M. Sevilleja, acting provincial engineer, and Ricardo B. Probincias, chief of equipment of the governor's office. These four office denied that their signatures in the two vouchers, Exhibits A and B, are their genuine signatures.

(e) That the imprint of the rubber stamp on Exhibits A and B, containing the words "Approved: For and By Authority of the Governor ( signed) Ricardo B. Primicias, Chief of Equipment", is not the imprint of the genuine rubber stamp used in Primicias office.

(f) That charge invoice No. 3327 of the Carried Construction Supply Co. dated February 18, 1969, containing a description and the prices of the lumber and hardware material (Exh. B), is fake because, according to Ambrosio Jabanes, the company's assistant manager, the company's invoice No. 3327 was issued to the Mountain Agricultural College (Exh. II-1). Oropilla denied that his alleged signature on Exhibit B is his signature.

(g) That three other documents, supporting the provincial voucher (Exh. K), were also forged. Those documents are the taxpayer's cate dated February 10, 1969 (Exh. C) stating that no tax is due on the goods sold in the fake invoice No. 3327 and the two certificates as to the samples of lumber allegedly purchased from the Carried Construction Supply Co., (Exh. D and E). Narciso P. Martinez, a district forester, denied that his signatures in Exhibits D and E are his signatures.

(h) That Angelo C. Manuel the checker of the provincial auditor's office, denied that his signature on the left margin is his signature (Exh. A-10).

The forged character of provincial voucher No. 10724 (Exh. K) is incontrovertible. Other five forged voucher. Five other provincial vouchers evidencing supposed payments of certain amounts to the Carried Construction Supply Co. for lumber and hardware materials supposingly used in the repair of other bridges were also falsified. These five vouchers are the following:

Page 18 of 41

(1) Voucher No. 11995 dated April 29, 1969 evidencing the payment of P14,571.81 for number and hardware materials allegedly used in the repair of Bayaoas bridge at the Urbiztondo-Pasibi Road (Exh. O).

(2) Voucher No. 11869 dated April 15, 1969 evidencing the payment of P5,187.28 'or lumber and hardware materials allegedly used in the repair of the Panganiban bridge at the UminganTayug Road (Exh. P)

(3) Voucher No. 11870 dated April 28, 1969 evidencing the payment of P6,290.60 for lumber and hardware materials allegedly used in the repair of the Cabatuan bridge at the Umingan-Guimba Road (Exh. Q).

(4) Voucher No. 11871 dated April 15, 1969 evidencing the payment of P9,769.64 for lumber and hardware materials allegedly used in the repair of the Casabar bridge at the Binalonan-San Manuel Road (Exh. R).

(5) Voucher No. 11872 dated April 15, 1969 evidencing the Payment of P4,501.38 for lumber and hardware materials allegedly used in the repair of the Baracbac bridge at the Umingan-Guimba Road (Exh. S).

As in the case of voucher No. 10724 (Exh. K), Oropilla, Mencias, and Primicias declared that their signatures in the said five vouchers are not their genuine signatures. Samson, who hand-carried the said vouchers for processing, did not turn over to the provincial auditor's office the papers supporting the said vouchers after the vouchers had been pre-audited. Hence, those supporting papers could not be presented in evidence.

Jabanes, the aforementioned assistant manager of the Carried Construction Supply Co., testified that the lumber and hardware materials mentioned in the five vouchers were never delivered by his company to the provincial government. The charge invoices mentioned in the said vouchers were cancelled invoices issued to the Mountain Agricultural College. The projected repairs of the bridges were fictitious.

The company's cashier testified that the company never received the payments for the lumber and hardware materials. The receipts evidencing payments (Exh. K-6, KK to KK-4 are fake official receipts. The cashier produced in court the genuine official receipts (Exh. LL to LL-7) bearing the serial numbers of the fake receipts. The genuine receipts do not refer to transactions with the provincial government.

Samson played a stellar role in the processing of the six vouchers. He used to be an employee of the pro treasurer's office. He resigned and worked with several firms doing business with the provincial government. In 1969 he was the collector of the Carried Construction Supply Co. He represented that firm in its dealings with the offices of the governor, provincial auditor, provincial engineer and provincial treasurer. He was personally known to those provincial officials and the employees of their offices (21-22 Sendaydiego's brief).

The six (6) forged provincial vouchers, with their respective supporting papers, were hand-carried by Samson. He delivered the papers to Carmencita Castillo, the ledger clerk in the provincial engineer's office, for recording and for her signature (Ekh. DD).

Thereafter, Samson brought the papers to the provincial treasurer's office. Marcelo Crusade, a laborer in that office who performed the chore of recording the vouchers and payrolls, recorded Vouchers Nos. 11869, 11871 and 11872 (Exh. P, R and S). Crusadas initials appear on the upper lefthand corner of the said vouchers with the date 4/17/69.

Samson signed on the left margin of the vouchers to indicate that he presented them to the provincial t r's office. Crusade said that after Samson had presented the said papers to him, Samson brought them to Ricardo Baraan, the book-keeper of the provincial treasurer's office for processing and for the latter's signature (Exh. WW).

From Baraan's office, Samson hand-carried the vouchers to the provincial auditor's office. He asked Virginia Cruz, a clerk to record the same (Exh. CC).

Afterwards, Samson asked Donato Rosete the assistant provincial treasurer, to initialled the voucher After Rosete had initialled the vouchers, Samson went to the provincial treasurer's office where the amounts covered by the voucher were paid by Sendaydiego to him in cash (instead of by check) as representative of the Carried Construction Supply Co. (Exh. EE). He received the payments on March 31 and April 29 and 28 (four payments on that date) as shown on the face of the vouchers.

The signature of Sendaydiego and Quirimit, the auditor, on the said six vouchers are admittedly authentic. Sendaydiego signed the vouchers ahead of Rosete, his assistant. Sendaydiego's defense is that he signed the vouchers in the honest belief that the signatures therein of the provincial office concerned were genuine because the voucher had been pre-audited and approved by the auditor.

Samson denied the authenticity of his two signatures on each of the six vouchers showing that he received from Sendaydiego the amounts covered thereby as representative of the lumber and hardware firm (Exh. OO to TT) and that he presented the vouchers to the provincial s treasurer 's office (Exh. 6-12 Samson). Sendaydiego testified that Samson's signatures are genuine.

In connection with the six vouchers, Sendaydiego, Samson and Quirimit were charged with malversation through falsification in three docketed as follows:

1. Criminal Case No. 23349 involving provincial voucher No. 10724 dated February 28, 1969 in the sum of P16,7Z7.52 (Exh. X), L-33252.

2. Criminal Case No. 23350 involving provincial vouchers Nos. 11869, 11870, 11871 dated April 15 (two dates) 28 and 15, 1969 for the respective amounts of P5,187.28, P6,290.60, P9,769-64 and P4,501.38 (four vouchers, Exh. P, Q, R and S), now L-33253.

3. Criminal Case No. 23351 involving provincial voucher No. 11955 dated April 29, 1969 in the sum of P14,571.81 (Exh. O), now L-33254.

After trial the lower court acquitted the auditor, Quirimit and found Sendaydiego and Samnson guilty of malversation through falsification of public or official documents imposing each of the following penalties:

(1) In Criminal Case No. 23349, an indeterminate sentence of twelve years, ten months and twenty-one-days, as minimum, to eighteen years, two months and twenty-one days of reclusion temporal, as maximum, and a fine of P16,727.52 and to indemnify solidarity the provincial government of Pangasinan in the same amount;

(2) In Criminal Case No. 23350, the penalty of reclusion perpetua and a fine of P29,748.90 and to indemnify solidarily the provincial government of Pangasinan in the same amount; and

(3) In Criminal Case No. 23351, an indeterminate sentence of twelve years, ten months and twenty-one days, as minimum, to eighteen year two months and twenty-one days of reclusion temporal as maximum , and a fine of P14,571.81 and to indemnify solidarity the provincial government of Pangasinan in the same amount.

Sendaydiego and Samson appealed to this Court.

Sendaydiego died on October 5, 1976. His appeal as to his criminal liability was dismissed. Death extinguished his criminal liability remained. The resolution of July 8, 1977 dismissing Sendaydiego's appeal read s follows:

The death of appellant Sendaydiego during the pendency of his appeal or before the judgment of conviction rendered against hi m by the lower court became final and executory extinguished hiscriminal liability meaning his obligation to serve the personal or imprisonment penalties and his liability to pay the fines or pecuniary penalties (Art. 89[1], Revised Penal Code; 1 Viada, Codigo Penal, 4th Ed., 565).

The claim of complainant Province of Pangasinan for the civil liability survived Sendaydiego because his death occurred after final judgment was rendered by the Court of First Instance of Pangasinan, which convicted him of three complex crimes of malversation through falsification and ordered him to indemnify the Province in the total sum of P61,048.23 (should be P57,048.23).

The civil action for the civil liability is deemed impliedly instituted with the criminal action in the absence of express waiver or its reservation in a separate action (Sec. 1, Rule 111 of the Rules of court). The civil action for the civil liability is separate and distinct from the criminal action (People and Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz, 107 Phil. 8).

Page 19 of 41

When the action is for the recovery of money and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided' in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the Court of First Instance, the action survives him. It may be continued on appeal (Torrijos vs. Court of Appeals, L-40336, October 24, 1975; 67 SCRA 394).

The accountable public officer may still be civilly liable for the funds improperly disbursed although he has no criminal liability (U S. vs. Elvina, 24 Phil. 230; Philippine National Bank vs. Tugab, 66 Phil. 583).

In view of the foregoing, notwithstanding the dismissal of the appeal of the deceased Sendaydiego insofar as his criminal liability is concerned, the Court Resolved to continue exercising appellate jurisdiction over his possible civil liability for the money claims of the Province of Pangasinan arising from the alleged criminal acts complained of, as if no criminal case had been instituted against him, thus making applicable, in determining his civil liability, Article 30 of the Civil Code (Note: The lower court had issued an order of attachment against him on January 13, 1970 for the sum of P36,487 and in the brief for said appellant, there is no specific assignment of error affecting the civil liability fixed by the trial court.) and, for that purpose, his counsel is directed to inform this Court within ten (10) days of the names and addresses of the decedent's heirs or whether or not his estate is under administration and has a duly appointed judicial administrator. Said heirs or administrator will be substituted for the deceased insofar as the civil action for the civil liability is concerned (Secs. 16 and 17, Rule 3, Rules of Court). According to Sendaydiego's brief, he had a wife and ten children named Arturo, Licerio, Jr., Prospero, Regulo, Eduardo, Cesar, Nola, Aida, Wilfredo and Manolo (deceased).

The title of this case should be amended to show its civil aspect by adding thereto the following.Province of Pangasinan vs. Heirs of Licerio P. Sendaydiego .

Sendaydiego's appeal will be resolved only for the purpose of showing his criminal liability which is the basis of the civil liability for which his estate would be liable for which his estate would be liable. Sendaydiedo's appeal; civil liability of his estate . In view of Sendaydiego's death, it is not necessary to resolve his first two assignments of error, wherein he assails the imposition of reclusion perpetua as a cruel and unusual penalty and wherein it is argued that there is no complex crime of malversation through falsification committed by negligence.

In the third assignment of error, it is contended that the trial court erred in allowing private prosecutors Millora and Urbiztondo to prosecute the case thereby allegledly subjecting the accused to proceedings marked by undue publicity, pre-judgment, bias and political self-interest.

Atty. Vicente D. Millora, a senior member of the provincial board actually handled the prosecution of the case from the preliminary investigation, which started on June 5, 1969, up to the termination of the trial on July 29, 1970.

At the commencement of the preliminary investigation, the counsel for the accused auditor inquired whether Atty. Millora was authorized by the provincial board to act as private prosecutor in representation of the province of Pangasinan, the offended party. Atty. Millora replied that there was a board resolution designating him as a private prosecutor.

The acting provincial commander, who filed the complaints manifested to the trial court that he had authorized Atty. Millora to act as private prosecutor (4-8 tsn June 5, 1969).

Another defense counsel filed a written motion to inhibit Millora and the others as private prosecutors. The lower court denied the motion in its order of June 18, 1969 (p. 40, Record of Criminal Case No. 23350).

After the termination of the p investigation conducted by the lower court, the provincial fiscal of Pangasinan and the city final of Dagupan City filed three informations against the accused all dated November 4, 1969.

At the commencement of the trial on February 23, 1970 the city fiscal, an assistant provincial fiscal and Atty. Millora, the private prosecutor, appeared for the prosecution. The city fiscal moved "that the private prosecutor (Millora) be authorized to conduct the examination subject to our (the fiscal's) control and supervision". The trial court granted the motion (7 tsn).

At the hearing on April 23, 1970 the same city fiscal moved that Atty. Urbiztondo be authorized to examine the prosecution witnesses under his supervision and control The trial court granted the motion (155 tsn).

The record shows that at every hearing the provincial fiscal, the city fiscal or an assistant fiscal were present together with the private prosecutor.

Under the foregoing circumstances, we believe that there was substantial compliance with the rule that the criminal action should be "prosecuted under the direction and control of the fiscal" and that "the provincial fiscal shall represent the province" in any court (Sec.4, Rule 110, Rules of Court; sec. 1683, Revised Administrative Code).

The observation of Sendaydiego's counsel, that the imposition of reclusion perpetua "could have been the result of the undue publicity, prejudgment, bias and political interest which attended the proceedings ", is not well-founded. The trial court's decision dispels any doubt as to its impartiality. The evidence in the three cases is mainly documentary. The unassailable probative value of the documents involved rather than bias and prejudice, was the decisive factor on which the trial court anchored the judgment of conviction.

Moreover, as already adverted to, Sendaydiego's death had rendered moot the issue as to the propriety of the imposition of reclusion perpetua. And, as will be shown later, reclusion perpetua cannot be imposed in these cases because the crimes committed were not complex.

The other seven assigmments of error made by Sendaydiego's counsel refer to the trial court's conclusion that Sendaydiego and Samson are guilty beyond reasonable doubt of malversation through falsification or, specifically, that the provincial treasurer, in signing the six vouchers, evinced "malice or fraud and that there must have been connivance between" the two.

Several lances indicate that Sendaydiego conspired with Samson. Donato N. Rosete, the assistant provincial treasurer, testified that, contrary to the usual procedure, he affixed his initial to paragraph 3 of the vouchers after Sendaydiego had signed it. Rosete adhered to that unusual procedure because the interested party, Samson who hand-carried the vouchers, approached Rosete after he (Samson) had conferred with the provincial treasurer and Samson told Rosete to initial the voucher because it was areglado na (already settled) since the treasurer had already signed the voucher (54 tsn July 3, 1969).

Rosete's testimony and affidavit confute appellant Sendaydiego's contention that the trial court erred in finding that he signed the questioned vouchers before Rosete had placed his initial in them. After the treasurer had signed the voucher, Rosete's duty to initial it was only ministerial (75 tsn July 3, 1969).

The bookkeeper in the treasurer's office testified that he indicated in the vouchers that the amounts covered thereby should be paid in cash. That indication was made by means of the symbol "A-1-1" placed at the bottom of the vouchers under the column "Account Number". The bookkeeper was in. instructed by Samson to place that symbol Samson told him that he (Samson) had an understanding with Treausrer Sendaydiego that the payment should be made in cas. There were instances when the treasurer insisted on payment by check to creditors other than Juan Samson.

The cash payments were made to Samson in the inner office of the provincial treasurer where the cashier was summoned to make the cash payments (11-12 ton July 9, 1969; p. 11, Exh. EE). As noted by the trial court, it was unusual that the payments should be made in the treasurer's office when that was a ministerial chore of the cashier.

The cash payments were made to Samson even if Samson had no power of attorney from the Carried Construction Supply Co. authorizing him to receive the payments. The space in the vouchers for the signature of the witness, who should be present when the payments were received, was blank. The treasurer did not bother to have a witness to attest to the payments or to require the exhibition of Samson's residence certificate.

Another apt observation of the trial court is that the forged character of the six vouchers would have been unmasked by the supposed creditor, Carried Construction Supply Co., if the payments had been made by means of checks. The company on receiving the checks would have returned them to the treasurer because it knew that there was no reason to make any payments at all. The trial court said that the cash payments prove Sendaydiego's collusion with Samson.

Sendaydiego's counsel assails the lower court's finding that there was a conspiracy between the provincial and Samson as shown by the fact that the amounts covered by the vouchers were paid to Samson by the cashier in the treasurer's inner office. That point was testified to by Rosete, the assistant provincial treasurer.

The cashier, Napoleon Ulanday, would have been the beet witness on how and where the payments were made. However, Ulanday died before the preliminary investigation was started. On May 27, 1969, after the anomalies were unearthed, he wrote a letter to the provincial , stating that he paid to Samson the amounts covered by five vouchers in the of Salazar K. Misal and Josefina E. Pulido (Exh. 13).

Page 20 of 41

Rosete was in a position to state that the cash payments were made to Samson in the treasurers inner office because his table was near the main door of the treasurers office or was about fifteen meters away (18 tsn). Rosete always knew when the cashier went to the treasurers office because the cashier was oned by means of a buzzer (long buzz), and when the cashier came out of the treasurer's office, he would be holding the voucher (12-13 tsn).

Sendaydiego's counsel that no gross negligence can be imputed to the treasurer (malversation is a crime which can be committed by means of dolo or culpa and the penalty in either case is the same). This argument does not deserve serious consideration because the facts proven by the prosecution show that he had a tieup with Samson and that he acted maliciously in signing the six questioned vouchers.

The last contention put forward for Sendaydiego is that, because the trial court acquitted the auditor, then the treasurer's exoneration follows as a matter of course. We see no merit in that contention because the evidence for the prosecution against Sendaydiego is not the same as its evidence against the auditor. For that reason the auditor was charged only as an accomplice, whereas, the treasurer was charged as a principal. The auditor based his defense on the undeniable fact that the treasurer had approved the six vouchers "for pre-audit and payment" before they were passed upon by the auditor. In short, the auditor was misled by the treasurer's certification which the auditor apparently assumed to have been made in good faith when in truth it was made in bad faith.

We are convinced after a minutiose examination of the documentary and oral evidence and an unprejudiced consideration of the arguments of Sendaydiego's counsel that his criminal liability was established beyond reasonable doubt and, therefore, the civil liability fo his estate for the amounts malversed was duly substantial. Samson's appeal. Samson's brief has no statement of facts. He contends that the trial court erred in disregarding the expert testimony that his signatures on the vouchers are not his signature; in finding that he forged the vouchers and received the proceeds thereof, and in relying on circumstantial evidence as proof of conspiracy.

As a preliminary issue, Samson argues that Judge Eloy B. Bello should have inhibited himself "in fairness to the accused, in the interest of justice, and as a gesture of delivadeza" because he had conducted the preliminary investigation.

Our searching study of the recrod fails to sustain Samson's insinuation that he was prejudiced by the fact that Judge, who conducted the preliminary investigation, was the one who tried the case and convicted him. Judge Bello tried the case fairly. His conduct of the trial does not show that he had already prejudged their guilt.

Section 13, Rule 112 of the Rules of court, in allowing a Court of First Instance to conduct a preliminary investigation, does not disqualify it from trying the case after it had found probable cause and after the fiscal, as directed by the Court, had filed the corresponding information. The rule assumes that the Judge, who conducted the preliminary investigation, could impartially try the case on the merits.

We cannot assume that judges as a rule are opinionated and narrow-minded insomuch that they would invariably be iron-bound by their findings at the preliminary investigation.

The case of a Judge of the Court of First Instance, who conducts a preliminary investigation and then tries the case on the merits, is similar to a situation where an inferior court conducts a preliminary investigation of a grave or less grave offense falling within the concurrent jurisdiction of the Court of First Instance and tghe inferior court. In such a case, the inferior court after terminating the preliminary investigation is not obligated (por delivadeza) to remand the case to the Court of First Instance for trial. The inferior court has the option to try the case on the merits (People vs. Palmon, 86 Phil. 350; Natividad vs. Robles, 87 Phil. 834; People vsw. Colicio, 88 Phil. 196). The assumption is that the inferior court can try the case without any ingrained bias or undue prejudice.

Samson sought to prove, through Lieutenant Colonel Jose G. Fernandez, retired chief of the Constabulary crime laboratory, a handwriting expert, that his signatures on the vouchers are not his signatures.

Fernandez found that the questioned signatures and the alleged genuine signatures (exemplars) of Samson have fundamental differences. The expert concluded that the questioned signatures and the exemplar signatures of Samson were not written by one and the same person (Exh. 20).

After examining the questioned and genuine signatures and analysing the evidence and contentions of the parties, we find that the expert is correct in declaring that (as admitted by the trial court) there are radical differences between the questioned and authentic signatures.

But the expert is in error in concluding that Samson did not forge the questioned signatures or in implying that Samson had no hand in the writing thereof.

The truth is that Samson used two forms of signature. His supposed genuine signatures found in his residence certificates, income tax returns and the genuine office receipt of the Carried Construction Supply Co. are "in an arcade form or rounded form of writing". The surname Samson is encircled.

On the other hand, the questioned signatures used in Samson's transactions with the provincial government are in angular form; his surname is not encircled, and the questioned signatures terminate in angular and horizontal strokes.

Samson was consistent in his fakeries. Knowing that the six vouchers evidenced fictitious transactions, he used therein his fake signature, or the signature which is different from his signature in genuine documents. He used his forged signatures in the six fake official receipts of the Carried Construction Supply Co., stating that the amounts covered by the six vouchers were received by him (Exh. K-6, KK to KK-4). the expert admitted that a person may have two forms of signature (186 tsn July 16, 1970).

Signatures may be deliberately disguised with the dishonest intention of denying the same as and when necessary (Mehta, Identification of Handwriting and Cross Examination of Experts, pp. 4th Ed., 1970, p. 224; Harrison, Suspect Documents 418-419).

Sendaydiego himself testified that the questioned signatures of Samson in the six vouchers were Samson's signatures (94-99 tsn July 31, 1969).

Fernandez, the handwriting expert, declared that the questioned signatures of Samson in the vouchers were written by only one person (264-265 tsn July 16, 1970).

The evidence conclusively proves that Samson, as the representative or collector of the supposed creditor, Carried Construction Supply Co., hand-carried the vouchers in question to the offices of the provincial engineer, treasurer and auditor and then back to the treasurer's office for payment. He actually received the cash payments. Under those circumstances, Samson is presumed to be the forger of the vouchers.

The rule is that if a person had in his possession a falsified document and be made use of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. This is especially true if the use or uttering of the forged documents was so closely connected in time with the forgery that the user or possessor may be proven to have the capacity of committing the forgery, or to have close connection with the forgers, and therefore, had complicity in the forgery. (U.S. vs. Castillo, 6 Phil., 453; People vs. De Lara, 45 Phil. 754; People vs. Domingo, 49 Phil. 28; People vs. Astudillo, 60 Phil. 338 People vs. Manansala, 105 Phil. 1253).

In the absence of a satisfactory explanation, one who is found in possession of a forged document and who used or uttered it is presumed to be the forger (Alarcon vs. Court of Appeals, L-21846, March 31, 1967, 19 SCRA 688; People vs.Caragao, L-28258, December 27, 1969, 30 SCRA 993).

Samson's use of one form of signature for his crooked transactions with the provincial government and another form of signatures of his valid transactions or papers shows the deviousness of the falsifications perpetrated in these cases. (Note that Sendaydiego signed the certification in the first voucher, Exhibit K, stating that proceeds thereof were paid to

Samson but Sendaydiego did not sign the same certification in the other five forged vouchers, Exhibits O, P, Q, R and S).

As to the question of conspiracy, the statement of Samson's on page 19 of his brief, that "the trial court made absolutely no finding of any supposed conspiracy' between Samson and Sendaydiego, is not correct.

We have already noted that the trial court explicitly stated that the circumstance that Sendaydiego signed the six vouchers ahead of his assistant shows that there was "malice or fraud" on the part of Sendaydiego and that there was conivance between Samson and Sendaydiego when the proceeds of the vouchers were paid to Samson in Sendaydiego's inner office, instead of in the cashier's office (p. 23, 26, Decision, Appendix to Samson's brief). The trial court said that the fact that Sendaydiego allowed payment in cash shows "his collission with Samson (Ibid, p. 26).

Samson's contention that the trial court merely conjectured that he had received the proceeds of the vouchers is not well taken. The trial court's finding on that point is based on very strong circumstantial evidence (assuming that it was not proven that Samson signed the vouchers).

Page 21 of 41

Samson vehemently argues that there is no evidence that the total sum of P57,048. 23 paid under the six vouchers "was really misappropriated". He asserts that the six vouchers are genuine (although he contends that his signatures thereon are forgeries) and that there is no proof that the amounts covered thereby were not paid for the construction materials shown in the six vouchers were never delivered by the company (Exh. HH).

These contentions appear to be untenable in thelight of the declaration of Jabanes, the assistant manager of Carried Construction Supply Co., the alleged supplier, that the materials shown in the six vouchers were never delivered by the company (Exh. HH).

And Leticia Sevilleja (wife of the provincial engineer), who was employed as cashier of the carried Construction Supply Co., denied that Samson turned over to the company the proceeds of the six vouchers which he was supposed to have collected for the company from Sendaydiego. The six vouchers appear to be fake principally because they evidence fictitious sales of construction materials.

Under the said circumstances, it cannot be contended that there was no malversation after Sendaydiego admtte that Samson acknowledged in the six vouchers that he received from Treasurer Sendaydiego the total sum of P57,048.23.

The assertion of Samson's counsel on pgae 29 of his brief, that the finding as to his guilt is based on a shaky foundation or is predicated on circumstances which wre not proven, is not correct. Recapitulations. In resume, it appears that the provincial treasurer wants to base his exculpation on his belief that in the six vouchers the signatures of Samson and the officials in the provincial engineer's office appeared to be genuine and on the fact that the auditor had approved the vouchers. The tresurer claimed that he acted in good faith in approving the payments of the proceeds of the vouchers to Samson as the representative of the supplier, Carried Construction Co.

On the other hand, Samson, by impugning his signatures in the vouchers, denied that he received the said amounts from the cashier of the treasurer's office.

These conflicting versions of the treasurer and Samson have to be resolved in the light of the inexpugnable fact that Samson had hand-carried the voucehrs and followed up their processing in the offices of the provicial government the construction materials described in the six vouchers and denied having received from Samson the prices of the alleged sales.

The result is the Samson's denial of his signatures in the six vouchers and in the six receipts (Exh. K-6 and KK to KK-4) and the provicial treasurer's pretension of having acted in good faith or having committed an honest mistake have to be disbelieved.

The unavoidable conclusion is that Sendaydiego and Samson were in cahoots to defraud the provincial government and to camoufl age the defraudation by means of the six vouchers which have some genuine features and which appear to be extrinsically authentic but which were intrinsically fake. Penalties. The trial court and the assumed that three complex crimes of malversation through falsification of public documents were committed in this case. That assumption is wrong.

The crimes committed in these three cases are not complex. Separate crimes of falsification and malversation were committed. These are not cases where the execution of a single act constitutes two grave or less grave felonies or where the falsification was used as a means to commit malversation.

In the six vouchers the falsification was used to conceal the malversation. It is settled that if the falsification was resorted to for the purpose of hiding the malversation, the falsification and malversation are separate offenses (People vs. Cid, 66 Phil 354; People vs. Villanueva, 58 Phil. 671; People vs. Geralde 52 Phil. 1000; People vs. Regis, 67 Phil. 43).

In the Regis case, supra where the modus operandi is similar to the instant cases, the municipal treasurer made it appear in two official payrolls dated April .30 and May 2, 1931 that some persons worked as laborers in a certain street project at Pinamungahan, Cebu. In that way, the two amounts covered by the payrolls, P473.70 and P271.60, were appropriated and taken from the municipal funds. As a matter of fact, no such work was done in the said street project and the persons mentioned in both payrolls had not performed any labor.

It was held in the Regis case, that the falsification and malversation did not constitute a complex crime because the falsifications were not necessary means for the co on of the malversations. Each falsification and each malversation constituted independent offenses which must be punished separately.

The municipal treasurer was convicted of two falsifications and two malversations. Four distinct penalties were imposed.

In the instant cases, the provincial , as the custodian than of the money forming part of the road and bridge could have malversed or misappropriated it without falsifiying any voucher. The falsification was used as a device to prevent detection of the malversation.

The falsifications cannot be regarded as constituting one continuing offense impelled by a single criminal impulse.

Each falsification of a voucher constitutes one crime. The falsification of six vouchers constitutes six separate or distinct offenses (People vs. Madrigal-Gonzales, 117 Phil. 956).

And each misappropriation as evidenced by a provincial voucher constitutes a separate crimes of malversation were committed. Appellant Samson is a co-principal in each of the said twelve offenses.

As already stated, he is presumed to be the author of the falsification because he was in possession of the forged vouchers and he used them in order to receive public monies from the provincial treasurer.

He is a co-principal in the six crimes of malversation because he conspired with the provincial treasurer in committing those offenses. The trial court correctly ruled that a private person conspiring with an accountable public officer in committing malversation is also guilty of malversation (People vs. Rodis, 105 Phil. 1294; U.S. vs. Ponte, 20 Phil. 379; U.S. vs. Dato and Lustre, 37 Phil. 359; U.S. vs. Dowdell, 11 Phil. 4; People vs. Caluag, 94 Phil. 457).

Note that a different rule prevails with respect to a stranger taking part in the commission of parricide or qualified theft. In such cases, the stranger is not guilty of parricide or qualfied theft but only of murder or homicide, as the case may be, and simple theft, by reason of paragraph 3, article 62 of the Revised Penal Code (People vs. Patricio, 46 Phil. 245).

Falsification of a public document committed by a private person is punished in article 172(1) of the Revised Penal Code by prision correccional in its medium and maximum periods and a fine of not more than P5,000.

For the malversation of the sum of P5,187.28 and P4,501.38, respectively covered by vouchers Nos. 11869 and 11872 (Exh. P and S), the penalty provided in paragraph 2 of article of the Revised Penal Code is prision mayorminimum and medium.

For the malversation of the sums of P6,290.60 andP9,769.64, respectively covered by vouchers Nos. 1187 and11871 (Exh. Q and R) the penalty provided in paragraph 3 of article 217 is prision mayor maximum to reclusion temporal minimum.

For the malversation of the sums of P16,727.52 and 10995 (Exh. K and O), the penalty provided in paragraph 4 of article 217 i s reclusion temporal medium and maximum.

In each of the malversation cases, a fine equal to the amount malversed should be added to the imprisonment penalty.

In the twelve cases the penalty should be imposed in the medium peiod since there are no modifying circumstances (Arts. 64[1] and 685, Revised Penal Code). Samson is entitled to an indeterminate sentence.

WHEREFORE, Samson is convicted of six crimes of falsification of a public document and six crimes of malversation.

In lieu of the penalties imposed by the trial court, he is sentenced to the following penalties:

For each of the six falsification of the vouchers (Exh. K, O, P, Q, R and S), Samson is sentenced to an indeterminate penalty of two (2) years of prison correccional minimum, as minimum, to four (4) years of prision correccional medium, as maximum, and to pay a fine of three thousand pesos.

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For the malversation of the sum of P16,727.52 covered by voucher No. 10724 (Exh. K), Samson is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years ofreclusion temporal medium, as maximum; to pay a fine in the amount of P16,727.52, and to indemnify the province of Pangasinan in the same amount (Criminal Case NO. 23349, L-33252).

For the malversation of the sum of P14,571.81 covered by voucher No. 11995 (Exh. O), Samson is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years ofreclusion temporal medium, as maximum; to pay a fine in the sum of P14,571.81, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23351, L33254).

For the malversation of the sum of P6,290.60 covered by voucher No. 11870 (Exh. Q), Samson is sentenced to an indertiminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P6,290.60, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

For the malversation of the sum of P9,769.64 covered by voucher No. 11871 (Exh. R), Samson is sentenced to an indeterminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P9,769.64, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

For the malversation of the sum of P5,187.28, covered by voucher No. 11869 (Exh. P), Samson is sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as minimum, to eight (8) of prision mayorminimum, as maximum; to pay a fine of P5,187.28, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

For the malversation of the sum of P4,501.38 covered by voucher no. 11872 (Exh. S), Samson is sentenced to an indeterminate penalty of five (5) years of prision correccional maxi mum, as minimum, to eight (8) years of prision mayor minimum, as maximum; to pay a fine of P4,501.38, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

In the service of the twelve penalties meted to Samson, the threefold limit provided for in article 70 of the Revised Penal Code should be observed (People vs. Escares, 102 Phil. 677), meaning that the maximum penalty that he should serve is three times the indeterminate sentence of twelve (12) years to seventeen (17) years, the severest penalty imposed on him, or thirty-six (36) years to fifty-one (51) years (see People vs. Peas, 68 Phil. 533).

The maximum duration of his sentences should not exceed forty (40) years (Penultimate par. of art. 70; People vs. Alisub, 69 Phil. 362; People vs. Concepcion, 59 Phil. 518, 68 Phil. 530 and 69 Phil. 58).

The estate of the late Licerio P. Sendaydiego is ordered to indemnify the province of Pangasinan in the sum of P57,048.23.

Samson and the said estate are sojidarily liable for the said indemnity (Art. 110, Revised Penal Code). Samson should pay one-half of the costs.

G.R. No. L-60842 September 30, 1982 ROLANDO DIMACUHA, petitioner, vs. HONORABLE ALFREDO B. CONCEPCION, Presiding Judge, Court of First Instance of Cavite, Branch IV Tagaytay City, respondent.

GUTIERREZ, JR., J.:

Petitioner Rolando Dimacuha, who unsuccessfully sought the inhibition of the respondent judge in Criminal Case No. TG-752-81, filed this petition for certiorari with preliminary mandatory injunction on June 22, 1982 to restrain the judge from proceeding with the case and for its transfer to another sala.

Petitioner Dimacuha is the accused in Criminal Case No. TG-752-81 for homicide, pending before the respondent judge in the Court of First Instance of Cavite, Branch IV, at Tagaytay City.

The petitioner alleges:

xxx xxx xxx

3. That sometime during the month of January, 1982, petitioner had a personal confrontation with the brother of the late Ernesto Omandap and was directly and bluntly told (when they failed to bodily assault him) in this manner in the vernacular "di bale tutal yari ka rin sa asunto bayad na si Judge para umupo ka sa silya electrika".

4. That petitioner wary of the words of the Omandap brothers informed his lawyer about it but the latter merely dismissed the matter as pure nonesense;

5. That, however, the past actuations of respondent Judge tended to lend truth to the rumor that my lawyer was constrained to file an "Urgent Motion for Inhibition with Prayer to Transfer Venue" Attached hereto and made integral part hereof as Annex A to A-1, is the said motion;

6. That on March 25, 1982, respondent issued an order which sarcastically "denied" my lawyers Motion for Inhibition; Appended hereto as part of this petition is the said order marked as Annex "B",

7. That since then, respondent has scheduled the trial of my case giving me no chance and time to confer with my de-parte counsel;

8. That over and above my protestations and vehement objections, because I have a de-parte counsel who has not withdrawn his appearance, respondent assigned a de oficio lawyer who despite his unpreparedness is only too willing to go about his "assigned task" non-chalantly;

On July 19, 1982, respondent judge submitted an 18 pages Compliance and Comments which denied the charges as baseless and erroneous and which explained in detail that the defense counsel was remiss in entering his appearance and in filing necessary motions, unprepared to conduct crossexamination, wrong in not graciously accepting the court's suggestion to present concrete evidence, and culpable of conduct offensive to the dignity of the court and of hostility and open defiance to the lawful orders of the court.

The respondent People of the Philippines filed comment through Solicitor General Estelito P. Mendoza, Assistant Solicitor General Eulogio Raquel Santos and Solicitor Teodoro G. Bonifacio on July 28, 1982. A careful consideration of the records submitted by the peti- petitioner and respondents shows that the most serious charge that the petitioner was already "finished" as far as the case was concerned and that the judge had been "bought" to sentence the petitioner to the electric chair is not sustained by the records. In fact, the questions propounded by the judge himself to the prosecution witness seemed to elicit some answers favorable to the accused. We also agree with the Solicitor General that the charges concerning "past actuations" of the respondent judge were not sufficiently demonstrated.

The comments filed by the Solicitor General made this resume of the case: 3-e. Now, as the entire trial incidents are viewed in retrospect, it is obvious that

(l) de parte counsel Atty. Castro and respondent judge had their disagreements as regards how to cross-examine. The start of their dispute occurred here. This was at the hearing of March 17, 1982 (pages 14-15 TSN of this date). Respondent judge was perhaps too frank in saying to petitioner's counsel that the testimony of the prosecution witness was "made clearer". And this was made in open court. Thus, perhaps, the professional pride of petitioner's de parte counsel must have been hurt, not to ignore the embarrassment it caused, and he could not do anything about it except, as appears in the TSN, he gave his theory. Counsel de parte was no longer present at the next hearing of June 1, 1982. Another counsel de oficio, Atty. Nestor Desacad, undertook cross- examining second prosecution witness Vicente Sanchez, in behalf of petitioner.

Page 23 of 41

(2) the motion to inhibit and transfer venue appears unresolved, as petitioner's counsel de parte manifested in open court (p. 2, tsn April 29, 1982) and he thereby called the attention of respondent judge thereto. Yet, respondent judge ignored counsel de parte'smanifestation to resolve and insouciantly remarked that "The court has appointed a counsel de oficio in case you do not want to appear.

Considering that petitioner stands accused of a serious crime of homicide, that petitioner's de parte counsel has lost rapport and empathy with respondent judge, and considering further that the motion of petitioner to inhibit and transfer venue appears unresolved, a matter obvious from respondent judge's order of March 25, 1982 (Annex "B", petition), to wit:

..., the undersigned Presiding Judge will not dignify the motion under consideration, much less resolve the same.

and considering lastly that the motion ought to have been resolved by the respondent judge (Sec. 1, Rule 15, Rules of Court), therefore, in the light of the foregoing circumstances, the administration of justice will be best served by transferring the venue of Criminal Case TG-752-81 to another branch of CFI-Cavite, maybe the branch at Trece Martires City.

Petitioner must be assured of 'the cold neutrality of an impartial judge'. Thus, the Honorable Supreme Court in the case of Ignacio vs. Villaluz, 90 SCRA 16,19 (1979) aptly held:

However upright the judge and however free from the slightest inclination to do justice, there is peril of his unconscious bias or prejudice, so that to insure compliance with the demands of due process, to which every accused is entitled, and in order that it maybe an impartial administration of justice, the better alternative under the circumstance would be for the respondent judge to inhibit or disqualify himself from further continuing with the trial of said malversation cases, thus assuring petitioner the cold neutrality of an impartial judge.

In resume, while the more sinister imputation that respondent judge was "bought" to convict petitioner appears unsubstantiated by the records, the other imputation that petitioner is denied due process, i.e., under peril of lack of cold neutrality of an impartial judge, is obvious, for which reason, the motion to inhibit and transfer venue ought to be granted.

We agree.

We repeat the exhortation in Pimentel v., Salonga (21 SCRA 160) reiterated in Mateo v. Villaluz (50 SCRA 18) where We called the "attention of all judges to appropriate guidelines in a situation where their capacity to try and decide a case fairly and judiciously comes to the fore by way of challenge from any one of the parties. A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstance reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him. That passion on the part of a judge may be generated because of serious charges of misconduct against him by a suitor or his counsel, is not altogether remote. He is a man, subject to the frailties of other men. He should, therefore, exercise great care and caution before making up his mind to act or withdraw from a suit where that party or counsel is involved. He could in good grace inhibit himself where that case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved therein. On the result of his decisions to sit or not to sit may depend to a great extent the all-important confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He served the cause of the law who forestalls miscarriage of justice.

Due process requirements cannot be satisfied in the absence of that degree of objectivity on the part of a judge sufficient to reassure litigants of his being fair and just. (Ignacio v. Villaluz, 90 SCRA 16; People vs. Gomez, 20 SCRA 293; Pimentel v. Salonga, 21 SCRA 160; Luque v. Kayanan, 29 SCRA 165; Paredes v. Gopengco, 29 SCRA 688; Umale v. Villaluz, 29 SCRA 688; Paredes v. Abad, 56 SCRA 522; Palang v. Zosa, 58 SCRA 776; People v. Ancheta, 64 SCRA 90; Marcos v. Domingo, 64 SCRA 206; Martinez v . Gironella, 65 SCRA 245; Balieza v. Astorga, 60 SCRA 444; Villapando v., Quitain, 75 SCRA 24; Bautista v. Rebueno, 81 SCRA 535.)

WHEREFORE, the respondent judge is hereby ordered to grant petitioner Rolando Dimacuha's motion for inhibition in Criminal Case No. TG-752-81 for homicide and to transfer the case and all its records to the Honorable Ildefonso M. Bleza, District Judge of the Court of First Instance of Cavite, Branch V, at Bacoor, Cavite who is directed to conduct all further proceedings in the case.

G.R. No. L-30104 July 25, 1973

HON. GREGORIO. N. GARCIA, Judge of the City Court of Manila, and FRANCISCO LORENZANA, petitioners, vs. HON. FELIX DOMINGO, Judge of the Court of First Instance of Manila, EDGARDO CALO and SIMEON CARBONNEL, respondents.

Andres R. Narvasa, Manuel V. Chico and Felipe B. Pagkanlungan for petitioners.

Rafael S. Consengco for respondent Calo, et al.

Respondent Judge in his own behalf.

FERNANDO, J.: The pivotal question in this petition for certiorari and prohibition, one which thus far has remained unresolved, is the meaning to be accorded the constitutional right to public trial. 1 More specifically, did 2 respondent Judge commit a grave abuse of discretion in stigmatizing as violative of such a guarantee the holding of the trial of the other respondents inside the chambers of city court Judge Gregorio Garcia named as the petitioner. 3 That was done in the order now impugned in this suit, although such a procedure had been agreed to beforehand by the other respondents as defendants, the hearings have been thus conducted on fourteen separate occasions without objection on their part, and without an iota of evidence to substantiate any claim as to any other person so minded being excluded from the premises. It is thus evident that what took place in the chambers of the city court judge was devoid of haste or intentional secrecy. For reasons to be more fully explained in the light of the facts ascertained the unique aspect of this case having arisen from what turned out to be an unseemly altercation, force likewise being employed, due to the mode in which the arrest of private petitioner for a traffic violation was sought to be effected by the two respondent policemen thus resulting in charges and counter-charges with eight criminal cases being tried jointly by city court Judge in the above manner we rule that there was no transgression of the right to a public trial, and grant the petition.

It was alleged and admitted in the petition: "In Branch I the City Court of Manila presided over by petitioner Judge, there were commenced, by appropriate informations all dated January 16, 1968, eight (8) criminal actions against respondent Edgardo Calo, and Simeon Carbonnel and Petitioner Francisco Lorenzana, as follows: a. Against Edgardo Calo (on complaint of Francisco Lorenzana) (1) Criminal Case No. F-109192, also for slight physical injuries; (2) Criminal Case No. F-109192, alsofor slight physical injuries; and (3) Criminal Case No. F-109193, for maltreatment; b. Against Simeon Carbonnel (id.) (1)Criminal Case No. F-109197, for maltreatment; (2) Criminal Case No. F-109196, for slight physical injuries; and (3) Criminal Case No. F-109198, for light threats; (c) Against Francisco Lorenzana (on complaint of Calo and Carbonnel) (1) Criminal Case No. F-109201, for violation of Sec. 887 of the Revised Ordinances of Manila (resisting an officer); and (2) Criminal Case No. F-109200, for slander." 4The above was followed by this recital: "The trial of the aforementioned cases was jointly held on March 4, 1968, March 18, 1968, March 23, 1968, March 30, 1968, April 17, 1968, April 20, 1968, May 4,1968, May 11, 1968, June 1, 1968, June 15, 1968, June 22, 1968, June 29, 1968, August 3, 1968 and August 10, 1968. All the fourteen (14) trial dates except March 4 and 18, and April 17, 1968 fell on a Saturday. This was arranged by the parties and the Court upon the insistence of respondents Calo and Carbonnel who, as police officers under suspension because of the cases, desired the same to be terminated as soon as possible and as there were many cases scheduled for trial on the usual criminal trial days (Monday, Wednesday and Friday), Saturday was agreed upon as the invariable trial day for said eight (8) criminal cases." 5 Also this: "The trial of the cases in question was held, with the conformity of the accused and their counsel, in the chambers of Judge Garcia." 6 Then came these allegations in the petition: "During all the fourteen (14) days of trial, spanning a period of several months (from March to August, 1968), the accused were at all times represented by their respective counsel, who acted not only in defense of their clients, but as prosecutors of the accusations filed at their clients' instance. There was only one (1) day when Atty. Consengco, representing respondent Calo and Carbonnel, was absent. This was on April 20, 1968. But at the insistence of Pat. Carbonnel, the trial proceeded, and said respondent cross-examined one of the witnesses presented by the adverse party. In any case, no pretense has been made by the respondents that this constituted an irregularity correctible on certiorari. At the conclusion of the hearings the accused, thru counsel, asked for and were granted time to submit memoranda. Respondents Calo and Carbonnel, thru counsel, Atty. Rafael Consengco, submitted a 14-page memorandum with not less than 35 citations of relevant portions of the transcript of stenographic notes in support of their prayer for exoneration, and conviction of petitioner Lorenzana in respect of their countercharges against the latter. It is worthy of note that up to this late date, said respondents Calo and Carbonnel had not objected to or pointed out any supposed irregularity in the proceedings thus far; the memorandum submitted in their behalf is confined to a discussion of the evidence adduced in, and the merits of the cases." 7 It was stated in the next petition:

"The promulgation of judgment was first scheduled on September 23, 1968. This was postponed to September 28, 1968 at the instance of Atty. Rafael Consengco, as counsel respondents Calo and Carbonnel, and again to October 1, 1968 at 11 o'clock in the morning, this time at the instance of Atty. Consengco and Atty. Francisco Koh who had, in the meantime, also entered his appearance as counsel for respondents Calo and Carbonnel. The applications for postponement were not grounded upon any supposed defect or irregularity of the proceedings." 8

Mention was then made of when a petition for certiorari was filed with respondent Judge: "Early in the morning of October 1, 1968, Edgardo Calo and Simeon Carbonnel, thru their counsel, Atty. Rafael S. Consengco, filed with the Court of First Instance a petition for certiorari and prohibition, with application for preliminary prohibitory and mandatory injunction ... [alleging jurisdictional defects]." 9 Respondent Judge acting on such petition forthwith issued a restraining order thus causing the deferment of the promulgation of the judgment. After proceedings duly had, there was an order from him "declaring that 'the constitutional and statutory rights of the accused' had been violated, adversely affecting their 'right to a free and impartial trial' [noting] 'that the trial of these cases lasting

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several weeks held exclusively in chambers and not in the court room open the public';" and ordering the city court Judge, now petitioner, "to desist from reading or causing to be read or promulgated the decisions he may have rendered already in the criminal cases (in question) ... pending in his Court, until further orders of this Court.'" 10

A motion for reconsideration proving unavailing, petition on January 28, 1969, elevated the matter to this Tribunal by means of the present suit for certiorari and prohibition. In its resolution of February 3, 1969, respondents were required to answer, with a preliminary injunction likewise being issued. As was to be expected the answer filed by respondent Judge on March 11, 1969 and that by the other respondents on March 19, 1969 did attempt to justify the validity of the finding that there was a failure to respect the right to a public trial of accused persons. Neither in such pleadings nor in the memorandum filed, although the diligence displayed by counsel was quite evident, was there any persuasive showing of a violation of constitutional guarantee of a public trial, the basic issue to be resolved. Rather it was the mode of approach followed by counsel Andres R. Narvasa for petitioners that did manifest a deeper understanding of its implications and ramifications. Accordingly, as previously stated, it is for us to grant the merits prayed for.

1. The 1935 Constitution which was in force at the time of the antecedents of this petition, as set forth at the outset, explicitly enumerated the right to a public trial to which an accused was entitled. So it is, as likewise made clear, under present dispensation. As a matter of fact, that was one constitutional provision that needed only a single, terse summation from the Chairman of the Committee on the Bill of Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. As was stressed by him: "Trial should also be public in order to offset any danger of conducting it in an illegal and unjust manner." 11 It would have been surprising if its proposed inclusion in the Bill of Rights had provoked any discussion, much less a debate. It was merely a reiteration what appeared in the Philippine Autonomy Act of 1916, popularly known as the Jones Law. 12 Earlier, such a right found expression in the Philippine Bill of 1902, likewise an organic act of the then government of this country as an unincorporated territory of the United States. 13Historically as was pointed out by Justice Black, speaking for the United States Supreme Court in the leading case of In re Oliver: 14 "This nation's accepted practice of guaranteeing a public trial to an accused has its roots in [the] English common law heritage. 15 He then observed that the exact date of its origin is obscure, "but it likely evolved long before the settlement of the [United States] as an accompaniment of the ancient institution of jury trial." 16 It was then noted by him that there, "the guarantee to an accused of the right to a public trial appeared in a state constitution in 1776." 17 Later it was embodied in the Sixth Amendment of the Federal Constitution ratified in 1791. 18 He could conclude his historical survey "Today almost without exception every state by constitution, statute, or judicial decision, requires that all criminal trials be open to the public." 19 Such is the venerable, historical lineage of the right to a public trial.

2. The crucial question of the meaning to be attached this provision remains. The Constitution guarantees an accused the right to a public trial. What does it signify? Offhand it does seem fairly obvious that here is an instance where language is to be given a literal application. There is no ambiguity in the words employed. The trial must be public. It possesses that character when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is to be no ban on such attendance. His being a stranger to the litigants is of no moment. No relationship to the parties need be shown. The thought that lies behind this safeguard is the belief that thereby the accused is afforded further protection, that his trial is likely to be conducted with regularity and not tainted with any impropriety. It is not amiss to recall that Delegate Laurel in his terse summation the importance of this right singled out its being a deterrence to arbitrariness. It is thus understandable why such a right is deemed embraced in procedural due process. 20 Where a trial takes place, as is quite usual, in the courtroom and a calendar of what cases are to be heard is posted, no problem arises. It the usual course of events that individuals desirous of being present are free to do so. There is the well recognized exception though that warrants the exclusion of the public where the evidence may be characterized as "offensive to decency or public morals." 21

What did occasion difficulty in this suit was that for the convenience of the parties, and of the city court Judge, it was in the latter's air-conditioned chambers that the trial was held. Did that suffice to investigate the proceedings as violative of this right? The answer must be in the negative. There is no showing that the public was thereby excluded. It is to be admitted that the size of the room allotted the Judge would reduce the number of those who could be our present. Such a fact though is not indicative of any transgression of this right. Courtrooms are not of uniform dimensions. Some are smaller than others. Moreover, as admitted by Justice Black in his masterly In re Oliver opinion, it suffices to satisfy the requirement of a trial being public if the accused could "have his friends, relatives and counsel present, no matter with what offense he may be charged." 22

Then, too, reference may also be made to the undisputed fact at least fourteen hearings had been held in chambers of the city court Judge, without objection on the part of respondent policemen. What was said by former Chief Justice Moran should erase any doubt as to the weight to be accorded, more appropriately the lack of weight, to any such objection raised. Thus: "In one case, the trial of the accused was held in Bilibid prison. The accused, invoking his right to a public trial, assigned the procedure thus taken as error. The Supreme Court held that as it affirmatively appears on the record that the accused offered no objection to the trial of his case in the place where it was held, his right is deemed waived." 23 The decision referred to, United States v. Mercado, 24 was handed down sixty-eight years ago in 1905.

It does seem that the challenged order of respondent is far from being invulnerable.

3. That is all that need be said as to the obvious merit of this petition. One other objection to the conduct of the proceedings by the city court Judge may be briefly disposed of. Respondent Judge would seek to lend support to an order at war with obvious meaning of a constitutional provision by harping on the alleged abdication by an assistant fiscal of his control over the prosecution. Again here there was a failure to abide by settled law. If any party could complain at all, it is the People of the Philippines for whom the fiscal speaks and acts. The accused cannot in law be termed an offended party for such an alleged failure to comply with official duty. Moreover, even assuming that respondent policemen could be heard to raise such a grievance, respondent Judge ought to have been aware that thereby no jurisdictional defect was incurred by the city court Judge. As was so emphatically declared by Justice J.B.L. Reyes in Cariaga v. Justo-Guerrero: 25 "The case below was commenced and prosecuted without the intervention, mediation or participation of the fiscal or any of his deputies. This, notwithstanding, the jurisdiction of the court was not affected ... but the court should have cited the public prosecutor to intervene ... ." 26

4. There is much to be said of course for the concern displayed by respondent Judge to assure the reality as against the mere possibility of a trial being truly public. If it were otherwise, such a right could be reduced to a barren form of words. To the extent then that the conclusion reached by him was motivated by an apprehension that there was an evasion of a constitutional command, he certainly lived up to what is expected of a man of the robe. Further reflection ought to have convinced him though that such a fear was unjustified. An objective appraisal of conditions in municipal or city courts would have gone far in dispelling such misgivings. The crowded daily calendar, the nature of the cases handled, civil as well as criminal, the relaxed attitude on procedural rules not being strictly adhered to all make for a less tense atmosphere. As a result the attendance of the general public is much more in evidence; nor is its presence unwelcome. When it is remembered further that the occupants of such courts are not chosen primarily for their legal acumen, but taken from that portion of the bar more considerably attuned to the pulse of public life, it is not to be rationally expected that an accused would be denied whatever solace and comfort may come from the knowledge that a judge, with the eyes of the alert court alert to his demeanor and his rulings, would run the risk of being unjust, unfair, or arbitrary. Nor does it change matters, just because, as did happen here, it was in the air-conditioned chambers of a city court judge rather than in the usual place that the trial took place.

WHEREFORE, the writ of certiorari prayed for is granted nullifying, setting aside, and declaring bereft of any legal force or effect the order of respondent Judge Felix Domingo November 29, 1968 for being issued with grave abuse of discretion. The writ of prohibition sought by petitioner is likewise granted, commanding respondent Judge or any one acting in his place to desist from any further action in Criminal Case No. 74830 of the Court of First Instance of Manila other than that of dismissing the same. The preliminary writ of injunction issued by this Court in its resolution of February 3, 1969 against the actuation of respondent Judge is made permanent. With costs against respondent policemen Edgardo Calo and Simeon Carbonnel.

G.R. No. L-44690 March 28, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE TAMPUS Y PONCE, accused whose death sentence is under review.

Cipriano Azada (Counsel de Oficio) for the accused.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Reynato S. Puno and Solicitor Rameo C. de la Cruz for appellee.

AQUINO, J.:

This is an automatic review of the judgment of the Court of First Instance of Rizal, Makati Branch 36, convicting Jose Tampus of murder, sentencing him to death and ordering him to pay the heirs of the victim Celso Saminado, an indemnity of twelve thousand pesos (Criminal Case No. 18510).

In the same decision, Rodolfo Avila, the co-accused of Tampus, was convicted of the same offense and was sentenced to suffer imprisonment of fourteen years and eight months of reclusion temporal as minimum to twenty years of reclusion temporal as maximum and to pay the same indemnity. Avila did not appeal. (He was sentenced to death, together with Frankisio Aro and Pedro Lasala, in another case. Criminal Case No. 1187. The death sentence is under review in L-38141).

The evidence shows that at around ten o'clock in the morning of January 14, 1976, Celso Saminado, 37, a prisoner in the national penitentiary at Muntinlupa, Rizal and a patient in the emergency ward of the prison hospital, went to the toilet to answer a call of nature and to fetch water.

The accused, Tampus, 27, and Avila, 28, prisoners in the same penal institution, who were tubercular patients in the hospital, followed Saminado to the toilet and, by means of their bladed weapons, assaulted him. Tampus inflicted eight incised wounds on Saminado while Avila stabbed him nine times. Saminado died upon arrival at eleven o'clock on that same morning in the prison hospital.

After emerging from the toilet, Tampus and Avila surrendered to a prison guard with their knives (Exh. B and D). They told the guard: "Surrender po kami, sir. Gumanti lang po kami."

The motive of the killing was revenge. Tampus and Avila, both members of the Oxo gang, avenged the stabbing of Eduardo Rosales in December, 1975 by a member of the Batang Mindanao gang, a group hostile to the Oxo gang. Saminado was a member of the Batang Mindanao gang. Rosales was a member of the Oxo gang.

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The officer of the day investigated the incident right away. In his written report submitted on the same day when the tragic occurrence transpired, he stated that, according to his on-the-spot investigation, Avila stabbed Saminado when the latter was armed in the comfort room and his back was turned to Avila, while Tampus stabbed the victim on the chest and neck (Exh. J dated January 14, 1976).

Two days after the killing, or on January 16, another prison guard investigated Tampus and Avila and obtained their extrajudicial confessions wherein they admitted that they assaulted Saminado (Exh. A and C).

There is no question that the guilt of Tampus was established beyond reasonable doubt. He and Avila, with the assistance of counsel de oficio, pleaded guilty to the charge of murder aggravated by treachery, evident premeditation and quasi recidivist

At the arraigmment or after they had pleaded guilty, the trial court called their attention to the gravity of the charge and informed them that the death penalty might be imposed upon them. They reiterated their plea of guilty. The trial court required the fiscal to present the prosecution's evidence. Tampus and Avila took the witness stand, affirmed their confessions and testified as to the manner in which they repeatedly wounded Saminado.

In this review of the death sentence, the counsel de oficio, assigned to present the side of defendant Tampus, contends that he was denied his right to a public trial because the arraignment and hearing were held at the state penitentiary.

The New Bilibid Prison was the venue of the arraignment and hearing, and not the trial court's session hall at Makati, Rizal because this Court in its resolution of July 20, 1976 in L-38141, where Rodolfo Avila was one of the accused-appellants, refused, for ty reasons, to allow him to be brought to Makati. So, this Court directed that the arraignment and trial in the instant case, where Avila was a coaccused of Tampus, be held at the national penitentiary in Muntinlupa.

The record does not show that the public was actually excluded from the place where the trial was held or that the accused was prejudiced by the holding of the trial in the national penitentiary.

There is a ruling that the fact that for the convenience of the witnesses a case is tried in Bilibid Prison without any objection on the part of the accused is not a ground for reversal of the judgment of conviction (U.S. vs. Mercado, 4 Phil. 304).

The accused may waive his right to have a public trial as shown in the rule that the trial court may motu propioexclude the public from the courtroom when the evidence to be offered is offensive to decency or public morals. The court may also, upon request of the defendant, exclude from the trial every person except the officers of the court and the attorneys for the prosecution and defense. (Sec. 14, Rule 119, Rules of Court. See 21 Am Jur 2d 305, sec. 270).

The other contention of counsel de oficio is that the confession of Tampus was taken in violation of Article IV of the Con constitution which provides:

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

As the confession in this case was obtained after the Constitution took effect, section 20 applies thereto (People vs. Dumdum, L-35279, July 30, 1979).

There is no doubt that the confession was voluntarily made. The investigator in taking it endeavored, according to his understanding, to comply with section 20, as shown in the following parts of the confession.

Ang may salaysay matapos maipabatid sa kanya ang kanyang mga karapatan tungkol sa pagbibigay ng malayang salaysay sa ngayon sa ipinag-uutos ng panibagong Saligang Batas ay kusang loob na nagsasabi ng mga sumusunod bilang sagot sa mga tanong ng tagasiyasat:

xxx xxx xxx

6. Katulad sa mga bagay-bagay na ipinaliwanag ko saiyo kanina ay uulitin ko sa iyo na ikaw ay aking tinawagan dito sa aming tanggapan dahil sa ibig kitang maimbistiga tungkol sa pagkakapatay sa isang bilanggo rin na nagngangalan ng Celso Saminado noong petsa 14 ng buwan ding ito ngunit bago tayo magpatuloy ay uulitin ko rin saiyo na sa imbistigasyon naito, ikaw ay hindi ko maaaring pilitin, takutin o gamitan ng puwersa para makapagbigay ng salaysay o statement.

Na sa imbistigasyon naito ikaw ay may karapatan na magkaruon ng isang abogado na magtatanggol saiyo.

Na ikaw ay may karapatan na manahimik o tumanggi na paimbistiga. Ngayon at maulit ko saiyo ang mga karapatan mong ito, ikaw bay magpapatuloy pa sa pagbibigay ng salaysay bilang sagot sa alin mang itatanong ko saiyo Sagot Opo, sir. (Exh. A).

However, counsel de oficio points out that before the confession was taken by investigator Buenaventura de la Cuesta on January 16, 1976, Tampus was interrogated two days before, or on the day of the killing, by the officer of the day, Vivencio C. Lahoz, and that at that alleged custodial interrogation, Tampus was not informed as to his rights to have counsel and to remain silent.

The truth is that, even before Lahoz investigated the killing, Tampus and Avila had already admitted it when, after coming out of the toilet, the scene of the crime, they surrendered to Reynaldo S. Eustaquio, the first guard whom thuy encountered, and they revealed to him that they had committed an act of revenge. That spontaneous statement, elicited without any interrogation, was part of the res gestae and at the same time was a voluntary confession of guilt.

Not only that. The two accused, by means of that statement given freely on the spur of the moment without any urging or suggestion, waived their right to remain silent and to have the right to counsel. That admission was confirmed by their extrajudicial confession, plea of guilty and testimony in court. They did not appeal from the judg ment of conviction.

Under the circumstances, it is not appropriate for counsel de oficio to rely on the rulings in Escobedo vs. Illinois,378 U.S. 478,12 L. ed. 2nd 977 and Miranda vs. Arizona, 384 U.S. 436, 16 L. ed. 2nd 694, regarding the rights of the accused to be assisted by counsel and to remain silent during custodial interrogation.

It should be stressed that, even without taking into account Tampus' admission of guilt, confession, plea of guilty and testimony, the crime was proven beyond reasonable doubt by the evidence of the prosecution.

It is further contended that after the fiscal had presented the prosecution's evidence and when counsel de oficio called upon Tampus to testify, the trial court should have advised him of his constitutional right to remain silent. That contention is not well-taken considering that Tampus pleaded guilty and had executed an extrajudicial confession (U.S. vs. Binayoh, 35 Phil. 23).

The court during the trial is not duty-bound to apprise the accused that he has the right to remain silent. It is his counsel who should claim that right for him. If he does not claim it and he calls the accused to the witness stand, then he waives that right (U.S. vs. Rota, 9 Phil. 426; U.S. vs. Grant, 18 Phil. 122; 4 Moran's Comments on the Rules of Court, 1970 Ed., p. 196).

The crime was correctly characterized by the prosecutor and the trial court as murder. The two accused, Tampus and Avila, as co-conspirators, made a deliberate and sudden attack upon the unarmed victim, while he was inside the toilet, three meters wide and three meters long. The accused resorted to a mode of assault which insured the consummation of the killing without any risk to themselves arising from any defense which the victim could have made. Indeed, because of the unexpected attack, he was not able to make any defense at all (61 tsn). Hence,alevosia qualifies the killing as murder.

Evident premeditation is also aggravating. The evidence shows beyond peradventure of doubt that Tampus and Avila planned the killing by providing themselves with bladed weapons and waiting for an opportunity to kill Saminado and thus satisfy their desire for revenge.

As alleged in the information and as shown in his prison record, Exhibit H, Tampus was a quasi-recidivist. At the time of the assault, he was serving sentences for homicide and evasion of service of sentence. Because of the special aggravating circumstance of quasi recidivist the penalty for murder, which is reclusion temporal to death, should be imposed in its maximum period and that is death (Art. 160, Revised Penal Code).

The mitigating circumstances of plea of guilty and voluntary surrender to the authorities, which can be appreciated in favor of Tampus, cannot offset quasi-recidivism nor reduce the penalty. When death is prescribed as a single indivisible penalty, it shall be applied regardless of any generic mitigating circumstances (Art. 63, Revised Penal Code).

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However, for lack of the requisite ten votes, the death penalty cannot be affirmed. Hence, it should be commuted to reclusion perpetua.

WHEREFORE, the lower court's judgment as to Jose Tampus is modified. He is sentenced to reclusion perpetua.The lower court's judgment as to his civil liability is affirmed. Costs de officio G.R. NO. 175939 : April 3, 2013 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CHAD MANANSALA y LAGMAN, Accused-Appellant. DECISION BERSAMIN, J.: The due recognition of the constitutional right of an accused to be informed of the nature and cause of the accusation through the criminal complaint or information is decisive of whether his prosecution for a crime stands or not. The right is not transgressed if the information sufficiently alleges facts and omissions constituting an offense that includes the offense established to have been committed by the accused. The Case Chad Manansala y Lagman seeks to reverse the decision promulgated on July 26, 2006, whereby the Court of Appeals (CA)1 affirmed .with modification his conviction for the illegal possession and control of 750 grams of dried marijuana leaves in violation of Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972) that the Regional Trial Court (RTC), Branch 74, Olongapo City had handed down through its decision dated February 1, 2000, 2 sentencing him to suffer the penalties of "reclusion perpetua maximum or imprisonment from thirty (30) years and one (1) day to forty (40) years and to pay the fine of Seven Hundred Fifty (P750,000.00) Thousand Pesos, with subsidiary imprisonment." Antecedents The information filed on October 20, 1994 alleged:chanroblesvirtualawlibrary That on or about the nineteenth (19th) day of October, 1994, in the City of Olongapo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being lawfully authorized did then and there willfully, unlawfully and knowingly engage in selling, delivering, giving away to another and distributing more or less 750 grams or 3/4 kilo of marijuana dried leaves placed in a small wooden box inside the cabinet, which are prohibited drugs, found in his possession and control. CONTRARY TO LAW.3chanroblesvirtualawlibrary To substantiate the charge, the Prosecution showed the following. On October 18, 1994 the Philippine National Police in Olongapo City (PNP) conducted a test-buy operation against Manansala, a suspected dealer of marijuana. On the same date, following the test-buy, the PNP applied for and obtained a search warrant from the RTC, Branch 72, Olongapo City (Search Warrant No. 8-94) to authorize the search for and seizure of prohibited drugs in Manansala's residence located at No. 55 Johnson Extension, Barangay East Bajac Bajac, Olongapo City.4 SPO4 Felipe P. Bolina and other elements of the PNP, accompanied by Barangay Chairman Reynaldo Manalang of Barangay East Bajac Bajac, conducted the search of Manansala's house at around 5:30 a.m. on October 19, 1994. The search yielded the 750 grams of dried marijuana leaves subject of the information, which the search team recovered from a wooden box placed inside a cabinet. Also seized was the amount of P655.00 that included the two marked P50.00 bills bearing serial numbers SNKJ812018 and SNMN426747 used during the test buy.5chanroblesvirtualawlibrary All the seized articles were inventoried, and Manansala himself signed the certification to that effect, along with his father, Jose Manansala, and Barangay Captain Manalang.6 The certification listed the following seized articles, to wit: (a) one kilo, more or less, of suspected dried marijuana leaves; (b) rolling paper; and (c) money amounting to P655.00. SPO4 Bolina and his team brought Manansala to Camp Cabal in Olongapo City, where they turned over the seized articles to the evidence custodian, SPO2 Marcelino R. Sapad. At around 8:20 a.m. of October 20, 1994, the seized articles were submitted to the PNP Crime Laboratory in Camp Olivas, San Fernando, Pampanga for qualitative examination. The PNP Crime Laboratory later issued Technical Report No. D-396-94,7 to wit:chanroblesvirtualawlibrary SPECIMEN SUBMITTED:chanroblesvirtualawlibrary Spmn "A" One (1) big transparent plastic bag containing two (2) rectangular bricks of dried suspected MARIJUANA fruiting tops having a total weight of seven hundred fifty five (755) grams. Spmn "B" One (1) medium size plastic bag containing dried suspected MARIJUANA fruiting tops weighing 9.045 grams. x x x. PURPOSE OF LABORATORY EXAMINATION:chanroblesvirtualawlibrary To determine the presence of any prohibited and/or regulated drug in the above-stated specimen. x x x. FINDINGS:chanroblesvirtualawlibrary Qualitative examination conducted on the above-stated specimen gave POSITIVE result for MARIJUANA, a prohibited drug. x x x. CONCLUSION:chanroblesvirtualawlibrary Spmns "A" and "B" contain MARIJUANA, a prohibited drug.8chanroblesvirtualawlibrary Manansala pleaded not guilty on November 22, 1994. 9chanroblesvirtualawlibrary On January 4, 1995, First Asst. City Prosecutor Mario F. Manalansan filed a motion for the admission of an amended information, ostensibly to modify the offense charged from illegal sale of prohibited drugs under Section 4 of Republic Act No. 6425 to illegal possession of prohibited drugs under Section 8 of the same law.10 But the RTC did not act on the motion. Nonetheless, the trial proceeded, with the Prosecution establishing the matters earlier summarized. In his turn, Manansala denied the charge, alleging that he had been the victim of a frame-up. His version follows. On October 19, 1994, military men clad in civilian attire arrived at his house and arrested him without any warrant, and brought him to an office he referred to simply as S2, then to a club located on Magsaysay Street in Olongapo City known as Dorris 2. His captors mugged and then detained him when he refused to admit the sale and possession of marijuana. They turned down his request to be brought to a hospital for the treatment of the injuries he thereby sustained. As of the time of his testimony, he conceded that he could not identify his captors and whoever had maltreated him, except SPO4 Bolina whom he recognized in court when the latter testified at the trial .11chanroblesvirtualawlibrary

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Decision of the RTC As stated, the RTC convicted Manansala for illegal possession of marijuana in violation of Section 8 of Republic Act No. 6425, holding thus:chanroblesvirtualawlibrary The Information to which accused pleaded "not guilty" charges that accused willfully, unlawfully and knowingly x x x engage in selling, delivering, giving away to another and distributing x x x falling under the more embracing term known as "drug pushing". The alleged act of allegedly knowingly selling or pushing prohibited drugs by the accused was however, not sufficiently proven. The member of the team who is alleged to have acted as a poseur-buyer of the illegal stuff from the accused was not presented as a witness, hence, the testimony of SPO4 Felipe Bolina, to the effect that during the surveillance conducted prior to the application of the search warrant, a member of the team acting as poseur buyer was able to buy marijuana from the accused, cannot be given weight, being hearsay. However, the fact that the enforcing team where witness Bolina is a member, was able to find marijuana leaves in the custody, possession and control of the accused, in the course of the enforcement of the search warrant and has been established by the prosecution beyond reasonable doubt, without controversion but the denial of the accused, which like alibi, is the weakest defense, this Court is convinced that accused is guilty instead of violating Section 8, Arti cle II of the Dangerous Drugs Act as amended, a crime that is necessarily included in the crime of drug pushing or dealing, for which the accused have been charged with. In light of these circumstances, this Court has no option that to find accused guilty and liable for the crime proved. Since the date of the commission of the crime as proved is October 19, 1994, the provisions of Republic Act No. 7659, in so far as the imposable penalty is concerned, will find application. WHEREFORE, finding accused Chad Manansala y Lagman, GUILTY of Violation of Section 8, Article II of Republic Act No. 6425 as amended by Republic Act No. 7659, he is hereby sentenced to suffer the penalty of reclusion perpetua maximum or imprisonment from thirty (30) years and one (1) day to forty (40) years and to pay the fine of Seven Hundred Fifty (P750,000.00) Thousand Pesos, with subsidiary imprisonment. Costs de oficio. SO ORDERED.12chanroblesvirtualawlibrary Ruling of the CA On intermediate appeal, the CA reviewed the conviction upon the following issues, namely:chanroblesvirtualawlibrary 1. That the conviction, being anchored on evidence procured by virtue of an invalid warrant, was erroneous;cralawlibrary 2. That the RTC erred in convicting the accused for illegal possession of prohibited drug on the misplaced and inaccurate theory that the offense in violation of Section 8 of Republic Act No. 6425 was necessarily included in the offense in violation of Section 4 of Republic Act No. 6425; and 3. That the RTC overlooked, misinterpreted, misapplied and misrepresented facts and evidences of substance and importance that, if weighed, assayed and considered were enough to acquit the accused.13chanroblesvirtualawlibrary On July 26, 2006, the CA promulgated its assailed decision, affirming the conviction subject to modification, viz:chanroblesvirtualawlibrary WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and the assailed Decision AFFIRMED with MODIFICATION that the accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of seven hundred fifty thousand pesos (P750,000.00) with subsidiary imprisonment. Accordingly, the prohibited drugs confiscated from the appellant are hereby ordered transmitted to the Philippine Drug Enforcement Agency (PDEA) through the Dangerous Drugs Board for proper disposition. Without pronouncement as to costs. SO ORDERED.14chanroblesvirtualawlibrary Hence, this appeal, in which Manansala reiterates the errors he already assigned before the CA. Ruling The appeal lacks merit. The information alleged that "on or about the nineteenth (19th) day of October, 1994, in the City of Olongapo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being lawfully authorized did then and there willfully, unlawfully and knowingly engage in selling, delivering, giving away to another and distributing more or less 750 grams or 3/4 kilo of marijuana dried leaves placed in a small wooden box inside the cabinet, which are prohibited drugs, found in his possession and control." The crime thereby charged was a violation of Section 4 of Republic Act No. 6425, as amended by Republic Act No. 7659, 15 which provides:chanroblesvirtualawlibrary Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any such transactions. Arraigned under such information, Manansala pleaded not guilty to it. But instead of finding him guilty of the crime charged after trial, the RTC convicted him for a violation of Section 8, of Republic Act No. 6425, as amended by Republic Act No. 7659, which states:chanroblesvirtualawlibrary Section 8. Possession or Use of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall possess or use any prohibited drug subject to the provisions of Section 20 hereof. On appeal, Manansala assigned as one of the reversible errors committed by the RTC that the trial court had erred in convicting him for illegal possession of prohibited drugs on the misplaced and inaccurate theory that the offense of illegal possession of marijuana in violation of Section 8 was necessarily included in the offense of illegal sale of marijuana in violation of Section 4. The CA disagreed with Manansala, however, and held that his conviction for the illegal possession of marijuana in violation of Section 8 under the information that had alleged the illegal sale of marijuana under Section 4 was proper, giving its reasons as follows:chanroblesvirtualawlibrary xxx Indispensable in every prosecution for the illegal sale of marijuana, a prohibited drug, is the submission of proof that the sale of the illicit drug took place between the poseurbuyer and the seller thereof, coupled with the presentation in court of the corpus delicti as evidence. The element of sale must be unequivocally established in order to sustain a conviction. In the case before Us, the trial court correctly held that the prosecution failed to establish, much less adduce proof, that accused-appellant was indeed guilty of the offense of illegal sale of marijuana. But it is beyond doubt that he was found in possession of the same. While no conviction for the unlawful sale of prohibited drugs may be had under the present circumstances, the established principle is that possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller. In the case before Us, it has been satisfactorily ascertained that the bricks of marijuana confiscated from accused-appellant were the same prohibited drugs subject of the original Information. In this light,

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We find that the court a quo committed no reversible error in convicting the accused-appellant of illegal possession of dangerous drugs under Section 8, Article II of the Dangerous Drugs Act of 1972, as amended. Again, it should be stressed that the crime of unlawful sale of marijuana penalized under Section 4 of RA 6425 necessarily includes the crime of unlawful possession thereof. As borne by the records, it has been sufficiently proven beyond any doubt that the lawful search conducted at the house of the accused yielded a total of 764.045 grams marijuana dried leaves as verified by the PNP Forensic Chemist. Thus, on the face of the positive testimony of the prosecution witness and the presentation of the corpus delicti, it is indubitable that a crime had in fact been committed and that accused-appellant was the author of the same.16chanroblesvirtualawlibrary xxx To properly resolve the appeal, therefore, it is necessary to determine whether the conviction of Manansala for a violation of Section 8, which the information did not allege, instead of for a violation of Section 4, which the information alleged, was not in violation of his constitutional right to be informed of the nature and cause of the accusation brought against him. For sure, there have been many occasions in which the Court has found an accused charged with the illegal sale of marijuana in violation of Section 4 guilty instead of the illegal possession of marijuana in violation of Section 8. In the oft-cited case of People v. Lacerna,17 the Court held as prevailing the doctrine that the illegal sale of marijuana absorbs the illegal possession of marijuana, except if the seller was also apprehended in the illegal possession of another quantity of marijuana not covered by or not included in the illegal sale, and the other quantity of marijuana was probably intended for some future dealings or use by the accused. The premise used in Lacerna was that the illegal possession, being an element of the illegal sale, was necessarily included in the illegal sale. The Court observed thusly:chanroblesvirtualawlibrary In People vs. Manzano, the Court identified the elements of illegal sale of prohibited drugs, as follows: (1) the accused sold and delivered a prohibited drug to another, and (2) he knew that what he had sold and delivered was a dangerous drug. Although it did not expressly state it, the Court stressed delivery, which implies prior possession of the prohibited drugs. Sale of a prohibited drug can never be proven without seizure and identification of the prohibited drug, affirming that possession is a condition sine qua non. It being established that illegal possession is an element of and is necessarily included in the illegal sale of prohibited drugs, the Court will thus determine appellant's culpability under Section 8. From the penal provision under consideration and from the cases adjudicated, the elements of illegal possession of prohibited drugs are as follows: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the prohibited drug.18chanroblesvirtualawlibrary In all the convictions premised on the situation described in Lacerna, however, the involvement of a single object in both the illegal sale as the crime charged and the illegal possession as the crime proved is indispensable, such that only the prohibited drugs alleged in the information to be the subject of the illegal sale is considered competent evidence to support the conviction of the accused for the illegal possession. As such, the illegal possession is either deemed absorbed by or is considered a necessary element of the illegal sale. On the other hand, any other illegal substance found in the possession of the accused that is not part of the subject of the illegal sale should be prosecuted under a distinct and separate information charging illegal possession; otherwise, the fundamental right of the accused to be informed of the nature and cause of the accusation against him would be flagrantly violated. It is true that there was an error in the information's statement of the facts essential to properly describe the offense being charged against Manansala as that of illegal possession of marijuana; and that the error became known to the Prosecution, leading Prosecutor Manalansan to himself file the motion for the admission of the amended information dated January 3, 1995.19 In the motion, Prosecutor Manalansan manifested that the information as filed charged a violation of Section 4; and that during the preliminary investigation, he had concluded that Manansala should have been charged with a violation of Section 8 instead of a violation of Section 4 as far as the 750 grams of dried marijuana leaves seized from his possession during the implementation of Search Warrant No. 8-94 was concerned. The distinct and separate nature of the 750 grams of marijuana leaves from the quantity of marijuana worth P100.00 that was the object of the test buy became all the more evident in Prosecutor Manalansan's letter dated December 28, 1994 addressed to City Prosecutor Prudencio B. Jalandoni. 20chanroblesvirtualawlibrary There, Prosecutor Manalansan stated that the 750 grams of marijuana dried leaves had been seized from the possession Manansala on October 19, 1994 by virtue of the search warrant, while the attributed illegal sale of marijuana had happened on October 18, 1994 during the test buy conducted to support the application of the search warrant. The letter specifically stated:chanroblesvirtualawlibrary xxx 3. The two incidents, the sale on 18 October 1994 and the seizure on 19 October 1994 are separate incidents giving rise to two distinct offenses;cralawlibrary 4. We cannot assume that the accused was engaged in the "sale of prohibited drugs" on 19 October 1994 because he was engaged in it before. There is no evidence to show that the accused was engaged in the sale, administration, delivery, distribution and transportation of drugs as provided under Section 4;cralawlibrary 5. The two (2) P50.00 bills are not enough to prove that the accused was engaged in selling the 750 grams of marijuana leaves. They can prove the sale on 18 October 1994 but cannot qualify his possession of the 750 grams of the drugs. xxx Nonetheless, the conviction of Manansala stands. The CA correctly declared that the illegal possession of marijuana was "a crime that is necessarily included in the crime of drug pushing or dealing, for which the accused have been charged with." The right of Manansala to be informed of the nature and cause of the accusation against him enunciated in Section 14(2), Article III of the 1987 Constitution21 was not violated simply because the information had precisely charged him with selling, delivering, giving away and distributing more or less 750 grams of dried marijuana leaves. Thereby, he was being sufficiently given notice that he was also to be held to account for possessing more or less 750 grams of dried marijuana leaves. As Lacerna and similar rulings have explained, the crime of illegal sale of marijuana defined and punished under Section 4 of Republic Act No. 6425, as amended, implied the prior possession of the marijuana. As such, the crime of illegal sale included or absorbed the crime of illegal possession. The rul e is that when there is a variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged.22 According to Section 5, Rule 120, Rules of Court (1985), the rule then applicable, an offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. WHEREFORE, the Court AFFIRMS the decision promulgated on July 26, 2006; and ORDERS accusedCHAD MANANSALA y LAGMAN to pay the costs of suit.

PEOPLE OF THE PHILIPPINES,

G.R. No. 175602

Plaintiff-Appellee,

Present:

CORONA, C.J., Chairperson,

- versus -

LEONARDO-DE CASTRO,

BERSAMIN,

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DEL CASTILLO, and

VILLARAMA, JR., JJ.

PO2 EDUARDO VALDEZ and EDWIN VALDEZ,

Promulgated:

Accused-Appellants.

January 18, 2012

x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:

The sufficiency of the allegations of the facts and circumstances constituting the elements of the crime charged is crucial in every criminal prosecution because of the ever-present obligation of the State to duly inform the accused of the nature and cause of the accusation.

The accused were tried for and convicted of three counts of murder on January 20, 2005 by the Regional Trial Court (RTC), Branch 86, in Quezon City. They were penalized with reclusion perpetua for each count, and ordered to pay to the heirs of each victimP93,000.00 as actual damages, P50,000.00 as civil indemnity, and P50,000.00 as moral damages.

On appeal, the Court of Appeals (CA) upheld the RTC on July 18, 2006, subject to the modification that each accused pay to the heirs of each victim P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages, and P25,000.00 as exemplary damages, plus costs of suit. 1

The accused came to the Court to seek acquittal. On May 9, 2007, however, accused Edwin Valdez filed a motion to withdraw appeal, which the Court granted on October 10, 2007, thereby deeming Edwins appeal closed and terminated.2 Hence, the Court hereby resolves only the appeal of PO2 Eduardo Valdez.

Antecedents

The Office of the City Prosecutor of Quezon City charged the two accused in the RTC with three counts of murder for the killing of Ferdinand Sayson, Moises Sayson, Jr., and Joselito Sayson, alleging:

Criminal Case No. 00-90718

That on or about the 1st day of March, 2000, in Quezon City, Philippines, the above-named accused conspiring together, confederating with and mutually helping each other, with intent to kill, qualified with treachery, evident premeditation and abuse of superior strength did, then and there, willfully, unlawfully and feloniously, assault, attack and employ personal violence upon the person of one FERDINAND SAYSON Y DABOCOL by then and there shooting him with a gun, hitting him on his head, thereby inflicting upon him serious and mortal wound which was the direct and immediate cause of his death, to the damage and prejudice of the heirs of the said FERDINAND SAYSON Y DABOCOL.

CONTRARY TO LAW.3

Criminal Case No. 00-90719

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That on or about the 1st day of March, 2000, in Quezon City, Philippines, the above-named accused conspiring together, confederating with and mutually helping each other, with intent to kill, qualified with treachery, evident premeditation and abuse of superior strength did, then and there, willfully, unlawfully and feloniously, assault, attack and employ personal violence upon the person of one MOISES SAYSON, JR. Y DABOCOL by then and there shooting him several times with a gun, hitting him on his face and chest, thereby inflicting upon him serious and mortal wound which was the direct and immediate cause of his death, to the damage and prejudice of the heirs of the said MOISES SAYSON, JR. Y DABOCOL.

CONTRARY TO LAW.4

Criminal Case No. 00-90720

That on or about the 1st day of March, 2000, in Quezon City, Philippines, the above-named accused conspiring together, confederating with and mutually helping each other, with intent to kill, qualified with treachery, evident premeditation and abuse of superior strength did, then and there, willfully, unlawfully and feloniously, assault, attack and employ personal violence upon the person of one JOSELITO SAYSON Y DABOCOL by then and there shooting him with a gun, hitting him on his back, thereby inflicting upon him serious and mortal wound which was the direct and immediate cause of his death, to the damage and prejudice of the heirs of the said JOSELITO SAYSON Y DABOCOL.

CONTRARY TO LAW.5

The Office of the Solicitor General (OSG) summarized the States evidence of guilt as follows:

On March 1, 2000, at around 8:00 oclock in the evening, Estrella Sayson, (Estrella) was at the canteen (which also includes a jai alai betting station) located at 77 Corregidor Street, Bago Bantay, Quezon City. Estrella was preparing for the celebration of the birthday of her second husband, Wilfredo Lladones , which was held later in the evening. Estrellas son, the deceased Moises Sayson, a former po liceman, and his wife, Susan Sayson (Susan) owned the said canteen and managed the betting station. At about 9:00 oclock in the evening, Estrellas other sons Joselito Sayson (Joselito) and Ferdinand Sayson (Ferdinand) arrived at the canteen to greet their stepfather. Estrellas family and other visitors ate and enjoyed themselves at the party (pp. 3 -5, TSN, November 29, 2000; pp. 3-6, TSN, February 6, 2001; pp. 3-4, TSN, July 31, 2001).

At about 10:00 oclock in the evening, the celebration was interrupted with the arrival of Eduardo and Edwin, who alighted from a motorcycle in front of the jai alai fronton. Eduardo and Edwin asked the jai alai teller, Jonathan Rubio (Jonathan), to come out. Jonathan was then attending to customers who were buying jai alai tickets. Moises approached Eduardo and Edwin and tried to reason with them. Estrella saw Eduardo and Edwin armed with guns. She tried to prevent Moises from going near Ed win and Eduardo. Moises did not heed his mothers warning. He went out and advised Eduardo and Edwin not to force Jonathan to go out of the fronton. Estrella then heard one of the accused-appellants threaten Moises with the words Gusto mo unahin na kita? Moises replied huwag. Successive shots were thereafter heard. Moises fell and was continuously fired upon even after he was sprawled on the ground. Ferdinand immediately approached the scene to help his brother Moises. Ferdinand, however was shot on the left temporal portion of his head and fell. Somebody told Joselito to run away, but he was hit at the back while running. Joselito fell on a burger machine (pp. 7-11, TSN, November 29, 2000; pp. 6-10, TSN, February 6, 2001; pp. 5-10, TSN, July 31, 2001; pp. 2-6, September 5, 2001).

After shooting the Sayson brothers, Eduardo and Edwin escaped from the scene of the crime (p. 10, TSN, February 6, 2001). 6

In turn, the appellants brief filed by the Public Attorneys Office (PAO) rendered the version of the accused, to wit:

xxx [A]t about 10:00 oclock in the evening, Heidi dela Cruz (a barbecue vendor) and Noel Valad -on (a tricycle driver) saw accused Edwin Valdez alight from a bus. The latter bought P100.00 worth of barbecue from Heidi then proceeded towards home. He was walking along Corregidor Street when Heidi saw Jun Sayson (Moises), then holdi ng a gun, block his (Edwins) way. Jun Sayson poked a gun at accused Edwin, shouting, Putang-ina mo, papatayin kita. The latter raised both his hands and said Wag kuya Jun, maawa ka.

Accused Eduardo Valdez (a policeman), then carrying his 6-year old child, was walking when his way was likewise blocked but this time, by the siblings Joselito and Ferdinand as well as their stepfather. Joselito twisted one of his (Eduardos) hands at his back while his (Joseltios) stepfather held the other. Ferdinand fir ed a gun but accused Eduardo was able to evade. Joselito, who was positioned behind Eduardo, was hit. He slumped and bled. He asked Heidi to inform his family that he was hit. Heidi ran away. She saw Jun (Moises) and accused Edwin grappling. Thereafter, she heard gunshots.

Accused Eduardo ducked during the firing. He pretended to be dead. Ferdinand stopped firing. Accused Eduardos s on approached him crying. Accused thereafter, brought his son home, took his service firearm and on his way back to the scene of the incident when he met General Jesus Almadin, his commanding officer (CO). He reported the incident and sought for advice. He was told to take a rest and go back on (sic) the following day. He accompanied his CO to Camp Crame. He surrendered his firearm to Sr./Insp. Rodolfo Araza of the CIU. Accused Edwin Valdez likewise surrendered (TSN dated 05 February 2003; pp. 3-9; 12 March 2003, pp. 2-16; 11 August 2003, pp. 2-18, 1 September 2003, pp. 3-10; 15 October 2003, pp. 2-8; 03 December 2003, pp. 2-4; 18 February 2004, pp. 2-9; 24 March 2004, pp. 3-9; 10 April 2004, pp. 2-7; 07 June 2004, pp. 2-25).7

The RTC convicted the two accused of three counts of murder and sentenced them to suffer reclusion perpetua for each count of murder.8

On appeal, the CA affirmed the convictions.9

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Issues In this appeal, PO2 Valdez assails the credibility of the States witnesses by pointing to inconsistencies and weaknesses in their testimonies; challenges the finding of conspiracy between the accused; and contends that the State did not establish the qualifying circumstance of treachery. 10

Ruling

The Court affirms the convictions, but holds PO2 Valdez guilty only of three counts of homicide due to the failure of the informations to allege the facts and circumstances constituting treachery.

First of all, PO2 Valdez insists that the States witnesses (Susan Sayson, Marites Sayson and Estrella Sayson) did not really see the events as they transpired; and that they wrongly identified the two accused as the persons who had shot and killed the victims; and that the victims were themselves the aggressors.

The CA rejected PO2 Valdezs insistence, holding thus:

In their Brief, the accused-appellants desperately attempted to discredit the testimonies of witnesses Susan, Marites and Estrella. They claimed that a p erusal of Estrellas testimony would cast doubt on her statement that she actually witnessed the shooting incident. The accused-appellants claimed that Estrella Sayson did not actually see who allegedly threatened her son Moises with the words Gusto mo unahin na kita? The accused-appellants also claimed that Estrella also failed to see who shot Moises. They likewise assailed the testimonies of Susan and Marites as being incredible. They said that Susan testified that she was in a state of shock after the incident and that she could not speak; yet she was still able to give her statement on the same day the incident allegedly happened. The accused-appellants also said that Marites testified that she was only about five (5) meters away from them (accused-appellants) when they alighted from their motorcycle; but that, interestingly, she only learned from her husband Joselito that the accused-appellants were looking for a certain Jonathan.

We are not persuaded. In her testimony, Estrella satisfactorily explained her purported failure to see who between the accused-appellants threatened Moises with the words Gusto mo unahin kita? and who shot her son Moises, by pointing out that she was then facing Moises because she was preventing him from approaching the accused-appellants, who were armed with short firearms. Estrella categorically stated that she saw the accused-appellants alight from their motorcycle on March 1, 2000. She could not have been mistaken about the identity of the accused-appellants for the simple reason that they are her neighbors and that their (the accused-appellants) father is her cumpadre. When the incident happe ned, the accused-appellants were about eight (8) to ten (10) meters away from where she and her son Moises were standing. She also saw with her own eyes how her son Moises fell after she heard successive bursts of gunshots (approximately [9] shots) coming from where the accused-appellants were standing.11

Considering that the CA thereby affirmed the trial courts findings of fact, its calibration of t he testimonies of witnesses and its assessment of their probative weight, as well as its conclusions, the Court accords high respect, if not conclusive effect, to the CAs findings. 12 The justification for this is that trial court was in the best position to assess the credibility of witnesses by virtue of its firsthand observation of the demeanor, conduct and attitude of the witnesses under grilling examination. The only time when a reviewing court was not bound by the trial courts assessment of credibility arises upon a s howing of a fact or circumstance of weight and influence that was overlooked and, if considered, could affect the outcome of the case.13 No such fact or circumstance has been brought to the Courts attention.

It is not trite to remind that a truth-telling witness is not always expected to give an error-free testimony because of the lapse of time and the treachery of human memory; and that inaccuracies noted in testimony may even suggest that the witness is telling the truth and has not been rehearsed. 14 To properly appreciate the worth of testimony, therefore, the courts do not resort to the individual words or phrases alone but seek out the whole impression or effect of what has been said and done.15

Secondly, PO2 Valdez argues that the three victims were themselves the aggressors who had attacked to kill him and his brother. He narrated during the trial that he dodged the bullet fired from the gun of Ferdinand (one of the victims), causing the bullet to fatally hit Joselito (another victim); that he played dead to avoid being shot at again, and walked away with his terrified son only after the way was clear for them to leave; and that he heard gunshots while Edwin and Jun (the third victim) grappled for control of a gun, and assumed that the gunshots had hit and killed Jun and Ferdinand. 16

The argument of PO2 Valdez is bereft of factual merit.

It is fundamental that the question as to who between the accused and the victim was the unlawful aggressor is a question of fact addressed to the trial court for determination based on the evidence on record.17 The records show that the version of PO2 Valdez was contrary to the established facts and circumstances showing that he and Edwin, then armed with short firearms, had gone to the jai alaibetting station of Moises to confront Jonathan Rubio, the teller of the betting booth then busily attending to bettors inside the booth; that because the accused were calling to Rubio to come out of the booth, Moises approached to pacify them, but one of them threatened Moises: Gusto mo unahin na kita?; that immediately after Moises replied: Huwag!, PO2 Valdez fired several shots at Moises, causing him to fall to the ground; that PO2 Valdez continued firing at the fallen Moises; that Ferdinand (another victim) rushed to aid Moises, his brother, but Edwin shot Ferdinand in the head, spilling his brains; that somebody shouted to Joselito (the third victim) to run; that Edwin also shot Joselito twice in the back; and that Joselito fell on a burger machine. The shots fired at the three victims were apparently fired from short distances.

The testimonial accounts of the States witnesses entirely jibed with the physical evidence. Specifically, the medico-legal evidence showed that Ferdinand had a gunshot wound in the head;18 that two gunshot wounds entered Joselitos back and the right side of his neck;19 and that Moises suffered a gunshot wound in the head and four gunshot wounds in the chest.20 Also, Dr. Wilfredo Tierra of the NBI Medico-Legal Office opined that the presence of marginal abrasions at the points of entry indicated that the gunshot wounds were inflicted at close range. 21 Given that physical evidence was of the highest order and spoke the truth more eloquently than all witnesses put together,22 the congruence between the testimonial recollections and the physical evidence rendered the findings adverse to PO2 Valdez and Edwin conclusive.

Thirdly, conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit the felony.23 Proof of the actual agreement to commit the crime need not be direct because conspiracy may be implied or inferred from their acts. 24 Herein, both lower courts deduced the conspiracy between the accused from the mode and manner in which they perpetrated the killings. We are satisfied that their deduction was warranted.

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Based on the foregoing, PO2 Valdez cannot now avoid criminal responsibility for the fatal shooting by Edwin of Ferdinand and Joselito. Both accused were convincingly shown to have acted in concert to achieve a common purpose of assaulting their unarmed victims with their guns. Their acting in concert was manifest not only from their going together to the betting station on board a single motorcycle, but also from their joint attack that PO2 Valdez commenced by firing successive shots at Moises and immediately followed by Edwins shooting of F erdinand and Joselito one after the other. It was also significant that they fled together on board the same motorcycle as soon as they had achieved their common purpose.

To be a conspirator, one did not have to participate in every detail of the execution; neither did he have to know the exact part performed by his co-conspirator in the execution of the criminal acts.25 Accordingly, the existence of the conspiracy between PO2 Valdez and Edwin was properly inferred and proved through their acts that were indicative of their common purpose and community of interest.26

And, fourthly, it is unavoidable for the Court to pronounce PO2 Valdez guilty of three homicides, instead of three murders, on account of the informations not sufficiently alleging the attendance of treachery.

Treachery is the employment of means, methods, or forms in the execution of any of the crimes against persons which tend to directly and specially insure its execution, without risk to the offending party arising from the defense which the offended party might make. 27 It encompasses a wide variety of actions and attendant circumstances, the appreciation of which is particular to a crime committed. Corollarily, the defense against the appreciation of a circumstance as aggravating or qualifying is also varied and dependent on each particular instance. Such variety generates the actual need for the State to specifically aver the factual circumstances or particular acts that constitute the criminal conduct or that qualify or aggravate the liability for the crime in the interest of affording the accused sufficient notice to defend himself.

It cannot be otherwise, for, indeed, the real nature of the criminal charge is determined not from the caption or preamble of the information, or from the specification of the provision of law alleged to have been violated, which are mere conclusions of law, but by the actual recital of the facts in the complaint or information. 28 In People v. Dimaano,29 the Court elaborated:

For complaint or information to be sufficient, it must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts therein recited. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the facts that constitute the offense. [emphasis supplied]

The averments of the informations to the effect that the two accused with intent to kill, qualified with treachery, evident premeditation and abuse of superior strength did xxx assault, attack and employ personal violence upon the victims by then and there shooting [them] with a gun, hitting [them] on various parts of their bodies which [were] the direct and immediate cause of [their] death[s] did not sufficiently set forth the facts and circumstances describing how treachery attended each of the killings. It should not be difficult to see that merely averring the killing of a person by shooting him with a gun, without more, did not show how the execution of the crime was directly and specially ensured without risk to the accused from the defense that the victim might make. Indeed, the use of the gun as an instrument to kill was not per se treachery, for there are other instruments that could serve the same lethal purpose. Nor did the use of the term treachery constitute a sufficient averment, for that term, standing alone, was nothing but a conclusion of law, not an averment of a fact. In short, the particular acts and circumstances constituting treachery as an attendant circumstance in murder were missing from the informations.

To discharge its burden of informing him of the charge, the State must specify in the information the details of the crime and any circumstance that aggravates his liability for the crime. The requirement of sufficient factual averments is meant to inform the accused of the nature and cause of the charge against him in order to enable him to prepare his defense. It emanates from the presumption of innocence in his favor, pursuant to which he is always presumed to have no independent knowledge of the details of the crime he is being charged with. To have the facts stated in the body of the information determine the crime of which he stands charged and for which he must be tried thoroughly accords with common sense and with the requirements of plain justice, for, as the Court fittingly said in United States v. Lim San: 30

From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. xxx. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the caption of the information from the facts alleged in the body of that pleading is a conclusion of law made by the fiscal. In the designation of the crime the accused never has a real interest until the trial has ended. For his full and complete defense he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important question to him is, Did you perform the acts alleged in the manner alleged? not Did you commit a crime named murder. If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor. It is the province of the court alone to say what the crime is or what it is named. xxx. (emphasis supplied)

A practical consequence of the non-allegation of a detail that aggravates his liability is to prohibit the introduction or consideration against the accused of evidence that tends to establish that detail. The allegations in the information are controlling in the ultimate analysis. Thus, when there is a variance between the offense charged in the information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in the offense charged, or of the offense charged included in the offense proved. 31 In that regard, an offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the information, constitute the latter; an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. 32

We now fix the penalty for each count of homicide.

Pursuant to Article 249 of the Revised Penal Code, the penalty for homicide is reclusion temporal.33 There being no circumstances modifying criminal liability, the penalty is applied in its medium period ( i.e., 14 years, 8 months and 1 day to 17 years and 4 months). Under the Indeterminate Sentence Law, the minimum of the indeterminate sentence is taken from prision mayor, and the maximum from the medium period of reclusion temporal. Hence, the Court imposes the indeterminate sentence of 10 years of prision mayor as minimum to 17 years of reclusion temporal as maximum for each count of homicide.

WHEREFORE, the decision of the Court of Appeals promulgated on July 18, 2006 is MODIFIED by finding PO2 Eduardo Valdez guilty beyond reasonable doubt of three counts of HOMICIDE, and sentencing him to suffer for each count the indeterminate sentence of 10 years of prision mayor as minimum to 17 years of reclusion temporal as maximum; and to pay to the respective heirs of the late Ferdinand Sayson, Moises Sayson, Jr., and Joselito Sayson the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate damages.

The accused shall pay the costs of suit.

THE PEOPLE OF THE PHILIPPINES, - versus

G.R. No. 167756

Promulgated:

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JERRY NAZARENO, Appellant. April 8, 2008

x------------------------------------ --------------x DECISION

REYES, R.T., J.:

IN this rape case, the Court is confronted with remedial questions on (a) specificity of dates in the Information; (b) quantum of proof; and

(c) concurrence of allegation and proof.

For Our final review is the Decision[1] of the Court of Appeals (CA) affirming with modification appellants conviction for rape of his two minor daught ers. The Facts In line with Our ruling in People v. Cabalquinto,[2] the real names of the rape victims will not be disclosed. We will instead use fictitious initials to represent them throughout the decision. The personal circumstances of the victims or any other information tending to establish or compromise their identities will likewise be withheld. Private complainants AAA and BBB are the legitimate daughters of appellant Jerry Nazareno with CCC. AAA was born on April 30, 1983.2-a BBB, the second child of the union, was born on June 24, 1984.2-b At that time, appellant and CCC were yet to wed. It was only in 1987 that the couple formally tied the knot in simple church ceremonies. Three more children sprang from the marriage since then. [3] Sometime in 1990, AAA was inside a room in their house located at Barangay Codon, Municipality of San Andres, Province of Catanduanes. All of her siblings were playing in their yard. Unexpectedly, appellant entered the room, and without saying a word, held AAA tightly. He then directed AAA to crouch on the floor and raise her buttocks ( baka-bakahan). While in that position, appellant removed the girls short pants and underwear. He then proceeded to remove his own undergarments. Subsequently, appellant forcibly entered AAA from behind, inserting his penis into the girls vagina. She was seven.[4] Appellant threatened AAA not to reveal what happened to her to anyone; or else, she and the rest of her family would be killed. Expectedly, AAA suffered in silence. She feared for her life as well as that of her mother and siblings.[5] AAAs ordeal with her father became a regular fare. Appellant would rape her whenever they were left alone in the house. [6] CCC was rarely home because she attended to farm work and accepted laundry jobs from neighbors to support the family. Appellant was jobless and stayed at home. [7] On March 25, 1996, appellant again imposed his bestial urges on AAA. AAA distinctly remembered the incident because she graduated from primary school on that day. At around 2:00 p.m., appellant and AAA were left alone in the house. He told AAA to remove her shorts and panty. Appellant then asked her to crouch on the floor and raise her buttocks. Just as he did before, appellant positioned himself behind the girl and then inserted his penis into her vagina. All that time, appellants hands were clutching the girls back. [8] Coincidentally, AAAs graduation from elementary school also marked the end of appellants sexual abuses. BBB suffered the same fate as her older sister AAA. Sometime in January 1992, appellant and BBB were left alone in their house. Suddenly, appellant told BBB to kneel on all fours (pig baka-baka).[9] Appellant then removed BBBs shorts and panties. He then removed his maong pants. Appellant positioned himself at BBBs rear and then inserted his penis into the young girls vagina. At the time of the rape, BBB was only seven years old and was a Grade II pupil. [10] Appellant continued raping BBB, using the girl for his sexual gratification every other day. From BBBs account, appellant would rape her fifteen times in a month. Every time, appellant would threaten her that he would kill all of them should she tell anyone what was happening between them. [11] On October 27, 1998, AAA and BBB found the courage to tell their mother CCC what appellant had been doing to them. AAA accidentally found that BBB was likewise being subjected to sexual abuses by their father. Gathering strength from one another, AAA and BBB tearfully recounted to their mother their individual ordeals. CCC was devastated.[12] On December 6, 1998, appellant again attempted to force himself on BBB. He inserted his finger into BBBs vagina. BBB felt extreme pain from the nails protruding from her fathers fingers. That was the last time appellant abused BBB.[13] On February 16, 1999, CCC, with AAA and BBB, secretly went to the Municipal Building of San Andres, Catanduanes to file a complaint against appellant for the rape of AAA and BBB. AAA and BBB were immediately attended to by personnel from the Department of Social Welfare and Development. The two were later examined at the JMA District Hospital by Dr. Erlinda H. Arcilla. CCC testified as to the age of the victims AAA and BBB at the time of the commission of the crimes. She affirmed that AAA was born on April 30, 1983 while BBB was born on June 24, 1984. [14] CCC narrated that she was shocked when she heard her two daughters complain that they were raped by their own father. She knew appellant to be temperamental. He would hit AAA and BBB at the slightest provocation. She failed to act immediately on her daughters plight for fear of her husband. CCC was convinced that appellant might make good his threats to kill all of them. [15] Dr. Arcilla narrated that she examined both AAA and BBB on February 16, 1999. During her examination, she uncovered old healed hymenal lacerations on both AAA and BBB at the 3 oclock, 6 oclock and 9 oclock positions. The lacerations suggested that the two girls were no longer in a virgin state. [16] On March 17, 1999, appellant Jerry Nazareno was indicted for violation of Article 266-A of the Revised Penal Code in Criminal Case No. 2638 for the rape of BBB. The information reads: That sometime and between January 1992 up to December 06, 1998, in Barangay Codon, Municipality of San Andres, Province of Catanduanes, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force, violence and intimidation did then and there willfully, unlawfully, feloniously and repeatedly made sexual intercourse with his daughter BBB at the age of 7 through 14 years old against her will. CONTRARY TO LAW.[17] On May 3, 1999, another Information docketed as Criminal Case No. 2650, for the rape of AAA, was levelled against appellant. The indictment is worded thus: That from sometime in January 1990 up to December 1998 in barangay Codon, municipality of San Andres, Catanduanes, and within the jurisdiction of the Honorable Court, the said accused, being the father of the complainant, did then and there willfully, feloniously and criminally repeatedly had sexual intercourse with her daughter AAA, then five years old up to the time when she was 15-years-old against her will. CONTRARY TO LAW.[18] The case for the People, which portrayed the foregoing facts, revolved around the combined testimonies of AAA, BBB, CCC, and Dr. Erlinda Arcilla of the JMA District Hospital in San Andres, Catanduanes. The defense, anchored on denial, was summed up by the trial court in this wise: The defense presented JERRY NAZARENO, the accused himself who testified that he is 34 years old, married, fisherman, a resident of Codon, San Andres, Catanduanes. He denied having raped his daughters. He said that he sometimes beat his children because he is strict with them in their studies especially during weekdays. He did not want them to watch television during schooldays. Though he is strict, he could not molest the complainants because they are his daughters. He said that the reason why his daughters filed these cases against him was because his father-in-law wants him to be incarcerated for the reason that from the very start, he was opposed to his marriage to CCC, his daughter. He also said that in December 1998, the last molestation of BBB, he was in the motor launch that plies the San Andres and Caramoran route. [19] RTC and CA Dispositions On October 25, 2002, the trial court handed down a joint judgment of conviction, imposing upon appellant the capital punishment of death in both cases. The fallo of the RTC decision reads:

WHEREFORE, in view of all the foregoing, the prosecution having proved the guilt of the accused beyond reasonable doubt, he is sentenced to suffer the extreme penalty of DEATH for raping BBB in Criminal Case No. 2638 and the same penalty for raping AAA in Criminal Case No. 2650 in accordance with Article 335 of the Revised Penal Code as amended by R.A. 7659. The accused is further ordered to indemnify both complainants the amount of Fifty Thousand Pesos (P50,000.00) each, to pay each of them the amount of Fifty Thousand Pesos (P50,000.00) as moral damages and the cost of suit. SO ORDERED.[20] Conformably with the pronouncement in People v. Mateo[21] providing for an intermediate review by the CA of cases in which the penalty imposed is death, reclusion perpetua or life imprisonment, the Court issued a Resolution dated September 21, 2004,[22] transferring the case to the appellate court for appropriate action and disposition. On February 22, 2005, the CA affirmed with modification the RTC judgment, disposing as follows: WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of rape as defined and penalized under Art. 335 of the Revised Penal Code as amended by Anti Rape Law of 1997, with the aggravating circumstance of relationship and minority, the decision of the court a quo sentencing him to death in both Criminal Cases Nos. 2638 and 2650 is hereby AFFIRMED. The award of civil indemnity is MODIFIED and INCREASED to P75,000.00 each, in both cases. The award of moral damages of P50,000.00 for each case is AFFIRMED. We also awardP25,000.00 as exemplary damages in each case. Let the records of this case be transmitted to the Supreme Court for appropriate action. SO ORDERED.[23] Issues On September 27, 2005, the Court resolved to require the parties to submit their respective supplemental briefs, if they so desired, within thirty (30) days from notice. In a manifestation dated December 6, 2005, the Public Attorneys Office, representing appellant Jerry Nazareno, informed the Court that it is adopting its main brief on record.[24] The Office of the Solicitor General, for the People, similarly opted to dispense with the filing of a supplemental brief in its manifestation dated March 9, 2006. [25]

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Appellant stands by the same lone error he raised before the appellate court: THE TRIAL COURT ERRED (IN) NOT FINDING THAT THE INFORMATION(S) IN CRIMINAL CASE NO[S]. 2638 AND 2650 ARE INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION FOR ITS (SIC) FAILURE TO STATE THE PRECISE DATES OF THE COMMISSION OF THE OFFENSE CHARGED.[26] (Corrections and underscoring supplied) Our Ruling In the main, appellant argues that the Informations charging him with the rape of AAA and BBB are defective for failure to state with specificity the approximate date of the commission of the offenses. According to him, the twin convictions have no basis in law because the People violated his constitutional right to be informed of the nature and cause of the accusations against him. The argument is specious. An information is intended to inform an accused of the accusations against him in order that he could adequately prepare his defense. Verily, an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. Thus, to ensure that the constitutional right of the accused to be informed of the nature and cause of the accusation against him is not violated, the information should state the name of the accused; the designation given to the offense by the statute; a statement of the acts or omissions so complained of as constituting the offense; the name of the offended party; the approximate time and date of the commission of the offense; and the place where the offense has been committed. [27] Further, it must embody the essential elements of the crime charged by setting forth the facts and circumstances that have a bearing on the culpability and liability of the accused, so that he can properly prepare for and undertake his defense. [28] However, it is not necessary for the information to allege the date and time of the commission of the crime with exactitude unless time is an essential ingredient of the offense. [29] In People v. Bugayong,[30] the Court held that when the time given in the information is not the essence of the offense, the time need not be proven as alleged; and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action. In People v. Gianan,[31] the Court ruled that the time of the commission of rape is not an element of the said crime as it is defined in Article 335 of the Revised Penal Code. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated therein, i.e.: (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve years of age or is demented. In accordance with Rule 110, Section 11 of the 2000 Rules of Criminal Procedure, as long as it alleges that the offense was c ommitted at any time as near to the actual date at which the offense was committed, an information is sufficient. The doctrine was reiterated with greater firmness in People v. Salalima[32] and in People v. Lizada.[33] In the case under review, the information in Criminal Case No. 2638 alleged that the rape of BBB transpired sometime and bet ween January 1992 up to December 6, 1998 in Barangay Codon, Municipality of San Andres, Province of Catanduanes. In Criminal Case No. 2650, the information averred that from sometime in January 1990 up to December 1998 in Barangay Codon, Municipality of San Andres, Province of Catanduanes, AAA was raped by appellant. To the mind of the Court, the recitals in the informations sufficiently comply with the constitutional requirement that the accused be informed of the nature and cause of the accusation against him. In People v. Garcia,[34] the Court upheld a conviction for ten counts of rape based on an Information which alleged that the accused committed multipl e rapes from November 1990 up to July 21, 1994. In People v. Espejon,[35] the Court found the appellant liable for rape under an information charging that he perpetrated the offense sometime in the year 1982 and dates subsequent thereto and sometime in the year 1995 and subsequent thereto. Indeed, this Court has ruled that allegations that rapes were committed before and until October 15, 1994, [36] sometime in the year 1991 and the days thereafter,[37] and on or about and sometime in the year 1988[38] constitute sufficient compliance with Rule 110, Section 11 of the 2000 Rules of Criminal Procedure. More than that, the Court notes that the matter of particularity of the dates in the information is being raised for the first time on appeal. The rule is well-entrenched in this jurisdiction that objections as to matter of form or substance in the information cannot be made for the first time on appeal. [39] Appellant failed to raise the issue of defective informations before the trial court. He could have moved to quash the informations or at least for a bill of particulars. He did not. Clearly, he slumbered on his rights and awakened too late. Too, appellant did not object to the presentation of the evidence for the People contending that the offenses were committed sometime and between January 1992 up to December 6, 1998 for Criminal Case No. 2632 and sometime in January 1990, up to December 1998 in Criminal Case No. 2650. On the contrary, appellant actively participated in the trial, offering denial and alibi as his defenses. Simply put, he cannot now be heard to complain that he was unable to defend himself in view of the vagueness of the recitals in the informations. We now tackle appellants convictions for the multiple rape of AAA and BBB. In an effort to exculpate himself, appellant contends that the charges for rape are mere fabrications and lies. He insists his daughters were instigated by his father-in-law to file the complaints. According to appellant, his father-in-law has an axe to grind against him. His in-law disdained him from the very beginning and wanted him out of CCCs life. In reviewing rape cases, the Court is guided by the following jurisprudential guidelines: (a) an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (b) due to the nature of the crime of rape in which only two persons are usually involved, the testimo ny of complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense.[40] Tersely put, the credibility of the offended party is crucial in determining the guilt of a person accused of rape. By the very nature of this crime, it is usually only the victim who can testify as to its occurrence. Thus, in rape cases, the accused may be convicted solely on the basis of the testimony of the victim, provided that such testimony is credible, natural, convincing and consistent with human nature and the normal course of things. Elsewise stated, the lone testimony of the offended party, if credible, suffices to warrant a conviction for rape. [41] In her testimony before the trial court, AAA narrated: Q A Q A Q A Q A Why, when were you particularly raped by your father? Since 1990, when I was in Grade I until I was in Grade VI, Sir. When you were in Grade I, how old were you then? Seven (7) years old, Sir. Can you remember the first time, you said your father raped you in 1990? I could no longer remember the date, Sir. But how did your father rape you, do you remember how he raped you in 1990, the first time? Yes, Sir.

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

Could you please tell us how he raped you for the first time? I was croaching with raised buttocks, Sir. Do you remember where did he tell you to make that position? No, Sir. Where particularly in your house? In our room, Sir. Do you still remember the date, the first time he raped you? No, Sir. Who were with you in your house during that time? No one, Sir, because all my other siblings are playing outside the house, and my mother was at work. When you were in that position with your buttocks raised and hands and knees on the floor, what did your father do next? He positioned behind me and s[tar]ted raping me, Sir. When you used the term rape, what do you mean? He inserted his penis into my vagina, Sir. You mean your father inserted his penis to your vagina? Yes, Sir. Now after that first time, do you remember the second time that he did it to you? I could not remember anymore, Sir. Do you remember how long the period was between the first and the second time he raped you? I could not longer remember, Sir.

COURT Fiscal, we are only trying here the rape that occurred on March 25, so if you can prove to us really, maybe several times before that, the court cannot do something about that, because it is not included in the information. AYO Q So when was the last time that your father raped you? A When I graduated from the elementary school, Sir. Q A Q A When was that? March 24, 1996, Sir. Between the first time that your father raped you and the last time that your father raped you, did you not report this to anybody, the thing that your father had been doing to you? I did not report this to anybody, Sir.

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Q A

Why? Because I was threatened by my father that if we tell this matter to anybody, he would not only kill me but the rest of us, Sir.

What other things did your father do when you said that he raped you, whenever your father raped you, you said you have been raped by your father in the time that you are in Grade I up to the time that you were in Grade VI, what did your father do to you?

CABRERA The question is vague, because there is no definite date. COURT Recess for ten (10) minutes. COURT (After ten minutes) Court session resumed. AYO Q Do you remember the last time that your father raped you? A March 25, 1996, Sir. Q A Q A Q A Q A Q A Q A Q A Where? In our house, Sir. How old were you then? Thirteen (13) years old, Sir. How did he rape you? I was croaching with raised buttocks, Sir. And what did he do again when you are in that position? He told me to remove my shorts and my panty, Sir. And did you do it? Yes, Sir. Then what did he do next? He positioned behind me and he raped me, Sir. In that position while he was raping you, where was ( sic) his hands? His hands were on my back, Sir.[42]

Upon the other hand, BBB testified thus: AYO Q Now, Miss witness, you said your first rape by your father in 1992, do you remember the specific time when he first raped you? A I could no longer recall the date, because that has been sometime already, Sir. Q A In 1992, were you already in school then? Yes, Sir.

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

What grade were you in when your father first raped you? Grade II, Sir. Do you recall the circumstances when you were first raped by your father in 1992? I was made to lie on top of my father, Sir. When you used the term Pig baka-baka, will you please demonstrate to us how it is done? (Witness demonstrating by kneeling and had her two hands on the floor, a position similar to four-legged animal, and she stated that her father is at her rear portion). And that was the first time your father raped with that position? Yes, Sir. And what clothes were you wearing at that time when you were at that position, if you can still remember? Yes, Sir, I can remember, I was wearing shorts. How about your father, do you remember what clothes he was wearing in that position? He was wearing maong pants, Sir. And what was your father doing aside from having that position? He removed my shorts and panty, Sir. And after removing your shorts and panty, what did he do? My father inserted his penis in my vagina, Sir. That was the first time you said he raped you? Yes, Sir. Do you remember the date again, the first time that he raped you? I could no longer remember the exact date, Sir. You could only remember the month and the year? Yes, Sir, I could not remember the date, but I remember only the month and the year. How about the second time, do you remember when he raped you, the second time? I could not, Sir.[43]

On cross-examination, BBB stated that: CABRERA Q You said you were allegedly raped by your own father, sometime in 1992, will you tell us what time is that alleged incident committed to you? A About 2:00 p.m., Sir. Q A Q A Q A Q A Q A Q A Q A Q A Q A And who were the persons in the house, at around 2:00 oclock in the afternoon? The two of us only, Sir. Where were your companions in the home? By that time, my mother is working in the farm, my ate is in school, and the rest of my siblings are playing outside, Sir. What was your age then at the time you were allegedly raped? I was eight years old, Sir. You were never forced to have that position of baka-bakahan? I was forced to do that, Sir. You were only told in mild manner, correct? He kepts (sic) on telling me that I should do that position, although I dont like it, he kepts ( sic) on prodding me, Sir. At that time your father was telling you on a very low voice, because you were near to the children who are playing? They were playing, Sir. Will you describe to us your house, what is the elevation of your house from the ground floor? The flooring of our house is quite elevated. (Witness is demonstrating a height of about one [1] foot). Who were those children playing outside the house? My three (3) siblings are playing outside the house, Sir. Your house has a window fronting the yard, correct? Yes, Sir.

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

And that yard was the playing ground of the children while your father was telling you that position of baka-bakahan? They were playing in our yard, but they are playing near the house of our neighbor, Sir. How far is the house of your neighbor to your house? (Witness demonstrating a distance of one two-arms length). And those children could hear what your father is saying? They could not have heard what my father said, because they were playing, Sir. Why, what kind of game they are playing? They were playing hide and seek, Sir. What time did you eat your lunch? I took my lunch at 11:00 oclock a.m., Sir. Will you tell us what was the nature of your fathers work at that time you were allegedly raped? He is jobless, Sir.

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

Who is the one providing for your subsistence? My mother, Sir. From where does your mother get your subsistence? She is doing some laundry works and works in the farm, Sir. If your story is correct that you were allegedly raped, will you tell us what happened to your vagina after the alleged rape? My vagina became painful, Sir. Was there blood that oozed in your vagina? I do not know if there was blood, what I could feel was the pain, Sir. After the alleged intercourse, did you wear your panty? Yes, Sir. After the rape, what time did your mother arrive in your home? My mother arrived at about 4:00 oclock in the afternoon, Sir. Since you were still a child, if your story is correct, why did you not tell your mother that you were allegedly raped at 2:00 oclock in the afternoon? I did not tell my mother because he threatened me, Sir. Were you threatened before, during, or after the rape? Before I was raped, Sir. And you were silent after the rape, he did not threaten you anymore? Yes, Sir, he threatened me again after he committed the rape. Would you tell us the exact words, what did your father tell you? He told me that if you will tell anybody, I am going to kill all of you, Sir. Was there any occasion on the part of your mother and you that you were alone without the presence of your father, after the rape? There was none, Sir. You mean your father was always in your house? There are times that he stays outside the house, he is jobless, he hangs around, Sir. After you were allegedly raped, did you have any occasion in the evening to talk to your mother immediately after this alleged rape? There are, but then I could not tell my mother, because I was afraid of my father, Sir. But there was an occasion that you were together with your mother and you could have told her what happened to you, is that correct? Yes, there were occasions and opportunities that I could tell my mother, but I could not because of the threat of my father, Sir. Was there any occasion that actually happened after that threat when you were harmed by your father? Yes, Sir.

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

When was that? Right after that evening, I did not do anything wrong, he just punished us, because he is not tempered, Sir. Your father is not insane, he will not do anything to you without any reason? Yes, because every time he has no money, he becomes ill tempered, because he wanted to gamble, Sir. You are a young child then, is it not a fact that as a loving father he tried to discipline you, because of your mischievous acts? We do not considered that a discipline, although we feel we did not do anything wrong, he keeps on punishing us, because he is ill tempered, Sir. Where was your mother when your father is trying to harm you? She is at work, Sir. You mean he tried to harm you when your mother is out? When my mother is around, he punishes us every time we did something wrong, but then he does that too when my mother is not around, Sir. Do you tell that to your mother that your father punished you without any reason? Yes, Sir. Will you tell us the date, the first you were abused by your father in the year 1992? I could no longer remember the date, Sir. But you can recall the fifteen (15) times? Yes, Sir. What is important to you is the fifteen (15) times, but the first rape is not important to you? Yes, Sir. You said you were last raped on February 16, 1998, is that correct? No, Sir, December 16, 1998. February 16 was when we reported to the police. This last incident, did you tell your mother about this? Yes, Sir. And what did your mother say? My mother told us that we report the matter, but we told her that we could not manage to do it, Sir. How were you raped on December 6, 1998? He used his finger, Sir. Was there any nail in the finger? Yes, Sir.

Q A Q A Q A

And how did you feel when your father used his finger? It is painful, Sir. What he used is finger only? Yes, Sir. Could it be possible that there was inside your vagina and your father is trying to remove it? There is none, Sir.[44] (Underscoring supplied)

The trial court observed that AAAs and BBBs testimonies bear the hallmarks of truth. Their testimonies are spontaneous, convincing and highly-credible.[45] We find no cogent reason not to apply here the oft-repeated rule that the matter of assigning values to the declaration of witnesses on the stand is a matter best left to the discretion of the trial court. The trial court has the advantage of observing the witnesses through the

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different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien.[46] This doctrine assumes greater significance when the determination of the trial court on the credibility of a witness has been affirmed by the appellate court.[47] The Court has consistently ruled that no young girl would concoct a sordid tale of defloration at the hands of her own father, undergo medical examination, then subject herself to the stigma and embarrassment of a public trial, if her motive were other than a fervent desire to seek justice. [48] A rape victim's testimony against her parent is entitled to great weight since Filipino children have a natural reverence and respect for their elders. These values are so deeply ingrained in Filipino families, and it is unthinkable for a daughter to brazenly concoct a story of rape if such were not true.[49] Certainly, a rape victim or any other member of her family would not dare to publicly expose the dishonor of the family, more specifically, if such accusation is against a fellow member of the family, unless the crime was, in fact, committed. [50] We sustain the trial court and the CAs rejection of appellants defense founded on denial and alibi. Denial and alibi, being weak defenses, cannot overcome the positive testimonies of the offended parties and their witnesses. As this Court has reiterated often enough, denial and alibi cannot prevail over positive identification of the accused by the prosecution witnesses. [51] The positive, consistent and straightforward testimonies of the victims and the other witnesses for the People sufficiently established appellants culpability. In order to merit credibility, alibi must be buttressed by strong evidence of non-culpability. Verily, for the said defense to prosper, accused must prove not only that he was at some other place at the time of the commission of the crime, but also that it was physically impossible for him to be at the locus criminis or its immediate vicinity.[52] Appellant dismally failed to discharge thisonus. The trial court and the CA, however, both blundered in convicting appellant of multiple rape of AAA and BBB, from January 1990 to December 1998 and from January 1992 up to December 6, 1998, respectively.

The RTC and the CA convicted appellant of multiple rapes under two separate informations, Criminal Cases Nos. 2638 and 2650. However, both the trial and appellate courts erroneously sentenced him to a single death penalty for each information. We find that appellant is guilty of two qualified rapes, instead of multiple rapes under Criminal Case No. 2650, and only one qualified rape, not multiple, under Criminal Case No. 2638. The legal basis for conviction for as many offenses as are charged and proved is Section 3, Rule 120 of the 2000 Rules of Criminal Procedure. [53] It is axiomatic that each and every charge of rape is a separate and distinct crime. Verily, each of the alleged incidents of rape charged should be proven beyond reasonable doubt. [54] In People v. Matugas,[55] the Court aptly ruled: This Court cannot thus sustain the conviction of accused-appellant for 29 counts of rape because only two incidents were sufficiently proven by the prosecution. While we do not doubt that she was raped on other dates, we cannot ascertain the exact number of times she was actually raped. It must be remembered that each and every charge of rape is a separate and distinct crime so that each of the 27 other alleged incidents of rape charged should be proven beyond reasonable doubt. If, as complainant claimed, the number could be more, the possibility that it could be much less than 27 cannot be discounted. [56] In People v. De la Torre,[57] the Court held that: Each and every charge of rape is a separate and distinct crime; hence, each of the eight other rape charges should be proven beyond reasonable doubt. The prosecution is required to establish, by the necessary quantum of proof, the elements of rape for each charge. Baby Janes testimony on the first rape charge was explicit, detailing the participation of each appellant in the offense and clearly illustrating all the elements of the offense of rape. However her simple assertion that the subsequent rapes occurred in exactly the same manner as in previous incidents is clearly inadequate and grossly insufficient to establish to a degree of moral certainty the guilt of the appellants insofar as the eight rape charges are concerned. Her testimony was too general as it failed to focus on material details as to how each of the subsequent acts was committed. Even her testimony on cross-examination did not add anything to support her accusations of subsequent rape. Thus, only the rape alleged to have been committed on September 1992 was proven beyond reasonable doubt and the appellants may be penalized only for this offense.[58] In the case under review, the evidence bear out that what were proved by the People beyond reasonable doubt in Criminal Case No. 2650 were the rapes committed by appellant on AAA sometime in 1990 and then again on March 25, 1996. AAA was categorical that she was first raped by appellant sometime in 1990. Her account of the first rape was vivid, candid and straightforward. She further disclosed that appellant repeatedly abused her. However, when asked by the court to clarify her claim that the sexual abuses were repeated, AAA failed to supply the details. But she was able to recount the last incident of rape on March 25, 1996. According to her, that day was of significance to her since she graduated from primary school on that day.[59] Applying De la Torre, We hold that AAAs assertion that the subsequent rapes occurred in exactly the same man ner as in previous incidents is clearly inadequate and grossly insufficient to establish to a degree of moral certainty the guilt of appellant insofar as the other rape incidents are concerned. Her testimony was too general as it failed to focus on material details as to how each of the subsequent acts was committed. In fine, appellant should have been convicted, in Criminal Case No. 2650, only of the qualified rape of AAA sometime in 1990 and then again on March 25, 1996.

With respect to private complainant BBB in Criminal Case No. 2638, what is extant from the records is that appellant succeeded in raping her in January 1992. BBB, like AAA, failed to give an account of the alleged rape subsequent to January 1992 when she testified in the court below.[60] As with AAA, We hold that BBBs account of the rapes subsequent to January 1992 but before December 6, 1998 is too general an d unconvincing. Likewise borne by the records is the insertion of appellants finger into BBBs vagina on December 6, 1998. BBB testified that appellant raped her for the last time on December 6, 1998. When asked by the court to clarify what she meant, BBB disclosed that appellant inserted his finger into her vagina. [61] What appellant did was rape by sexual assault, punishable under Article 266-A, paragraph 2 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 8353. The said law provides: Art. 266-A. Rape; when and how committed. Rape is committed 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) b) c) d) Through force, threat or intimidation; When the offended party is deprived of reason or otherwise unconscious; By means of fraudulent machination or grave abuse of authority; and When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.[62] (Underscoring supplied) Rape by sexual assault was introduced into our penal system via the amendatory Anti-Rape Law of 1997 (R.A. No. 8353), which took effect on October 22, 1997. With these amendments, rape was reclassified as a crime against person and not merely a crime against chastity.[63] Considering that the law was already in force at the time of the insertion of appellants finger into BBBs vagina on Decembe r 6, 1998, he should have been prosecuted and tried for rape by sexual assault and not under the traditional definition of rape. The People, however, failed in this regard. That is fatal. Sections 8 and 9 of the 2000 Rules of Criminal Procedure state: Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances for the court to pronounce judgment. Under the new rules, the information or complaint must state the designation of the offense given by the statute and specify its qualifying and generic aggravating circumstances. Otherwise stated, the accused will not be convicted for the offense proved during the trial if it was not properly alleged in the information. Although the rule took effect on December 1, 2000, the same may be applied retroactively because it is a cardinal rule that rules of criminal procedure are given retroactive application insofar as they benefit the accused. [64] In sum, in Criminal Case No. 2638, appellant should have been convicted only of the qualified rape of BBB in January 1992. The rape by sexual assault committed on December 6, 1998, although proven, should not have been considered by the trial and appellate courts for lack of a proper allegation in the information. We go now to the penalty and the award of damages. Appellant is liable for the rape of AAA sometime in 1990 and on March 25, 1996. He is also guilty of raping BBB in January 1992. At that time, the law penalizing rape was still Article 335 of the Revised Penal Code, as amended by R.A. No. 7659. The said law provides: Art. 335. When and how rape is committed. xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

In view of the passage of R.A. No. 9346 entitled, An Act Prohibiting the Imposition of Death Penalty in the Philippines, the death penalty should be downgraded. Pursuant to Section 2 of the said law, the penalty to be meted out to appellant shall be reclusion perpetua. Said section reads: Section 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or

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(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of the said law, which provides: Section 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. With regard to the award of damages, the same must be modified. The CA correctly increased the amount of indemnity fromP50,000.00 to P75,000.00 each for AAA and BBB. Civil indemnity of P75,000.00 is warranted if the crime is qualified by circumstances which warrant the imposition of the death penalty. [65] The award of additional P25,000.00 each by way of exemplary damages deserves affirmance due to the presence of the qualifying circumstances of minority and relationship. [66] However, the CA erred in affirming the RTC award of moral damages of P50,000.00 which should be increased to P75,000.00 without need of pleading or proof of basis. [67] WHEREFORE, the appealed judgment is AFFIRMED WITH MODIFICATION, as follows: (1) In Criminal Case No. 2650, appellant Jerry Nazareno is hereby found GUILTY of two counts of qualified rape and is sentenced to reclusion perpetua for each felony, without eligibility for parole. He is further ordered to indemnify the victim in the amount of P75,000.00, another P75,000.00 in moral damages and P25,000.00 in exemplary damages, for each count. (2) In Criminal Case No. 2638, appellant is found GUILTY of one count of qualified rape and is sentenced to reclusion perpetua without eligibility for parole. He is likewise ordered to pay the complainant P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages.

[G.R. No. 184274, February 23 : 2011] MARK SOLEDAD Y CRISTOBAL, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. DECISION NACHURA, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the Court of Appeals (CA) Decision dated June 18, 2008 and Resolution[2] dated August 22, 2008 in CA-G.R. CR. No. 30603. The assailed Decision affirmed with modification the September 27, 2006 decision [3] of the Regional Trial Court (RTC), Branch 202, Las Pias City, finding petitioner Mark C. Soledad guilty beyond reasonable doubt of Violation of Section 9(e), Republic Act (R.A.) No. 8484, or the Access Devices Regulations Act of 1998; while the assailed Resolution denied petitioner's motion for reconsideration. The facts of the case, as narrated by the CA, are as follows: Sometime in June 2004, private complainant Henry C. Yu received a call on his mobile phone from a certain "Tess" or "Juliet Villar" (later identified as Rochelle Bagaporo), a credit card agent, who offered a Citifinancing loan assistance at a low interest rate. Enticed by the offer, private complainant invited Rochelle Bagaporo to go to his office in Quezon City. While in his office, Rochelle Bagaporo indorsed private complainant to her immediate boss, a certain "Arthur" [later identified as petitioner]. In their telephone conversation, [petitioner] told private complainant to submit documents to a certain "Carlo" (later identified as Ronald Gobenchiong). Private complainant submitted various documents, such as his Globe handyphone original platinum gold card, identification cards and statements of accounts. Subsequently, private complainant followed up his loan status but he failed to get in touch with either [petitioner] or Ronald Gobenchiong. During the first week of August 2004, private complainant received his Globe handyphone statement of account wherein he was charged for two (2) mobile phone numbers which were not his. Upon verification with the phone company, private complainant learned that he had additional five (5) mobile numbers in his name, and the application for said cellular phone lines bore the picture of [petitioner] and his forged signature. Private complainant also checked with credit card companies and learned that his Citibank Credit Card database information was altered and he had a credit card application with Metrobank Card Corporation (Metrobank). Thereafter, private complainant and Metrobank's junior assistant manager Jefferson Devilleres lodged a complaint with the National Bureau of Investigation (NBI) which conducted an entrapment operation. During the entrapment operation, NBI's Special Investigator (SI) Salvador Arteche [Arteche], together with some other NBI operatives, arrived in Las Pias around 5:00 P.M. [Arteche] posed as the delivery boy of the Metrobank credit card. Upon reaching the address written on the delivery receipt, [Arteche] asked for Henry Yu. [Petitioner] responded that he was Henry Yu and presented to [Arteche] two (2) identification cards which bore the name and signature of private complainant, while the picture showed the face of [petitioner]. [Petitioner] signed the delivery receipt. Thereupon, [Arteche] introduced himself as an NBI operative and apprehended [petitioner]. [Arteche] recovered from [petitioner] the two (2) identification cards he presented to [Arteche] earlier. [4] Petitioner was thus charged with Violation of Section 9(e), R.A. No. 8484 for "possessing a counterfeit access device or access device fraudulently applied for." The accusatory portion of the Information reads: That on or about the 13sup>th day of August 2004, or prior thereto, in the City of Las Pias, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with certain Rochelle Bagaporo a.k.a. Juliet Villar/Tess and a certain Ronald Gobenciong a.k.a. Carlo and all of them mutually helping and aiding each other, did then and there willfully, unlawfully and feloniously defraud complainant HENRY YU by applying a credit card, an access device defined under R.A. 8484, from METROBANK CARD CORPORATION, using the name of complainant Henry C. Yu and his personal documents fraudulently obtained from him, and which credit card in the name of Henry Yu was successfully issued and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu. CONTRARY TO LAW.[5] Upon arraignment, petitioner pleaded "not guilty." Trial on the merits ensued. After the presentation of the evidence for the prosecution, petitioner filed a Demurrer to Evidence, alleging that he was not in physical and legal possession of the credit card presented and marked in evidence by the prosecution. In an Order dated May 2, 2006, the RTC denied the Demurrer to Evidence as it preferred to rule on the merits of the case. [6] On September 27, 2006, the RTC rendered a decision finding petitioner guilty as charged, the dispositive portion of which reads: In the light of the foregoing, the Court finds accused Mark Soledad y Cristobal a.k.a. "Henry Yu," "Arthur" GUILTY beyond reasonable doubt of violation of Section 9(e), Republic Act 8484 (Access Device Regulation Act of 1998). Accordingly, pursuant to Section 10 of Republic Act 8484 and applying the Indeterminate Sentence Law, said accused is hereby sentenced to suffer an imprisonment penalty of six (6) years of prision correccional, as minimum, to not more than ten (10) years of prision mayor, as maximum. Further, accused is also ordered to pay a fine of Ten Thousand Pesos (P10,000.00) for the offense committed. SO ORDERED.[7] On appeal, the CA affirmed petitioner's conviction, but modified the penalty imposed by the RTC by deleting the terms prision correccional and prision mayor. Hence, this petition raising the following issues: (1) Whether or not the Information is valid; (2) Whether or not the Information charges an offense, or the offense petitioner was found guilty of;
[1]

(3) Whether or not petitioner was sufficiently informed of the nature of the accusations against him; (4) Whether or not petitioner was legally in "possession" of the credit card subject of the case. [8] The petition is without merit. Petitioner was charged with Violation of R.A. No. 8484, specifically Section 9(e), which reads as follows: Section 9. Prohibited Acts. - The following acts shall constitute access device fraud and are hereby declared to be unlawful: xxxx (e) possessing one or more counterfeit access devices or access devices fraudulently applied for.

Petitioner assails the validity of the Information and claims that he was not informed of the accusation against him. He expl ains that though he was charged with "possession of an access device fraudulently applied for," the act of "possession," which is the gravamen of the offense, was not alleged in the Information. We do not agree. Section 6, Rule 110 of the Rules of Criminal Procedure lays down the guidelines in determining the sufficiency of a complaint or information. It states:

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SEC. 6. Sufficiency of complaint or information. - A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. In the Information filed before the RTC, it was clearly stated that the accused is petitioner "Mark Soledad y Cristobal a.k.a. Henry Yu/Arthur." It was also specified in the preamble of the Information that he was being charged with Violation of R.A. No. 8484, Section 9(e) for possessing a counterfeit access device or access device fraudulently applied for. In the accusatory portion thereof, the acts constituting the offense were clearly narrated in that "[petitioner], together with other persons[,] willfully, unlawfully and feloniously defrauded private complainant by applying [for] a credit card, an access device defined under R.A. [No.] 8484, from Metrobank Card Corporation, using the name of complainant Henry C. Yu and his personal documents fraudulently obtained from him, and which credit card in the name of Henry Yu was successfully issued, and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu." Moreover, it was identified that the offended party was private complainant Henry Yu and the crime was committed on or about the 13 th day of August 2004 in the City of Las Pias. Undoubtedly, the Information contained all the necessary details of the offense committed, sufficient to apprise petitioner of the nature and cause of the accusation against him. As aptly argued by respondent People of the Philippines, through the Office of the Solicitor General, although the word "possession" was not used in the accusatory portion of the Information, the word "possessing" appeared in its preamble or the first paragraph thereof. Thus, contrary to petitioner's contention, he was apprised that he was being charged with violation of R.A. No. 8484, specifically section 9(e) thereof, for possession of the credit card fraudulently applied for. The Court's discussion in People v. Villanueva[9] on the relationship between the preamble and the accusatory portion of the Information is noteworthy, and we quote: The preamble or opening paragraph should not be treated as a mere aggroupment of descriptive words and phrases. It is as much an essential part [of] the Information as the accusatory paragraph itself. The preamble in fact complements the accusatory paragraph which draws its strength from the preamble. It lays down the predicate for the charge in general terms; while the accusatory portion only provides the necessary details. The preamble and the accusatory paragraph, together, form a complete whole that gives sense and meaning to the indictment. x x x. xxxx Moreover, the opening paragraph bears the operative word "accuses," which sets in motion the constitutional process of notification, and formally makes the person being charged with the commission of the offense an accused. Verily, without the opening paragraph, the accusatory portion would be nothing but a useless and miserably incomplete narration of facts, and the entire Information would be a functionally sterile charge sheet; thus making it impossible for the state to prove its case. The Information sheet must be considered, not by sections or parts, but as one whole document serving one purpose, i.e., to i nform the accused why the full panoply of state authority is being marshaled against him. Our task is not to determine whether allegations in an indictment could have been more artfully and exactly written, but solely to ensure that the constitutional requirement of notice has been fulfilled x x x.[10]

Besides, even if the word "possession" was not repeated in the accusatory portion of the Information, the acts constituting it were clearly described in the statement "[that the] credit card in the name of Henry Yu was successfully issued, and delivered to said accused using a fictitious identity and addresses of Henry Yu, to the damage and prejudice of the real Henry Yu." Without a doubt, petitioner was given the necessary data as to why he was being prosecuted. Now on the sufficiency of evidence leading to his conviction. Petitioner avers that he was never in possession of the subject credit card because he was arrested immediately after signing the acknowledgement receipt. Thus, he did not yet know the contents of the envelope delivered and had no control over the subject credit card. [11] Again, we find no value in petitioner's argument. The trial court convicted petitioner of possession of the credit card fraudulently applied for, penalized by R.A. No. 8484. The law, however, does not define the word "possession." Thus, we use the term as defined in Article 523 of the Civil Code, that is, "possession is the holding of a thing or the enjoyment of a right." The acquisition of possession involves two elements: the corpus or the material holding of the thing, and the animus possidendi or the intent to possess it.[12] Animus possidendi is a state of mind, the presence or determination of which is largely dependent on attendant events in each case. It may be inferred from the prior or contemporaneous acts of the accused, as well as the surrounding circumstances.[13] In this case, prior to the commission of the crime, petitioner fraudulently obtained from private complainant various documents showing the latter's identity. He, thereafter, obtained cellular phones using private complainant's identity. Undaunted, he fraudulently applied for a credit card under the name and personal circumstances of private complainant. Upon the delivery of the credit card applied for, the "messenger" (an NBI agent) required two valid identification cards. Petitioner thus showed two identification cards with his picture on them, but bearing the name and forged signature of private complainant. As evidence of the receipt of the envelope delivered, petitioner signed the acknowledgment receipt shown by the messenger, indicating therein that the content of the envelope was the Metrobank credit card. Petitioner materially held the envelope containing the credit card with the intent to possess. Contrary to petitioner's contention that the credit card never came into his possession because it was only delivered to him, the above narration shows that he, in fact, did an active part in acquiring possession by presenting the identification cards purportedly showing his identity as Henry Yu. Certainly, he had the intention to possess the same. Had he not actively participated, the envelope would not have been given to him. Moreover, his signature on the acknowledgment receipt indicates that there was delivery and that possession was transferred to him as the recipient. Undoubtedly, petitioner knew that the envelope contained the Metrobank credit card, as clearly indicated in the acknowledgment receipt, coupled with the fact that he applied for it using the identity of private complainant. Lastly, we find no reason to alter the penalty imposed by the RTC as modified by the CA. Section 10 of R.A. No. 8484 prescribes the penalty of imprisonment for not less than six (6) years and not more than ten (10) years, and a fine of P10,000.00 or twice the value of the access device obtained, whichever is greater. Thus, the CA aptly affirmed the imposition of the indeterminate penalty of six years to not more than ten years imprisonment, and a fine of P10,000.00. WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals Decision dated June 18, 2008 and Resolution dated August 22, 2008 in CAG.R. CR. No. 30603 are AFFIRMED.

FELIXBERTO A. ABELLANA, Petitioner,

G.R. No. 174654

Present:

- versus -

CORONA, C.J., Chairperson, LEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ.

PEOPLE OF THEPHILIPPINES and Spouses SAAPIA B. ALONTO and DIAGA ALONTO, Respondents. x-------------------------------------------------------------------x

Promulgated: August 17, 2011

DECISION DEL CASTILLO, J.: The only issue that confronts this Court is whether petitioner Felixberto A. Abellana could still be held civilly liable notwithstanding his acquittal. Assailed before this Court are the February 22, 2006 Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 78644 and its August 15, 2006 Resolution[2] denying the motion for reconsideration thereto. The assailed CA Decision set aside the May 21, 2003 Decision[3] of the Regional Trial Court (RTC) of Cebu City, Branch 13, in Criminal Case No. CBU-51385 and acquitted the petitioner of the crime of falsification of public document by a private individual because the Information charged him with a different offense which is estafa through falsification of a public document.[4] However, the CA still adjudged him civilly liable.[5] Factual Antecedents In 1985, petitioner extended a loan to private respondents spouses Diaga and Saapia Alonto (spouses Alonto),[6] secured by a Deed of Real Estate Mortgage over Lot Nos. 6471 and 6472 located in Cebu City.[7] Subsequently, or in 1987, petitioner prepared a Deed of Absolute Sale conveying said lots to him. The Deed of Absolute Sale was signed by spouses Alonto in Manila. However, it was notarized in Cebu Cityallegedly without the spouses Alonto appearing before the notary public.[8] Thereafter, petitioner caused the transfer of the titles to his name and sold the lots to third persons. On August 12, 1999,[9] an Information[10] was filed charging petitioner with Estafa through Falsification of Public Document, the accusatory portion of which reads: That on or about the 9th day of July, 1987, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, and with intent to defraud, did then and there falsify a public document consisting of a Deed of Absolute Sale of a parcel of land consisting of 803 square meters executed before Notary Public Gines N. Abellana per Doc. No. 383, Page No. 77, Book No. XXIII, Series of 1987 of the latters Notarial Register showing that spouses Saapia B. Alonto and Diaga Alonto sold their parcel of land located at Pardo, Cebu City, for a consideration of P130,000.00 in favor of accused by imitating, counterfeiting, signing or

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[causing] to be imitated or counterfeited the signature[s] of spouses Saapia B. Alonto and Diaga Alonto above their typewritten names in said document as vendor[s], when in truth and in fact as the accused very well knew that spouses Saapia B. Alonto and Diaga Alonto did not sell their aforestated descri[b]ed property and that the signature[s] appearing in said document are not their signature[s], thus causing it to appear that spouses Saapia B. Alonto and Diaga Alonto participated in the execution of said document when they did not so participate[. Once] said document was falsified, accused did then and there cause the transfer of the titles of said land to his name using the said falsified document, to the damage and prejudice of spouses Saapia B. Alonto and Diaga Alonto in the amount of P130,000.00, the value of the land . CONTRARY TO LAW.[11] During arraignment, petitioner entered a plea of not guilty.[12] After the termination of the pre-trial conference, trial ensued. Ruling of the Regional Trial Court In its Decision dated May 21, 2003, the RTC noted that the main issue for resolution was whether petitioner committed the crime of estafa through falsification of public document.[13] Based on the evidence presented by both parties, the trial court found that petitioner did not intend to defraud the spouses Alonto; that after the latter failed to pay their obligation, petitioner prepared a Deed of Absolute Sale which the spouses Alonto actually signed; but that the Deed of Absolute Sale was notarized without the spouses Alonto personally appearing before the notary public. From these, the trial court concluded that petitioner can only be held guilty of Falsification of a Public Document by a private individual under Article 172(1)[14] in relation to Article 171(2)[15] of the Revised Penal Code (RPC) and not estafa through falsification of public document as charged in the Information. The dispositive portion of the RTC Decision reads: WHEREFORE, judgment is hereby rendered finding the accused Felixberto Abellana GUILTY of the crime of falsification of public document by private individuals under Article 172 of the Revised Penal Code and sentences him to an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of Prision Correccional, as minimum, to SIX (6)YEARS, as maximum. He is directed to institute reconveyance proceedings to restore ownership and possession of the real properties in question in favor of private complainants. After private complainants shall have acquired full ownership and possession of the aforementioned properties, they are directed to pay the accused the sum of P130,000.00 [with] legal interest thereon reckoned from the time this case was instituted. Should the accused fail to restore full ownership and possession in favor of the private complainants [of] the real properties in question within a period of six (6) months from the time this decision becomes final and executory, he is directed to pay said complainants the sum of P1,103,000.00 representing the total value of the properties of the private complainants. He is likewise directed to pay private complainants the following: 1. P15,000.00 for nominal damages; 2. P20,000.00 for attorneys fees; 3. P50,000.00 as and for litigation expenses; 4. P30,000.00 as and for exemplary damages; plus the cost of this suit. SO ORDERED.[16]

Ruling of the Court of Appeals On appeal, petitioner raised the issue of whether an accused who was acquitted of the crime charged may nevertheless be convicted of another crime or offense not specifically charged and alleged and which is not necessarily included in the crime or offense charged. The CA, in its Decision dated February 22, 2006, ruled in the negative.[17] It held that petitioner who was charged with and arraigned for estafa through falsification of public document under Article 171(1) of the RPC could not be convicted of Falsification of Public Document by a Private Individual under Article 172(1) in relation to Article 171(2). The CA observed that the falsification committed in Article 171(1) requires the counterfeiting of any handwriting, signature or rubric while the falsification in Article 171(2) occurs when the offender caused it to appear in a document that a person participated in an act or proceeding when in fact such person did not so participate. Thus, the CA opined that the conviction of the petitioner for an offense not alleged in the Information or one not necessarily included in the offense charged violated his constitutional right to be informed of the nature and cause of the accusation against him.[18] Nonetheless, the CA affirmed the trial courts finding with respect to petitioners civil liability. The dispositive portion of the CAs February 22, 2006 Decision reads as follows: WHEREFORE, premises considered, We resolve to set aside the Decision dated May 21, 2003 of the Regional Trial Court, 7th Judicial Region, Branch 13, Cebu City only insofar as it found the petitioner guilty of a crime that is different from that charged in the Information. The civil liability determinations are affirmed. SO ORDERED.[19]

Petitioner filed a motion for reconsideration which was denied in the Resolution dated August 15, 2006. Hence, petitioner comes before us through the present Petition for Review on Certiorari raising the lone issue of whether he could still be held civilly liable notwithstanding his acquittal by the trial court and the CA. Our Ruling The petition is meritorious. It is an established rule in criminal procedure that a judgment of acquittal shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt.[20] In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.[21] When the exoneration is merely due to the failure to prove the guilt of the accused beyond reasonable doubt, the court should award the civil liability in favor of the offended party in the same criminal action.[22] In other words, the extinction of the penal action does not carry with it the extinction of civil liability unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil [liability] might arise did not exist.[23] Here, the CA set aside the trial courts Decision because it convicted petitioner of an offense different from or not included in the crime charged in the Information. To recall, petitioner was charged with estafa through falsification of public document. However, the RTC found that the spouses Alonto actually signed the document although they did not personally appear before the notary public for its notarization. Hence, the RTC instead convicted petitioner of falsification of public document. On appeal, the CA held that petitioners conviction cannot be sustained because it infringed on his right to be informed of the nature and cause of the accusation against him.[24] The CA, however, found no reversible error on the civil liability of petitioner as determined by the trial court and thus sustained the same.[25] We do not agree. In Banal v. Tadeo, Jr.,[26] we elucidated on the civil liability of the accused despite his exoneration in this wise: While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law. x x x

Simply stated, civil liability arises when one, by reason of his own act or omission, done intentionally or negligently, causes damage to another. Hence, for petitioner to be civilly liable to spouses Alonto, it must be proven that the acts he committed had caused damage to the spouses. Based on the records of the case, we find that the acts allegedly committed by the petitioner did not cause any damage to spouses Alonto. First, the Information charged petitioner with fraudulently making it appear that the spouses Alonto affixed their signatures in the Deed of Absolute Sale thereby facilitating the transfer of the subject properties in his favor. However, after the presentation of the parties respective evidence, the trial court found that the charge was without basis as the spouses Alonto indeed signed the document and that their signatures were genuine and not forged. Second, even assuming that the spouses Alonto did not personally appear before the notary public for the notarization of the Deed of Absolute Sale, the same does not necessarily nullify or render void ab initio the parties transaction.[27] Such nonappearance is not sufficient to overcome the presumption of the truthfulness of the statements contained in the deed. To overcome the presumption, there must be sufficient, clear and convincing evidence as to exclude all reasonable controversy as to the falsity of the [deed]. In the absence of such proof, the deed must be upheld.[28] And since the defective notarization does not ipso facto invalidate the Deed of Absolute Sale, the transfer of said properties from spouses Alonto to petitioner remains valid. Hence, when on the basis of said Deed of Absolute Sale, petitioner caused the cancellation of spouses Alontos title and the issuance of new ones under his name, and thereafter sold the same to third persons, no damage resulted to the spouses Alonto. Moreover, we cannot sustain the alternative sentene imposed upon the petitioner, to wit: to institute an action for the recovery of the properties of spouses Alonto or to pay them actual and other kinds of damages. First, it has absolutely no basis in view of the trial courts finding that the signatures of the spouses Alonto in the Deed of Absolute Sale are genuine and not forged. Second, [s]entences should not be in the alternative. There is nothing in the law which permits courts to impose sentences in the alternative.[29] While a judge has the discretion of imposing one or another penalty, he cannot impose both in the alternative.[30] He must fix positively and with certainty the particular penalty.[31] In view of the above discussion, there is therefore absolutely no basis for the trial court and the CA to hold petitioner civilly liable to restore ownership and possession of the subject properties to the spouses Alonto or to pay them P1,103,000.00 representing the value of the properties and to pay them nominal damages, exemplary damages, attorneys fees and litigation expenses. WHEREFORE, the petition is GRANTED. The February 22, 2006 Decision of the Court of Appeals in CA-G.R. SP No. 78644 and its August 15, 2006 Resolution are AFFIRMED insofar as they set aside the conviction of the petitioner for the crime of falsification of public document. The portion which affirmed the imposition of civil liabilities on the petitioner, i.e., the restoration of ownership and possession, the payment of P1,103,000.00 representing the value of the property, and the payment of nominal and exemplary damages, attorneys fees and litigation expenses, is DELETED for lack of factual and legal basis.

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