SECTION 14

PREMPTION OF INNOCENCE (1) ARTEMIO CASTILLO, plaintiff-appellant, vs. FILTEX INTERNATIONAL CORP., defendant-appellee. [G.R. No. L-37788 September 30, 1983] ESCOLIN, J.: This appeal, certified to this Court by the defunct Court of Appeals, challenges the decision of the Court of First Instance of Rizal which dismissed the complaint of appellant Artemio Castillo for reinstatement and payment of back wages, and ordered him to pay defendant Filtex International Corporation, hereinafter referred to as FILTEX the sum of P1,000.00, as attorney's fees, plus costs. The facts culled from the pleadings and the stipulation of facts entered into at the pre-trial are as follows: Artemio Castillo, an employee of FILTEX and a member of the Samahan ng Malaya Manggagawa sa Filtex (FFW), SAMAHAN for short, was charged together with others in the Municipal Court of Makati with the offense of slight physical injuries, for his alleged involvement in a mauling and shining incident which ed sometime in July 1964 at the height of a strike called by the SAMAHAN. During the pendency of the case, Castillo was suspended from his job. On July 8, 1964, FILTEX and SAMAHAN entered into a "Return Work Agreement", paragraphs 3 and 4 of which read as follows: 3. That all employees of the company who struck and committed violence and other unlawful acts and against whom court cases are filed or to be filed, shall be suspended by the company upon filing of such cases by the fiscal with the proper courts for as long as the said cases shall remain pending in court; 4. That in the event the employees referred to in the preceding paragraph are found innocent. by the courts then the COMPANY agrees to reinstate them to their respective jobs with back wages minus whatever earnings they earned during the period of suspension; otherwise, if found guilty they shall remain dismissed; After trial, the Municipal Court of Makati rendered a decision, convicting Castillo of slight physical injuries. However, on appeal, the Court of First Instance of Rizal dismissed the case in an order dated November 28, 1966. Thereafter, Castillo asked for reinstatement to his former job and payment of back wages. When FILTEX paid no head to his demands, Castillo instituted the corresponding action in the Court of First Instance of Rizal, claiming that the dismissal of the criminal case justified his reinstatement and payment of back wages, pursuant to paragraph 4 of the "Return to Work Agreement." FILTEX filed a motion to dismiss on grounds of lack of cause of action and want of jurisdiction of the court, the case being allegedly within the exclusive jurisdiction of the Court of Industrial Relations. Upon denial of the motion to dismiss, FILTEX filed its answer. At the pre- trial, the parties defined the principal issue thus: Is the plaintiff entitled to reinstatement and back wages after the dismissal of the charge against him in accordance with paragraph 4 of the "Return to Work Agreement."? On the bases of the parties, memoranda and the facts stipulated at the pre-trial the case was submitted for decision. Thereafter, the lower court rendered the aforestated decision, dismissing the . It ratio its judgment as follows: The plaintiff in this case was found guilty by the Municipal Court of Makati. With the dismissal of the case by the Court of First Instance of Rizal, could it be inferred that the plaintiff was found innocent? The Court cannot but rule otherwise in view of the fact that the dismissal of the case was only because of the failure of the complainant to appear at the scheduled trial. It must be noted that the agreement to reinstate an employee in the category of the plaintiff expressly states that there must be a finding of innocence by the courts. It did not stipulate that the case should be dismissed. Hence, this appeal.

Page

We find the appeal impressed with merit. While it is true that appellant was convicted in the Municipal Court of Makati of the offense of slight physical injuries, it is undisputed that on Appeal, the Court of First Instance of Rizal dismissed the case for failure of the witnesses for the prosecution to appear. Section 7 of Rule 123 of the Rules of Court, the rule in force at the time of the perfection of the appeal, reads as follows: Trial de novo on appeal. An appealed case shall be tried in an respects anew in the courts of first instance as if it had been originally instituted in that court. Applying the foregoing rule, the judgment of conviction rendered by the municipal court was vacated upon perfection of the appeal, to be tried de novo in the court of first instance as if it were originally instituted therein. The phrase "to vacate" applied to a judgment means "to annul, to render void." 1 Since the criminal case was ultimately dismissed, the constitutional presumption of innocence 2 in favor of the appellant should be applied. The following disquisition on this constitutional guarantee in People vs. Dramayo 3 is enlightening. Thus: 'It is to be admitted that the starting point is the presumption of innocence. So it must be, according to the Constitution. That is a right safeguarded both appellants. Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by person on trial under such an exacting test could sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. So it has been held from the 1903 decision of United States v. Reyes. It seems needless to state that the innocence of the appellant need no longer be proved, since under the fundamental law his innocence is presumed. But the appellee argues that the Return to Work Agreement requires an express finding of innocence by the court in order to entitle an employee to reinstatement and back wages; that no such finding of innocence had been made because the criminal case was dismissed on a mere technicality, i.e, the failure of the prosecution witnesses to appear at the trial; and that the interpretation of said agreement should not be stretched to include a "mere presumption of innocence under the law." The argument is incompatible with the basic tenet embodied in the constitutional provision on protection to labor. 4Cognizant of this State policy, this Court is constrained to interpret the agreement in question in favor of the claim of the laborer and against that of management. As emphasized by Chief Justice Fernando: If it were not thus, there is no fealty to the truism that the state exists to promote the welfare of al. It is to be judged then, to paraphrase Laski, by the extent to which it contributes to the substance of man's happiness. Necessarily, the whole citizentry is included. It follows likewise that those who are less fortunate in terms of economic well-being should be given preferential attention. For if such be not the case, then the policy marks itself as failing in its basic objective. Negligence on its part to do so may well cause a tear in the fabric of unity that binds a people together. It is easily understandable then why there should be this state policy. It dispels any doubt that in weighing the claims of labor as against that of , management, it is to be preffered. ... The obligation to protect labor is incumbent on the state. It is a command to live up to. In the final analysis, it is as simple as that. That is the welfare state concept vitalized. Upon these premises, We declare that appellant Artemio Castillo is entitled to reinstatement and payment of back wages. ACCORDINGLY, the judgment appealed from is hereby set aside. Let the records be remanded to the Labor Arbiter of the National Labor Relations Commission for determination of the amount appellant is entitled to as back wages. SO ORDERED.

Page

(2) CORAZON C. GONZAGA, petitioner, vs. THE HONORABLE SANDIGANBAYAN (FIRST DIVISION), THE PEOPLE OF THE PHILIPPINES, and THE DEPARTMENT OF EDUCA PETITION CULTURE AND SPORTS, respondents. [G.R. No. 96131 September 6, 1991] PADILLA, J.: Assailed in this petition for review on certiorari are two (2) resolutions of the Sandiganbayan, dated 10 September 1990 and 30 October 1990, respectively, rendered in Criminal Case No. 14404, entitled "People vs. Corazon C. Gonzaga" (For: Malversation under Article 217 of the Revised Penal Code). The resolution dated 10 September 1990 granted the prosecution's motion to suspend accused-petitioner', pendente lite, from her position as school principal of Malabon Municipal High School, Malabon, Metro Manila. The resolution dated 30 October 1990 denied accused-petitioner's motion for reconsideration of the 10 September 1990 resolution. Petitioner alleges in her present petition 1 that a complaint for malversation of public funds was filed against her, in her capacity as School Principal of the Malabon Municipal High School, Malabon, Metro Manila. The complaint was filed before the Ombudsman by the Municipal Administrator of the Municipality of Malabon, based on the audit report of the Commission on Audit, wherein petitioner as an accountable officer is alleged to have incurred a shortage of P15,188.37; that an information 2 dated 2 March 1990 was thereafter filed against petitioner before the Sandiganbayan for the crime of malversation of public funds under Article 217 of the Revised Penal Code; 3 that before she could be arraigned, accused-petitioner filed with respondent court a motion for re- investigation, which motion was denied by said court in its resolution dated 2 July 1990; 4 that on 17 August 1990, accused-petitioner pleaded not guilty to the crime charged; and that on the same date, the prosecution filed a motion seeking to suspend, pendente lite, the accused as school principal of the above-named school, 5 on the basis of Section 13, Republic Act 3019 ("Anti-Graft and Corrupt Practices Act"), as amended by Batas Pambansa Blg. 195. 6 The resolution dated 10 September 1990 granted the prosecutions motion to suspend the accused, pendente lite, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, accused CORAZON GONZAGA is hereby suspended pendente lite from her position as Principal of the Malabon National High School, Malabon, Metro Manila and from such other public positions that she maybe holding, effective immediately upon notice hereof. Let a copy of the Resolution be furnished to the Secretary of the Department of Education, Culture and Sports, Intramuros, Manila for implementation thereof and to inform this Court of the action he has taken thereon within five (5) days from receipt hereof. 7 Petitioner's motion for reconsideration of the above-quoted resolution was, as aforestated, denied by the respondent court in its resolution dated 30 October 1990, dispositive part of which reads: Considering the mandatory character of Sec. 13 of R.A. No. 3019 and the various decisions of the Supreme Court upholding the validity of the same, accused Gonzaga's Motion for Reconsideration of the resolution of this Court dated September 10, 1990 suspending her pendente lite is denied. 8 In the present petition, petitioner questions the validity of the suspension imposed on her as school principal of Malabon Municipal High School by the aforestated resolutions of the respondent court. We find merit in the petition. It will be noted that in the questioned resolutions, respondent court imposed on petitioner an indefinite period of suspension, pendente lite, from her mentioned office, on the basis of Section 13, Rep. Act 3019, as amended, earlier quoted. Petitioner at the outset contends that Section 13 of Rep. Act 3019, as amended, is unconstitutional as the suspension provided thereunder partake of a penalty even before a judgment of conviction is reached, and is thus violative of her constitutional right to be presumed innocent. We do not accept the contention because: firstly, under Section 13, Rep. Act 3019, suspension of a public officer upon the filing of a valid information is mandatory. 9 What the Constitution rejects is a preventive suspension of indefinite duration as it raises, at the very least, questions of denial of due process and equal protection of the laws; in other words, preventive suspension is justifiable for as long as its continuance is for a reasonable length of time; 10 secondly, preventive suspension is not a penalty; 11 a person under preventive suspension, especially in a criminal action, remains entitled to the constitutional presumption of innocence as his

Page

culpability must still be established established 12 thirdly, the rule is that every law has in its favor the presumption of validity, and that to declare a law unconstitutional, the basis for such a declaration must be clearly established. 13 The issue in this case, as we see it, is not whether Section 13, Rep. Act 3019 is valid or not, but rather whether the same is constitutionally applied in relation to the surrounding circumstances. 14 It is worthy to note that even prior to the cases of Deloso (1988) and Doromal (1989), to be discussed shortly, pronouncements had already been made by the Court in the cases of Garcia (1962) and Layno (1985) 15 to the effect that a preventive suspension lasting for an unreasonable length of time violates the Constitution. In the more recent cases of Deloso vs. Sandiganbayan, and Doromal vs. Sandiganbayan, 16 suspension under Section 13 of Rep. Act 3019 was held as limited to a maximum period of ninety (90) days, in consonance with Section 42 of Pres. Decree No. 807 (otherwise known as the "Civil Service Decree"). 17 We see no cogent reason why the same rule should not apply to herein petitioner. In fact, the recommendation of the Solicitor General (counsel for public respondent) is that, inasmuch as the suspension mentioned under Section 13 of Rep. Act 3019 is understood as limited to a maximum duration of ninety (90) days, the order of suspension imposed on petitioner, having been rendered on 10 September 1990, should now be lifted, as suspension has already exceeded the maximum period of ninety (90) days. All told, preventive suspension is not violative of the Constitution as it is not a penalty. In fact, suspension particularly under Section 13 of Rep. Act 3019 is mandatory once the validity of the information is determined. 18What the Constitution abhors is an indefinite preventive suspension as it violates the due process and equal protection clauses, 19 and the right of public officers and employees to security of tenure. 20 Henceforth, considering that the persons who can be charged under Rep. Act 3019, as amended, include elective and appointive officers and employees, and futher taking into account the rulings in the Deloso and Doromalcases, the ninety (90)-day maximum period for suspension under Section 13 of the said Act shall apply to all those who are validly charged under the said Act, whether elective or appointive officer or employee as defined in Section 2(b) of Rep. Act 3019. 21 To the extent that there may be cases of indefinite suspension imposed either under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance of all concerned that this Court set forth the rules on the period of preventive suspension under the aforementioned laws, as follows: 1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a maximum period of ninety (90) days, from issuance thereof, and this applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act. 2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or employees whose positions are embraced in the Civil Service, as provided under Sections 3 and 4 of Id Pres. Decree 807; 22 and shall be limited to a maximum period of ninety (90) days from issuance, except where there is delay in the disposition of the case, which is due to the fault, negligence or petition of the respondent, in which case the period of delay shall not be counted in computing the period of suspension herein stated; provided that if the person suspended is a presidential appointee, 23 the continuance of his suspension shag be for a reasonable time as the circumstances of the case may warrant. WHEREFORE, the petition is GRANTED and the questioned resolutions of the respondent Sandiganbayan, dated 10 September 1990 and 30 October 1990, are hereby SET ASIDE. Petitioner may re-assume the position of school principal of the Malabon Municipal High School, Malabon Metro Manila without prejudice to the continuation of trial on the merits of the pending case against her in the Sandiganbayan, unless there are other supervening legal grounds which would prevent such re-assumption of office. SO ORDERED.

Page

(3)RAMON ALBORES petitioner, vs. THE HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. L-36513 October 23, 1984] MELENCIO-HERRERA, J.: This is a petition for review of the Decision of the then Court of Appeals affirming that of the former Court of First Instance of Cotabato City, convicting Ramon Albores (ACCUSED), petitioner herein, of Malversation of Public Property under Article 217 (4) of the Revised Penal Code, and sentencing him to an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of prision mayor, as minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal as maximum; to suffer perpetual special disqualification; to pay a fine of P75,656.94; to indemnify the Rice and Corn Administration in the sum of P75,656.94; and to pay the costs. 1 On May 25, 1966, an Information for Malversation of Public Property was filed against the ACCUSED, alleging: t.hqw That in or about the period from March 14, 1964 to May 4, 1965, or sometime prior thereto, in the City of Cotabato, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then the warehouseman (bodeguero) of the Warehouse No. 8 operated in the City of Cotabato by the Rice and Corn Administration, a Philippine Government instrumentality, and as such, is responsible for all the stocks of corn, belonging to the Philippine Government, stored in the said warehouse by reason of his said position did then and there wilfully, unlawfully and feloniously, with grave abuse of confidence, misappropriate, embezzle and take away from the said warehouse 4,658 cavans and 38 kilos of corn valued at the sum of P75,656.94, Philippine Currency, which he appropriated and converted to his own personal use and benefit, to the damage and prejudice of the Philippine Government in the said sum of P75,656.94. 2 Upon arraignment, the ACCUSED pleaded not guilty. 3 The ACCUSED was employed by the Rice and Corn Administration (RCA). Northern Cotabato Branch, in 1962 as weigher-classifier. On March 1, 1963, he was appointed shipping clerk, and upon recommendation of Branch Manager Vicente Caballero, he was promoted to warehouseman effective April 1, 1964, 4 of RCA warehouse No. 8 located in Cotabato City, rented by the RCA from Lam Sam Trading. As a warehouseman, the ACCUSED was authorized to purchase corn grain from farmers and deposit the same in the warehouse (Purchases); to receive on deposit from other RCA warehouses transfers of stock (Transfers-in) and to ship out stock in his custody upon orders of his supervisor (Transfers-out) 5 All transactions were evidenced by tally sheets and/or receipts (Exhibits "B-1" to "B49", "C-1" to "C-50"; "D-1" to "D-50"; "E-1" to "E-50"; "F-1" to "F-6"; "G-1" to "G-50"). Assisting the ACCUSED as warehouseman were a weigher-classifier, two security guards and laborers on a piece work basis. 6 For the months of March to August 1964, the Tally Sheets signed by the ACCUSED, or by the weigher-classifier, showed that the ACCUSED had in his custody 113,736 cavans and 25 kilos of corn grain. Shipped out in the months of April to November 1964 were 109,077 cavans and 43 kilos from the said stock (Exhibits "A", "A-1", "A-4" & "OO"), or, a difference of 4,658 cavans and 38 kilos. By the end of November, 1964, or a period roughly of eight (8) months, he no longer had any stock on hand. 7 In May, 1965, an audit of the ACCUSED's transactions was made based on the records furnished by him, namely, the weigher's tally sheets, purchase invoices, trucking receipts, bills of lading and monthly stock report. 8 A liquidation report showed that the ACCUSED had incurred a shortage of 4,658 cavans and 38 kilos valued at P75,656.94 at the prevailing market price of P16.24 per cavan (Exhibits "MM"; "OO"). On May 31, 1965, the ACCUSED was sent a letter demanding the restitution or payment of the shortage. 9 Having failed to make good the shortage, the ACCUSED was dismissed for cause on June 8, 1965 (Exhibit "LL"). In a letter, dated August 26, 1965, addressed to the RCA Chairman-General Manager, the ACCUSED acknowledged the shortage of 4,658 cavans but requested a re-liquidation, with allowances for shrinkage and predators (Exhibit "1"), which, however, RCA did not answer. Instead, the present Information was filed against him. In convicting the ACCUSED, the Trial Court, as affirmed by the then Court of Appeals, found that "the huge shortage could not have been possibly caused by the alleged shrinkage and predators" for the reason that: t.hqw

Page

Indeed, the claim for tolerable allowance asserted by the accused in this particular case is rather vague and speculative. The accused failed to establish in evidence the quantity and amount of losses incurred in each of the various purchases and transferring of corn grains stored in Warehouse No. 8 until they were shipped out. xxx xxx xxx ... ... Formal demand upon the accused was made to restitute, pay or otherwise explain the shortage in a letter dated May 27, 1965 sent by Field Auditor Jose O. Yuse to the accused to make good the demand. The failure of the accused to make good the demand created a prima facie evidence that the accused misappropriated the shortage. 10 Article 217 of the Revised Penal Code does provide that it shall be prima facie evidence of malversation when a public officers fails to have duly forthcoming any public funds or property for which he is chargeable on demand by any duly authorized officer. That presumption of guilt is founded on human experience and is valid However, the accused can present evidence to rebut it. 11 In the instant case, the ACCUSED has presented evidence which engenders reasonable doubt in our minds as to his culpability. The ACCUSED was the one who requested that his accountability be liquidated because he wanted to transfer to another office. 12 Mr. Arsenio Guerra, then the RCA Agency Manager and his immediate supervisor, testified that there was no report of any anomaly having been committed by the ACCUSED 13 The ACCUSED himself voluntarily submitted the records by which the auditors established the shortage. 14 When informed of the shortage by the auditors, the ACCUSED consulted the Branch Manager, Vicente Caballero, the Chief of the Accounting Department, and the Agency Manager, Arsenio Guerra, who informed him that he was found short because he was not given any shrinkage allowance. 15 This conduct of the ACCUSED in consulting his superiors we find consistent with good faith. Guerras testimony on his advice to the ACCUSED follows: t.hqw ATTY. CAMELLO: Q You said Ramon Albores asked you why he was found short, did you make any comment on that statement made by Ramon Albores to you expressing his surprise why he should be found short? A Yes, sir. Q What was your comment? A Well, I told him: You were found short in the liquidation made by the auditors because you were not given any shrinkage allowance. Q Why do you say that 'you were not given shrinkage allowance? What prompted you to tell that to him? A Based on the liquidation report, I found it myself and I saw when he brought it. Say, for example corn weighing one hundred kilos,I know that the liquidation is also one hundred kilos. So there was no shrinkage allowance given to you. ATTY. CAMELLO: Q You mentioned of a shrinkage allowance. What do you mean by shrinkage allowance? A Well, I mentioned about shrinkage allowance because during my experience as RCA employee since the NARIC time, and of course, being an agency in-charge, I used to make a survey of private rice mills here in the City of Cotabato and tried to ask them: 'Do you think that the corn being stored in your bodega, say, for a period of one month, two months or three months, will depreciate or will have any loss in weight ? Q And what was the result of that survey that you made?

Page

A They told me: 'Yes, of course, it will depreciate or there will be shrinkage or loss in weight after storage of one, two or three months. 16

Thus it was that Agency Manager Guerra advised the ACCUSED to write the Head Office in Manila to ask for a re-audit. 17 The ACCUSED did so in a letter, dated August 26, 1965, addressed to the Chairman-General Manager of RCA, wherein he requested for shrinkage allowance and allowance for predators (Exhibit "1"), but the same remained unheeded. It was because the ACCUSED was taking time asking for advice from his superiors that he did not answer the demand letter, dated May 27, 1965, from the Field Auditor, besides the fact that he was asking for copies of his reports so he could verify the alleged shortage, but these reports were no longer made available to him, It was also because of his inability to verify from his own records that the ACCUSED refused to sign the Statement of Daily Purchases of Corn Grains (Exhibit "A"), the Statement of Transfers-In from Midsayap (Exhibit "A-1"), the Statement of Transfers-Out to Cebu Branch (Exhibit "A-4") and the Summary of Accountability (Exhibit "OO") 18 as required by the examining auditors. and not out of a feeling of guilt as intimated by the prosecution. Crucial to the determination of The culpability of the ACCUSED is the question of whether he is entitled to the allowance for "shrinkage" and "predators" that he had officially requested but was denied him. Presented in evidence by the defense was a Memorandum to the RCA Board of Directors from Mateo B. de Dios, Assistant to the Chairman & Manager for Operations, sometime in 1966, the pertinent portions of which read: t.hqw Records of studies of the defucnt NARIC and the present management shows that, ordinarily, which corn is procured say a few days or weeks after harvest the kernels contain high moisture ranging from 20 to 30 percent. To be safe for storage, moisture content should be about 14% or slightly lower. This shows that from the time the corn is harvested to the time that tie grain is safe for storage a great deal moisture is lost. xxx xxx xxx A warehouseman Therefore, who purchases a cavan of corn grains with a moisture content of 15% should receive the cereal at a buying weight of 59 kilos. but should pay the purchase price only for the weight of 56 kilos. Upon liquidation of his stock the warehouseman should be made accountable only for the weight of 56 kilos per cavan and not the original buying weight of 59 kilos per cavan. In other words, his recorded receipt of 59 cavans purchased should be considered only as 56 kilos upon liquidation of this stock accountability. Aside from the above allowance for the loss of moisture content of stored cereal the defunct NARIC management has provided tolerable allowances based on intensive studies and experiment made for losses due to depredation caused by insects, respondents, birds and other pests. Such studies provides an allowance not exceeding 2% of stocks stored for one (1) year. The allowable rates are proportionately graduated according to the length of storage and quantity of stored cereal stock handled. 19 Asked by this Court to comment on said Memorandum, the Acting Director, Grains Economics, National Grains Authority, in a communication dated July 26, 1973, stated: t.hqw xxx xxx xxx Per quoted excerpts from the memorandum of Mr. Mateo B. de Dios, Assistant to the Chairman and Manager for Operations of the Rice and Corn Administration, as specified in Supreme Court Resolution dated June 4, 1973, an RCA warehouseman may accept for storage corn grains with moisture content of 15% and a weight of 59 kilos per cavan and would only be accountable for 56 kilos per cavan on liquidation. This simply indicates that RCA warehouseman are given allowances for shrinkage due to the moisture contents, stocks depredation, spillage, etc. of stocks on storage. Evaluation of tolerable allowances given to RCA warehouseman is based on a case to case basis and to clearly assess the tolerable allowances given to a specific warehouseman, the need for a liquidation report is imperative. 20 Also presented in evidence by the defense was a standard form of an Agreement for Purchase and Sale of Corn between the RCA and Contractors, who are bonded warehouseman, providing for, among others: t.hqw (e) Allowance for shrinkage, depreciation and spillage of stocks while store(d) in his (their) warehouse. (Exhibit "4A")

Page

While the agreement is with a contractor, it serves to confirm that it is normal in the business of storage of corn to provide for allowance for shrinkage. Additionally, the General Manager of Lam Sam Trading, Robert Lu who had been engaged in the business of rice and corn since 1953, testified that it is customary in the business that, a loss of 2 kilos per 1 cavan if storage is 1 month, 2.5 kilos per 1 cavan if storage is 2 months, and 3 kilos per cavan if storage is 3 months, is allowable on the accumulated stock of corn grain. Following is his testimony:t.hqw Q And in your experience as businessman in this particular fine of business, have you been buying corn using that accepted commercial practice? A Yes, sir, we do. Q Now, what can you say about the percentage of shrinkage of corn that you buy? How much was the percentage of shrinkage of the corn, if any, that you buy from the time you buy them up to the time you dispose of them? A Well basing on my experience in the business that we have in storing corn grains inside, I would say the moisture contents of 17 percent is due to shrinkage of corn, for the period of one month the shrinkage will be more or less two kilos per cavan. xxx xxx xxxt.hqw Q So, based on your testimony, therefore, if a cavan of corn is 56 kilos and you store that in one month's time, it becomes 54 kilos, is that correct? A More or less. Q And if it is stored for two months? A It should be more than two kilos. Q How many kilos would be the shrinkage if the storage is for two months? A The very very conservative shrinkage should be more than two and a half kilos. if the corn grains is stored in the bodega for three months, how much shrinkage would a cavan of corn would have suffered? A The minimum shrinkage should be more than three kilos every three months. xxx xxx xxx 21 Aside from shrinkage due to loss of moisture content, the evidence likewise discloses that the stock of corn under the custody of the ACCUSED was attacked by weevils sometime in August and September 1964, prompting Agency Manager Guerra, to write the Branch Manager of RCA in Cotabato City, Vicente F. Caballero, to have the warehouse chemically treated and sprayed, upon request of the ACCUSED (Exhibit "2"). This attack by weevils would account for further shrinkage. Notwithstanding the foregoing considerations, however, the tolerable allowances given to RCA warehousemen were not accorded the ACCUSED for some unexplained reason except for the statement that such allowances are given on a "case by case basis". The Information alleges that the ACCUSED is liable for malversation of 4,658 cavans and 38 kilos of corn, which is the deficiency between 113,736 cavans and 25 kilos of the total stocks received by ACCUSED and 109,077 cavans and 43 kilos of stocks shipped out by the ACCUSED (Exhibit "OO"). The latter figure of 109,077 cavans and 43 kilos is actually an erroneous computation, since the total grain shipped out was 6,162,113 kilos (Exhibit "A-4"). Converting this into cavans by dividing the same by 56 kilos a cavan is equivalent to 56 kilos) the quotient should be 110,037 cavans and 41 kilos and not 109,077 cavans and 43 kilos as it appears in Exhibit "OO". The correct deficiency would, therefore, be only 3,698 cavans and 40 kilos, the difference after deducting 110,037 cavans and 21 41 kilos from 113,736 cavans and 25 kilos. 22 Considering that an allowance of 2.5 kilos per cavan can be attributed to shrinkage,

Page

spillage and predators, we multiply 113,736 cavans by 2.5 kilos and the result would be 284,340 kilos. Converting 284,340 kilos into cavans by dividing it by 56 kilos, the quotient would be 5,077 cavans representing the tolerable allowance for shrinkage, spillage and predators. The deficiency of 3,698 cavans and 40 kilos or even if we consider the computation of the RCA auditors of 4,658 cavans and 38 kilos, would be well within the allowable shortage. The prosecution did not present evidence contrary to the defense of the ACCUSED. It promised to present as rebuttal witness, the Chief of Warehousing and Billing Department of the RCA to testify on shrinkage, but it closed its evidence without said testimony. 23 The prosecution submits that the shortage is too great to be attributable to shrinkage. Even if so, that consideration is neither sufficient to convict. The evidence on record fails to convince us that the shortage herein was due to misappropriation or embezzlement or conversion by the ACCUSED, an inexperienced warehouseman, of the compensable stock in his custody for his own personal use. WHEREFORE, upon reasonable doubt, the accused Ramon Albores is hereby acquitted of the crime of Malversation of Public Property. Costs de officio. SO ORDERED.

Page

RIGHT TO BE HEARD (4) PEOPLE OF THE PHILIPPINES, petitioner, vs. THE PRESIDING JUDGE, REGIONAL TRIAL COURT, FIRST 'JUDICIAL REGION, BRANCH XLV, URDANETA, PANGASINAN, and RODOLFO VALDEZ, JR., respondents. [G.R. No. L-64731 October 26, 1983] RELOVA, J.: Private respondent Rodolfo Valdez, Jr. is charged in Criminal Case No. U-3439 with murder before the Regional Trial Court of Pangasinan, First Judicial Region, Branch XLV in Urdaneta. He is out on a P30,000.00 bail bond which contains the following conditions The aforenamed, as bondsmen, hereby jointly and severally undertake that the above-mentioned defendant, as principal therein will appear and answer the charge above-mentioned in whatever Court it may be tried, and will at all times hold himself amenable to the orders and processes of the Court, and if convicted, will appear for judgment, and render himself to the execution thereof; or that if he fails to perform any of these conditions will pay to the Republic of the Philippines the sum of Thirty Thousand Pesos (P30,000.00) ... (Emphasis supplied) After his arraignment, Rodolfo Valdez, Jr., thru his counsel, manifested orally in open court that he was waiving his right to be present during the trial. The prosecuting fiscal moved that respondent Rodolfo Valdez, Jr. be compelled to appear and be present at the trial so that he could be Identified by prosecution witnesses. Respondent judge in his Order, dated April 15, 1983, sustained the position of private respondent who cited the majority opinion in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al., 63 SCRA 546, and held that "he cannot be validly compelled to appear and be present during the trial of this case." Hence, this petition for certiorari with prayer, among others, (1) that pending the resolution of this case on the merits, a writ of preliminary injunction be issued to restrain respondent judge from enforcing his Order dated April 15, 1983; (2) that said Order dated April 15, 1983 of respondent judge be annulled and set aside and (3) that private respondent Rodolfo Valdez, Jr. be compelled to appear during the trial of Criminal Case No. U-3439 whenever required to do so by the trial court. On August 10, 1983, We resolved "(a) to require the respondents to file an ANSWER thereto, within ten (10) days from notice hereof, and not to move to dismiss the petition; and (b) to ISSUE effective immediately and until further orders from this Court, a TEMPORARY RESTRAINING ORDER enjoining the respondent Judge from enforcing the Order dated April 15, 1983, allowing the accused, Rodolfo Valdez, Jr. to totally waive his presence during the trial of Criminal Case No. U-3439, entitled "People of the Philippines, Plaintiff, versus Rodolfo Valdez, Jr., alias Nio, et al., Accused," of the Regional Trial Court of Pangasinan, Branch XLV at Urdaneta, Pangasinan." (p. 17, Rollo) Private respondent filed his answer to the petition and, after deliberation, We resolved to give due course to the petition and to decide the issue, without requiring memorandum from the parties, as to whether or not respondent Rodolfo Valdez, Jr.. despite its waiver of his right to be present, can he compelled by the trial court to be present during the trial of Criminal Case No. U-3439 so that he car, be Identified by the witnesses for the prosecution Article IV of the 1973 Constitution, Section 19 thereof provides SEC. 19. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified. It is the submission of private respondent that the above constitutional provision grants him absolute right to absent himself from the trial of the case filed against him despite the condition of his bail bond that he "will at all times hold himself amenable to the orders and processes of the Court." In the case of People vs. Prieto, Sr., 84 SCRA 198, it was held that "[r]espondent Judge unfortunately assumed that thereby a defendant was thus conferred a fundamental right to ignore the terms of the bond posted by him in accordance with his constitutional right to bail. The present Constitution certainly has made a dent on the traditional and correct concept of a bail as given to allow the

Page

10

release of a person in the custody of the law on condition that he would appear before any court whenever so required. Upon failure to do so, the warrant of arrest previously issued can be a sufficient justification for his confinement further, in Aquino, Jr. vs. Military CommissionNo. 2, et al., 63 SCRA 546, the late Chief Justice Fred Ruiz Castro, in his concurring and dissenting opinion, clearly stated that "the accused may waive his presence in the criminal proceedings except at the stages where Identification of his person by the prosecution witnesses is necessary. I might agree to the proposition of 'total' waiver in any case where the accused agrees explicitly and unequivocally in writing signed by him or personally manifests clearly and indubitably in open court and such manifestation is recorded, that whenever a prosecution witness mentions a name by which the accused is known, the witness is referring to him and to no one else." Stated differently, the 1973 Constitution now unqualifiedly permits trial in absentia even of capital offenses, provided that after arraignment he may be compelled to appear for the purpose of Identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. Reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceedings without giving the People's witnesses the opportunity to Identify him in court, he may in his defense say that he was never Identified as the person charged in the information and, therefore, is entitled to an acquittal. Furthermore, it is possible that a witness may not know the name of the culprit but can Identify him if he sees him again, in which case the latter's presence in court is necessary. ACCORDINGLY, the petition is granted and the assailed Order, dated April 15, 1983, of respondent judge is hereby ANNULLED and SET ASIDE, and the restraining order enjoining said respondent judge from enforcing his appealed order is made permanent. SO ORDERED.

Page

11

(5) ELIAS CARREDO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, VICTORIA CATOSTOS, and HON. GENEROSO A. JUABAN (Judge of the Regional Trial Court of Cebu, Branch VII), respondents. [G.R. No. 77542 March 19, 1990] GANCAYCO, J.: The issue in this case is whether or not an accused who, after arraignment, waives his further appearance during the trial can be ordered arrested by the court for non-appearance upon summons to appear for purposes of identification. On February 3, 1983, petitioner was charged with malicious mischief before the Municipal Trial Court of Malabuyoc, Cebu City. He deposited a cash bond for his provisional liberty. Upon arraignment, he entered a plea of not guilty and thereafter he filed a written waiver of appearance dated May 14, 1984 which reads as follows: IN COMPLIANCE with the Letter of Institution No. 40, dated November 10, 1972, the undersigned accused hereby waives his appearance during the trial or any stage thereof and he agrees that in case he fails to appear for trial despite due notice, his absence will be deemed as express waiver of his right to be present, and the Honorable Court may proceed with the trial of his case as if he were present. In this connection, he admits that he could be identified by witnesses who are testifying at the time that said accused was not present. (Emphasis supplied) SO ORDERED. At the hearing on August 14, 1985 the prosecution moved for the recall of its principal witness for the purpose of identifying the accused-petitioner who was not then present. Hence, the hearing was re-scheduled on October 9, 1985 and a subpoena was issued to petitioner who failed to appear on said date. The defense counsel justified petitioner's absence in that the latter's presence can no longer be required as he already filed a written waiver of appearance. Nevertheless, the municipal judge issued an order dated May 27, 1986 ordering the arrest of petitioner, the confiscation of the cash bond, and at the same time ordering the bondsman, who is the petitioner himself, to show cause why no judgment should be rendered against the bondsman. A motion for reconsideration thereof having been denied, petitioner elevated the matter to the Regional Trial Court of Cebu City through a petition for certiorari and prohibition. In an order dated January 28, 1987, the said trial court denied the same. Hence, the herein petition for review on certiorari questioning the dismissal of the petition by the trial court and submitting for determination the issue of whether or not petitioner can be compelled, on pain of being arrested and his cash bond getting confiscated, to be present during the trial for purposes of his identification by the prosecution witnesses in a complaint for malicious mischief despite his written waiver of appearance. The issue is not new. Section 19, Article 4 of the 1973 Constitution which was then in force provides as follows: Sec. 19. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified. 1 It is the proper interpretation and application of this constitutional provision on which the resolution of this petition depends. In Aquino, Jr. vs. Military Commission No. 2 2 where a similar issue was presented, six justices were of the view that petitioner may waive his right to be present at all stages of the proceedings, while five justices were in agreement that he may so waive such right, except when he is to be identified. The result was that the order of the respondent military commission requiring his presence at all times during the proceedings before it should be modified in the sense that petitioner's presence shall be required only in the instance just indicated. 3 In People vs. Presiding Judge, 4 the accused was charged with murder before the Regional Trial Court of Pangasinan. Upon his arraignment he manifested orally in open court that he is waiving his right to be present during the trial. The prosecuting fiscal moved that the accused be compelled to appear and be present at the trial so that he can be identified by the prosecution witnesses. This court sustained the position of the accused on the strength of the ruling of this Court in Aquino. However, this Court made the following disquisition:

Page

12

In the case of People vs. Prieto, Sr., 84 SCRA 198, it was held that "[r]espondent Judge unfortunately assumed that thereby a defendant was thus conferred a fundamental right to ignore the terms of the bond posted by him in accordance with his constitutional right to bail. The present Constitution certainly has not made a dent on the traditional and correct concept of a bail as given to allow the release of a person in the custody of the law on condition that he would appear before any court whenever so required. Upon failure to do so, the warrant of arrest previously issued can be a sufficient justification for his confinement." Further, in Aquino, Jr. vs. Military Commission No. 2, et al., 63 SCRA 546, the late Chief Justice Fred Ruiz Castro, in his concurring and dissenting opinion, clearly stated that "the accused may waive his presence in the criminal proceedings except at the stages where identification of his person by the prosecution witnesses is necessary. I might agree to the proposition of "total" waiver in any case where the accused agrees explicitly and unequivocally in writing signed by him or personally manifests clearly and indubitably in open court and such manifestation is recorded, that whenever a prosecution witness mentions a name by which the accused is known, the witness is referring to him and to no one else." Stated differently, the 1973 Constitution now unqualifiedly permits trial in absentia even of capital offenses, provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. The reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceedings without giving the People's witnesses the opportunity to identify him in court, he may in his defense say that he was never identified as the person charged in the information and, therefore, is entitled to an acquittal. Furthermore, it is possible that a witness may not know the name of the culprit but can identify him if he sees him again, in which case the latter's presence in court is necessary. 5 Thus, in People vs. Presiding Judge, 6 this Court reiterated the rule in Aquino that the accused may waive his presence at the trial of the case his presence may be compelled when he is to be identified. Petitioner, however, argues that he should not be ordered arrested for non-appearance since he filed a written waiver that "he admits that he could be identified by witnesses who have testified at the time that said accused was not present" following the ruling of this Court in People vs.Presiding Judge. The aforestated statement in the waiver of appearance of petitioner that he admits he could be identified by the witnesses for the prosecution even in his absence is not such unqualified admission contemplated in Presiding Judge. What is stated in Presiding Judge as an exception is when the accused "unqualifiedly admits in open court after his arraingment the he is the person named as defendant in the case on trial," no more no less. In the present case petitioner only admits that he can be identified by the prosecution witnesses in his absence. He did not admit that he is the very person named as defendant in the case on trial. His admission is vague and far from unqualified. He cannot therefore seek the benefit of the exception recognized in Presiding Judge. It is important to state that the provision of the Constitution authorizing the trial in absentia of the accused in case of his nonappearance after arraignment despite due notice simply means that he thereby waives his right to meet the witnesses face to face among others. An express waiver of appearance after arraignment, as in this case, is of the same effect. However, such waiver of appearance and trial in absentia does not mean that the prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by its witnesses which is vital for the conviction of the accused. Such waiver of a right of the accused does not mean a release of the accused from his obligation under the bond to appear in court whenever so required. 7 The accused may waive his right but not his duty or obligation to the court. WHEREFORE, the petition is DENIED without pronouncement as to costs. SO ORDERED.

Page

13

(6) MANUEL BORJA, petitioner, vs. HON. RAFAEL T. MENDOZA, Judge of the Court of First Instance of Cebu (Branch VI) and HON. ROMULO R. SENINING, Judge of the City Court of Cebu (Branch I), respondents. [G.R. No. L-45667 June 20, 1977] FERNANDO, J.: The jurisdictional infirmity imputer to respondent Judge Romulo R. Senining of the City of Cebu which was not remedied by respondent Judge Rafael T. Mendoza of the Court of First Instance of Cebu in this certionrari proceeding was the absence of an arrainment of petitioner Manuel Borja, who was accused of slight physical injuries. This notwithstanding respondent Judge Senining proceeded with the trial in abssentia and thereafter, in a decision promulgated on August 18, 1976, found him guilty of such offense and sentenced him to suffer imprisonment for a period of twenty days of arresto menor. 1 Thereafter, an appeal was duly elevated to the Court of First Instance of Cebu presided by respondent Judge Mendoza. 2 It was then alleged that without any notice to petitioner and without requiring him to submit his memorandum, a decision on the appealed case was rendered on November 16, 1976 petitioner that the failure to arraign him is violative of his constitutional right to procedural due process, 3 more specifically of his right to be informed of the nature and cause of the accusation against him and of his right to be heard by himself and counsel. 4 Ther was thus, at the very least, a graveabuse of discretion. The Solicitor General, 5 when asked to comment, agreed that the procedural defect was of such gravity as to render void the decision of the City Court affirmed by the Court of First Instance. The comment was considered as answer, with the case being submitted for decision. Respect for the constitutional rights of an accused as authoritatively construed by this Court, duly taken note of in the comment of the Solicitor General, thus calls for the grant of the writ of certiorari prayed for. 1. The plea of petitioner to nullify the proceedings had in the criminal case against him finds support in the procedural due process mandate of the Constitution. It requires that the accused be arraigned so that he may be informed as to why he was indicted and what penal offense he has to face, to be convicted only on a showing that his guilt is shown beyond reasonable doubt with full opportunity to disprove the evidence against him. Moreover, the sentence to be imposed in such a case is to be in accordance with a valid law. 6 This Court, in People v. Castillo,7 speaking through Justice De Joya and following the language of the American Supreme Court, Identified due process with the accused having "been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded with the authority of a constitutional law, ..." 8 An arraignment thus becomes indispensable as the means "for bringing the accused into court and notifying him of the cause he is required to meet ... " 9 Its importance was stressed by Justice Moreland as early as 1916 in the leading case of United States v. Binayoh. 10 He pointed out that upon the accused being arraigned, "there is a duty laid by the Code [now the Rules of Court] upon the court to inform [him] of certain rights and to extend to him, on his demand, certain others. This duty is an affirmative one which the court, on its own motion, must perform, unless waived." 11 To emphasize its importance, he added: "No such duty, however, is laid on the court with regard to the rights of the accused which he may be entitled to exercise during the trial. Those are rights which he must assert himself and the benefits of which he himself must demand. In other words, in the arraignment the court must act of its own volition, ..." 12 In the terse and apt language of the Solicitor General: "Arraignment is an indispensable requirement in any criminal prosecution." 13 Procedural due process demands no less. 2. Nor is it only the due process guarantee that calls for the accused being duly arraigned. As noted, it is at that stage where in the mode and manner required by the Rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him. It is imperative that he is thus made fully aware of Possible loss of freedom, even of his life, depending on the nature of the crime imputed to him. At the very least then, he must be fully informed of why the prosecuting arm of the state is mobilized against him. An arraignment serves that purpose. Thereafter he is no longer in the dark. It is true, the complaint or information may not be worded with sufficient clarity. He would be in a much worse position though if he does not even have such an opportunity to plead to the charge. With his counsel by his side, he is thus in a position to enter his plea with full knowledge of the consequences. He is not even required to do so immediately. He may move to quash. What is thus evident is that an arraignment assures that he be fully acquainted with the nature of the crime imputed to him and the circumstances under which it is allegedly committed. It is thus a vital aspect of the constitutional rights guaranteed him. It is not useless formality, much less an Idle ceremony. 3. An equally fatal defect in the proceeding had before respondent Judge Senining was that notwithstanding its being conducted in the absence of petitioner, he was convicted. It was shown that after one postponement due to his failure to appear, the case was reset for hearing. When that date came, December 14, 1973, without petitioner being present, although his bondsmen were notified, respondent Judge, as set forth in the comment of the Solicitor General, "allowed the prosecution to present its evidence invoking Letter of Instruction No. 40. Only one witness testified, the offended party herself, and three documents were offered in evidence after which the prosecution rested its case. Thereupon, respondent City Court set the promulgation of the decision on December 28, 1973." 14 It could then conclude: :Verily the records clearly show that petitioner was not arraigned at all and was not represented by counsel throughout the whole proceedings in the respondent City Court." 15 It is indisputable then that there was a denial of petitioner's

Page

14

constitutional right to be heard by himself and counsel. As categorically affirmed by Justice Ozaeta for this Court in the leading case of Abriol v. Homeres: 16 "It is the constitutional right of the accused to be heard in his defense before sentence is pronounced on him." 17 He added further that such "constitutional right is inviolate." 18 There is no doubt that it could be waived, but here there was no such waiver, whether express or implied. It suffices to refer to another leading case, People v. Holgado, 19 where the then Chief Justice Moran emphatically took note of the importance of the right to counsel: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence." 20With the violation of the constitutional right to be heard by himself and counsel being thus manifest, it is easily understandable why the Solicitor General agreed with petitioner that the sentence imposed on him should be set aside for being null. 4. The provision in the present Constitution allowing trial to be held in absentia is unavailing. It cannot justify the actuation of respondent Judge Senining. Its language is clear and explicit. What is more, it is mandatory. Thus: "However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified." 21 As pointed out then by the Solicitor General, the indispensable requisite for trial in absentia is that it should come "after arraignment." The express mention in the present Constitution of the need for such a step emphasizes its importance in the procedural scheme to accord an accused due process. Without the accused having been arraigned, it becomes academic to discuss the applicability of this exception to the basic constitutional right that the accused should be heard by himself and counsel. 5. Nor did the appeal to the Court of First Instance presided by respondent Judge Mendoza possess any curative aspect. To quote anew from the comment of the Solicitor General: "Respondent Court of First Instance ... considered the appeal taken by the petitioner as waiver of the defects in the proceedings in the respondent City Court. Precisely, the appeal itself is tantamount to questioning those defects. In fact, the Memorandum in support of the appeal unmistakably raised as error the absence of petitioner at the arraignment and cited jurisprudence, commentaries and the rules to bolster his position. Specifically, the absence of an arraignment can be invoked at anytime in view of the requirements of due process to ensure a fair and impartial trial." 22 WHEREFORE, the petition for certiorari is granted. The decision of respondent Judge Romulo R. Senining dated December 28, 1973, finding the accused guilty of the crime of slight physical injuries, is nullified and set aside. Likewise, the decision of respondent Judge Rafael T. Mendoza dated November 16, 1976, affirming the aforesaid decision of Judge Senining, is nullified and set aside. The case is remanded to the City Court of Cebu for the prosecution of the offense of slight physical injuries, with due respect and observance of the provisions of the Rules of Court, starting with the arraignment of petitioner.

Page

15

(7) DANILO B. PARADA, complainant, vs. JUDGE LORENZO B. VENERACION, REGIONAL TRIAL COURT, BRANCH 47, MANILA, respondent. [A.M. No. RTJ-96-1353. March 11, 1997] TORRES, JR., J.: The case before us stems from a verified complaint filed by Danilo B. Parada against respondent Judge Lorenzo B. Veneracion for gross ignorance of the law, abuse of authority and rendering unjust and erroneous interlocutory orders and judgment in connection with Criminal Cases Nos. 93-121385 to 88, entitled People vs. Danilo Parada, which led to complainant Paradas premature incarceration at the Makati City Jail and Muntinlupa National Penitentiary. The undisputed facts of the case as found by the Office of the Court Administrator are as follows :
Complainant herein is the accused in the aforementioned case for four (4) counts of estafa which were initially raffled to Branch 30, RTC, Manila presided by Judge Senecio Ortile. Complainant is also duly bonded with the Eastern Assurance and Surety Corporation (EASCO). On October 23, 1993 complainant notified said court formally thru counsel of his change of address from 219 Cityland Condominium, Buendia Extension, Makati, Metro Manila to 2412 Nobel St., Bo. San Isidro, Makati, Metro Manila. On October 27, 1993 he also notified the Manager of the bonding company of his change of address. On February 8, 1994, Judge Ortile inhibited himself from trying the said case and thus, the case was re-raffled to the sala of respondent Judge Lorenzo Veneracion, and per order of April 26, 1994, the hearing of the case was set for June 3, 6, 7 and 8, 1994. Apparently, the notice of hearing dated April 27, 1994 was sent to complainants former address and that for failure of accused -complainant to appear on June 3, 1994, respondent ordered the arrest of herein accused-complainant, ordering the confiscation of the bond and a trial in absentia was conducted. Respondent Judge likewise assigned a counsel de officio, Atty. Jesse Tiburan of the Public Attorneys Office (PAO) as counsel for the accused. xxx Furthermore, a warrant of arrest was issued on June 3, 1994 with no bail recommended. On June 6, 7 and 8, 1994, respondent court issued orders noting the failure of the petitioner to appear and proceeded with the trial in absentia. On the hearing of June 8, 1994, the motion of counsel de officio of accused-complainant that defense be allowed to present evidence upon petitioners arrest, was denied and further held that the failure of the accused to appear is a waiver of his right to adduce evidence. xxx. On November 25, 1994, a decision was rendered convicting herein accused-appellant of the crime and the decision was promulgated despite his absence. Accused-complainant was arrested and brought to the Makati City Jail. Accused-complainant filed a Petition for Habeas Corpus, Certiorari and Annulment of Judgment with prayer for immediate relief with the Court of Appeals and was docketed as CA-G.R. SP No. 37340 entitled Danilo Parada vs. Judge Lorenzo B. Veneracion, et. al.. On August 18, 1995, the Court of Appeals promulgated a decision declaring the decision dated November 25, 1995 of respondent court null and void and further ordering the case to be remanded to respondent for further proceeding in order to afford accused-complainant the opportunity to rebut the testimonies of the prosecution witnesses and documentary evidence against him as well as present his evidence.[1]

Subsequently, Parada filed with this Court the instant complaint dated March 11, 1996 against the respondent Judge Veneracion in connection with the decision and interlocutory orders rendered by the latter in Criminal Cases Nos. 93-121385 to 88. He alleged, inter alia, that the respondent Judge is guilty of ignorance of the law when he did not follow the legal requirements of a valid trial in absentia which led to his conviction and premature incarceration, that the order of his arrest with no recommendation for bail was erroneous, and that respondent Judge abused his authority when he issued the June 8, 1994 order denying the motion of Paradas counsel de oficio to allow him to present his evidence upon his arrest. Parada thus prayed for the dismissal from service of the respondent Judge and that the latter be barred from railroading the subject Criminal Cases Nos. 93-121385 to 88. On June 4, 1996, the Office of the Court Administrator received the respondent Judges comment to Paradas complaint, the pertinent portion of which reads: xxx
1. That the herein complaint is purely and plainly a harassment suit arising from the Decision rendered in the case of Peop le vs. Danilo Parada for estafa; 2. That the charges therein are denied because they are not based on the facts and of the records of the case, the herein Judge merely acted with compassion upon receipt of the records of these cases from another sala, after having been informed that the private complainants merely borrowed from loan sharks the money given to the accused Danilo Parada and that they are only interested in compelling said accused to return their money, not in sending said accused to jail; 3. That the herein Judge acted in good faith in the trial of the said cases.[2]

Unfazed by the foregoing assertions of the respondent Judge, the Office of the Court Administrator on the contrary held that: xxx Respondents general denial of the allegations imputed to him does not belie any of the facts which lead to the incarceration of the complainant. Thus, his failure to deny each and every specific allegations can be construed as admission on his part.

Page

16

Moreover, trial in absentia may proceed only if the accused failed to appear at the trial without justification despite due notice. In this case, complainant was never notified of any hearing from the time he changed his address up to the promulgation of the decision despite the fact that he notified the court and his bonding company. xxx Respondent issued a warrant for the arrest of the accused-complainant with no bail recommended despite the fact that the crime charged was bailable and denied the motion of his counsel for the acc used to adduce evidence upon accuseds arrest. Clearly, respondent denied complainant his right to due process. [3] On the basis of these observations, the Office of the Court Administrator recommended that respondent Judge Veneracion be fined in the amount of P10,000.00 with a warning that a commission of the same or similar infraction shall be dealt with more severely. We agree with the findings of the Office of the Court Administrator. Section 14 (2), Article 3 of the Constitution provides, inter alia, that trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. The requisites then of a valid trial in absentia are: (1) the accused has already been arraigned; (2) he has been duly notified of the trial; and (3) his failure to appear is unjustifiable.[4] In the subject criminal cases, requisite numbers two (2) and three (3) of a valid trial in absentia are clearly wanting. Parada had not been duly notified of the trial because the notice of hearing dated April 27, 1994 was sent to the former address of Paradas counsel despite the fact that the latter formally notified the court of his change of address. His failure to appear therefore in the June 3, 6, 7 and 8, 1994 hearings is justified by the absence of a valid service of notice of hearing to him. As a rule, where a party appears by attorney in an action or proceeding in a court of record, all notices required to be given therein must be given to the attorney of record.[5] Accordingly, notices to counsel should be properly sent to his address of record and unless the counsel files a notice of change of address, his official address remains to be that of his address of record. [6] It is undisputed that Paradas counsel filed a notice of c hange of address on October 23, 1993. As such, the respondent judge should have already taken cognizance of the new address when it sent the notice of hearing dated April 27, 1994. It is thus unwarranted for the respondent judge to still send the notice of hearing to the old address of Paradas counsel because it is not his official address nor his address of record. Concomitantly, the sending of notice of hearing to his former address is an invalid service and cannot in any way bind Parada. It is worthy to stress that due process of law in judicial proceedings requires that the accused must be given an opportunity to be heard. He has the right to be present and defend in person at every stage of the proceedings. Incidentally, the right to a hearing carries with it the right to be notified of every incident of the proceedings in court. Notice to a party is essential to enable him to adduce his own evidence and to meet and refute the evidence submitted by the other party. [7] No less than the Constitution provides that no person shall be held to answer for a criminal offense without due process of law. A violation therefore of any of the rights accorded the accused constitutes a denial of due process of law. The circumstantial setting of the instant case as weighed by the basic standards of fair play impels us to so hold that the trial in absentia of Parada and his subsequent conviction are tainted with the vice of nullity, for evidently Parada was denied due process of law. Judges, by the very delicate nature of their functions in dispensing justice, should be more circumspect in the performance of their duties.[8] In resolving matters in litigation, they should endeavor assiduously to ascertain the facts and the applicable laws. Had respondent judge carefully and diligently studied the records of the case, he would have surely noticed the change of address, and his questioned orders, which eventually led to Paradas unwarranted deprivation of liberty, could not have been precipitately iss ued. Likewise, the warrant of arrest with no recommendation for bail that was issued by respondent Judge on June 3, 1994 is a downright violation of Paradas constitutional right to bail. The rule is clear that unless charged with offenses punishable by reclusion perpetua and the evidence of guilt is strong, all persons detained, arrested or otherwise under the custody of the law are entitled to bail as a matter of right. It should be noted that the crime with which Parada was charged is estafa[9] which is undoubtedly a bailable offense. This circumstance could not have escaped the attention of the respondent judge when he issued on June 3, 1994 the order of arrest of Parada with no recommendation for his bail. In so doing, respondent judge exhibited that degree of ignorance so gross which the Court can not countenance. Judges are required by Canon 3, Rule 3.01 of the Code of Judicial Conduct to be faithful to the law and maintain professional competence.[10] They are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles.[11]

SO ORDERED.

Page

17

WHEREFORE, respondent Judge Lorenzo B. Veneracion is FINED P10,000.00 for disregarding Paradas right to procedural due process and for showing gross ignorance of the law, with a STERN WARNING that a repetition of a similar act in the future will be dealt with more severely.

RIGHT TO COUNSEL (8) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO AGBAYANI y MENDOZA, accused-appellant. [G.R. No. 122770 January 16, 1998] PER CURIAM: Nine years and four months ago this Court declared: Rape is a nauseating crime that deserves the condemnation of all decent persons who recognize that a woman's cherished chastity is hers alone to surrender of her own free will. Whoever violates that will descends to the level of the odious beast. The act becomes doubly repulsive where the outrage is perpetrated on one's own flesh and blood for the culprit is reduced to lower than the lowly animal. The latter yields only to biological impulses and is unfettered by social inhibitions when it mates with its own kin, but the man who rapes his own daughter violates not only her purity and her trust but also the mores of his society which he has scornfully defied. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all respect as a human being and is justly spurned by all, not least of all by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery. 1 At the end of the day, after resolving this case of 14-year-old Eden Agbayani who charged her own father with rape committed in the sanctity of their rented room on 19 July 1994, this Court finds itself repeating this declaration. 2 Before this Court on automatic review is the decision 3 of the Regional Trial Court of Quezon City, Branch 106, in view of the death penalty imposed by it for the crime of rape, defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659. 4 On 12 September 1994, the Station Investigation and Intelligence Division of the National Capital Regional Command, Philippine National Police (PNP), endorsed to the Office of the City Prosecutor of Quezon City the complaint of Eden Agbayani (hereafter EDEN) for rape against her father, herein accused-appellant Eduardo Agbayani y Mendoza. 5 After appropriate preliminary investigation, a complaint 6 for rape signed by EDEN, assisted by her sister Fedelina Agbayani, and subscribed, and sworn to before Asst. City Prosecutor Charito B. Gonzales, was filed against appellant with the Regional Trial Court of Quezon City on 27 October 1994. The case was docketed as Criminal Case No. Q-94-59149, then set for arraignment, pre-trial and trial on 22 December 1994. 7 At his arraignment on 22 December 1994, appellant, assisted by Attys. Samuel Baldado and Edwin de la Cruz as counsel de oficio, entered a plea of not guilty. 8 Upon agreement of the parties, trial on the merits immediately followed, with the prosecution presenting the first witness, Dr. Florante Baltazar, a Medico-Legal Officer of the PNP Crime Laboratory,9 who was cross-examined by Atty. Baldado. 10 On the succeeding dates of trial, the prosecution presented EDEN 11 and SPO1 Salvador Buenviaje. 12 During these hearings, however, appellant was represented by Atty. Arturo Temanil of the Public Attorney's Office. 13 On its part, the defense presented appellant, Adoracion M. Cruz, Fedelina Agbayani, as well as EDEN who identified her and Fedelina's affidavit of desistance, 14 which was subscribed and sworn to before notary public Eranio Cedillo on 6 February 1995. Said affidavit reads as follows: We, Eden Agbayani, 14 years old, complainant and Fedelina Agbayani, 19 years old, sister of Eden Agbayani, and presently residing at No., Phase 1, United Glorieta, Kaniogan, Pasig, Metro Manila, after having been duly sworn to in accordance with law do hereby depose and states [sic]: That we are the complainant [sic] against our father, Eduardo Agbayani pending before this Honorable Court docketed as Criminal Case No. 59149; That after evaluating the circumstance that lead [sic] to the filing of the instant case I formally realize that the incident between us and my father is purely family problem that arise from the disciplinarian attitude of our father; That this resulted to family misunderstanding, hence we decided to formally forego this case and withdraw the same:

Page

18

That I am executing this affidavit for purpose of finally withdrawing the instant case and therefrom requesting this Honorable Court to dismiss the case against our father. That this affidavit was executed freely and voluntarily. As EDEN declared in open court that what she said in her previous testimony and sworn statement were not true, the trial court held her in direct contempt of court, reasoning that her "intentional falsehood" was "offensive to its dignity and a blatant disrespect to the Court, and actually degrading [to] the administration of justice." Accordingly, the trial court ordered her "committed to incarceration and imprisonment within the period provided by law," 15which penalty, however, was modified to a fine of P200.00 upon EDEN's motion for reconsideration. 16 On rebuttal, the prosecution had EDEN back on the witness stand. She retracted her affidavit of desistance and claimed that she had signed it under coercion by her mother and elder sister. The trial court's summary of the evidence for the prosecution, with the references to the pages of the stenographic notes and exhibits deleted, is as follows: The evidence adduced on record shows that sometime in September of 1993 in Malolos, Bulacan, the accused was charged by his two daughters, FEDELINA and DODIMA AGBAYANI, [with] the crime of rape which case was raffled to the sala of Judge Danilo Manalastas of Branch 7, Regional Trial Court, Bulacan. The case was, however, provisionally dismissed by said Judge after the complainants desisted from pursuing the same in May 1994. Eduardo Agbayani was thus consequently released from jail on July 13, 1994. Three (3) days thereafter, he began living with four (4) of his six (6) daughters, Fedelina, Eden, Diana and Edima, in a rented room at 30-A Makabayan St., Bgy. Obrero, Quezon City. The evidence of the prosecution, in part consisting of the testimonies of Complainant Eden Agbayani, Medico-Legal Officer, Dr. Florante Baltazar and SPO1 Salvador Buenviaje, shows that at the above-mentioned address the complainant, Eden Agbayani, on the evening of July 19, 1994, was sleeping on the floor of the room with her father, the accused Eduardo Agbayani and her youngest sister, Edima, while her sisters, Fedelina and Diana slept on a bed. At the time, complainant's mother was outside the country, working in Saudi Arabia. At about 9:00 p.m. of July 19, Complainant Eden Agbayani was awakened from her sleep by hands caressing her breasts and vagina. She turned to discover that it was her father who was then molesting her. Frightened, she asked, "Tay bakit niyo po ginagawa sa akin ito, gayong kalalabas mo lang sa kulungan?" and threatened to kill her [sic]. The accused then proceeded to undress her. Thereafter he undressed himself and succeeded in having carnal knowledge with the complainant who could only cry helplessly. The complainant thereafter felt blood dripping from her vagina and felt pain. The next day, or on July 20, 1994, the complainant informed her elder sister, Fedelina, of what had been done to her by her father. She was told not to worry as they would go to Bulacan to report the incident to Fiscal Caraeg of Bulacan, who had, the year before, handled the rape case filed by Fedelina and Dodima. Several attempts were made by her sisters, Fedelina and Eden to reach the said fiscal but it was only on September 9, 1994, that they were able to meet with him. Fiscal Caraeg of Bulacan reported the complaint to Judge Danilo Manalastas who reopened the previously provisionally dismissed case and issued a warrant of arrest against the herein accused. With the assistance of police officers from Station 10 of the SIID in Quezon City, the accused was arrested on the same day at his residence at 30-A Makabayan St., Bgy. Obrero, Quezon City and was later brought to Malolos, Bulacan where he is currently detained. After the accused's arrest, Eden and Fedelina returned to Station 10 where they made individual statements before SPO1 Salvador Buenviaje narrating the events leading to and occurring after the incident of July 19, 1994. The next morning, Eden was examined by Medico-Legal Officer and Chief of the PNP Crime Laboratory, Dr. Florante Baltazar, a colonel, who, accordingly, prepared the corresponding Medico-Legal Report. 17 Appellant put up the defense of denial and alibi. According to him, he could not have raped his daughter EDEN, because on 19 July 1994, he was in Barangay Victoria in Sual, Pangasinan, visiting his eldest daughter. 18 He declared that EDEN charged him with rape because he had hit her with a belt after he caught her lying about her whereabouts one night. Then on 24 July 1994, she left their rented apartment and did not return anymore. 19 Adoracion Cruz corroborated appellant's alibi. She declared that on 17 July 1994, appellant requested her to take care of his children because he was going to Pangasinan to visit his sick father, returning home only on 21 July 1994. 20

Page

19

The trial court gave full credence to the testimony of EDEN, who "appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive;" further, it commended her "for her courage and her unwavering strength in the midst of the emotional and psychological strain and humiliation, not to mention the pressure and lack of moral support of her family, brought on by the filing of this case." It also ruled that EDEN did not voluntarily execute the affidavit of desistance, as it was procured "at the behest of her mother and sister for whom the sanctity of the family and the family's good name were more important than demanding punishment for whatever injury the complainant might have suffered in the hands of the accused." Besides, even assumingarguendo that no such pressure was exerted by her mother and sister, the trial court declared that it understood EDEN's moral predicament, viz., for a child like EDEN, it was difficult to charge her own father with rape; insist on his punishment; and thereby inflict emotional stress and financial strain upon the members of her family, particularly her mother. The trial court likewise gave full faith to the sworn statement (Exhibit "E") of Fedelina Agbayani. Turning to the defense of appellant, the trial court found his alibi wholly self-serving, and characterized the testimony of Adoracion Cruz unworthy of belief. As to appellant's claim that EDEN filed the complaint because of a grudge against him, the trial court found this "incredible, if not totally absurd," for: The complainant is an innocent girl of tender years who is unlikely to possess such vindictiveness and dearth of conscience as to concoct such a malicious and damaging story. The complainant appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive. Her retraction on March 16 was sufficiently explained to this Court (tsn, 5-495, testimony of Eden Agbayani, pp. 2-3). She has shown to this Court the seriousness of the injury upon her person and dignity inflicted upon by the accused. . . . Even assuming argumenti gratia that the complainant would indeed lodge a complaint against her father solely on account of an altercation with him, it is highly unlikely that the complainant would concoct a charge which would damage her and wreck havoc on her family's reputation, destroy the household peace and subject her father, the accused, to a grave punishment which by dent of express of law, can obliterate him from the face of this earth. Indeed, to uphold the defense's proposition would be stretching the imagination too far, if not to the extreme. The trial court finally found that appellant employed on EDEN force or intimidation by virtue of his moral ascendancy over her and his threat that he would kill her if she reported the incident to anyone. Accordingly, the trial court, applying Section 11 of R.A. No. 7659 which imposes the penalty of death when the victim is under eighteen years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or common-law spouse of the parent of the victim, rendered judgment against appellant, to wit: WHEREFORE, considering all the foregoing, judgment is hereby rendered finding the accused, EDUARDO AGBAYANI, GUILTY beyond reasonable doubt of the crime of RAPE committed against complainant, Eden Agbayani, his minor daughter. This Court, as a consequence thereof, hereby imposes upon him the supreme penalty of DEATH, conformably with the provisions of the death penalty law, R.A. 7659. Further, Accused is hereby ordered to pay the complainant, Eden Agbayani, the sum of P75,000.00 as damages, with all the necessary penalties provided for by law without subsidiary imprisonment, however, in the event of insolvency and to pay the costs. Let the entire records of this case be forwarded to the Supreme Court on automatic review. SO ORDERED. On 26 May 1995, appellant, through his new counsel de parte Attorneys Froilan V. Siobal and Domingo Floresta, filed a Motion for New Trial 21 on the ground that serious irregularities prejudicial to his substantial rights were committed during the trial, viz., the failure of the counsel de oficio to: (a) present at trial the Barangay Captain of Barangay Obrero, Quezon City, who would have testified, on the basis of certification attached to the motion, that there was a house bearing No. 30, Makabayan St., in his barangay, but that there was no such place as 30-A Makabayan St. of said barangay, which was the address given by EDEN; (b) consider the futility of Adoracion Cruz's testimony; (c) present private complainant's mother and sister Fedelina on sur-rebuttal to testify as to the circumstances which brought about the execution of the affidavit of desistance; and (d) cross-examine complainant and the police investigator exhaustively. He further alleged that his counsel de oficio was never prepared during all the scheduled hearings, worse, even waived the presence of appellant after the third witness for the prosecution was presented. He also averred that the trial court used its inherent power of contempt to intimidate private complainant. In their Comments/Opposition to the Motion for New Tria1, 22 the public and private prosecutors alleged that there were no such irregularities; neither was there new and material evidence to be presented that appellant could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted at trial would probably change the judgment of the court.

Page

20

In its Order 23 of 31 July 1995, the trial court denied the motion for new trial for being devoid of merit and for not being within the purview of Sections 1 and 2, Rule 121 of the Rules of Court. In his Appellant's Brief filed before this Court, appellant contends that the trial court erred in: (a) denying his motion for new trial; and (b) holding that the prosecution proved beyond reasonable doubt that he committed the crime charged. In support of the first assigned error, appellant reiterates the grounds in his motion for new trial, and adds two others, namely, (1) the lower court failed to apprise him of his right to have counsel of his own choice; and (2) the lower court did not give him the opportunity to prepare for trial, despite the mandated period of two days prescribed in Section 9 of Rule 116 of the Rules of Court. In his second assigned error, appellant contends that EDEN's testimony is not sufficient to convict, since it is unclear and not free from serious contradictions. Considering their proximity to EDEN, it was impossible for her sisters or any one of them not to have been awakened when EDEN was allegedly being abused by him. Strangely, EDEN simply kept quiet and allowed him to abuse her; neither did she shout for help or put up a fight that would have awakened her sisters. Notably, EDEN and her sisters allowed him to live and sleep with them again in their rented room even after the alleged rape. Finally, appellant asserts that EDEN's testimony is unreliable because her affidavit of desistance must have necessarily been contradictory thereto. Her "subsequent turn-around . . . that she was pressured and influenced to execute and sign the affidavit of desistance further confirmed her being untruthful and, in effect, demolished whatsoever faith left on her charge against the accused." The Office of the Solicitor General (OSG) considers the first assigned error as devoid of merit. When appellant appeared without counsel at the arraignment, the trial court informed him that it would appoint de oficio counsel for him if he so desired, to which appellant agreed. Moreover, the 2-day period to prepare for trial provided in Section 9 of Rule 116 is merely directory and does not prohibit the court from proceeding with trial after arraignment, especially if the defense, as here, consented thereto. It would have been entirely different if the defense did not agree, in which case the court would have no other alternative but to grant him the period. As to appellant's other grievances, the OSG points out that throughout all the hearings, appellant never questioned the way his defense was being handled by his counsel de oficio. The latter's request for a continuance because he had not yet conferred with appellant was not evidence of counsel's lack of sincerity. On the contrary, it showed counsel's awareness of his duty to confer with appellant to ferret out the relevant facts as regards the second witness for the prosecution. Likewise, the waiver of appellant's presence during the hearing of 18 March 1995 did not prejudice him, because on that date, the defense presented EDEN to testify as to her affidavit of desistance, and Fedelina to corroborate the statements of EDEN which testimonies were in appellant's favor. As to the manner appellant's counsel de oficio cross-examined the prosecution witnesses, the OSG stresses that the record shows that said counsel tried his best. The OSG then characterizes the second assigned error as "barren of merit." EDEN's positive identification of appellant as the author of the crime rendered appellant's defense of alibi unavailing; moreover, she demonstrated clearly and vividly what transpired that fateful evening of 19 July 1994. Thus in view of EDEN's candid and categorical manner of testifying the OSG concluded that she was a credible witness. 24 As to the commission of rape in a small room and in the presence of other persons, the OSG maintains that such was not at all improbable. 25 There was, as well, nothing unusual in EDEN's silence; as she could only attempt to shout because appellant had succeeded in covering her mouth with his hands and exercised a high level of moral ascendancy over EDEN, his daughter. 26 Hence the OSG invokes the principle that in a rape committed by a father against his own daughter, the former's moral ascendancy and influence over the latter substitutes for violence intimidation. 27 As regards EDEN's affidavit of desistance, the OSG maintains that courts look with disfavor on retraction of testimonies previously given in court, for such can easily be secured from poor and ignorant witnesses usually for a monetary consideration, 28 as well as the probability that it may later be repudiated. In his Reply Brief, appellant countered that his consent to the appointment of counsel de oficio at his arraignment did not relieve the court of its duty under Section 6 of Rule 116 of the Rules of Court to inform him of his right to counsel and that it would be grievous error to deny an accused such right. Appellant then elaborated on this point as follows: This is not without judicial precedent. In People vs. Cachero, 73 Phil. 426 and People vs. Domenden, 73 Phil. 349, cited in RJ Francisco's Criminal Procedure, Third Ed., 1966, p. 323 it was held, that: The courts should comply with Rule 116, Sec. 3. It would be a grievous error to proceed by sentencing the accused without due process of law and this is not complete, when the accused is denied the right

Page

21

recognized by said rule. The records must show compliance therewith or that the accused renounced his right to be assisted by counsel. This is demanded by the interest of justice and remove all doubts that if the accused had waived said right, he was fully informed before giving his plea of its consequences. Omission by courts whether voluntary should not truly be censured but also condemned. Discussing further the right to the 2-day period to prepare for trial, the appellant contends that said right: [H]as been held to be mandatory and denial of this right is a reversible error and a ground for new trial. (R. J. Francisco's Criminal Procedure, Third Ed., 1986, p. 404, citing People vs. Mijares, et al., 47 OG 4606;Dumasig v. Morave, 23 SCRA 659). This must be so ". . . to prevent that any accused be caught unaware and deprived of the means of properly facing the charges presented against him. The first assigned error does not persuade this Court. It is true that the transcript of the stenographic notes of the proceedings of 22 December 1994 and the order issued by the trial court after the conclusion of said proceedings only state that the court appointed de oficio counsel with the consent of the said accused. They do not categorically disclose that the trial informed appellant of his right to counsel of his own choice. However, this does not mean that the trial court failed to inform appellant of such right. The precise time the two counsel de oficiowere appointed is not disclosed in the record either. At the recorded portion of the arraignment aspect of the proceedings on 22 December 1994, the two formally entered their appearance, thus: COURT: Call the case. (Interpreter calls the case). FISCAL ROSARIO BARIAS: For the prosecution, Your Honor. ATTY. MARIETA AGUJA: Respectfully appearing for the prosecution, Your Honor under the control and direct supervision of the Trial Prosecutor, Your Honor, we are ready to present our first witness. ATTY. BALDADO: For the accused Your Honor, appointed as counsel de oficio. ATTY. DE LA CRUZ: For the accused, Your Honor appointed by the court as counsel de oficio . 29 This obviously means that the appointment had taken place earlier. The trial court's order 30 of 22 December 1994 states that said de oficio counsel were "duly appointed by the Court with the consent of the accused." Since appellant has miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand. 31 In other words, the trial court is presumed to have complied with its four-fold duties under Section 6 32 of Rule 116 of the Rules of Court, namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him. 33 It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right. 34 In U.S. v. Labial, 35 this Court held: Adhering to the doctrine laid down in that case, the only question to be determined in this case is whether the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial. Upon this point we are all agreed that in the absence of an affirmative showing that the court below did in fact fail to advise the accused of their rights under the provisions of sections 17 of General Orders No. 58, as amended by section 1 of Act No. 440, the mere omission from the record brought here upon appeal of an entry affirmatively disclosing that he did so, is not reversible error. In the absence of an affirmative showing to the contrary, the court below must be presumed in matters of this kind to have complied with the provisions of law prescribing the procedure to be followed in the trial had before him. While in People v. Miranda 36 this Court explicitly stated:

Page

22

However, said counsel calls attention to the fact that the record is silent as to whether or not, at the time appellant was arraigned, the trial court informed him of his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of Court. This precise issue was determined in United States vs. Labial (27 Phil., 87, 88), in the sense that unless the contrary appears in the records, it will be presumed that the defendant was informed by the court of his right to counsel. ". . . If we should insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws, we should destroy public justice, and give unbridled license to crime. Much must be left to intendment and presumption, for it is often less difficult to do things correctly than to describe them correctly." (United States vs. Labial, supra.) The same doctrine was reiterated in People vs. Abuyen(52 Phil. 722) and in United States vs. Custan (28 Phil. 19). We see no reason to modify it now. In the instant case, the trial court appointed two de oficio counsel who assisted the appellant at his arraignment, one of whom extensively cross-examined the first witness for the prosecution, Dr. Florante Baltazar. 37 Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsel's extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged failure of the trial court to inform him of his right to counsel. 38 The cases of People v. Domenden 39 and People v. Cachero 40 cited by appellant are inapplicable. In both cases the trial courts there clearly failed to inform the accused of their right to counsel nor appoint de oficio counsel during the arraignment. Nevertheless, we take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel, to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, de oficio counsel will be appointed for him, must appear on record. Turning to the alleged violation of appellant's right to the 2-day period to prepare for trial, Section 9 of Rule 116 of the Rules of Court reads: Sec. 9. Time to prepare for trial After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. 41 Only when so demanded does denial thereof constitute reversible error and a ground for new trial. 42 Further, such right may be waived, expressly or impliedly. 43 In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. During the succeeding hearings, appellant was represented by Atty. Temanil of the Public Attorney's Office in Quezon City, who entered his appearance as de parte, and not as de oficio, counsel. It is to be presumed that Atty. Temanil's services were obtained pursuant to the law creating the Public Attorney's Office (PAO), formerly the Citizen's Legal Assistance Office (CLAO). 44 There is at all no showing that Atty. Temanil lacked the competence and skill to defend appellant. The latter's contention that his counsel was not ready at all times because at the hearing on 20 January 1995 he asked for a continuation as he has "not yet interviewed [his] Client," 45 is misleading. Atty. Temanil made that statement after he cross-examined EDEN and after the judge realized that it was almost 1:00 o'clock in the afternoon and both of them were already hungry, thus: ATTY. TEMANIL: I just want to make it on record, Your Honor that from the start of trial the witness appears to be fluent and suffers no difficulty in answering the questions, even the questions propounded by the Private Prosecutor, Your Honor. COURT: Put that on record. That is true, Atty. Temanil, it is almost 1:00 o'clock in the afternoon and we are both hungry now. ATTY. TEMANIL: I will just asked [sic] for continuance considering that I have not yet interviewed my client, Your Honor. 46 Neither is there merit in appellant's claim that his counsel committed irregularities: (1) in not considering the futility of the testimony of Adoracion Cruz; (2) in not presenting the barangay captain in the evidence in chief for the defense, and EDEN's mother and sister Fedelina in sur-rebuttal; and (3) in not cross-examining exhaustively EDEN. Adoracion Cruz was presented to corroborate appellant's alibi that he was in the province and not in their rented room from 17 to 21 July 1994. On the other hand, the testimony of the barangay captain could not alter the fact that rape was committed in a rented room

Page

23

in a house along Makabayan Street in his barangay. Appellant neither testified that he did not occupy a house numbered 30-A nor denied that he was living with EDEN and her sisters in that room. Besides, he and his children were not renting the entire house, but merely a room, which could probably be the unit numbered "30-A" referred to by EDEN. As to the presentation of EDEN's mother and sister Fedelina as sur-rebuttal witnesses to disprove the claim of EDEN that they coerced her into signing the affidavit of desistance, suffice it to state that there was nothing to show that they were in fact willing to refute EDEN's claim. Finally, contrary to appellant's allegation, a meticulous examination of the transcripts of the stenographic notes convinces this Court that Atty. Temanil sufficiently cross-examined EDEN. If he decided to terminate his cross-examination, it could have been due to the futility of any further cross-examination which might only prove favorable to the prosecution, as it might have opened another window of opportunity for EDEN to strengthen her testimony. The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility of opposing witnesses, unless there appears in the record some facts or circumstances of weight and influence which have been overlooked and, if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying. 47 He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked; she often hides in nooks and crannies visible only to the mind's eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or 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. 48 On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt. 49 At any rate, in view of the gravity of the offense charged and the extreme penalty of death imposed, this Court took painstaking effort and meticulous care in reviewing the transcripts of the stenographic notes of the testimonies of the witnesses. This Court is fully satisfied that EDEN told the truth that she was raped by her father, herein appellant, on 19 July 1994, in their rented room in Barangay Obrero, Quezon City. Her story was made even more credible by the simplicity and candidness of her answers, as well as by the fact that it came from an innocent girl writhing in emotional and moral shock and anguish. She must have been torn between the desire to seek justice and the fear that a revelation of her ordeal might mean the imposition of capital punishment on her father. By testifying in court, she made public a painful and humiliating secret, which others may have simply kept to themselves for the rest of their lives. She thereby jeopardized her chances of marriage, as even a compassionate man may be reluctant to marry her because her traumatic experience may be a psychological and emotional impediment to a blissful union. Moreover, such a revelation divided her family and brought it shame and humiliation. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape anywhere even in places where people congregate such as in parks, along the roadside, within school premises, and inside a house where there are other occupants. 50 In People v. Opena, 51 rape was committed in a room occupied also by other persons. In the instant case, EDEN''s other companions in the room when she was molested by appellant were young girls who were all asleep. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether or not he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough render her incapable of resisting or asking for help. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim's and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and

Page

24

strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary. 52 In any event, in a rape committed by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. 53 Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. 54 Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the intrusion. 55 Neither does the fact that EDEN continued to live with appellant in same rented room disprove the rape. While she was hurt physically, psychologically and emotionally, yet the thought must have been irresistible and compelling that her assailant was her own father, who was both a father and mother to her since her mother was in Saudi Arabia and who provided her with the daily wherewithal to keep her alive. Besides, a less harsh life outside was uncertain. Instances are not few when daughters raped by their fathers stayed with the latter and kept in the deepest recesses of their hearts the evil deed even if the memory thereof haunted them forever. Nor is there merit in the insistent claim that EDEN's affidavit of desistance "must have necessarily contradicted her previous testimony." We have earlier quoted in full this affidavit of desistance. Plainly, nowhere therein did she retract her previous testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court; 56 and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. 57 This Court has no doubt that appellant is guilty as charged. The penalty therefor is death under the first circumstance mentioned in Article 335(7) of the Revised Penal Code, as amended by R.A. No. 7659, which provides, in part, as follows: 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. This law may be difficult to accept for those who believe that the verdict of death for a sin or crime is God's exclusive prerogative. But the fundamental law of the land allows Congress, for compelling reasons, to impose capital punishment in cases of heinous crimes, 58 hence the passage of R.A. No. 7659. Hoc quidem per quam durum est sed ita lex scripta est. The law may be exceedingly hard but so the law is written and the Court is duty-bound to apply it in this case. To the appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of "P75,000.00 as damages," which is hereby reduced to P50,000.00 in accordance with current case law. WHEREFORE, judgment is hereby rendered AFFIRMING the decision of the Regional Trial Court of Quezon City, Branch 106, in Criminal Case No. Q-94-59149 finding accused-appellant EDUARDO AGBAYANI y MENDOZA guilty beyond reasonable doubt as principal of the crime of rape defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and imposing upon him the penalty of DEATH, subject to the above modification as to the amount of indemnity. Two Justices voted to impose upon the accused-appellant the penalty of reclusion perpetua. Upon finality of this Decision, let certified true copies thereof, as well as the records of this case, be forwarded without delay to the Office of the President for possible exercise of executive clemency pursuant to Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. No. 7659. With costs de oficio. SO ORDERED.

Page

25

(9) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO SANTOCILDES, JR. y SIGA-AN, accused-appellant. [G.R. No. 109149 December 21, 1999] QUISUMBING, J.: Where an accused was not duly represented by a member of the Philippine Bar during trial, the judgment should be set aside and the case remanded to the trial court for a new trial. A person who misrepresents himself as a lawyer shall be held liable for indirect contempt of court. Subject of the present appeal is the decision dated October 29, 1992, of the Regional Trial Court of Iloilo City, Branch 33, convicting accused-appellant of the crime of rape, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the offended party the amount of P50,000.00 and to pay the costs. The antecedent facts of the case are as follows: On February 17, 1992, appellant was charged with the crime of rape 1 of a girl less than nine (9) years old, committed on December 28, 1991, in the town of Barangay San Luis, San Joaquin, Iloilo. Upon arraignment, appellant entered a plea of not guilty. Trial ensued and the prosecution presented as its witnesses the victim, her mother, her six (6) year-old playmate, and the medico-legal officer who examined the victim. For the defense, appellant presented one German Toriales and himself. Appellant denied committing the rape and claimed that he merely tried to stop the two girls, the victim and her playmate, from quarreling. On October 29, 1992, the trial court rendered a decision 2 finding appellant guilty as charged. The dispositive portion of the decision states:
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of rape and sentences him to suffer the penalty of reclusion perpetua together its accessory penalty. The accused is ordered to pay the amount of P50,000.00 to the complainant and another amount for costs, without subsidiary penalty in case of failure to pay the civil liability and the cost. If qualified under Art. 29 of the Revised Penal Code, as amended by R.A. 6127, as amended, and he has agreed in writing to abide by the same rules imposed upon convicted prisoners, he shall be credited with the full duration of his preventive imprisonment; otherwise, he shall only be credited with 4/5 of the same. SO ORDERED.

Hence, appellant duly filed a Notice of Appeal. 3 In his brief, 4 appellant made the following assignment of errors: I. THE HONORABLE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE ACCUSED IS GUILTY OF RAPE INSPITE OF CONFLICTING TESTIMONIES OF THE PRIVATE COMPLAINANT AND HER WITNESSES ON MATERIAL POINTS. II. THAT THE ACCUSED-APPELLANT WAS DEPRIVED THOUGH NO FAULT OF HIS OWN TO BE DEFENDED BY A PERSON AUTHORIZED TO PRACTICE LAW AMOUNTING TO DENIAL OF DUE PROCESS. Considering the importance of the constitutional right to counsel, we shall now first resolve the issue of proper representation by a member of the bar raised by appellant. Appellant contends that he was represented during trial by a person named Gualberto C. Ompong, who for all intents and purposes acted as his counsel and even conducted the direct examination and cross-examinations of the witnesses. On appeal, however, appellant secured the services of a new lawyer, Atty. Igmedio S. Prado, Jr., who discovered that Gualberto C. Ompong is actually not a member of the bar. Further verification with the Office of the Bar Confidant confirmed this fact. 5 Appellant therefore argues that his deprivation of the right to counsel should necessarily result in his acquittal of the crime charged.

Page

26

The Office of the Solicitor General, on the other hand, maintains that notwithstanding the fact that appellant's counsel during trial was not a member of the bar, appellant was afforded due process since he has been given an opportunity to be heard and the records reveal that said person "presented the evidence for the defense with the ability of a seasoned lawyer and in general handled the case of appellant in a professional and skillful manner." However, the right of the accused to be heard by himself and his counsel, in our view, goes much deeper than the question of ability or skill. It lies at the heart of our adversarial system of justice. Where the interplay of basic rights of the individual may collide with the awesome forces of the state, we need a professional learned in the law as well as ethically committed to defend the accused by all means fair and reasonable. On the matter of proper representation by a member of the bar, we had occasion to resolve a similar issue in the case of Delgado v. Court of Appeals. 6 In Delgado, petitioner and two others were convicted by the trial court of the crime of estafa thru falsification of public and/or official documents. One accused did not appeal. Petitioner Delgado and her remaining co-accused appealed to the Court of Appeals, which affirmed petitioner's conviction but acquitted her co-accused. After entry of judgment, petitioner discovered that her lawyer was not a member of the bar and moved to set aside the entry of judgment. The Court of Appeals denied petitioner's motion, hence, she filed a petition for certiorari with this Court. The Court set aside the assailed judgment and remanded the case to the trial court for a new trial, explaining that
This is so because an accused person is entitled to be represented by a member of the bar in a criminal case filed against her before the Regional Trial Court. Unless she is represented by a lawyer, there is great danger that any defense presented in her behalf will be inadequate considering the legal perquisites and skills needed in the court proceedings. This would certainly be a denial of due process. 7

Indeed, the right to counsel is of such primordial importance that even if an accused was represented by three successive counsels from the Public Attorney's Office, the Court has ordered the remand of a rape case when it found that accused was given mere perfunctory representation by aforesaid counsels such that appellant was not properly and effectively accorded the right to counsel. In the recent en banc case of People v. Bermas, G.R. No. 120420, April 21, 1999, the Court, speaking through Justice Vitug, admonished three (3) PAO lawyers for failing to genuinely protect the interests of the accused and for having fallen much too short of their responsibility as officers of the court and as members of the Bar. Verily, we can do no less where the accused was not even duly represented by a certified member of the Philippine Bar, no matter how zealous his representation might have been. The presence and participation of counsel in criminal proceedings should never be taken lightly. 8 Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. 9 The right of an accused to counsel is guaranteed to minimize the imbalance in the adversarial system where the accused is pitted against the awesome prosecutory machinery of the State. 10 Such a right proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a person's basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily. 11 The right to counsel of an accused is enshrined in no less than Article III, Sections 12 and 14 (2) of the 1987 Constitution. This constitutional mandate is reflected in Section 1 of Rule 115 of the 1985 Rules of Criminal Procedure which declares the right of the accused at the trial to be present in person and by counsel at every stage of the proceedings from the arraignment to the promulgation of judgment. In turn, Section 5 of Article VIII of the 1987 Constitution vests the power to promulgate rules concerning the admission to the practice of law to the Supreme Court. Section 1 of Rule 138 of the Rules of Court explicitly states who are entitled to practice law in the Philippines, and Section 2 thereof clearly provides for the requirements for all applicants for admission to the bar. Jurisprudence has also held that "the right to practice law is not a natural or constitutional right but is in the nature of a privilege or franchise. It is limited to persons of good moral character with special qualifications duly ascertained and certified. The right does not only presuppose in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust." 12 Indeed, so strict is the regulation of the practice of law that in Beltran, Jr. v. Abad, 13 a Bar candidate who has already successfully hurdled the Bar examinations but has not yet taken his oath and signed the roll of attorneys, and who was caught in the unauthorized practice of law was held in contempt of court. Under Section 3 (e) of Rule 71 of the Rules of Court, a person who undertakes the unauthorized practice of law is liable for indirect contempt of court for assuming to be an attorney and acting as such without authority. WHEREFORE, the assailed judgment is SET ASIDE, and the case is hereby REMANDED to the trial court for new trial. With respect to the unauthorized practice of law by the person named Gualberto C. Ompong in connection with this case, the local Chapter of the Integrated Bar of the Philippines of Iloilo City is DIRECTED to conduct a prompt and thorough investigation regarding this matter and to report its recommendations to the Court within ninety (90) days from notice of this, order. Let all concerned parties, including the Office of the Bar Confidant, be each furnished a copy of this Decision for their appropriate action. No pronouncement as to costs. SO ORDERED.

Page

27

(10) RAMON F. SAYSON, petitioner, vs. APPEALS, respondents. [G.R. No. L-51745 October 28, 1988] CORTES, J.:

PEOPLE

OF

THE

PHILIPPINES

and

the

HON.

COURT

OF

Petitioner seeks the reversal of the Court of Appeals decision finding him guilty of attempted estafa. On March 25, 1972, an information for the crime of Estafa through Falsification of a Commercial Document was filed against the herein petitioner, Ramon F. Sayson before the Court of First Instance of Manila, the pertinent portion of which reads: ... the said accused having come in possession of a blank US dollar check #605908142, with intent to defraud Ernesto Rufino, Sr. and/or Bank of America, did then and there wilfully, unlawfully and feloniously forge and falsify or cause to be forged and falsified the said check, by then and there writing or filling or causing to be written or filled up the following words and figures: "March 10, 1972," "Atty. Norberto S. Perez," "2,250.00" and forging the signature of the Asst. Cashier, Manager of the Bank of America, Dania Branch, making it appear, as it did appear, that the said check was duly issued by the Bank of America, when in truth and in fact, as the accused well knew, the said check was never issued nor authorized by the said bank; that thereafter, said accused wrote or affixed the signature "Norberto Perez" on the back of said check as indorser; that once the said cheek had been forged and falsified in the manner above described, the said accused by means of false manifestations and fraudulent representations which he made to Ernesto Rufino, Sr. that he is "Atty. Norberto Perez" who is the payee of the said Check, and by means of other similar deceits, induced and succeeded in inducing the said Ernesto Rufino, Sr. to change said dollar cheek, as in fact, said Ernesto Rufino, Sr. issued Manufacturer's Bank Check No. 87586 dated March 22, 1972 payable to "Norberto Perez" in the amount of "Pl 4,850.00" in exchange for said dollar check; ... [Rollo, pp. 23-24.] Arraigned on December 8, 1972, petitioner pleaded not guilty. On October 9, 1974, after several postponements, the prosecution rested its case. At the hearing of December 9, 1974, when the defense was scheduled to present its evidence, only the petitioner appeared. He said that his counsel had another case in a different court. In the morning of the said day, his lawyer also sent a telegram to the court requesting cancellation of the hearing because he was sick. The court denied the motion for postponement and the case was considered submitted for decision without petitioner's evidence. The trial court rendered judgment on January 30, 1975, finding the accused guilty of the crime charged and sentencing him to an indeterminate penalty of 2 years, 4 months and 1 day to 6 years of prison correccional to pay a fine of P2,000.00, with subsidiary imprisonment and to pay the costs. The Court of Appeals affirmed but modified the penalty by imposing six months of arresto mayor and eliminating the fine. Hence, this petition for review on certiorari. The background facts as found by the appellate court as well as its conclusions thereon follow: On March 22, 1972, appellant Ramon Sayson y Fernandez was introduced by Vicente Jaucian a former employee of the Luzon Theatres, Inc. to Anselmo Aquiling, private secretary to Ernesto Rufino, Sr., General Manager of the corporation. Vicente Jaucian had known appellant as "Fiscal Perez" who wanted to exchange dollars for pesos, having been introduced to him in that capacity by his (Jaucian's) cousin. Thinking that Rufino might be interested in dollars, Jaucian accompanied appellant to the offices of the Luzon Theatres, Inc. and Mever Films, Inc. at the Avenue Hotel on Rizal Avenue, Manila. Upon being introduced to Anselmo Aquiling, appellant showed the latter an Identification card indicating that he was Norberto S. Perez, a Prosecuting Attorney from Angeles City. After making the introduction, Jaucian left. Mr. Rufino said that he was not personally interested in dollars but suggested to his secretary to inquire if Mever Films, Inc. needed dollars. Mr. Rufino was also Chairman of the Board of the aforesaid corporation; and when told that Mever Films needed dollars, he authorized the transaction. Appellant then presented to Edgar Mangona, the assistant accountant of Mever Films, a Bank of America check in the amount of $2,250,00 payable to the order of Atty. Norberto S. Perez, a xerox copy of which was introduced in evidence as Exhibit E. Actually, Exhibit E appears to be a bill of exchange or draft drawn by the Dania, Florida Branch of the Bank of America on its San Francisco Branch in favor of said payee and bears serial number 605908142. Edgar Mangona prepared a check of the Manufacturer's Bank and Trust Company in the amount of P14,850.00 at the exchange rate of P6.60 to a dollar (Exh. B). He then walked over to the office of Mrs. Teresita Rufino Litton whom he asked to sign the check and thereafter Mangona asked Mr. Rufino to

Page

28

countersign it. Finally, the check was exchanged with appellant's Bank of America draft and the latter signed the voucher for the peso check. On the same day, March 22, 1972, appellant repaired to the Tayuman Branch of the Banco Filipino and informed its Branch Manager, Mrs. Maria Fe Relova that he wanted to open a savings account. He was given an application form which he filled up with the name Norberto S. Perez as the applicant, among other things. Appellant then presented the Manufacturer 's Bank check Exhibit B, payable to the order of Norberto S. Perez, and after endorsing the same, it was posted in the passbook issued to him. Unknown to appellant, however, Mrs. Relova, an astute woman had been auspicious of the former's actuations. So that after he left, she called up the office of the PLDT and inquired if the telephone number which appellant had unsolicitedly given her was listed in Perez' name. She was told that the number referred to had not yet been issued by PLDT. She then telephoned the office of Mever Films, Inc., the drawer of the check, and inquired if the check was in fact issued by it and she was answered in the affirmative. Despite this assurance, she tested her suspicions further by sending out a bank employee to deliver a brochure to the address given by appellant and the messenger returned without locating the place. Within a short time, the officials of the Mever Films, Inc. became doubtful of the genuineness of the Bank of America draft. And on March 24, 1972, two days after the issuance of the Manufacturer's Bank check and one day after the check was cleared with the Central Bank, Mever Films which was convinced that the draft was spurious ordered its payment stopped (Exhibit D). On the same day, Vicente Jaucian who had introduced appellant to Anselmo Aquiling and the latter himself went to the office of the National Bureau of Investigation (NBI) and there gave written statements on what they knew about appellant (Exhibits F and G). Also on the same day, the Assistant Manager of the Bank of America, Manila Branch, who must have been informed of the transaction involving the draft, addressed a letter to the NBI authorities (Exh. B) which reads: Gentlemen: This is to certify that U.S. Dollar draft No. 605908142 drawn on the Bank of America NT & SA, San Francisco, in favor of Atty. Norberto S. Perez for $2,250.00 and dated March 10, 1972, is one of the blank drafts surreptitiously taken from a shipment sent to us by our San Francisco Headquarters sometime in the latter part of 1970. Issuance of the above-mentioned draft was not authorized by this bank. Jose R. Lopez, the abovementioned assistant manager who issued the aforestated certification, testified that the draft in question was one of the 900 blank drafts which were missing from a shipment received from their head office in the United States sometime in 1971. He declared that the words "Dania Branch" and "Dania, Florida" appearing on the face of the draft were superimposed so as to make it appear that the draft was drawn by the Dania, Florida Branch of the Bank of America on the San Francisco Branch, when in fact the blank draft was for the exclusive use of the Manila Branch, as revealed by the first four code figures of the draft's serial number. We are satisfied with Lopez' testimony that the draft in question was a forgery. Since the same was a blank draft appertaining to the Manila Branch of the Bank of America, of which he was the Assistant Manager, Lopez was competent to state whether or not the draft was a forgery. And the fact that appellant had openly and falsely represented himself to be Atty. Norberto S. Perez indicated in the forged draft as the payee, is a strong circumstantial evidence that he was instrumental in its forgery. [Rollo, p. 25-30.] xxx xxx xxx The appellant has raised the issue of due process, alleging denial of his right to be heard and to present evidence. This requires inquiry into the extent of the rights accorded an accused in a criminal case and whether the accused-appellant has been denied the rights to which he is entitled. The right to be heard by himself and counsel is one of the constitutional rights of the accused. But while the accused has the right to be heard by himself and counsel and to present evidence for his defense by direct constitutional grant, such right is not exempt from the rule on waiver as long as the waiver is not controverted to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law [Article 6, Civil Code.] There is nothing in the Constitution nor in any law prohibiting such waiver. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made, as in this case.

Page

29

Petitioner claims though that he was not waiving such right; on the contrary, he was vigorously asserting his right to be heard by counsel and to present evidence in his verbal motion for postponment due to absence of his counsel de parte. He thus assails the denial of his motion as it in effect deprived him of his day in court. It is too well established to require citation of authorities that the grant or refusal of an application for continuance or postponement of the trial lies within the sound discretion of the court. Justice Malcolm, in a 1919 decision, expounded on such judicial discretion as follows: Applications for continuances are addressed to the sound discretion of the court. In this respect, it may be said that the discretion which the trial court exercises must be judicial and not arbitrary. It is the guardian of the rights of the accused as well as those of the people at large, and should not unduly force him to trial nor for fight causes jeopardize the rights and interests of the public. Where he consideration--that it to be necessary for the more perfect attainment of justice, it has the power upon the motion of either party to continue the case. But a party charged with a crime has no natural or inalienable right to a continuance. The ruling of the court will not be disturbed on appeal in the absence of a clear abuse of discretion . When the discretion of the court is exercised with a reasonable degree of judicial acumen and fairness, it is one which the higher co is loathe to review or disturb. The trial judge must be to a certain extent free to secure speedy and expeditious trials when such speed and expedition are not inconsistent with fairness. Since the court trying the case is, from personal observation, familiar with all the attendant circumstances, and has the best opportunity of forming a correct opinion upon the case presented, the presumption will be in favor of its action. It would take an extreme case of abuse of discretion to make the action of the trial court a denial of due process . (Emphasis supplied; U.S. v. Ramirez, 39 Phil. 738 (1919).] The factual background of the case penned by Justice Malcolm, which was quoted with approval in the case of People v. Mendez [G.R. No. L-27348, July 29, 1969, 28 SCRA 880], is very similar to that of the case at bar. In the instant case, the information was filed on March 25,1972 and arraignment was held on December 8,1973. The prosecution started presenting its evidence on March 12,1973 and after 1 year, 10 months and 1 day from the day of arraignment, it rested its case. During this time, petitioner had already secured seven postponements, which it admitted in its brief filed with the Court of Appeals [Rollo, p. 20] thus prompting the trial judge to remark that "this is a notoriously postponed case' and that "the defense had abused the rules" [TSN, December 12,1973, pp. 2-3.]. Since the judge's comments were home out by the record regarding the postponements which were admitted by petitioner himself in his brief filed before the Court of Appeals, petitioner cannot rightfully cast aspersion on the integrity of said judge by attributing to him a nonexistent attitude of bias and hatred toward the petitioner-accused. No grave abuse of discretion in denying the petitioner's motion for postponement can be imputed to the trial court. First, the petitioner's motion was not seasonably filed as the three-day notice required by the rules (Rule 15, Section 4 of the Revised Rules of Court) was not complied with. Moreover, it was not accompanied by an affidavit nor a medical certificate to support the alleged illness of counsel, controverted to what Rule 22, Section 5 of the Revised Rules of Court mandates: Sec. 5. Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable. Besides, when petitioner himself sought postponement of the case during the December 9 hearing, he claimed that his counsel had another case in a different court. Certainly, the conflicting stories advanced by petitioner and his counsel only indicate the lack of a good cause for the postponement. Petitioner's lament that 'at least, in the name of justice and fair play, the trial court should have warned accused that no further postponements shall be entertained by the court' [Rollo p. 97] is baseless. As he was aware that the case had already been postponed seven times at his initiative, he had no right to assume that his motion would be granted; rather, he should have foreseen that any further motions for postponement might not be met with approval by the trial court. Besides, the record of the case clearly shows that the accused had repeatedly appeared in court without his counsel, seeking postponements which were liberally granted by the court with an order directing his counsel to show cause why he should not be held in contempt for repeated failure to appear at the trial of the case. In fact, the court, in its Order dated August 1 2, 1974, categorically declared: "In the meantime, let the trial of this case be DEFINITELY POSTPONED FOR THE LAST TIME to August 14, 1974 at 8:30 a.m. as previously scheduled, with the warning to the accused to be ready with his present counsel or another counsel on said date as the court will not entertain any further delays in the proceedings in this case and shall proceed with the trial of this case with or without his counsel." [Original Records, p. 430]. This, certainly, was enough warning.

Page

30

Finally, the motion for postponement was properly denied inasmuch as the defendant failed to present any meritorious defense. This Court's pronouncementthat in incidents of this nature before the trial court, two circumstances should be taken into account, namely, 1) the reasonableness of the postponement and 2) the merits of the case of the movant should not be lightly ignored [Udan v. Amon G.R. No. L-24288, May 28, 1968, 23 SCRA 837.] There may be an accident, surprise or excusable neglect justifying postponement or reconsiderationbut if the movant does not present a meritorious claim or defense, denial of his motion for postponement may not be considered as an abuse of the discretion of the court.[De Cases v. Peyer G.R. No. L-18564, August 31, 1962, 5 SCRA 11 65.] Absent any meritorious case in defendant's favor, his motion for postponement was properly denied. His invocation of his right to counsel and to present evidence was an empty gesture revealing his dilatory scheme. Under the circumstances, the petitioner must be deemed to have waived his rights and to have been extended the protection of due process. Moreover, the petitioner in negotiating the check presented himself as a lawyer; he was addressed in the Notice of the Order dated September 11, 1972 as "Atty. Ramon Sayson y Fernandez" [Original Records, p. 381 and he himself filed the Motion to Quash [Original Records, p. 22] and a pleading captioned "Compliance" dated December 2, 1972 [Original Records, p. 41.] These facts indicate that he was capable of defending himself That he himself was allowed to file pleadings clearly negatives the alleged deprivation of his right to due process of law. Consequently, there being no abuse of discretion on the part of the trial court, its order will not be disturbed. The Court finds the petitioner's plea that it was incumbent upon the trial judge to appoint a counsel de oficio who for him when he appeared without his counsel utterly without legal basis. The duty of the court to appoint a counsel de oficio when the accused has no counsel of choice and desires to employ the services of one is mandatory only at the time of arraignment (Rule 116, Section 6, Revised Rules of Court This is no longer so where the accused has proceeded with the arraignment and the trial with a counsel of his choice but when the time for the presentation of the evidence for the defense has arrived, he appears by himself alone and the absence of his counsel was inexcusable. This Court's holding in a previous case that there is no deprivation of the light to counsel in such a case is squarely applicable: As the appellant was represented by counsel of his choice at the arraignment, trial and in the incidental motions to dismiss and to postpone the resumption of the trial of the case, the trial court was not in duty bound to appoint a counsel de oficio to assist him in his defense. His failure to appear with counsel of his choice at the hearing of the case, notwithstanding repeated postponements and warnings that failure to so appear would be deemed a waiver on the part of the appellant to present his evidence and the case would be deemed submitted for decision upon the evidence presented by the prosecution, was sufficient legal justification for the trial court to proceed and render judgment upon the evidence before it. Taking into consideration all the steps taken by the trial court to safeguard the rights of the appellant, the latter cannot pretend that he was deprived of his right to be assisted by counsel and to present evidence in his behalf. Moreover, the repeated failure of the appellant to appear with counsel at the resumptions of the trial of the case may be taken as a deliberate attempt on his part to delay the proceedings. [People vs. Angco, 103 Phil. 33, 39 (1958).] At the most, the appointment of a counsel de oficio in situations like the present case is discretionary with the trial court, which discretion will not be interfered with in the absence of abuse. Here, the trial court had been liberal in granting the postponements secured by the petitioner himself, at the same time admonishing the latter to be ready with his present counsel or another counsel [Original Records, p. 430]. Notwithstanding this admonition, the petitioner kept on attending the hearings without securing another lawyer to substitute his present counsel who was constantly absent during the hearings. Still, as admitted by petitioner in his memorandum, the trial court, at the December 9, 1974 hearing, allowed him to look for a lawyer but no one was available at the time (Rollo, p. 94). These steps undertaken by the trial court removes any doubt that its order was tainted with grave abuse of discretion. The last issue to be resolved dwells on the effect of the alleged variance between the prosecution's allegation and proof. The petitioner vigorously maintains that he cannot be justifiably convicted under the information charging him of attempting to defraud Ernesto Rufino, Sr. and/or Bank of America because the totality of the evidence presented by the prosecution show very clearly that the accused allegedly attempted to defraud Mever Films, Inc., a corporate entity entirely separate and distinct from Ernesto Rufino, Sr. He firmly asserts that his conviction was in gross violation of his right to be informed of the nature and cause of the accusation against him. Petitioner's claim is unavailing. The rule in this jurisdiction is that "variance between the allegations of the information and the evidence offered by the prosecution in support thereof does not of itself entitle the accused to an acquittal." [People v. Catli G.R. No. L-11641, November 29, 1962, 6 SCRA 642.]

Page

31

The rules on criminal procedure require the complaint or information to state the name and surname of the person against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of Identifying him, he must be described under a fictitious name (Rule 110, Section 11, Revised Rules of Court; now Rule 110, Section 12 of the 1985 Rules on Criminal Procedure.] In case of offenses against property, the designation of the name of the offended party is not absolutely indispensable for as long as the criminal act charged in the complaint or information can be properly Identified. Thus, Rule 110, Section 11 of the Rules of Court provides that: Section 11. Name of the offended partyxxx xxx xxx (a) In cases of offenses against property, if the name of the offended party is unknown, the property, subject matter of the offense, must be described with such particularity as to properly Identify the particular offense charged. (b) If in the course of the trial, the true name of the person against whom or against whose property the offense was committed is disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information or record. xxx xxx xxx In U.S. v. Kepner [1 Phil. 519 (1902)], this Court laid down the rule that when an offense shall have been described in the complaint with sufficient certainty as to Identify the act, an erroneous allegation as to the person injured shall be deemed immaterial as the same is a mere formal defect which did not tend to prejudice any substantial right of the defendant. Accordingly, in the aforementioned case, which had a factual backdrop similar to the instant case, where the defendant was charged with estafa for the misappropriation of the proceeds of a warrant which he had cashed without authority, the erroneous allegation in the complaint to the effect that the unlawful act was to the prejudice of the owner of the cheque, when in reality the bank which cashed it was the one which suffered a loss, was held to be immaterial on the ground that the subject matter of the estafa, the warrant, was described in the complaint with such particularity as to properly Identify the particular offense charged. In the instant suit for estafa which is a crime against property under the Revised Penal Code, since the check, which was the subject-matter of the offense, was described with such particularity as to properly identify the offense charged, it becomes immaterial, for purposes of convicting the accused, that it was established during the trial that the offended party was actually Mever Films and not Ernesto Rufino, Sr. nor Bank of America as alleged in the information. IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is hereby DENIED and the decision of the Court of Appeals is AFFIRMED in toto with costs against the appellant. SO ORDERED.

Page

32

RIGHT TO BE INFORMED (11) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE QUITLONG y FRIAS, SALVADOR QUITLONG y FRIAS and EMILIO SENOTO, Jr., y PASCUA, accused-appellants. [G.R. No. 121562. July 10, 1998] VITUG, J.: The Regional Trial Court of Baguio City, Branch 5,[1] disposed of Criminal Case No. 13336-R; thus: WHEREFORE, the Court finds and declares the accused RONNIE QUITLONG Y FRIAS, SALVADOR QUITLONG Y FRIAS and EMILIO SENOTO, JR. Y PASCUA guilty beyond reasonable doubt of the crime of murder as charged and hereby sentences EACH of them to suffer an indeterminate penalty of TWENTY (20) YEARS of reclusion temporal, as minimum, to FORTY (40) YEARS of reclusion perpetua, as maximum; to indemnify, jointly and severally, the heirs of the deceased Jonathan Calpito y Castro in the sums of P50,000.00 for the latters death; P35,700.00 as consequential damages; and P100,000.00 as moral damages, plus their proportionate shares in the costs. "In the service of their sentence, the said accused shall be credited with their preventive imprisonment under the terms and conditions prescribed in Article 29 of the Revised Penal Code, as amended. "Conformably with Section 1, Rule 111 of the 1985 Rules on Criminal Procedure, as amended, the corresponding filing fee for the P100,000.00 moral damages herein awarded shall constitute a first lien on this judgment. "The evidence knife, Exhibit `B, is hereby declared forfeited in favor of the Government. "Pursuant to Circular No. 4-92-A of the Court Administrator, the Warden of the City Jail of Baguio is directed to immediately transfer the same accused to the custody of the Bureau of Corrections, Muntinlupa, Metro Manila. "Let a copy of this Decision be furnished the Warden of the City Jail of Baguio for his information and guidance. "There being no indication that the remaining accused, Jesus Mendoza, and several John Does could be arrested/identified and arrested shortly, let the case against them be, as it is hereby, archived without prejudice to its prosecution upon their apprehension. "SO ORDERED.[2] The case was generated by an information for murder filed on 25 October 1994 against accused-appellants Salvador Quitlong, Ronnie Quitlong, Emilio Senoto, Jr., and several other unidentified persons following the killing of Jonathan Calpito. Accusedappellants, shortly after the filing of the information, submitted a motion for reinvestigation alleging that it was a certa in Jesus Mendoza who stabbed the victim after getting irked when the l atter urinated near and in front[3] of his wife. The trial court acted favorably on the motion. On 12 December 1994, the City Prosecutor filed a motion to admit an amended information on the basis of affidavits[4] executed by Nonita F. delos Reyes, Nicanor Ellamil, Lydia Q. Cultura, as well as accused-appellants Salvador and Ronnie Quitlong themselves, to the effect that it was Jesus Mendoza who had been responsible for the death of the victim. The information, as amended, included Jesus Mendoza among the named accused. [5] Unlike accused-appellants who were immediately arrested after the commission of the crime, Jesus Mendoza remained at large. At their arraignment, the detained accused pleaded not guilty to the crime charged. The evidence of the prosecution has narrated how a simple misunderstanding and relatively so small a matter could lead to so dastardly and unfortunate an outcome. At around six oclock in the evening of 20 October 1994, Lito Adjaro, who had just come from work as a dispatcher of passenger jeepneys plying the Baguio City-Loakan route, repaired to a nearby game parlor where he saw 19-year-old University of Baguio medical technology student Jonathan Calpito playing billiards with Jonathan Gosil. Adjaro was Calpitos neighbor and barkada (gangmate) in Loakan. At past eight oclock, Calpito decided that it was time to go home. Since at that hour there were no longer passenger jeepneys bound for Loakan, the three friends decided to walk down to Harrison Road behind the Melvin Jones grandstand to grab a taxicab. The area was well-lighted. Wanting to partake of some "fishballs," Calpito and Gosil approached a fishball vendor about three to four meters away. The two returned with three sticks of fishballs worth fifteen pesos. When Calpito counted the change for his 100-peso bill, he saw that he had only been handed back thirty five pesos. Confronted by Calpito and Gosil, the fishball vendor would not admit that he had short-changed Calpito.

Page

33

Herbert Soriano, a civil engineer driving a passenger-type jeep on his way to Loakan from the Dominican Hill, was seen passing by. Adjaro, his neighbor, hailed him. Soriano positioned his jeep around four or five meters from where Gosil and Calpito were still having an argument with the fishball vendor. Soriano called out to the two to board the jeep but they ignored him. Moments later, Soriano saw eight men rushing towards Gosil and Calpito from the direction of the taxicab-stand behind his jeep. Some of the men later backed out but four of them pursued Calpito who, meanwhile, had started to retreat from the group. The four men, however, succeeded in cornering Calpito. Soriano saw Calpito fall to the ground and thought that the latter had just been weakened by the men's punches but, when Calpito was carried on board his jeep, Soriano realized that Calpito had been stabbed. Adjaro saw no less than eight men approach and aggressively confront Calpito and Gosil. Seeing that his friends were outnumbered, Adjaro shouted at Calpito and Gosil to run posthaste. Adjaro promptly boarded Sorianos jeep. From where he sat, Adjaro could see appellant Emilio Senoto embracing Calpito from behind and appellants Salvador Quitlong and Ronnie Quitlong holding Calpitos right hand and left hand, respectively. Calpito struggled unsuccessfully to free himself. Suddenly, appellant Ronnie Quitlong stabbed Calpito at the left side of the body just below the nipple. Once the three men had released their hold on Calpito, the latter fell to the ground. Despite the condition that Calpito was already in, his assailants still went on hitting him with their feet. Police officers Jerry Patacsil, Arthur Viado and Nito Revivis were on foot patrol that evening. Attracted by the commotion along Harrison Road, the police officers hurriedly proceeded to the brightly-lighted place and saw Calpito lying on the ground. Three of the malefactors started to flee upon seeing the approaching police officers but the rest kept on with their attack on Calpito. Patacsil drew out his service firearm and told the attackers to freeze. Seeing that the victim had bloodstains on his left chest, Patacsil advised the victims companions to rush him to the hospital. Soriano, Gosil and Adjaro took Calpito to the Baguio General Ho spital on board Sorianos jeep. The police officers brought accused-appellants to the police station. SPO1 Gabriel Isican prepared the complaint assignment sheet[6] before turning them over to the investigation division. SPO4 Avelino Tolean, officer-in-charge of the police investigation division on the 4:00 p.m. to 12:00 midnight shift, also received a call from the Baguio General Hospital about the incident. SPO4 Tolean, along with SPO1 Rafael Ortencio, Jr., and two "Bombo" radio reporters, went to the hospital where Calpito was by then in the operating room. The police officers interviewed Adjaro and Gosil at the hospitals emergency room and then repaired to the crime scene and searched the area. Recovered near the flowering plants beside the electric post was a stainless knife [7] with bloodstains on its blade. Adjaro recognized the knife to be the one used in stabbing Calpito. SPO4 Gerardo Tumbaga prepared Form 1 of the National Crime Reporting System indicating that accused-appellants were arrested and that a certain Mendoza escaped and went into hiding. The report also disclosed that Adjaro and Gosil had a drinking spree with the victim at the Genesis Folkden before the stabbing incident. SPO4 Tumbaga based his findings on the documents attached to the records of the case. That same evening of 20 October 1994, at 8:55, Calpito died at the Baguio General Hospital. Dr. Kathryna Ayro, the hospitals medico-legal officer, conducted the autopsy on the victim upon the request of Dr. Samuel Cosme, the attending surgeon, and of First Assistant City Prosecutor Herminio Carbonell, with the consent of a brother of Calpito.[8] Dr. Ayro found a solitary stab wound that penetrated Calpitos left thoracic cavity at the level of the 5 th intercostal space that caused a "through and through" laceration of his anterior pericardium and the apex of the left ventricle of his heart. [9] Dr. Ayro indicated the cause of Calpitos death as being one of hypovolemic shock secondary to stab wound.[10] She opined that a knife, single or double bladed, must have been used in inflicting the stab wound. Abrasions were also found on different parts of Calpitos body. Precy Calpito, the mother of the victim, testified that the family had spent the amount of P37,500.00[11] for his wake, burial and 9-day prayers. Her youngest sons death left her losing hope in life and "feeling very badly." The defense gave no alibi and admitted the presence of accused-appellants at the vicinity of the crime scene; however, it interposed denial by appellants of any participation in the commission of the crime. Appellant Emilio Senoto, Jr., a taxicab driver, testified that out of curiosity, after parking his cab to buy some cigarettes and getting attracted by the commotion, went near the scene and saw the victim lying on the ground beside a cart. He was about to leave the place when several policemen arrived and arrested him. Appellant Salvador Quitlong, a food vendor at the Burnham Park and father of five children, denied having had any participation in the stabbing incident nor having been acquainted with Jesus Mendoza. He admitted, however, that on the night in question when he was selling "fishballs" at the park, around eighty meters away from where Mend oza was selling his wares, the latters daughter, who was a classmate of his own daughter, asked for help yelling that her father was in trouble. He rushed over to Mendozas place (puesto) but barely in time to witness the stabbing of Calpito by Mendoza. Appellant Ronnie Quitlong, Salvador Quitlongs 26 -year-old younger brother, was also a sidewalk vendor at the waiting shed along Harrison Road. He learned of the trouble Mendoza got himself into when the latter's daughter summoned for help. When he and his brother responded, Mendoza had by then already stabbed Calpito. Nonita de los Reyes and Lydia Cultura, both sidewalk vendors, corroborated the story of the Quitlong brothers. According to Nonita, it was Mendoza who stabbed Calpito. She witnessed the incident from a distance of ten meters away. Nonita explained that she did not immediately reveal what she saw to the authorities because of shock. Lydia Cultura, on her part, said that she saw Jesus Mendoza in the "rumble" with five or six men who had come from the Genesis Folkden. She saw Mendoza embrace and stab the man

Page

34

in white t-shirt. Nonita and Alma Balubar followed appellants to the police station but did not tell the police what she knew because she was busy attending to the crying pregnant wife of appellant Ronnie Quitlong. On 21 April 1995, the trial court, following his evaluation of the respective submissions of the prosecution and the defense, including their rebuttal and sur-rebuttal evidence, rendered its now assailed decision. In their assignment of errors, the Quitlong brothers would have it 1. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or without jurisdiction in finding that conspiracy may readily be inferred inspite of explicit failure to allege in the information or complaint; "2. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or without jurisdiction in finding that there was conspiracy between and among the accused-appellants in the commission of the crime; "3. That the Honorable Lower Court gravely abused its discretion and/or acted in excess of or without jurisdiction in finding the accused-appellants guilty of the crime of Murder instead of Homicide. [12] In his case, appellant Senoto contends that the trial court has erred in finding conspiracy among the accused and argues that the crime committed is homicide, not murder, given the circumstances. On the particular issue of conspiracy, the trial court had this to say: The question is whether or not the herein three accused participated in, and may be held guilty as co -principals by reason of conspiracy for, the fatal stabbing of the victim, Calpito, there being no dispute that the latter died due to the solitary stab inflicted on him. "But before proceeding any further, the Court takes notice of the lapse committed, perhaps inadvertently, by the prosecution in drafting the indictment. Both the original and amended Informations fail to explicitly allege conspiracy. This could have been timely cured if obeisance had been observed of the admonition, often given, that the prosecution should not take the arraignment stage for granted but, instead, treat the notice thereof as a reminder to review the case and determine if the complaint or information is in due form and the allegations therein contained are sufficient vis--vis the law involved and the evidence on hand. It is fortunate that in the case at bench conspiracy may readily be inferred from the way the allegation of abuse of superior strength has been phrased, to wit: `xxx the above-named accused, being then armed with a knife, with intent to kill xxx and taking advantage of their numerical superiority and combined strength did then and there willfully, unlawfully and feloniously attack, assault and stab JONATHAN CALPITO y CASTRO xxx.[13] Citing Balmadrid vs. Sandiganbayan,[14] the trial court has opined that "conspiracy may be deemed adequately alleged if the averments in the Information logically convey that several persons (have been) animated with the single purpose of committing the offense charged and that they (have) acted in concert in pursuance of that purpose. [15] Holding that no direct proof is essential and that it suffices that the existence of a common design to commit the offense charged is shown by the acts of the malefactors and attendant circumstances, the trial court has concluded: In the case on hand, it bears repeating that Ronnie Quitlong and Salvador Quitlong were admittedly responding to Jesus Mendozas call for help through the latters daughter. They must have, therefore, been disposed, out of empathy with a fellow s idewalk vendor, to lend Mendoza all the assistance the latter needed under the circumstances. They were joined, according to prosecution witnesses Lito Adjaro and Herbert Soriano, by no less than six others, including Emilio Senoto, Jr. They came upon Mendoza engaged in a heated altercation with the victim Calpito. When they reached Calpito, they pushed him and started beating him up and his companion Jonathan Gosil. Four to five men manhandled Calpito who kept on retreating and even went around Sorianos p arked jeep until he was cornered. Senoto then held Calpitos body from behind; Ronnie, his left hand; and Salvador, his right hand, and they mauled h im. Calpito struggled to free himself but that proved futile and, instead, Ronnie stabbed him once. It was only then that he was released and when he fell down on his back, his attackers still kicked him. Only the arrival of some policemen made some of the assailants stop and run away. However, Ronnie, Salvador and Senoto, kept on kicking the victim and they were restrained and arrested. "Guided by the jurisprudential authorities heretofore cited, it becomes ineluctable for the Court to conclude that Ronnie, Salvador and Senoto acted in a conspiracy and may thus be held liable as co-principals for the death of Calpito.[16] Overwhelming, such as it may have been thought of by the trial court, evidence of conspiracy is not enough for an accused to bear and to respond to all its grave legal consequences; it is equally essential that such accused has been apprised when the charge is made conformably with prevailing substantive and procedural requirements. Article III, Section 14, of the 1987 Constitution, in particular, mandates that no person shall be held answerable for a criminal offense without due process of law and that in all criminal

Page

35

prosecutions the accused shall first be informed of the nature and cause of the accusation against him. [17] The right to be informed of any such indictment is likewise explicit in procedural rules. [18]The practice and object of informing an accused in writing of the charges against him has been explained as early as the 1904 decision of the Court in U.S. vs. Karelsen;[19] viz: First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. (United States vs. Cruikshank, 92 U.S., 542). In order that this requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged. An information, in order to ensure that the constitutional right of the accused to be informed of the nature and cause of his accusation is not violated, must 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. [20] In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others.[21] Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well. A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of the facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. It is said, generally, that an indictment may be held sufficient "if it follows the words of the statute and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them.[22] The information charging herein appellants for the death of Jonathan Calpito, as amended, has but simply stated: That on or about the 20th day of October 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then armed with a knife, with intent to kill and with treachery and taking advantage of their numerical superiority and combined strength, did then and there willfully, unlawfully and feloniously attack, assault and stab JONATHAN CALPITO Y CASTRO suddenly and unexpectedly, without any warning whatsoever, inflicting upon him a stab wound at the left thorax at the level of the 7th rib, left medclavicular line, penetrating the pereduum and left ventricle causing left remothones of 700 cc and hemoperecuduum of 250 cc, which directly caused his death. "CONTRARY TO LAW.[23] The opinion of the trial court to the effect that conspiracy may be inferred from the allegation of abuse of superior strength and with the aid of armed men, i.e., that x x x the above -named accused, being then armed with a knife, with intent to kill xxx and taking advantage of their numerical superiority and combined strength, did then and there willfully, unlawfully and feloniously attack, assault and stab JONATHAN CALPITO Y CASTRO x x x[24] is difficult to accept. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue it. [25] Verily, the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of the words conspired or confederated or the phrase acting in conspiracy, must aptly appear in the information in the form of definitive acts cons tituting conspiracy. In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term conspire or its derivatives and synonyms or by allegations of basic facts co nstituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. In establishing

Page

36

conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused. In the absence of conspiracy, so averred and proved as heretofore explained, an accused can only be made liable for the acts committed by him alone and this criminal responsibility is individual and not collective.[26] And so it is that must be so held in this case. The conflicting claims of the prosecution and the defense on who stabbed the victim is an issue that ultimately and unavoidably goes into the question of whom to believe among the witnesses. This issue of credibility requires a determination that is concededly best left to the trial court with its unique position of having been enabled to observe that elusive and incommunicable evidence of the deportment of witnesses on the stand.[27] Findings of the trial court, following that assessment, must be given the highest degree of respect absent compelling reasons to conclude otherwise. [28] The Court is not, at this time and in this instance, disposed to deviate from the foregoing rule. In the first place, Lito Adjaro, the eyewitness in the stabbing of Calpito, has steadfastly stood by, even on rebuttal, to his story on the commission of the crime. A witness who testifies in a categorical, straightforward and spontaneous manner, as well as remains consistent on cross and rebuttal examination, is not likely to be an incredible witness. [29] Secondly, the defense has failed to establish any ill motive on the part of Adjaro that would have prompted him to testify wrongly against appellants. Where there is no evidence to indicate that the prosecution witness has been actuated by any improper motive, it would be hard to reject the supposition that a person will not prevaricate and cause damnation to one who has brought him no harm. [30] Finally, Herbert Soriano and the police, who have testified seeing the already wounded Calpito lying on the ground and still being attacked, both corroborate Adjaros positive identific ation of appellants as the persons who did maul Calpito. After positively pointing to appellants in open court to be the persons who ganged up on Calpito, Adjaro testified on their respective participations in the commission of the crime; thus: PROSECUTOR: "Q. Now, you pointed to Emilio Senoto, Jr. as one of the persons who held the deceased Jonathan Calpito. What part of the body of Jonathan Calpito did he hold? "A. His body, sir. "Q. How about Salvador Quitlong whom you also identified in Court. What part of the body of Jonathan Calpito did he hold? "A. I saw him hold his hand. "Q. What hand was held by Salvador Quitlong? "A. Right hand, sir. "Q. How about Ronnie Quitlong? "A. His left hand. "Q. After Jonathan Calpito was held by these three persons and other, what happened next? "A. They mauled (binugbog) Jonathan Calpito. "Q. Did you notice what part of the body was hit and boxed by these three persons? "A. His body and his face. "Q. What did Jonathan Calpito do, if any, when he is being held by these three persons and others? "A. He was struggling, sir. "Q. Was he able to free himself from the helds (sic) of these persons? "A. No more, sir. "Q. What do you mean no more? "A. He was not able to free himself. "Q. Yes, why was he not able to free himself anymore? "A. They held him tightly, he could not struggle. "Q. And what happened next when you said he could no longer struggle? "A. They boxed him and also stabbed him, sir. "Q. Did you see the person who stabbed him? "A. I saw, sir. "Q. Will you be able to identify him? "A. Yes, sir. "Q. I will request you to again look inside the courtroom and point to the person whom you saw stab Jonathan Calpito? "WITNESS: The person wearing white jacket. "INTERPRETER: Witness pointing to a gentleman inside the courtroom wearing cream jacket who gave his name as Ronnie Quitlong.[31] Appellant Ronnie Quitlong was a principal by his own act of stabbing Calpito that caused the latter's death. [32] Appellants Salvador Quitlong and Emilio Senoto, Jr., were holding the hands of Calpito at the precise time that Ronnie Quitlong was in the act of executing his criminal intent. Simultaneity, however, would not itself demonstrate the concurrence of will or the unity of action and

Page

37

purpose that could be a basis for collective responsibility of two or more individuals; [33] indeed, from all indications, the incident would appear to have occurred at the spur of moment. Appellants Salvador Quitlong and Emilio Senoto, Jr., shall therefore be held to be mere accomplices conformably with Article 18[34] of the Revised Penal Code. The crime committed was qualified by abuse of superiority. [35] While superiority in number would not per se mean superiority in strength, enough proof was adduced, however, to show that the attackers had cooperated in such a way as to secure advantage of their superiority in strength certainly out of proportion to the means of defense available to the person attacked. [36] Treachery may not be here considered as a generic aggravating circumstance although it might have ensured the commission of the crime. In order that treachery may be taken as an aggravating circumstance, there must be proof that the accused has consciously adopted a mode of attack to facilitate the perpetration of the killing without risk to himself, i.e., appellant Ronnie Quitlong in this case.[37] No such proof has been adequately shown. Under Article 248 of the Revised Penal Code, the crime of murder is punishable by reclusion temporal maximum to death. There being neither aggravating nor mitigating circumstances to appropriately appreciate in this case, appellant Ronnie Quitlong, as principal, shall suffer the penalty of reclusion perpetua. The indeterminate penalty of twenty (20) years of reclusion temporal, as minimum to forty (40) years of reclusion perpetua, as maximum, has been imposed by the trial court on the premise that reclusion perpetua is a divisible penalty. In the Court's Resolution of 09 January 1995, clarifying its decision [38] in People vs. Lucas,[39] the Court has said that x x x although Section 17 of R.A. No. 7659 has fixed the duration of reclusion perpetua from twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible penalty. It shall then remain as an indivisible penalty.[40] The two accomplices, appellants Salvador Quitlong and Emilio Senoto, Jr., shall be subject to the imposition of the penalty next lower in degree than reclusion temporal maximum to death or, accordingly, prision mayor in its maximum period to reclusion temporal in its medium period. Absent any mitigating or aggravating circumstance, the penalty that may be imposed is reclusion temporal minimum. Applying the Indeterminate Sentence Law to them, each may be held to suffer the indeterminate sentence of anywhere from prision correccional in its maximum period to prision mayor in its medium period, as the minimum penalty, to anywhere within the range of reclusion temporal minimum, as the maximum penalty. The trial court correctly imposed the payment of a civil indemnity of P50,000.00 in favor of the heirs of the victim. The consequential (actual) damages in the amount of P35,700.00 not having been substantiated, except for the amount P12,000.00 paid to the memorial chapel, is disallowed. The award of moral damages recoverable under Article 2219(1), in relation to Article 2206, of the Civil Code is reduced fromP100,000.00 to P20,000.00. WHEREFORE, appellant Ronnie Quitlong is found guilty of the crime of murder for the killing of Jonathan Calpito and sentenced to suffer the penalty of reclusion perpetua and further ordered to indemnify the heirs of the victim in the amount of P50,000.00, to reimburse them the actual damages of P12,000.00 and to pay moral damages of P50,000.00. Appellants Salvador Quitlong and Emilio Senoto, Jr., are found guilty as accomplices in the commission of the crime, and each shall suffer the indeterminate sentence of nine (9) years and four (4) months of prision mayor minimum period, as minimum penalty, to thirteen (13) years and nine (9) months and ten (10) days of reclusion temporal minimum period, as maximum penalty. Appellants Salvador Quitlong and Emilio Senoto, Jr., are also hereby held solidarily liable with appellant Ronnie Quitlong in the payment of the damages hereinabove mentioned. Costs against appellants. Let a copy of this Decision be furnished the Philippine National Police and the Department of Justice in order that the other participants in the killing of Jonathan Calpito, specifically Jesus Mendoza, be arrested and made to face the force of the law. SO ORDERED.

Page

38

(12) JOSE ABACA, petitioner, vs. HONORABLE COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 127162. June 5, 1998] MARTINEZ J.: Petitioner Jose Abaca was tried before the Regional Trial Court of Calapan, Oriental Mindoro, for the crime of illegal recruitment under Article 38 and 39 of Presidential Decree No. 442, based on an Information which reads: "That in the month of November 1988, and for a period prior and/or subsequent thereto, in the Municipality of Calapan, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused thru false manifestation and fraudulent representation made to ROSELIA JIZ JANEO, ZENAIDA J. SUBANG, RENITA J. JANEO and MELROSE S. PALOMO to the effect that he has the authority to recruit workers for employment in Taipei, Taiwan, and can facilitate the processing of their necessary papers in connection therewith if given the necessary amount of money to cover the costs of such recruitment and by means of other similar deceit when in truth and in fact he is not authorized nor licensed to recruit, did then and there willfully and unlawfully, and feloniously collect from the aforestated applicants the aggregate amount of FOURTEEN THOUSAND PESOS (P 14,000.00), Philippine Currency, the said accused assuring and representing that the same would be used in defraying the necessary expenses of the complainants' application for employment abroad and having been convinced by said misrepresentation the complainants gave the said amount to the herein accused, but the latter far from complying with his obligations, misappropriated and converted to his own personal use and benefit the aforecited amount, to the damage and prejudice of the said ROSELIA JIZ JANEO, ZENAIDA J. SUBANG, RENITA J.JANEO and MELROSE S. PALOMO. Contrary to Articles 38 and 39 of Presidential Decree No. 442, as amended otherwise known as the Labor Code of the Philippines."[1] Arraigned on February 6, 1990, petitioner entered a plea of not guilty. Thereafter, trial ensued. The prosecution's evidence, as summarized by the trial court, reads as follows: "The gist of the testimonies of the four complainants revolves on how the accused (petitioner herein) recruited them to work abroad and made them believe that the accused could work out their papers in consideration of a certain sum of money. Specifically, the four complainants similarly testified that the accused was introduced to them by his brothers, Perferio and Guding Abaca, whom they already knew for a long time. Sometime in the month of November 1988, the accused, accompanied by his brothers, misrepresented himself to be a licensed recruiter and convinced the four complainants that for a consideration they could work abroad at Taipei either as a domestic helper or factory worker with a salary ranging from $300 to $500 a month. The accused asked the sum of P14,000.00 each, but the complainants requested if they could payP6,000.00 first and before departure they will complete the amount as demanded. Thus, the complainants paid partial amount at the office of the accused at Five Ace Philippines located in Manila and all of them gave their own down payment. Each complainant paid the accused P1,500.00 allegedly to be used for the processing of the passport and the following amounts for processing x x x 'All the complainants were able to receive the passport from the accused. 'From the foregoing, the complainants were able to pay the accused the aggregate amount of P14,000.00, excluding the amount of P1,500.00 each for the passport. 'It was agreed between the complainant and the accused that the balance of their obligation would be given on or before they leave for abroad. But since their payment, the accused promised them to leave, first, on or before December, 1988 and then anytime in January of 1989, and then later. When the complainants sensed that they would not leave anymore, they informed the brothers of the accused whom they are familiar with, complaining about the failure of the accused to send them abroad when they have already paid the advance payment. The two brothers could not do otherwise but appeased them and promised to contact their brother, the accused herein. Finally, the complainants were able to confront the accused and demanded the return of their money, but the accused merely promised to do so, until such time that they already filed their complaint with the NBI." On the other hand, petitioners version of the case is likewise capsulized by the trial court in this wise, viz: "In trying to absolve himself from criminal liability, the accused shifted the blame to a certain Mr. Reynaldo Tan to whom he alleges to have remitted the sums of money he received from the complainants. To corroborate his version of the incident, the accused presented one Alberto Tolentino, an employee of the Department of Public Works and Highways who also was recruited by Mr. Abaca and who was also referred to Mr. Reynaldo Tan.

Page

39

xxx

xxx

xxx

When asked if he recruited complainants as they testified in Court, the accused denied the truth of such statement. The accused stated that he did not recruit them and the truth was he happened to be at the establishment of complainants in Calapan and they were able to talk with the Janeo sisters who told them of their problems wherein they were notified to vacate the establishment, and thus asked the accused to assist them in going abroad. The accused told them that they were recruiting workers in the Middle East but he is discouraging female to work there because of the horrible experiences others have undergone. The accused also told them that he was referring them to somebody whom he knows are sending people to Taipei in the person of Mr. Reynaldo Tan. The complainants agreed, after which the accused left for Manila where he was working. Then, one morning, the two girls in the name of Melrose Paloma and Zenaida Subang called the accused by phone and told him that they are interested in joining the Janeo sister to go to Taipei and they said that they came across the calling card of the accused marked as Exhibit "G". He admitted that the Five Ace Philippines is only engaged in trading and not as recruitment agency. He informed the Court that he was connected with the recruitment agency called WORK Incorporated-a licensed company." After trial, judgment was rendered finding petitioner guilty of the crime charged, the dispositive portion of which reads: "WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of illegal recruitment under Art. 39 ( c ) of P.D. 442, he is hereby sentenced to suffer imprisonment of four (4 ) years straight and to indemnify the complainants the aggregate amount of P14, 000.00 by way of civil liability, with the legal rate of interest from 1988 up to the time of payment. SO ORDERED." On appeal, the respondent Court of Appeals affirmed with modification the decision of the trial court. It found petitioner guilty of illegal recruitment on a large-scale and sentenced him to life imprisonment and a fine of P100,000.00. [2] Petitioner moved for reconsideration but the same was denied on November 7, 1996. [3] Petitioner now comes to us alleging that the respondent court committed grave and reversible errors of law and/or acted with grave abuse of discretion1. In not considering the certification (Exh. 1) issued by the POEA stating, among others, that WORK, Inc. was a duly licensed private recruitment agency prior to August 20,1989, and that petitioner was then a manager and PDOS (Pre-Departure Orientation Seminar) Trainor in said recruitment agency, and that, therefore, by virtue of his position as manager and PDOS trainor of WORK, Inc. , he had the authority to undertake recruitment activities. 2. In not finding that petitioner, being a holder of authority, may not be validly charged of illegal recruitment as defined by law in force at the time of the alleged commission of the offense charged, much less, convicted and sentenced to life imprisonment. 3. In declaring petitioner guilty of illegal recruitment in large scale and sentencing him to a penalty of life imprisonment and to pay a fine ofP100,000.00 4. In finding that herein petitioner undertook recruitment activities, there being a grave misapprehension of the facts. The petition must be dismissed. The crime of illegal recruitment is committed when two elements concur, namely: (1) the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and (2) he undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13(b), or any prohibited practices enumerated under Article 34 of the Labor Code. [4] Under the first element, a nonlicensee or nonholder of authority is any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked or canceled by the Philippine Overseas Employment Administration (POEA) or the Secretary. [5] Agents or representatives appointed by a licensee or a holder of authority but whose appointments are not previously authorized by POEA are within the meaning of the termnonlicensee or nonholder of authority.[6]

Page

40

The record shows that petitioner is not a licensed recruiter as evidenced by the Certification [7] issued by Mr. Hermogenes C. Mateo, Chief of the Licensing Branch, POEA. Testifying on the aforesaid certification, Mr. Mateo said:

"Q A

Now, how about a person by the name of Jose Abaca alias "Joe" or Jose "Joe" Abaca listed in that particular list as one among those authorized by the Philippine Overseas Employment Administration to recruit workers for employment abroad? He is not included among those authorized to recruit in their personal capacity like single proprietorship, sir." [8]

Petitioner's theory that he has the authority to recruit by reason of his position as manager and Pre-Departure Orientation Seminar Trainor (PDOS) of the WORKERS FOR OVERSEAS RECRUITMENT KEY CENTER, INC. (WORK, Inc.), a licensed private recruitment agency is devoid of merit. The Certification [9] issued by Mr. Mateo, which was relied upon by petitioner is nothing but an affirmation that he is an officer of WORK, Inc. It does not, in any way, prove that petitioner has a license or authority to undertake recruitment activities. Moreover, his employment with a licensed placement agency does not ipso facto authorize him to recruit workers. This was clarified by Mr. Mateo when he testified that: "Q Now, will you please tell this Court if the employees of WORK, Incorporated in particular or any agency for that matter which are license to recruit workers for overseas employment authorized or licensed to recruit workers for employment abroad? xxx A xxx xxx

That will depend on the designation of the person concerned, sir.

FISCAL SENOREN: Q A What do you mean by it depends upon the designation of a person? Well, if the designation states for example that he is only authorized to market for overseas principal, that is the only function that he could do so in representing the company. For example, if he is trainor, it so states that he is authorized to serve as trainor in the conduct of pre-departure orientation seminar, sir. xxx Q A xxx xxx

When a person is trainor or only a personnel manager, do you mean to say that he cannot recruit for his agency? As far as the POEA is concerned, we only recognize the appointment submitted to our office in his capacity as that, Your Honor." [10]

Even assuming that WORK, Inc. had authorized petitioner, by reason of his position in the company, to recruit workers, still, such authority was not previously approved by the POEA. [11] Again, Mr. Mateo explained that a licensee or holder of authority may authorize their employees to recruit for the agency. However, said authority must be submitted to and approved by the POEA.[12] The provision of Article 29 of the Labor Code is very clear on this: "Art. 29. Non-transferability of license or authority.- No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional officers anywhere shall be subject to the prior approval of the Department of Labor." (Underlining Ours) Moreover, there is nothing from the record which would show even by implication that petitioner was acting for and in behalf of WORK, Inc. when he was dealing with the complainants. Petitioner gave his calling card [13] and met with private complainants at his office at Five Ace, Phil., Malate, City of Manila. Thus, complainant Roselia Janeo testified: "Q A Q A Where did you give the amount of P 1,500.00 for your passport? I give (sic) the amount of P1,500.00 to Jose Abaca in Manila because he instructed us to follow him in Manila. Where in Manila did you give that P1,500.00? At Five Ace Philippines and this Five Ace Philippines is the agency which according to Jose Abaca he is handling" [14] Complainant Reneta Janeo also testified:

Page

A At Five Ace Philippines, sir.

41

"Q Miss witness, where did you give the amount of P6,000.00 to Mr. Jose Abaca?

Q What is this Five Ace Philippines? A It is an office, sir. Q And where is this Five Ace Philippines located? A At Guerero corner J. Nakpil St., Malate, sir. " [15] Petitioner's testimony that he referred the private complainants to a certain Reynaldo Tan because WORK, Inc. is deploying workers to the Middle East and other countries with bilateral agreements with the Philippines undisputably show that he was not representing WORK, Inc. when he dealt with private complainants. Petitioner recounted: "Q If that is so, Mr. Witness, why do you have to refer the complainants to other company represented by Mr. Reynaldo Tan, if according to you, the WORK Incorporated was duly licensed to engage in recruitment business? A Well, as I have said that I did not want them to be deployed to the Middle East wherein we have authority to deploy to the Middle East. Now, the fact that we do not have a bilateral agreement with Taipei but the Taipei government is accepting employees from the Philippines on a tourist visa and a tourist passport and visitors visa and as matter of fact, we have no less than two hundred thousand Filipino workers in Taipei right now under a visitor's visa on a tourist passport. Q So your company is not engaged in sending workers for Taipei, Taiwan" I am referring to WORK Incorporated? A Yes, sir. Q Because, according to you, our government has no diplomatic relation. A Bilateral agreement, sir. Q Bilateral agreement with said country? A Because the papers to be processed by the POEA, that cannot be processed because our government has no bilateral agreement with the said country. Q And you want to impress upon this Court that all workers going to Taipei, Taiwan work there unofficially without the sanction of our government but on shall we say, unofficial capacity, am I right? A Yes, unofficially in our country because they are working there on a tourist visa. And that is not the problem of our country. This is the problem of the once accepting these people. Even a tourist visa, a tourist passport. Q So that is the reason , according to you, why you do not utilize your company, the WORK Incorporated in connection with this particular application of the complainants in going to Taipei, Taiwan? A Yes, sir."[16] (Underlining Ours) It is clear therefore that petitioner never acted for and in behalf of WORK, Inc. when he recruited the private complainants. Going now to the second element of the crime charged, that is, the offender undertakes either any activity within the meaning of recruitment and placement, Article 13(b) of the Labor Code defines "recruitment and placement," as follows: "Recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; Provided, that any person or entity which in any manner offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement."(Underscoring Supplied) Petitioner's acts of (1) representing to the private complainants that he can help them work in Taipei with a monthly salary of $300 to $500; (2) requiring them to submit their ID pictures, birth certificates and bio-data for their employment abroad; (3)

Page

42

demanding from them P12,000.00 as processing fee; and (4) receiving from them certain amounts for the processing of their passports and other papers, are all recruitment activities within the contemplation of the law. The finding of the trial court in this regard is worth noting: "It has already been shown by the prosecution that accused was not licensed or authorized by the POEA to recruit workers for abroad. And yet, despite such fact, accused, thru false manifestation and fraudulent representation, made the complainants believe that he could help them work abroad as household helper or factory worker at Taipei at a salary ranging from $300 to $500, alleging that he has a friend who could help them work abroad. Relying on this representation, complainants were constrained to pay the aggregate amount of P14,000.00 as demanded by the accused besides the P1,500.00 each for passport, and the accused issued a private receipt (not official or printed receipt) evidencing such payment. With these receipts marked as Exhibits "A" to "E", "H" and "I" and the issuance of the passport, ID pictures, birth certificate, bio-data and other personal papers, the complainants were led to believe that accused could really help them work abroad. Thus, after payment, accused assured complainants that they might be able to leave in December of 1988. Come December 1988 and yet complainants were not able to leave and was again promised by accused that they could leave the following month of January, 1989. Again, complainants failed to leave, thus, they demanded from the accused to return the money, otherwise, they would file a case against the accused in court." [17] Petitioner further asserted that he did not recruit private complainants but only tried to help them by referring them to one Reynaldo Tan who was allegedly licensed to recruit workers to Taiwan. This posture, unfortunately will not exculpate him. Petitioner's act of referring private complainants to Tan is, under the law, also considered a recruitment activity. Finally, petitioner faults respondent court in finding him guilty of illegal recruitment in large scale which has a higher penalty. He argues that he cannot be convicted of illegal recruitment in large scale because the information charged him only with simple illegal recruitment. Having been sentenced by the respondent court to a graver offense, petitioner claims that he was deprived of his constitutional right to be informed of the true nature and cause of the accusation against him. We do not agree. The real nature of the criminal charge is determined not from the technical name given by the fiscal appearing in the title of the information but by the actual recital of facts appearing in the complaint or information .[18] Thus, where the allegations in the information clearly sets forth the essential elements of the crime charged, the constitutional right of the accused to be informed of the nature and cause of his accusations is not violated. [19] The information against petitioner has clearly recited all the elements of the crime of illegal recruitment at large scale, namely: the offender is a non-licensee or non-holder of authority to engage in recruitment and placement activity, the offender undertakes recruitment and placement activity defined under Article 13 (b), or any prohibited practices enumerated under Article 34, and illegal recruitment is committed against three or more persons individually or as a group. [20] All these elements were duly proven by the prosecution. Petitioner, as discussed earlier, is not licensed or authorized to recruit overseas workers; he undertook recruitment activities defined under Article 34 under the Labor Code and he recruited the four (4) complainant-workers, thus making the crime illegal recruitment in large scale. The imposable penalty is life imprisonment and a fine of One Hundred Thousand Pesos (P100,000.00) pursuant to Article 38 (b) [21] and Article 39 (a)[22] of the Labor Code. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. SO ORDERED.

Page

43

(13) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONIDES RANIDO, accused-appellant. [G.R. Nos. 116450-51. March 31, 1998] REGALADO, J.: Accused-appellant Leonides Ranido seeks the reversal of the March 27, 1994 joint decision of the Regional Trial Court of Cagayan de Oro City, Branch 24, in Criminal Cases Nos. 93-470 and 93-2127, finding him guilty of two counts of rape. In the challenged decision, he was sentenced to suffer the penalty of reclusion perpetua for each count of rape, with the maximum period of service of sentence not to exceed 40 years pursuant to Article 70 of the Revised Penal Code, and to pay private complainant P50,000.00 as damages in the two cases, without subsidiary imprisonment in case of insolvency. [1] The information in Criminal Case No. 93-470 alleges: That on or about October 7, 1992 at more or less 10:30 oclock in the morning, at Barangay Mambayaan, Balingasag, Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously, by means of force and intimidation, abuse and threats upon Marianita A. Gallogo 14 years (sic) old young woman, accused drag (sic) her to a room and with use of a knife, towel and cloth pinned her down and succeeded in having sexual intercourse with her against her will and consent. [2] The information in Criminal Case No. 93-2127 reads as follows: That on or about (the) 7th day of January, 1993 at more or less 5:00 oclock in the afternoon, at Barangay Mambayaan, Balingasag, Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court, (the above-named accused) did then and there willfully, unlawfully and feloniously drag the victim to the hut, pointed (sic) a knife at her and have sexual intercourse with her Marianita A. Gallogo, a woman of 14 years old (sic), against her will and consent.[3] (Words in parentheses added) Upon arraignment, appellant pleaded not guilty to the charges and the cases were tried jointly. The prosecution presented complainant, Marianita A. Gallogo; her father, Renato Gallogo; [4] and the physician who conducted a medical examination on complainant, Dr. Angelita A. Enopia. On the other hand, the defense presented appellant Leonides Ranido, and his common-law wife, Belencita Abejuela.[5] The evidence of the prosecution established that in the morning of October 7, 1992, complainant, then a 14-year old barrio lass who was working as a housekeeper for one Ernesto Morit, [6] was sweeping the surroundings of the house of her employer in Mambayaan, Balingasag, Misamis Oriental when appellant, who lived approximately 10 meters away, [7] suddenly appeared and pulled her towards the house of Morit. Appellant grabbed complainants duster from the clothesline and, once inside the house, he used it to tie her hands behind her back.[8] He then led her to a bedroom upstairs, poked a knife at her and threatened to kill her. [9] Appellant made the victim lie on the bed and pulled off her short pants and underwear. He then removed his pants and underwear, lay on top of her, sucked her breasts and forced his penis into her vagina. [10] There were no other persons in the house at that time and complainant was terrified and unable to resist appellant. After satisfying his lust, appellant untied complainants hands and left her in the room. [11] Several days later, complainant and her brother were tending cows behind their familys hut when appellant approached and warned her that if she should tell her father about what occurred on October 7, 1992, he would kill them both. [12] It was revealed during the testimony of complainant in court that on four other occasions subsequent to said occurrence, and likewise in the house of Morit, appellant forced himself upon complainant and sexually abused her. [13] In each instance, complainant and appellant were alone in the house[14] and appellant no longer bound her hands. Neither was it necessary for him to threaten her with a knife as her fear and the intimidation to which she was subjected were sufficient to restrain her from offering resistance against appellant. In the afternoon of January 7, 1993, complainant went to a nearby river to wash clothes. On her way home at around 5:00 P.M., she was walking by the hut of appellant when he unexpectedly pulled her inside and took her into a room. There, he raised her duster and pulled down her underwear, after which he removed his own pants and underwear, lay on top of her, and once again defiled her.[15] Appellant threatened to kill her if she resisted him[16] and, as in the previous instances, the victim yielded to his lechery because of fear. At this juncture, Abejuela, appellants common-law wife of 26 years,[17] arrived and caught him in the act of violating complainant. Abejuela became hysterical and charged at complainant, pulled her hair, and would have struck her with a bottle had appellant not parried the same. Complainant took the opportunity to free herself from appellant and flee from the hut. She proceeded to her neighbors house and did not go home that night because she was afraid that her father would beat her. [18] Renato Gallogo, the father of complainant, testified that he was at home at around 6:00 oclock that same evening when Abejuela, who was with a companion, arrived and told him that his daughter and appellant were having sexual intercourse. Gallogo

Page

44

retorted that Abejuela should clarify her statement, otherwise, he would hack her. Abejuela hurriedly left and Gallogo went to look for his daughter. It was only the following morning that he was able to find her at the house of his niece, half a kilometer away from his house.[19] When Gallogo questioned complainant about the report of Abejuela, she admitted that it was true and that it was not the first time that she was raped by appellant. Gallogos initial impulse was to take his daughter to a physician for medical examination.[20] However, he first brought her to the barangay station commander where they reported the incidents and complainant executed an affidavit.[21] They then proceeded to the Medicare clinic in Balingasag where complainant was examined by its resident physician, Dr. Angelita A. Enopia. The medical certificate issued by said physician indicated the following findings: -No fresh vaginal lacerations noted -Multiple old laceration(s) of the hymen -Vaginal orifice admitted two fingers easily -With fresh scanty bloody discharges[22] The physician testified that although no spermatozoa was detected, complainant was menstruating at the time of the examination and the flow thereof could have washed away whatever spermatozoa may have been discharged into her vagina. [23] Appellant denied the charges. He contended that he and complainant were neighbors and that she would frequently ask him for vegetables (malunggay) and money. Complainant would often tease him and would sometimes show him her leg and run away, but he was never tempted by these flirtations because he was already in his fifties and no longer capable of sexual intercourse, although he occasionally made love to his common-law wife.[24] Besides, appellant claimed that he was always tired.[25] He further asserted that on October 7, 1992, the date when the first incident of rape allegedly took place in the house of Morit, he was at home when complainant arrived and asked him for vegetables. She supposedly left as soon as he gave her vegetables and even returned the following day to ask for money.[26] With respect to the incident of January 7, 1993, appellant said that he was in a hut in the banana plantation of one Raul Cagatawan, about 300 meters away from the house of complainant, since he was the overseer of the property and the trees thereon. He, however, vehemently denied that he raped complainant there, and insisted that she came to him to ask for money and to consult him about her problems with her boyfriend who had allegedly victimized her. He averred that he was merely talking to complainant and giving her friendly advice when Abejuela arrived and went on a jealous rampage. [27] Appellant concluded that Abejuela got jealous and had a fit because he and complainant were seated together and complainant was holding his hand. [28] Abejuela corroborated the testimony of appellant and maintained that on January 7, 1993, she went to the plantation to bring supper to appellant when she found him talking to complainant in the hut therein. She said that although the two were only chatting, she became extremely jealous and scolded complainant who immediately left the place. She then confronted and quarreled with appellant because she resented his conversing with complainant who was reputed to have several boyfriends. [29] From there, she proceeded to the house of complainant and told her father, Renato Gallogo, to watch her. [30] It is indubitable that appellant was with complainant on October 7, 1992 and January 7, 1993, the dates when the subject acts of rape allegedly took place. Appellant did not disclaim that he was with complainant on several other dates on which, so the prosecution claims, he likewise raped her. He nonetheless forcefully denied that he raped complainant or made sexual advances at her. The trial court convicted appellant of two counts of rape committed on October 7, 1992 and January 7, 1993, hence this appeal where he raises a lone assignment of error that the trial court erred in convicting him of the offenses charged. Appellant, in his brief, contends that the inconsistencies in his defense and the weakness thereof do not warrant his conviction as the evidence of the prosecution is unconvincing and fails to prove his guilt beyond reasonable doubt. The Court, after exhaustive review and objective analysis of the records of this case, is in agreement with the findings of the lower court and consequently affirms the conviction of appellant. When Abejuela informed Gallogo on January 7, 1993 that appellant was having sexual intercourse with his daughter, Abejuela was purportedly with a companion[31] but the prosecution did not present that alleged companion as a witness during the trial. Appellant maintains that such failure to present the witness belies the allegation that Abejuela actually informed Gallogo of the rape incident. This contention has to be rejected. The testimony of the companion of Abejuela was dispensable and the absence thereof does not weaken the stand of the prosecution. The crime of rape is essentially one committed in secrecy, hence it is usually only the victim who can testify with regard to the fact of forced coitus.[32]As a result, conviction may be based solely on the plausible testimony of the private complainant.

Page

45

In the case at bar, the conviction of appellant was premised on the testimonies of complainant, her father, and the physician who conducted a medical examination on her, as well as a medical certificate and other evidence presented by the prosecution which the trial court found sufficient. The judgment of conviction cannot, therefore, be regarded as unfounded or baseless. Furthermore, appellant was positively identified by complainant, and his alibi that he could not have raped her in the house of Morit on October 7, 1992 since he was at home at the time is bereft of merit because it is uncontroverted that he lived only 10 meters away from the house of Morit.[33] Evidently, it was not physically impossible for him to have committed the crime as charged. His alibi is self-serving and his bare denial is a negative declaration which deserves no consideration and cannot prevail over the affirmative testimony of complainant which was corroborated by further evidence. [34] Appellant moreover asserts that the reaction of complainant s father, upon learning that she had been raped, was unnatural. As earlier recounted, Renato Gallogos impulse, upon confronting complainant and confirming the report that appellant had assaul ted her, was to take her to a physician for medical examination. Appellant argues in his brief that such response was extraordinary and abnormal because if appellant had really raped complainant, Gallogo should have immediately confronted him as human nature dictates. He allegedly should have taken revenge for his daughters honor and taken the law into his own hands, instead of merely having her subjected to medical examination. It has been repeatedly ruled by the Court that the workings of a human mind are unpredictable; people react differently under emotional stress and there is no standard form of behavior when one is confronted by a shocking incident. [35] Accordingly, while Gallogos initial response to the news of t he rape may be atypical, it cannot be deemed so unsual as to undermine the cause of the prosecution. Gallogo was a poor farmer of low educational attainment but, to his credit, this by itself did not make him incapable of behaving rationally and with composure, as shown by his comportment when he spontaneously brought his daughter to the authorities for legal and medical examination. Rape is committed by having carnal knowledge of a woman by inter alia, using force or intimidation. It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted because all that is required is that it be sufficient to consummate the purpose which the accused had in mind. [36] The ambient circumstances must, therefore, be viewed from the victims perception and judgment at the time of the rape. Although complainant was 15 years old at the time of the trial, the court below found that she only had the mental capacity of a fifth grade student and did not possess the necessary discernment when appellant had carnal knowledge of her. [37] Appellant evidently, took advantage of her mental weakness and vulnerability. More detestably, he bound her hands and intimidated her with a knife when he raped her on October 7, 1992. He also threatened to kill her and her father if she reported the incident. Complainant was hopelessly daunted each time she was assaulted. The force and intimidation employed by appellant were sufficient to terrorize her and reduce her to a defenseless sex object. Complainant was a wisp of a girl when the acts of rape took place. It is instinctive for a young, unmarried woman like her to protect her honor and it is thus difficult to believe that she would fabricate a tale of defloration, allow the examination of her private parts, reveal her shame to the small town where she grew up, and permit herself to be the subject of a public trial if she had not really been ravished.[38] Besides, the records are devoid of any improper motive which would have moved complainant to charge appellant with rape. Therefore, the logical conclusion is that no such unseemly motive exists and her testimony is worthy of credit. [39] We hold that appellants guilt has been established beyond reasonable doubt. While it is clear to the Court that there were six acts of rape committed, as indicated by the testimony of complainant, the two indictments filed in the lower court charged appellant with only two acts of rape committed on October 7, 1992 and January 7, 1993. Accordingly, consistent with the constitutional right of an accused to be informed of the accusation against him, [40] appellant cannot be held liable for more than what he was charged with. There can only be a conviction for two counts of rape because each of the two informations charges only one offense of rape, even if the evidence shows that six separate acts of forcible sexual intercourse took place. [41] At this juncture, we note that when these offenses were committed the governing law was Article 335 of the Revised Penal Code, as amended by Republic Act No. 4111, under which the use of a deadly weapon in committing the offense of rape was, as it still is, punished byreclusion perpetua to death.[42] No aggravating circumstance having been alleged or proved in these cases, the penalty of reclusion perpetuafor each conviction was correctly imposed by the court a quo.[43] Finally, the indemnity to be paid by appellant to private complainant should be modified to P50,000.00[44] for each count of rape, or a total of P100,000.00. Complainant should be indemnified for each felony of rape as these serious offenses were committed on two separate occasions several months apart. WHEREFORE, the appealed judgment of the Regional Trial Court of Cagayan de Oro City, Branch 24, in Criminal Cases Nos. 93-470 and 93-2127 is hereby AFFIRMED, with the MODIFICATION that appellant is ordered to indemnify the offended party, Marianita A. Gallogo, in the total amount of One Hundred Thousand Pesos (P100,000.00) as damages. Costs against accusedappellant Leonides Ranido in all instances. SO ORDERED.

Page

46

(14) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODELIO BUGAYONG, accused-appellant. [G.R. No. 126518 December 2, 1998] PANGANIBAN, J.: The Information charged appellant with statutory rape committed "before and until October 15, 1994 . . . several times." In the instant appeal, he asserts that this allegation regarding the date of the commission of the offense violated his constitutional right "to be informed of the nature and cause of the accusation against him." The Case This is the main question raised before the Court by the appellant who seeks the reversal of the May 29, 1996 Decision 1 of the Regional Trial Court of Baguio City, which convicted him of rape and acts of lasciviousness. On January 5, 1995, First Assistant City Prosecutor Herminio C. Carbonell charged appellant with rape in an Information 2 which reads: The undersigned 1st Asst. City Prosecutor hereby accuses RODELIO BUGAYONG a.k.a. "BOY" of the crime of RAPE, at the instance, relation and written complaint of ARLENE CAUAN, a minor, 11 years of age. Copies of her statement are hereto attached and made an integral part of this INFORMATION, committed as follows: That sometime before and until October 15, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, and by means of force or intimidation, have carnal knowledge of the said complainant, several times, against her will and consent. When arraigned on July 10, 1995, 3 appellant, with the assistance of counsel, entered a plea of not guilty. After trial in due course, the court a quo rendered the assailed Decision, the dispositive portion of which we quote below: WHEREFORE, premises considered, the accused RODELIO BUGAYONG is hereby found GUILTY of the crime of Acts of Lasciviousness committed on October 15, 1994 and he is hereby sentenced to suffer an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum, and of the crime of Rape he committed in 1993 for which he is sentenced to suffer the penalty of reclusion perpetua. 4 Hence, this appeal filed directly before this Court. 5 The Facts: Common Version of the Prosecution and the Defense Adopted by the lower court and the prosecution, appellant's summation of the facts of the case is reproduced hereunder:
6

Alberto Cauan and Leticia Yu Cauan got married on May 14, 1978. Out of this marital union they begot three (3) children, namely: ALBERT, HONEYLET and ARLENE[,] the private complainant herein. The spouses Alberto and Leticia Cauan separated way back in 1983. Albert and Arlene stayed with their mother Leticia while Honeylet stayed with her grandmother Anita Yu at Slaughter Comp[o]und, Baguio City. Later, Alberto and Leticia started living together with another woman and another man respectively, [with whom each of them] raised another family . . . . Leticia cohabited with the accused RODELIO BUGAYONG and had one (1) child, a minor by the name of CATHERINE BUGAYONG. For his part, ALBERTO CAUAN lived in with another woman with whom he has six (6) children. In October 1994, Leticia, the accused RODELIO BUGAYONG, ALBERT and the then 11 year old ARLENE (who was born on November 19, 1982) were residing at No. 13 MRR Queen of Peace, Baguio City. On October 15, 1994 accused RODELIO BUGAYONG had ARLENE hold his penis inside the room he share[d] with Leticia, At that time CATHERINE BUGAYONG who was six (6) years old was also inside the same room and her father, the accused was letting her sleep. Bugayong threatened to maim Arlene if she [did] not hold his penis. When the penis was already hard and stiff, he placed it inside the mouth of Arlene and a white substance came out from the penis. The young girl CATHERINE BUGAYONG saw this incident. Arlene testified that her stepfather had been doing the

Page

47

same act when she was still in Grade 3 and was nine years old. She also said that there were occasions when BUGAYONG played first with his penis then touched her vagina with his penis until a white substance [came] out [of] it and that was the time BUGAYONG would pull back his penis, or in the words of Arlene "idinidikit at pag may lumabas saka inilalayo. When asked to explain what she meant by "idinidikit", Arlene said that the penis of BUGAYONG partly entered [her] vagina and she got hurt. In any event, when LETICIA arrived home that day, CATHERINE reported to her that her father, RODELIO BUGAYONG, had Arlene hold his penis and put it inside the mouth of the former. Leticia called for RODELIO BUGAYONG and they talked. While the two (2) were talking, Alberto, the elder brother of Arlene, called for the latter and they went to the house of their grandmother ANITA YU at Slaughter Compound for fear that something [would] happen. Arlene reported the incident to her grandmother. Anita Yu told Arlene that she [would] not allow her to go to her mother and that she (YU) [would] file a case against Bugayong. In the morning of October 27, 1994, Arlene Cauan accompanied by her father Alberto Cauan and her aunt Marilyn Yu, Carmelita Yu and Rosie Yu went to the National Bureau of Investigation to file a complaint. They were advised by an NBI agent to go to the hospital to have Arlene examined by a Medico-legal Officer. Dr. HUMBELINA HARRIET M. LAZO examined Arlene and issued a certification stating therein her findings. The medical findings (EXH. "A") are hereunder quoted: CERTIFICATION TO WHOM THIS MAY CONCERN: This is to certify that I have personally seen and examined ARLENE CAUAN, 11 years old, female, child, a Grade V pupil from Slaughter Compound, who was allegedly sexually assaulted, . . . by father Alberto Cauan. NOI: Alleged Sexual Assault POI: #13 Queen of Peace Road, Baguio City TOI: 3:15 P.M. DOI: 15 October 1994 G/S: Conscious, coherent, ambulatory, afebrile. Skin: No abrasion, no hematoma. C/L: Clear breath sounds. Extremities: No edema. Perineal Inspection: Posterior fourchette not well coaptated. Labia majora with erythema. Labia minora with erythema. Hymen: open with old healed laceration at 5 o'clock and 8 o'clock position[s]. V[a]gina: Admit one finger with ease. Laboratory Result: Sperm Cell Identification: Negative for sperm cell. Gram Stain: Smear shows moderate gram (+) cocci appearing singly and in pairs with rare (+) rods. Epithelial cells: few. Pus cells: 5-8. The following day, October 28, 1994 they went back to the NBI office. Arlene gave her sworn statement (EXH. "C"). Alberto Cauan also gave his sworn statement (EXH "E"). Pertinent portions of Arlene's statement given to the NBI read 4. Q. Of what nature [is the complaint you are] filing . . . against your stepfather? A. The nature of my . . . complaint against my "TATAY" (RODELIO BUGAYONG) is [that] he raped me several times ever since I was nine years old and while I was in Grade 3. 7. Q. Were there other instances that your father sexually molested you? A. I could no longer remember how many times and everytime he sexually molested me he would threaten to hurt me. There were even times that he would force me to put his penis into my mouth until something sticky would come out

Page

48

of his penis and inside my mouth. At times he would play with his penis and when that sticky liquid already c[a]me out [of] his penis, he would put his penis into my vagina and force it inside and he [would] put the sticky liquid inside my vagina. He did this when I was around 10 years old but lately he would only force me to lick and swallow his penis until the sticky liquid which comes out of his penis suddenly comes out. Ruling of the Trial Court The trial court held that the accused raped the victim in 1993, not in 1994. Notwithstanding the rather encompassing allegation in the Information that the crime was committed "before and until October 15, 1994," the trial court ruled that it could legally convict the accused for the crime committed in 1993. The primordial consideration in determining the sufficiency of the averment in the Information as to time is whether the accused was accorded the opportunity to prepare a defense. In this case, the trial court observed that he was not so deprived. Furthermore, it noted that the Information charged more than one offense, but that the accused failed to interpose an opposition. The Issues In his Brief, appellant raises the following issues: I The lower court erred in convicting the accused-appellant [of] statutory rape that was proved to have been committed in 1993 under an information alleging that the offense was committed on or before October 15 of the year 1994. II The lower court erred [i]n convicting the accused [of] statutory rape [on] an unspecified date in 1993. 7 In fine, he poses the question of whether he may be convicted of rape committed in 1993, under the present Information, which accused him of committing the said crime "before and until October 15, 1994 . . . several times." In other words, the issue is whether appellant's conviction for the said act is warranted under the Information. In resolving this issue, the Court will determine whether the averment in the Information in respect to the time of the commission of the crime sufficiently apprised appellant of the "nature and cause of the accusation against him." 8 The Court's Ruling The appeal is devoid of merit. Main Issue: Sufficiency of the Information Appellant argues that he cannot be convicted of a crime committed in 1993 under the Information that accused him of rape "before or until October 15, 1991." He insists that the Information "refer[red] to dates shortly before and until October 15, 1994," but that the trial court "unnecessarily stretched the meaning of the phrase . . . to include any date before it." 9 Thus, appellant claims a violation of his constitutional right to be informed of the nature and cause of the accusation against him. He maintains that he was unable to prepare properly for his defense or to anticipate the evidence to be controverted. We disagree. Precise Date Need Not Be Alleged in the Information Although the Information alleged that the crime was committed "before and until October 15, 1994," the trial court did not err in convicting appellant of rape committed in 1993. It is doctrinal that the precise time of the commission of an offense need not be alleged in the complaint or information, unless time is an essential element of the crime charged. 10 Section 11, Rule 110 of the Rules of Court, buttresses this view. Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act

Page

49

may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. It bears emphasis that the date is not an essential element of rape, for the gravamen of the offense is carnal knowledge of a woman. 11 The time-tested rule is that "when the 'time' given in the complaint is not of the essence of the offense, it 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." 12 Explaining that the specific date or time need not always appear in the complaint or information, the Court held: It is true that the complaint must allege a specific time and place when and where the offense was committed. The proof, however, need not correspond to this allegation, unless the time and place [are] material and of the essence of the offense as a necessary ingredient in its description. The evidence is admissible and sufficient if it shows that the crime was committed at any time within the period of the statute of limitations and before or after the time stated in the complaint or indictment and before the action is commenced. 13 In US v. Dichao, 14 the Court also ruled that "the question [of] whether the allegations of the information are sufficiently definite as to time and the question which arises [from] a variance between the allegations and the proof are different in nature and legal effect, and are decided on different principles." Applying the aforecited rule in People v. Borromeo, 15 the Court elucidated: "[A] difference of one (1) year or twelve (12) months [is] merely a matter of form and does not prejudice the rights of the accused. . . . . The phrase 'on or about' employed in the information does not require the prosecution to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant." Indeed, the determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his corollary inability to defend himself properly. The records of this case belie appellant's claim of surprise. No Surprise on the Part of the Accused The text of the Information filed in the court below clearly alleged that appellant committed rape "before or until October 15, 1994. . . . several times." If vagueness afflicted the aforementioned text of the Information, it was cured by the victim's Sworn Statement, which was expressly made an integral part of the Information. The victim categorically alleged that she had been raped by appellant in 1993 when she was in grade three, as the pertinent portions of the Sworn Statement indicate: 04. Q Of what nature [is the complaint you are] filing . . . against your stepfather? A The nature of my filing a complaint against my "TATAY" is [that] he raped me several times ever since I was nine years old and while I was in Grade 3. 05. Q Could your please narrate to me how this happened? A Ever since I was [in] Grade 3, my stepfather always forced me to play with his penis and whenever I refused, he would threaten to hurt me by saying "KUNG HINDI KA PAPAYAG, LULUMPUHIN KITA", so I played with his penis until it was fully erect, then he [would] tell me to get out of their room. 06. Q Was your mother ever around, when he forced you to play with his penis? A No sir, he would always make it a point that my mother was out of the house when be molested me. 07. Q [Were] there other instances that your father sexually molested you? A I could no longer remember how many times sir, the only thing that I could remember is he did it to me many times and ever[y]time he sexually molested me he would threaten to hurt me. There were even times that he would force me to put his penis into my mouth until something sticky would come out of his penis and inside my mouth. At times he would play with his penis and when that sticky liquid [would] already come out [of] his penis, he would put his penis into my vagina, and force it inside and he [would] put the sticky liquid inside my vagina[;] he did this when I was around 10 years old but lately he would only force me to lick and swallow his penis until the sticky liquid which comes out of his penis suddenly comes out. 08. Q Did he ever repeat the forcing of his penis into your vagina? A Many times sir, he would always pin me down [o]n the bed and force his penis in[to] my vagina.

Page

50

09. Q When was the last time he molested you? A The last time he sexually molested me was when my younger sister, CATHERINE BUGAYONG caught us. 10. Q When was this? A Last October 15, 1994 sir, my sister CATHERINE caught me while my stepfather was forcing me to swallow his penis and letting me play with it. My sister CATHERINE told my mother about the incident when she arrive[d], then my mother talked to me and asked me if it was true[;] at first I denied it because my "TATAY" might hurt me, but after a while confessed to her so she talked to my stepfather and they had a fight. When my relatives learned of the incident, they fetched me at home and brought me to my grandmother's house at Slaughter House Compound." (Emphasis supplied.) In effect, the Sworn Statement substantiated the averments in the Information. Hence, appellant was sufficiently apprised that the "several" instances of rape committed "before and until October 15, 1994," which were asserted in the body of the Information, included the sexual assault on the victim in 1993 as alleged in the said Statement. Furthermore, appellant could not have been oblivious to the victim's Sworn Statement, for he requested and was given an opportunity to rebut the same in his Motion for Reinvestigation. Below, we repeat with approval the trial court's astute refutation of appellant's feigned ignorance: Besides, it can not be said that the accused was surprised and deprived of the chance to prepare for trial because of the allegations of several incidents of rape he committed "sometime before and until October 15, 1994." The records will show that before he was arraigned under the present information the accused moved for a reconsideration of the resolution of the City Prosecutor of Baguio finding probable cause against him and asked for a re-investigation of the case. The Court granted his motion and ordered the City Prosecutor to conduct a re-investigation of the case. The accused was given the chance to rebut the sworn statement of the private complainant Arlene Cauan contained in Exhibit "C". And in this sworn statement, Arlene narrated what happened not only on October 15, 1994; she also related other incidents occurring before the said date, more specifically the one that took place in 1993 when she was in Grade 3. The accused, therefore, was fully aware, or at least made aware, that he would be charged with rape committed several times before and until October 15, 1994. 16 In arguing that "before and until October 15, 1994" could only mean "on October 15, 1994 or within a reasonable time before such date" 17 and not 1993, appellant asks rhetorically: "What if the prosecution proved that the rape was committed in 1985?" 18 The question, indeed, is academic. The Sworn Statement alleged and the appellant is here convicted of a rape committed in 1993, not 1985. There is basis to hold him liable for the rape committed in 1993, but none for a putative crime committed in 1985. Waiver of the Right to Object to the Duplicitous Information It will be noted that appellant was charged with rape committed "before and until October 15, 1994 . . . several times." Said acts are alleged in only one Information which as a general rule, is defective for charging more than one offense. 19 Sec. 1, Rule 117 of the Rules of Court, states that the accused may move to quash the information "at any time before entering his plea." However, appellant failed, within the prescribed period, to file such motion on the ground of duplicity. He is thus deemed to have waived the defect in the Information. It is axiomatic that "when the accused fails, before arraignment, to move for the quashal of such information and goes to trial thereunder, he thereby waives the objection, and may be found guilty of as many offenses as those charged in the information and proved during the trial." 20 To recapitulate, appellant cannot be said to have been deprived of his constitutional right to be informed of the accusation against him. Despite the duplicitous nature of the Information, he did not object to such defect. Moreover, he was given the chance to defend himself in court and to cross-examine the complainant. There was no deprivation of due process here. Sufficiency of Evidence In his Brief, appellant did not challenge the sufficiency of the evidence preferred to show that he committed rape in 1993. Notwithstanding such failure, the Court rigorously examined the records and arrived upon the conclusion that his guilt had been established beyond reasonable doubt. The victim's clear, categorical and straightforward testimony indubitably demonstrated the culpability of appellant for the dastardly acts committed before and until October 15, 1994, viz.:

Page

51

Page

Q. Do you know Arlene, will you please tell the Court if in the month of October Rodelio Bugayong did something to you? A. Yes, sir. Q. What did he do to you? A. He had his penis held by me, sir. Q. Where did this happen? A. At Queen of Peace, sir. Q. In your house? A. Yes, sir. Q. Who were the persons there at the time when Bugayong told you to hold his penis, in your house at the time? A. I was with my younger stepsister. PROS. DIZON: Q. How old is this younger sister? A. Six (6) years old. Q. In 1994, how old was she? A. Five (5). Q. So you mean to say younger stepsister, this stepsister is the daughter of Bugayong? A. Yes, sir. Q. I see! Now, what did you do when Bugayong told you to hold his penis? A. I just held it. Q. Why did you hold it? A. Because I was afraid of him. Q. Why, what did he say, if any, to make you afraid of him? A. He told me that "lulumpuhin kita" (I will maim you). Q. In what place of the house did this incident happen? A. In their room with my mother. Q. Who were in the room at the time aside from you and Rodelio? A. My stepsister. Q. Your stepsister [was] inside the room at the time or she was outside the room? A. She was inside the room but my stepfather was letting her sleep. Q. Was she asleep at that time? A. Yes, sir. Q. Now, so did you hold the penis of Bugayong the accused? A. Yes, sir. Q. What else did he tell you to do, if any? A. He placed his penis in my mouth, sir. Q. Was the penis hard at that time or stiff? A. Yes, sir. Q. And what did he do when his penis was already inside your mouth? A. Whenever his penis [was] . . . placed inside my mouth I [would] go out to drink water because I [would feel] like vomitting, sir. PROS. DIZON: Q. You say whenever[;] you mean to say that was not the only time he did that to you? A. No, sir. Q. How many times did he do that to you? A. When I was still in Grade 3. Q. And how young were you when you were in Grade 3? ATTY. ESTRADA: At this point in time, Your Honor, we now object to this line of questioning because this was never stated in the information. PROS. DIZON: This is preliminary, Your Honor. ATTY. ESTRADA: Because what is being elicited now is that incident when she was in Grade 3. PROS. DIZON: We have to consider the tender age of the accused. COURT: I will allow the prosecution to propound additional questions. ATTY. ESTRADA: We submit, Your Honor.

52

PROS. DIZON: Q. How old were you when you were in Grade 3? A. Nine (9) years old. Q. Now, why did you feel like vomitting whenever he did that thing to you? A. Because whenever he [put] his penis inside my mouth it seem[ed] like pus [was] coming out [of] his penis. Q. What [was] the color, if you know? A. White. Q. Now, aside from all those things, do you remember if in the month of October, the same month, 1994, he did anything else to you aside from what you have relayed before this Court? A. Sometimes he [put] his penis in my vagina and when something sticky . . . COURT: Agree on the translation. ATTY. ESTRADA: We object to that translation. INTERPRETER: Whenever the penis of Rodelio Bugayong touche[d] my vagina something . . . ATTY. ESTRADA: May we just have the word "idinidikit" . . . COURT: All right! The word "dikit" will remain and [the] translation touch. INTERPRETER: Whenever the penis of Rodelio touche[d] my vagina something white [would come] out and he [would take] his penis farther from me. PROS. DIZON: Before [d]oing that he [would] first [play] with his penis and then the moment . . . COURT: You agree first on the translation. PROS. DIZON: There were occasions when he brought out his penis and touch[ed] . . . my vagina [with it] but before doing so he played with his penis until the sticky white substance . . . c[a]me out and that [was] the time he touched my vagina, the penis touched my vagina. I think that is the answer. I do not know if counsel is agreeable. COURT: Will you please read back the translation? Stenographer reading back the answer, as follows: There were occasions when he brought out his penis and touch[ed] . . . my vagina [with it] but before doing so he playe[d] with his penis first until the sticky white substance . . . c[a]me out and that [was] the time the penis touched my vagina. COURT: If I remember correctly the testimony of the victim and Tagalog was that "idinidikit at pag may lumabas saka inilalayo". PROS. DIZON: Okay, we submit. INTERPRETER: Rodelio Bugayong touche[d] my vagina with his penis until such time that a sticky substance [came] out and that [was] the time that he pull[ed] back. COURT: Official translation, Mrs. Lockey? Stenographer reading back the translation, as follows: Rodelio Bugayong touche[d] my vagina with his penis until such time that a sticky substance [came] out and that [was] the time that he pull[ed] back. ATTY. ESTRADA: I think the interpretation is not accurate. PROS. DIZON: May we just be allowed to ask the witness? Q. Aside from putting his penis in[to] your mouth, what other things did he do to you in the month of October and previous to that, if any? COURT: Defense counsel please assist the interpreter. INTERPRETER:

Page

53

The penis of Rodelio touche[d] my vagina and sometimes he . . . PROS. DIZON: We really have to ask the assistance of . . . COURT: Again! INTERPRETER: A Sometimes his penis touche[d] my vagina but before doing that he played first with his penis until a white substance [came] out of his penis and after that his penis touche[d] my vagina. PROS. DIZON: Q. I see! How may times did he do that to you? A. Maybe five (5) times or ten (10) times, sir. Q. During th[o]se times he did that to you[,] were there people in the house? A. None, sir. PROS. DIZON: Q. And in those five (5) or ten (10) times, where did this happen, where did he do that to you, in what place in the house? A. In our house, sir. Q. In what particular place in the house? A. In their room, sir. Q. The room of Bugayong and your mother? A. Yes, sir. Q. Why did you not object? A. Because I was afraid of what he told me that . . . "lulumpuhin niya ako". Q. Now, every time he did that thing to you, that is the touching of . . . your vagina [with his penis], what did you feel, if any? Do you not feel any pain? A. I got hurt, sir. Q. Now, you remember the last time he had his penis touch your vagina? A. I could not remember, sir. Q. Now, you said that his penis touched your vagina. You mean to say the penis [ ] we will withdraw that in the meantime. We will rephrase it rather. Q. You said that his penis touched your vagina. You said "idinikit". Will you please tell the Court what do you mean by "idinikit" or touched your vagina? A. He had his penis partly enter my vagina that is why I got hurt, sir. 21 The foregoing shows that appellant sexually assaulted complainant in 1993 when she was 10 years old. Thus, the trial court correctly convicted him of statutory rape under Article 335 (3) of the Revised Penal Code. Moreover, appellant is also guilty of acts of lasciviousness committed on October 15, 1995. The trial court correctly awarded P50,000 as indemnity ex delicto, an amount which is automatically granted to the offended party without need of further evidence other than the fact of the commission of rape. 22 Consistent with recent jurisprudence, appellant should also be ordered to pay the victim the additional amount of P50,000 as moral damages. In People v. Prades, 23 the Court resolved that "moral damages may additionally be awarded to the victim in the criminal proceeding, in such amount as the Court deems just, without the need for pleading or proof of the basis thereof as has heretofore been the practice." Republic Act 7659, which amended the Revised Penal Code, prescribes, among others, the death penalty where the rape victim is under is years of age and the offender is the common-law spouse of her mother. The amendatory law, however, cannot be applied in this case, because there is no showing that the crime was committed after the effectivity of the said law. WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED, with the MODIFICATION that Appellant Rodelio Bugayong is ordered to pay Complainant Arlene Cauan P50,000 as indemnity and the additional amount of P50,000 as moral damages, or a total of P100,000. Costs against the appellant. SO ORDERED.

Page

54

(15) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN RAZONABLE, accused-appellant. [G.R. No. 128085-87. April 12, 2000] PUNO, J.: This is an appeal from a decision[1] rendered by the Regional Trial Court of Camarines Norte, Branch 39, dated May 3, 1996, in Criminal Cases Nos. 7760, 7761 and 7762, finding appellant Benjamin Razonable guilty beyond reasonable doubt of raping his daughter, Maria Fe Razonable, and sentencing him to suffer the penalties of three (3) reclusion perpetua and to pay the amount of two hundred thousand (P200,000.00) pesos as moral damages. Juris Appellant was charged in three separate Informations[2] with the crime of rape, which are identically worded, as follows: "That sometime in the year 1987, at Purok I, Brgy. IV, Mantagbac, Municipality of Daet, Province of Camarines Norte, and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously have carnal knowledge of his own daughter MARIA FE H. RAZONABLE, against the latters will and by means of force and intimidation, to her damage and prejudice. "The crime was committed with the aggravating circumstances of relationship, the accused is the father of the offended party and that said offense was committed in their own dwelling and the offended party not having given provocation for it." Appellant pleaded not guilty and his case was tried on the merits. Sdjad Records show that in the middle of June 1987, just before midnight, complainant Maria Fe was lying down in her room on the second floor of their house in Bgy. IV, Mantagbac, Daet, Camarines Norte. Her father, appellant Benjamin Razonable, suddenly appeared inside her room, covered her mouth and held her hands. While complainant struggled to free herself from his grip, appellant forcibly removed her shirt, skirt and panty. Then appellant took off his shirt and pants, and straddled her. Complainant continued to struggle and tried to shout, but appellant covered her mouth and told her that "hindi naman daw po ako maaano." She cried while appellant was deflowering her, but she could not shout because appellant was covering her mouth. Appellant succeeded in having carnal knowledge of her. Thereafter, appellant repaired to his room downstairs, but not before threatening complainant with death should she report the crime to anybody. As soon as appellant had gone, complainant ran to a friends house nearby where she cried a river, but did not tell her friend the truth due to her fathers threat. Complainant went back home and helplessly cried herself to sleep. At the time of the rape, complainant was 12 years old[3] and was living alone with her father because her parents were then separated. Then came the following night. While in deep slumber, complainant felt appellant on top of her. He started to remove her shirt and panty. She cried and pleaded with him to stop, but appellant ignored her and when she struggled, he slapped her several times. Appellant once more succeeded in satisfying his lustful desires on her. She felt the pain again, and again her father repeated his threat to kill her if she would reveal the incident. Complainants harrowing experience was to be repeated a third time. After one day, at about midnight, she was standing in her room when appellant grabbed her on the arm and forced her to lie inside the room. Appellant forced another intercourse with her. Misact Complainant was able to disclose the dastardly acts of her father to her elder sister only in February of 1993 because her conscience would not allow her any peace of mind. She also feared recurrence of the bestial acts. Her father often drank with friends inside their house and she was wary that appellant might give her to his friends. Thus, accompanied by her sister Ana Marie, complainant went to the police station and filed a complaint. Then they proceeded to the Camarines Norte Provincial Hospital where complainant was examined by Dr. Arsenio Angeles, Jr. Based on his medical certificate, complainant had, at the time of examination, incompletely healed hymenal lacerations at 5, 6, 7, and 9 oclock positions. [4] The defense evidence was anchored on denial and alibi. Appellant Razonable testified that during the times material to the alleged rape incidents, he was at the bakery owned by a certain Mrs. Balane where he worked from 8 p.m. to 10 a.m. In corroboration, witness Wilfredo Francisco declared that in June of 1987, appellant was never absent from work because they were busy preparing for the town fiesta. On cross, however, he admitted that there were times accused did not report for work. He failed to remember the days when appellant worked in June of 1987. Acctmis Appellant attempted to explain the ill motive of the complainant. He said that complainant filed the cases at bar because he often scolded his children when they stayed out late at night. He even whipped them with his belt. He added that on February 16, 1993, he

Page

55

slapped Marie Fe and her brother Ruben because he caught them sleeping together naked. When he insisted that the two be checked by a doctor, they refused and instead they transferred to the house of their sibling at Pasig, Daet, Camarines Norte. He was not able to discuss with his children these cases because, except for complainant, they already left for Manila. [5] Felix Razonable, brother of appellant, testified that after the cases were filed, his nieces Ana Marie and Maria Fe saw him at his house and asked for help as they wanted to withdraw the said cases. They went to the Public Attorneys Office to execute an Affidavit of Desistance. She did not, however, proceed for fear that she might be incarcerated. [6] Complainant refuted Felixs story. She explained that the purported execution of affidavit of desistance was insisted upon by appellants sister. From the judgment of conviction, appellant is now before us alleging that: 1. The trial court gravely erred in not considering the information insufficient to support a judgment of conviction for its failure to state the precise date of the alleged commission of the offense, it being an essential element of the crime charged; and 2. The lower court gravely erred in finding that the guilt of herein accused-appellant of the three (3) counts of rape has been proven beyond reasonable doubt. We sustain the conviction. Appellant contends that the allegation in the Information that the offense was committed "sometime in the year 1987" violates Section 6, Rule 110 of the Revised Rules of Court which provides that the information must state the approximate time of the commission of the offense. The three Informations should therefore be considered fatally defective because the dates of the commission of the offenses charged are too indefinite and denied the appellant an opportunity to prepare his defense. Appellant contends that the defective Informations violated his constitutional right to be informed of the nature and cause of the accusation against him. Section 11, Rule 110 of the Rules of Court requires that the time of the commission of the offense must be alleged as near to the actual date as the information or complaint will permit. If the Information does not state the time with sufficient certainty as to inform the accused of the date on which the criminal act is alleged to have been committed, this will run afoul of the constitutionally protected right of the accused to be informed of the nature and cause of the accusation against him. [7] The rationale of the rule, which is to inform the accused of the nature and cause of the accusation against him, should guide our decision. To claim this substantive right protected by no less than the Bill of Rights, the accused is duty bound to follow our procedural rules which were laid down to assure an orderly administration of justice. Firstly, it behooved the accused to raise the issue of a defective information, on the ground that it does not conform substantially to the prescribed form, in a motion to quash said information or a motion for bill of particulars. An accused who fails to take this seasonable step will be deemed to have waived the defect in said information. The only defects in an information that are not deemed waived are where no offense is charged, lack of jurisdiction of the offense charged, extinction of the offense or penalty and double jeopardy. Corollarily, we have ruled that objections as to matters of form or substance in the information cannot be made for the first time on appeal. [8] In the case at bar, appellant did not raise either in a motion to quash or a motion for bill of particulars the defect in the Information regarding the indefiniteness of the allegation on the date of the commission of the offense. Secondly, during the trial, the defense never objected to the presentation of evidence by the prosecution to prove that the offense was committed in the middle of June 1987. It has not been shown that appellant was taken by surprise with the testimony of complainant that she was raped in the middle of June 1987, and hence could not properly defend himself. On the contrary, appellant was able to give an alibi as to his whereabouts at that particular time. In fine, appellant cannot pretend that he was unable to defend himself in view of the vagueness of the allegation in the information as to when the crimes at bar were committed. We now come to appellants claim that his guilt has not been proven beyond reasonable doubt on the following grounds: (1) the identity of the perpetrator has not been established with certitude since the room was dark and it has not been shown that it was properly illuminated; (2) it was unnatural for the complainant to remain in their house if it was true that she was threatened and intimidated; and (3) there was an unreasonable delay in the filing of the complaint which rendered the rape charges doubtful. We are not persuaded. Newmiso It is highly inconceivable that complainant would not recognize her own father with whom she has been living alone for a long time. For one, we have ruled that it is the most natural reaction for victims of criminal violence to strive to see the appearance of their assailant and observe the manner in which the crime was committed. Most often, the face and body movements of the assailant create a lasting impression which cannot be easily erased from their memory. [9] The impression becomes more profound where the

Page

56

malefactor is the victims own father. Also, complainant categorically testified that it was her father who raped her. It is unthinkable, if not completely preposterous, that a daughter would concoct a story of rape against her father, taking to mind the reverence and respect for elders that is too deeply ingrained in Filipino children. [10] The delay in the filing of the cases at bar does not necessarily impair the credibility of the victim. Experience teaches us that many victims of rape never complain or file criminal charges against the rapist, for they prefer to silently bear the ignominy and pain, rather than reveal their shame to the world or risk the offenders making good on his threats.[11] In the case at bar, complainant initially preferred to conceal her dishonor and suffer in silence b ecause her honors violator was her father, her own flesh and blood. [12] It must be remembered that complainant was threatened by the appellant with death if she reported his dastardly act. The debilitating fear that was inculcated in her young mind, considering specially that the threat came from her father who has moral ascendancy over her, is enough to cow her into silence and submissiveness. In People vs. Melivo,[13] we said: J-jlex "A rape victims actions are oftentimes overwhelmed by fear rather than by reason. It is this fear, springing from the initial rape, that the perpetrator hopes to build a climate of extreme psychological terror, which would, he hopes, numb his victim into silence and submissiveness. Incestuous rape magnifies this terror, because the perpetrator is a person normally expected to give solace and protection to the victim. Furthermore, in incest, access to the victim is guaranteed by the blood relationship, proximity magnifying the sense of helplessness and the degree of fear. x x x. The rapist perverts whatever moral ascendancy and influence he has over his victim in order to intimidate and force the latter to submit to repeated acts of rape over a period of time. In many instances, he succeeds and the crime is forever kept on a lid. In a few cases, the victim suddenly finds the will to summon unknown sources of courage to cry out for help and bring her depraved malefactor to justice. M-isjuris xxxxxxxxx In all of these and other cases of incestuous rape, the perpetrator takes full advantage of his blood relationship, ascendancy, and influence over his victim, both to commit the sexual assault and to intimidate the victim into silence. Unfortunately for some perpetrators of incestuous rape, their victims manage to break out from the cycle of fear and terror. x x x [A]n intimidated person cowed into submitting to a series of repulsive acts may acquire some courage as she grows older and finally state that enough is enough, the depraved malefactor must be punished." In People v. Sevilla,[14] where the child victim did not report the incident to her mother until after eight years, the Court held that: Jurissc "The fact that Myra did not complain to her mother or her aunts about the sexual abuses committed by her father against her for eight long years, is of no moment. Myra, who was of a very tender age when the horrible events in her life began to unfold, could have, in all probability, been confused and bewildered by her experience that for more than half of her young life, she was shocked into utter insensibility." The fact that complainant continued to live with appellant will not likewise crumple her credibility. At the time of the incident, complainant was a simple, nave and hapless child of twelve years. She was living by her lonesome self with her father, entirely dependent on him for all her needs. Her mother was in Isabela and her nearest sibling lived in another town. It could hardly be expected that such a child of tender age would know what to do and where to go under the circumstances. It is not proper to judge the actions of children who have undergone traumatic experiences by the norms of behavior expected under the circumstances from mature persons.[15] There is no standard form of human behavioral response when one has just been confronted with a strange, startling or frightful experience as heinous as the crime of rape and not every victim to a crime can be expected to act reasonably and conformably with the expectation of mankind.[16] Appellants defense hinges primarily on denial and alibi. No jurisprudence is more settled than that alibi is the weakest of all defenses, for which reason it is generally rejected especially when the complaining witness sufficiently and positively established the identity of the accused.[17] It must be buttressed by strong evidence of non-culpability to merit a serious consideration. Affirmative testimony like that of the victim is stronger than a negative one. Furthermore, a rape victims testimony is entitled to greater weight when she accuses a close relative of having raped her, as in the case of a daughter against her father. [18] Appellants alibi that he was in his place of work from 8:00 p.m. to 10:00 a.m. when the crime was committed cannot be given credence. How he could have exactly remembered, five years after the incident, that he was never absent from work for the whole month of June 1987, hardly inspires belief. For alibi to prosper, the accused must establish that he was so far away that he could not have been physically present at the place of the crime, or its immediate vicinity, at the time of its commission. Where there is even the least chance for the accused to be present at the crime scene, the alibi seldom will hold water. [19]

Page

57

Appellant would impute ill-motive on complainant and her siblings in filing these charges against him allegedly because he whipped, scolded, and slapped them. We are not convinced. It would take a most senseless kind of depravity for a young daughter to concoct a story which could put her own father to prison for the rest of his life. [20] It cannot be believed that appellants very own d aughter would allow herself to be perverted if she was not truly motivated by a desire to seek retribution for the abominable violation committed against her by the father. It is extremely unlikely that the victim, presumably a virgin, an innocent and unsophisticated girl, unexposed to the ways of the world, would concoct a reprehensible story of defloration, no less than against her own father, allow an examination of her private parts and then subject herself to the rigors, trouble, inconvenience, ridicule and scandal of a public trial, where she has to bare her harrowing and traumatic experience, unless she was in fact raped and deeply motivated by her sincere desire to do so solely to seek justice and obtain redress for the unforgivable and wicked acts done on her.[21] The trial court found the victims sincerity and candor to be free from suspicion. It observed that complainant was in tears while narrating her harrowing experience at the hands of appellant. The trial courts assessment of the credibility of this witness is ac corded great respect and we are not inclined to disturb it absent a clear showing that a material or substantial fact has been overlooked or misappreciated which could alter the outcome of the case. [22] Considering that the acts were committed prior to the effectivity of Republic Act No. 7659, the trial court correctly imposed the penalty ofreclusion perpetua in each of the three cases. However, consistent with recent rulings, the amount of P50,000.00 for each count of rape should be awarded by way of moral damages, [23] and hence the award given by the trial court should be reduced to P150,000.00. Likewise, current case law dictates that the victim shall be entitled to civil indemnity in the amount of P50,000.00 for each count of rape.[24] WHEREFORE, the decision of the Regional Trial Court of Daet, Camarines Norte, Branch 39, in Criminal Cases Nos. 7760, 7761 & 7762, finding accused Benjamin Razonable guilty beyond reasonable doubt of three (3) counts of rape and sentencing him to the penalty of reclusion perpetua on each count, is hereby AFFIRMED with the MODIFICATION that he is ordered to pay complainant, Maria Fe Razonable, the amount of Fifty Thousand Pesos (P50,000.00) as moral damages and Fifty Thousand Pesos (P50,000.00) as civil indemnity, for each count of rape. Sc-juris SO ORDERED.

Page

58

(16) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN CAGADAS, JR., MACARIO BARBERO, ROMY TULIO, CORITO PIASIDAD, RENE BALONG, ROBERTO CULTURA and TATOR SALVADOR, appellants. [G.R. No. 88044 January 23, 1991] GRIO-AQUINO, J.: This case was elevated to this Court on appeal as the penalty of reclusion perpetua was imposed upon the appellants. On June 6, 1973, at around 6:30 in the morning, Rex Ballena and his sister, Lucia Ballena-Tabo, left their residences at Longganapan, San Vicente, Davao, bound for the capital town of Tagum, to withdraw some money with which to pay their farm laborers. In order to reach their destination, they had to pass through Sitio Rizal in Binancian, Municipality of Asuncion, Davao, to take a jeepney ride to Tagum. While waiting inside the jeep at the Sitio Rizal Terminal, some members of the Integrated Civil Home Defense Force (ICHDF), including the accused, approached them and asked where they were bound for and why. Rex Ballena naively informed them that they were on their way to Tagum to withdraw money from the bank with which to pay his farmhands. When asked if they would be returning to Longganapan that day, Lucia replied that only her brother, Rex, would do so. One of the ICHDF members who approached them was identified by Lucia Tabo as Martin Cagadas, Jr. Rex and Lucia arrived in Tagum at nearly noon. After withdrawing P800 from his Family Savings Bank Account No. 1517020387, Rex purchased some necessities for his family, reserving P500 for his workers' wages. He returned to Longganapan the following day, leaving his sister Lucia in Tagum. Rex was able to pass Sitio Rizal unmolested. In fact, he met Santiago Vercede, his neighbor in Longganapan, while travelling on Dalisay Road at around 3:30 that afternoon, proceeding toward Sangab. The following day, Lucia returned to Longganapan and discovered that her brother never arrived home and was missing. On June 9, 1983, at around 8:30 in the morning, Lucia informed their barangay councilman, Jose Magunot, who was also the deacon of the Iglesia ni Kristo Church, that she was looking for her brother Rex. Together with other farmers living near the Bontiqui/Lapatigan Creek, they searched for Rex. On their way to Rizal, they met members of the ICHDF namely, Miguel Daub, Martin Cagadas, Jr., Macario Barbero, Romy Tulio, Corito Piasidad, Rene Balong, Roberto Cultura and Tator Salvador, who inquired about their mission and dissuaded them from continuing their search for Rex. They were advised to report the matter to the barangay officials in Binansian Asuncion, which they did. However, no action was taken by the said barangay officials. In the evening of June 10, 1983, due to the very strong stench emitting therefrom, the decomposed body of Rex Ballena was found lying face down in a deep ravine below the mouth of the Macjum River about one-half kilometer away from the Bontiqui Creek. His body bore multiple stab wounds in the chest and stomach, with the intestines protruding, his throat slashed, and head smashed with a hard and heavy object. His mouth was still gagged with a red handkerchief and his hands bound with boracan vines behind his back. His money was gone but his Savings Account passbook was found beside the decaying corpse. Without waiting for the Municipal Health Officer's post-mortem necropsy examination or the Municipal judge's Inquest Report, his remains were laid to rest the next day. On November 8, 1984, or more than a year later, an Information for murder was filed against the armed ICHDF members, namely: Miguel Daub, the ICHDF team leader, Martin Cagadas, Jr., Macario Barbers, Romy Tulio, Corito Piasidad, Rene Balong, Jose "Roberto" Cultura and Saturnino "Tator" Salvador, who had been seen by eyewitnesses leading Rex, with hands hogtied behind his back and his mouth gagged by a red handkerchief, towards the deep gully where his decomposing body was found. The ICHDF was a para-military group organized by local units of the Armed Forces of the Philippines and composed of selected civilians in the locality to assist the Army in its peace-keeping duties. The amended information, filed on December 3, 1984, reads: The undersigned accuses MIGUEL DAUB, MARTIN CAGADAS, JR., MACARIO BARBERO, ROMY TULIO, CORITO PIASIDAD, RENE BALONG, JOSE CULTURA and TATOR SALVADOR of the crime of Murder under Article 248 of the Revised Penal Code, committed as follows: That on or about June 6, 1983, in the Municipality of San Vicente, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, conspiring, confederating and mutually helping one another, with treachery and evident premeditation, with intent to kill and armed with guns and bladed weapons,

Page

59

did then and there wilfully, unlawfully and feloniously attack, assault, hack and stab one Rex Ballena, thereby inflicting upon him wounds which caused his death, and further causing actual, moral and compensatory damages to the heirs of the victim. That in the commission of the foregoing offense all the abovenamed accused took advantage of their public position as members of the Integrated Civil Home Defense Force and their superior strength which circumstances aggravate their crime. (p. 3, Trial Court's decision; p. 24, Rollo.) The accused were arraigned on December 14, 1984. Each entered a plea of "Not Guilty" to the charge. At the trial, the prosecution presented five witnesses and the defense, thirteen. Two prosecution witnesses, Ramos Magunot and Jose Magunot, testified that they saw on June 6, 1983 at around 4 p.m., from their farm huts situated along Bontiqui Creek in Sitio Rizal, Rex Ballena, hogtied and being led by the accused toward the Macjum River, where his corpse was later discovered. Leading the way was Martin Cagadas, Jr.; on the left side of Rex was Romy Tulio who held the vine tied around Rex's hands; on the right was Tator Salvador, and directly behind was Macario Barbero, who held a gun against the victim's back, followed by Corito Piasidad, Rene Balong, "Jose" Cultura and ICHDF team leader Miguel Daub. Jose Magunot testified that he was summoned by the ICHDF team the same evening because their leader (Daub) caught him (Jose) watching when they hogtied Rex. He was warned not to tell on them at the risk of his own life. There was, however, no eyewitness to the actual killing. All the accused put up the defense of alibi, claiming that they could not possibly have committed the heinous crime imputed to them, for they were not in the place pointed to by the prosecution witnesses, having either worked in another ICHDF detachment center or in some other place. On August 24, 1988, the Regional Trial Court of Tagum, Davao (Branch 1) rendered a decision finding all of the accused, excluding Miguel Daub (who died during the trial) "guilty beyond reasonable doubt of the crime of murder as charged, sentencing them to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law, and to indemnify the widow, Aquila Ballena, and the heirs of Rex Ballena P12,000 as compensatory damages, plus Thirty Thousand (P30,000) Pesos, as and in the concept of moral damages, the filing fees thereof to stand as lien to the full and complete execution for the satisfaction of the awards." (p. 50, RTC decision; p. 137,Rollo.) The defendants appealed to this Court in view of the penalty imposed on them. They allege that the lower court erred: 1. in convicting them of murder despite the prosecution's failure to prove their guilt beyond reasonable doubt; 2. in giving credence to the improbable and ill-motivated testimonies of prosecution witnesses Ramos and Jose Magunot; 3. in convicting the appellants of the crime charged based on purely circumstantial evidence; 4. in disregarding their defense of alibi; 5. in convicting Roberto Cultura even if he was not one of the charged in the information; and 6. in finding that the aggravating circumstances of (a) taking advantage of public position, (b) superior strength, (c) evident premeditation, and (d) treachery were present in the commission of the crime. The appeal has no merit. While it is true that no eyewitnesses to the actual killing were available or brave enough to come forward and testify against the accused, direct evidence is not the only basis upon which their guilt may be predicated. Their guilt may be, as it was, established through circumstantial evidence which suffices for conviction if the following requisites are present, namely: (1) there must be more than one circumstance, (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Sec. 5, Rule 133, Revised Rules of Court; People vs. Alcantara, 163 SCRA 783). The following facts or circumstances were proven: 1. that Rex was seen by the prosecution witnesses, Ramos Magunot and Jose Magunot, hogtied and gagged with a red handkerchief in his mouth;

Page

60

2. that he was being led on foot toward the Macjum river by the appellants; 3. that his body, bearing stab wounds and other injuries, was found at the Macjum river; 4. that the appellants advised Magunot not to report what he had seen; and 5. that the victim did not have his money on his person when his body was found. The inferences to be derived from those facts are: (1) that Rex was gagged and hogtied by the appellants; (2) that he was killed by the appellants, and, (3) that he was robbed by the appellants. The web of circumstantial evidence in this case constitutes an unbroken chain leading to a reasonable conclusion that the appellants detained the victim while he was on his way to Sangab that fateful afternoon of June 6, 1983. They hogtied and gagged him, led him to the gully, and as the decomposed corpse later revealed, stabbed him to death with multiple knife thrusts. Their individual participation need not be specified for they were all co-conspirators in the commission of the crime, hence, the guilt of one or some was the guilt of all. (People vs. Maralit, 165 SCRA 427; People vs. Newman, 163 SCRA 496; People vs. Salvador, 163 SCRA 574.) The trial court did not err in giving full credit to the testimonies of the prosecution witnesses for they were disinterested witnesses, not related at all to the victim. Their testimonies were spontaneous, unrehearsed and unchallenged even during cross-examination. Their initial reluctance to testify does not affect their credibility (People vs. Aliocod, 167 SCRA 665) for the killers were notorious for their lawlessness and barbarity. The trial court properly rejected the appellants' defense of alibi which is the weakest of all defenses especially in the absence of proof that it would have been physically impossible for them to have been at the scene of the crime (People vs. Masangkay, 157 SCRA 320). Moreover, the testimonies of the defense witnesses are not only replete with material inconsistencies but are also incompatible with one another. The Certification signed by the barangay and purok officials on September 27, 1984, attesting to the presence of the accused in a detachment center in Davao is highly unreliable, as it was not based on personal knowledge of the affiants but on unconfirmed reports or hearsay. Appellants' contention that the trial court erred in convicting Roberto Cultura for he was not one of those indicted in the information but "Jose" Cultura (his father's name), has no merit. The erroneous designation of his name in the information will not vitiate it, as it was clearly proven that the accused, Roberto Cultura, was part of the group that arrested, hogtied and killed the victim. Besides, Cultura did not raise this question of his identity during the arraignment. His acquiescence to be tried under the name "Jose" at that stage of the case is deemed to be a waiver on his part to raise the question of his identity as one of the accused for the first time on appeal (People vs. Maravilla, 165 SCRA 392; People vs. Torres, 165 SCRA 702). All the appellants are guilty beyond reasonable doubt of the crime of murder qualified by treachery and aggravated by the circumstance of taking advantage of their public positions. There was treachery in the commission of the offense for the victim was gagged and his hands were tied before he was slain, thereby rendering him completely helpless. Furthermore, the appellants abused their office as Civil Home Defense members, who are supposed to be peace officers tasked with maintaining law and order and of protecting life and property in their community. They instead turned out to be murderers and brigands. The penalty of murder under the 1987 Constitution is reclusion temporal in its maximum period to reclusion perpetua (People vs. Alpetche, 168 SCRA 670). Appellants cannot avail of the Indeterminate Sentence Law, considering the penalty actually imposed. WHEREFORE, the decision a quo, being in full accord with the evidence and the law, is hereby affirmed in toto. SO ORDERED.

Page

61

RIGHT TO SPEEDY TRIAL (17) DOMINADOR BERMISA, petitioner, vs. THE COURT OF APPEALS; HON. VICENTE SANTIAGO, JR., and ASSISTANT PROVINCIAL FISCAL PROCULO L. VIERNES, respondents. [G.R. No. L-32506 July 30, 1979] MELENCIO-HERRERA., J.: Appeal by certiorari, seeking the reversal of the Decision of respondent Court of Appeals, promulgated on August 17, 1970, denying the Petition for certiorari and Prohibition filed therein by petitioner and ordering the preliminary injunction therefore issued dissolved. Additionally, the Petition assails the Order dated March 3, 1970, denying petitioner's Motion to Quash, issued by respondent Hon. Vicente Santiago, Jr., then Presiding Judge of the Court of First Instance of Pangasinan, Urdaneta Branch. Petitioner prays ultimately that Criminal Case No. U-1425, entitled "People vs. Dominador Bermisa" be dismissed on the ground of infringement of his constitutional right to a speedy trial. A review of the antecedent facts discloses that, on May 8, 1963, petitioner Dominador Bermisa was charged with the crime of Frustrated Murder before the Justice of the Peace (now Municipal Court) of San Manuel, Pangasinan (Criminal Case No. 797). Having waived his right to enter into the second stage of the preliminary investigation, the Municipal Court forwarded the case to the Court of First Instance of Pangasinan, Tayug Branch (Criminal Case No. T-1062). On November 26, 1963, the corresponding Information was filed charging petitioner with the same crime of Frustrated Murder, After protracted proceedings, petitioner was arraigned on December 22, 1964, and he entered a plea of "not guilty." On June 2, 1965, the Prosecuting Fiscal, instead of proceeding with the trial, moved for provisional dismissal on the ground that the witnesses for the prosecution had failed to appear despite notice. Considering that the case had been pending for almost two years, the trial Court in its Order, dated ,June 2, 1965, "dismissed (it) provisionally with the consent of the accused and his counsel, with costs de oficio." On September 10, 1969, after a lapse of 4 years, 3 months and 8 days, respondent Assistant Provincial Fiscal Proculo L. Viernes, filed before the Court of First Instance of Pangasinan, Urdaneta Branch, the second Information for Frustrated Murder (Criminal Case No. U-1425), reproducing exactly the same allegations as in the first Information. On February 18, 1970, before entering his plea to the second Information, petitioner, thru his counsel, moved to quash the same on the ground that he had been denied his constitutional right to a speedy trial, citing the ruling in Conde vs. Rivera, et al., (45 Phil. 650 [1924]) and in Kalaw vs. Apostol, et al., (64 Phil. 852 [1937]) as follows:t.hqw This Court has held that there is a positive remedy in cases ,,where the constitutional right of the accused to have a speedy trial is The accused, who is deprived of his fundamental right to have speedy trial is entitled to ask for his release, if he is restrained of his liberty, or for the final dismissal of the case pending against him. An opposition to the Motion to Quash was filed by respondent Fiscal. On March 3, 1970, the day set for petitioner's arraignment, respondent Judge denied the quashal in open Court and ordered the arraignment of the accused. Over his objection, petitioner entered his plea of not guilty, Trial was set for April 22 to 24, 1970. During the same proceedings, counsel for the petitioner manifested in open Court his intention to file a Motion for Reconsideration, and, in fact, requested for three days within which to file the same "because this case really affects the life and liberty of the accused and the possibility of bringing the case to the Supreme Court is being studied." 1 To this, respondent Judge replied that the Motion for Reconsideration would be denied because it had already taken the arguments of both sides into consideration. From the aforesaid Order of respondent Judge, petitioner, alleging grave abuse of discretion amounting to excess of jurisdiction and that he had no other plain, speedy and adequate remedy in the ordinary course of law, lodged a Petition for certiorari and Prohibition with Preliminary Injunction before the Court of Appeals, docketed therein as CA-G.R. No. 45077-R, entitled "Dominador Bermisa vs. Hon. Vicente M. Santiago, Jr., et al." The same was given due course and a writ of Preliminary Injunction was issued upon the filing of the required bond of P500.00 by the petitioner. On August 17, 1970, respondent Court of Appeals 2 rendered its Decision dismissing the Petition and dissolving the Preliminary Injunction.

Page

62

The aforestated judgment, which is assailed for not being in conformity with law and established precedents, is now the subject of this Petition, After giving due course to the same, on September 11, 1970, this Court issued a temporary Restraining Order enjoining respondent Court from executing its Decision dated August 17, 1970, and restraining respondent Judge and Assistant Provincial Fiscal from proceeding with Criminal Case No. U-1425, entitled "People vs. Dominador Bermisa." Three closely related errors have been assigned by petitioner, namely, that respondent Court erred: t.hqw I IN REFUSING TO GRANT THE PETITION FOR certiorari AND PROHIBITION WITH PRELIMINARY INJUNCTION, CA. G.R. No. 45077, AND TO DISMISS FINALLY CRIMINAL CASE NO. U-1425, ENTITLED PEOPLE VS. DOMINADOR BERMISA, FOR FRUSTRATED MURDER NOTWITHSTANDING THE VALID REASONS STATED THEREFROM, THEREBY SANCTIONING THE UNJUSTIFIED, SCANDALOUS AND LONG DELAY CAUSED BY INEXCUSABLE FAILURE AND NEGLECT OF THE RESPONDENT ASSISTANT PROVINCIAL FISCAL TO REFILE THE ALREADY DISMISSED CRIMINAL CASE NO. T-1062 IN TAYUG BRANCH WITHIN THE PERIOD OF TIME IN COMPLIANCE WITH RULES, REGULATIONS AND DECISIONS OF THIS HONORABLE SUPREME COURT; II IN HOLDING THAT THE DOCTRINES LAID DOWN IN THE CASES OF CONDE VS. RIVERA AND UNSON AND KALAW VS. APOSTOL, ET AL., (Supra) ARE NOT APPLICABLE IN THE CASE AT BAR; III IN NOT DECLARING THE FINAL DISMISSAL OF CRIMINAL CASE NO. U-1425 PEOPLE VS. DOMINADOR BERMISA PENDING IN THE COURT OF FIRST INSTANCE OF PANGASINAN, URDANETA BRANCH. The errors raised may be consolidated into the single question of whether or not under the facts recounted, petitioner's consitutional right to a speedy trial has been violated as to warrant the final dismissal of the criminal charges against Our organic and criminal laws expressly guarantee that in , all criminal prosecutions, the accused shall enjoy the right to have a speedy trial. A speedy trial " is a trial conducted according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious, and oppressive delays. 3 It can be one which may be had as soon after indictment as the prosecution can with reasonable diligence prepare for trial. And such a trial is denied an accused person where through the vacillation and proscrastination of prosecuting officers, the accused is forced to wait many months or years for trial. 4 A review of the facts on record constrains us to rule that the right to a speedy trial is not invocable in this case. The delay in the refiling of the case was not a delay in trial amounting to a violation of a constitutional right, There was no trial to speak of, in the legal sense, as there was no indictment, as yet.t.hqw It has been held that the right to speedy trial cannot be violated by delay between offense and indictment, though it can be violated by an inordinate delay in the refiling the indictment after the arrest has been made. 5 Where a statute requiring indictment or information within a certain period after defendant is held to answer is treated as a legislative definition of the constitutional right, the right arises when defendant is held to answer by a magistrate, and the right has been held not violated by unwarranted delay in bringing him before a magistrate following arrest. 6 The criminal case at bar was provisionally dismissed with the consent of the accused and his counsel on June 2, 1965. Considering its nature, it was entered with a possibility of the filing of a subsequent suit. The case was refiled approximately four years thereafter or on, September 10, 1969, before another Branch of the same Court. That refiling was an act within the prerogative of the prosecution.t.hqw In the absence of any statutory, provision to the contrary, there is no reason why the court may not, in the interest of justice, dismiss a criminal case provisionally, i.e., without prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for the same offense. 7

Page

63

The right of an accused to a speedy trial is guaranteed to him by the Constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. 8 It secures rights to a defendant but it does not preclude the rights of public justice. 9 In fact, the consent of petitioner to the dismissal constituted a waiver of his constitutional right not to be prosecuted for the same offense.t.hqw ... where a defendant expressly consents to or move for the dismissal of the case against him, even if the court or judge states in the order that the dismissal is definite or does not say that the dismissal is without prejudice to the filing of another information, the dismissal will not be a bar to a subsequent prosecution of the defendant for the same offense. 10 The effect of a discharge (of a person committed on a criminal charge in case of a failure to find an indictment or file an information within a certain time) depends upon the particular statute. Under some statutes, the discharge does not prevent another indictment for the same offense, since it is considered that the effect of the discharge is merely to relieve the accused from imprisonment or from being held to bail, and not to acquit him of the crime. ... 11 If petitioner believed that the provisional dismissal deprived him of the right to a speedy trial, then he should have objected to the same instead of having given his consent thereto.t.hqw If the accused should deem such conditional or provisional dismissal to be unjust and prejudicial to him because he has been deprived of his right to a speedy trial, as for instance where the case has dragged on for an unreasonably long time without his fault, he could and should object to such dismissal and insist that the case be heard and decided on the merits. 12 A contrary conclusion would run afoul of the provision on prescription of crimes, which states: t.hqw Art. 90. Prescription of Crimes Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years. 13 The crime of Frustrated Murder, with which petitioner is charged, is punishable by prision-mayor in its maximum period to reclusion temporal in its medium period. Under the rule that when the penalty fixed by law is a compound one, the highest penalty, or reclusion temporal for the computation of the prescriptive period shall be made the basis (Art. 90, last paragraph of the Revised Penal Code), the crime prescrib0es in twenty years. The refiling of the case on September 10, 1969, therefore, was still well within the prescriptive period of twenty years, even considering the interim period of approximately four years when prescription commenced to run again from the date of provisional dismissal up to the refiling of the criminal case. Withal, petitioner's prayer for the final dismissal on the ground that he was denied the right to a speedy trial of the criminal case against him finds no legal sanction nor doctrinal .support. WHEREFORE, the instant Petition is hereby denied for lack of merit. Costs against petitioner. SO ORDERED.

Page

64

(18) EULALIA MARTIN, petitioner, vs. GEN. FABIAN VER, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES and GEN. HAMILTON DIMAYA, JUDGE ADVOCATE GENERAL, respondents. [G.R. No. L-62810 July 25, 1983] PLANA, J.: This is a petition for habeas corpus filed by Eulalia Martin on behalf of her husband, Pvt. Francisco Martin. Pvt. Martin was an enlisted man in the Philippine Army. On or about April 14, 1981, when he was still in the service, he allegedly sold two grenades to one Rogelio Cruz at P50.00 each, one of which exploded during a picnic in Laoag City on April 17, 1981 causing the death of three persons, including Rogelio Cruz, and injuries to three others. According to respondents, Pvt. Martin has admitted to Cpl. Lucio Tuppal, Philippine Army, having sold the grenades to Rogelio Cruz in Laoag City, although this is denied by Pvt. Martin. After an initial investigation conducted by the Laoag City PC and INP authorities, a report was submitted to the Ministry of National Defense which referred the matter to the Chief of Staff, AFP, who in turn directed the Inspector General to conduct another investigation. On May 5, 1981, Pvt. Martin was arrested and confined (restricted to barracks) at Fort Bonifacio pursuant to Article 70 of the Articles of War, infra. The following year, he was discharged from the service effective as of May 5, 1982. On November 17, 1982 the instant petition was filed. The following month, i.e., December 3, 1982, Pvt. Martin was charged for violation of the 85th and 97th Articles of War, which read: ART. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers. Any soldier who sells or wrongfully disposes of or willfully or through neglect injures or losses any horse, arms, ammunition, accouterments, equipment, clothing, or other property issued for use in the military service, shall be punished as a court-martial may direct. ART. 97. General Article.Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline and all conduct of a nature to bring discredit upon the military service shall be taken cognizance of by a general or special or summary court-martial according to the nature and degree of the offense, and punished at the discretion of such court. The charge sheet stipulates the following charges: CHARGE I: Violation of the 85th Article of War. Specification: In that Private Martin assigned with the Headquarters and Headquarters Service Battalion, First Infantry Division, Philippine Army on or about 14 April 1981 at Laoag City wrongly disposed of by sale to Rogelio Cruz two (2) grenades. CHARGE II: Violation of the 97th Article of War. Specification: In that Private Francisco Martin, ... on or about the month of April 1981 at Laoag City, unlawfully and without authority had in his possession two (2) hand grenades thus committing an act prejudicial to good order and military discipline and of a nature that will bring discredit to the military establishment. The petitioner contends that having been discharged from the military service, he is no longer subject to court-martial even if the offenses of which he is charged were committed while he was still subject to military law. He therefore, concludes that his continued detention pursuant to Article 70 of the Articles of War (which authorizes the arrest/confinement of any person subject to military law who is charged with an offense under the Articles of War) is illegal and he, accordingly, should be released. This posture has no merit. Generally, court-martial jurisdiction over persons in the military service of the Philippines ceases upon discharge or other separation from such service. This however, is but a general rule. The Articles of War in terms prescribe some exceptions designed to enhance discipline and good order within the military organization. Thus, court-martial jurisdiction as to certain cases of fraud and

Page

65

misappropriation of military hardware and other government property is not extinguished by discharge or dismissal pursuant to the 95th Article of War. ART. 95. Frauds Against the Government.Any person subject to military law ... Who steals, embezzles, knowingly and willingly misappropriates, applies to his own use or benefit or wrongfully or knowingly sells or disposes of any ordnance, arms, equipment, ammunition, clothing, subsistence, stores, money, or other property of the Government furnished or intended for the military service thereof ... Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court-martial may adjudge, or by any or all of said penalties. And if any person, being guilty of any of the offenses aforesaid while in the service of the Armed Forces of the Philippines or of the Philippine Constabulary receives his discharge or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a courtmartial in the same manner and to the same extent as if he had not received such discharge nor been dismissed. (Emphasis supplied.) It was on the basis of the foregoing legal provision, among others, that this Court sustained the court-martial of the petitioner in De la Cruz vs. Alcaraz, et al. after his reversion to inactive status, for misappropriation of public funds committed while he was still in the active military service. The Court, thru Mr. Justice J. B. L. Reyes, said: There is no question that although appellant had been reverted to inactive (civilian) status in the reserve force of the Philippine Army, he is still amenable to investigation and court-martial under the Artitles of War by the Philippine Navy for alleged acts of misappropriation of government funds committed while he was still in the active military service. As correctly held by the Court below, appellant's case falls within the provisions of Article 95 of the Articles of War (Commonwealth Act No. 408, as amended), which provides as follows: ... The lower Court did not, therefore, err in refusing to enjoin appellant's investigation by the naval authorities on charges that he had misappropriated public property while he was still in the service of the Philippine Navy, specially since petitioner admits that he is still a member of the Reserve Force." (99 Phil. 130 at 131-132.). We conclude that despite his discharge from the military service, the petitioner is still subject to military law for the purpose of prosecuting him for illegal disposal of military property, and his preventive detention thereunder pending trial and punishment for the said offense committed when he was in the military service is lawful. Alternatively, petitioner maintains that even assuming that the jurisdiction of the military authorities to try and punish him was not abated by his discharge from military service, the denial to him of his constitutional right to speedy trial (he having been confined from the date of his arrest on May 5, 1981 up to December 3, 1982 when he was formally charged a period of I year and 7 months) entitles him to be released on habeas corpus. The fundamental rights guaranteed in the Constitution apply to all persons, including those subject to military law, (Aquino vs. Military Commission No. 2, 63 SCRA 546; Cayaga vs. Tangonan, 66 SCRA 216; Go vs. Olivas, 74 SCRA 230; Romero vs. Ponce Enrile, 75 SCRA 429.) To quote Ex Parte Milligan, 4 Wall. 2: The Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances. It would indeed be parodoxical if military men who are called upon in times of the gravest national crises to lay down their lives in defense of peace and freedom would be the very people to be singled out for denial of the fundamental rights for which they risk their lives. For denial of a constitutional right to the accused, the hearing tribunal may lose its jurisdiction to conduct further proceedings. In such a case, habeas corpus would lie to obtain the release of the accused. (Gumabon vs. Director, 37 SCRA 420; Acevedo vs. Sarmiento, 36 SCRA 247; Aquino vs. Ponce Enrile, 59 SCRA 183; Flores vs. People, 61 SCRA 331; Dacuyan vs. Ramos, 85 SCRA 487, Ventura vs. People, 86 SCRA 188; Romero vs. Ponce Enrile, 75 SCRA 429; Aquino vs. Ponce Enrile, supra; Go vs. Olivas, supra.) In the case at bar, the petitioner claims that he has been denied his constitutional right of speedy trial because the charges against him were filed only about 1 year and 7 months after his arrest.

Page

66

There was no such denial. As stated by this Court in a per curiam decision: "x... the test of violation of the right to speedy trial has always been to begin counting the delay from the time the information is filed, not before the filing. The delay in the filing of the information, which in the instant case has not been without reasonable cause, is therefore not to be reckoned with in determining whether there has been a denial of the right to speedy trial." (People vs. Orsal, 113 SCRA 226 at 236.) At any rate, whether or not one has been denied speedy trial is not susceptible to precise quantification. At best, the constitutional right of speedy trial is relative, consistent with reasonable delays, taking into account the circumstances of each case. As expressed in Barker vs. Wingo, 33 L. Ed 2d 101: ... the right to a speedy trial is a more vague and generically different concept than other constitutional rights guaranteed to accused persons and cannot be quantified into a specified number of days or months, and it is impossible to pinpoint a precise time in the judicial process when the right must be asserted or considered waived ... ... a claim that a defendant has been denied his right to a speedy trial is subject to a balancing test, in which the conduct of both the prosecution and the defendant are weighed, and courts should consider such factors as length of the delay, reason for the delay, the defendant's assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, in determining whether defendant's right to a speedy trial has been denied ... Returning to the case at hand, the criminal act imputed to the petitioner unfortunately resulted in the death of three persons (including Rogelio Cruz who allegedly bought the handgrenades from the petitioner) and very serious injuries to three others whose testimony is vital to the preferment of charges and prosecution of the petitioner. It is therefore not unreasonable to heed the claim of respondents that the delay complained of was occasioned by the unavailability of witnesses, a claim which has not at all been challenged or denied by the petitioner. WHEREFORE, the petition for habeas corpus is dismissed, without prejudice to the petitioner seeking his provisional release on bail from the military authorities or the Ministry of National Defense. No costs. SO ORDERED.

Page

67

(19) ALFREDO VENTURA y YLARDE, petitioner, vs.THE PEOPLE OF THE PHILIPPINES and DIRECTOR VICENTE RAVAL, Bureau of Prisons. Muntinlupa, Rizal, respondents. [G.R. No. L-46576 November 6, 1978] FERNANDO, J.: The crucial question in this application for a writ of habeas corpus filed by Alfredo Ventura y Ylarde arose from his continued confinement dating from May 27, 1968 after the filing of an information against him for double homicide with physical injuries with the Court of First Instance of Pangasinan. 1 Though admittedly he was subsequently convicted in a decision rendered on April 2, 1970, an appeal was duly perfected to the Court of Appeals. 2 The grievance set forth in his petition is that the pendency of such appeal all these years amounts to a denial of his constitutional right to the speedy disposition of the case against him, as his appeal could not be decided because the whereabouts of the stenographer, Mr. Jaime T. Cortez, who took down the stenographic notes of the proceedings, could not, until now, be located. 3 Further on this point, he alleged that a resolution of the Court of Appeals ordering the retaking of the testimonies of the witnesses, who had previously testified, with such stenographer Cortez taking down the notes, and directing the Judge of the Circuit Criminal Court of Pangasinan to give a new stenographer thirty (30) days within which to submit the transcript of stenographic notes after such retaking, had not reached the stage of compliance. 4 It is petitioner's submission: "The continuous detention of the herein petitioner notwithstanding the fact that he has perfected his appeal since April 12, 1970 is in wanton violation of his constitutional right as provided for under the Old and New Constitution, Sec. 16, Art. IV of the New Constitution, [being] reproduced hereunder for convenience and ready reference: 'All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies." 5 His plea is that his release from detention be ordered by the issuance of a writ of habeas corpus. 6 The application was filed on July 28, 1977. On August 3, 1977, there was a resolution from this Court reading as follows: "The Court [issued] the writ of habeas corpus returnable to this Court and required the respondents to make a [return] of the writ, not later than Tuesday, August 9, 1977. The hearing of this case is hereby [set] for Wednesday, August 10, 1977 at 10:30 a.m." 7 In view of an urgent motion for two days' extension of time to file a return, it was not until August 11 that it was submitted. The then Acting Solicitor General Vicente Mendoza 8 narrated the steps taken by the Court of Appeals from September 1, 1971 up to July 28, 1977 when counsel for petitioner filed a motion to hold in abeyance the retaking of proceedings by such tribunal until this petition was resolved and alleged as a special defense that there was no denial of the constitutional right to a speedy trial. He referred to the test set forth in Acevedo v. Sarmiento,9 stating that such a right "means one free from vexatious, capricious, and oppressive delays. " It was not until the following Friday, August 12, 1977, that the hearing took place. On the same day, this resolution was issued by this Court: "When this case was called for hearing this morning, Attys. Herenio Martinez and Angela Valenzuela appeared and argued for the petitioner while Solicitor Celso P. Ylagan appeared and argued for the respondents. Thereafter the Court Resolved to require the petitioner to file an amended petition within ten (10) days from today." 10 An amended petition was duly filed on September 27, 1977. It did not by any means lend added strength to the petition with the commendable admission that in at least four orders, dating from June 28, 1974 to March 18, 1976, the Court of Appeals had taken the necessary steps, including an order for the arrest of the missing stenographer. 11There was an insistence on the plea, however, that the circumstances disclosed the denial of the right to the speedy disposition of his case. 12 It was not unexpected, therefore, that in the return of respondents, filed on November 9, 1977, it was stressed that the alleged denial of petitioner's right to the speedy disposition of his case was devoid of "basis in law or in fact, ... ." 13 After noting that respondents could in no way be held liable "for the failure of stenographer Cortez to submit" his transcription, 14 it stated: "Neither has the Court of Appeals been remiss in its duty to speedily dispose of the appeal; on the contrary, as adverted to in paragraph 6 of the petition, it issued a series of orders and resolutions for the purpose of completing the stenographic notes, and thus, promptly disposing of the case, " citing fourteen resolutions of the Court of Appeals from September 1, 1971 to July 28, 1977 to expedite the disposition of the appeal and the order of arrest of such stenographer as well as his transfer to the PC Stockade at Camp Crame. 15 The special defense that he was confined by virtue of a valid order or judgment was reiterated as he had been admittedly convicted of double homicide with serious physical injuries. 16 It was likewise set forth that he could have obtained his provisional liberty by posting the required bail fixed by the Court of Appeals. 17 The weakness of the petition is thus apparent. His release cannot be ordered. 1. For all its broad, latitudinarian even, scope, the range of inquiry in a habeas corpus application is considerably narrowed, where the detention complained of may be traced to judicial action. For if "the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ does not lie." 18 There is, though, this exception. As set forth in Gumabon v. Director of Prisons: "Once a deprivation of a constitutional right is shown to exist, the court that rendered the

Page

68

judgment is deemed ousted of jurisdiction and habeas corpus is -the appropriate remedy to assail the legality of the detention." 19 That doctrine goes back to Conde v. Rivera, 20 decided in 1924, a case involving the right to speedy trial the denial of which, according to Justice Malcolm, would entitle a person "restrained of his liberty [to sue out] a writ of 'habeas corpus to obtain his freedom." 21 The latest case in point is Flores v. People. 22 2. There is plausiblity in the view submitted by the Office of the Solicitor General that the constitutional right to the speedy disposition of one's case, 23 a new provision in the Constitution, can be viewed in the same light as the traditional right to a speedy trial. In the pleadings filed by it, reference was made to the standard set forth in Acevedo v. Sarmiento 24as to its signifying "one free from vexatious, capricious, and oppressive delays." 25 The Acevedo opinion traced its origin to the same case of Conde v. Rivera, where Justice Malcolm announced categorically that the trial, to comply with what was ordained by the then organic law, the Philippine Autonomy Act, must be "free from vexatious, capricious, and oppressive delays." 26 Even a cursory reading of the steps taken by the Court of Appeals to assure that petitioner's appeal could be resolved in accordance with the evidence submitted before the lower court would indicate that all the necessary steps had been taken to assure that a definitive judgment could be reached. Admittedly, there is delay, but it is not that kind of a delay that could be considered either capricious or oppressive. Again, there is an element of vexation that must be suffered by petitioner, but certainly it does not amount to that degree of annoyance, provocation, or distress that would justify a nullification of the appropriate and regular steps that must be taken to assure that while the innocent should go unpunished, those found guilty must expiate for their offenses. Clearly then, there is no justification for the granting of petitioner's plea for liberty. 3. In the course of the hearing of this application, reference was made to the aforecited case of Flores v. Peoplewhere this Court granted a petition for certiorari filed by Francisco Flores and nullified an order of the Court of Appeals 27 denying a motion to dismiss on the ground that there was a failure to comply with the constitutional mandate of a speedy trial. It is not applicable. It could be distinguished. In that case, petitioner Flores was accused of robbery on December 31, 1951 and was found guilty on November 25, 1955. An appeal was taken in December of that year. There was at first a resolution on February 10, 1958 by the Court of Appeals, remanding the records of the case to the lower court for the rehearing of the testimony of a certain witness deemed material for the disposition of the appeal. Thereafter, on August 5, 1959, another resolution was issued by the Court of Appeals granting petitioner's motion to set aside the decision. The case was therefore returned to the lower court. There the matter appeared to have rested. No further progress in the proceeding was discernible. Accordingly, on May 10, 1965, there was a motion in the Court of Appeals for the dismissal of the case. It was based on the denial of the constitutional right to a speedy trial. When the Court of Appeals failed to grant such motion to dismiss, the matter was taken to this Tribunal. Our decision granting the petition for certiorari is based on the following consideration: "Petitioners can thus invoke the constitutional guarantee that the trial should be speedy. In the absence of any valid decision, the stage of trial has not been completed. In this case then, as of May 10, 1965, when they moved to dismiss in the Court of Appeals, petitioners could validly contend that they had not been accorded their right to be tried as promptly as circumstances permit. It was not the pendency in the Court of Appeals of their cases that should be deemed material. It is at times unavoidable that appellate tribunals cannot, even with due diligence, put an end to suits elevated to them. What is decisive is that with the setting aside of the previous decision in the resolution of August 5, 1959, petitioners could validly premise their plea for dismissal on this constitutional safeguard. That is the sole basis for the conclusion reached by us-considering the controlling doctrine announced with such emphasis by this Court time and time again." 28There is a decisive difference therefore. In Flores, to all intents and purposes, after the resolution of the Court of Appeals setting aside the decision, no trial was held. The information, it must be remembered, was filed as far back as December 31, 1951. When the dismissal of the case was sought in a motion of May 10, 1965, a period of fourteen years had elapsed. In this application for the writ of habeas corpus, it is the pendency of appeal from a decision, which on its face carries a presumption of validity, after a trial duly held, that is made the basis for petitioner's plea for liberty. There is thus a crucial difference. It is our ruling that at this stage, considering further all the circumstances previously set forth, there is in law no transgression of the asserted constitutional right to the speedy disposition of a criminal case. 4. At any rate, the return of the Office of the Solicitor General to the amended petition pointed out that while such appeal is pending, petitioner could secure his liberty by posting the required bail. If petitioner is of the view that the amount fixed should be reduced, there is no obstacle to his presenting a motion to that effect to the Court of Appeals which could act on the matter. WHEREFORE, this petition for habeas corpus is dismissed.

Page

69

RIGHT TO AN IMPARTIAL TRIAL (20) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUDY REGALA and DELFIN FLORES, defendants, RUDY REGALA, defendant-appellant. [G.R. No. L-23693 April 27, 1982] MAKASIAR, J.: Defendants Rudy Regala and Delfin Flores were charged with the crime of murder with assault upon an agent of a person in authority in an information filed on June 27, 1964 by the provincial fiscal of Masbate with the Court of First Instance of Masbate which reads: That on or about the 13th day of June, 1964, at the Magallanes Gate in the poblacion of the Municipality of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together and helping each other, with deliberate intent to kill, with evident premeditation and treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack and stab with. a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his official duty, thereby inflicting upon the latter serious stab wounds at the mid-epigastric region penetrating abdominal cavity and perforating cordial and cardiac regions which injury directly caused his instantaneous death. to which defendants pleaded not guilty. To establish its case against defendants, the prosecution initially presented five witnesses, namely, Erlinda Tidon, Juanito Evangelista, Modesto Taleon, Dr. Orlando delos Santos and Municipal Judge Jose M. Angustia. Erlinda Tidon and Juanito Evangelista both testified that they were at the scene of the crime and saw the accused Rudy Regala stab the victim, Sgt. Juan Desilos Jr. In other words, they claimed to be eyewitnesses to the crime. Erlinda Tidon who at the time she testified on August 7, 1964 was 22 years old, single, housekeeper and a resident of barrio Luy-a, municipality of Aroroy province of Masbate, declared that she knew the victim, Juan Desilos Jr., who was a sergeant of the Philippine Constabulary; that in the evening of June 12, 1964, she was at the Magallanes Gate, Masbate, Masbate, because she wanted to get inside to dance; that at the Magallanes Gate which was well lighted, she saw Sgt. Juan Desilos Jr. in uniform attending to the exit door; that while Sgt. Juan Desilos Jr. was guarding the Magallanes Gate and trying to clear the exit gate of people, accused Rudy Regala, with co-accused Delfin Flores who had his arm on the shoulder of the former (Rudy Regala), arrived; that thereafter, she tried her best to get inside the Magallanes Gate and Delfin Flores and Rudy Regala "were there at the Magallanes Gate in my front. I was at their back" ; that when accused Rudy Regala and Delfin Flores reached the exit gate where Sgt. Juan Desilos Jr. was stationed, Sgt. Juan Desilos Jr. pushed accused Rudy Regala and told him "not to get thru this entrance because this is for the exit" (p. 9, t.s.n., Vol. III, rec.); that the person pushed by Sgt. Desilos was accused Delfin Flores (id, at p. 10); that while Sgt. Juan Desilos Jr. was pushing accused Delfin Flores, accused Rudy Regala became angry, got his knife from his waist and stabbed Sgt. Juan Desilos Jr.; that Exhibit "A", which is a long knife with a white sharp blade, was the same knife used by accused Rudy Regala in stabbing Sgt. Juan Desilos Jr.; that accused Delfin Flores was at the back of accused Rudy Regala when the latter stabbed Sgt. Juan Desilos Jr.; that accused Delfin Flores was one-half meter, more or less, from Sgt. Juan Desilos but accused Rudy Regala was nearer to Sgt. Juan Desilos Jr.; that Sgt. Juan Desilos Jr. was hit in the abdomen and he fell down and then accused Rudy Regala and Delfin Flores ran away, with the latter following the former; that she was one-half meter, more or less, from Sgt. Juan Desilos Jr., accused Rudy Regala and Delfin Flores; that Sgt. Juan Desilos Jr. was stabbed on June 12, 1964 at twelve o'clock midnight, more or less, at the Magallanes Gate, municipality of Masbate, province of Masbate; that Exhibit "B" is the uniform of Sgt. Juan Desilos at the time he was stabbed by accused Rudy Regala; that she was investigated in connection with the stabbing incident by Sgt. Balase; and that she knew Sgt. Taleon who also investigated her in connection with the case (pp. 3-16, t.s.n., Vol. III, rec.). On cross-examination, witness revealed that in Masbate, Masbate, she has been staying at the house of Sgt. Dominador Balase since Tuesday, August 5, 1964, because he wanted her to stay thereat; that she attended the town fiesta of Masbate, Masbate, on June 12, 1964 to dance and enjoy the evening; that her religion is Roman Catholic and as such she follows its precepts; that she was on that occasion with her sister Nenita Tidon who is also single; that she and her sister did not have any escorts; that she arrived at the Magallanes Gate on June 12, 1964 and she was not able to enter the plaza immediately because it was then too crowded as there were many people inside the plaza, at the gate, as well as outside the gate of Quezon Street; that she intended to get inside the plaza through the exit gate because the entrance gate was already closed; that she saw Sgt. Juan Desilos Jr. guarding the exit gate which was so marked as "EXIT" where people were then milling around; that the exit gate was lighted with three (3) electric bulbs placed thereat separately; that before this case was filed she knew accused Rudy Regala only by appearance and she came to know his name only after he was already accused of the crime in this case; that during the investigation, she did not know the name of accused Rudy

Page

70

Regala but knew his appearance; that she executed on June 15, 1964 an affidavit marked as Exhibit "l" for the defense, wherein she declared that she knew Rudy Regala only by face: that she told the PC investigator all the truth she knew about the case, but was not able to name the accused as that was the truth; that she came to know the name of Rudy Regala only when an information or a complaint was filed on June 15, 1961 against him by the PC authorities with the Justice of the Peace Court of Masbate, Masbate; that on the 12th, 13th and 14th of June, 1964, she did not yet know the name of the accused Rudy Regala: that she has known Sgt. Juan Desilos Jr. even before June 12, 1964 or since 1963; that she saw accused Rudy Regala on June 12, 1964 approach the exit of Magallanes Gate which Sgt. Juan Desilos Jr. was regulating the flow of traffic; that she saw at the instance Rudy Regala placing his hand on the shoulder of accused Delfin Flores, but she cannot remember which hand: that in the evening of June 12, 1964, she did not also know the name of accused Delfin Flores although she knew him by his appearance, because she had not seen accused Delfin Flores and accused Rudy Regala before; that she came to know his name only on June 15, 1964 when he was already accused of the crime in this case; that the name of Delfin Flores was told to her by PC Sgts. Balase and Taleon who investigated her; that Sgt. Balase and Sgt. Taleon showed her the appearance of accused Rudy Regala; that at the Magallanes Gate, one could not move very fast because of the heavy traffic; that even if she had wanted to run because of fright, she could not because of the heavy traffic; that the distance between the exit gate and Quezon road is about two (2) meters; that there is a concrete road embankment between the exit gate and Quezon road; that the space between the exit gate and Quezon road was full of people; that she did not see any policeman outside the Magallanes Gate; that at the time Sgt. Juan Desilos Jr. was stabbed by the accused Rudy Regala, she was facing Sgt. Desilos Jr. and the distance between them was 1/2 meter (demonstration made by witness in open court showed that she was oblique to, not directly facing, Sgt. Juan Desilos Jr. that in that position Rudy Regala appeared from the right side going towards Sgt. Juan Desilos Jr. (witness pointing to her right side which was directly in front of Sgt. Juan Desilos Jr. and approximately the same distance (see p. 49, t.s.n., Vol. III); that when accused Rudy Regala was in that position which was in line with her, they were pushed by Sgt. Juan Desilos Jr. who told them "Don't get inside this gate because this is for exit"; that it was accused Delfin Flores who was pushed by Sgt. Juan Desilos Jr., who was then at the side of Rudy Regala, but she does not know whether accused Delfin Flores was at the right side or at the left side of accused Rudy Regala; that accused Delfin Flores was next to accused Rudy Regala and they were in the same line with her; and it was in that position that Sgt. Juan Desilos Jr. pushed accused Delfin Flores; that both accused Delfin Flores and Rudy Regala were pushed by Sgt. Juan Desilos Jr. but it was accused Delfin Flores who was directly hit by Sgt. Juan Desilos Jr.; that because of the pushing, accused Rudy Regala got angry and still at the same distance, he drew his knife from the left side of his waist which was covered by his shirt and then stabbed with it Sgt. Juan Desilos Jr. in the stomach; that at the time accused Rudy Regala stabbed Sgt. Juan Desilos Jr., she was still at the same distance from him as before; that accused Rudy Regala was able to pull off the knife from the body of Sgt. Juan Desilos Jr., but she was not able to see whether blood immediately spurted from the wound because she had already left; that accused Rudy Regala was then wearing a close-necked buttonless blue shirt with short sleeves; that all that accused Delfin Flores did during the incident was to walk, together with accused Rudy Regala who placed his arm on accused Delfin Flores' shoulder, towards Sgt. Juan Desilos Jr. that no other act or acts were made by accused Delfin Flores; that when she saw the horrible incident she went towards the road, walking naturally and slowly because there were plenty of people; that there was no other unusual occurrence that took place within the immediate vicinity of the place where Sgt. Juan Desilos Jr. was stabbed; that she came to Masbate to testify of her own volition; and that she was served with a subpoena by a policeman of Aroroy Masbate, in connection with this case (pp. 17-57, t.s.n., Vol. III, rec.). Witness Juanito Evangelists, then 26 years old, married, driver by profession and a resident of Bagumbayan, Masbate, declared that in the evening of June 12, 1964, he went to the plaza at the Magallanes Gate and there met Sgt. Juan Desilos Jr. who was in PC uniform; that Sgt. Juan Desilos Jr. was stabbed in the abdomen by accused Rudy Regala with a sharp pointed knife; that Exhibit "A" is the knife used by accused Rudy Regala in stabbing Sgt. Juan Desilos Jr. at the exit of Magallanes Gate on the night of June 12, 1964; that Exhibit " B " is the uniform of Sgt. Juan Desilos Jr. at the time he was stabbed; that he knows accused Delfin Flores who was then by the side of accused Rudy Regala when he stabbed Sgt. Juan Desilos Jr.; that before accused Rudy Regala stabbed Sgt. Juan Desilos Jr., he (Regala) first pushed aside accused Delfin Flores; that Sgt. Juan Desilos Jr. fell on the ground; that he was very near Sgt. Desilos when he was stabbed by accused Rudy Regala; that the place of the incident was well-lighted as there was a dance going on; that after Sgt. Juan Desilos Jr. fell, accused Rudy Regala and Delfin Flores ran outside; that he ran after them to know who they were but was not able to catch up with them because they ran fast; that he saw accused Rudy Regala throw away the knife (Exh. "A") on the road; that he did not pick up the knife; that he did not know the names of the accused but knew their appearances; that he had seen the face of accused Delfin Flores before the incident; that he now knows the name of accused Delfin Flores; and that he did not know the reason why Sgt. Juan Desilos Jr. was stabbed by accused Rudy Regala (pp. 70-82, t.s.n., Vol. III, rec.). Upon cross examination, witness Evangelista stated that it was at around seven o'clock in the evening of June 12, 1964 when he went to the Magallanes Plaza at Masbate, Masbate; that the stabbing incident took place at around 1 o'clock in the morning (obviously referring to June 13, 1964); that he was at the gate when the incident took place and there were many people; that Sgt. Juan Desilos was guarding the Magallanes Gate because people were rushing towards it. When asked whether he also then wanted to enter the gate, he answered that he was there inside, about a distance of one meter from the gate, and when asked once more, he affirmed his answer (pp. 82-87, t.s.n., Vol. III, rec.). Witness Dr. Orlando delos Santos, then 35 years old, married and a resident physician of Masbate Provincial Hospital at Masbate, Masbate, told the court that on or about midnight of June 12, 1964, he was on duty in the hospital when the dead body of Sgt. Juan

Page

71

Desilos Jr. of the Philippine Constabulary was brought in. According to him the probable cause of death was cardiac hemorrhage; and that the stab wound at the mid-epigastric region, penetrating the abdominal cavity and perforating the cardiac region was caused by a sharp blunt instrument and that the injury directly caused the death of Sgt. Juan Desilos Jr. He opined that the knife Exhibit "A" could have caused the wound on the body of Sgt. Juan Desilos Jr. and he Identified Exhibit "B" as the uniform of Sgt. Juan Desilos Jr. and Exhibit "B-1" as the cut on the front right side of said uniform. He further Identified Exhibit "C", the death certificate he issued, and Exhibit "C-1", his signature thereon (pp. 58-65, t.s.n., Vol. III, rec.). When cross-examined, witness admitted that it was his first time to see the knife Exhibit "A" and that he did not examine the same as it was not brought to the hospital for chemical examination. He opined that Exhibit "A" is stained with blood but he cannot distinguish whether it is human blood or animal blood (pp. 65-67, t.s.n., Vol. III, rec.). Questioned by the Court, he ventured the opinion that the stain in the uniform of Sgt. Juan Desilos Jr. could be the blood that came from the wound inflicted on him. He further declared that he probed the wound of Sgt. Juan Desilos Jr. with an instrument to find out the extent of the entrance and penetration of the wound and found that the wound was midway umbilicus, the point of entrance of the stab wound was one-half inch to the right, which is at the epigastric region; and that the wound was directed a little upward and in a lateral way, about 7 to 8 inches deep. He was certain that the cause of death was the stab wound which was caused by a sharp pointed instrument (pp. 67-69, t.s.n., Vol. III, rec.). Technical Sergeant Modesto Taleon, assigned as investigator and platoon sergeant of the 60th PC Company, Masbate, Masbate, testified that he has been connected with the Philippine Constabulary since May 27, 1941; that he knew Sgt. Juan Desilos Jr. who was one of their platoon sergeants and who relieved him as security on June 12, 1964 at the Magallanes Gate, where there was then a coronation dance. Their designation as security in charge was in writing; marked as Exhibit "D", signed by their Commanding Officer, Capt. Eugenio. In said Exhibit "D", the name of Sgt. Juan Desilos Jr. appears, with seven enlisted men, whose time of duty started as therein specified at 1900 hours. On the night of June 12, 1964, he was at the Magallanes Gate and Sgt. Juan Desilos Jr., who was in uniform and with a sidearm, was also there as he was performing security duties at the coronation dance and maintaining peace and order thereat. When he (witness) was near the stage and while looking at the crooner he saw Chief Salvacion take the microphone from the singer and call for a doctor as the soldier assigned at the Magallanes Gate had been stabbed. When he heard the announcement, he immediately rushed to the scene of the crime and found that there were already many men in uniform at the scene, and Sgt. Juan Desilos Jr. was no longer there as he had already been brought to the Masbate Provincial Hospital. So he, together with his commanding officer, investigated the incident and they were able to recover the fatal weapon which was then dripping with blood; he Identified said weapon in open court, which was marked as Exhibit "A" and the blood stains thereon as Exhibit "A-1 ". He found the knife, Exhibit "A ", on the road facing the Magallanes Gate around five meters away from the scene of the crime, wrapped it and presented it to the commanding officer for safekeeping. Then they proceeded to the Masbate Provincial Hospital where they saw Sgt. Juan Desilos Jr. in the operating room already dead; Sgt. Desilos uniform which was already removed, was stained with blood with a cut at the last button of the uniform (Exh. "B-1 ") which appeared to have been pierced by a blunt instrument and coincided with the wound of the deceased, Sgt. Juan Desilos Jr. The uniform, including the pants, Exhibit "B", was full of blood. He Identified the patch on the uniform as that of the P.C. (Exh. "B-2" and the chevron of a staff sergeant (pp. 87105, t.s.n., Vol. III, rec.). The cross-examination elicited from witness the fact that he studied criminal investigation and he specialized on the subject as he was sent in 1958 by the Government to Camp Crame to take up criminal investigation and he likewise trained in 1963 in a seminar held in Cebu. He applied what he had learned in his investigations at Masbate, including the investigation of this stabbing incident. He affirmed that he, together with two companions, recovered the fatal knife. Exhibit "A", on the road five meters away from the scene of the crime but outside of the area cordoned off by the PC and admitted that he did not actually measure the distance but merely calculated it; although he advanced the opinion that where an incident took place in a crowded place, a trained investigator gets the actual distance. According to him, the place of the incident was cordoned off or surrounded by soldiers who did not tamper with anything thereat. As other people and peace officers arrived ahead of him at the scene of the incident, he did not know the investigating officer who arrived first. When they found the knife, he just grabbed it and presented it to his commanding officer, because he already knew that it was the fatal knife as it was then dripping with blood and lying flat on the ground. But when he picked it up, it was no longer dripping with blood but it was wet with blood. The route where the blood came from and where the knife was found was marked with blood stains. He admitted that per investigation procedure, important evidence like Exhibit "A" should not be touched with the (bare) hands; but he explained and demonstrated that he handed Exhibit "A" with care, with his thumb in the inner blade, and his two fingers on the outer blade, near the foot of the wooden handle, without touching its blade. He revealed that after the said Exhibit "A" was presented to his commanding officer nothing more was done. Exhibit "A" was not sent to the PC laboratory to test its blood stains; neither was the same examined for fingerprints. In fact, the suspects were never fingerprinted. He just concluded that Exhibit "A" was the fatal weapon (pp. 106-118, t.s.n., Vol. III, rec.). Judge Jose M. Angustia then 63 years old, married, municipal judge of Masbate, Masbate, resident of Masbate, Masbate, declared that he knew Rodolfo Regala, alias Rudy Regala, as he was brought several times before his court as accused in cases involving peace and order. Lately, he convicted him of the crime of malicious mischief. He could not recall having convicted him of the crime of physical injuries; but he Identified Exhibit "E" as the original duplicate copy of a decision in criminal case No. 2794 of the Municipal Court of

Page

72

Masbate, convicting accused Rodolfo Regala of the crime of slight physical injuries and Exhibit "E-1" as his signature affixed thereon (pp. 123-127, t.s.n. Vol. III, rec.). Immediately after aforesaid witness had testified, counsel for accused moved to strike out the testimony on the ground that the same is impertinent and immaterial but said motion was denied as without merit by the court (pp. 128-131, t.s.n., Vol. III, rec.). Thereafter, counsel for accused asked the court for the recall of prosecution witness Juanito Evangelista for further cross-examination on the ground that there were vital matters overlooked by said defense counsel who earlier, in obedience to the order of the court, had to enter trial without having first consulted the accused. The prosecuting fiscal objected on the ground that prosecution witness Juanito Evangelista who had earlier informed him of his fears of reprisal, was not in the courtroom. Defense counsel, in insisting on the recall of said witness, informed the court that it has come to his knowledge that "... the first suspect of the PC was Evangelists. His clothes were found with blood stains as well as his hands ..." Nevertheless, the court denied the motion to recall but advised defense counsel to establish that fact as a defense of the accused (pp. 131-135, t.s.n., Vol. III, rec.). After the evidence for the prosecution was admitted by the court, defense counsel moved, by way of demurrer, for the dismissal of the case on the grounds that the prosecution miserably failed to establish the guilt of accused Delfin Flores and second, that there was variance between the date of the commission of the crime as alleged in the information and that proved by the evidence (pp. 138-151, t.s.n., Vol. III, rec.). The prosecuting fiscal interposed his objection on the main ground that the alleged variance was not substantial as the events leading to the stabbing incident began in the late hour of June 12, 1964 culminating at around midnight or immediately thereafter. Hence, the information alleged the time of the crime as "... on or about the 13th of June, 1964 ..." (pp. 151-162, t.s.n., Vol. III, rec.). Defense counsel prayed for time to file his memorandum in support of his motion to dismiss and he was granted by the court up to August 21, 1964 to file the same and the provincial fiscal was required to reply thereto up to August 29, 1964 (p. 166, t.s.n., Vol. III, rec.). On August 14, 1964, defense counsel filed his memorandum in support of his motion to dismiss and prayed for the dismissal of the case against both accused (pp. 34-44, Vol. II, rec.), and thereafter or on August 25, 1964, he filed a supplementary Page memorandum (pp. 45-54, Vol. II, rec.). On August 25, 1964, without waiting for the reply memorandum of the prosecuting fiscal, winch was filed only on September 7, 1964 (pp. 59-60, Vol. II, rec.), the trial court denied the motion to dismiss (pp. 55-58, Vol. II, rec.). Consequently, the case was set for the reception of the evidence of the defense. Eight witnesses were presented by the defense, including accused Rudy Regala and Delfin Flores. Three of these witnesses Alberto Abayon, Eladio Mendoza and Noemi Almirol claimed to have been at the scene of the crime and seen the stabbing of Sgt. Juan Desilos Jr.. Alberto Abayon, then 19 years old, single, and a student of Osmea College, Masbate, testified that on June 12, 1964, he was at the Magallanes Gate, arriving thereat at about 9:30 o'clock in the evening, together with Shirley Letada Rogelio Ora-a and Violets Sorsogon. They could not immediately enter the auditorium because of so many people crowding the place. They were able to enter at about 10:00 o'clock in the evening. He was not aware whether there were movie actresses inside. He stayed in the plaza for a long time and went home at around 12:30 in the morning (June 13, 1964), with Noemi Almirol. Upon reaching Magallanes Gate on his way home, he saw a person whom he did not know, stab Sgt. Juan Desilos Jr.. He was then behind Sgt. Desilos Jr. and around one meter away from him. He saw blood dripping from Sgt. Juan Desilos Jr.'s abdomen. His companion, Noemi Almirol who was then at his left side, fainted upon seeing the blood flowing from Sgt. Juan Desilos Jr.. Then he heard Sgt. Desilos say "Noy please accompany me but he does not know the person requested by Sgt. Desilos Jr.. Witness described the man who stabbed Sgt. Juan Desilos Jr. as tall, with long hair, quite black in complexion and wearing a short-sleeved polo shirt with red stripes (pp. 168-170, t.s.n., Vol. III, rec.). He saw Rudy Regala at around 12:20 in the morning (June 13, 1964) drinking beer with companions inside the canteen at the Magallanes Gate, a place beside the Liceo School. He does not know the companions of Rudy Regala. Said accused was at that time wearing a white polo shirt. Shortly thereafter, he (witness) left for home at which time Rudy Regala was standing inside the canteen (p. 171, t.s.n., Vol. III. rec.).

Page

73

After Noemi Almirol had recovered, he brought her home alone and as they passed by the gate, Sgt. Juan Desilos Jr. was no longer there (p. 172, t.s.n., Vol. III, rec.).

Claiming that he is familiar with Magallanes Gate, witness affirmed that it is enclosed with concrete walls on its sides except at its back which is enclosed with wire. Its side facing Quezon street is walled with hollow blocks. According to him, if one were inside the Plaza Magallanes and looked towards Quezon street, he would not be able to see the persons outside who are facing the wall; and if one were outside at Quezon street and looked towards the plaza, he would not be able to see the people inside (pp. 171-172, t.s.n., Vol. III, rec.). On cross-examination, witness disclosed that he went to the plaza that evening of June 12, 1964 to dance; that before he entered Osmea College, he studied in Masbate High School but Rudy Regala was not one of his classmates there; that he did not report what he saw to and he was not interviewed by, the police, but the following morning, he was interviewed by a PC man whom he did not know and they had an exchange of opinions and he was asked by the PC man whether he knew the man who stabbed Sgt. Desilos and he answered that he did not. He affirmed and he was sure that he saw Rudy Regala drinking in the canteen inside the Magallanes Gate and that said canteen is far from the Magallanes Gate but he could not calculate the distance; and that Sgt. Desilos was stabbed right at the gate marked as EXIT of Magallanes Gate at which precise moment he was a meter behind Sgt. Desilos He saw Rudy Regala at about 12:20 in the morning and this was before the stabbing incident. He does not know whether the gate was closed at the time of the stabbing incident but knew for a fact that there were many persons milling around the gate marked EXIT. He did not see the fatal weapon used by the culprit (pp. 172-174, t.s.n., Vol. III, rec.). In re-direct, he affirmed that he was a meter behind Sgt. Desilos when the latter was stabbed and Noemi Almirol was beside him and there were many people outside (p. 174, t.s.n., Vol. III, rec.). Questioned by the Court, he revealed that Noemi Almirol is a young girl; that he brought her alone to her home at 12:30 in the morning, that he does not know her age; that he had known her for a long time as they were once neighbors;, that the residence of Noemi Almirol is at Quezon Street, far from Magallanes Gate, somewhere near the Medinas, in front of the residence of Dr. Sta. Cruz; that he is 16 years old but does not know who is older between him and Noemi Almirol; that Noemi Almirol is a third year high school student at Masbate High School; that he is a high school graduate as of June 13, 1964; and that he did not use to go out with Noemi Almirol and he had not gone to her house (pp. 174-175, t.s.n., Vol. III, rec.). Noemi Almirol, then 18 years old, single, a resident of Masbate, Masbate and a student of Masbate High School, testified that on June 12, 1964, she was at the Plaza Magallanes Gate, arriving there at 10:00 o'clock in the evening, with Amparo de Paz, Luningning Bonan and Elena Esparaguerra They were able to enter the plaza immediately and stayed thereat up to 12:00 o'clock midnight. At about 12:00 o'clock midnight, she met Alberto Abayon and they went home together at around 2:00 o'clock the following morning of June 13, 1964; that at the gate of Plaza Magallanes, she observed something unusual which was the killing of a PC soldier, and she fainted when she saw blood flowing from the body of Sgt. Desilos who was about one meter from her. She has known accused Rudy Regala for a long time and before she fainted she did not see Rudy Regala at the place where the PC man was bleeding (pp. 186-187, t.s.n., Vol. III, rec.). Cross-examined, she affirmed that in going home, she was with Alberto Abayon and it was then about 2:00 o'clock in the morning of June 13, 1964, although she is not sure of the time; and that she was behind the victim who was about a meter away from her. She did not know what happened after she fainted nor did she hear the announcement made by Police Chief Salvacion about the stabbing incident. She further declared that Rudy Regala was not her classmate at Masbate High School; nor did she ever see him there as she had just transferred to that school. She did not know that Rudy Regala was also studying in the Masbate High School (pp. 188-189, t.s.n., Vol. III, rec.). Upon redirect examination, she revealed that she had a time piece on that night of the incident but she did not check it before leaving for home (p. 189, t.s.n., Vol. III, rec.) Questioned by the Court, she insisted that she did not see Rudy Regala that evening. She stated however that she was not alone in going home with Alberto Abayon as there were many girls with them and that it was not true that Alberto Abayon brought her home alone (p. 189, t.s.n., Vol. III, rec.). Witness Eladio Mendoza, then 21 years old, single, third year high school student of Masbate College, Masbate, Masbate, told the Court that he resides at Domingo Street, Masbate, Masbate; that he knows the accused Rudy Regala; that on the evening of June 12, 1964, he was at the Plaza Magallanes gate which is in the poblacion of Masbate, Masbate; that he arrived there at 9:00 o'clock in the evening; that his companions that night were Rudy Regala, Rudy Espinas and Pedro Verga and they were not able to enter the gate immediately because it was crowded by many people but were able to enter at around 9:00 o'clock in the evening; that once inside he went around and then together with his companions, Rudy Regala, Pedro Verga and Rudy Espinas, went to the canteen which was managed by a priest, at the left side of the Magallanes Gate (as one enters the same) near the Liceo College; they drank beer in the said canteen and stayed there for a long time; that he did not dance, but Rudy Regala did at around 11:30 P.M. with the queen, Carol Bataga and this lasted for about 2 minutes, and at the next piece, with one of the princesses whose name he (witness) did not know and

Page

74

after this dance with the princess, Rudy Regala went back to the canteen and drank beer; that at about midnight, he (witness) was still at the canteen and at that time, more or less, something unusual happened, which was the stabbing of a PC man at the gate which he learned about through the announcement made by Chief Salvacion on the stage at around 12:30 in the morning of June 13, 1964; that at that time, accused Rudy Regala was at his side drinking beer; that he did not do anything after the said announcement; neither did accused Rudy Regala do anything; that accused was at that time wearing a short-sleeved white polo shirt; that he cannot remember how many bottles of beer he drank that evening but the whole gang finished one case of beer; that he knows Sgt. Desilos although he did not see him that night; that he went home at around 2:00 o'clock of the morning of June 13, 1964 at which time accused Rudy Regala was still seated inside the other canteen located at the right side of Magallanes Gate, belonging to Mayor Ben Magallanes (pp. 175-178, t.s.n., Vol. III, rec.). He testified during the cross-examination that he studied at Liceo de Masbate, not at the Masbate High School, before he transferred to Masbate College; that on June 12, 1964 when he went inside the gate, there were many people; and that he went inside the auditorium together with Rudy Regala, Espinas, and Verga and they drank beer in the canteen owned by a priest (p. 179, t.s.n., Vol. III, rec.). Questioning by the Court extracted from him the fact that he is a very good friend of Rudy Regala as they have been friends since childhood; that they were 'not together too often as they are studying in different schools, Regala in Masbate High School while he, at Liceo; and that they go out together and drink once in a while (p. 179, t.s.n., Vol. III, rec.). Thereafter, defense counsel manifested in open court that the testimonies of the other defense witnesses, Pedro Verga and Rudy Espinas, will corroborate the testimony of defense witness Eladio Mendoza in all its material aspects or that they will testify as Eladio Mendoza did. Prosecuting Fiscal did not interpose any objection; hence, such fact was made of record. Witness Eddie Zaragoza, then 34 years old, married, a municipal policeman of Masbate, Masbate (since July 1, 1961) testified that in the evening of June 12, 1964, he was detailed as guard at the Magallanes Gate, at Quezon Street, near the church of Masbate, Masbate and he stayed there until the dance which started at around 8:00 o'clock in the evening, was over at past 1:00 o'clock of the following morning; that on that midnight of June 12, 1964, when he was the guard, nothing unusual happened, but the next night, June 13, 1964, at around 11 o'clock an incident happened near the Exit gate of the plaza around 75 meters from his post; that he went to the scene of the incident to investigate and saw Sgt. Desilos being carried by Sgt. Hilario to the jeep of the vice-governor, Moises Espinosa, to be brought to the hospital,; that while investigating the people around the scene of the incident, he heard Dick Avinas driver of the vicegovernor, shouting "Here is a knife that was dropped"; that Dick Avinas was then inside when he shouted; that he (witness), together with chief of police Salvacion, went to the spot of the incident and saw a knife near the bumper of the jeep; that he got a piece of paper and with it held the knife's blade and delivered it to chief of police Salvacion, who told him that the blade should be held but not the handle; that thereafter, he continued with his investigation by gathering information from the people present but the result of his investigation was negative (pp. 5-12, t.s.n., Vol. IV rec.). On cross-examination, he declared that it was coronation night when the incident, happened but it was not before midnight of June 12, 1964; that there were two nights for coronation, June 12, 1964 for Baby Queen and June 13, 1964 for Lady Queen; that the incident took place during the coronation of the Lady Queen; that he could not remember whether the coronation of the baby queen was held prior to June 12, 1964, but it was the night previous to the coronation of the lady queen; that on June 12, 1964, he was on d uty as guard at the Magallanes Gate from 8:00 o'clock in the evening up to after midnight (pp. 12-17, t.s.n., Vol. IV, rec.). Clarificatory questions were propounded by the prosecuting fiscal and the trial judge with respect to the actual date and time of the incident, thus: Butalid Q And on the night of June 12, 1964, past midnight, the incident occurred? WITNESS A No, sir. Q But it was after your duty on June 12, 1964 at about 8 o'clock that the incident occurred? BLANCA Misleading, your Honor. We object. COURT Q You were a guard on June 12, 1964 from 8 o'clock to past midnight ? A Yes, your Honor. Q And when you said that on June 12, up to midnight there was no incident about Sgt. Desilos? A Yes, your Honor. Q After midnight of June 12, it is already June 13, 1964? A Yes, your Honor.

Page

75

Q After midnight of June 12, which is June 13, 1964, that was the time when Sgt. Desilos according to you, met an accident BLANCA If your Honor, please, with due respect to the question of the Honorable Court, we would like to make it of record our objection, on the ground that it is misleading. COURT Put it on record. WITNESS A No, your Honor Q In other words, from one minute after 12:00 o'clock of June 12, 1964 until 6:00 o'clock of that morning, which is June 12, Desilos was still alive? No incident happened to Sgt. Desilos A Nothing happened. Q According to you, Desilos was killed on June 14, 1964? BLANCA If your Honor, please, we shall again, with due respect to the question of the Honorable Court, we are constrained again to make our objection on the ground that it is misleading. The testimony of the witness said that the incident took place about past 11:00 o'clock in the evening of June 13, 1964. COURT Past 11:00 o'clock. Let the witness answer because he does not clarify. WITNESS A Not yet. COURT Q When was it? Tell us the definite date? A More or less, at 11:00 o'clock in the evening of June 13, 1964 when the incident took place. Q So it was on June 13, 1964 at 11:00 o'clock? A More or less, your Honor. Q You are sure about that? A Yes, your Honor. xxx xxx xxx (pp. 14-16, t.s.n., Vol. IV, rec.). Defendants Rudy Regala and Delfin Flores testified in their defense and both claimed that they were not present at the spot of the commission of the crime and that they are strangers to each other. Rudy Regala declared that he is 21 years old, single, a student at Masbate High School at Masbate, Masbate; that he was at the Magallanes Gate, Masbate, Masbate in the evening of June 12, 1964, together with Rudy Espinas, Pedro Verga and Eladio Mendoza, and they were not able to immediately enter the gate; that as soon as they had entered the gate, they looked around the auditorium and afterwards at around 10:00 o'clock they proceeded to the canteen near the Liceo College; that the canteen is at the right side of, if one is facing, the grandstand; that they drank beer in the canteen which is owned by a priest; that at around 11: 30 in the evening, he danced with the queen, Carol Bataga for about 2 minutes and then with the princess whose name he does not know, which dance also lasted for about two minutes; that after his dance with the princess, he went back to the canteen; that thereafter, or at around 12:40 in the evening, and while still in the canteen, he heard Chief Salvacion announce that a PC man was stabbed; that after the announcement he did not do anything; that he went home around 2:30 to, 3:00 o'clock in the morning of June 13, 1964; and that except to dance, he did not leave the canteen (pp. 189-192, t.s.n., Vol. III, rec.). He further informed the, Court that he knew Sgt. Desilos but did not see him that night when he (deceased) entered the gate; neither did he see him in the morning or afternoon of that day; that he has no grudge against him nor any motive to kill him; that his family has no grudge against Sgt. Desilos and that his family, however, has a quarrel with the PC (p. 182, t.s.n., Vol. III, rec.). Moreover, he testified that he does not know prosecution witness Erlinda Tidon and it was only on the witness stand that he first saw her and he denied as true her declarations; that he knows prosecution witness Juanito Evangelista but denied as true his declarations; that he did not know his co-accused Delfin Flores either before or on that night of June 12, 1964; that he came to know him only at the PC headquarters on June 16, 1964 when they returned to the municipal building and it was only on June 14, 1964 that he saw for the first time Delfin Flores at the PC compound; that his attire at the Magallanes Gate that evening of June 12, 1964 was a short-sleeved shirt which appears yellow at daytime but blue during nighttime; that said shirt which he Identified in court (Exh. "2") is now in the possession of his lawyer (pp. 192-193, t.s.n., Vol. III, rec.). Testifying further, he told the court that he was arrested with Roger Ampuan by Sgt. Gotis at around 10:3'0 to 11:00 o'clock in the morning of June 13, 1964 at the market and they were brought to the PC compound where they stayed up to 5:00 o'clock in the

Page

76

afternoon; that St. Gotis investigated him that same day and pointed to him as the companion of Roger Ampuan in stabbing Sgt. Desilos but he told Sgt. Gotis that this was not true; that after 5:00 o'clock in the afternoon, he and Roger Ampuan were allowed by Capt. Eugenio to go home; that he was again arrested by Sgt. Gotis and his companion on June 14, 1964 at about 12:30 to 1:00 in the afternoon in the market area; that this time, he was arrested with Rudy Espinas and they were brought to the PC compound where they were immediately placed in separate rooms; that inside the room, he was maltreated by a person whom he knows only by appearance; that he was ordered to admit the crime because according to the investigators, Rudy Espinas had already told them that he (accused) was the one stabbed Sgt. Desilos Jr., but he told them that that was not true, that he was boxed, then kicked and made to squat; one pulled him by his buckle and he was made to look upward with the man's fingers pointed towards his (accused) nose; that it was a PC soldier named Formalejo and two others, whose faces he could recognize, who did the maltreatment and that Peroy Merillo kicked him at the side of his body while inside the toilet; that he was given only ten minutes to rest and he was continuously maltreated that day of June 14, 1964, from 12:00 or 1:00 o'clock to 5:00 o'clock in the afternoon; that in the evening nothing was done to him at the PC compound where he slept although he was investigated by Sgt. Taleon who did not reduce into writing his investigation; that on June 15, 1964, nothing happened to him as he was not investigated that day; that he stayed in the PC compound from the 14th to the 6th of June, 1964; that there were seven persons investigated at the PC compound, namely, Rudy Espinas, Pedro Verga Eladio Mendoza, Miller Gaton, Roger Ampuan Delfin Flores and himself; that on June 16, 1964, he and Delfin Flores were brought to the municipal building; then they were taken on June 23, 1964 to the provincial jail and they passed by the PC barracks where he got his eyeglasses and hat; that he was at that time accompanied by Patrolman Natural; that in the PC barracks, he was called by Sgt. Balase and, leaving behind Pat. Natural, he approached Sgt. Balase who told him that now that he is being pointed to as the killer, it would be better for him to tell the truth as to who was the real author of the crime so that he (accused) would be utilized as witness, but he told Sgt. Balase that he was very innocent of and did not know anything about the crime; that before the body of Sgt. Desilos was brought to the cemetery it was shown to him by Sgt. Balase and the coffin was placed in front of him; and that on that occasion, PC Formalejo who was then with Sgt. Balase attempted to box him (accused) but Formalejo was cautioned by Sgt. Balase (pp. 194-197, t.s.n., Vol. III, rec.). Accused Rudy Regala further revealed that when he saw on June 3, 1964 witness Juanito Evangelista at the PC barracks, the latter asked him why he and Roger Ampuan were at the PC compound and he replied that they were taken by the PC because of the incident the night before and Evangelista told him "You were not present there that evening"; that their conversation took place in the presence of a PC officer whom he can recognize by appearance only; that he met Capt. Eugenio on June 13 to the 16th; that on June 14, Capt. Eugenio told him that there was another suspect who wore a blue shirt with stripes; that another PC officer asked him who was the owner of that blue shirt with stripes and he answered that he saw somebody wearing that; that during his maltreatment by the PC, a PC soldier who was posted as guard went inside the room and hit and kicked him; that he had not seen Exhibit "A", the knife used in the stabbing, before, as it was only in court that he first saw that knife; that he does not use that kind of knife; and that when he went to the Magallanes Gate that evening of June 12, 1964, he had no weapon or knife with him (pp. 197-198, t.s.n., Vol. III, rec.). In the course of his cross-examination, accused Rudy Regala was caught smiling by the trial judge who warned him of his act and behavior and not to take the trial lightly as the trial is not a joke, nor was there anything funny, and advised him to be serious as he is fighting for his life (p. 198, t.s.n., Vol. III, rec.). He confirmed that he studied for two years at Masbate High School, but denied breaking the crystal (glass) of the bulletin board of the school; that he was arrested on June 13, 1964 by Sgt. Gotis at the market place between 10:30 and 11:00 o'clock in the morning; that at the time of his arrest no knife was taken from him by Sgt. Gotis that he was maltreated but not investigated by Formalejo that he does not remember any incident he had with Formalejo that he does not remember and it was not true that a knife was confiscated from him by Laguerta when he (accused) was about to stab PC Formalejo that he stays at the market place; that it is not true that during vacation time, he worked as part time butcher in the market; that he knows Patrolman Perez; that he knows former policeman Cornal that he has a tattoo in his shoulder (which he showed to the court) and the tattoo consists of the words "Black Jack No. 3"; that Black Jack is not a gang but a club to put up recreational facilities in the market and the president of the club, of which he is a member, is Tony Aguilar; that Rudy Espinas is also a member but not Pedro Verga Floresta and Alberto Abayon; that every member of the club must have to be tattooed with Black Jack. According to him, his body was battered because of the maltreatment he suffered from the PC that he was confined in the provincial jail for the first time on June 23, 1964 at around 9:30 to 10:00 o'clock and that until now he is still confined there; that he was maltreated only on the 14th of June, 1964; that at the provincial jail, he was not able to ask somebody to examine his battered body because he was not even allowed to communicate with the persons he knows as he was isolated in the provincial jail; that in a room in the provincial jail, he was with one named Julian Bartido who was the same person who was convicted in the shooting of Moises Espinas and the wounding of Marcial Tamares; that he was not therefore examined by a physician; that the purpose of the PC in maltreating him is to force him to admit his guilt but he did not admit; that there were seven other persons investigated in the PC compound; that he, Delfin Flores, and the seven other persons were lined up in the PC compound and he was the one called by Sgt. Balase and that at the time he was called by Sgt. Balase he did not see Juanito Evangelista (pp. 198-204, t.s.n., Vol. III, rec.). Defense witness Romeo Floresta, who was then 16 years old, single, a first year high school student of the Masbate College and a resident of Masbate, Masbate, corroborated defendant's defense of denial and alibi and thus declared that on the evening of June 12, 1964, he went to the Magallanes Gate and returned home at 2:30 in the morning of the following day, June 13, 1964; that at around 12:00 midnight, he saw Rudy Regala drinking beer in the canteen inside the plaza (Magallanes Gate); that from the time he met Rudy

Page

77

Regala at 10:00 up to the time he went home, he saw Rudy Regala drinking in the canteen; that the plaza was crowded that evening of June 12, 1964; and that he went home together with Rudy Regala (pp. 183-184, t.s.n. Vol. III, rec.). He revealed on cross-examination that he saw Rudy Regala that evening dance twice; that the canteen where he stayed the whole night was the one located at the left side, if entering the gate; that he never left that canteen from the time he entered the same up to the time he left for home; that Rudy Regala likewise did not leave the canteen except to dance after which he returned to the canteen; that from the time he entered the plaza at 8:00 o'clock of June 12, 1964 up to the time he and Rudy Regala went home together, he was always with Rudy Regala and that he saw Rudy Regala at the canteen situated at the left side of Magallanes Gate (pp. 184-185, t.s.n., Vol. III, rec.). Defendant Rudy Regala's father, Cleto Regala, then 52 years old, married, a merchant and residing since 1947 at the market site, Masbate, Masbate, testified that as a merchant he sells vegetables and sari-sari; that he does not sell coffee; that in the evening of June 12, 1964, he was at the pingpong game site and he was selling coffee because it was the town fiesta; that he knows that his son Rudy Regala went to the dance at the Magallanes Gate that evening; that at around 3:00 o'clock of the following morning of June 13, 1964, his son Rudy Regala arrived at the pingpong site where he was selling coffee; that his son did not talk to him, neither did he talk to his son; that his son drank coffee and thereafter he slept on the bench; that he had not seen Exhibit "A" (knife), as among those in his household; that his son had not used that kind of weapon; that at around 10:30 to 11:00 o'clock in the morning of June 13, 1964, PC Sgt. Gotis picked up his son at his residence and brought him to a car; that in the evening of June 14, 1964, Sgt. Gotis arrived at his (witness) residence and asked for the blue banlon shirt of Rudy Regala as according to him (Sgt. Gotis Rudy Regala needed it as he was feeling cold; that he gave Sgt. Gotis a newly ironed shirt but Sgt. Gotis told him that that was not the one because he (Sgt. Gotis was looking for a blue banlon shirt with stripes; that the shirt of Rudy Regala when he came home from the plaza was one which appeared to be yellow during daytime but white during nighttime; that Exhibit "2" is the shirt he was referring to as worn by Rudy Regala that morning; that this was the very shirt he showed Sgt. Gotis but Sgt. Gotis told him that that was not the one; and that Rudy Regala does not have a blue shirt with red stripes (pp. 180-183, t.s.n., Vol. III, rec.). The other accused Delfin Flores who was then 24 years old, single, a farmer and a resident of Cawayan Interior, Masbate, Masbate, testified in his defense that in the evening of June 12, 1964, he arrived at around 9:00 o'clock without any companion at the dance at Plaza Magallanes and he was able to enter immediately; that he stayed there up to 1:00 o'clock of the following morning, June 13, 1964; that at 1:00 o'clock nothing happened to him; that before 1:00 o'clock in the morning of June 13, 1964, while he was da ncing, Chief of Police Salvacion announced on the stage that a PC man had been stabbed; that after that announcement, he was boxed by one Bacalano from the Island by reason of which he fell and when he stood up he drew his double-bladed knife but policeman David Natural approached and told him to surrender the knife, which he did, and then he was arrested and taken to the municipal building of Masbate, Masbate, where he was lodged in jail until the next (whole) morning; that on or before June 12, 1964, he did not yet know his co-defendant Rudy Regala; that he came to know Rudy Regala for the first time in the PC camp on June 16, 1964 when they were brought to the municipal building of Masbate, Masbate; that on June 13, 1964 at 2:00 o'clock in the afternoon he was taken by a PC man whom he did not know, from the municipal building to the PC camp; that at the PC compound, he was investigated by persons whom he does not know; that in the investigation he was told to admit the crime because according to them Rudy Regala had already admitted and pointed to him (accused) as one of Rudy Regala's companions but he told them that he could not admit because Rudy Regala was not his companion; that because of his denial, he was boxed by them in the abdomen and he fell down with his buttocks on the ground; then he was boxed again on the left side of his buttocks by reason of which he rolled on the ground; that he does not know the names of those who boxed him; that the maltreatment was done inside the room without the presence of PC officers, as only the PC man who boxed him was present; that there were two PC men who boxed him but he does not know their names; that he stayed up to 4:00 o'clock in the afternoon of June 13, 1964 in the PC compound; that on that day, June 13, 1964, there were six other suspects who were investigated but he does not know their names; that he was returned to the municipal jail on June 13, 1964 and on June 14, 1964, at around 8:00 o'clock in the morning, 2 PC soldiers, whose names he does not know, took him from the municipal jail and brought him back to the PC compound and, again, he was told by a PC captain who investigated him, to admit the crime because according to them, Rudy Regala had already admitted and pointed to him as his companion when he (Rudy Regala) stabbed Sgt. Desilos but he told them that he could not admit as Rudy Regala was not his companion; that while he was being investigated by the PC captain, another PC soldier got hold of his abdomen and boxed him; that he does not know this PC soldier but he can recognize his face, Chat the investigation results were not reduced into writing; that he did not sign anything nor was he ever subjected to fingerprinting; that he was brought to the PC compound four times in all; that every time he was brought to the PC compound he was being told to admit the crime as Rudy Regala had already admitted and pointed to him as his companion who stabbed Sgt. Desilos but in all such occasions, he answered them that he could not admit because Rudy Regala was not his companion; that the second time that he was brought back to the PC compound, there were six other suspects in the compound who were investigated but he does not know them; Chat he was mixed with the other six suspects and lined up inside the PC compound; that when they were lined up, the PC did not do anything but only left them there lined up; that they were fined up only once. He further testified that he does not know either Sgt. Juan Desilos Jr. or Erlinda Tidon that the declarations of Erlinda Tidon in the witness stand regarding his participation in the stabbing of Sgt. Juan Desilos Jr. are not true; that it was only while Erlinda Tidon was on the witness stand that he first saw her; that he did not see Erlinda Tidon at the Plaza Magallanes in the evening of June 12, 1964;

Page

78

that neither does he know witness Juanito Evangelists; that the declarations of Juanito Evangelista with respect to his participation in the stabbing of Sgt. Desilos are not true; that he saw Juanito Evangelista for the first time only when the case was being tried by the court; and that he did not see witness Juanito Evangelista in the evening of June 12, 1964 at Plaza Magallanes (pp. 17-36, t.s.n., Vol. IV, rec.). Cross-examined, he revealed that his educational attainment is Grade VI. Over the objection of his counsel the Court allowed a question propounded to him about his previous criminal conviction and he declared that he was convicted of the crime of murder in Masbate, Masbate by Judge Benedicto; that the victim in that crime of murder was Ricardo Cuyos that by reason of his conviction he served sentence in Muntinglupa and thereafter he was paroled; that on the night of June 12, 1964 at 9:00 o'clock in the evening, he went to the dance at Magallanes Gate; that at that time, there were so many people trying to get in that there was no PC soldier at the gate but there were many people around the vicinity going to the entrance; that he went inside the auditorium and saw the coronation of the queen; that he was not at Magallanes Gate the night previous to June 12, 1964 as it was only that evening of June 12, 1964 that he went there; that he was dancing when Chief Salvacion made the announcement; that he does not know the name of the person with whom he was dancing; that the music being played previous to the announcement was sweet; that when Chief Salvacion made the announcement, the music stopped and so everybody stopped dancing; that he was at a distance of 15 meters from the gate when the dance was stopped; that he was no longer dancing with his unknown partner when Chief Salvacion announced the stabbing of the PC soldier; that he does not know witnesses Erlinda Tidon and Juanito Evangelista and does not know of any grievance or trouble with them; that he knows Balacano who boxed him several times after the announcement made by Chief Salvacion; that he was arrested only after Chief Salvacion had finished his announcement; that before his arrest, he was no longer dancing; that he was not dancing when Balacano boxed him; that David Natural, a policeman, of Masbate, Masbate arrested him that night inside the Magallanes Gate 15 meters from the gate; that after his arrest, he was brought to the municipal building of Masbate, Masbate; that policeman Natural was with PC soldiers who escorted him to the municipal building where they arrived at past 1:00 o'clock; and he stayed there until that time that the PC soldiers got him from the municipal jail at around 8:00 o'clock in the morning of June 13, 1964; and that from 1:00 o'clock to 8:00 o'clock of June 13, 1964, he was detained in the municipal jail of Masbate, Masbate. Cross-examined by the Court, accused Delfin Flores affirmed that the only time he attended the dance at the Magallanes Gate was on the evening of June 12, 1964; that he entered the gate at about 8:00 o'clock in the evening that he did not have a watch at that time; that per his calculation, Chief Salvacion made the announcement on the stage at about 11:00 o'clock in the evening of June 12, 1964; that because he had no watch it was possible that the time when Chief Salvacion made the announcement was midnight of June 12, 1964 or one minute thereafter, which was already June 13, 1964; that he was no longer dancing at the time Chief Salvacion made the announcement as he was then conversing with a lady at a place around 15 meters from the Magallanes Gate; that on that night he had in his possession a doublebladed knife which he brought with him to the dance hall because he was alone when he left his house; that he hid the knife in his body so that nobody could see it; that at the time he was dancing with his unknown partner, the knife was in his body; that he knew that he was a suspect not because he had a conversation with the PC but because he was placed in a line-up; that when he was being placed in the line-up, he did not know that he was being scrutinized by certain individuals from somewhere, but there were people in the PC barracks; that he did not know whether these Miss Ridon and Mr. Evangelists were looking at him while he was placed in the line-up; that he was placed in the line-up only once; that he did not come to know that on that evening after the line-up there were persons who have Identified him and Rudy Regala as the persons seen at the Magallanes Gate near the exit gate; neither did he come to know that after the line-up that evening, Miss Tidon and Mr. Evangelista had pinpointed him and Rudy Regala as the persons they saw in front of Sgt. Desilos immediately before he fell down wounded by a knife; that the PC soldiers maltreated him; that he was not made to sign anything; neither was he forced by the PC to sign anything; that Rudy Regala was not also forced to sign anything nor obliged to declare anything; that he did not know that Sgt. Desilos was a PC soldier; that at the time he was arrested that evening he already knew that a PC soldier had been stabbed but did not know yet that it was Sgt. Desilos that he only came to know the victim as Sgt. Desilos in the morning of June 13, 1964; that he was charged with concealment of a deadly weapon by the police force of Masbate; and that he pleaded guilty to the charge and was consequently sentenced to two months' imprisonment which he had served out already (pp. 45-60, t.s.n., Vol. IV, rec.). On re-direct he revealed that in the criminal case of People versus Delfin Flores for the murder of Cuyos, he pleaded guilty to the crime charged, and affirmed that in the case of illegal possession of deadly weapon, he also pleaded guilty (pp. 60-61, t.s.n., Vol. IV, rec.). By way of rebuttal evidence, prosecution presented witnesses Felixberto Laguerta and Gerardo Gotis. Felixberto Laguerta who was then 43 years old, married, and a policeman of Masbate, Masbate, testified that the testimony of Rudy Regala that the Black Jack organization is a club and not a gang, is not true because it is called the Black Jack gang; that he knows that it is a gang and not a club because the members have tattoos on their shoulders; that it is also not true that Pedro Verga Eladio Mendoza, Rudy Espinas, Romeo Floresta and Alberto Abayon are not members of the Black Jack gang; that all of them were arrested for being members of the said gang; that it is also not true as testified by Rudy Regala that he was not arrested by him at the cockpit when he (Rudy) was about to stab PC Formalejo for the truth was that on December 22, 1963 he arrested him and confiscated fro m him a knife; that Exhibit "F" is the same knife he confiscated from Rudy Regala, but no case was filed against Rudy Regala in connection therewith because Formalejo refused to file a complaint against Regala (pp, 6367, t.s.n., Vol. IV, rec.).

Page

79

Cross-examined, he testified that he has been a policeman for 19 years; that he was told by Fiscal Butalid to testify in this case that he did not execute any affidavit in connection with his arrest of Rudy Regala and confiscation from him of a knife, Exhibit "F"; that he reported the matter to the chief of police of Masbate, Masbate, Chief Salvacion; that he does not know whether the arrest and confiscation were recorded in the police blotter as it was the police sergeant who was in charge of recording the same; that the basis of his testimony that Rudy Espinas, Pedro Verga Romeo Floresta are members of the Black Jack gang is the tattoo on their shoulders which is in the form of cards and that all of them were arrested by reason of the fact that they are all members of said gang; that membership in the Black Jack gang is a crime; that because they are members of a gang, he suspected them of doing something bad; and that they were arrested because they were doing something wrong in the poblacion (pp. 68-72, t.s.n., Vol. IV, rec.). Cross-examined by the trial judge, witness confirmed that Rudy Regala is a relative of a very high ranking municipal official of the town of Masbate, Masbate, as the mother of Rudy Regala is the cousin of the town mayor-Mayor Magallanes. However, he does not know whether it was by reason of this relationship that Rudy Regala's father and mother are living inside the market site of Masbate, Masbate. He further revealed that he delivered the knife "Exhibit "F" to Chief Salvacion but no action was taken by Chief Salvacion against Rudy Regala in connection therewith (pp. 72- 73, t.s.n., Vol. IV, rec.). The other rebuttal witness, Gerardo Gotis, then 47 years old, married, and sergeant of the PC at Masbate, Masbate, testified that Rudy Regala's assertion on the witness stand that he was maltreated at the PC barracks was a he as Rudy Regala was never maltreated; that when he arrested Rudy Regala on June 13, 1964 at the market place, he was able to confiscate from Mm a knife (identified as Exh. "G") [pp. 74-76, t.s.n., Vol. IV, rec.]. Cross-examined by defense counsel, he affirmed that he got the knife, Exhibit "G" from Rudy Regala last June 13, 1964; that he did not file any case against Rudy Regala in connection with Exhibit "G" as he merely indorsed the same to the 1st PC sergeant and because his commanding officer, Capt. Eugenio ordered him not to file any case as there was already a case against Rudy Regala. However, he retracted his testimony that the non-filing of the case was the order of Capt. Eugenio. The reason for the non-filing was because it was merely overlooked as they were then busy investigating suspects in this murder case (pp. 76-78, t.s.n., Vol. IV, rec.). The trial Judge gave more weight and credence to the testimonies of the witnesses of the People than that of the accused, resulting thus, as aforestated, in the conviction of accused Rudy Regala for the complex crime of murder with assault upon an agent of a person in authority, and the imposition on him of the supreme penalty of death. However, with respect to the other accused, Delfin Flores, the trial Judge found him guilty only as an accessory after the fact. Consequently, the trial Judge imposed upon accused Delfin Flores the penalty of eight months and 21 days as minimum, to six years and 1 day of prision mayor as maximum with the recommendation that his parole be immediately cancelled. Before Us therefore by way of review is only the death penalty imposed on accused Rudy Regala; because Delfin Flores did not interpose any appeal from his conviction as an accessory after the fact, and was accordingly released on June 11, 1973 after the expiration of his sentence as certified by the Director of the NBP (p. 198, Vol. I, rec.). Counsel de officio contends that the trial court erred in failing to give the two accused a fair trial; in holding Rudy Regala responsible for the killing of Juan Desilos Jr.; in convicting Rudy Regala, assuming arguendo that he was the man who stabbed the victim, of the crime of murder with assault upon an agent of a person of authority; and in holding Delfin Flores, under the alleged facts of the case, liable as accessory after the fact of the crime of murder with assault against an agent of a person in authority. I Counsel de officio claims in support of the first assigned error that the indignation and revulsion of the trial Judge at the commission of the monstrous crime herein involved as can be gleaned from the decision under review, thus: Murder as a crime is indeed heinous. But when the crime had to be committed in a public place, where people were enjoying the spirit of the fiesta, and amidst the sound of the drums and the trumpets and the tantalizing sweetness of the dance music, the deviltry of the perpetrator is compounded. The perversity of the perpetrator is even made more ugly and ugliest indeed because the victim was in the uniform of an agent of the law and was performing his duty as he saw fit. He was there foregoing the pleasure of the evening so that others may enjoy. He was there as a symbol of authority so that peace may be maintained for those many who love peace and tranquility. He was there, distant from his home, his wife and his children who would want him near them during those happy and festive moments in answer to the call of duty, only to be treacherously killed by an assassin with the blackest soul. He died almost in the spot where duty demanded of him. He died so that others may enjoy and live. His was a fruitful life with a duty well done and his was a heroic death. He died in the altar of public service and his was a death of a hero. The Court would be recreant of its duty if it should fail to notice this splendid performance of a lowly but loyal public servant (p. 44, Vol. I, rec.).

Page

80

directly caused undue prejudice against the accused because of his previous criminal record as manifested by the following portions of the decision of the trial Judge Who is Rudy Regala? He is a convict, although in the crime of slight physical injuries. According to Municipal Judge Jose Angustia. of Masbate, he has been brought very often to his Court for several mischiefs he has committed. And who is Delfin Flores? He is a convicted murderer and a parolee. Birds of the same feather, flock together (p. 32, Vol. I, rec.). Is there a possibility that Rudy Regala could perpetrate the crime in company of Delfin Flores, a parolee, moments before midnight and/or moments after midnight? The distance of the canteen from the exit gate is not considerable. Rudy Regala could have been at the canteen early that evening and could have gone out with Delfin Flores and then returned at the exit door, committed the crime and then returned to the canteen to prepare for his alibi? This may be conjectural, but the possibility would not be farfetched. To a man with criminal mind and criminal tendencies, anything could be possible (p. 25, Vol. I, rec.). ... So that after the incident, he could have disappeared among the crowd and he and Rudy Regala could have returned inside in order to establish an alibi. It should be remembered that Delfin Flores and Rudy Regala are convicts and are dangerously mischievous. Although it may be argued that criminals would not at times return to the scene of their adventures, nevertheless, there are those who, to prepare an alibi, would do so, accustomed as they have been in committing acts of deviltry Is this possible and/or probable? While witnesses of the defense, because of their ages, their being acquaintances close and tight, have every reason to help their friend Rudy Regala in his terrible predicament, Rudy Regala, a member of an organization with tatoos on their right arm, could have certain moral ascendancy over Abayon, Mendoza and Florista and even with Noemi Almirol, that in the spirit of friendship they are coming to the rescue of criminal friend Rudy Regala (pp. 25-26, Vol. I, rec.). The defense of the accused is alibi. Rudy Regala claimed that he was inside the canteen, which was a few members from the exit door of the Magallanes auditorium on the night Sgt. Desilos was stabbed. Rudy Regala is a convict and a notorious young man and the Court will take the same into account (p. 29, Vol. I, rec.). In essence, therefore, counsel de officio's first assigned error boils down to the delicate question of whether appellant Rudy Regala was denied due process of law. It must be emphasized that the jurisprudence under the 1935 Constitution treated the right of an accused to impartial trial as an aspect of the guarantee of due process. Under the present Constitution, that right to impartial trial is now expressly declared as one of the cardinal rights of an accused. Thus its Section 19, Article IV (Bill of Rights), provides that "(I)n all criminal prosecutions, the accused ... shall enjoy the right ... to have a speedy, impartial and public trial ..." (emphasis supplied). WE have declared that "... It is a fundamental right enshrined in the Constitution that no one is to be deprived of his liberty without due process of law. Moreover, there is a specific reference to its indispensability in a criminal prosecution. Thus is emphasized its importance for an accused. He can rely on the guarantee of fairness according to the fundamental law, which moreover provides additional safeguards at the stage of trial. Our Constitution does indeed go far in throwing the mantle of its protection on the one who is caught in the meshes of criminal law. The proceeding must neither be arbitrary nor unjust. It is to underscore the importance of a trial judge being detached and objective, free from bias either for or against the prosecution or for the person indicted. As was so aptly put by 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 ...' Earlier in People vs. Castaeda, Justice Laurel made clear the necessity for a 'trial before an impartial judge.' If it were otherwise, the pledge of due process becomes a myth. The trial is reduced to nothing but a useless formality, and Idle ceremony. If a judge had made up his mind to convict, even innocence would not suffice as a defense" (People vs. Angcap, 43 SCRA 437, 441-442 [1972]). The thrust of appellant's posture is that the trial Judge, considering "his fully justified indignation and revulsion at the commission of such a monstrous crime" of murder, became prejudiced against appellant (as well as his co-defendant) after his previous criminal conviction was brought forth during the trial, to the extent that the trial Judge no longer gave due consideration to the evidence of the defense (pp. 73-78, Vol. I, rec.). On the other hand, the Solicitor General submits that the above argument of counsel de oficio does not properly fit the assigned error, because it assails the decision of the trial court and its appreciation of the evidence submitted therein rather than the conduct of the trial itself (pp. 607, Appellant's Brief, p. 184, Vol. I, rec.). An impartial trial necessarily requires an impartial judge to conduct the same. In other words, absent an impartial judge, there can be no fair and impartial trial. Appellant impugns the impartiality of the trial judge, who was allegedly prejudiced against the appellant.

Page

81

WE do not agree with counsel de officio that the trial court failed to accord appellant Rudy Regala a fair trial. Appellant has not pointed, and We have found none, to any part or stage of the trial betraying the trial Judge's hostility, bias and prejudice against the appellant after the prosecution had brought forth the fact of appellant's previous criminal conviction. As a matter of fact, appellant's previous conviction of the crimes of malicious mischief and slight physical injuries was testified to only by the witness last presented by the prosecution in its evidence in chief. And the trial Judge, contrary to the claim of the appellant, gave due consideration to his evidence as shown by the fact that in the decision of conviction, the trial Judge examined extensively the testimonies of all the eight witnesses for the defense. Consequently, while the quoted portions of the judgment of conviction are interspersed with statements and phrases which properly should not have been made as they may be wrongly interpreted as indicative of bias and prejudice, such aforestated statements and phrases in the judgment of conviction do not per se constitute evidence of bias and impartiality in the conduct of the trial by the trial Judge as to violate appellant's right to an impartial trial. WE view the trial Judge's aforequoted statements and phrases as merely an expression, in the very words of appellant's counsel de officio herself, of the Judge's " ... fully justified indignation and revulsion at the commission of such a monstrous crime ..." II 1. The trial court correctly rejected appellant Regala's defense of alibi and denial. Indeed such defenses cannot prevail over the affirmative testimonies of Erlinda Tidon and Juanito Evangelista who positively Identified appellant Rudy Regala as the one who inflicted the single but fatal wound on the deceased Sgt. Juan Desilos Jr. (People vs. Cabiling 74 SCRA 285 [1976]; People vs. Roxas, 73 SCRA 583, 591 [1976]. And the exit gate where the stabbing took place was just in the vicinity of about 15 meters from the canteen where appellant was allegedly drinking beer during the night of June 12 until the early morning of the 13th. Alibi, to be convincing must preclude any possibility that the accused could have been physically present at the place of the crime nor its immediate vicinity at the time of its commission (People vs. Roxas, supra). While the crime took place at midnight or a little past thereafter, such circumstance does not vitiate witnesses' Identification of appellant Rudy Regala as the person who stabbed to death Sgt. Juan Desilos Jr.; because the place at that time was well lighted by reason of the affair being celebrated (pp. 16, 78, Vol. III, rec.). Furthermore, the two witnesses were close to the exact spot of the incident as witness Tidon was barely one-half meter from the victim (p. 14, Vol. III, rec.), while witness Evangelista was about a meter from the exit gate where the victim was stabbed (p. 84, Vol. III, rec.). Hence, the possibility of erroneous Identification is remote. Despite the fact that both witnesses before the stabbing incident did not know appellant by name, they both declared that they knew him by face or appearance (pp. 31, 81, Vol. III, rec.). Furthermore, appellant has not shown by evidence of any evil motive on the part of prosecution witnesses Tidon and Evangelista to testify in the manner they did. The absence of any such improper motive enhances the credibility of said witnesses (People vs. Roxas, supra). 2. It is a recognized principle that on the matter of credibility of witnesses, the observation of the trial court must be accorded respect and great weight in view of its special opportunity to observe closely the demeanor of the individual witnesses. As a matter of fact, the trial court gave its observations on the witnesses' conduct and candor on the witness stand, thus: Because of the seriousness of the offense not only because of the challenge that the perpetrator has poised upon the community the people and all citizenry because of the brazen manner of its commission, which was made before several people and in the midst of the festive mood of the occasion but because of the grave penalty which the crime carries, the Court took special interest in the two witnesses for the prosecution. It was carefully observed by the Court that both witnesses were curt on their declaration they were straightforward in their reply and their voice carry the ring of sincerity and truth. Their manner of replying on (sic) the question of the prosecution were those (sic) of serene honest and truthful individuals, who wanted to impart clearly what they saw. Their answer to the cross examination were (sic) given with a clear and convincing manner . They were men who sat on the witness stand merely to convey what they have seen and noticed then, without hesitation. The Court cannot help but be convinced of the trustworthiness of their revelation. Under the searching barrage of cross-examination, they were never ruffled but they withstood the fire with simple dignity, speaking with a voice full of candor and truth. That is the impression these two witnesses have created in the mind of the Court. The clearness and simplicity of their assertion and their direct and positive Identification of the accused Rodolfo Regala alias Rudy Regala and Delfin Flores have convinced this Court (emphasis supplied).

Page

82

Because the trial Judge had spoken on a matter, which he indisputedly is in a much better position to appreciate, this Court can do no less than to place its imprimature thereon. Indeed, it has been aptly observed that

... the judge who tries a case in the court below has vastly superior advantages for the ascertainment of truth and the decision of falsehood over an appellate court sitting as a court of review. The appellate court can merely follow with the eye the cold words of the witness transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the Identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillfull cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by the appellate court. For this reason the rule is firmly established that where there is an irreconcilable conflict in the testimony, the appellate court will not reverse the judgment of the trial court, where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict (several cases cited) or unless some conclusion established from the fact is inconsistent with the court findings or there is some inherent weakness in the evidence upon which the conclusion is based, or unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted, as where the trial court in the valuation of testimony misinterpreted a supposed inherent weakness thereof not arising from the behaviour of the witness on the stand ... (People vs. Alto, 26 SCRA 342, 365 [1968]). 3. Consequently, the inconsistencies and incredibilities in the testimonies of the material witnesses of the prosecution as pointed out by the appellant are better left to the appreciation of the trial court, which has not found the same sufficient to destroy the probity of said witnesses. Appellant contends that prosecution witness Erlinda Tidon's testimony to the effect that appellant Rudy Regala and accused Delfin Flores ran away after appellant Rudy Regala had stabbed Sgt. Juan Desilos Jr., is improbable considering that, according to Tidon herself, the scene of the crime was crowded or overflowing with people and consequently one cannot move fast or run (pp. 15, 16, 43, Vol. III, rec.). Such inconsistency or improbability is more apparent than real. It may be true that under normal condition, that is, absent any unusual incident such as the killing of a peace officer, such assertion may be characterized as improbable. This is not so, however, in the instant case; because the commotion created by the stabbing incident enabled the culprits to easily disappear among the milling throng. Again, the testimony of Erlinda Tidon to the effect that no other unusual incident occurred after the stabbing incident may not be characterized as false; because witness Tidon may have treated the stabbing incident and the consequent commotion engendered by the same as one continuing incident, instead of treating them as two separate incidents. Hence, she answered that aside from the stabbing incident no other unusual incident took place. Moreover, We have noted in People vs. Resayaga (54 SCRA 350 [1973]) that it is a common phenomenon to find inconsistencies, even improbabilities, in the testimony of a witness, especially on minor details or collateral matters. That the accounts of witnesses regarding the same occurrence are contradictory on certain details is not unusual. There is no perfect or omniscient witness because there is no person with perfect faculties or senses or a perfect control of his emotions. An adroit cross- examiner may trap a witness into making statements contradicting his testimony on direct examination. By intensive cross- examination on points not anticipated by the witness and his lawyer, a witness may be misled or trapped into making Statements that do not dovetail with the testimonies of other witnesses on the same points. Yet, if it appears that the witness has not wilfully perverted the truth, as may be gleaned from the tenor of his testimony and as appreciated by the trial Judge from his demeanor and behaviour on the witness stand, his credibility on material points may be accepted. III The killing of Sgt. Juan Desilor Jr., according to the trial court, was qualified as murder by the circumstances of treachery and evident premeditation and hence, appellant was convicted of the complex crime of murder with assault upon an agent of a person in authority. Neither treachery nor evident premeditation can be properly appreciated and considered in tills instance case so as to characterize the killing as murder. So appellant contends and the Solicitor General agrees. WE find the aforesaid common stand correct as the evidence supports the same. Treachery is never presumed; it must be proven as conclusively as the act itself. It must be shown that the accused employed "... means, methods, or forms in the execution thereof which tend directly and specially to insure its execution without risks to himself arising from the defense which the offended party might make. "

Page

83

By prosecution's own evidence, appellant was enraged because the deceased (Sgt. Juan Desilos Jr.) pushed his companion Delfin Flores and admonished him not to get in through the exit gate, then pulled out his knife and stabbed the victim in the abdomen. Treachery cannot therefore be appreciated as the attack made by appellant Rudy Regala was merely an immediate retaliation for the pushing made by the deceased, which act placed him on his guard. Moreover, deceased Juan Desilos Jr. at the time had a sidearm (p. 97, Vol. III, rec.) and was free to defend himself with it. If appellant's design was to be safe from a possible defense that the victim might make, he could have disarmed the victim first before stabbing him. This he did not do. Certainly, these circumstances negate treachery. With respect to the qualifying circumstance of evident premeditation, it is well-settled that the essence of premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. Consequently, it must be clearly established by evidence the time when the offender determined to commit the crime, and a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act. Neither the record nor the appealed decision intimates the existence of the foregoing circumstances which are essential for a positive finding of evident premeditation. On the contrary, the circumstances of the case rule out premeditation. The principle enunciated in the Manalinde (14 Phil. 77 [1909]), Butag (38 Phil. 746 [1918]), Binayon (35 Phil. 23 [1916]) and Zalzos (40 Phil. 96 [1919]) to the effect that premeditation may exist even if there was no predetermined victim, does not apply in the instance case In all these cases it was sufficiently established that the accused deliberately planned to kill although without a definite person as intended victim. In the present case, there is no evidence pointing to the fact that appellant planned to kill any person who ma cross his path. His act of bringing with him a knife in going to the plaza is not an indication that he did plan to kill anybody. Consequently, the killing of Sgt. Juan Desilos Jr. by appellant cannot be qualified as murder. It was simple homicide. But the appellant cannot be convicted of the complex crime of homicide with assault upon an agent of a person in authority because the information filed against appellant did not allege the essential elements of assault that the accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority. (People of the Philippines vs. Rodil, L-35156; Nov. 20, 1981; People vs. CFI of Quezon, Branch V, 68 SCRA 305, Nov. 28, 1975). The information in this case barely alleged that the accused "... with deliberate intent to kill, with evident premeditation and treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack and stab with a knife ( cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his official duty thereby inflicting upon the latter serious stab wounds at the mid-epigastric region penetrating abdominal cavity and perforating cardial and cardiac region which injury directly caused his instantaneous death," which is similar to the information in the aforesaid Rodil case "appellant 'attack and stab PC Lt. Guillermo Masana while the latter was in the performance of his official duties, ..." in which We ruled that "[S]uch an allegation cannot be an adequate substitute for the essential averment to justify a conviction of the complex crime, which necessarily requires the imposition of the maximum period of the penalty prescribed for the graver offense ... " Furthermore, as in the Rodil case, the subject information cannot be cured or validated by the doctrine enunciated in People vs. Balbar (21 SCRA 1119, Nov. 29, 1967), because unlike in the latter case, there are no allegations of facts from which it can be implied that the accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority. Moreover, the fact that the crime of assault was established by the evidence of the prosecution without any objection on the part of the accused cannot likewise cure the aforestated defect in the information so as to validly convict the accused thereof; because to do so would be convicting the accused of a crime not properly alleged in the body of the information in violation of his constitutional right to be informed of the nature and cause of the accusation against him. As already stated, the crime of assault was definitely demonstrated by the evidence of the People because it showed that the victim (Sgt. Juan Desilos Jr.) while maintaining peace and order at the exit gate of the Plaza Magallanes where the crime took place, was in complete PC uniform at the time the accused attacked him by reason of the latter's act of pushing the accused and his co-accused so as to prevent them from entering the plaza through its exit gate. In the aforesaid Rodil case, it was stated that "[L]ike a qualifying circumstance, such knowledge must be expressly and specifically averred in the information; otherwise, in the absence of such allegation, the required knowledge, like a qualifying circumstance, although proven, would only be appreciated as aggravating circumstance. Applying this principle, the attack on the victim, who was known to the appellant as a peace officer, could be considered only as aggravated by being 'in contempt or with insult to the public authorities' (par. 2, Art. XIV, Revised Penal Code) or as an insult or in disregard of the respect due the offended party on account of his rank ..." (par. 3, Art. XIV, Revised Penal Code). Appellant can therefore be convicted only of the crime of homicide, aggravated by the circumstance of "in contempt or with insult to the public authorities" (par. 2, Art. XIV, Revised Penal Code), or as an "insult or in disregard of the respect due to the offended party on account of his rank ..." (par. 3, Revised Penal Code).

Page

84

WE stated in the Rodil case, thus:

The term "rank" should be given its plain, ordinary meaning, and as suck refers to a high social position or standing as a grade in the armed forces (Webster's Third New International Dictionary of the English Language Unabridged, p. 1881); or to a graded official standing or social position or station (75 CJS 458); xxx xxx xxx or to a grade or official standing, relative position in civil or social life, or in any scale of comparison, status, grade, including its grade, status or scale of comparison within a position (Vol. 36, Words and Phrases, Permanent Edition, p. 100). xxx xxx xxx As explained by Mr. Justice Mariano Albert, then of the Court of Appeals, those "generally considered of high station in life, on account of their rank (as well as age or sex), deserve to be respected. Therefore, whenever there is a difference in social condition between the offender and the offended party, this aggravating circumstance sometimes is present" (Albert M.A. The Revised Penal Code Annotated, 1946 Ed., p. 109). xxx xxx xxx The aggravating circumstance of contempt of, or insult to, public authority under paragraph 2 of Article 14 of the Revised Penal Code can likewise be appreciated in the case at bar. xxx xxx xxx While it is true that in the case of U.S. vs. Rodriguez, et al. (19 Phil. 150, 157-158), People vs. Siojo(61 Phil. 307, 317), and People vs. Verzo (21 SCRA 1403), this Court ruled that the term public authority refers to a person in authority and that a PC lieutenant or town chief of police is not a public authority but merely an agent of a person in authority; there is need of reexamining such a ruling since it is not justified by the employment of the term public authority in aforesaid paragraph 2 of Article 14 instead of the term person in authority which is specifically used in Articles 148 and 152 of the Revised Penal Code. There is no extended reasoning of the doctrine enunciated in the aforesaid three (3) cases why the phrase public authority should comprehend only persons in authority. The lawmaker could have easily utilized the term "persons in authority" in the aforesaid paragraph 2 of Article 14 in much the same way that it employed the said phrase in Articles 148 and 152. The lawmaker must have intended a different meaning for the term public authority, which may however include, but not limited to, persons in authority. Under the decided cases, a municipal mayor barrio captain, barrio lieutenant or barangay captain is a person in authority or a public authority. Even a public school teacher is now considered a person in authority under CA 578 amending Article 152 of the Revised Penal Code (Sarcepudes vs. People, 90 Phil. 228). So is the town municipal health officer (People vs. Quebral, et al., 73 Phil. 640), as well as a nurse, a municipal councilor or an agent of the Bureau of Internal Revenue (People vs. Yosoya, CA-G.R. No. 8522-R, May 26, 1955; People vs. Reyes, et al., O.G.S. 11 p. 24). The chief of police should therefore be considered a public authority or a person in authority; for he is vested with jurisdiction or authority to maintain peace and order and is specifically duty bound to prosecute and to apprehend violators of the laws and municipal ordinances, more than the aforementioned officials who cannot prosecute and who are not even enjoined to arrest malefactors although specifically mentioned as persons in authority by the decided cases and by Article 152 of the Revised Penal Code as amended by R.A. 1978 of June 22, 1957, The town chief of police heads and supervises the entire police force in the municipality as well as exercises his authority over the entire territory of the municipality, which is patently greater than and includes the school premises or the town clinic or barrio, to which small area the authority or jurisdiction of the teacher, nurse, or barrio lieutenant, respectively, is limited.

Likewise, the guilt of appellant is aggravated by recidivism as he was previously sentenced by final judgment for slight physical injuries. WHEREFORE, APPELLANT RODOLFO REGALA ALIAS RUDY REGALA IS HEREBY FOUND GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF HOMICIDE AGGRAVATED BY RECIDIVISM AND BY CONTEMPT FOR OR INSULT TO A PUBLIC AUTHORITY OR DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON ACCOUNT OF HIS RANK, WITHOUT ANY MITIGATING CIRCUMSTANCE, AND HE IS HEREBY SENTENCED TO SUFFER AN INDETERMINATE TERM OF IMPRISONMENT RANGING FROM TWELVE (12) YEARS OF PRISON MAYOR AS MINIMUM TO TWENTY (20) YEARS OF RECLUSION TEMPORAL AS MAXIMUM: THUS MODIFIED, THE JUDGMENT APPEALED FROM HIS HEREBY AFFIRMED IN ALL OTHER RESPECTS.

Page

85

(21) 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.* [G.R. No. L-33254 & G.R. No. L-33253 January 20, 1978] 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:

Page

86

(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: (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

Page

87

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:

Page

88

(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 him by the lower court became final and executory extinguished his criminal 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). 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 .

Page

89

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

Page

90

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). 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 preaudit 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.

Page

91

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).

Page

92

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). 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

Page

93

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 handcarried 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 camouflage 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

Page

94

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 is 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. 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, L-33254). 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 maximum, 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).

Page

95

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. SO ORDERED.

Page

96

(22) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN MANALO, defendant-appellant. [G.R. No. L-55177 February 27, 1987] FELICIANO, J.: The judgment of the former Circuit Criminal Court of Rizal in Criminal Case No. CCC-VII-2505 finding Ruben Manalo guilty of murder and imposing the death penalty, is before us on automatic review. The record discloses that in the morning of 23 May 1977, appellant Ruben Manalo, a prisoner serving sentence in the National Bilibid Prison, was at the visiting area of the prison waiting for transfer to the San Ramon Penal Colony. Alfredo de la Cruz, Jolly Hilario and Reynaldo Cariso, all convicted prisoners serving their respective sentences, were similarly waiting in the same visiting area for transfer to the same penal colony. While at the visiting area, appellant engaged another convict in a betting game called "honkiang", after which appellant and dela Cruz indulged in speculation concerning their prospective life in the penal colony. During this conversation, appellant attacked dela Cruz with a knife, inflicting two fatal stabwounds on the latter's back. Immediately after the stabbing, appellant voluntarily surrendered to the prison authorities and handed over the fan knife ( balisong) he used in killing dela Cruz. Immediately after the killing and the appellant's surrender, the appellant was investigated by the prison authorities. During this investigation, Ruben Manalo readily admitted verbally having stabbed the victim and nonchalantly advised that the fan knife he used had been bought by him for P25.00 a month ago and had been concealed inside his right rubber shoe and so was not discovered by the prison guard who had searched him before entering the Visiting Shed. The investigation also revealed that the victim was a member of the BCJ ( Batang City Jail gang from prison Dormitory 3D while Ruben Manalo is a member of the Sigue Sigue Sputnik gang from prison Dormitory 2B. These two gangs have had a serious, ongoing feud for a long time, winch had recently been aggravated by the fatal stabbing of a member of the Sigue-Sigue Sputnik gang by members of the BCJ gang. On 6 February 1978, Ruben Manalo was charged with murder in an information which read as follows:
That on or about the 23rd day of May 1977 in the municipality of Muntinlupa, and within the jurisdiction of this Honorable Court, the abovenamed accused, who is a convict confined and serving his sentence in the new Bilibid Prison by virtue of final judgment rendered against him by courts of competent jurisdiction, with intent to kill, evident premeditation and treachery did then and there willfully, unlawfully and feloniously attack, assault and stab with a bladed weapon one Alfredo dela Cruz, also a convict, thereby inflicting upon him stab wounds on the vital parts of his body which directly caused his death. Contrary to law, with the aggravating circumstance of quasi -recidivism,

the accused having committed the offense while serving

his sentence in the New Bilibid Prison. Upon arraignment, and with the assistance of counsel, appellant pleaded guilty. The trial court nonetheless ordered the mandatory presentation of evidence. After trial, in a decision dated 7 December 1978, the trial court concluded that the killing of Alfredo dela Cruz by Ruben Manalo had been attended by treachery and evident premeditation and aggravated by quasi-recidivism. The dispositive portion of the judgment read:
DAHIL SA GAYON, dahil sa kusang loob na pag-amin nang kasalanan nang nasasakdal sa paglabag sa Artikulo 248 nang Binagong Kodigo Penal na naayon sa sakdal, napatunayan nang Hukumang ito na siya ay nagkasala at siya ay hinahatulan nang parusang KAMATAYAN. Pagbabayaran din niya ang mga tagapagmana nang nasawi nang halagang P12,000.00 at P10,000.00 bayad pinsalang moral, P10,000.00 bayad pinsalang di dapat pamarisan at ang gastos ng usaping ito. IPINAGUUTOS.

In his brief, appellant does not question the finding of the trial court that he had killed Alfredo dela Cruz. Instead, the appellant assigns two distinct errors: (1) the proceedings in the trial court were null and void since certain constitutional rights of the appellant had been disregarded therein; and (2) the trial court erred in finding that the killing of dela Cruz had been attended by the qualifying circumstances of evident premeditation and treachery.

Page

97

In respect of the first assigned error, it is the contention of the appellant that he was deprived of his constitutional right to due process, to be presumed innocent until the contrary is proved, to an impartial trial and to counsel, by reason of the lower court's partiality, bias and lack of objectivity during the trial. The appellant urges that since the trial-court was not an impartial tribunal, all the proceedings before it should be set aside as null and void. Appellant maintains that lack of impartiality and of objectivity on the part of the trial judge was clearly shown when he intervened in the cross-examination of Dr. Virgilio Hernale (the physician who had carried out the autopsy of the victim dela Cruz) and of Jolly Hilario both being witnesses for the prosecution. Upon termination of the cross-examination of Dr. Hernale by defense counsel, the trial judge raised the following questions which Dr. Hernale answered in the following manner: COURT Did you find any defense (sic) wounds? A No sir. COURT The wound is located at the back? A Yes sir. COURT You mean to say he was attacked treacherously? A It is possible. COURT He was attacked without giving a chance to defend himself. A It is possible. xxx xxx xxx 1 At the subsequent hearing, during the cross-examination of Jolly Hilario by defense counsel, the trial court intervened once more in the following manner: COURT The fact remains that Alfredo de la Cruz was not armed? A Yes, your Honor. COURT And he was stabbed suddenly by Ruben Manalo? A Yes, your Honor. COURT Alfredo dela Cruz was not able to parry any stab blow by Ruben Manalo? A No, your Honor. xxx xxx xxx COURT To what gang do you belong? A To the Batang City Jail your Honor. COURT Where were you operating before when you were not yet sentenced by the court? A In Manila. COURT In what part of Manila? A In Quiapo, your Honor. COURT And as matter of fact, in your area of operation the enemy of your gang are the Sputniks of which Ruben Manalo is a member? A They were enemies, your Honor. COURT So much so that if you have enemies outside the jail, it follows that you will have enemies inside the prison walls? A Yes, your Honor. COURT So much so that the members of the Sputniks surely the members belonging to the Batang City Jail gang? A Yes, your Honor. COURT And in the same manner, vice versa members of Batang City Jail gang will kill any member of the Sputniks? A Yes. COURT And the mode of killing is by treachery and will not give any chance to the victim to defend himself.? A Yes, your Honor. COURT That is also true to your gang? A Yes, your honor. COURT And each gang usually attacks the weak ones especially so when they have no arms? A Yes, your honor. COURT Proceed.

Page

98

xxx xxx xxx 2 The appellant claims that the above interventions of the trial court show that, at the very outset, the judge had already concluded that appellant was guilty of murder and had resolved to convict him; that the trial court had functioned "both as judge and prosecutor" asking questions of witnesses "calculated to establish treachery, premeditation and motive"; that the questions raised by the trial court were exceptionable ones, being "leading, misleading, caged for opinions or were objectionable on the ground of the witness' incompetence"; and that therefore, appellant "never had a fair chance." 3 We are not persuaded by the appellant's contention. As long ago as 1915, this Court held that:
A severe examination by a trial judge of some of the witnesses for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge in counsel's brief on appeal that he has assisted the prosecution with an evident desire to secure a conviction or that he had intimidated the witness for the defense. We have had occasion to hold (U.S. vs. Hudieres 27 Phil. Rep., 45) that it is not only the right but often times the duty of a trial judge to examine witnesses when it appears to be necessary for the elucidation of the record. Under the system of legal procedure in vogue in this jurisdiction, where the trial court is judge of both the law and the facts, it is oftentimes expedient or necessary in the due and faithful administration of justice for the presiding judge in the exercise of a sound discretion to reexamine a witness in order that his judgment when rendered may rest upon a full and clear understanding of the facts. 4

We must accord to a trial judge reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts and to make the record speak the truth. In such an effort, a judge may examine or cross-examine a witness. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. In the first instance, the Court has pointed out, "the extent to which such examination may be conducted rests in the discretion of the judge, the exercise of which will not be controlled unless his discretion has clearly been abused to the prejudice of either party." 5 In the present case, we do not believe that the trial judge transgressed the permissible limits of judicial inquiry. It appears to us that the judge merely sought to clarify to himself whether or not treachery and evident premeditation had indeed attended the killing of Alfredo dela Cruz, as alleged by the prosecution. All that the questions propounded by the judge indicates to us is that he was not particularly skillful in cross-examination and that he found it difficult to operationalize words which themselves imported conclusions. Finally, we would note that the questions posed by the trial judge, quoted above, did not ultimately impose any prejudice upon the appellant, for reasons that will become clear shortly. The questions raised by the trial judge sought to draw forth answers which did not relate to whether or not the appellant had in fact killed dela Cruz. The appellant had not only entered an intelligent and valid plea of guilty; that he had killed his fellow convict dela Cruz was established by independent and overwhelming evidence. The appellant also claims that he was denied his constitutional right to counsel. The appellant admits that he was assisted by counsel de oficio from the time of arraignment and throughout the trial of the case. Appellant, however, deplores the fact that several different counsel de oficio assisted him during the different hearings held in his case. Atty. Galvan appeared for Manalo at the arraignment and at the second and sixth hearings; Atty. Sardillo assisted him during the first and the third hearings; at the fourth and fifth hearings, Manalo was represented by Atty. Agoot. At the fifth hearing, the appellant claims, the prosecution was already "midstream" in its direct examination of the prosecution witness of whom 27 questions and already been asked, when the prosecution suddenly commented that "I think there is no lawyer for the accused [present]." The trial court forthwith appointed Atty. Agoot there physically present as counsel de oficio (apparently forgetting that he had already been appointed counsel de oficio and had acted as such, at the previous [fourth] hearing) and thereupon proceeded with the trial of the case. Appellant raises the entertaining, if rhetorical question of how ably his counsel de oficio could defend him since they were playing musical chairs hearing after hearing." 6 Thus, the appellant asserts that his right to counsel was "but a sham." that by appointing multiple counsel de oficio the trial court did not effectively provide him with the assistance and protection required by the Constitution. 7 The appellant's argument is novel and interesting but, once more, we are not persuaded that there has here been a deprivation of a constitutional right which requires annulment of all the proceedings before the trial court. We do not believe that the fact that a particular counsel de oficio did not or could not consistently appear in all the hearings of the case, is effectively a denial of the right to counsel, especially so where, as in the instant case, there is no showing that the several appointed counsel de oficio in any way neglected to perform their duties to the appellant and to the trial court and that the defense had suffered in any substantial sense therefrom. Fairness to the several counsel de oficio requires us to note the record which reveals that each of them had conscientiously performed their duties in assisting the appellant and protecting his interest by, for instance, making the necessary objections in a timely manner during the examination of the prosecution witnesses to test their credibility and freedom from bias or evil motive. 8 Contrary to the suggestion of the appellant, Atty. Agoot was not entitled to a recess of two days to prepare to defend the appellant after Atty. Agoot was re-appointed counsel de oficio at the fifth hearing. That lawyer had previously been designated counsel de oficio during the preceding (fourth) hearing. 9 Both the appellant and the court had therefore the right to expect that counsel de oficio was familiar with the facts of the appellant's case and that he had prepared himself for the fifth hearing since his prior appointment as counsel de oficio had not been revoked by the trial court. In point of fact, his designation once more as counsel de

Page

99

oficio during the fifth hearing was totally unnecessary. In any case, Rule 116, Section 5 of the Rules of Court gives the trial judge discretion to shorten or extend the time given to an attorney de oficio to prepare his defense. We turn to the appellant's second assignment of error: that relating to the finding of the lower court that the killing of convict dela Cruz was attended by the qualifying circumstances of evident premeditation and treachery. We note at once that the Solicitor General has concurred with the view taken by the appellant on this point. The lower court had found that dela Cruz was sleeping when attacked by Ruben Manalo (citing, in this connection, the Necropsy Report) 10 and thus, concluded that treachery was present. The Solicitor General, however, concedes that there was absolutely no evidence in the record to show that dela Cruz was stabbed while asleep. 11 The Necropsy Report only described the injuries and the cause of death of the victim. No statement is found there that the victim was asleep at the time of the stabbing. Neither the physician who carried out the autopsy and prepared the Necropsy Report nor the two eyewitnesses to the stabbing had testified that the fatal wounds had been administered while the victim was asleep. On the contrary, both eyewitnesses to the killing explicitly stated that the appellant had stabbed dela Cruz while the two were conversing with each other. 12 Treachery cannot be presumed. It must be proven as conclusively as the act of killing itself. The fact that the fatal wounds were found at the back of the deceased does not, by itself, compel a finding of treachery. Such a finding must be based on some positive proof and not be merely an inference drawn more or less logically from hypothetical facts. This Court has ruled that the suddenness of an attack is not, of itself, enough to constitute treachery when the method of killing does not positively show that the assailant thereby knowingly intended to ensure the accomplishment of his purpose without risk to himself from any defense which the victim might put up13 In other words, to sustain a finding of treachery, the means, method or form of attack must be shown to have been deliberately adopted by the appellant. 14 There was no such showing here. On the contrary, the evidence indicated that the killing of dela Cruz was not pre-planned by the appellant and that the decision to kill was an impulse of the moment. Appellant was in the visiting area with dela Cruz not because the appellant had deliberately planned to be there at the same time as dela Cruz. Rather, appellant was there because he along with others, had been chosen by the prison authorities for transfer to the penal colony. Thus, appellant found himself with dela Cruz that morning by accident and not by design. Further, dela Cruz was stabbed while lying on a table, engaged in a conversation with the appellant. Appellant could not have forseen that dela Cruz would lie down on a table and present such an attractive victim; thus, the resolve to stab him while dela Cruz was in a prone position, must have been taken impulsively. Finally, if the appellant had planned the killing, the probability was that he would not have planned to carry it out in broad daylight while dela Cruz's gangmates and dormitory mates (Hilario and Cariso) were close by. The Solicitor General has also agreed with the appellant that the trial court's finding of evident premeditation was erroneous because of lack of support in the record. The Solicitor General said:
[To show evident premeditation] it is necessary to establish (a) the time when the offender determined to commit the crime, (b) a notorious act manifestly indicating that he has clung to his determination, and (c) a sufficient lapse of time between the determination and the execution, to allow him to reflect upon the consequences of his act. (Padilla, Criminal Law, 1979 ed. p. 449). None of these requisites was proven in the case at bar. The evidence presented at the trial was limited to events that transpired immediately prior, during and after the attack. No one testified on any incident that occurred an hour or more before the attack. Hence, there is no proof on (a) when appellant resolved to kill the victim, (b) what external acts demonstrated that he stuck to his resolution and (c) whether he had sufficient time to reflect upon the consequences of his act. In fact, there is no evidence to show that appellant and de la Cruz knew each other prior to the killing. They belonged to different gangs, were assigned to different brigades and lived in different dormitories. Prosecution witnesses Hilario and Cariso who were gangmates, dorm-mates and close friends of de la Cruz, did not know appellant's name. Thus, it is highly probable that appellant was not even acquainted with de la Cruz and so there was no reason for appellant to resolve before hand to kill de la Cruz. The qualifying circumstance of premeditation may be properly taken into account only when the intention to kill has been planned in the mind of the offender and carefully meditated. It is not enough that it arose at the moment of the aggression, as in the present case. In the absence of clear proof of any circumstance that would qualify as murder the killing of the deceased, we submit that appellant committed no more than homicide. 15

We agree with the Solicitor General. WHEREFORE, the decision of the lower court is modified and Ruben Manalo is found guilty beyond reasonable doubt of the crime of homicide for which, in view of the presence of the special aggravating circumstance of quasi-recidivism under Article 160 of the Revised Penal Code, the correct imposable penalty is reclusion temporal in its maximum period. Applying the Indeterminate Sentence Law, Ruben Manalo is hereby sentenced to an indeterminate penalty of ten (10) years and one (1) day of prision mayor as a minimum and seventeen (17) years, four (4) months and one (1) day of reclusion temporal as a maximum. The civil indemnity due to the heirs of Alfredo dela Cruz is increased to Thirty Thousand Pesos (P30,000.00). The balance of the judgment of the lower court is AFFIRMED. SO ORDERED.

Page

100

RIGHT TO PUBLIC TRIAL (23) 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. [G.R. No. L-30104 July 25, 1973] 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 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 2inside 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, Au gust 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

Page

101

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 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 airconditioned 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

Page

102

place where it was held, his right is deemed waived." 23 The decision referred to, United States v. Mercado, 24 was handed down sixtyeight 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.

Page

103

RIGHT TO MEET WITNESS FACE TO FACE (24) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABUNDIO DE LA CRUZ, ET AL., accused-appellant. [G. R. No. L-33030 August 25, 1983] GUTIERREZ, JR., J.: The case before us on automatic review of a judgment sentencing the appellant to death is an uncommon one. The killing of a prominent lawyer which led to the murder charge took place in 1944 during the Japanese occupation. The original information was filed in 1947. The accused were arrested in 1950. During the preliminary investigation of the three accused in 1951, the appellant and one co accused jumped bail and disappeared. The third co-accused was tried in 1959, almost nine years later. He implicated his two missing co-accused, was found guilty, and was sentenced to life imprisonment. He has since been released on parole. Meanwhile in 1969 or eighteen (18) years after he jumped bail, the appellant was arrested. He was charged in an amended information, tried, and sentenced to DEATH. After a thorough review of the evidence on we are convinced that the accused-appellant was at the scene of the crime during its commission and that, contrary to his protestations, he had something to do with the killing. However, because of unavoidable difficulties or unfortunate lapses on the part of the prosecution, the only evidence directly the incriminating the appellant confession of the convicted earlier happens to be inadmissible against him. We are, therefore, constrained to acquit the accusedappellant and the write finis to the 39-year old killing not because the evidence had adduced subsequent to his recapture 25 years after the crime, fails to overcome the constitutional presumption of innocence that an accused enjoys- The appellant is now more than 70 years old. If the letters to the Court interceding for his release are to be believed, the appellant has led an exemplary life during his incarceration in the national penitentiary. The original information for murder was filed on January 25, 1947 against six (6) accused persons. The information reads: ... The undersigned Provincial Fiscal hereby accuses Abundio de la Cruz, Ladislao Tayo, Tomas Tating, Francisco Tapar, Eriberto Cenon and Eufemia Litong of the crime of Murder, committed as follows: That on or about April 10, 1944, in the municipality of Viga, province of Catanduanes, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring together and helping each other, with evident premeditation and with the decided purpose to kill did then and there wilfully, unlawfully and feloniously, assault and attack Pedro Sorreta by beating him to death with blunt instruments, and by throwing afterwards his-corpse into the sea. In the commission of the crime there was present the aggravating circumstance of superior strength. During the preliminary examination, no probable cause was found against Eufemia Litong. This led to the dismissal of the case against her. The case was also dismissed with respect to Tomas Tating on the ground that his testimony was absolutely necessary for the prosecution. With the finding that Francisco Tapar had nothing to do with the commission of the crime, the case was likewise dismissed as to him. The three remaining accused, namely-Abundio de la Cruz, Ladislao Tayo and Eriberto Cenon were arrested on November 29, 1950. Of the three, only Eriberto Cenon remained in the custody of the authorities as the other two posted bail and were subsequently released. The preliminary investigation proper was set on February 2, 1951. Abundio de la Cruz and Ladislao Tayo failed to appear during the investigation. A motion for their arrest and the confiscation of their bail bonds was filed and duly granted by the Justice of the Peace. The case was returned to the Court of First Instance for further proceedings because Abundio de la Cruz and Ladislao Tayo could not be apprehended while Eriberto Cenon had waived his right to Preliminary investigation proper and the Justice of the Peace was of the opinion that the tw other accused had also waived their right by their continued failure to appear.

Page

104

At the separate trial conducted for Eriberto Cenon in 1959 or almost 9 years later, he was found guilty and sentenced to life imprisonment. No appeal having been filed, Cenon commenced serving sentence and during the trial of the appellant was already out. Because of the failure to apprehend Abundio de la Cruz and Ladislao Tayo, the trial court directed that the case be sent to the files without prejudice to its subsequent prosecution when the accused or either of them were apprehended. On December 16, 1968 or almost 1 0 years after the case was achieved and 25 years after the killing, the trial court issued a new order of arrest for both the accused on the information ;hat they were seen somewhere in the province of Quezon. Abundio de la Cruz was subsequently arrested on September, 1969. As to Ladislao Tayo, he has remained at large. After the arrest of Abundio de la Cruz, an amended information was filed against him on May 12, 1970. The amended information reads: The undersigned accuses ABUNDIO DE LA CRUZ and ,LADISLAO TAYO of the crime of MURDER, committed as follows: That on or about April 10, 1944, in the Municipality of Viga, province of Catanduanes, Philippines and within the jurisdiction of this Honorable Court, the said accused the conspiring together and mutually aiding one another with treachery and evident premeditation and with deliberate intent to take the life of Pedro Sorreta, did then and there willfully, unlawfully and feloniously assault and attack the said Pedro Sorreta by beating him to death with blunt instruments, and by throwing afterwards his corpse into the sea. That in the commission of the crane the following aggravating circumstances were present: l. Advantage was taken of superior strength or means were employed to weaken the defense; 2. Committed at night nine and in uninhabited place to facilitate commission of the offense; 3. Offense was deliberately augmented by causing other wrong not necessary for its commission. (Record, p. 329). On May 15, 1970, Abundio de la Cruz was arraigned and pleaded not guilty. The facts found by the trial court, which led to the court's conviction of the accused Abundio de la Cruz are as follows: The victim, Pedro Sorreta, was a practising attorney and formerly a member of the Provincial Board of Albay. In 1944, during the Japanese occupation, he lived with his family in the barrio of Tinago of the Municipality of Viga, Catanduanes. At the tune of the incident his eldest son, Cenon Sorreta, now a practising attorney, was barely eighteen years old. His wife, Carmen, had just given birth to a child a few days before. The case was actively prosecuted by Cenon Sorreta in collaboration with the Second Assistant Provincial Fiscal. The substance of the testimony of mother and son shows that in the afternoon of April 10, 1944, they were in their house in Tinago, Viga, when Francisco Tapar came up the house. He had come to consult Atty. Pedro Sorreta about the wife of Ladislao Tayo- It seemed that the wife had become unfaithful to her husband while he was out of Catanduanes but the paramour had been killed recently and Tapar was asking Atty. Sorreta's advise as to whether Ladislao Tayo and his wife-should be reconciled. Atty. Sorreta advised that since they were husband and wife they should have together again. While they were talking there were three men who could be seen through the window at some distance from the house. Atty. Sorreta inquired from Tapar who they were and Tapar answered that they were the men who killed the paramour of the wife of Ladislao Tayo in the barrio of Guinsaanan. Atty. Sorreta asked Tapar about their names and Tapar Identified them as Ladislao Tayo, Eriberto Cenon and Abundio de la Cruz. Then Tapar casually asked Atty. Sorreta where he was going that afternoon and Atty. Sorreta said that he was going to the sea to fish. Tapar then asked permission to leave and Atty. Sorreta prepared to go out on his fishing trip. Mrs. Sorreta and Cenon saw Tapar go with the three men when he left. According to Canon, his father loved to fish in Tinago Bay in the afternoon on clear days and usually came back at night. On April 10, 1944. after he saw him off at the-seashore he never returned They waited for him until morning. At about nine to ton o'clock when he had not yet returned he sent their houseboy to the sitio of Minaabat to look for him in their farm but he was not there. They searched the beach and found the boat afloat about fifty meters from the

Page

105

beach of Lusadan near the opening of Tinago Bay. They reported the matter to Barrio Lt. Ugalde and Councilor Tomas Tating who promised to help. They continued the search with Pio de Leon until April 12 but Atty. Sorreta could not be found. At about eight o'clock in the morning of April 13, Ignacio Ted, a resident of Lusadan came to their house and informed them that his father's body was seen being dashed by the waves to the beach in Lusadan The information wall relayed to the barrio lieutenant and they went to the place and found Atty. Sorreta dead. Cenon noted that his nape was black. When his body was turned upward he saw his teeth shattered and the chin swollen. There was hematoma on the right forehead and breast. The body was in a state of decomposition. Because of his condition Cenon agreed to have it brought to Tinago for apeedy burial. It was taken to Tinago by a boat to the house of a relative, Pio de Loon, and was buried in the cemetery in the barrio. Cenon and his sister Elisa attended the burial. Their mother could not attend because she had just delivered a child on the seventh. Because of the condition of the times no death certificate was issued then. After the burial a novena was held in the house of the every night. On the third night the three men, Abundio de la Cruz Ladislao Tayo and Eriberto Cenon barged into the house Eriberto Cenon went directly to Cenon and poked a gun at his breast and asked him to surrender his gun. Ladislao Tayo stood guard at the door while Abundio de la Cruz went made his mother's room. protested that there was no firearm in the house. Abundio de la Cruz ordered the house ransacked but found no weapon. He searched their suit cases and clothes looking for a firearm and when he could not find any they went away. The next day, at about six o'clock in the morning, the three came back. Abundio de la Cruz asked Mrs. Sorreta to sign a statement that the family would not complain about the death of Atty. Sorreta and if she would not sign they would be liquidated. Mrs. Sorreta fainted and they left the house. At about nine o' clock of the same day their houseboy and told Cenon that the three men wanted to see him at the house of his cousin-in-law, Teofilo Cipriano, about a hundred meters from their house. Cenon had no choice because they were armed and he went to the house of Teofilo. When he arrived the three men were in the house with another man who turned out to be Juan Tobtob All of them were armed. Abundio de la Cruz asked Cenon to sign a statement that he would not complain about the death of his father or he and his family would be liquidated. Abundio de la Cruz, gave him a piece of paper and pencil and dictated the statement in Bicol dialect. Cenon signed it and gave it to the accused. After having signed the statement they allowed him to leave the house and go home. According to Cenon, while he was writing the statement in Teofilo Cipriano's house, Abundio de la Cruz kept on berating his father that he was a land grabber. He was then barely eighteen years old. After the signing of the statement the family of Atty. Sorreta stayed in Tinago for about two weeks. In the meantime, their relatives kept on informing Cenon that he would be the next victfin. So, on a midnight, he rode on a sailboat with a certain Joaquin Abundo and sailed to Baras where he stayed with his grandmother. His mother and sister followed later. The testimony of Mrs. Carmen Sorreta and Cenon Sorreta is corroborated by Miguela de Leon, a niece of Atty. Sorreta, who is well acquainted with Abundio de la Cruz. In the afternoon of April 10, 1944, Miguela went to Tinago to visit Mrs. Sorreta who had just delivered. When she went up the house she passed by Abundio de la Cruz, Ladislao Tayo and Eriberto Cenon, who, according to Abundio, was a Constabulary soldier. They were in front of Atty. Sorreta's house. It was about four o'clock in the afternoon. Inside the house was Francisco Tapar who was talking with Atty. Sorreta. The whole family was in the house. Miguela did not stay long in the house and left while Tapar was still there. At about six o'clock on the same afternoon she went out to look for fish and when she passed by the house of Eufemia Litong, she saw Abundio de la Cruz, Ladislao Tayo and Eriberto Cenon in the house. They were drinking tuba. On the following day, April 11, at about four o'clock in the morning, while Eufemia and her husband were malting salt near their house the three accused passed by. Later at around nine to ten o'clock Mrs. Sorreta sent word that Atty. Sorreta had not returned from his fishing trip and she and her husband went to Barrio Lt. Ugalde and asked him to help in holding for the attorney. they did not find him. On April 13, 1944, Ignacio Ted came and informed them that the body was seen in Lusadan being dashed to the shore by the waves. They went-to the barrio lieutenant and they sailed to Lusadan and found body.here was hematoma on the forehead, on the chest and on the nape. Atty. had no more teeth. The body war, taken to Tinago for burial. Miguela saw the three accused again on the 16th day of April, the third day of the novena for the deceased in his house. On that evening the three men barged into the house while they were saying their prayers. Eriberto Cenon poked a gun at Cenon Sorreta and Ladislao Tayo stood at the door blocking the way. Abundio de la Cruz ransacked the house looking for a gun but found nothing and they left. The evidence also shows that at about six o'clock in the afternoon of April 10, 1944, Isabelo Ugalde was going to the chapel in Tinago to ring the bell for the angelus. On the way he I met Francisco Tapar who invited him to go to

Page

106

the sitio of Jolo to drink tuba. Ugalde acceded and they went to Jolo to the house of Higino Litong. Tapar went up the house while he stayed on the ground. Abundio de la Cruz was in the house and he heard him asking Tapar who his companion was and Tapar said that it was he Ugalde. Abundio de la Cruz said that he should come up and he went up the house. Ladislao Tayo and Eriberto Cenon were also in the house. They drank tuba together. After drinking all of them went down the house. Then Abundio said to Ugalde, 'Belo, you are being dominated here in Tinago by a great man.' Ugalde asked De la Cruz who the great man was and he answered. 'Do not make any noise, we wfll finish him tonight.' Ugalde prodded Abundio to tell him who was the great man and Abundio said it was Sorreta. After a while Ugalde left the group because the procession for the 'Aurora' would begin. Ugalde subsequently learned of the disappearance of Atty. Sorreta and when he was eventually found dead in the beach of Lusadan Ugalde never informed anybody of his conversation with Abundio de la Cruz because of fear and the condition of the times. About two weeks later, however, he told Mrs. Sorreta about it because Abundio de la Cruz was no longer in Tinago. The testimony of Heracleo Tatad, another prosecution witness also shows that at about two o'clock in the afternoon of April 10, 1944, he was in his house after having arrived from fishing in the sitio of Sabang. When he arrived he came upon Abundio de la Cruz and Ladislao Tayo and a third man unknown to him in the yard of his house. Later, Dorotea Tamilosa who was popularly known as 'Nana' arrived. After Dorotea arrived he noted a commotion and he observed her g the sign of the cross and muttering 'Jesus, Jesus.'He asked her what was the matter and Dorotea said that they were going to kill Atty. Sorreta. He asked her who were the people who were going to kill Atty. Sorreta and she answered that they were Abundio de la Cruz, and Ladislao Tayo. Tatad asked Dorotea to can them and she called Abundio de la Cruz who went up the house. Tatad advised Abundio de la Cruz not to pursue his plan but the accused answered, "Don't make noise," and Tatad did not say anything anymore. (Rollo, pp. 14-21; Decision, pp. 11-18). Another factor which the trial court considered as indicative of the guilt of the accused was his having jumped bail in 1951. The lower court said: There is one last detail that points strongly to the guilt of the accused and that is flight. When he jumped bail in 1951 with Ladislao Tayo, in spite of so many orders of arrest and the search for him by the police authorities Abundio de la Cruz was never apprehended. It would be the height of naivete for the Court, to believe even for a moment, that Abundio de la Cruz was all the time in the places he claimed he was in his testimony bearing his true name and yet was never apprehended by the police authorities who were in search for him. And it is equally unthinkable and absurd to believe that he reported regularly to his bondsmen when he left Libmanan after he was bailed that they could have left him unmolested in spite of the forfeiture and confiscation of the amount of his bond to the tune of P20,000.00 which was no mean sum in those days when the peso was the peso. His flight and continued disappearance for a period of almost twenty years could only mean one thing-he knew he was guilty of a heinous offense and was mortally afraid to face trial. But somehow destiny finally caught up with him and the law must take its course. Accused-appellant's version of the facts places him in another province when the crime was committed. According to the appellant: On the evening of April 10, 1944, or thereabout, Pedro Sorreta, a resident of barrio Tinago, Municipality of Viga, Catanduanes, met his death. He was out alone at sea fishing that night. He never returned alive. On the morning of April 13, 1944, his body was found at Lusadan beach presumably having been dashed ashore by sea waves. No autopsy was taken. The barrio lieutenant, Catalino Ugalde, who examined the body, attested: "I did not find anything in his body except that his body was already swelling and have a foul smell already. He was faced down and with both arms extended sidewards and his head was submerged. I examined physically the body. First I took off the clothing and let him face upward, took off the pants and found nothing" (Pp. 195-196, t.s.n.). At the time of the incident, the accused-appellant, Abundio de la Cruz was in Malbogon, Libmanan, Camarines Sur, with his family.

On November 24, 1970, a decision was rendered convicting the accused of the crime of MURDER and sentencing him to suffer the penalty of DEATH. The dispositive portion of the decision reads:

Page

107

The prosecution would want it believed, however, that his death was due to a premeditated criminal act of the accused-appellant in conspiracy with others.

WHEREFORE, in view of the foregoing considerations, the Court hereby finds the accused Abundio de la Cruz, GUILTY beyond reasonable doubt of the crime of Murder under Article 248 of the Revised Penal Code as charged in the amended information. Four aggravating circumstances are alleged in the amended information, to wit: (1) Advantage was taken of superior strength or means were employed to weaken the defense; (2) That the offense was committed during night time; (3) That it was committed in an uninhabited place; (4) That the offense was deliberately augmented by causing other wrong not necessary for its commission. The first three appear to be fully sustained by the evidence. Abundio de la Cruz, Ladislao Tayo and Eriberto Cenon ganged up upon the attorney who was alone and overwhelmed him by sheer strength of numbers. He was ambushed in the open sea and the conspirators sought the cover of darkness to perpetrate the crime with impunity. Upon the other hand, the injuries suffered by the deceased are merely the natural result of the aggression upon his person and it does not appear that any of them was inflicted in order to deliberately augment his suffering or that it was not necessary in order to consummate the offense. With three aggravating circumstances and no mitigating, the mandatory penalty is DEATH. Accordingly, the Court hereby sentences the accused, Abundio de la Cruz, to suffer the supreme penalty of DEATH. The accused is further condemned to indemnify the heirs of the deceased in the sum of TWENTY THOUSAND (P20,000.00) PESOS and the costs. The defendant-appellant assigned the following alleged errors of the lower court in his brief: First Assignment of Error THE LOWER COURT ERRED IN FINDING THE ACCUSED APPELLANT GUILTY OF MURDER BEYOND A REASONABLE DOUBT ON THE BASIS OF THE EVIDENCE PRESENTED BY THE PROSECUTION. Second Assignment of Error HE LOWER COURT ERRED IN CONCLUDING THAT CONSPIRACY HAD BEEN ESTABLISHED AND IN CONSIDERING THE CONFESSION EXH. 'C' EXECUTED BY ONE ERIBERTO CENON WHO WAS NOT PUT TO THE WITNESS STAND. Third Assignment of Error THE LOWER COURT ERRED IN FINDING THAT THE LATE PEDRO SORRETA'S DEATH WAS DUE TO FOUL PLAY. Fourt Assignment of Error THE LOWER COURT ERRED IN FINDING THAT MOTIVE WAS SUFFICIENTLY ESTABLISHED. Fifth Assignment of Error THE LOWER COURT ERRED IN IMPOSING THE DEATH PENALTY. Analyzing the assigned errors and the corresponding arguments in.-support thereof, the common ground of error refers to the admissibility and the weight of the evidence presented by the prosecution as well as the defense.

Page

108

We agree with the trial court that the appellant's defense of alibi deserves scant consideration. According to the appellant, his parents left Barrio Tina , go in Viga, Catanduanes in 1936 or 1937 for Libmanan, Camarines Sur, and he went with them. He claimed that he never returned to Catanduanes until he became an accused and was tried for the case. The appellant's evidence showed that he was called to army duty during the 1940 general mobilization, that he served in Bataan and returned to Libmanan sometime after its fall in 1942. He was in barrio Malbogon in 1943 and 1944. The appellant alleges that hecould not have been in Catanduanes in April 10, 1944 when Atty. Pedro Sorreta was killed because he was in Camarines Sur. He could not leave Malbogon as the Japanese had zoned the place. The evidence clearly shows that the appellant was in Tinago Viga, Catanduanes in the period before and after April 10, 1944 walking around with an armed group and threatening people. To use the words of the lower court, Abundio de la Cruz and his group of armed men were flushed with the arrogance of power which was common among roving guerrilla bands during the Japanese time. The testimonies given by Heracleo Tatad, Isabelo Ugalde, Cenon Sorreta, and Mrs. Carmen Vda. de Sorreta show that Abundio de la Cruz was clearly and positively Identified, not only as having been in Tinago, Viga, Catanduanes at the time but also as being associated with the killing. According to the testimony of Heracleo Tatad, on April 10, 1944 at 2:00 o'clock in the afternoon, he came across the persons of Abundio de la Cruz, Ladislao Tayo and an unidentified person in front of his house. When Dorotea Tamilloso arrived, Tatad observed that she was frantic about something. Tatad asked Tamilloso what happened and the latter told him that Abundio de la Cruz and his companions were planning to kill Attorney Sorreta. Upon hearing this, Tatad summoned Abundio de la Cruz to advise the latter not to pursue his criminal design against the lawyer. The reply of Abundio de la Cruz was "Don't make noise." (T.S.N., pp. 4851). The gist of the testimony of Isabelo Ugalde was to the effect that on April 10, 1944 he drank tuba with Abundio de la Cruz, Ladislao Tayo, Eriberto Cenon and Francisco Tapar During their conversations, Abundio de la Cruz revealed to Isabelo Ugalde his plan to eliminate Attorney Sorreta. (T.S.N., pp. 1012) The testimonies of Cenon Sorreta and Mrs. Carmen Vda. de Sorreta narrate that Abundio de la Cruz, Ladislao Tayo, and Eriberto Cenon were with Francisco Tapar when the latter went to the house of Attorney Sorreta on the afternoon of April 10, 1944 to seek advice regarding the marital problem between Ladislao Tayo and his wife who had a paramour. During the conversation, Attorney Sorreta asked Francisco Tapar for the Identity of his companions. Tapar named them as Abundio de la Cruz, Ladislao Tayo, and Eriberto Cenon and Identified them as the killers of the paramour of Ladislao Tayo's wife. After hearing the advice of Attorney Sorreta, Tapar asked the lawyer where he was going that afternoon. Attorney Sorreta replied that he will go fishing. True to his word, Attorney Sorreta went fishing that afternoon of April 10, 1944 but he never returned alive. A search was conducted but the lawyer could not be found. On April 13, 1944 at about 8:00 o'clock in the morning, Cenon Sorreta was informed that Attorney Sorreta's dead body was found in the beach of Lusadan Inspecting the cadaver, Cenon Sorreta saw that it had a black nape, swollen chin, shattered teeth and hematoma on the right foreheard and breast. Due to the condition of the body, it was buried speedily. On the third night of the novena held for the repose of the soul of the deceased lawyer, Abundio de la Cruz, Ladislao Tayo and Eriberto Cenon forced their way into the house of the deceased allegedly looking for a gun. The house was ransacked and suitcases turned upside down to find one, while a gun was poked on the breast of Cenon Sorreta. At about 6:00 o'clock the following morning, they came back demanding that Mrs. Carmen Vda. de Sorreta sign a statement that she would not report the matter to the authorities or else they would be killed. The widow was not able to sign because she fainted of fear. On the same day at about 9:00 o'clock in the morning, Cenon Sorreta was ordered by Abundio de la Cruz, Ladislao Tayo and Eriberto Cenon to come and see them at the house of a certain Teofilo Cipriano. For fear of his life, Cenon Sorreta obeyed and was forced to sign a statement in Bicol to the effect that he will not report the death of his father to the authorities otherwise he will be killed together with his family. Almost everyday afterwards, the family of Cenon Sorreta received messages that they were going to be killed next thereby prompting them to leave Tinago, Viga, Catanduanes. (T.S.N., pp. 111-115; T.S.N., pp. 65-69) The testimony introduced by the prosecution is not the kind of clear, positive, and convincing evidence required by the serious nature of the capital offense charged. Heracleo Tatad was told by Dorotea Tamilloso of the plan to kill Atty. Sorreta. Later, Tatad asked Abundio de la Cruz not to pursue the planned killing. The response of Abundio de la Cruz was "Don't make noise." The prosecution failed to show who Tatad was, for him to fearlessly counsel the leader of an armed group who had just killed a paramour of a married woman and who were planning to kill a big man in their barrio. The testimony of Ugalde shows Abundio de la Cruz confiding to him that the great man Sorreta would be killed that night. After hearing this information, Ugalde went home for a procession. The testimonies of Cenon Sorreta and his mother are more convincing but the inculpatory portions refer to the acts of Abundio de la Cruz after the killing. The crime was committed on a dark night while

Page

109

both the victim and the culprits were out at sea. Not one of those who testified witnessed the commission of the crime. And yet one of the eyewitnesses, himself a participant could have been put on the witness stand had the necessary efforts been taken. The only evidence directly showing how Sorreta was killed and which narrates the participation of the appellant in the crime is the December 4, 1950 confession of a co-accused Eriberto Cenon, subscribed and sworn to before the Justice of the Peace of Virac, Catanduanes. The statement has 17 paragraphs but paragraphs 6 to 10 are sufficient for purposes of this decision. They are: xxx xxx xxx 6. That around 10:00 o'clock in the evening of April 9, 1944 we were served by Eufemia Litong of our supper having good chow with chicken soup. After our meal I went down because I was perspiring and Abundio de la Cruz and Francisco Tapar were talking of a certain boat which Abundio de la Cruz requested. After three minutes Francisco Tapar went down and left the house of Eufemia Litong After ten minutes had passed Francisco Tapar went back and approached Abundio de la Cruz, and Abundio de la Cruz told us that we will be going home to Sicmil, Viga, Catanduanes. I answered him how we could go home when it is very dark and he answered in return that we will go on sailing. Then we proceeded to the seashore where we found the boat ready with two (2) paddles and we boarded the boat. 7. That while we were in the boat Abundio de la Cruz was the so-called pilot of the boat and I took the other paddle and sat in the middle of the boat, so that Ladislao Tayo was in front. From Tinago we dropped in the house of Cipriano Belda at sitio Bayangan, Viga that was about 11:00 o'clock in the evening of April 9, 1944 and we prepared local cigarette for our smoke. After that we proceeded on our way home. In the course of our sailing when we reached the point of Bayangan, we saw someone sailing, and Abundio de la Cruz went direct to the one sailing. When we reached that man sailing, Abundio de la Cruz told us to stop the boat and we did as he alleged that he will talk with that man. We went ahead of the other boat to block it. Abundio de la Cruz immediately pinned down the right balance of the said boat causing tilting (sic) it. At that instance Atty, Sorreta asked why they are doing that way, and he asked further "If I have done anything wrong we can talk that over" and Abundio de la Cruz replied '"What more talking and this is our time now." The boat of Atty. Sorreta was caught by the wave and he was thrown on the sea and Abundio de la Cruz strike Atty. Sorreta with his paddle hitting the latter on the head and at the second time he was hit on the neck and the boat was filled with water. After the two blows given by Abundio de la Cruz to Atty. Sorreta he told us what we are doing more, if we want to be the next, holding his pistol on the right hand and the paddle on the left hand, After that Ladislao Tayo and myself jumped on the sea, then Abundio de la Cruz returned his pistol on his belt and took hold of the paddle again. While we were still on the sea swimming he gave another blow to Atty. Sorreta hitting the latter somewhere on; the arm and the breast. Then Ladislao Tayo and myself proceeded swimming to the boat of Atty. Sorreta with theorder of Abundio de la Cruz to help kill Atty. Soreta. When we reached Atty. Sorreta I found out that he was already dead. Then Abundio de la Cruz said these words (NABAYAD KA MAN GUIRARAY KAN DINAYA MONG DAGA, ASIN MAKI HAPON). )You have at last paid for the land you grabbed, pro-Japanese.) [English translation suplied.] Then Abundio de la Cruz turned the boat bound for Tinago, and I asked him why we will go back to Tinago, and he answered that he has forgotten something which is very important. When we were near the shore I asked him who was that man whom he killed he answered me that he is Atty. Sorreta. Abundio de la Cruz further states that we will not be included in that incident as he will take all the risk on what had happened. Then we reached the shore of Tinago, having two small fish which I took from the boat of Atty. Sorreta which was floating on the sea. 8. That at about 1:00 o'clock in the morning of 10 April 1944 we went to the house of Eufemia Litong together with abundio de la Cruz and Ladislao Tayo and Abundio de la Cruz requested Eufemia Litong to give us light as we will change our clothes we being wet. Then we went up the house and Abundio de la Cruz were conversing in English with Eufemia Litong and I proceeded to the kitchen to change my wet clothes. After I changed my clothes I passed by Eufemia Litong gave smile to Abunido de la Cruz. Then she served food for us that morning. After that I made local cigarette and lighted it and go to sleep. 9. In the morning after eating our breakfast at about 7:00 o'clock of April 10, 1944, Francisco Tapar came to the house near the yard of Eufemia Litong and talked with Ladislao Tayo, and at last Tayo requested Tapar to fetch his wife in Mayngaway, Calolbon, Catanduanes. Then Abundio de la Cruz and Eufemia Litong shaked hands with Francisco Tapar, and I shaked hands with Francisco Tapar. After that Abundio de la Cruz, Ladislao Tayo and myself proceeded to Sicmil by walking arriving thereat at about 1:00 o'clock in the afternoon, April 10, 1944 and we stopped at the house of Mauricio Tud (father-in-law of Abundio de la Cruz). At the same time we were served of our dinner in that house. After the dinner I told Ladislao Tayo to proceed with me to Gigmoto, Baras, Catanduanes. With the information received by Ladislao Tayo that his wife was already in Bayangan, Viga, Catanduanes, he refuse to go with me to Gigmoto. Then I proceeded along leaving Abundio de la Cruz and Ladislaw Tayo in Sicmil.

Page

110

10. That after four or five days had elapsed Abudnio de la Cruz and Ladislao Tayo went to Gigmoto, Baras, Catanduanes at about 5:00 o;clock in the afternoon 14 or 15 April 1944. While they were they held a dance in the house of Cefirino Santillan. In the course of the dance Abundio de la Cruz intervened in a certain trouble of the youngsters on the bailarianas and settled it amicably. At the same time he gave a short talk to the invited guests of the dance starting the following: 'I AM AN AUTHORITY OF THE BARRIO, AND FURTHER STATES THAT EVEN BIGWIGS LIKE ATTORNEY SORRETA CAN BE CONTROLLED BY ME. HOW MUCH MORE FOR YOU PEOPLE OF THIS BARRIO.' Of course the barrio folks gave respect to Abundio de la Cruz having the knowledge that he is really an authority. xxx xxx xxx It the above confession were merely corroborative of other facts which tends to establish the guilt of the appellant, then it could be admitted against him. (People v. Puesca, 87 SCRA 130). It could also be allowed as circumstanmtial evidence to show the probability that the appellant actually participated in the commission of the crime. (People v. Lumahang, 94 Phil. 1048). The confession of Eriberto Cenon, however, is not simply corroborative but is the principal evidence against Abundio de la Cruz. It was not utilized by the lower court merely as circumstantial evidence. Consequently, we apply the rule that extra-judicial statements of an accused implicating a co-accused cannot be used against the latter unless repeated in open court. (People v. Izon, 104 Phil. 690; People v. Serrano, 105 Phil. 531; and People v. Fraga, 109 Phil. 241.) The right to confrontation of witnesses found in Section 19, Article IV, Constitution is violated. We stated in People v. Valerio (112 SCRA 208, 230): ... A written extrajudicial statement of a person who was ot presented as a witness to be cross-examined on his supposed statement is not admissible in evidence (People vs. Clores, 100 SCRA 227, 1980 under the principle of "res inter alios alteri nocere non debet." (People vs. Alegre, 94 SCRA 109, 1979) As this Court, speaking through Chief Justice Fernando, held in People vs. Lavarias, 23 SCRA 1301 (1968). The decision appealed from would thus predicate a conviction on affidavits executed by two alleged eyewitnesses who thereafter repudiated the same. Independently of the motives, that must have occasioned such a change of heart, the conviction of appellant cannot be sustained. The constitutional rights guaranteed the accused stands in the way of the affirmance of the appealed decision. It is elementary that in all criminal prosecutions, there is a presumptio of innocence in his favor and he has the right to the confrontation of witnesses. As far as the appellant is concerned, the confession which helped send Eriberto Cenon to jail for life is hearsey. (People v. Peruelo, 105 SCRA 226; People v. Obedoza, 105 SCRA 694.) If the prosectuion exerted enough efforts, it could probably have brought Eriberto Cenon to the trial to be examined. Upon the information that Cenon was serving sentence in the Davao Penal Colony, a continuance of the hearing was granted to allow him to be fetched. It was later ascertained that during the trial of the accused-appellant, Eriberto Cenon was already released on parole. Still this would not have prevented his whereabouts from being ascdertained through the parole office. As it is, the Court in a 1970 trial chose to rely on a confession taken twenty (20) years earlier in 1950 without giving the accused opportunity to question the author about its contents. We, therefore, find the extrajudicial statement inadmissibility, the other evidence linking the accused-appellant to the killing becomes inadequate to establish his guilt. WHEREFORE, the judgment of the lower court finding Abundio de la Cruz guilty of murder and sentencing him to suffer the supreme penalty of DEATH is hereby REVERSED and SET ASIDE. The accused-appellant is ACQUITTED for insufficiency of the evidence to establish his guilt beyond reasonable doubt. He is ordered immediately release from detention, unless otherwise held for some other lawful cause. SO ORDERED.

Page

111

(25) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO RAMOS y GAERLAN, defendant-appellant. [G.R. No. L-59318 May 16, 1983] GUERRERO, J.: This is an automatic review of the decision of the Court of First Instance of Manila finding the accused Rogelio Ramos y Gaerlan in Criminal Case No. 61029 guilty beyond reasonable doubt of violation of Section 4, Article II, in relation to Section 2(i), Article I of the Republic Act No. 6425, as amended by P.D. No. 44 and further amended by P.D. No. 1675, and imposing upon him the penalty of reclusion perpetua. There is no dispute about the facts of this case. At about 10:00 o'clock in the evening of May 3. 1981, while P/Lt. E. Mediavillo and P/Sgt. A. Linga were on routine patrol along Taft Avenue, they had seen and observed one MALCON OLEVERE y NAPA, acting suspiciously near the corner of Estrada Street. 1 The police officers, after Identifying themselves, stopped and frisked the suspect and found in his possession dried marijuana leaves. 2 The police officers thereafter placed Malcon Olevere under arrest. Upon investigation, suspect Olevere declared that he bought the recovered marijuana leaves from one ROGELIO RAMOS y GAERLAN, alias "Balanchoy". 3 The following day, May 4, 1981, at about 12:00 o'clock noon, a police team with suspect Malcon Olevere y Napa proceeded to the residence of appellant Rogelio Ramos y Gaerlan in 2366 Singalong, Malate, Manila and arrested him. The police operatives immediately brought appellant to the Drugs Enforcement Section Western Police Department Headquarters for investigation. During the custodial investigation, suspect Malcon Olevere executed a written sworn statement implicating the accused-appellant Rogelio Ramos as the source of the marijuana leaves. 4 The accused, after having been duly apprised of his constitutional rights, verbally admitted before Lt. E. Mediavillo and Sgt. A. Linga the commission of the offense charged. He likewise admitted that he sold to Malcon Olevere the marijuana leaves for P10.00. 5 On May 22, 1981, upon arraignment, the accused-appellant Ramos entered a plea of not guilty to the information filed by assistant fiscal Antonio J. Ballena which states: That on or about May 4, 1981, in the City of Manila, Philippines, the said accused, not being authorized by law to sell, deliver, give away to another or distribute any prohibited drug, did then and there willfully and unlawfully sell or offer for sale and deliver dried marijuana leaves, which is a prohibited drug. Contrary to law. 6 At the trial, the prosecution presented three witnesses to wit: Patrolman Jaime Cruz, a police investigator, Patrolman Agapito Linga, a police agent, and Felisa Vequilla, an NBI forensic chemist. Patrolman Cruz testified that on May 5, 1981, he investigated and took down the sworn statement of one Malcon Olevere who disclosed that the accused-appellant Ramos was the source of the marijuana leaves. Patrolman Cruz also testified that he prepared the Booking Sheet and Arrest Report of the appellant Ramos and the corresponding Crime Report. 7 Patrolman Agapito Linga declared on the witness stand that Lt. Mediavilla arrested appellant Ramos because Malcon Olevere declared that the appellant sold to him the confiscated marijuana leaves. 8 The third witness, Felisa Vequilla, a forensic chemist, affirmed that after conducting a dangerous drug test, the leaves confiscated from Malcon Olevere are positive for marijuana. 9 The prosecution offered the following as documentary evidence: 10 Exhibit "A" The Booking Sheet and Arrest Report of accused Rogelio Ramos prepared by witness Patrolman Cruz which was offered as part of his testimony; Exhibit "B" Crime Report dated May 6, 1981 also prepared by the witness Patrolman Cruz; Exhibit "B-1" second page of Exhibit "B' Exhibit "C" Sworn Statement of Malcon Olevere y Napa;

Page

112

Exhibit "C-1" The bracketed portions of Exhibit "C" stating among others that it was Rogelio Ramos herein accused who furnished Malcon Olevere the marijuana leaves; Exhibit "D-1" marijuana leaves examined; Exhibit "E" the envelope containing the marijuana leaves which was confiscated from Malcon Olevere. After the trial, the Court of First Instance of Manila (now the Regional Trial Court) found the accused-appellant Ramos guilty beyond reasonable doubt of the crime charged in view of the verbal admission given by the appellant himself and the evidence offered and admitted in court. The dispositive portion of its judgment reads: WHEREFORE, accused ROGELIO RAMOS y GAERLAN is hereby found guilty beyond reasonable doubt of a violation of Section 4, Article II in relation to Section 2(i), Article I Republic Act No. 6425, as amended by PD 44 and further amended by PD 1675 as charged in the present information, for selling subject prohibited drugs (marijuana leaves) without any lawful authority and is hereby sentenced to suffer the penalty of reclusion perpetua (life imprisonment); to pay a fine of Twenty Thousand (P20,000.00) pesos, without any subsidiary imprisonment in case of insolvency; and to pay the costs. Let the accused be given full credit of the entire period of his preventive imprisonment. Subject marijuana leaves (Exhibit E) are confiscated, to be destroyed by the Dangerous Drugs Board pursuant to law. SO ORDERED. 11 The case is now before Us for automatic review. Accused-appellant submits before this Honorable Court the following errors: 12 I That the court erred in finding the accused guilty of violation of Section 4 Article II of Republic Act No. 6425 otherwise known as the Dangerous Drugs Act of 1972, as amended (Selling-Pushing). II That the court erred in its findings both in question of law and fact in convicting the accused notwithstanding the failure of the prosecution to adduce the quantum of evidence necessary to establish the guilt of the accused beyond reasonable doubt by failing to present Malcon Olevere y Napa, the person who claimed that it was the therein accused who allegedly sold the marijuana leaves. III That the constitutional rights of the accused, more particularly the right to meet the witness against him face to face and to cross-examination e him has been violated. IV That the court has acted with grave abuse of discretion amounting to a denial of due process of law. The principal issue in this case is whether there is competent and/or admissible evidence in the record to justify the conviction of the accused-appellant Ramos. We find petitioner's case meritorious. The lower court erred in admitting as evidence the written sworn affidavit of Malcon Olevere. It can be gleaned from the records that Malcon Olevere executed the written sworn statement declaring that appellant Ramos sold to him the marijuana leaves for P10.00. This piece of evidence is a mere scrap of paper because Malcon Olevere was not produced in court for cross-examination. An affidavit being takenex-parte is often incomplete and inaccurate. 13 Such kind of evidence is considered hearsay. 14 The constitutional right to meet witnesses face to face 15 in order not to deprive persons of their lives and properties without due process of law is well-protected in our jurisprudence. Thus, in People vs. Toledo, 16 We elucidated:

Page

113

Testimony in open court in actual trial cannot be equated with any out-of-court declaration, even when the witness has in fact been confronted already by the defendant. The direct relevance of the trial to the ultimate judgment as to the guilt or innocence of the accused is not present in any other proceeding and is thus a factor that can influence materially the conduct and demeanor of the witness as well as the respective efforts of the counsels of the parties. For the court to admit the sworn statement of Malcon Olevere without giving the adverse party the right to cross-examine him would easily facilitate the fabrication of evidence and the perpetration of fraud. The inadmissibility of this sort of evidence is based, not only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, 17 but also on the commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiant's statements which may either be omitted or misunderstood by the one writing them. 18 The Booking Sheet and the Dangerous Drug Report of chemist Felisa Vequilla which were presented as evidence by the prosecution, established nothing to support the conviction of the appellant herein. For the same reason, that Malcon Olevere was not presented as a witness and insofar as they impute to appellant the commission of the crime charged, the adduced evidence are nothing but hearsay evidence. They cannot be regarded as competent evidence as to the veracity of the contents therein. It is not disputed that the marijuana leaves recovered and tested by witness Vequilla came from Malcon Olevere and not from appellant. It would be absurd and manifestly unjust to conclude that appellant had been selling marijuana stuff just because what were recovered from Olevere were real marijuana. Proof of one does not necessarily prove another. Nowhere can it be found on the record that appellant was caught in possession or in the act of selling the prohibited marijuana leaves. The oral testimonies given by the witnesses for the prosecution prove nothing material and culpable against the accused. As correctly pointed out by the Solicitor General not anyone of the three witnesses presented testified on the basis of their personal knowledge that the appellant sold the marijuana leaves to Malcon Olevere. Under Rule 130, Sec. 30 of the Revised Rules of Court, "a witness can testify only to those facts which he knows of his own knowledge, that is, which are derived from his own perception. ... A witness, therefore, may not testify as to what he merely learned from others, either because he was told or having read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. Since Malcon Olevere was not presented as a witness, the testimonies offered by the witnesses for the prosecution are regarded as hearsay, insofar as they impute to the appellant the commission of the offense charged. The lower court in convicting appellant of the crime charged, Partly relief on the verbal admission made by appellant himself before Lt. Mediavillo and Sgt. Linga during the custodial investigation. Although the records prove that the appellant has been duly apprised of his constitutional rights to silence and to counsel, 19 We are not fully convinced that this apprisal was sufficiently manifested and intelligently understood and accepted by the appellant. This is fatal to the admissibility of appellant's verbal admission. We have repeatedly emphasized that care should be taken in accepting extrajudicial admissions, especially when taken during custodial investigation. In People vs. Caquioa, 20 We ruled: As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right to silence and assure a continuous opportunity to exercise it, the following measures are required. Prior to questioning, the person must be warned that he has a right to remain silent, that any statement he does make be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights provided the waiver is made voluntarily, knowingly and intelligently. If however, he indicates in any manner and at any stage of the prosecution that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. Again, the constitutional rights of the accused to silence and to counsel is fortified in the very recent case of Morales and Moncupa vs. Enrile 21 where this Court said: At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means - by telephone if possible - or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the

Page

114

person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shag not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. In the case at bar, appellant has only finished Grade VI, 22 which means that he is not adequately educated to understand fairly and fully the significance of his constitutional rights to silence and to counsel. As mandated, it is not enough that the police investigator merely informs him of his constitutional rights to silence and to counsel, and then taking his statements down, the interrogating officer must have patience in explaining these rights to him. The records do not reveal that these requirements have been fully complied with, nor was there any showing that appellant has been represented by counsel during custodial investigation. In consonance with Section 20 of the Bill of Rights which states that "any confession obtained in violation of this section shall be inadmissible in evidence," We hold that the verbal admissions of appellant during custodial investigation may not be taken in evidence against him. We hold and rule that the guilt of the accused has not been established beyond reasonable doubt and he is, therefore, entitled to acquittal. WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Court of First Instance of Manila is REVERSED, and appellant is hereby ACQUITTED of the crime charged in the information. No costs. SO ORDERED.

Page

115

(26) ANTONIO MARINAS, ANTONIO MONTANO and GREGORIO RUPISAN petitioners, vs. HON. ANDRES S. SIOCHI, Presiding Judge of the Municipal Court of Pasig, Rizal, VICTORIA LASIN VDA. DE ATIENZA and ROSARIO L. ATIENZA, respondents. [G.R. Nos. L-25707&25753-25754 May 14, 1981} MELENCIO-HERRERA, J.: Before us is a Petition for certiorari with Preliminary injunction seeking to annul the proceedings held in Criminal Cases Nos. 12943 and 12945 for Theft, and Criminal Case No. 12944 for Grave Coercion, before the Municipal Court of Pasig, Rizal; to annul the warrants of arrest issued in the said cases; and to declare as unconstitutional and void Section 5, Rule l l2 of the Rules of Court in so far as it denies the accused the right of notice and opportunity to be heard in the preliminary examination. The present controversy arose out of the issuance by the Municipal Court of Pasig, Rizal, of a Writ of Execution in Civil Case No. 938 for Ejectment, entitled Jose C. Zulueta vs. Gregorio Atienza. On December 13, 1965, petitioner Antonio Marinas, Deputy Sheriff of Rizal, with his co-petitioners Antonio Montano and Gregorio Rupisan enforced said Writ of Execution by levying upon the personal properties and chattels of private respondents Victoria Lasin Vda. de Atienza and] Rosario L. Atienza, and taking out said properties from their (respondents') rented house at #23 General Malvar St., Antonio Village, Pasig, Rizal. Respondents were also ejected from said house. On the same date, respondent Victoria Lasin Vda, de Atienza reported to the police authorities of Pasig that her jewelry worth P590.00 had been taken by petitioners without issuing any receipt therefor, 1 and in connection therewith, she executed a written Statement which was sworn to before Special Counsel Lucila P. Alcoba. 2 On January 28, 1966, respondents re-entered the house they had been ejected from after securing a Court Order for that purpose. Respondent Rosario L. Atienza then discovered that several pieces of her jewelry and other personal items, with a total value of P1,018.00, were missing. She reported the loss to the authorities on February 2, 1966, and her Statement was taken. She subscribed and swore to the same before respondent Municipal Judge Andres S. Siochi. 3 On February 3, 1966, respondents, armed with a Court Order authorizing them to enter the premises of the said house, did so again to get their remaining unlevied properties. They claimed, however, that on the said date petitioners and their companions forcibly compelled them to deliver the unlevied personal properties found therein, hauled said articles into a truck and left. Private respondents reported the incident to the police authorities at Pasig. 4 Victoria Lasin executed a Statement 5 alleging that the personal properties forcibly taken from them by petitioners, amounting to P2,645.00, were not included in the levy. Her son, Tranquilino Atienza, also executed an Affidavit corroborating her declaration. 6 Both Statements were subscribed and sworn to before respondent Judge. On February 7, 1966, two separate charges for Theft, docketed as Criminal Cases Nos. 12943 and 12945, were filed against petitioners and Carlos Quintana before the Municipal Court of Pasig, Rizal, respondent Judge, presiding. 7 A Complaint for Grave Coercion Crime Case No. 12944) was also lodged against petitioners and three Does on the same date. 8 The three Complaints were filed by Lt. Jose S. Lontoc, Chief of the Criminal Investigation Section of the Police Department of Pasig, Rizal, for and on behalf of the Chief of Police. These Complaints contained an annotation on the lower left hand corner reading: "APPROVED AFTER PRELIMINARY EXAMINATION: (SGD) Lucila P. Alcoba, Special Counsel." The Complaints in Criminal Cases Nos. 12943 and 12944 for Theft and Grave Coercion, respectively, were subscribed and sworn to by Lt. Jose S. Lontoc before respondent Judge. The Complaint in Criminal Case No. 12945 for Theft does not show the jurat on its face, but respondents state that it was also attested to by Lt. Lontoc before respondent Judge and that this appears on the dorsal side of the Complaint. On February 8, 1966, warrants for the arrest of petitioners were issued by respondent Judge in all three cases 9 after preliminary examination conducted by him in Criminal Cases Nos. 12943 and 12944, and by Special Counsel Lucila P. Alcoba in Criminal Case No. 12945. Petitioners took exception to the issuance of the warrants of arrest against them and instituted the present Petition raising the following issues: 1wph1.t 1. When Section 87, Republic Act No. 296, as amended by Republic Act No. 3828, provides that when the penalty provided by law does not exceed prision correccional, then the Municipal Judge in the capitals of the provinces shall have "like jurisdiction as the Court of First Instance" to try the offense, does the Municipal Court in such cases follow the procedure for Municipal Courts or that for Courts of First Instance? 2. Is preliminary investigation a part of due process? 3. Can there be due process without the presence of the accused during the preliminary investigation. 10

Page

116

On February 23, 1966, we required respondents to file an Answer, and ordered the issuance of a Writ of Preliminary injunction restraining respondent Judge from enforcing the warrants of arrest issued in Criminal Cases Nos. 12943, 12944 and 12945. Section 87, paragraph 4 of the Judiciary Act of 1948 (R.A. 296), as amended by Republic Acts Nos. 2613 and 3828, provides. 1wph1.t Municipal judges in the capitals of provinces and judges of city courts shall have like jurisdiction as the Court of First Instance to. try parties charged with an offense committed within their respective jurisdiction, in which the penalty provided by law does not exceed prision correccional or imprisonment for not more than six years or fine not exceeding six thousand pesos or both, and in the absence of the district judge, shall have like jurisdiction within the province as the Court of First Instance to hear application for bail. Pursuant to the foregoing provision, both Criminal Cases Nos. 12943 and 12945, for Theft of P590.00 and P1,018.00, respectively, fall under the concurrent jurisdiction of the Municipal Court of Pasig and the Court of First Instance of Rizal, as the penalty provided for said crimes, pursuant to Article 309 (3) of the Revised Penal Code, isprision correccional in its minimum and medium periods. Criminal Case No. 12944 for Grave Coercion, with a penalty, under Article 286 of the Revised Penal Code, of arresto mayor and a fine not exceeding P500.00, also falls under the concurrent jurisdiction of the Municipal Court of Pasig and the Court of First Instance of Rizal. 11 It is petitioners' submission that because of this concurrent jurisdiction, a Municipal Court acts in reality as a Court of First Instance and, consequently, it cannot issue warrants of arrest without first giving the accused a chance to be heard; and that the Information filed should carry a certification under oath that defendant was given a chance to appear in person at said examination and investigation. Continuing, petitioners argue that since Special Counsel Lucila P. Alcoba of the Office of the Provincial Fiscal of Rizal, in Criminal Cases Nos. 12943 and 12945, merely signed the Complaints for these two cases below the notation, "Approved after preliminary examination", her failure to make the certification under oath to the effect that the accused were given a chance to appear in person or by counsel at said examination and investigation, was violative of the due process clause, and, therefore, the warrants of arrest issued thereafter should be quashed. Section 14, Rule 112 of the Rules of Court, relied upon by petitioners, provides: 1wph1.t Section 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in cases cognizable by the Court of First Instance. -Except when an investigation has been conducted by a judge of first instance, justice of the peace or other officer in accordance with the provisions of the preceding sections, no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. lf the accused appears, the investigation shall be conducted in his presence and he shall have the right to be heard, and to cross-examine the complainant and his witnesses. and to adduce evidence in his favor. If he cannot be subpoenaed, or if subpoenaed he does not appear before the fiscal, the investigation shall proceed without him. The fiscal or state attorney shall certify under oath in the information to be filed by him that the defendant was given a chance to appear in person or by counsel at said investigation and examination. On the other hand, respondents contend that the governing proviso is the second paragraph of Section 10, Rule 112, referring to the right of an accused to preliminary. investigation after arrest, reading: "in cases triable in the municipal or city courts. the accused shall not be entitled as a matter of right to a preliminary investigation in accordance with this section" and that this rule applies whether the case is within the exclusive original jurisdiction of the Municipal Court or within its concurrent jurisdiction with the Court of First Instance. The issue of whether or not an accused is entitled to appear and present evidence in a preliminary investigation in cases falling within the concurrent jurisdiction of the Municipal Court and the Court of First Instance has been squarely resolved in the negative by this Court, speaking through Mr. Justice Claudio Teehankee, in the cases ofPeople vs. Abejuela and People vs. Endan, 12 reiterated in the case of Banzon vs. Cabato, 64 SCRA 419 (1975), which decisively held, that even though the offense be one falling within the concurrent jurisdiction of the City Courts and Courts of First Instance, the accused is not entitled as a matter of right to be heard in a preliminary investigation under section 10, Rule 112. The reason is because the case goes to trial already after the arrest of the accused and his delivery to the Court.13 "The ensuing trial on the merits takes the place of preliminary investigation, without needless waste or duplication of time and effort, and a final verdict on the innocence (or guilt) of the accused is thereupon rendered, rather than an inconclusive dismissal of the charge by the fiscal in a preliminary investigation which would not constitute jeopardy." 14 To reiterate

Page

117

and to re-state the rule, therefore, there is no right of preliminary investigation in cases triable by inferior Courts, without distinction as to whether such case be of their exclusive or concurrent jurisdiction. 15 What was conducted by the respondent Judge in these cases is the preliminary examination before the issuance of a warrant of arrest pursuant to section 1, Rule 112. The 1935 Constitution, in section l (3), Article III provides that no warrant shall be issued but upon probable cause to be determined by the Judge after examination of witnesses under oath or affirmation of the complaint and the witnesses he may produce. Conformably thereto, Section 87, paragraph 3, of the Judiciary Act, as amended by Republic Act No. 3828, provides that: before a Municipal Judge may issue a warrant of arrest, the following conditions must first be fulfilled: (1) he must examine the witness or witnesses personally; (2) the examination must be under oath; and (3) the examination must be reduced to writing in the form of searching questions and answers. These requirements have been met in the three criminal cases involved herein. As explained by respondent Judge in his Answer: 1wph1.t Before the warrants of arrest were issued by the respondent Judge in Criminal Cases Nos. 12944 and 12945 (actually 12943 and 12944), he first conducted, on February 8, 1966, the necessary preliminary examination required by Section l of Rule 112 by adopting, as his own questions, and by asking the complainants and their witnesses, the same or Identical questions asked of them by the Investigating Police Officer in their written statements before the said Police Investigator, Annexes "4", "5", and '7' hereof, and thereafter the respondent Judge required them (the complainants and their witnesses) to subscribe before and make oath to him as to the truth of the answers given by them to the Police Investigator as shown by the fact that in said Annexes "4", "5", and "7", the deponents signed their respective names twice, once before the Investigating Police Officer and the second time before the respondent Judge who also required them to take the jurat to the oath, thereby complying to the requirements of Section 87 of the Judiciary Act of 1948, as amended, providing therein that 'no warrant of arrest shall be issued by any justice of the peace in any criminal case filed with him unless he first examines the witness or witnesses personally, and the examination shall be under oath and reduced to writing in the form of searching questions and answers. 16 By "searching questions and answers" is meant: 1wph1.t the term "searching questions and answers" means only, taking into consideration the purpose of the preliminary examination which is to determine 'whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial', such questions as have tendency to show the commission of a crime and the perpetrator thereof. What would be searching questions would depend on what is sought to be inquired into, such as: the nature of the offense, the date, time, and place of its commission, the possible motives for its commission the subject, his age, education, status, financial and social circumstances, his attitude toward the investigation, social attitudes, opportunities to commit the offense; the victim, his age, status, family responsibilities, financial and social circumstances, characteristics, etc. The points that are the subject of inquiry may differ from case to case. The questions, therefore, must to a great degree depend upon the Judge making the investigation. At any rate, the court a quo found that respondent Judge was satisfied that the questions and answers contained in the sworn statements taken by T-Sgt. Patosa partake of the nature of his searching questions and answers as required by law,' so the respondent Judge adopted them. 17 In the language of this Court in De Mulata vs. Irizari, 61 SCRA 210, 213 (1974): 1wph1.t The requirement that the investigating judge must examine the witnesses personally, which examination shall be under oath and reduced to writing in the form of searching questions and answers, is fulfilled where the municipal judge examined under oath the witnesses by asking questions that were adopted from a previous investigation and considered by him as sufficiently searching and, which questions and the answers thereto, were in writing and sworn to before him prior to his issuance of the order of arrest. In regards Criminal Case No. 12945 for Theft, respondent Judge had this to say: 1wph1.t As regards Criminal Case No. 12943 (actually 12945), although, the respondent Judge did not take the oath of the complainant and her witness on the statement given by them to the Police investigator, Annexes "I" and "2" hereof, Special Counsel Lucile P. Alcoba of the Office of the Provincial Fiscal of Rizal conducted the necessary preliminary examination required by Section l of Rule l l 2 in that, as can be seen from said Annexes 'I' and '2', she asked the same or Identical questions appearing in said annexes to the deponents and adopted the questioning of the Police Investigator as her own interrogations of the complainant and her witness, and thereafter she required them to

Page

118

subscribe their respective names and to swear before her as to the truth of the answers given by them to each and every question appearing in said Annexes '1' and '2' and, although there was no certification, in the exact form required by law, by Special Counsel Lucile P. Alcoba that she conducted the required preliminary examination of the complainant and her witness, it is admitted that her certification in the body of the complaint stating "Approved after preliminary examination", accompanied by the oath taken by her before the respondent Judge after making such certification, is a substantial compliance to the requirements of the law although it can be said that the same is somewhat defective in form. (pp. 46-47, Rollo) xxx xxx xxx From the foregoing explanation, lt may be deduced that respondent Judge was satisfied that the questions and answers in a previous investigation by Special Counsel Alcoba partook of the nature of his searching questions and answers and made them his own. As held in Luna vs. Plaza, supra, the Judiciary Act as amended by Republic Act No. 3828, does not prohibit the Municipal Judge from adopting the questions asked by a previous investigator. For, in the final analysis, whether or not probable cause exists or not depends upon the judgment and discretion of the Judge issuing the warrant of arrest (De Mulata vs. Irizari, supra). In Criminal Case No. 12945 below, respondent Judge had convinced himself that probable cause existed before he issued the warrant of arrest. Under the attendant circumstances, respondent Judge may not be said to have acted arbitrarily. We reiterate, however, the reminder in the Luna case (supra), reading: 1wph1.t We wish to stress, however, that what has been stated in this opinion is certainly not intended to sanction the return to the former practice of municipal judges of simply relying upon affidavits or sworn statements that are made to accompany the complaints that are filed before them, in determining whether there is a probable cause for the issuance of a warrant of arrest. That practice is precisely what is sought to be voided by the amendment of Section 87 (c) of Republic Act. 296 (Judiciary Act of 1948) which requires that before a municipal judge issues a warrant of arrest he should first satisfy himself that there is a probable cause by examining the witnesses personally, and that the examination must be under oath and reduced to writing in the form of searching questions and answers. It is obvious that the purpose of this amendment is to prevent the issuance of a warrant of arrest against a person based simply upon affidavits of witnesses who made, and swore to, their statements before a person or persons other than the judge before whom the criminal complaint is filed. We wish to emphasize strict compliance by municipal or city judges of the provision of Section 87(c) of the Judiciary Act of 1948, as amended by Republic Act 3828, in order to avoid malicious and/or unfounded criminal prosecution of persons. (Luna vs. Plaza, supra p. 323) Petitioners further maintain that Section 5 of Rule 112 of the Rules of Court, in so far as it authorizes the Municipal Court to conduct a preliminary examination before the issuance of a Warrant of Arrest without previous notice to the accused, is unconstitutional as it violates the guarantee of equal protection of the laws, and Section l (15), Art. III of the 1935 Constitution which states, "No person shall be held to answer for a criminal offense without due process of law." Section 5, Rule l l 2 provides: 1wph1.t The municipal, the city judge, the fiscal or the municipal mayor who conducts the preliminary examination as provided in these rules must take under oath, either in the presence or in the absence of the accused, the testimony of the complainant and his witnesses. The testimony of the complainant and his witnesses shall be reduced to writing and signed by them. The preliminary examination referred to is defined, under Section l of Rule 112, as a previous inquiry or examination made before the arrest of the accused by a Judge or officer authorized to conduct the same, with whom a Complaint or Information has been filed imputing the commission of an offense cognizable by the Court of First Instance, for the purpose of determining whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof, so that a warrant of arrest may be issued and the accused held for trial. This section does not refer to the preliminary investigation proper provided for under Section 10, Rule 112, in which the accused is given access to the testimony and evidence presented against him at the preliminary examination, and to present evidence if he so desires. From Section 5 of Rule 112, supra, it is clear that, unlike in the preliminary investigation proper, an accused is not entitled as a matter of right to be present, during the preliminary examination nor to cross-examine the witnesses presented against him before his arrest, the purpose of said examination being merely to determine whether or not there is sufficient reason to issue a warrant of arrest. 18 Section l (3), Article III of the 1935 Constitution commanding the determination of probable cause prior to issuance of a warrant arrest, requires no notice to an accused. A preliminary examination is generally a proceeding ex-parte in which the person charged has no right to participate or be present. The right to confrontation of witnesses neither applies to a preliminary hearing. The reason therefor has been explained thus: 1wph1.t

Page

119

... It can not be seriously contended that an accused person has a right to be present during this stage of the proceedings. To hold that he had such a right and to reverse a judgment of conviction on this ground would have the effect of destroying the very purpose of that part of the criminal law. lt would be against public policy. lt is frequently essential that such investigations be kept secret and that the accused should have no suspicion of any complaint against him, otherwise he might avoid punishment for his crime by escaping before arrest. (U.S. vs. Grant, et al., 18 Phil. 122, 147) ... it is often the only means of discovering the persons who may reasonably be charged with the crime so as to enable the fiscal to prepare his complaint or information, ... (People vs. Badilla, 48 Phil., 719, 731) While section l (3) Art. III of the 1935 Constitution does require, before the issuance of a warrant of arrest, the determination of probable cause by the Judge after examination of witnesses he may produce, the curtailment of the presence of an accused during that preliminary examination entails no infringement of the constitutional right to due process of law nor to equal protection of the laws. Thus, in Manzano vs. Villa, 19 this Court categorically held:1wph1.t The preliminary examination conducted by the municipal judge was essentially a procedural matter and no substantial rights of the accused were violated just because he had not been given an opportunity to examine the witnesses against him. The first stage of the preliminary investigation is 'not the occasion for full and exhaustive presentation of parties' evidence but only such as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof' The proceeding is usually held ex-parte, for under section 5 of Rule 112 all that is required is for the judge conducting such examination to 'take under oath, either in the presence or absence of the accused, the testimony of the complainant and his witnesses,' said testimony to be reduced to writing and signed by them. Hence, the absence of the accused during the preliminary examination was not a denial of due process of law. Neither can the withholding of the right of preliminary investigation from the accused in cases triable by inferior Courts be termed ' an unjust or unfair distinction, as explained in People vs. Abejuela, supra: 1wph1.t ... The loss of time entailed in the conduct of preliminary investigations, with the consequent extension of deprivation of the accused's liberty, in case he fails to post bail, which at times out- lasts the period of the penalty provided by law for the offense, besides the mental anguish suffered in protracted litigations, are eliminated with the assurance of a speedy and expeditious trial for the accused, upon his arraignment (without having to undergo the second stage of the preliminary investigation), and of a prompt verdict on his guilt or innocence. On the other hand, the so-called first stage of preliminary investigation or the preliminary examination, conducted by the duly authorized officer, as borne out by the examination and sworn written statements of the complainants and their witnesses, generally offices to establish the existence of reasonable ground to charge the accused with having committed the offense complained of. Attention should also be called to the fact that neither the 1935 nor the 1973 Constitution requires the holding of a preliminary investigation. lt is settled doctrine that the right hereto is of statutory character and may be invoked only when specifically created by statute. 20 lt is not a fundamental right and may be waived expressly or by silence. 21 In a nutshell, the proceedings in these three criminal cases conformed to law and jurisprudence. But even conceding that petitioners were entitled to a preliminary investigation, the proper forum before which absence thereof should have been raised and ventilated was in the trial Court, not in an appellate Court because the absence of preliminary investigation does not go to the jurisdiction of the Court but merely to the regularity of the proceedings, and bearing in mind that preliminary investigation can be waived, as in fact, it is frequently waived. 22 WHEREFORE, the Petition is hereby denied and the Writ of Preliminary Injunction heretofore issued is hereby lifted. Costs against petitioners. SO ORDERED.

Page

120

COMPULSORY PROCESS (27) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADELINO BARDAJE, defendant-appellant. [G.R. No. L-29271 August 29, 1980] MELENCIO-HERRERA, J.: The accused ADELINO Bardaje in this case, after trial, has been convicted of Forcible Abduction with Rape, and sentenced to death. The case is before us on automatic review. On December 20, 1965, MARCELINA Cuizon lodged the following complaint with the Court of First Instance of Samar against ADELINO and five (5) others 'namely, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas (hereinafter called the FIVE OTHERS): The undersigned complainant, after having been duly sworn to according to law, accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape, committed as follows: That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Lopig, Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, conspiring, confederating together and helping one another, with lewd design, by means of force and intimidation, and at nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina Cuizon from the house of one Norma Fernandez and brought her to a far away place and once there, accused Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her several times while his co-accused were on guard. Contrary to law. (Emphasis supplied). ADELINO was arrested on December 17th, and it was on December 20th, when he signed the alleged confession, Exhibit "C", admitting having kidnapped and molested MARCELINA, 1 which was probably the basis for MARCELINA's complaint, presumably prepared with the help of the Fiscal. What has been noticed is that, in Exhibit "C", ADELINO had mentioned that, besides the FIVE OTHERS, a sixth, Domingo Odal, was with the group when MARCELINA was "kidnapped". There is no indication in the record as to why Domingo Odal was not included in MARCELINA's complaint as one of the accused. The following day, December 21st, the Fiscal's office filed the following Information with the Court: The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape with Illegal Detention committed as follows: That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Crossing, Municipality of Sta. Rita, Province of Samar, Philippines and within the jurisdiction of this Honorable court the above-named accused, conspiring, confederating together and helping one another, with Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd design, by means of force and intimidation, armed with bolos and at nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina Cuizon, a minor of 14 years old, from the house of one Norma Fernandez and brought her to a far away place and once there, accused Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her for several times while his co-accused were on guard. That the commission of the crime the aggravating circumstances that it was committed in an uninhabited place and with the aid of armed men, were present. (Emphasis supplied). It will be noted that the complaint filed directly by MARCELINA with the Court was amended by the Fiscal in the Information. While MARCELINA charged ADELINO only with Rape, the Fiscal charged him with "Rape with Illegal Detention". MARCELINA merely alleged that she was dragged from the house of Norma Fernandez by means of force and intimidation and at nighttime. On the other hand, the Information added that the accused were "armed with bolos". The name of the barrio was also changed from Lopig to Crossing. Lastly, the Information included the allegation that the crime of Rape with Illegal Detention was committed with the "aggravating circumstances that it was committed in an uninhabited place and with the aid of armed men". Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only ADELINO stood trial. The period of the offense was from December 14th to 17th, with the complaint having been filed on December 20th, or barely three (3) days thereafter. With that

Page

121

time frame in mind, an analysis of the Information will show the assumption that only ADELINO was the principal culprit while the FIVE OTHERS were either principals by cooperation or accomplices. Thus, the clause "with" Lucio Malate, Pedro Odal, Mariano Odal, Silvino Odal and Fidel Ansuas" indicates that it was ADELINO who had dragged MARCELINA "with" the help of the FIVE OTHERS. Both the complaint and Information also indicated that ADELINO was the only one who committed the rape, while the FIVE OTHERS were merely accomplices. On June 2, 1966, before the arraignment of ADELINO, the Information was amended to include the allegation that MARCELINA was detained and deprived of liberty for a period of th0ree (3) days, which allegation could be taken into account in connection with Illegal Detention 2 but not in connection with Forcible Abduction. 3 Since according to Exhibit "C", MARCELINA was "kidnapped" at midnight of December 14th, and ADELINO was arrested in the morning of December 17th, or an interval of less than 72 Hours, it could not be correctly pleaded that MARCELINA was deprived of liberty for three (3) days. 4 After the trial was concluded, ADELINO's lawyer submitted his Memorandum on July 26, 1967, in which he specifically argued that "the prosecution did not establish the elements of Rape and Illegal Detention as prescribed by Articles 335 and 267 of the Revised Penal Code." It was only in the Memorandum of the Fiscal, dated July 27, 1967, when the position was taken that the crime which should be imputed to ADELINO is Rape with Forcible Abduction. The prosecution's Memorandum stated: Although the information is for Rape with Illegal Detention instead of Rape with Forcible Abduction, yet from the body of the information it could be clearly gleaned that the elements of abduction are sufficiently alleged therein and hence the accused can be convicted thereunder (People vs. Emiliano Javete, CA 01956-57-CR April 7, 1964 (821965). The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible Abduction with Rape with the aggravating circumstances of dwelling and aid of armed men, and sentenced him to death. The version of complainant MARCELINA Cuizon, 14 years of age, is that in December, 1965, she and her mother were living in the house of her aunt, Sofia Fernandez, at Barrio Crossing, Sta. Rita, Samar, where she worked as a beautician. At 7:00 o'clock in the evening of December 14, 1965 while she was then eating supper, ADELINO, whom she knew when they were "still small", and who was her classmate in Grade II (1960), accompanied by the FIVE OTHERS, entered the house and began drinking "sho hoc tong" which they brought along. After the liquor had been fully consumed, Silvino Odal broke the kerosene lamp causing complete darkness. She then ran to the room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and Adriano Odal, followed her, tried to extricate her from her mother's embrace and dragged the two of them to the sala. Pedro Odal choked the mother's neck thereby loosening her hold on the daughter and the four males, two of whom were armed with bolos, forced her downstairs and by holding and dragging her, brought her to the mountain about two kilometers from Barrio Crossing. That was about 12 midnight. On the way, ADELINO slapped her rendering her unconscious. She regained consciousness in a hut, with ADELINO holding her hands, and removing her panty. She bit and kicked him. Despite her struggle, ADELINO succeeded in having sexual intercourse with her while his other companions stayed outside on guard. Under cross-examination, MARCELINA declared that she did not know who owned the hut and that it was just a one-room affair where a woman and two small children lived; that she and Appellant slept in that same room as the woman, while the FIVE OTHERS slept near the kitchen. 5 At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE OTHERS brought her to another mountain, 6 kilometers farther, arriving there past twelve o'clock noon at the house of one called Ceferino (also called Cipriano) who lived there with his family. She was kept in one room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas, still armed with bolos, drinking and guarding her. In the evening, ADELINO had another sexual intercourse with her even though she bit and kicked him and shouted for help which was to no avail as all present were relatives of ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita (daughter of Ceferino) the next day, because ADELINO threatened to kill her if she did not. Her curling paraphernalia was taken by Adriano Odal, upon ADELINO's instructions, from Norma Fernandez (her cousin) who gave the equipment as she (Norma) was also threatened. MARCELINA and her "captors" stayed in Ceferino's house for two days. In the morning of December 17, two soldiers with her father, Alejo Cuizon, arrived. The soldiers apprehended ADELINO while the FIVE OTHERS jumped down the window and fled. Upon her father, she embraced him and cried. They all returned to Barrio Crossing. She and her mother, Maria Fernandez, then went to Catbalogan, where she filed a complaint at the Fiscal's Office on December 20, 1965 and submitted to a medical examination at the Samar Provincial Hospital. When cross-examined, Complainant admitted that Ceferino, his wife. and seven children were living in the same hut where she was taken the second time, which hut was about waist high from the ground, consisted of one room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the room and the sala was a wall of split bamboos so that noise inside the room could be heard clearly from the other side. 6

Page

122

Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared that he examined MARCELINA on December 20, 1965 and issued a Medical Certificate with the following findings: 1. No evidence of external injuries around the vulva or any part of the body. 2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock. 3. Vagina easily admits two fingers. 4. Vaginal smear negative for spermatozoa 7 Explaining the "old healed laceration", the doctor stated that laceration may have been caused by possible sexual intercourse or other factors, and if it were intercourse, he estimated that it could have occured " say, two weeks or one month" or possibly more. 8 For his part, ADELINO, aged 18, admitted having had carnal knowledge of MARCELINA but denied having raped her. He claims that they eloped on December 14 to 17, 1965 as previously planned, they having been sweethearts since November 12, 1964. As such, they used to date in Tacloban and "anything goes". MARCELINA's family used to have a house in Barrio Crossing but now MARCELINA just stays in the house of her aunt, Sofia, which is about five houses away from theirs. In the evening of December 14, 1965, while Sofia, MARCELINA's mother and others were eating, MARCELINA handed him a bag and beauty culture equipment through the window, went downstairs, after which the two of them walked to the mountains, to Ceferino Armada's house. Ceferino was a cousin of ADELINO's mother. He and MARCELINA slept in the bedroom with 18-year old Narita, Ceferino's daughter. While in that hut, food was brought to them by his sister, Nenita. MARCELINA curled Narita's hair the next day. In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by MARCELINA's father, Alejo Cuizon, apprehended him for having kidnapped MARCELINA. The latter ran to him and embraced him and said she was to blame. notwithstanding, he was boxed by the soldiers as instructed by MARCELINA's father and taken to Maulong PC Headquarters for questioning. During the investigation, he was boxed and kicked and was forced to sign a statement implicating the FIVE OTHERS as his companions even if untrue. He did not know who attested to his statement as one Sgt. Gacelos took the document elsewhere. Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was allegedly forcibly brought the second time, corroborated that portion of ADELINO's testimony regarding their stay in his house adding that MARCELINA and ADELINO had told him that they had eloped; that MARCELINA even offered to curl his daughter's hair (Narita's and Concepcion's), and helped in house chores and in the threshing of palay, while ADELINO helped in carrying palay because it was rainy. The trial Court found the prosecutors version of the incident more worthy of credence stating that Complainant had no improper motive to implicate ADELINO in such a detestable crime as Rape. On the basis of the evidence, testimonial and documentary, we find that the guilt of ADELINO has not been established beyond reasonable doubt. In crimes against chastity, the conviction or acquittal of an accused depends almost entirely on the credibility of a complainant's testimony since by the intrinsic nature of those crimes they usually involve only two persons the complainant and the accused. The offended party's testimony, therefore, must be subjected to thorough scrutiny for a determination of its veracity beyond reasonable doubt. In the instant case, we find MARCELINA's charge that she was forcibly abducted and afterwards raped by ADELINO in conspiracy with FIVE OTHERS highly dubious and inherently improbable. To start with, according to the medical findings, "no evidence of external injuries was found around the vulva or any part of the body" of Complainant, a fact which is strange, indeed, considering that Complainant was allegedly "dragged" slapped" into unconsciousness, "wrestled" with, and criminally abused. Physical evidence is of the highest order and speaks more eloquently than an witnesses put together. We are also faced with the medical finding of "old healed lacerations" in the hymen which, according to the testimony of the examining physician would have occurred two weeks or even one month before if said lacerations had been caused by sexual intercourse. This expert opinion bolsters the defense that MARCELINA and ADELINO had previous amorous relations at the same time that it casts serious doubts on the charge of intercourse by force and intimidation. Secondly, by Complainant's own admission, the first hut she was taken to was a small one-room affair occupied by a woman and two small children. Her charge, therefore, that she was ravished in that same room is highly improbable and contrary to human experience.

Page

123

Thirdly, from her own lips, Complainant testified that the second hut where she was taken, that of Ceferino Armada, consisted of a small room separated from the sala by a wall of split bamboos. Further, that Ceferino with his wife and seven children all lived therein. It challenges human credulity that she could have been sexually abused with so many within hearing and distance. It is unbelievable, too, that under those circumstances the FIVE OTHERS could have stood guard outside, armed with bolos and drinking, while ADELINO allegedly took advantage of her. If rape were, indeed, their malevolent intent, they would, in all probability, have taken turns in abusing her. That they did not, indicates that there was, indeed, some special relationship between MARCELINA and ADELINO. Furthermore, with people around, and the hut constructed as it was, it would have been an easy matter for MARCELINA to have shouted and cried for help. Surely, the old man Ceferino, his wife and/or his children could not have been insensible to her outcries notwithstanding their relationship to ADELINO. The aphorism still rings true that evidence to be believed must not only come from the mouth of a credible witness but must be credible in itself. Additionally, Complainant admits that she even curled the hair of Narita, one of Ceferino's daughters, a fact inconsistent with her allegation of "captivity". That she was threatened with death if she did not accede to such an inconsequential request defies credulity. The livelihood is that, as the defense maintains, MARCELINA was not forcibly abducted but that she and ADELINO had, in fact, eloped and that she had brought her beauty culture paraphernalia with her, or, that she herself had sent for them from her cousin Norma Fernandez voluntarily and not under threat from ADELINO. The totality of the foregoing circumstances count with such great weight and significance that they lend an aura of improbability and reasonable doubt to the allegation that MARCELINA had been "kidnapped" or "illegally detained" and that when she and ADELINO engaged in sexual intercourse, it was because of force or intimidation exercised upon her. They are circumstances that were overlooked by the trial Court and justify a reversal of its finding of guilt as an exception to the established rule that the findings of fact of a trial Judge based on the relative credibility of witnesses are entitled to great respect and will not be disturbed by appellate Courts. This case also constitutes an exception to the general belief that a young girl would not expose herself to the ordeal of public trial if she were not motivated solely by a desire to have the culprit who had ravished and shamed her placed behind bars. As we view it, MARCELINA was confronted with a paradoxical situation as a daughter of relative tender age who could not shamefacedly admit to her parents that she had eloped and voluntarily submitted to sexual intercourse, since that elopement must have met with righteous indignation on the part of her parents. As a result, MARCELINA was faced with no other choice but to charge ADELINO with rape or incur the ire of her parents and social disrepute from a small community. In respect of the alleged confession of ADELINO, suffice it to re-state that "an extrajudicial confession made by an accused shag not be sufficient ground for conviction unless corroborated by evidence of corpus delicti. 9 Corpus delicti is proved when the evidence on record shows that the crime prosecuted had been committed. That proof has not been met in the case at bar, the evidence establishing more of an elopement rather than kidnapping or illegal detention or forcible abduction, and much less rape. Moreover, ADELINO, aged 18, was by himself when being investigated by soldiers, 10without benefit of counsel nor of anyone to advise him of his rights. Aside from his declaration that Ws confession was obtained through maltreatment and violence, 11 it was also vitiated by a procedural irregularity testified to by no less than prosecution witness Sgt. Pedro Gacelos to the effect that he and room after he presented the statement to the Clerk of Court, Mr. Rojas. 12 There is reason to believe, therefore that the so called confession was attested without ADELINO's presence so that the latter cannot be said to have duly subscribed and sworn to it. It should also be noted that throughout the hearings before the trial Court, it was assumed that ADELINO was being held responsible for the complex crime of Rape with Illegal Detention. While it is true that an accused can be punished for a crime described by the facts alleged in tile Information despite a wrong designation of the crime in the preamble of the Information, 13 yet, in capital cases, it should be desirable that, whenever a discrepancy is noted between the designation of the crime made by the Fiscal and the crime described by the facts pleaded in his Information. The lower Court should call attention of the accused to the discrepancy, so that the accused may be fully apprised of the nature and cause of the accusation against him. This was not done in regards to ADELINO who all the time was under the impression that he was being tried for Rape with Illegal Detention, and not for Forcible Abduction with Rape. If ADELINO had known that he was being tried for Forcible Abduction with Rape, he may have changed the strategy or tactics of his defense. Not that it could be said he would have done so; but he should have been advised he had the right, and given the opportunity, to do so. Again, one of the rights of an accused is "to have compulsory process issued to secure the attendance of witnesses on his behalf. 14 ADELINO had stated that, while MARCELINA was in the house of Ceferino Armada, she curled the hair of Narita. one of the latter's children, as well as the hair of other girls in the vicinity. ADELINO wanted to have Narita testify on his behalf, and a subpoena had been issued to her. But instead of taking effective steps to have Narita brought to Court, the lower court gave responsibility for Narita's attendance to the defense, expressly stating that, if the defense was not able to bring her to the Court, her testimony will be dispensed with. The record shows:

Page

124

ATTY. BOHOL I appear as counsel for the accused. Up to now, Your Honor, the witnesses we have been expecting have not yet arrived. This representation, with the consent of the Clerk of Court have wired the Chief of Police of Sta. Rita, Samar to bring Ceferino Armada and Narita Armada tomorrow for the hearing, continuation of this case for those persons mentioned to testify, your Honor, for the accused. We pray, Your Honor, that we be given time to hear from the Chief of Police to bring those persons tomorrow, Your Honor. COURT What will be the nature of the testimonies of those witnesses. xxx xxx xxx COURT How about the other girl? ATTY. BOHOL Narita Armada will substantially be corroborative, Your Honor. COURT Suppose the two witnesses do not arrive tomorrow, for which this case is set also? ATTY. BOHOL If we receive information and find that those witnesses could really not come for this case, Your Honor, I will be constrained to submit the case for decision based on the testimony of the accused. However, Your Honor, if it will be all right with the Honorable Court and we find that there is hope that within this week Ceferino Armada could come here, in view of the distance, I pray before the Honorable Court that we be given time within this week to present Ceferino Armada, and upon his failure, submit the case for decision COURT The Court will not allow that anymore, anyway this case is set for tomorrow. The Court wail grant the postponement today on condition that any witness not presented tomorrow will be considered waived Afterall as you have manifest, 4 their testimonies will be corroborative. xxx xxx xxx COURT What I mean is that you should have taken the necessary precaution for the attendance of your witness today considering that there is a subpoena for the witnesses.ORDER - for the reason that accused have no more witnesses to present today, the trial of this case is hereby Postponed for tomorrow, July 26, 1967 at 8:30 A.M., with the warning that witnesses not presented during that day shall be considered waived. 15 Considering that this case involved a prosecution for a capital offense, the lower Court acted precipitously in not having Narita brought to Court, by ordering her arrest if necessary ADELINO was deprived of his right "to have compulsory process issued to secure the attendance of witnesses on his behalf."

Page

125

Crucial questions should also have been asked by the trial Court of witnesses. MARCELINA testified before the lower Court on December 1, 1966. On December 12, 1966, P Gacelos, the PC Sgt. who investigated the complaint against ADELINO, testified: Q. Was that investigation of M Cuizon reduced to writing? A. Yes, Sir. 16 It would have been advisable if the lower Court had right then and there asked for the production of the written statement of MARCELINA. The medical report, Exhibit "B", implied that MARCELINA could have had sexual intercourse previous to December 14th. On the other hand, ADELINO had testified that he and MARCELINA used to go together to Tacloban, and while there several times, "we had sexual intercourse because she likes it." 17 Considering the possible infliction of the death penalty on ADELINO, the lower Court could have asked MARCELINA if she had had sexual intercourse prior to December 14th and, if so, if it was with ADELINO. Further, there was possibility that ADELINO and MARCELINA had really been sweethearts. The lower Court could have asked MARCELINA if she realized that, charging ADELINO with Rape with Illegal Detention, the latter could be sentenced to death. If that had been explained to her clearly by the lower Court, she might then have admitted that she was neither raped nor "kidnapped" nor illegally detained. MARCELINA could had been examined on the two matters mentioned above, with the Court excluding the public from the hearing under the provisions of Rule 119, Section 14. MARCELINA might have testified without feeling the pressure of her relatives or other persons, if such pressure had in fact existed. It may not be amiss to state then that just as in pleas of guilty where a grave offense is charged trial Judges have been enjoined to refrain from accepting them with alacrity but to be extra solicitous in seeing to it that an accused fully understands the import of his plea, so also, in prosecutions for capital offenses, it behooves the trial Courts to exercise greater care in safeguarding the rights of an accused. The trial Judge should also take a more active role by means of searching questions in the examination of witnesses for the ascertaintment of the truth and credibility of their testimonies so that any judgment of conviction imposing the supreme penalty may rest on firm and unequivocal grounds. The life and liberty of an individual demand no less. WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the death penalty, is reversed and the appellant, Adelino Bardaje, acquitted of the crime with which he is charged. His immediate release is ordered unless lie is held on other charges. Costs de oficio. SO ORDERED.

Page

126

(28) HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. [G.R. No. 121234 August 23, 1995] MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. [G.R. No. 121245 August 23, 1995] ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274,respondents. [G.R. No. 121297 August 23, 1995] PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola;8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation;

Page

127

(e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rapekilling of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit.

Page

128

I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semiblonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. 24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without

Page

129

resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a coconspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime ( see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the

Page

130

nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a

Page

131

small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, " Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige ." When he put the phone down, Biong told her, " Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, " Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako ." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo " to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, " Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car.

Page

132

On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Page

133

Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx

Page

134

The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certaintyof guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:

Page

135

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents " on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence " on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his " Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned . If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:

Page

136

xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program . The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed.

Page

137

Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a nonbailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation.

Page

138

In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.

Page

139

It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED.

Page

140

SECTION 15 (1) NO FULL TXT Caunca vs. Salazar [82 Phil 851; GR No.L-2690] (2) EFREN C. MONCUPA, petitioner, vs. JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR, FERNANDO GOROSPE, AND JOSE CASTRO,respondents. [G.R. No. L-63345 January 30, 1986] GUTIERREZ, JR., J.: As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778, 790), this Court ruled: A prime specification of al application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. ... This latitudinarian scope of the writ of habeas-corpus has, in law, remained undiminished up to the present. The respondents' contention that the petition has become moot and academic must necessarily be denied. Efren C. Moncupa may have been released from his detention cell. The restraints attached to his temporary release, however, preclude freedom of action and under the Villavicencio v. Lukban rule warrant this Court's inquiry into the nature of his involuntary restraint and our relieving him of such restraints as may be illegal. Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982 at about 10:50 P.M., at the corner of D. Street and Quezon Avenue, Quezon City. Moncupa D. Tuazon was brought to MIG-15 Camp Bago Bantay, Quezon City where he was detained. On April 23, 1982, on the allegation that he was a National Democratic Front (NDF) staff member, a Presidential Commitment Order (PCO) was issued against him and eight (8) other persons. After two separate investigations, conducted first, by Lieutenant Colonel Gerardo Lantoria, Jr., Chief of Task Force Makabansa Investigation Group and second, by Investigating Fiscal Amado Costales of Quezon City, it was ascertained that the petitioner was not a member of any subversive organization. Both investigators recommended the prosecution of the petitioner only for illegal possession of firearms and illegal possession of subversive documents under Presidential Decree No. 33. Consequently, two separate informations were filed against the petitioner, one, for illegal possession of firearms before the Court of First Instance of Rizal and the other for violation of P.D. 33 before the City Court of Quezon City. Against the other accused, however, the cases filed were for violation of P.D. 885 as amended. Significantly, the petitioner was excluded from the charge under the Revised Anti-Subversion Law. During the pendency of this petition, it is significant that his arraignment and further proceedings have not been pursued. And yet, the petitioner's motions for bail were denied by the lower court. Hence, the petitioner filed the instant petition. The respondents, in their return of the writ justified the validity of petitioner's detention on the ground that the privilege of the writ had been suspended as to the petitioner. However, on August 30, 1983, the respondents filed a motion to dismiss stating that on May 11, 1983, the petitioner was temporarily released from detention on orders of the Minister temporary of National Defense with the approval of the President. The respondents stated. "Since the petitioner is free and no longer under the custody of the respondents, the present petition for habeas corpus may be deemed moot and academic as in similar cases. The issue to be resolved is whether or not the instant petition has become moot and academic in view of the petitioner's temporary release. It is to be noted that attached to the petitioner's temporary release are restrictions imposed on him. These are: 1) His freedom of movement is curtailed by the condition that petitioner gets the approval of respondents for any travel outside Metro Manila. 2) His liberty of abode is restricted because prior approval of respondents is also required in case petitioner wants to change his place of residence.

Page

141

3) His freedom of speech is muffled by the prohibition that he should not "participate in any interview conducted by any local or foreign mass media representatives nor give any press release or information that is inimical to the interest of national security." 4) He is required to report regularly to respondents or their representatives. The petitioner argues that although admittedly his temporary release is an improvement upon his actual detention, the restrictions imposed by the respondents constitute an involuntary and illegal restraint on his freedom. The petitioner stresses that his temporary release did not render the instant petitioner moot and academic but that "it merely shifted the inquiry from the legality of his actual detention to the legality of the conditions imposed by the respondents." We agree with the petitioner. The reservation of the military in the form of restrictions attached to the temporary release of the petitioner constitute restraints on the liberty of Mr. Moncupa. Such restrictions limit the freedom of movement of the petitioner. It is not physical restraint alone which is inquired into by the writ of habeas corpus. In Villavicencio v. Lukban, the women who had been illegally seized and transported against their will to Davao were no longer under any official restraint. Unlike petitioner Moncupa, they were free to change their domicile without asking for official permission. Indeed, some of them managed to return to Manila. Yet, the Court condemned the involuntary restraints caused by the official action, fined the Mayor of Manila and expressed the hope that its "decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from Megal encroachment." In the light of the above ruling, the present petition for habeas corpus has not become moot and academic. Other precedents for such a conclusion are not wanting. The decision in Caunca v. Salazar (82 Phil. 851) states: An employment agency, regardless of the amount it may advance to a prospective employee or maid, has absolutely no power to curtail her freedom of movement. The fact that no physical force has been exerted to keep her in the house of the respondent does not make less real the deprivation of her personal freedom of movement, freedom to transfer from one place to another, from to choose one's residence. Freedom may be lost due to external moral compulsion, to founded or groundless fear, to erroneous belief in the existence of the will. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to the protection of courts of justice as much as the individual who is illigally deprived of liberty by deprived or physical coercion. In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled: Although the release in the custody of the Deputy Minister did not signify that petitioners could once again enjoy their full freedom, the application could have been dismissed, as it could be withdrawn by the parties themselves. That is a purely voluntary act. When the hearing was held on September 7, 1978, it turned out that counsel for petitioner Bonifacio V. Tupaz could have academic in a hasty manner when he set forth the above allegations in his manifestation of August 30, 1978, for Attorney Jose C. Espinas, who appeared for petitioners, while conceding that there was such a release from confinement, also alleged that it was conditioned on their restricting their activities as labor union leaders to the premises of the Trade Unions of the Philippines and ABSOLUTE Services, presumably in Macaraig as well as the Ministry of labor. As the voting was to take place in the business firm in Bataan, the acts set would nullify whatever efforts they could have exerted. To that extent, and with the prohibition against their going to Bataan, the restraint on liberty was undeniable. If so, the moot and academic character of the petition was far from clear. More recently, we had occasion to rule squarely on whether or not a temporary release from detention renders the petition for writ of habeas corpus moot and academic. As in this case of Moncupa, the petitioners in Toyoto, et al v. Hon. Fidel Ramos, et al, G.R. No. 69270, October 15, 1985, were temporarily released from detention. The respondents filed a motion to dismiss the petition for habeas corpus on the ground that the petitioners had been temporarily released and their case had, therefore, become moot and academic. The petitioners insisted, however, that their case may be considered moot and academic only "if their release would be permanent." In ruling for the petitioners, we said:

Page

142

Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is lifted either temporarily or permanently. We have so held in a number of cases. But the instant case presents a different situation. The question to be resolved is whether the State can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the respondents because the release of the petitioners being merely 'temporary' it follows that they can be re-arrested at anytime despite their acquittal by a court of competent jurisdiction. We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense. This concept is so basic and elementary that it needs no elaboration. In effect the principle is clear. A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraints. Where a person continues to be unlawfully denied one or more of his constitutional freedoms, where there is present a denial of due process, where the restraints are not merely involuntary but appear to be unnecessary, and where a deprivation of freedom originally valid has, in the light of subsequent developments, become arbitrary, the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ. The respondents have failed to show why the writ may not issue and why the restraints on the petitioner's freedom of movement should not be lifted. WHEREFORE, the PETITION is GRANTED. The conditions attached to the temporary release of the petitioner are declared null and void. The temporary release of the petitioner is declared ABSOLUTE. No costs, SO ORDERED.

Page

143

(3) IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG, NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR., JUANITO GRANADA and TOM VASQUEZ. JOSEFINA GARCIA-PADILLA, petitioner, vs. MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER, GEN. FIDEL V. RAMOS, and FIDEL V. RAMOS, and LT. COL. MIGUEL CORONEL, respondents. [G.R. No. L-61388 April 20, 1983] DE CASTRO, J.: Petition for a writ of habeas corpus and mandamus seeking the following relief: WHEREFORE, petitioners pray this Honorable Court: 1. To immediately issue a writ of habeas corpus directing respondents to appear and produce the bodies of Dr. AURORA PARONG, NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM VASQUEZ, forthwith before this Honorable Court and to make due return of the writ therewith; 2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ of mandamus compelling the respondents to disclose the petitioners' present place of detention and to order the respondents to allow counsel and relatives to visit and confer with the petitioners; 3. Pending the determination of the legality of their continued detention, to forthwith release the detainees on bail upon such terms and conditions as the Court may fix, and after hearing, to order petitioners' immediate release; and 4. To grant petitioners such other and further relief as may be deemed just and equitable in the premises. The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982 at about 1:45 p.m. when three (3) teams of the PC/INP of Bayombong, Nueva Viscaya led by Lt. Col. Coronel, lst Lt. de Guzman and lst Lt. Baria, after securing a Search Warrant No. S-82 issued by Judge Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted a raid at the residence of Dra. Aurora Parong. Apprehended during the said raid were Dra. Aurora Parong, Benjamin Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto Portuguese, and Mariano Soriano who were then having a conference in the dining room of Dra. Parong's residence which had been doing on since 10:00 a.m. of that same day. The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr., Juanita Granada, and Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PC teams. On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate No. DAP 347, was seized by the PC authorities. The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners) were all detained at the PC/INP Command Headquarters, Bayombong, Nueva Vizcaya from July 6, 1982 until their transfer on the morning of August 10, 1982 to an undisclosed place reportedly to Camp Crame, Quezon City, to Echague, Isabela, and to Tuguegarao, Cagayan. Hence, this petition for the writ of habeas corpus and mandamus filed by Josefina Garcia-Padilla, mother of detained petitioner Sabino G. Padilla, Jr. on August 13, 1982. The mandamus aspect of the instant petition has, however, become moot and academic, and whereabouts of petitioners having already become known to petitioner Josefina Garcia-Padilla. It is alleged in the petition that the arrest of petitioners was patently unlawful and illegal since it was effected without any warrant of arrest; that the PC/INP raiding team which made the arrest were only armed with a search warrant (No. 3-82) issued by Judge Sofronio G. Sayo of the Court of First Instance of Nueva Viscaya, and nowhere in said warrant was authority given to make arrests, much less detention; that the search warrant which authorized respondents to seize "subversive documents, firearms of assorted calibers, medicine and other subversive paraphernalia" in the house and clinic of Dra. Aurora Parong was a roving and general warrant and is, therefore, illegal per se because it does not state specifically the things that are to be seized (Stonehill vs. Diokno, 20 SCRA 383); that no criminal charges have as of yet been filed against any of the detainees; that the fourteen (14) detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscaya from July 6 up to August 10, 1982, but were subsequently transferred by

Page

144

helicopter in the morning of August 10, 1982 to a place or safehouse known only to respondents; that there is no judgment, decree, decision or order from a court of law which would validate the continued detention of the petitioner; that while it is true that a purported telegram stating the issuance of a Presidential Commitment Order (PCO) was shown to the detainees on or about July 11 and 12, 1982, but counsel and the detainees have not yet been given a copy of such PCO nor notified of its contents, raising a doubt whether such commitment order has in fact been issued. It is further alleged that respondents are denying the detainees their constitutional right to counsel, averring that the detainees were allowed regular visits by counsel and relatives during their period of detention from July 6 to August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya; however, when a certain Major Cristobal and Lt. Marcos (alleged to be from the Camp Crame Intelligence Units) took full control of the investigation, counsels were allowed to visit only on weekends; that when the detainees were transferred on August 10, 1982 to a place known only to respondents, the detainees' counsels and relatives were not notified, raising the apprehension that petitioners' constitutional rights to silence, to counsel and against self- incrimination are being violated; that counsels have tried to locate if the detainees were taken to Camp Crame or Camp Bago Bantay but to no avail; that Major Forondo of the PC Command in Nueva Viscaya informed Mrs. Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan, others to Echague, Isabela; that there seems to be a deliberate and concerted effort by respondents to conceal from counsel and relatives the detainees' place of detention, raising the apprehension that respondents are using force, violence, threat, intimidation and other means which vitiate free will to obtain confession and statements from the detainees in violation of their constitutional rights. In the resolution of this Court en banc dated August 17, 1982, the writ of habeas corpus was issued and respondents were required to make a return of the writ. Hearing on the petition was set on August 26, 1982. In the return to the writ filed on August 23, 1982. respondents, through the Solicitor General, alleged, to wit: I. AS TO HABEAS CORPUS 1. The detainees mentioned in the petition, with the exception of Tom Vasquez who was temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all being detained by virtue of a Presidential Commitment Order (PCO) issued on July 12, 1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation to Presidential Proclamation No. 2045 dated January 17, 1981. The said PCO was issued by President Ferdinand E. Marcos for violation of P.D. No. 885. ... 2. The corresponding charges against the said detainees have been filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by the Municipal Court of Bayombong, for illegal possession of firearm and ammunition. ... II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS 3. The persons named in the above-mentioned Presidential Commitment Order were arrested and are being detained for offenses with respect to which under Proclamation No. 2045, the privilege of the writ of habeas corpus continues to be suspended, thus: NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime Minister of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby revoke Proclamation No. 1081 (Proclaiming a state of Martial Law in the Philippines) and Proclamation No. 1104 (Declaring the Continuation of Martial Law) and proclaim the termination of the state of martial law throughout the Philippines; Provided, that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insurrection, rebellion and subversion shall continue to be in force and effect; and Provided that in the two autonomous regions in Mindanao, upon the request of the residents therein, the suspension of the privilege of the writ of habeas corpus shag continue; and in all other places the suspension of the privilege of the writ shall also continue with respect to persons at present detained as well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or proposals to commit such crimes, and for all other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith. (Emphasis supplied) The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot inquire into the validity and cause of their arrest and detention.

Page

145

4. The power of the President in an emergency, such as that which necessitated the continued suspension of the privilege of the writ of habeas corpus, to order the detention of persons believed engaged in crimes related to national security is recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs. Special Military Commission, No. 1, et al., 102 SCRA 56). 5. In the instant petition, petitioner Josefina Garcia-Padilla does not appear to have been authorized by the thirteen (13) other detainees to represent them in the case at bar." Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court issued the following resolution, to wit: G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas Corpus of Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan Ponce Enrile, Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.)- The return of the writ of habeas corpus and answer to the prayer for mandamus filed by the Solicitor General for respondents in compliance with the resolution of August 17, 1982 is NOTED. At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys Alexander A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor General Estelito P. Mendoza and Assistant Solicitor General Ramon A. Barcelona, appeared for the respondents. All of the detainees, except Tom Vasquez, who was temporarily released on July 17, 1982, were present in Court; Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padilla argued for the petitioner. Solicitor General Mendoza argued for the respondents. Former Senator Diokno argued in the rebuttal. The Court Resolved to require the Solicitor General to SUBMIT within five (5) days from date the documents relevant to the issuance of the Presidential Commitment Order. Thereafter, the case shall be considered SUBMITTED for resolution. As required, the Solicitor General submitted the documents relevant to the issuance of the Presidential Commitment Order on August 27, 1982, after which the case was submitted for resolution. The fundamental issue here, as in all petitioner for the writ of habeas corpus, is whether or not petitioners' detention is legal. We have carefully gone over the claims of the parties in their respective pleadings as well as in the oral argument during the hearing on August 26, 1982, and We find that petitioners have not been illegally deprived of their constitutional right to liberty, neither in the manner of their arrest, nor by their continued detention, and that the circumstances attendant in the herein case do not warrant their release on a writ of habeas corpus. 1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982, records reveal that they were then having conference in the dining room of Dra. Parong's residence from 10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees were under surveillance as they were then Identified as members of the Communist Party of the Philippines (CPP) engaging in subversive activities and using the house of detainee Dra. Aurora Parong in Bayombong, Nueva Viscaya, as their headquarters. Caught in flagrante delicto, the nine (9) detainees mentioned scampered towards different directions leaving in top of their conference table numerous subversive documents, periodicals, pamphlets, books, correspondence, stationaries, and other papers, including a plan on how they would infiltrate the youth and student sector (code-named YORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of ammunition for M16 armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed to be CPP/NPA funds, assorted medicine packed and ready for distribution, as sizeable quantity of printing paraphernalia, which were then seized. There is no doubt that circumstances attendant in the arrest of the herein detainees fall under a situation where arrest is lawful even without a judicial warrant as specifically provided for under Section 6(a), Rule 113 of the Rules of Court and allowed under existing jurisprudence on the matter. As provided therein, a peace officer or a private person may, without a warrant, arrest a person when the person to be arrested has committed or actually committing, or is about to commit an offense in his presence. From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction.

Page

146

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. In the language ofMoyer vs. Peabody, 1 cited with approval in Aquino, et al. vs. Ponce Enrile, 2 the President " shall make the ordinary use of the soldiers to that end that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the exercise of hostile power." Thus characterized, the arrest and detention of persons ordered by the President through the issuance of Presidential Commitment Order PCO is merely preventive. "When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process." 3 What should be underscored is that if the greater violation against life itself such as killing, will not be the subject of judicial inquiry, as it cannot be raised as transgressing against the due process clause that protects life, liberty and property, lesser violations against liberty, such as arrest and detention, may not be insisted upon as reviewable by the courts. 3. Transcendentally important, therefore, is the question of whether the issuance of a Presidential Commitment Order (PCO) has provided the legal basis of the detention of herein detainees following their arrest for Proclamation No. 2045 covered offenses. This question has to be set at rest promptly and decisively, if We are to break a seemingly continuous flow of petitions for habeas corpus, as what had been seen lately of such petitioners being filed in this Court one after the other. The function of the PCO is to validate, on constitutional ground, the detention of a person for any of the offenses covered by Proclamation No. 2045 which continues in force the suspension of the privilege of the writ of habeas corpus, if the arrest has been made initially without any warrant, its legal effect is to render the writ unavailing as a means of judicially inquiring into the legality of the detention in view of the suspension of the privilege of the writ. The grant of the power to suspend the said privilege provides the basis for continuing with perfect legality the detention as long as the invasion or rebellion has not been repelled or quelled, and the need therefor in the interest of public safety continues. The significance of the conferment of this power, constitutionally upon the President as Commander-in-Chief, is that the exercise thereof is not subject to judicial inquiry, with a view to determining its legality in the light of the bill of rights guarantee to individual freedom. This must be so because the suspension of the privilege is a military measure the necessity of which the President alone may determine as an incident of his grave responsibility as the Commander-in-Chief of the Armed Forces, of protecting not only public safety but the very life of the State, the government and duly constituted authorities. This should be clear beyond doubt in the case of "invasion," along which "rebellion" or "insurrection" is mentioned by the Constitution, which contingency does not present a legal question on whether there is a violation of the right to personal liberty when any member of the invading force is captured and detained. The presidential responsibility is one attended with all urgency when so grave a peril to the life of the Nation besets the country in times of the aforementioned contingencies. In the discharge of this awesome and sacred responsibility, the President should be free from interference. The existence of warlike conditions as are created by invasion, rebellion or insurrection, the direst of all emergencies that can possibly confront a nation, argues, beyond dispute, against subjecting his actions in this regard to judicial inquiry or interference from whatever source. If freedom from judicial review is conceded in the exercise of his peacetime powers as that of appointment and of granting pardon, denominated as political powers of the President, it should incontestably be more so with his wartime power, as it were, to adopt any measure in dealing with situations calling for military action as in case of invasion, rebellion or insurrection. The suspension of the privilege of the writ of habeas corpus is one such measure. To be effective, the occasion for its application on specific individuals should be left to the exclusive and sound judgment of the President, at least while the exigencies of invasion, rebellion or insurrection persist, and the public safety requires it, a matter, likewise, which should be left for the sole determination of the President as Commander-in-Chief of the Nation's armed forces. The need for a unified command in such contingencies is imperative-even axiomatic-as a basic military concept in the art of warfare.

Page

147

4. From the clear language of the Lansang case, 4 "the function of Court is merely to check not to supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. " If, however, the constitutional right to bail is granted to the herein petitioners by the court, through the procedure laid down under Rule 114 of the Rules of court, what inevitably results is the supplanting of the decision of the President to detain pursuant to Proclamation No. 2045, of persons who come under its coverage. The specific mention in the Constitution of rebellion and insurrection along with invasion and imminent danger thereof, shows that the terms "rebellion and insurrection" are used therein in the sense of a state or condition of the Nation, not in the concept of a statutory offense. What, therefore, should determine the legality of imposing what is commonly referred to as "preventive detention" resulting from the suspension of the privilege of habeas corpus, is the necessity of its adoption as a measure to suppress or quell the rebellion, or beat off an invasion. The necessity for such measure as a means of defense for national survival quite clearly transcends in importance and urgency the claim of those detained to the right to bail to obtain their freedom. To hold otherwise would defeat the purpose of the constitutional grant of the power to suspend the privilege of the writ of habeas corpus on the occasions expressly mentioned in the charter. For what indeed could the purpose be of suspending the privilege of the writ of habeas corpus other than to restrict, at least for the duration of the emergency of invasion or rebellion, the right to personal liberty, dictated as it is, in the greater interest of public safety and national security. So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as coming within the suspension of the privilege of the writ of habeas corpus, but also other offenses, including subversion which is not mentioned in the Constitution, committed by reason or on the occasion of the rebellion, or in connection therewith, or in the furtherance thereof. There need be no alarm over what libertarian jurists fear as violation of the constitutional right to personal liberty when the President decrees the suspension of the privilege of habeas corpus. Only those who give cause for it will be subject to restriction of their liberty, as the necessity therefor arises in the interest of national defense and survival. The constitutional guarantee of individual freedom is intact in all its plenitude and sanctity, save only as the Constitution has envisioned the need for its limitation, and only to a few, in relation to the entire population, as the Constitution itself permits in case of overwhelming and imperious necessity. 5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend the privilege of the writ of habeas corpus has been deliberately vested on the President as the Commander-in-Chief of the armed forces, together with the related power to call out the armed forces to suppress lawless violence and impose martial law. 5 The choice could not have been more wise and sound, for no other official may, with equal capability and fitness, be entrusted with the grave responsibility that goes with the grant of the authority. The legislature was considered in the alternative upon which to lodge the power, or to share in its exercise, but the distilled wisdom of the Constitutional Convention finally made its choice for the President alone. As previously noted, "invasion" which is not a statutorily-defined offense and "imminent danger thereof" as mentioned in the Constitution indicate that "rebellion and insurrection" are also mentioned therein not in their concept as statutorily-defined public crimes, but as a state or condition of extreme emergency resulting from the existence of the aforesaid events. Now, if captured enemies from the invading force may not be charged with any statutory offense that would provide the occasion to demand the right to bail, it is obvious that persons engaged in rebellion or insurrection may not claim the right to be released on bail when similarly captured or arrested during the continuance of the aforesaid contingency. They may not even claim the right to be charged immediately in court, as they may rightfully do so, were they being charged with an ordinary or common offense. This is so because according to legal writers or publicists, the suspension of the privilege of the writ of habeas corpus "has the sole effect of allowing the executive to defer the trials of persons charged with certain offenses during the period of emergency." 6 This clearly means denial of the right to be released on bail on being charged in court with bailable offenses. The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection. Realistically, a person engaged in the rebellion does not, upon being arrested or captured, cease to be as committed to the cause of the movement. Through a grand conspiracy, as is of the essence of how rebellion is committed, involving a great mass of confederates bound together by a common goal, he remains in a state of continued participation in the criminal act or design. His heart still beats with the same emotion for the success of the movement of which he continues to be an ardent adherent and ally. It is simple logic then to hold that there should be no legal compulsion for a captured rebel to be charged in court, only to be released on bail, while he is, realistically and legally, still as much as part and parcel of the movement, continuing as it is, as those still engaged in carrying on actively to attain their goal of overthrowing the established regime. Hence, it is easy to perceive how impressed with absolute verity is the opinion expressed by two acknowledged authorities on Constitutional law in our country, 7 which We quote:

Page

148

... If the return to the writ shows that the person in custody was apprehended and detained in areas where the privileges of the writ have been suspended or for the crimes mentioned in the executive proclamation, the court will suspend further proceedings in the action. Impeccable as it is, the opinion could not but find a resonant echo as it did in the recent case of Buscayno vs. Military Commission; 8 decided after Proclamation No. 2045 was issued, which in terms clear and categorical, held that the constitutional right to bail is unavailing when the privilege of the writ of habeas corpus is suspended with respect to certain crimes as enumerated or described in the abovementioned Proclamation. It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap private individuals, they do not accord to them any of the rights now being demanded by the herein petitioners, particularly to be set at liberty upon the filing of bail. As a matter of common knowledge, captives of the rebels or insurgents are not only not given the right to be released, but also denied trial of any kind. In some instances, they may even be liquidated unceremoniously. What is then sought by the suspension of the privilege of the writ of habeas corpus is, among others, to put the government forces on equal fighting terms with the rebels, by authorizing the detention of their own rebel or dissident captives as the rebellion goes on. In this way, the advantage the rebellion forces have over those of the government, as when they resort to guerilla tactics with sophisticated weapons, is, at least, minimized, thereby enhancing the latter's chances of beating their enemy. It would, therefore, seem to be ignoring realities in the name of misplaced magnanimity and compassion, and for the sake of humanity, to grant the demand for respect of rights supposedly guaranteed by the Constitution by those who themselves seek to destroy that very same instrument, trampling over it already as they are still waging war against the government. This stark actuality gives added force and substance to the rationale of the suspension of the privilege of the writ of habeas corpus in case of invasion, insurrection, rebellion, or imminent danger thereof, when public safety requires it. 6. Invoking the Lansang case, 9 however, petitioners would ask this Court to review the issuance of the PCO against them, intimating that arbitrariness attended its issuance because, relying on the evidence supposedly available in the hands of the military, they claim they are not guilty of rebellion. They also contend that the provisions of LOI No. 1211 have not been complied with. The Lansang case went no further than to pronounce the suspension of the writ of the privilege of habeas corpus on August 21, 1971, valid and constitutional, on a finding that there was no arbitrariness attendant to the suspension. It never intended to suggest that for every individual case of arrest and detention, the writ of habeas corpus is available, even after the suspension of this privilege, to question the legality of the arrest and detention on ground of arbitrariness. When a person is charged in court for an ordinary offense, the law does not authorize the filing of a petition for habeas corpus based on the ground that there is absolutely no evidence to hold him for trial, which, in effect, constitutes an allegation of arbitrariness in the filing of the case against him. The law has afforded him adequate safeguards against arbitrariness, such as the requirement of determining the existence of a probable cause by the judge before the issuance of the warrant of arrest. The finding of such probable cause may not be immediately brought for review by this Court in a habeas corpus proceeding, on the claim of arbitrariness. The matter is to be decided on the basis of the evidence, and this Court is not the proper forum for the review sought, not being a trier of facts. If such a procedure were allowed, it would be easy to delay and obstruct the prosecution of an offense by a resort to a petition for habeas corpus based on arbitrariness, which most accuse, if not all, would be most inclined, specially when they are out on bail. The petition now before Us is exactly one of this kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal cases to this Court, which is simply inconceivable. Moreover, arbitrariness, while so easy to allege, is hard to prove, in the face of the formidable obstacle built up by the presumption of regularity in the performance of official duty. Unexhilaratingly, this is the revealing experience of this Court in the Lansang case, where it doubtlessly realized how hardly possible it is to adduce evidence or proof upon which to show the President having acted with arbitrariness. 7. The last question relates to the legality of the Presidential Commitment Order (PCO) issued by the President on July 12, 1982, tested by the conformity of its issuance to the procedure laid down under LOI 1211, petitioners insisting that the LOI limits the authority of the President to cause the arrest and detention of persons engaged in or charged with, the crimes mentioned in Proclamation No. 2045. They contend that the procedure prescribed in the LOI not having been observed, the PCO issued thereunder did not validate the initial illegal arrest of the herein petitioners as wen as their continued detention. It must be noted that LOI No. 1211, which provides the guidelines in the arrest and detention of persons engaged in, or charged with, the crimes mentioned in Proclamation No. 2045, charged with, the crimes mentioned contemplates of three situations when an arrest can be made, to wit: 1. The arrest and detention effected by virtue of a warrant issued by a judge; 2. The arrest and detention effected by a military commander or the head of a law enforcement agency after it is determined that the person or persons to be arrested would probably escape or commit further acts which would

Page

149

endanger public order and safety. After the arrest, however, the case shall be immediately referred to the city or provincial fiscal or to the municipal, city, circuit, or district judge for preliminary examination or investigation who, if the evidence warrants, shall file the corresponding charges and, thereafter, we a warrant of arrest; 3. The military commander or the head of the law enforcement agency may apply to the President thru the Minister of National Defense, for a Presidential Commitment Order under the following circumstances: (a) When resort to judicial process is not possible or expedient without endangering public order and safety; or (b) When the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger said public order and safety. Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211, ignoring paragraph 3 of LOI No. 1211, whic h provides: 3. The above notwithstanding, the military commander or the head of the law enforcement agency may apply to the President thru the Minister of National Defense, for a Presidential Commitment Order covering the person or persons believed to be participants in the commission of the crimes referred to in paragraph 1 under the following circumstances: (a) When resort to judicial process is not possible or expedient without endangering public order and safety; or (b) When the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger said public order and safety. The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicial warrant before a person may be arrested and detained is not well-founded. Neither is the contention that paragraph 3 of LOI 1211 applies only when judicial process is not possible. This is a narrow and constricted interpretation of LOI 1211 when viewed in its entirety. Even in instances when a resort to judicial process is possible, where, in the judgment of the President, a resort thereto would not be expedient because it would endanger the public order or safety, a PCO is justified. So, too, when release on bail in the ordinary judicial process will invite the same danger. By its very nature, and clearly by its language, LOI 1211 is a mere directive of the President as Commander-in-Chief of the Armed Forces of the Philippines to his subordinates or implementing officers for the ultimate objective of providing guidelines in the arrest and detention of the persons covered by Presidential Proclamation No. 2045. The purpose is "to insure protection to individual liberties without sacrificing the requirements of public order and safety and the effectiveness of the campaign against those seeking the forcible overthrow of the government and duty constituted authorities. " LOI 1211 does not, in any manner, limit the authority of the President to cause the arrest and detention of persons engaged in, or charged with the crimes or offenses mentioned in said Proclamation in that he (President) would subject himself to the superior authority of the judge who, under normal judicial processes in the prosecution of the common offenses, is the one authorized to issue a judicial warrant after a preliminary investigation is conducted with a finding of probable cause. Those who would read such an intention on the part of the President in issuing LOI 1211 seems to do so in their view that LOI forms part of the law of the land under the 1976 amendment of the Constitution. 10 They would then contend that a PCO issued not in compliance with the provisions of the LOI would be an illegality and of no effect. To form part of the law of the land, the decree, order or LOI must be issued by the President in the exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976 amendments to the Constitution, whenever in his judgment, there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasan Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action. There can be no pretense, much less a showing, that these conditions prompted the President to issue LOI 1211. Verily, not all LOI issued by the President should be dignified into forming part of the law of the land. In the event then that the judge believes no warrant shall issue, the President, under Presidential Proclamation No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitly provided in paragraph 2 of LOI 1211. That the President avails of the facilities of the judicial machinery, as is the clear intent of LOI 1211, to aid him in exercising his power to restrain personal liberty, as dictated by the necessities and exigencies of the emergency, does not indicate any intention on his part to renounce or to allow even mere curtailment of his power such that the judicial process will thereupon take its normal course, under which the detainees or

Page

150

accused would then be entitled to demand their right of due process, particularly in relation to their personal liberty. 11 The issuance of the PCO by the President necessarily constitutes a finding that the conditions he has prescribed in LOI 1211 for the issuance of that PCO have been met, and intends that the detention would be pursuant to the executive process incident to the government campaign against the rebels, subversives and dissidents waging a rebellion or insurrection. The ruling in the Nava vs. Gatmaitan case, * as above intimated, must have shown him that to prosecute the offense through the judicial process of forthwith instead of deferring it, would neither be wise nor expedient if he were to deal effectively with the grave emergency at hand. What has been said above shows the need of reexamining the Lansang case with a view to reverting to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision, and Montenegro vs. Castaneda, 91 Phil. 882 (1952), that the President's decision to suspend the privilege of the writ of habeas corpus is "final and conclusive upon the courts, and all other persons." This well-settled ruling was diluted in the Lansang case which declared that the "function of the Court is merely to check not to supplant the Executive, or ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction not to exercise the power vested in him or to determine the wisdom of his act." Judicial interference was thus held as permissible, and the test as laid down therein is not whether the President acted correctly but whether he acted arbitrarily. This would seem to be pure semanticism, if We consider that with particular reference to the nature of the actions the President would take on the occasion of the grave emergency he has to deal with, which, as clearly indicated in Section 9, Art. VII of the Constitution partakes of military measures, the judiciary can, with becoming modesty, ill afford to assume the authority to check or reverse or supplant the presidential actions. On these occasions, the President takes absolute command, for the very life of the Nation and its government, which, incidentally, includes the courts, is in grave peril. In so doing, the President is answerable only to his conscience, the people and to God. For their part, in giving him the supreme mandate as their President, the people can only trust and pray that, giving him their own loyalty with utmost patriotism, the President will not fail them. In his separate opinion in the Lansang case, then Justice Fernando, now our learned Chief Justice, went along with the proposition that the decision of the Executive in the exercise of his power to suspend the privilege of the writ of habeas corpus is his alone, and in his own language, is "ordinarily beyond the ken of the Courts." This is so, as the Founding Fathers must have felt that in the particular situations at hand, the Executive and the Judiciary should maintain a mutually deferential attitude. This is the very essence of the doctrine of "political question, " as determining the justiciability of a case. The wisdom of this concept remains well-recognized in advanced constitutional systems. To erase it from our own system as seems to be what was done in the Lansang case, may neither be proper nor prudent. A good example could be given in the exercise of the presidential power of pardon which is beyond judicial review, specially under the new Constitution where the condition that it may be granted only after final conviction has been done away with. True, the Constitution is the law "equally in war and in peace," 12 as Chief Justice Fernando cited in his brilliant separate opinion in the same Lansang case. Precisely, it is the Constitution that gives the President specific "military power" in times of warlike conditions as exist on the occasion of invasion, insurrection or rebellion. Both power and right are constitutionally granted, with the difference that the guarantee of the right to liberty is for personal benefit, while the grant of the presidential power is for public safety. Which of the two enjoys primacy over the other is all too obvious. For the power is intended as a limitation of the right, in much the same way as individual freedom yields to the exercise of the police power of the State in the interest of general welfare. The difference again is that the power comes into being during extreme emergencies the exercise of which, for complete effectiveness for the purpose it was granted should not permit intereference, while individual freedom is obviously for full enjoyment in time of peace, but in time of war or grave peril to the nation, should be limited or restricted. In a true sense then, our Constitution is for both peacetime and in time of war; it is not that in time of war the Constitution is silenced. The Founding Fathers, with admirable foresight and vision, inserted provisions therein that come into play and application in time of war or similar emergencies. So it is that, as proclaimed by the Constitution, the defense of the State is a prime duty of government. Compulsory military service may be imposed, certainly a mandate that derogates on the right to personal liberty. It, therefore, becomes self-evident that the duty of the judiciary to protect individual rights must yield to the power of the Executive to protect the State, for if the State perishes, the Constitution, with the Bill of Rights that guarantees the right to personal liberty, perishes with it. In times of war or national emergency, the legislature may surrender a part of its power of legislation to the President. 13 Would it not be as proper and wholly acceptable to lay down the principle that during such crises, the judiciary should be less jealous of its power and more trusting of the Executive in the exercise of its emergency powers in recognition of the same necessity? Verily, the existence of the emergencies should be left to President's sole and unfettered determination. His exercise of the power to suspend the privilege of the writ of habeas corpus on the occasion thereof, should also be beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nigh impossible it is for the courts to contradict the finding of the President on the existence of the emergency that gives occasion for the exercise of the power to suspend the privilege of the writ. For the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a violent collision of two jealous powers with tragic consequences, by all means to be avoided, in favor of adhering to the more desirable and long-tested doctrine of "political question" in reference to the power of judicial review. 14

Page

151

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs. Castaneda. Accordingly, We hold that in times of war and similar emergency as expressly provided in the Constitution, the President may suspend the privilege of the writ of habeas corpus, which has the effect of allowing the Executive to defer the prosecution of any of the offenses covered by Proclamation No. 2045, including, as a necessary consequence, the withholding for the duration of the suspension of the privilege, of the right to bail. The power could have been vested in Congress, instead of the President, as it was so vested in the United States for which reason, when President Lincoln himself exercised the power in 1861, Chief Justice Taney of the U.S. Supreme Court expressed the opinion that Congress alone possessed this power under the Constitutional., 15 Incidentally, it seems unimaginable that the judiciary could subject the suspension, if decreed through congressional action, to the same inquiry as our Supreme Court did with the act of the President, in the Lansang case, to determine if the Congress acted with arbitrariness. We further hold that under LOI 1211, a Presidential Commitment Order, the issuance of which is the exclusive prerogative of the President under the Constitution, may not be declared void by the courts, under the doctrine of "political question," as has been applied in the Baker and Castaneda cases, on any ground, let alone its supposed violation of the provision of LOI 1211, thus diluting, if not abandoning the doctrine of the Lansang case. The supreme mandate received by the President from the people and his oath to do justice to every man should be sufficient guarantee, without need of judicial overseeing, against commission by him of an act of arbitrariness in the discharge particularly of those duties imposed upon him for the protection of public safety which in itself includes the protection of life, liberty and property. This Court is not possessed with the attribute of infallibility that when it reviews the acts of the President in the exercise of his exclusive power, for possible fault of arbitrariness, it would not itself go so far as to commit the self-same fault. Finally, We hold that upon the issuance of the Presidential Commitment Order against herein petitioners, their continued detention is rendered valid and legal, and their right to be released even after the filing of charges against them in court, to depend on the President, who may order the release of a detainee or his being placed under house arrest, as he has done in meritorious cases. WHEREFORE, the instant petition should be, as it is hereby dismissed. SO ORDERED.

Page

152

(4) ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIANpetitioners, vs. MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon City,respondents. [G.R. No. L-69866 April 15, 1988] YAP, J.: This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the question whether the suspension of the privilege of the writ of habeas corpus bars a civil action for damages for illegal searches conducted by military personnel and other violations of rights and liberties guaranteed under the Constitution. If such action for damages may be maintained, who can be held liable for such violations: only the military personnel directly involved and/or their superiors as well. This case stems from alleged illegal searches and seizures and other violations of the rights and liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines, known as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes against known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to sow disturbances in Metro Manila," Plaintiffs allege, among others, that complying with said order, elements of the TFM raided several places, employing in most cases defectively issued judicial search warrants; that during these raids, certain members of the raiding party confiscated a number of purely personal items belonging to plaintiffs; that plaintiffs were arrested without proper warrants issued by the courts; that for some period after their arrest, they were denied visits of relatives and lawyers; that plaintiffs were interrogated in violation of their rights to silence and counsel; that military men who interrogated them employed threats, tortures and other forms of violence on them in order to obtain incriminatory information or confessions and in order to punish them; that all violations of plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract information and incriminatory statements from plaintiffs and to terrorize, harass and punish them, said plans being previously known to and sanctioned by defendants. Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not less than P200,000.00. A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) the complaint states no cause of action against the defendants. Opposition to said motion to dismiss was filed by plaintiffs Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated Reply was filed by defendants' counsel. Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I sustained, lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) that assuming that the court can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) that the complaint states no cause of action against defendants, since there is no allegation that the defendants named in the complaint confiscated plaintiffs' purely personal properties in violation of their constitutional rights, and with the possible exception of Major Rodolfo Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and maltreatment, or that the defendants had the duty to exercise direct supervision and control of their subordinates or that they had vicarious liability as employers under Article 2180 of the Civil Code. The lower court stated, "After a careful study of defendants' arguments, the court finds the same to be meritorious and must, therefore, be granted. On the other hand, plaintiffs' arguments in their opposition are lacking in merit." A motion to set aside the order dismissing the complaint and a supplemental motion for reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983, respectively. On December 9, 1983, the defendants filed a comment on the aforesaid

Page

153

motion of plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas Aquino. On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further proceeding in the case and leaving the resolution of the motion to set aside the order of dismissal to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion that the undersigned has no authority or jurisdiction to resolve said pending motion." This order prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the name of the Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the defendants filed a comment on said amplificatory motion for reconsideration. In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on the motion to set aside order of November 8, 1983, issued an order, as follows: It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca, Danilo de la Fuente and Marco Palo, represented by counsel, Atty. Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented by counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed to file a motion to reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed an appeal therefrom within the reglementary period, as prayed for by the defendants, said Order is now final against said plaintiffs. Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May 28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within the reglementary period. Plaintiffs claimed that the motion to set aside the order of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the plaintiffs, although signed by only some of the lawyers. In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to reconsider its order of May 11, 1984 declaring that with respect to certain plaintiffs, the resolution of November 8, 1983 had already become final, and (2) to set aside its resolution of November 8, 1983 granting the defendants' motion to dismiss. In the dispositive portion of the order of September 21, 1984, the respondent court resolved: (1) That the motion to set aside the order of finality, dated May 11, 1984, of the Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin is deed for lack of merit; (2) For lack of cause of action as against the following defendants, to wit: 1. Gen Fabian Ver 2. Col. Fidel Singson 3. Col. Rolando Abadilla 4. Lt. Col. Conrado Lantoria, Jr. 5. Col. Galileo Montanar 6. Col. Panfilo Lacson 7. Capt. Danilo Pizaro 8. 1 Lt Pedro Tango 9. Lt. Romeo Ricardo 10. Lt. Raul Bacalso the motion to set aside and reconsider the Resolution of dismissal of the present action or complaint, dated November 8, 1983, is also denied but in so far as it affects and refers to defendants, to wit: 1. Major Rodolfo Aguinaldo, and 2. Master Sgt. Bienvenido Balaba

Page

154

the motion to reconsider and set aside the Resolution of dismissal dated November 3, 1983 is granted and the Resolution of dismissal is, in this respect, reconsidered and modified. Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set aside the respondent court's resolution of November 8, 1983, its order of May 11, 1984, and its resolution dated September 21, 1984. Respondents were required to comment on the petition, which it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986. We find the petition meritorious and decide to give it due course. At the heart of petitioners' complaint is Article 32 of the Civil Code which provides: ART. 32. Any public officer or employee, or any private individual who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process (7) of law; (8) The right to a just compensation when private property is taken for public use; (9) The right to the equal protection of the laws; (10) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (11) The liberty of abode and of changing the same; (12) The privacy of cmmunication and correspondence; (13) The right to become a member of associations or societies for purposes not contrary to law; (14) The right to take part in a peaceable assembly to petition the Government for redress of grievances; (15) The right to be free from involuntary servitude in any form; (16) The rigth of the accused against excessive bail; (17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in behalf; (18) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (19) Freedom from excessive fines or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (20) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the against grieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield borrowing the words of Chief Justice Claudio Teehankee to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a

Page

155

maximum of faith, a minimum of Idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. 2 Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as public officers they are covered by the mantle of state immunity from suit for acts done in the performance of official duties or function In support of said contention, respondents maintain that Respondents are members of the Armed Forces of the Philippines. Their primary duty is to safeguard public safety and order. The Constitution no less provides that the President may call them "to prevent or supress lawless violence, invasion, insurrection or rebellion, or imminent danger thereof." (Constitution, Article VII, Section 9). On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but providing for the continued suspension of the privilege of the writ of habeas corpus in view of the remaining dangers to the security of the nation. The proclamation also provided "that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insuitection rebellion and subversion shall continue to be in force and effect." Petitioners allege in their complaint that their causes of action proceed from respondent General Ver's order to Task Force Makabansa to launch pre-emptive strikes against communist terrorist underground houses in Metro Manila. Petitioners claim that this order and its subsequent implementation by elements of the task force resulted in the violation of their constitutional rights against unlawful searches, seizures and arrest, rights to counsel and to silence, and the right to property and that, therefore, respondents Ver and the named members of the task force should be held liable for damages. But, by launching a pre-emptive strike against communist terrorists, respondent members of the armed forces merely performed their official and constitutional duties. To allow petitioners to recover from respondents by way of damages for acts performed in the exercise of such duties run contrary to the policy considerations to shield respondents as public officers from undue interference with their duties and from potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of governmental and public functions from being harassed unduly or constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79 Phil. 819). xxx xxx xxx The immunity of public officers from liability arising from the performance of their duties is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755). Respondents-defendants who merely obeyed the lawful orders of the President and his call for the suppression of the rebellion involving petitioners enjoy such immunity from Suit. 3 We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The cases invoked by respondents actually involved acts done by officers in the performance of official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4 No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the law to deport or expel the defendants, and circumstances justifying the deportation and the method of carrying it out are left to him, then he cannot be held liable in damages for the exercise of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose of controlling or interferring with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow that the courts cannot intervene for the purpose of declaring that he is liable in damages for the exeercise of this authority. It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection, rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre- emptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving

Page

156

commission untramelled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times. Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing Ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned. We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief they ask by the present action is indemnification for alleged damages they suffered, their causes of action are inextricably based on the same claim of violations of their constitutional rights that they invoked in the habeas corpus case as grounds for release from detention. Were the petitioners allowed the present suit, the judicial inquiry barred by the suspension of the privilege of the writ will take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by the President, petitioners will be able to do by the mere expedient of altering the title of their action." We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty. Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to its text: However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act, activity or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year. Petitioners have a point in contending that even assuming that the suspension of the privilege of the writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered because of respondents' confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment. However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25, 1986, President Corazon C. Aquino issued Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The question therefore has become moot and academic. This brings us to the crucial issue raised in this petition. May a superior officer under the notion of respondent superior be answerable for damages, jointly and severally with his subordinates, to the person whose constitutional rights and liberties have been violated? Respondents contend that the doctrine of respondent superior is applicable to the case. We agree. The doctrine of respondent superior has been generally limited in its application to principal and agent or to master and servant (i.e. employer and employee) relationship. No such relationship exists between superior officers of the military and their subordinates. Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person 'directly' or "indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.

Page

157

By this provision, the principle of accountability of public officials under the Constitution 5 acquires added meaning and asgilrnes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be go naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no ones terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors. In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as defendants on the ground that they alone 'have been specifically mentioned and Identified to have allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical violence constitute a delict or wrong that gave rise to a cause of action. But such finding is not supported by the record, nor is it in accord with law and jurisprudence. Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged physical violence" which constituted delict or wrong. Article 32 clearly specifies as actionable the act of violating or in any manner impeding or impairing any of the constitutional rights and liberties enumerated therein, among others 1. Freedom from arbitrary arrest or illegal detention; 2. The right against deprivation of property without due process of law; 3. The right to be secure in one's person, house, papers and effects against unreasonable searches and seizures; 4. The privacy of communication and correspondence; 5. Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make a confession, except when the person confessing becomes a state witness. The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs' constitutional rights and liberties mentioned in Article 32 of the Civil Code were violated and impaired by defendants. The complaint speaks of, among others, searches made without search warrants or based on irregularly issued or substantially defective warrants; seizures and confiscation, without proper receipts, of cash and personal effects belonging to plaintiffs and other items of property which were not subversive and illegal nor covered by the search warrants; arrest and detention of plaintiffs without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at several undisclosed places of 'safehouses" where they were kept incommunicado and subjected to physical and psychological torture and other inhuman, degrading and brutal treatment for the purpose of extracting incriminatory statements. The complaint contains a detailed recital of abuses perpetrated upon the plaintiffs violative of their constitutional rights. Secondly, neither can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as well as indirectly, responsible for its violation. The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It is well established in our law and jurisprudence that a motion to dismiss on the ground that the complaint states no cause of action must be based on what appears on the face of the complaint. 6 To determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no others, should be considered. 7 For this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8 Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action the complaint against all the defendants, except Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint contained allegations against all the defendants which, if admitted hypothetically, would be sufficient to establish a cause or causes of action against all of them under Article 32 of the Civil Code. This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando

Page

158

Salutin, on the basis of the alleged failure of said plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting the respondent's motion to dismiss? It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by 'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman; Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty. Alexander Padilla, counsel for Rodolfo Benosa. But the body of the motion itself clearly indicated that the motion was filed on behalf of all the plaintiffs. And this must have been also the understanding of defendants' counsel himself for when he filed his comment on the motion, he furnished copies thereof, not just to the lawyers who signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino. In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on behalf of all the plaintiff. They needed no specific authority to do that. The authority of an attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged by the adverse party or the party concerned, which was never done in this case. Thus, it was grave abuse on the part of respondent judge to take it upon himself to rule that the motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by its very language it was clearly intended to be filed by and for the benefit of all of them. It is obvious that the respondent judge took umbrage under a contrived technicality to declare that the dismissal of the complaint had already become final with respect to some of the plaintiffs whose lawyers did not sign the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned. Accordingly, we grant the petition and annul and set aside the resolution of the respondent court, dated November 8, 1983, its order dated May 11, 1984 and its resolution dated September 21, 1984. Let the case be remanded to the respondent court for further proceedings. With costs against private respondents. SO ORDERED.

Page

159

(5) In the Matter of the Petition for Habeas Corpus in behalf of ANDERSON BELTRAN and DEMETRIO RIVERA, MARIA BELTRAN and PRUDENCIA RIVERA, petitioners, vs. P.C. CAPTAIN ROLANDO GARCIA, respondent. [G.R. No. L-49014 April 30, 1979] FERNANDO, Actg. CJ.: This application for the writ of habeas corpus was filed by Maria Beltran and Prudencia Rivera on behalf of Anderson Beltran and Demetrio Rivera, alleged to be "actually imprisoned and arbitrarily restrained of their liberty" by respondent Rolando Garcia, a Captain in the Philippine Constabulary, they being taken to the military stockade of the 164th P. C. Company. 1 The application likewise set forth the fact that no criminal complaint had been filed against the aforesaid individuals and that they were not informed either of any charge or charges lodged against them. 2 Accordingly, the plea was for the immediate restoration of their liberty and discharge from confinement as their detention was "without any legal authority. 3 On October 3, 1978, this Court issued the following resolution: "The Court [issued] the writ of habeas corpus return to this Court not later than Wednesday, October 11, 1978 and to [set] the hearing of this case for Thursday, October 12, 1978 at 3:00 o'clock in the afternoon. 4 On October 11, 1978, a return was filed by Solicitor General Estelito P. Mendoza. 5 It is worded thus: "1. As alleged in paragraph 3 of the Petition, Anderson Beltran and Demetrio Rivera were, on September 21, 1978, apprehended by Armed Forces Police Unit, U.S. Naval Base, Subic Bay, and were thereafter turned over and detained at the INP Integrated Jail, Olongapo Metropolitan District Command, Olongapo City, pursuant to ASSO No. 4597 dated September 20, 1978, ... ; 2. Said Anderson Beltran was apprehended and detained for the offenses of smuggling (violation of Secs. 3601 and 3602 of the Revised Tariff and Customs Code) through falsification of public documents (violation of Art. 172 of the Revised Penal Code) which offenses have the effect of undermining public order within the contemplation of Section 3, General Order No. 60, dated June 24, 1977; 3. Demetrio Rivera has already been released from detention on October 8, 1978 as shown in the Certificate of Release dated October 6, 1978 ... , while Anderson Beltran is still under detention at the INP Integrated Jail, Olongapo Metropolitan District Command, at Olongapo City for criminal prosecution of the offenses aforementioned 4. The imprisonment of Anderson Beltran is with legal authority: hence, the filing of the instant petition for habeas corpus is without legal basis. 6 At the hearing on October 12, 1978, the persons detained appeared before the Court. The release of Demetrio Rivera from confinement was admitted. Hence, as to him, the petition had become moot and academic. 7 A motion was filed on behalf of the other detained individual, Anderson Beltran, for his provisional release on the personal recognizance of Ms counsel, Attorney Buena B. Zamar In a manifestation filed by respondent on October 21, 1978, it was shown that the detainee Beltran, was charged with the offense of smuggling under the Revised Tariff and Customs Code through falsification of public documents. Accordingly, the plea was for the denial of the motion for provisional release. In the memorandum of petitioners filed on October 25, 1978, the detention of Anderson Beltran was challenged, the genuineness and authenticity of the arrest and seizure order being put in issue, with his counsel alleging that unfortunately he was not in a position to supply the needed documents. Accordingly, he did pray that respondent be made to furnish certain documents. Such memorandum likewise sought the release of Anderson Beltran "from custody of respondent in order to afford him the chance to save his hungry family of 7 children who are now in the brink of disastrous hunger and have to live under mercy of good neighbors feeding them to survive. 8 This Court, in a resolution of November 7, sought the comment of the Solicitor General on such request. He did so on December 11, 1978, refuting the allegations of petitioners' counsel. That aspect of the case need not be further inquired into, however, in view of this development. The memorandum of respondent speaks for itself "On October 12, 1978, complaints for estafa and falsification of public documents and violation of Section 3601 of the Tariff and Customs Code, docketed as IS No. 1972-78, were filed against Anderson Beltran with the City Fiscal's Office of Olongapo City. On October 19, 1978, a complaint for violation of Arts. 167, 168 and 172 of the Revised Penal Code, docketed as IS No. 781820, was filed against Anderson Beltran with the Angeles City Fiscal's Office. During the preliminary investigation conducted by the Olongapo City Fiscal's Office on October 26, 1978 in connection with IS No. 1972-78, Anderson Beltran executed a waiver of his right under Article 125 of the Revised Penal Code, ... By his said waiver, Beltran in effect admitted the legality of his detention and has rendered the instant petition for habeas corpus moot and academic. On November 3, 1978, an information for falsification of private document was filed against Anderson Beltran with the Court of First Instance of Zambales (Olongapo Branch I) and there docketed as Criminal Case No. 3910. ... On the same day the court issued an order for the issuance of a warrant of arrest against Anderson Beltran, ... In addition, the Court issued a commitment order dated November 3, 1978 directing the Commanding officer of IRECAD Dentention Center, Camp Olivas, San Fernando, Pampanga, to keep Anderson Beltran in his custody as detention prisoner subject to the order of the court. ... Presently, Anderson Beltran is being detained at the IRECAD Detention Center, Camp Olivas, San Fernando, Pampanga, pursuant to the commitment order of the Court of First Instance of Zambales (Olongapo Branch 1). By virtue of the commitment order of the court, the custody of Anderson Beltran has in legal contemplation been transferred from the military to the civilian authority (Lansang vs. Garcia, 42 SCRA 448, 493 (1971). As Beltran's

Page

160

detention is now by virtue of a judicial order, his petition for habeas corpus should be deemed to have been rendered moot and academic. 9 Such an appraisal of the situation by Solicitor General Mendoza is impressed with validity. This excerpt from Cruz v. Montoya, 10 finds relevance: "It would appear therefore that the writ had served its purpose and whatever illegality might have originally infested his detention had been cured. In that sense, his petition has become academic. What is undeniable is that the ordinary civil process of the law is now being followed. The grievance complained of therefore no longer exists. What is more, there is adherence to the basic aim and intent that inform this great writ of liberty which, in the apt language of Justice Malcolm in the landmark case of Villavicencio v. Lukban, "is to inquire into all manner of involuntary restraint as distinguished from voluntary and to relieve a person therefrom if such restrain is illegal. Any restrain which will preclude freedom of action is sufficient.' This it could accomplish, for as emphatically stressed by Justice Holmes, it "cuts through all forms and goes to the very Issue of the structure. 11 Such a doctrine was affirmed in the two subsequent cases of De la Plata v. Escorcha 12 and Canas v. Director of Prisons. 13 One last word. It was on September 21, 1978 that Beltran and Rivera were detained without any criminal charge against them. 14 The petition was filed on October 2, 1978. Rivera, the driver of the vehicle allegedly used by Beltran to carry on his smuggling activities, was not released until October 8, 1978. 15 In the case of Beltran, the information was not filed until November 3, 1978. 16 This is another instance then of the practice, irregular, to say the least, of persons being restrained of their liberty prior to the filing of any charge or even in the absence of any justification for such detention. There is no unfairness then in characterizing the release of Rivera and the filing of an information against Beltran as due to the filing of the application with this Tribunal for the writ of habeas corpus. Were it not for this circumstance, it is not unreasonable to conclude that the officials concerned would not have been prodded into action. It certainly does not speak well of officialdom, whether civilian or military, if a person deprived of his liberty had to go to court before his rights are respected. The good name of the Administration is jeopardized, without any fault on its part, by such inefficiency or inattention to duty. Every precaution should be taken against its repetition. Otherwise, the parties responsible for this state of affairs would justly lay themselves open to the accusation that the greatest danger to constitutional rights comes from public officials, men of zeal, concededly well-meaning, but without sufficient understanding of the implications of the rule of law. WHEREFORE, the petition is dismissed in the case of Rivera for being moot and academic and in the case of Beltran, because of his commitment being due to a lawful order by a court of justice.

Page

161

(6) IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS, SIMON LUNA, petitionerappellant,vs. HON. LORENZO M. PLAZA, as Judge of the Municipal Court of Tandag, Surigao del Sur; HON. SANTOS B. BEBERINO as Provincial Fiscal of Surigao del Sur; and THE PROVINCIAL WARDEN of Surigao del Sur, respondentsappellees. [G.R. No. L-27511 November 29, 1968] ZALDIVAR, J.: Appeal from the decision of the Court of First Instance of Surigao del Sur, dated April 20, 1967, dismissing the petition for a writ of habeas corpus, filed by herein petitioner-appellant Simon Luna hereinafter referred to simply as petitioner who was charged with murder in Criminal Case No. 655-New of the same court. The criminal action was commenced by T-Sgt. Candido Patosa, PC investigator of Tandag, Surigao del Sur, by filing with respondent Municipal Judge Lorenzo M. Plaza, of the Municipal Court of Tandag, criminal case No. 1138 charging the accused, herein petitioner, with the crime of murder. Supporting the complaint were sworn statements of the witnesses for the prosecution, in the form of questions and answers taken by T-Sgt. Patosa, and subscribed and sworn to before the respondent Judge at the time of the filing of the complaint. The respondent Judge examined the prosecution witnesses by reading to them "all over again the questions and answers" in their statements in writing, and the witnesses-affiants declared before said Judge that the questions were propounded by T-Sgt. Candido Patosa, and that the answers were made by them. The affiants further declared before respondent Judge that their answers were true, and were freely and voluntarily made; that they fully understood the questions and answers, and that they were willing to sign their respective affidavits. The affiants signed their respective affidavits in the presence of the respondent Judge, who also signed after the usual procedure of administering the oath. Considering the answers of the affiants to the questions contained in their sworn statements, together with the post-mortem and autopsy report on the dead body of the victim Jaime Diaz Ng, the certificate of death, the sketch showing the position of the victim and the accused, and Exhibits 6, 7, 8, 12, and 13 of herein respondents, the respondent Judge opined that there was reasonable ground to believe that the crime of murder had been committed and the accused was probably guilty thereof. Respondent Judge issued the order and warrant of arrest, specifying therein that no bail should be accepted for the provisional release of the accused. On February 20, 1967, upon motion of petitioner that he be admitted to bail upon the ground that the evidence of guilt was not strong, respondent Judge issued an order granting bail, fixing it at P30,000.00; which order, however, respondent Judge later revoked, and petitioner was denied bail. The case was subsequently remanded to the Court of First Instance of Surigao del Sur, after petitioner filed a waiver of his right to preliminary investigation. On March 9, 1967 respondent Provincial Fiscal filed an information charging herein petitioner with the crime of murder. The petitioner was detained in the provincial jail of Surigao del Sur under the custody of respondent Provincial Warden. On April 5, 1967, petitioner filed a petition for a writ of habeas corpus with the Court of First Instance of Surigao del Sur, therein docketed as Special Proceedings No. 105-New, claiming that he was being deprived of liberty without the due process of law, on the ground that the imprisonment and detention was the result of a warrant of arrest issued by respondent Judge in violation of Republic Act No. 3828, and praying for the annulment of the order for his arrest and his discharge from confinement. Herein respondents filed their answer, alleging that Republic Act No. 3828 had been substantially complied with; that a motion to quash, and not a petition for habeas corpus was the proper remedy; and that petitioner's application for bail constituted a waiver of the right to question the validity of the arrest. After trial, the Court of First Instance of Surigao del Sur rendered its decision, dated April 20, 1967, holding that respondent Municipal Judge had substantially complied with Republic Act No. 3828, and consequently denied the application for the writ of habeas corpus, and dismissed the case. Hence this appeal. Petitioner, in his assignment of errors, claims that the trial court erred, as follows:

2. In denying the writ of habeas corpus and in dismissing the petition.

Page

162

1. In giving absolute credence to the oral testimony of the respondent Judge to the effect that he adopted and made his own the questions and answers taken by T-Sgt. Patosa, PC Investigator, one of the prosecution witnesses, because the records show the contrary;

1. In support of his first assignment of error, petitioner contends that Republic Act No. 3828 imposes on a municipal judge, before he can issue a warrant of arrest, two specific duties, to wit: (1) personally examine the complainant and witnesses with "searching questions and answers", which means that the judge must cross-examine them in case their affidavits are presented; and (2) said examination must be reduced to writing and form part of the records of the case. The record of the instant case, according to petitioner, does not show said examination was performed by respondent Judge. Petitioner urges that the absence of any document in the record that shows that respondent Judge had performed the examination is positive proof that respondent Judge did not perform his duty, notwithstanding his testimony before the Court of First Instance of Surigao del Sur, during the hearing of this case, to the effect that he adopted the questions propounded to each of the prosecution witnesses by T-Sgt. Patosa. Petitioner maintains that this testimony, being self-serving intended to cover up the failure to comply with the law, should not have been believed by the Court of First Instance, and said court thereby committed errors when, believing said testimony, it found that there had been substantial compliance with the requirement that the municipal judge should personally examine the witnesses. Petitioner further maintains that assuming that the adoption of the questions made by T-Sgt. Patosa constituted substantial compliance with the requirement that the judge should examine the witnesses by asking searching questions, still the second requirement, that of reducing to writing the said procedure of adoption, has not been complied with; and so, Republic Act No. 3828 was still violated, and the issuance of the warrant of arrest was in violation of said Act and the Constitution and constituted denial of due process. Petitioner contends that the trial court erred in giving absolute credence to the testimony of respondent Municipal Judge. Regarding credibility of witnesses, this Court has consistently held that, as a general rule, the lower court's findings as to the credibility of witnesses will not be interfered with by appellate courts. Thus, in the case of People vs. Sinaon1 this Court said: Time and again, we have held that as a rule where the issue is one of credibility of witnesses, appellate courts will not generally disturb the findings of the trial court, considering that it is in a better position to decide the question, having seen and heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless there is a showing that it has overlooked certain facts of substance and value, that if considered, might affect the result of the case. Petitioner has appealed "from the decision/order" of the trial court "to the Honorable Supreme Court of the Philippines, on the ground that the same is contrary to law and the Philippine Constitution" and prayed that "all the records of the proceeding and the evidence, oral and documentary, be transmitted or forwarded to the Honorable Supreme Court ...". 2 Since petitioner appealed directly to this Court he must, therefore, raise only questions of law and he has thereby waived the right to raise any question of fact, 3 and the findings of facts of the trial court, under the rules and precedents, must be deemed final and binding upon this Court.4 The findings of facts of the trial court are found in the following portion of the decision appealed from, to wit: There is no dispute that there is a valid complaint charging the accused Simon Luna, the herein petitioner with the crime of Murder filed with the respondent Judge authorized to conduct the examination of the witnesses for the prosecution for the purpose of determining the existence of probable cause before the issuance of the corresponding warrant of arrest; that the complaint is supported by the statements of the witnesses under oath in writing in the form of questions and answers and other documents attached to the complaint; that before the issuance of the corresponding warrant of arrest, the respondent judge personally examined the witnesses for the prosecution on their statements taken by T-Sgt. Candido Patosa by reading the questions and answers all over again to the affiants who confirmed to the respondent Judge that the statements contained in their sworn statements are true; that being satisfied that the questions and answers contained in the sworn statements taken by T-Sgt Patosa partake of the nature of his searching questions and answers as required by law, the respondent Judge adopted them as his own personal examination of the witnesses for the purpose of determining the existence of probable cause, the order and the warrant of arrest were issued to take the accused into custody for the commission of the offense charged (Exhibits "H", "H-1", "I", and "I-1"-petitioner); and that the petitioner waived his right to the preliminary investigation (Exhibit "12"-respondent) and applied to be admitted to bail. Petitioner, however, claims that the failure of respondent Judge to put in writing that he adopted the questions asked by T-Sgt. Patosa and his failure to ask "searching questions" violated Republic Act No. 3828. Republic Act No. 3828, approved June 22, 1963, inserted in section 87 (e) of the Judiciary Act of 1948 the following paragraph: No warrant of arrest shall be issued by any justice of the peace in any criminal case filed with him unless he first examines the witness or witnesses personally, and the examination shall be under oath and reduced to writing in the form of searching questions and answers. Before a municipal judge may issue a warrant of arrest, the following conditions must first be fulfilled: (1) he must examine the witnesses personally; (2) the examination must be under oath; (3) the examination must be reduced to writing in the form of searching questions and answers. Were these conditions fulfilled in the instant case?

Page

163

The first condition was fulfilled. The trial court found as a fact that "the respondent judge personally examined the witnesses for the prosecution ...;" that respondent judge adopted as his own personal examination the questions asked by T-Sgt. Patosa as appearing in the written statements, which he read over again to the witnesses together with the answers given therein, asking the witnesses whether said answers were theirs, and whether the same answers were true, to which the witness answered in the affirmative. Republic Act No. 3828 does not prohibit the municipal Judge from adopting the questions asked by a previous investigator. It appears that the sworn statements5 of the witnesses state at the beginning that the sworn statement was "taken by T-Sgt. Candido L. Patosa", and does not state that it was taken by the respondent municipal Judge himself. This circumstance is explained by the fact that said written statements already taken by T-Sgt. Patosa were delivered to respondent Municipal Judge who adopted the questions therein in his examination, because he considered them searching questions. Respondent Judge presumably did not consider it necessary to change the introductory remarks in each of the written statements. But that he made the examination personally cannot be doubted; it is so stated in the order dated February 18, 1967, which recites: After examining the witness personally and under oath there is reasonable ground to believe that an offense for murder has been committed and that the accused, Simon Luna, is probably guilty thereof. (Exh. H) The ruling in Doce vs. Branch II of the Court of First Instance of Quezon, et al .,6 wherein this Court held that the warrant of arrest issued therein was irregularly issued is not applicable to the case at bar for the simple reason that the facts are different. This Court in that case said: There is merit in the assertion that the warrant of arrest was irregularly issued. Section 87 of the Judiciary Act as amended by Republic Act 3828 requires that the Municipal Judge issuing the same, personallyexamine under oath the witnesses, and by searching questions and answers which are to be reduced to writing. Here, instead of searching questions and answers, we have only the affidavits of respondent and her one witness. Moreover, said affidavits were sworn to before Judge Cabungcal, not before Judge Juntereal who issued the warrant of arrest. In the instant case, as stated above, the respondent Municipal Judge personally examined under oath the witnesses by asking questions, that were adopted from a previous investigation, and considered by him as sufficiently searching and which questions and the answers thereto were in writing and sworn to before him prior to his issuance of the order of arrest. The second condition required by Republic Act No. 3828 for the issuance of a warrant of arrest was also fulfilled. The trial court found that the complaint was "supported by statements of the witnesses under oath." The record also shows the following documents to have been subscribed and sworn to before respondent Judge, namely: Exhibit B, sworn statement of herein petitioner Simon Luna y Albay; Exhibit C, sworn statement of Eusebio Corpuz; Exhibit D, sworn statement of Bruno M. Zafra; Exhibit E, sworn statement of Martiliano J. Bautista; Exhibit F, sworn statement of Janedina Diaz y Bandoy. The third condition required by Republic Act No. 3828 was likewise fulfilled. The examination of the witnesses was written down, in the form of searching questions and answers. The term "searching questions and answers" means only, taking into consideration the purpose of the preliminary examination which is to determine "whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial",7 such questions as have tendency to show the commission of a crime and the perpetrator thereof. What would be searching questions would depend on what is sought to be inquired into, such as: the nature of the offense, the date, time, and place of its commission, the possible motives for its commission; the subject, his age, education, status, financial and social circumstances, his attitude toward the investigation, social attitudes, opportunities to commit the offense; the victim, his age, status, family responsibilities, financial and social circumstances, characteristics, etc. The points that are the subject of inquiry may differ from case to case. The questions, therefore, must to a great degree depend upon the Judge making the investigation. At any rate, the court a quo found that respondent judge was "satisfied that the questions and answers contained in the sworn statements taken by T-Sgt. Patosa partake of the nature of his searching questions and answers as required by law," so the respondent Judge adopted them. Petitioner's further contention that the issuance of the warrant of arrest was a violation of the constitution and of procedural due process is likewise untenable. The Constitution, in Section 1(3), Article III, provides that no warrant shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. The constitutional requirement of examination of witnesses under oath was, as shown above, fulfilled. The existence of probable cause depended to a large degree upon the finding or opinion of the judge conducting the examination. Respondent judge found that there was probable cause, as stated in his order of arrest, that "after examining the witnesses personally and under oath there is a reasonable ground to believe that an offense of murder has been committed and that the accused, Simon Luna, is probably guilty thereof."

Page

164

Petitioner's last contention that the warrant of arrest issued was a violation of procedural due process because of the alleged defective preliminary examination has no leg to stand on, in view of what we have hereinbefore stated. Moreover, this Court has held that preliminary examination is not an essential part of due process of law. 8Preliminary examination may be conducted by the municipal judge, prior to the issuance of the warrant of arrest, either in the presence, or in the absence, of the accused. The record shows that herein petitioner waived the preliminary investigation before respondent Municipal Judge, and instead, he filed a petition for bail. The petition for bail was at first granted by respondent Judge, but later the order granting bail was revoked. This conduct of petitioner indicates that he had waived his objection to whatever defect, if any, in the preliminary examination conducted by respondent Judge prior to the issuance of the warrant of arrest. Indeed, petitioner has no substantial much less legal ground to complain that he was denied the due process of law. We find that the trial Judge committed no error when he held that, based upon the facts shown during the hearing of this case, respondent Municipal Judge had substantially complied with the requirements of the law specifically Republic Act 3828 before issuing the warrant of arrest in this case. 2. In the light of what has been said above, it appears clear that petitioner's second assignment of error, that the trial court erred in denying the writ of habeas corpus, is untenable. Moreover, Section 4 of Rule 102; of the Rules of Court provides in part, as follows: SEC. 4. When writ not allowed or discharge authorized . If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge ... and that the court or judge had jurisdiction to issue the process ... or make the order the writ, shall not be allowed.... All the conditions, in the afore-quoted Section 4, set forth to deny the writ, are present in the instant case. It is shown that petitioner is detained and is in the custody of the respondent Provincial Warden by virtue of the order of arrest dated February 18, 1967, and the order dated February 21, 1967, of respondent Judge, to confine petitioner in the provincial jail. It is not disputed by petitioner that respondent Judge had jurisdiction to issue the warrant of arrest and the order of commitment under the provisions of Section 47, Republic Act No. 409, as amended by Republic Act No. 1201, although petitioner did question the validity of the warrant of arrest for allegedly having been issued in violation of Republic Act No. 3828 which claim We have found to be untenable. Consequently, the trial Judge did not commit an error in denying the writ of habeas corpus prayed for. At any rate, we believe that, if at all, the remedy available to the petitioner herein, under the circumstances stated in this opinion, is not a petition for a writ of habeas corpus but a petition to quash the warrant of arrest or a petition for a reinvestigation of the case by the respondent Municipal Judge or by the Provincial Fiscal. We wish to stress, however, that what has been stated in this opinion is certainly not intended to sanction the return to the former practice of municipal judges of simply relying upon affidavits or sworn statements that are made to accompany the complaints that are filed before them, in determining whether there is a probable cause for the issuance of a warrant of arrest. That practice is precisely what is sought to be voided by the amendment of Section 87 (c) of Republic Act 296 (Judiciary Act of 1948) which requires that before a municipal judge issues a warrant of arrest he should first satisfy himself that there is a probable cause by examining the witnesses personally, and that the examination must be under oath and reduced to writing in the form of searching questions and answers. It is obvious that the purpose of this amendment is to prevent the issuance of a warrant of arrest against a person based simply upon affidavits of witnesses who made, and swore to, their statements before a person or persons other than the judge before whom the criminal complaint is filed. We wish to emphasize strict compliance by municipal or city judges of the provision of Section 87 (c) of the Judiciary Act of 1948, as amended by Republic Act 3828, in order to avoid malicious and/or unfounded criminal prosecution of persons.9 In the case now before Us, while it is true that the respondent Municipal Judge did not himself personally cause to be reduced to writing in the form of questions and answers the examination of witnesses presented before him by the person who filed the criminal complaint, We are satisfied that, as shown by the evidence, respondent Judge had personally examined the witnesses under oath and that the questions asked by the Judge and the answers of the witnesses were reflected in writings which were actually subscribed and sworn to before him. Moreover, We are of the considered view that no substantial right of the petitioner had been violated because, as hereinbefore adverted to, petitioner waived his right to preliminary investigation after he was arrested, and he took the step of applying for bail before respondent Municipal Judge. These acts of the petitioner subsequent to his arrest, constitute an implied admission on his part that here was a probable cause for the issuance of the warrant of arrest against him. Those acts of the petitioner constitute a waiver of whatever irregularity, if any there was, that attended his arrest. 10 WHEREFORE, the decision of the trial court dated April 20, 1967, appealed from, is affirmed. Costs against petitioner-appellant. It is so ordered.

Page

165

SECTION 16

(1) MANUEL, Q. CABALLERO and LELITA A. CABALLERO, petitioners, vs. HON. FEDERICO B. ALFONSO, JR., as Judge, Branch III, Court of First Instance of Misamis Oriental, HON. CONRADO ESTRELLA, as Secretary of the Department of Agrarian Reform, FERNANDO ESCONDE, GREGORIO BAKEREL, CESAR NAVARRO, AND FRANK RODRIGUEZ, respondents. [G.R. No. L-45647 August 21, 1987] PADILLA, J.: Petition for certiorari, prohibition, and mandamus with preliminary injunction, to annul and set aside the Order issued by the respondent judge on 10 January 1977 in Special Civil Case No. 386-M, of the Court of First Instance of Misamis Oriental, insofar as it ordered the suspension of the proceedings in said case, pending the comment and/or certification thereon by the respondent Secretary of Agrarian Reform in accordance with PD 1038. The facts of the case which led to the filing of the instant petition are as follows: On 19 November 1976, petitioners, spouses Manuel and Lelita Caballero, claiming to be the absolute owners of several contiguous parcels of land planted with coconut trees, situated in Salubsub, San Isidro, Gingoog City, filed a petition for injunction with restraining order and damages against the herein private respondents Fernando Esconde, Cesar Navarro, Gregorio Bakerel, and Francisco (Frank) Rodriguez, together with William Abatayo, Elmer Almonte, Teodorico Amoncio, and Pedro Amper, with the Court of First Instance of Misamis Oriental, docketed therein as Special Civil Case No. 386-M, for having allegedly entered the aforementioned parcels of land and illegally harvested the fruits of the coconut trees planted therein without petitioners' knowledge and consent, to the prejudice of said petitioners, for which they claimed damages in the sum of P7,000.00. 1 Answering, the private respondents admitted that the petitioners are the lawful owners of the parcels of land described in the petition. They claimed, however, that the respondents Fernando Esconde, Cesar Navarro, and Gregorio Bakerel are the tenants on the land, while the rest, except Francisco (Frank) Rodriguez who is allegedly an investigator designated by the Land Reform Farmers' Association to organize the tenants into an association to put up a solid front in a program to help the New Society and to secure the success of the land reform program, are the harvesters of the coconut lands. They also contended that the court has no jurisdiction over the case, which is purely agrarian in nature and cognizable by the Court of Agrarian Relations. As counterclaim, said respondents alleged that they suffered moral damages for mental anguish, mental torture, wounded feelings, moral shock, serious anxiety and other inconveniences as a result of the filing of the case, for which they asked to be paid the sum of P17,000.00. 2 After hearing, or on 13 December 1976, the respondent judge found that the issuance of a temporary restraining order would be proper in the interest of justice and, consequently, ordered the respondents to cease and desist from gathering fruits from the coconut trees in the land until the petition for injunction shall have been heard and resolved. 3 The respondents filed a motion for reconsideration of said order, 4 and on 10 January 1977, the respondent judge issued the controversial order suspending hearings on the case pending the comment and or certification thereon by the Secretary of Agrarian Reform in accordance with PD 1038. 5 The petitioners moved for reconsideration of this order, but their motion was denied. 6 Hence, the present recourse. Pertinent provisions of the Decree (PD 1038) requiring referral of cases involving landlord and tenant to the Secretary of Agrarian Reform read as follows: SEC. 2. No judge of the courts of agrarian relations, courts of first instance, city or municipal courts, or any other tribunal or fiscal shall take cognizance of any ejectment case or any other case designed to harass or remove a tenant of an agricultural land primarily devoted to rice and/or corn, unless certified by the Secretary of Agrarian Reform as a proper case for trial or hearing by a court or judge or other officer of competent jurisdiction and, if any such case is filed, the case shall first be referred to the Secretary of Agrarian Reform or his authorized representative in the locality for a preliminary determination of the relationship between the contending parties. If the Secretary of Agrarian Reform or his authorized representative in the locality finds that the case is a proper case to hear, he shall so certify and such court, judge or other hearing officer may assume jurisdiction over the dispute or controversy.

Page

166

The preliminary determination of the relationship between the contending parties by the Secretary of Agrarian Reform, or his authorized representative, is not binding upon the court, judge or hearing officer to whom the case is certified as a proper case for trial. Said court, judge or hearing officer may, after due hearing, confirm, reverse or modify said preliminary determination as the evidence and substantial merits of the case may warrant. SEC. 3. All cases still pending before any court, fiscal or other investigating body which are not yet submitted for decision or resolution shall likewise be referred to the Department of Agrarian Reform for certification as provided in the preceding section. As may be noted, the law requires that an ejectment case or any case designed to harass or remove a tenant should first be referred to the Secretary of Agrarian Reform for a preliminary determination of the relationship between the parties. The Solicitor General, in his Memorandum for the public respondents, 7explains that the referral of ejectment cases against a tenant to the Secretary of Agrarian Reform is intended to prevent the filing of suits designed to harass the tenant who can M afford to engage in such suits. He says: The requirement of preliminary determination by the Secretary of Agrarian Reform is intended to protect tenants in agricultural lands from vexatious and oppressive litigations and save them the expense and the anxiety of such trials. Courts can be trusted to protect tenants from malicious and oppressive lawsuits, but because of the nature of the adversary system they cannot act at the beginning so as to save tenants the expense and trouble of having to defend themselves against such cases. Under the adversary system tenants will have to defend themselves, which means that they have to hire counsel, pay for transportation of witnesses, and incur other expenses incident to trial before they may finally get vindication. The system thus compels them to go to trial and thereby go into expense. Petitioners claim, however, that the decree, ordering the referral of cases to the Secretary of Agrarian Reform, is unconstitutional as it is an undue encroachment on the independence of the judiciary and places courts of justice under the "control and supervision" of the Secretary of Agrarian Reform. The contention is devoid of merit. It proceeds from an erroneous assumption that the Secretary of Agrarian Reform is the final arbiter on the question of whether or not an ejectment case (or a case designed to harass or remove a tenant) filed against a tenant, may be tried by the courts. A close look at the law in question will show that no such power has been granted the Secretary of Agrarian Reform. In the first paragraph of Section 2 of the law in question, it is stated that a case which seeks the ejectment, harassment or ouster of a tenant from the landholding should be referred to the Secretary of Agrarian Reform "for a preliminary determination of the relationship between the contending parties." However, the second paragraph of the same section provides that "the preliminary determination of the relationship between the contending parties by the Secretary of Agrarian Reform, or his authorized representative, is not binding upon the court, judge or hearing officer to whom the case is certified, " and that "said court, judge or hearing officer may, after due hearing, confirm, reverse or modify said preliminary determination as the evidence and substantial merits of the case may warrant." Since the referral of ejectment and other cases against a tenant to the Secretary of Agrarian Reform is only for the preliminary determination of the relationship between the contending parties and the findings of the Secretary of Agrarian Reform are not binding on the courts, there is no diminution of judicial power involved in the operation of the law nor an encroachment on the independence of the judiciary by the Secretary of Agrarian Reform. But, suppose, the Secretary of Agrarian Reform, after such preliminary determination of the relationship of the parties, refuses to certify the case to the court as proper for hearing? Then, resort to the courts may still be made. This Court has categorically declared that there is an underlying power in the courts to scrutinize the acts of agencies exercising quasi-judicial or legislative powers on questions of law and jurisdiction even though no right of judicial review is expressly given by statute. 8 Petitioners contend that the law in question is not a valid exercise of police power by the state, mainly because it is not directed to produce the greatest benefit to all the members of society. They contend further that the actual operation of the challenged decree has caused hardship and injustice to many, hampered instead of hastened the social and economic progress of the community and wrought havoc and chaos in the orderly administration of justice, 9 because it ties the hands of the courts, while a case is pending before the Department of Agrarian Reform for certification. To underscore their claim, petitioners cite the "run-around" they have experienced in pursuing their cause. They state: . . . they have exhausted all the legal remedies available in the inferior courts such as the Courts of First Instance of Misamis Oriental, City Court of Gingoog City, including the Office of the City Fiscal of Gingoog City and the Civil Affairs Office of the Philippine Constabulary of Misamis Oriental as well as the Court of Agrarian Relations. All the parties herein have been at a "dead-end," occasioned by the "referral provisions" in some of the agrarian laws, more specifically the pertinent Presidential Decrees. The first legal action taken by petitioners in the government offices below were the criminal charges of thefts against herein private respondents directly filed with the Office of the City Fiscal of Gingoog City but which the City Fiscal had to refer to the Regional Office of the Department of Agrarian

Page

167

Reform at Cagayan de Oro City as required by Presidential Decrees and which criminal cases up to now have not been "preliminarily determined" by the said Regional Office. Another case a special civil action was instituted by petitioners against private respondents herein in the Court of First Instance of Misamis Oriental, Branch II, at Medina, Misamis Oriental, but which Court of First Instance, after having taken cognizance of the case, had to "refer" the same to the Secretary of Agrarian Reform, Quezon City, "for his comment and/or certification." Later on private respondents filed a civil case against one of petitioners herein before the Court of Agrarian Relations at Cagayan de Oro City, but the Agrarian Court held in abeyance the hearing of the case due to the pendency of that prior case in the Court of First Instance as well as the pendency of the present action before this Honorable Supreme Court. Even the Civil Affairs Office of the Provincial Command of the Philippines Constabulary in Misamis Oriental could not entertain the complaints and counter-complaints of the parties herein, because the PC authorities have to abide with the "referral provisions" which empower the Department of Agrarian Reform to exercise the authority of "certifying" to the "propriety" or "impropriety" of the subject-matter. 10 The above allegations, however, eloquently show that the "run-around" which petitioners have gone through is more a product of their own doing rather than a flaw in the operation of the questioned law. Instead of moving from one forum to another, while their cases were pending before the Department of Agrarian Reform for certification, petitioners could have seasonably instituted an action to compel the Secretary of Agrarian Reform to issue said certification, one way or the other, after an unreasonable period of inaction. Petitioners assert that the operation of the challenged law violates the constitutional provision on the right to a "speedy disposition of cases." Corollary to this, they submit that the challenged law complicates the prescriptive period of offenses and the criminal and civil liabilities provided in the Revised Penal Code and other penal laws. To nourish their argument, petitioners call attention to the fact that even prior to 30 November 1976, they had filed directly with the Office of the City Fiscal of Gingoog City, two (2) criminal complaints, one, for theft of bamboo poles and the other, for theft of coconuts, against private respondents. And as mandated by the challenged law, the City Fiscal forwarded both case, on 1 February 1977 and I July 1977, respectively, to the Office of the Department of Agrarian Reform in Misamis Oriental, for referral purposes. As a result, months have passed, and yet, no advice or resolution has been received by the City Fiscal from the Department of Agrarian Reform. Petitioners then conclude: "As to why as of July 1, 1977 no action has been taken by the Regional DAR on the referral cases (and this is so until now) is beyond comprehension. This obtaining actual situation is this not a violation of Sec. 16 of the Bill of Rights (sic)? Justice delayed is justice denied. 11 The guarantee of the right to "a speedy disposition of cases," which the Constitution expressly provides, 12recognizes the truism that justice delayed can mean justice denied. Likewise, the broad sweep that the guarantee comprehends, when it provides that the right is available before all judicial, quasi-judicial or administrative bodies, confirms that the application of the immunity from arbitrary and oppressive delays is not limited to an accused in a criminal proceeding but extends to all parties and in all cases. Hence, under the constitutional provision, any party to a case may demand expeditious action on the part of all who are officially tasked with the proper administration of justice. However, "speedy disposition of cases" is a relative term. Just like the constitutional guarantee of "speedy trial" 13accorded an accused in all criminal proceedings, "speedy disposition of cases" is a flexible concept. 14 It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory. In the determination of whether or not the right to a "speedy trial" has been violated, certain factors may be considered and balanced against each other. These are length of delay, reason for the delay, assertion of the right or failure to assert it, and prejudice caused by the delay. 15 The same factors may also be considered in answering judicial inquiry whether or not a person officially charged with the administration of justice has violated the "speedy disposition of cases" guarantee. To strike down a law on the ground that it violates the guarantee of "speedy disposition of cases" requires more than a citation of what may be a misfeasance or malfeasance of a public officer whose duty and responsibility it is to apply and administer the law. The challenge must be based on a clear showing that it is the law, or its operation, and not merely its administration, which invades and impairs constitutionally protected personal or property rights. In the case at bar, it is true that the referral of cases to the Department of Agrarian Reform opens the door to more bureaucratic red tape and, perhaps, more opportunities for corrupt practices. The defects in the bureaucratic system do not, however, constitute valid arguments against the merits of legislative policy intended to protect the legitimate tenant-tiller. Besides, it is not for this Court to determine the wisdom of PD 1038. This is a matter left for Congress to reexamine in the exercise of its legislative authority. Contrary to the petitioners' argument, the challenged law does not complicate the prescriptive periods of offenses and criminal and civil liabilities as provided in the Revised Penal Code and other penal laws. Under Art. 91 of the Revised Penal Code, a period of

Page

168

prescription which has run before it is interrupted, commences to run again only in two instances: (1) when a proceeding based upon a complaint or an information terminates without the accused being convicted or acquitted or (2) when such a proceeding is unjustifiably stopped for any reason not imputable to an accused. Applying these rules, once a complaint is filed with the fiscal and the latter refers the case to the Secretary of Agrarian Reform or his representative in the locality for preliminary determination, as a consequence of an allegation by the respondent of a tenant-landlord relationship between him and the complainant, and harassment by the latter, such a referral does not operate to resume the running of prescription. This is so because, under the challenged law, the referral of a case to the Secretary of Agrarian Reform does not "terminate," but merely suspends, a proceeding. To "terminate" means to put an end to, to make to cease or to end. 16 It connotes finality. On the other hand, the referral of a case to the Secretary of Agrarian Reform merely discontinues temporarily a proceeding, or stops it with an expectation of resumption. Likewise, when a proceeding before a fiscal is temporarily stopped by virtue of a faithful compliance with the challenged law, neither can the suspension be considered unjustifiable, and thus it is not a legal ground for the resumption of the running of the period of prescription. Considering, therefore, that the referral of a case to the Secretary of Agrarian Reform does not permit the resumption of the running of the period of prescription, the argument that the challenged Decree provides a means by which offenses may prescribe during the pendency of cases involving such offenses before the Secretary of Agrarian Reform or his representative for preliminary determination, cannot be accepted seriously. However, while we hold that the assailed Decree is constitutional, it is nonetheless clear that the order directing referral of the case to the Secretary of Agrarian Reform was issued on 10 January 1977. Ten (10) years have elapsed since then and the Secretary of Agrarian Reform has had more than sufficient time to conduct the required preliminary determination of the relationship of the parties, but he has evidently not done so. It is now time for said court to settle and decide the issues between the contending parties in this case, without waiting for the certification of the Secretary of Agrarian Reform. WHEREFORE, the petition is granted. That portion of the Order issued on 10 January 1977 in Special Civil Case No. 386-M of the Court of First Instance of Misamis Oriental, entitled: "Manuel Q. Caballero, et al., petitioners versus Fernando Esconde, et al., respondents," which directed the suspension of the proceedings in said case, pending the comment and/or certification thereon by the Secretary of Agrarian Reform, is hereby set aside. The respondent judge is directed to hear and decide said case as expeditiously as possible. Without costs. SO ORDERED.

Page

169

(2) DOMINGO PADUA, petitioner, vs. RAMOS, respondents. [G.R. No. L-38570 May 24, 1988] NARVASA, J.:

VICENTE

ERICTA,

etc.,

RUNDIO

ABJAETO,

and

ANTONIO

G.

Courts should not brook undue delays in the ventilation and determination of causes. It should be their constant effort to assure that litigations are prosecuted and resolved with dispatch. Postponements of trials and hearings should not be allowed except on meritorious grounds; and the grant or refusal thereof rests entirely in the sound discretion of the Judge. It goes without saying, however, that that discretion must be reasonably and wisely exercised, in the light of the attendant circumstances. Some reasonable deferment of the proceedings may be allowed or tolerated to the end that cases may be adjudged only after full and free presentation of evidence by all the parties, specially where the deferment would cause no substantial prejudice to any part. The desideratum of a speedy disposition of cases should not, if at all possible, result in the precipitate loss of a party's right to present evidence and either in plaintiff's being non-suited or the defendant's being pronounced liable under an ex partejudgment. ... (T)rial courts have ... the duty to dispose of controversies after trial on the merits whenever possible. It is deemed an abuse of discretion for them, on their own motion, to enter a dismissal which is not warranted by the circumstances of the case' (Municipality of Dingras v. Bonoan, 85 Phil. 458-59 [1950]). While it is true that the dismissal of an action on grounds specified under Section 3, Rule 17 of the Revised Rules of Court is addressed to their discretion (Flores v. Phil. Alien Property Administrator, 107 Phil. 778 (1960]; Montelibano v. Benares, 103 Phil. 110 [1958]; Adorable v. Bonifacio, 105 Phil. 1269 [1959]; Inter-Island Gas Service, Inc. v. De la Gerna, L17631, October 19, 1966, 18 SCRA 390), such discretion must be exercised soundly with a view to the circumstances surrounding each particular case (Vernus-Sanciangco v. Sanciangco, L-12619, April 28, 1962, 4 SCRA 1209). If facts obtain that serve as mitigating circumstances for the delay, the same should be considered and dismissal denied or set aside ( Rudd v. Rogerson, 15 ALR 2d 672; Cervi v. Greenwood, 147 Coloma 190, 362 P. 2d 1050 [1961]), especially where the suit appears to be meritorious and the plaintiff was not culpably negligent and no injury results to defendant (27 C.J.S. 235-36; 15 ALR 3rd 680).<re||an1w> (Abinales vs. Court of First Instance of Zamboanga City, Br. I, 70 SCRA 590, 595). It is true that the allowance or denial of petitions for postponement and the setting aside of orders previously issued, rest principally upon the sound discretion of the judge to whom they are addressed, but always predicated on the consideration that more than the mere convenience of the courts or of the parties of the case, the ends of justice and fairness would be served thereby (Camara Vda. de Zubiri v. Zubiri, et al., L-16745, December 17, 1966). When no substantial rights are affected and the intention to delay is not manifest, the corresponding motion to transfer the hearing having been filed accordingly, it is sound judicial discretion to allow them (Rexwell Corp. v. Canlas, L16746, December 30, 1961). (Panganiban vs. Vda. de Sta. Maria, 22 SCRA 708, 712). In the civil action at bar, the Trial Court rejected the plaintiffs plea for cancellation of one of three (3) hearing dates, the very first such plea made by that party, upon a ground not entirely unmeritorious in the premises, and under such circumstances as would not be productive of any appreciable delay in the proceedings or any substantial prejudice to the defendants, and summarily dismissed the complaint. Such a dismissal was unwarranted and relief therefrom must be accorded. The action that was thus summarily dismissed had been brought by Domingo Padua (petitioner herein) in the Court of First Instance at Quezon City. 1 In that action Padua sought to recover damages for the injures suffered by his eight-year old daughter, Luzviminda, caused by her being hit by a truck driven by Rundio Abjaeto and owned by Antonio G. Ramos (private respondents herein). Padua was litigating in forma pauperis. Trial of the case having been set in due course, Padua commenced presentation of his evidence on December 6, 1973. He gave testimony on direct exqmination in the course of which reference was made to numerous documents, marked Exhibits B, B-1 to B109. 2 At the close of his examination, and on motion of defendants' counsel, the previously scheduled hearing of December 12,1973 was cancelled, and Padua's cross-examination was reset on December 17, 1973. 3 However, the hearing of December 17,1973 was also cancelled, again at the instance of defendants' counsel, who pleaded sickness as ground therefor; and trial was once more slated to "take place on March 6, March 7 and 13, 1974, all at 9:00 o'clock in the morning." 4 After defendants' attorney had twice sought and obtained cancellation of trial settings, as above narrated, it was plaintiff Padua's counsel who next moved for cancellation of a hearing date. In a motion dated and filed on March 1, 1974, 5 copy of which was personally served on defendants' lawyer 6 Padua's counsel alleged that he had " another hearing on March 6, 1974 in Tarlac Court of First Instance entitled: Salud Dupitas vs. Mariano Abella, Civil Case No. 4904 which is of 1966 stint, and said court in Tarlac is

Page

170

anxious to terminate said case once and for all," and that the cancellation would " at any rate ... leave plaintiff and defendants two (2) hearing dates on March 7 and 13, 1974;" and on these premises, he asked "that the hearing on March 6, 1974 ... be ordered cancelled." No opposition was filed by the defendants to the motion, whether on the ground that the motion had not been properly set for hearing, the clerk having merely been requested to "submit the ... motion upon receipt ... for the consideration of the Court," 7 or some other ground. Apart from filing this motion on March 1, 1974, plaintiffs counsel took the additional step of sending his client's wife to the Court on the day of the trial, March 6,1974, to verbally reiterate his application for cancellation of the hearing on that day. This, Mrs. Padua did. The respondent Judge however denied the application and dismissed the case. His Honor's Order, dictated on that day, March 6, 1974, reads as follows: 8 When this case was called for hearing today, neither plaintiff nor counsel appeared. The plaintiffs wife, however, appeared in Court and informed the Court that the plaintiffs counsel had to attend to a very important case in the provinces. The hearing for today was fixed by the plaintiff himself in open court after consulting his calendar and hence the Court will not grant the postponement on the ground that the plaintiffs counsel had a very important case in the provinces. Neither did the plaintiff himself appear. In view hereof, let this case be dismissed. Padua moved for reconsideration, 9 but this was denied. 10 Hence, this petition. The Trial Court unaccountably ignored the fact that defendants' counsel had twice applied for and been granted postponements of the trial; that plaintiffs counsel had filed a written motion for postponement five (5) days prior to the hearing sought to be transferred, and this was the very first such motion filed by him; that although the motion for postponement could have been objected to, no opposition was presented by defendants, which was not surprising considering that their counsel had himself already obtained two (2) postponements; that the ground for cancellation was not entirely without merit: the counsel had a case in the Tarlac Court scheduled on the same day, March 6, 1974, which had been pending since 1964 and which the Tarlac Court understandably was anxious to terminate; that the Padua motion for postponement sought cancellation of only one (1) of three settings, leaving the case to proceed on the two (2) subsequent hearing dates; and the motion had been verbally reiterated by plaintiffs wife on the day of the hearing sought to be cancelled, Under the circumstances, and in the light of the precedents set out in the opening paragraphs of this opinion, the respondent Judge's action was unreasonable, capricious and oppressive, and should be as it is hereby annulled. WHEREFORE, the writ of certiorari is granted and the Order of the Court a quo dated March 6, 1974, dismissing the petitioner's complaint, and the Order dated March 13, 1974 denying petitioner's motion for reconsideration, are hereby ANNULLED AND SET ASIDE; Civil Case No. Q-17563 is hereby REINSTATED and the Regional Trial Court which has replaced Branch XVIII of the Court of First Instance in which the action was pending at the time of dismissal, is DIRECTED to continue with the trial of the petitioner's action and decide the same on the merits in due course.

Page

171

(3) FRANCISCO GUERRERO, petitioner, vs. HON. COURT OF APPEALS, (Former Special Seventh Division), REGIONAL TRIAL COURT OF MALABON, BRANCH 72, and PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 107211 June 28, 1996] PANGANIBAN, J.: "Does the constitutional right to a speedy trial include the right to a prompt disposition and judgment?" This is the question posed before this Court in the instant petition for review under Rule 45 seeking to set aside (a) the Decision 1 of the Court of Appeals 2 promulgated on February 18, 1992 in CA-G.R. SP No. 23737; and (b) the Resolution promulgated on September 10, 1992 denying the motion for reconsideration. By a resolution dated November 13, 1935, the First Division of this Court transferred this case, along with several others, to the Third. After careful deliberation and consultation on the petition, comment, reply, memoranda and other submissions of the parties, this Court assigned the writing of this Decision to the undersigned ponente. The Facts The antecedents are not disputed. As summarized by the Solicitor General in his memorandum, they are as follows:
3

On November 16, 1971, an Information for Triple Homicide Through Reckless Imprudence was filed against petitioner before the Court of First Instance, Branch XXXV, Caloocan City, presided by Judge Manuel A. Argel, and docketed as Criminal Case No. C-2073. which reads: That on or about the 13th day of May, 1969, in the Municipality of Malabon, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being then the pilot of non-commercial Aircraft, type Camanche PA-24-250 with registration marking PI-C515, then in-charge of, and has complete responsibility for, the maintenance and operation of said aircraft, without taking the necessary care and precaution to avoid accidents or injuries to persons, and without ascertaining as to whether the quantity of fuel in the tanks of said aircraft was sufficient for the flight from Cuyapo, Nueva Ecija to MIA, Paraaque, Rizal, did, then and there willfully, unlawfully and feloniously operate, fly, pilot, maneuver and/or conduct the flight of said aircraft from the airport at Cuyapo, Nueva Ecija with four (4) passengers on board, and while the said aircraft was already airborne after several minutes, the engine quitted twice indicating that there was no more fuel, prompting the accused to make an emergency manner landing on a fishpond which he executed in a careless, negligent and imprudent manner in the Piper Camanche Owner's handbook, and as a result of the improper execution of said emergency landing, the aircraft's landing gear collided with a dike and trees near the fishpond in Malabon, Rizal, resulting to the fatal injuries in three (3) passengers, namely, Cpl. Teodoro Neric, Jose Mari Garcia and Lourdes Garcia which directly caused their deaths. Contrary to law.
Due to several postponements, all filed by the petitioner, the prosecution was finally able to start presenting its evidence on September 29, 1972 after petitioner entered his plea of "Not Guilty". On August 19, 1975, the prosecution finally rested its case. On February 7, 1978, the defense rested its case. On March 16, 1978, the hearing was terminated and the parties were ordered by Judge Argel to submit their respective memoranda.

Page

On December 21, 1979, petitioner filed his memorandum.

172

On January 19, 1979, Judge Bernardo P. Pardo who ostensibly took over as presiding judge vice Judge Argel, granted private prosecutor's omnibus motion to file memorandum up to January 29, 1979.

It would appear that from the RTC of Caloocan City, Branch XXXV, the case was subsequently assigned to Branch CXXV presided over by Judge Alfredo Gorgonio who apparently did not take action thereon. On January 30, 1989, Court Administrator Meynardo Tiro ordered the reraffling of the case from the RTC of Caloocan City, Branch CXXV to the RTC of Navotas-Malabon which, under the provisions of B.P. 129, had jurisdiction over the case. The case, now docketed as Criminal Case No. 7356-MN, was raffled to presiding Judge Benjamin N. Aquino of the RTC, Navotas-Malabon, Branch 72. On March 14, 1990, Judge Aquino ordered the parties to follow-up and complete the transcript of stenographic notes within 30 days considering that the same was found to be incomplete. On April 20, 1990, since the parties were not able to complete the transcript of stenographic notes, the court ordered the retaking of the testimonies of the witnesses. On May 15, 1990, the private prosecutor submitted copies of the duplicate originals of the testimonies of Eusebio Garcia and Elena Obidosa (December 11, 1969), Celestino Nazareno (March 16, 1973), Cenen Miras (April 27, 1973), Ariston Agustin (February 10, 1977) and Francisco Guerrero (December 5 and 19, 1977). The private prosecutor manifested that he had communicated with one of the stenographers on record, Ms. Remedios S. Delfin, who promised to look into her files and hopefully complete the transcription of her stenographic notes. On October 1, 1990, the presiding Judge set the retaking of the witnesses testimony on October 24, 1990. On October 24, 1990, the retaking of the testimonies was reset to November 9, 1990 due to petitioner's failure to appear on the scheduled hearing. On November 7, 1990, petitioner filed a motion to dismiss on the ground that his right to speedy trial has been violated. On November 9, 1990, presiding Judge dented the motion to dismiss and reset the retaking of the testimonies to November 21, 1990. On November 16, 1990, petitioner filed a motion for reconsideration which was denied oil November 21, 1990. The presiding Judge set anew the retaking of the testimonies December 5, 1990. Hence, petitioner filed petition for certiorari, prohibition and mandamus for the review of the orders of the Regional Trial Court dated November 9, 1990 and November 20, 1990 anent petitioner's motion to dismiss, as well as his motion for reconsideration. The petition was anchored on the alleged violation of petitioner's constitutional right to speedy trial. In its decision which was promulgated on February 18, 1992, the Honorable Court of Appeals dismissed the petition. In a resolution dated September 10, 1992, petitioner's motion for reconsideration was denied.

Errors Assigned Petitioner now assigns the following errors 4 against the respondent Court: I. The respondent Court of Appeals erred in not finding that the re-hearing of the instant case will not suit the intended purpose and will only result in untold prejudice to the petitioner. II. The respondent Court of Appeals erred in not ruling that the petitioner is entitled to a dismissal of the criminal case equivalent to an acquittal on the merits based on the violation of his right to speedy trial resulting from the failure to render a prompt disposition of judgment. The First Issue: Untold Prejudice Petitioner claims that through no fault of his, seven of the ten witnesses who testified for the accused will no longer be able to testify anew.

Page

173

So too, three witness for the prosecution have died and thus would not be able to appear during the re-hearing. And even if all witnesses would be able to testify again, "the passage of a long period of time spanning more than two decades since the incident complained of will tend to confuse or hinder than aid the accurate recall of the facts and circumstances of the case," as follows 5: (a) Capt. Ricardo B. Stohner of the Civil Aeronautics Administration has reportedly migrated to either the U.S.A. or Canada, after he retired from the CAA about eight (8) years ago. Capt. Stohner's indispensable testimony as an expert witness as well as to his personal knowledge of certain material facts as described in Francisco Guerrero's Memorandum of 17 December 1979, crucial to the defense, is now lost to the petitioner. (b) Eduardo V. Guerrero, a son of Francisco Guerrero, has been undergoing psychiatric treatment for more than two years now, as he is suffering from chronic mental illness. He is in no condition to testify. Copies of medical certificates on Eduardo's condition were submitted to the respondent courts as annexes to various pleadings. (c) Rosario V. Guerrero, wife of Francisco Guerrero. was operated on last August for tumor of the colon and is still suffering a partial disability. She is under medical advice to avoid activities which may cause her stress, including testifying in court. Copies of medical certificates on Mrs. Guerrero's operation and condition were submitted to the respondent courts as annexes to various pleadings. (d) The whereabouts of Alberto Atanacio, Rodolfo Fontanilla, Editha Pangilinan, and Rizal and Belen Macabole, are unknown, and despite diligent efforts exerted by petitioner, they have not been found up to the present. At this point, this argument is premature and at best speculative. As to whether the witnesses for the defense would be available at the trial, and if available, whether they will still be in a position to recall the events that transpired in the case more than twenty five years ago is a question of fact which cannot be determined now. As pointed out by the Solicitor General in his memorandum: 6 Contrary to petitioner's contention, the whereabouts of his witnesses (except Rizal and Evelyn Macabole) are ascertainable should a diligent search be made by him. This can be gleaned from the return of the subpoena dated October 1, 1990 which forms part of the record of the case. Eduardo Guerrero and Rosario Guerrero were respectively served with subpoena and their alleged mental and physical incapacity to testify should best be left to the assessment of respondent trial court. Edith (sic) Pangilinan was notified of the retaking and is, thus, available. Alberto Atanacio and Rodolfo Fontanilla, on the other hand, are in Lucena City. The exact whereabouts of the last two witnesses can be ascertained if diligent efforts were exerted to locate them. The alleged unavailability of the witnesses for the prosecution should not be the concern of the petitioner at this time. The burden of proving his guilt rests upon the prosecution. And if the prosecution fails for any reason to present evidence sufficient to show his guilt beyond reasonable doubt, he will be acquitted. . . . The burden of proof rests upon the prosecution and unless the State succeeds in proving his guilt. the presumption of innocence in favor of the accused-appellant applies. The conscience must be satisfied that, on the accused-appellant could be laid the responsibility of the offense charged. 7 . . . [C]ourts must exert utmost scrupulousness in evaluating the evidence of the prosecution for it is elementary that the conviction of an accused must rest on the strength of the prosecution and not on the weakness of the defense (People vs. Cruz, 215 SCRA 339 [1992]). The prosecution must overcome the constitutional presumption of innocence by proof beyond reasonable doubt; otherwise, the acquittal of the accused is ineluctably demanded. . . . 8 . . . It is safely entrenched in our jurisprudence that unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his behalf. Acquittal then of the accused-appellant is in order. 9 On this matter, the respondent Court, 10 citing the assailed order of the trial court, argues that there are really only two witnesses of the prosecution whose testimonies need to be retaken and the rehearing should not really present a monumental problem: With only two (2) witnesses of the prosecution to be presented, coupled with a promise of expeditiousness by respondent Judge, the Court is of the view that petitioner's misgivings are rather exaggerated. And as to his expressed fear that his own witnesses for the defense can no longer testify "in the same manner as before," the same Order well and truly states in adequate refutation that --

Page

174

. . . the fear that the witnesses to the incident which occurred in 1969 may no longer have the same perception of what they saw and, therefore, would not be able to testify in Court in the same manner they originally testified is not the concern of the defense but of the prosecution. If the prosecution witnesses cannot give convincing testimony in the retaking of their testimony, that is the worry of the prosecution. It is not even unfair to the accused if his witnesses cannot testify in the same convincing manner that they testified before as long as the prosecution witnesses are convincing. Everything in a criminal prosecution should be interpreted liberally in favor of the accused and strictly against the state. . . . Anent petitioner's contention that the re-hearing would place him in double jeopardy, suffice it to say that there has been no termination of the criminal prosecution -- i.e. of that "first jeopardy." For double jeopardy to attach, the following elements must concur: . . . It is a settled rule that to raise the defense of double jeopardy, the following requisites must concur: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt, to commit the same or is a frustration thereof (emphasis omitted). And legal jeopardy attaches only: (a) upon a valid indictment: (b) before a competent court; (c) after arraignment; (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (emphasis omitted). In the present case, there has not even been a first jeopardy, since the fourth element -- dismissal or termination of the case without the express consent of the accused -- is not present. Moreover, measured against the aforequoted standard, the re-taking of testimonies cannot in any wise be deemed a second jeopardy. Hence, it is beyond dispute that petitioner's claim of double jeopardy is utterly without basis. The Second Issue: Speedy Trial and Speedy Disposition True, indeed, the 1987 Constitution provides the right not only to a speedy trial but also to a speedy judgment after trial when in Section 16, Article III, it provides: All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies. Hence, the Constitution mandates dispatch not only in the trial stage but also in the disposition thereof, warranting dismissals in case of violations thereof without the fault of the party concerned, not just the accused. In the recent case of People vs. Leviste, 12 this Court citing Gonzales vs. Sandiganbayan 13 and People vs. Tampal, 14reiterated the ruling that the right to speedy trial is violated only where there is an unreasonable, vexatious and oppressive delay without the participation or fault of the accused, or when unjustified postponements are sought which prolong the trial for unreasonable lengths of time. On the other hand, the case of Caballero vs. Alfonso, Jr., 15 laid down the guidelines in determining the applicability of the "speedy disposition" formula: . . . (S)peedy disposition of cases' is a relative term. Just like the constitutional guarantee of "speedy trial" accorded an accused in all criminal proceedings, "speedy disposition of cases" is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory. In the determination of whether or not the right to a "speedy trial" has been violated, certain factors may be considered and balanced against each other. These are length of delay, reason for the delay, assertion of the right or failure to assert it, and prejudice caused by the delay. The same factors may also be considered in answering judicial inquiry whether or not a person officially charged with the administration of justice has violated the "speedy disposition of cases" guarantee.

Page

175

In the case before us, the petitioner merely sat and waited after the case was submitted for resolution in 1979. It was only in 1989 when the case below was reraffled from the RTC of Caloocan City to the RTC of Navotas-Malabon and only after respondent trial judge of the latter court ordered on March 14, 1990 the parties to follow-up and complete the transcript of stenographic notes that matters started to get moving towards a resolution of the case. More importantly, it was only after the new trial judge reset the retaking of the testimonies to November 9, 1990 because of petitioner's absence during the original setting on October 24, 1990 that the accused suddenly became zealous of safeguarding his right to speedy trial and disposition. While it may be said that it was not petitioner's fault that the stenographic notes of the testimonies of the witnesses were not transcribed, yet neither was it the prosecution's. The respondent trial judge can hardly be faulted either because he could not have rendered the decision without the transcripts in question. Let it be remembered that he was not the judge who conducted the trial and hence he would not have had sufficient basis to make a disposition in the absence of the said transcripts. As respondent Court of Appeals noted: Indeed, it can be gleaned from the pleadings on file that the case was assigned to respondent Judge only in late 1989 or early 1990, and that he took prompt action thereon by setting the case for retaking of testimonies, obviously as a prelude to judgment. The case then was finally making progress toward termination. For such dispatch and diligence, respondent Judge hardly deserves condemnation. Petitioner also faults the prosecution for its failure to follow up the status of the case. As regards the other judge to whom the case was assigned prior to 1989, the accused himself could not pinpoint the cause of the problem: 16 2) Reason for the delay No one knows why the Presiding Judge (Manuel A. Argel) of the respondent court who heard the trial did not render a decision during his tenure. No one knows either why another former Presiding Judge (Alfredo Gorgonio) failed to turn over the case to the Malabon court during the Judiciary Reorganization under B.P. Blg. 129. It appears later on that the case became a victim of neglect and languished in the court docket, Not surprisingly, since the risk of such loss through neglect and other causes grew with each passing year, part of the records and several transcripts were lost in the time the case lay unattended. Before being finally assigned to the respondent trial court, the case was shuttled from court to court through various indorsements of Executive Judges and the Court Administrator of the Supreme Court as a result of the confusion as to which court had territorial jurisdiction over it. In the present case, there is no question that petitioner raised the violation against his own right to speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to assume that he would have just continued to sleep on his right -- a situation amounting to laches -- had the respondent judge not taken the initiative of determining the non-completion of the records and of ordering the remedy precisely so he could dispose of the case. The matter could have taken a different dimension if during all those ten years between 1979 when accused filed his memorandum and 1989 when the case was reraffled, the accused showed signs of asserting his right which was granted him in 1987 when the new constitution took effect, 17 or at least made some overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right. While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and although this Court has always zealously espoused protection from oppressive and vexatious delays not attributable to the party involved, at the same time, we hold that a party's individual rights should not work against and preclude the people's equally important right to public justice. In the instant case, three people died as a result of the crash of the airplane that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused but the people as well. Since the accused has completely failed to assert his right seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense, substantial justice in the premises. WHEREFORE, the petition is DENIED. The respondent trial court is directed to proceed with judicious dispatch in the re-taking of testimonies and in concluding the case in accordance with law. SO ORDERED.

Page

176

(4) FELICIDAD M. ROQUE and PRUDENCIO N. MABANGLO, petitioners, vs. OFFICE OF THE OMBUDSMAN; HON. OMBUDSMAN ANIANO DESIERTO; and HON. MARGARITO P. GERVACIO, JR., Deputy Ombudsman for Mindanao, respondents. [GR No. 129978 May 12, 1999] PANGANIBAN, J.: Consistent with the rights of all persons to due process of law and to speedy trial, the Constitution commands the Office of the Ombudsman to act promptly on complaints filed against public officials. Thus, the failure of said office to resolve a complaint that has been pending for six years is clearly violative of this mandate and the public officials rights. In such event, the aggrieved party is entitled to the dismissal of the complaint. The Case Filed before this Court is a Petition for Mandamus praying that the respondent public officers be directed to dismiss Ombudsman Case Nos. OMB-MIN-91-0201 and OMB-MIN-91-0203 and subsequently to issue the necessary clearance in petitioners favor.

The Facts The undisputed facts are narrated in respondents Memorandum[1]as follows: Petitioner Felicidad M. Roque was a Schools Division Superintendent of the Department of Education, Culture and Spor ts (DECS), assigned in Koronadal, South Cotabato, until her compulsory retirement on May 17, 1991 (pp. 2-3, Petition). Petitioner Prudencio N. Mabanglo was likewise a Schools Division Superintendent of the DECS, assigned in Tagum, Davao Province, until his compulsory retirement on May 8, 1997 (ibid.) On January 14, 1991, Laura S. Soriano and Carmencita Eden T. Enriquez of the COA, by virtue of COA Regional Office Assignmen t Order No. 91-174 dated January 8, 1991, conducted an audit on the P9.36 million allotment released by the DECS Regional Office No. XI to its division offices (Annexes M and N, Petition). As a result of the audit, auditors Soriano and Enriquez found some major deficiencies and violation of the Anti -Graft and Corrupt Practices Act (Republic Act No. 3019), violations of COA Circular Nos. 78-84 and 85-55A, DECS Order No. 100 and Section 88 of Presidential Decree No. 1445 (ibid.). Consequently, affidavits of complaint were filed before the Office of the Ombudsman -Mindanao against several persons, including petitioner Mabanglo on May 7, 1991, and against petitioner Roque on May 16, 1991 (ibid.). In an Order dated June 11, 1991, the Office of the Ombudsman -Mindanao found the complaints proper for a preliminary investigation. The case involving petitioner Mabanglo was docketed as OMB-MIN-91-0201 while that involving petitioner Roque was docketed as OMB-MIN-91-0203 (Annex O, Petition). Thereafter, petitioners filed their respective counter -affidavits (p. 4, Petition). On March 18, 1997, OMB-MIN-91-0201, which involved petitioner Mabanglo, was resolved by the Office of the OmbudsmanMindanao, finding that all the respondents [were] probably guilty of violation of Section 3 (e) and (g) of the Anti-Graft and Corrupt Practices Act (Republic Act 3019). The same was approved by respondent Ombudsman Desierto on September 19, 1997. An Information dated March 18, 1997, for Violation of Section 3 (g) of Republic Act 3019, as amended, was filed before the Sandiganbayan, Manila, against several respondents, among them, petitioner Prudencio N. Mabanglo. The same was docketed as Criminal Case No. 24229. On April 30, 1997, OMB-MIN-91-0203, which involved petitioner Roque, was resolved by the Office of the Ombudsman-MIndanao, recommending the filing [of cases] and prosecution of all the respondents for violation of Section 3 (e) and (g) of Republic Act 3019. The same was approved by respondent Ombudsman Desierto on August 22, 1997. Two Informations similarly dated April 30, 1997, for violation of Section 3 (g) of Republic Act 3019, as amended, and for Vi olation of Section 3 (e) of Republic 3019, as amended, were filed before the Sandiganbayan, Manila. The Informations charged several

Page

177

respondents, among whom was petitioner Roque. The cases were docketed as Criminal Case No. 24105 and Criminal Case No. 24106, respectively. On August 14, 1997, petitioners instituted the instant petition for mandamus premised on the allegation that [ a]fter the initial Orders finding the cases proper for preliminary investigation were issued on June[,] 1991 and the subsequent submission of their counteraffidavits, until the present[,] or more than six (6) years, no resolution has been issued by the Public Respondent [and no] case [has] been filed with the appropriate court against the herein Petitioner (par. 3, p. 4, Petition). On November 24, 1997, this Honorable Court issued a temporary restraining order directing respondents to cease and desist fr om further proceeding with the cases filed against petitioners.[2] On August 21, 1998, petitioners asked the Court to cite respondents in contempt, contending that a criminal information was filed in violation of the Temporary Restraining Order (TRO). In compliance with this Courts Resolution dated October 21, 1998,[3] the respondents filed their Comment to the Petition for Contempt. [4]

Issues In their Memorandum,[5] petitioners present before this Court the following issues: Whether or not there was undue and unjustifiable delay in resolving [the] complaints against petitioners (respondents therei n) which violated their constitutional right to [a] speedy disposition of cases[; and] Whether or not, such undue and unjustifiable delay in resolving the complaints against petitioners, would warrant dismissal of said complaints.[6] In addition, we shall also discuss (1) the propriety of mandamus as a remedy and (2) the respondents liability for contempt for allegedly violating the Temporary Restraining Order issued by this Court on November 24, 1997.

The Courts Ruling The Court grants the Petition for Mandamus, but denies the prayer to cite respondents in contempt of court.

Preliminary Issue: Propriety of Mandamus Respondents argue that petitioners cannot, by this special action for mandamus, compel the ombudsman to dismiss the criminal charges filed against them, since such dismissal involves a discretionary, not a ministerial, duty. The argument is not meritorious. As a general rule, the performance of an official act or duty, which necessarily involves the exercise of discretion or judgment, cannot be compelled by mandamus. This Court, however, has held that the rule does not apply in cases where there is gross abuse of discretion, mani fest injustice, or palpable excess of authority.[7] In First Philippine Holdings Corporation v. Sandiganbayan, the Court explained: Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is entitled, and there is no oth er plain, speedy and adequate remedy, the writ shall issue.[8] The Court gave a similar ruling in Kant Kwong v. Presidential Commission on Good Government:[9] Although as averred by respondents, the recognized rule is that, in the performance of an official duty or act involving dis cretion, the corresponding official can only be directed by Mandamus to act but not to act one way or another, yet it is not accurate to say that the writ will never issue to control his discretion. There is an exception to the rule if the case is otherwise proper, as in cases of gross abuse of discretion, manifest injustice, or palpable excess of authority. In Angchangco, Jr. v. Ombudsman,[10] this Court likewise held:

Page

178

It is correct, as averred in the comment, that in the performance of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other. However, this rule admits of exceptions such as in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of authority. [11] The exceptions cited apply to this case. It is undisputed that there has already been a long and unwarranted delay in the resolution of the graft charges against the two petitioners. The Complaint against Petitioner Mabanglo was filed with the Office of the Ombudsman in Mindanao way back on May 7, 1991, and that against Petitioner Roque on May 16, 1991. On June 11, 1991, the said Office found the Complaints sufficient for preliminary investigation. Significantly, no action was taken until after the lapse of almost six years. For violation of Section 3 (g) of RA 3019, the same Office recommended the filing of an Information against Petitioner Mabanglo only on March 18, 1997, and against Petitioner Roque only on April 30, 1997.

Main Issue: Violation of Petitioners Constitutional Rights Clearly, the delay of almost six years disregarded the ombudsmans duty, as mandated by the Constitution [12] and Republic Act No. 6770,[13] to act promptlyon complaints before him. More important, it violated the petitioners rights to due process and to a speedy disposition of the cases filed against them. Although respondents attempted to justify the six months needed by Ombudsman Desierto to review the recommendation of Deputy Ombudsman Gervasio, no explanation was given why it took almost six years for the latter to resolve the Complaints.[14] Thus, in Angchangco, Jr. v. Ombudsman, this Court dismissed a Complaint that had been pending before the Office of the Ombudsman for more than six years, ruling as follows: After a careful review of the facts and circumstances of the present case, the Court finds the inordinate delay of more than six years by the Ombudsman in resolving the criminal complaints against petitioner to be violative of his constitutionally guaranteed right to due process and a speedy disposition of the cases against him, thus warranting the dismissal of said criminal cases... [15] Similarly, in Tatad v. Sandiganbayan,[16] this Court dismissed the Complaints, which the then tanodbayan was able to resolve only after the lapse of three years since the cases had been submitted for disposition, viz.: We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be viola tive of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of speedy disposition of cases as embodied in Se ction 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inord inate delay is violative of the petitioners constitutional rights. A delay of close to three (3) years cannot be deemed reasonable or justifiable in the light of the circumstances obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that delay may be due to a painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence present ed during the preliminary investigation merited prosecution of a former high-ranking government official. In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republc Act 3019, which certainly did not involve complicated legal and factual issues necessitating such painstaking and grueling scrutiny a s would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving [of] unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. (Emphasis supplied.) We are not persuaded by respondents argument that the Petition for Mandamus became moot and academic when the Complaints were resolved by the Office of the Ombudsman for Mindanao and the Informations were filed. The same contention was rejected in Tatad v. Sandiganbayan, wherein the Court declared that the long and unexplained delay in the resolution of the criminal complaints against petitioners was not corrected by the eventual filing of the Informations. The Court ruled: It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True --- [for] the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation cannot be corrected, for until now, ma n has not yet invented a device for setting back time. x x x the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is vi olative of the constitutionally guaranteed right of the petitioner to due process and the speedy disposition of cases against him. Accordingly, the informations x x x should be dismissed x x x.[17]

Page

179

Although petitioners prayed only for the issuance of a ruling directing the dismissal of Ombudsman Case Nos. OMB-MIN-910201 and OMB-MIN-91-0203, this Court, in the interest of the speedy disposition of cases, resolves to dismiss the above cases directly. This ruling is in line with Angchangco, in which the Court dismissed the complaints outright, although petitioner therein sought merely to compel the ombudsman to do so. Additional Issue: No Contempt of Court Petitioner Mabanglo moves to have respondents and their agents cited in contempt of court for allegedly filing an Information against him in violation of the November 24, 1997 TRO issued by the Court, which ordered them to cease and desist from proceeding with the cases. The Petition to cite respondents in contempt is patently devoid of merit. In the first place, the Information against Petitioner Mabanglo was filed on September 25, 1997, before the issuance of the TRO on November 24, 1997. Hence, the TRO could not have been violated. In the second place, the said Petition for Contempt was filed in contravention of Section 4 (2), Rule 71 of the 1997 Rules of Court,[18] which states that if a petition for contempt arises from or is related to a principal action pending in court, it shall be docketed, heard and decided separately unless the court orders that both the principal action and the petition for contempt be consolidated for joint hearing and decision. In the instant case, the Petition for Contempt, which arose from the Petition for Mandamus, was filed as an integral part of the latter and under the same docket or case number. There is no showing that this Court has ordered their consolidation. WHEREFORE, the Petition for Mandamus is GRANTED and Ombudsman Case Nos. OMB-91-0201 and OMB-91-0203 are accordingly DISMISSED. The Petition to declare respondents in contempt is hereby DENIED. No costs. SO ORDERED.

Page

180

(5) LEONARDO MAGAT, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. L-55801 August 30, 1982] MELENCIO-HERRERA, J.: This is a petition for review of the Decision of the Court of Appeals 1 in CA- G.R. No. 23228-CR, affirming with modification the judgment of the Court of First Instance of Zambales, Branch 1, Olongapo City, in Criminal Case No. 4163 for Robbery convicting petitioner-accused, Leonardo Magat, of said crime. The evidence for the prosecution has been summed up by the Trial Court and adopted by the Court of Appeals, as follows: 1wph1.t James Philip Lanigan, American businessman by profession came to Olongapo City as a tourist and was billeted at the Admiral Royal Hotel in Olongapo City. At about 2:00 to 3:00 o'clock in the afternoon of July 19, 1979, Lanigan decided to take a walk from the hotel to the US Naval Base. Outside the main gate, he exchanged sixty dollars ($60.00) into pesos and when he got the money equivalent of his dollars, he started to walk back towards the Admiral Royal Hotel. He had only walked four (4) blocks along Magsaysay Drive when a jeep proceeded to follow alongside Lanigan and the driver insisted that the said American ride with him as the driver has a sister who has a bar down the street. The driver requested favor from the American to give away some cards which Lanigan can, perhaps, distribute to some of his friends. Lanigan rejected the offer of the stranger to ride in the jeep, so he went to a bar to avoid him and had a bottle of beer to drink. After approximately fifteen (15) minutes, he went out of the bar and again he noticed that the same driver with his jeep was waiting for him outside. The driver was insistent that he take his ride in his jeep so he will bring him to his destination. So Lanigan agreed and boarded the jeepney.t@lF The driver drove away towards Admiral Hotel but made a right turn at Rizal Avenue into a side street. Lanigan complained to the driver why he is going into that street when that is not the direction of the Admiral Royal Hotel and the driver answered that he will get the card first at his house for distribution. The driver later drove into a parking area in an address which was pointed as No. 8 Fontaine St. and he got off the jeep, followed by Lanigan who was told to come in Lanigan was introduced to the owner of the house who was later Identified as Leonardo Magat y Pineda alias 'Dolphy' who told him to sit down. While they were in the living room Magat talked to him saying that he should be careful in the Philippines because there are many pick- pockets and thereafter Magat then started to frisk him saying that he is going to make a demonstration of how a pick-pocket operates. Lanigan told him to get his hands out of his pocket and he pushed Magat's hands out of and started heading towards the door for his exit. The driver who was later on Identified as Francisco Velasco Brosas, immediately ran towards the door and locked it. And thereafter, a guy made a strangled hold on the American and the accused Magat together with his cohort emptied the pockets of Lanigan, consisting of eight hundred sixty American dollars ($860.00) and the seventy dollars which was converted into pesos, his passport, wallet, traveller's checks, airline tickets without his cash money and he was warned not to say anything and not to report the matter to the police authorities as he will be killed. The accused even made gestures making the American believe that he has a knife hidden in one of his pockets. Thereafter, Lanigan was taken into another room, made to sit down before a table and told him that they will teach him to play black jack. He was told that he can learn the game easily in ten minutes but Lanigan repeatedly refused to play with them but they kept on insisting but since he did not like to play, the accused said that they are going to release him, but he should not make any attempt to report the matter to the police as they can frame him up with the charges of rape pushing of marijuana and other similar crimes. Lanigan however, went inside the US Naval Base where he reported the matter to the members of the shore patrol and told them that he was robbed. The military police officers from the US Naval Base accompanied him and pointed out several houses which are suspected in this kind of modus operandi in the crimes of robbery committed against American servicemen and they came up to No. 8 Fontaine Extension where Lanigan told the military police that it was the same house where he was robbed. Considering that they had no jurisdiction since it was outside the US Naval Base, the Base police instructed the complainant to report the matter to the Olongapo City Police Department and it was at this juncture that a police officer by the name of 'Danny' drove up. Later, the complaining witness was brought to the Olongapo City Police Department where his statement (Exhibit 'A') was taken by Pfc. Ciriaco Marcelino, Jr., on July 23, 1979 and the accused Magat was Identified through his photograph taken in the gallery. On the following day, the complainant was again asked to come to the police headquarters for a supplemental statement (Exhibit 'B') wherein he Identified Francisco Brosas y Velasco as the driver of the jeep who brought him to the place where he was robbed. 2 Petitioner-accused, on the other hand, denied the commission of robbery and claimed that complainant lost the money to him in a card game. His version was synthesized by respondent Court of Appeals thus: 1wph1.t

Page

181

On the other hand, the defense' evidence discloses that in the afternoon of July 19, 1979, a certain driver named Brosas arrived with an American who turned out to be the herein complainant, at Magat's residence at No. 8 Fontaine Extension, Olongapo City. Brosas told Magat that the American was looking for a girl whom he will pay. Magat then told Brosas to look for a girl so that they could earn some money. Brosas left Magat's residence to look for a girl while complainant Lanigan waited for him in Magat's residence. While they were waiting, Magat invited Lanigan to play poker/blackjack, Lanigan agreed. The two of them sat by the table and they played six games. Magat won in five games but lost in one. Lanigan's total loss amounted to a little over P1500.00. Lanigan then told Magat that he will use his traveller's check since he had no more money. Magat did not agree and refused to play further with Lanigan. Magat's refusal irritated Lanigan. Lanigan then tried to grab the cash money in the possession of Magat at the time and the two of them struggled for possession of the money. In the meanwhile, Lanigan kept on shouting that he was cheated and that he wants his money back. Later, Lanigan told Magat that he is going to cash his traveller's check at Pag-asa where he has an American acquaintance. Lanigan, however, did not come back anymore that day. The following day he appeared at the residence of Magat with a CIS agent named Rene who told Magat that a certain Captain Santos, Chief of the CIS, wanted to see him in connection with Lanigans complaint. In the meantime, Patrolman Marcelino also arrived at the house of Magat who allegedly told the latter that if he will return the P500.00 of the complaining American, then the complaint against him will be settled. 3 On July 26, 1979, at 3:00 o'clock in the afternoon, an Information for Robbery was filed against Leonardo Magat, Francisco Brosas and four others in the Court of First Instance of Zambales, Branch 1, at Olongapo City. The case was immediately raffled and set for arraignment and trial. Only petitioner-accused was arraigned at 4:35 that same afternoon, as the others had not been apprehended. Petitions-accused entered a plea of "Not Guilty." The post-arraignment proceedings were as follows: 1wph1.t COURT Enter a plea of not guilty in favor of the accused. This is for immediate trial because according to the motion of the First Assistant City Fiscal, the complainant is a tourist. Are you now ready for trial? ATTY. BALINGIT If your Honor please, I was hired about a few minutes ago and I was indeed surprised to be contracted. Although I understand the extent of the law which requires the speedy trial of this case, however, if I may be given at least one (1) hour to confer with my witness, I will proceed with the trial. FISCAL ANONAS How many witnesses do you intend to present? COURT How about you, Fiscal? FISCAL ANONAS Two (2). COURT How about you Atty. Balingit? ATTY. BALINGIT Two (2). FISCAL ANONAS I have no objection to the conference between counsel and his witness but after we have already submitted our case. And besides, we have only twenty-four (24) hours. ATTY. BALINGIT But just only one (1) hour to confer to give me the chance to defend my client. COURT You can do that after the prosecution presented its witness. ATTY. BALINGIT Provided . . . COURT Before you could cross examine. For cross examination. You can consult your client from time to time. 4

Page

182

Trial proceeded and lasted up to 7:30 in the evening. The following day, trial was resumed at 8:30 o'clock in the morning when petitioner-accused and his witness, testified on direct, cross, and re-direct examination. At 11:35 that same morning, a judgment of conviction was promulgated, sentencing the accused to six (6) years and one (1) day to ten (10) years of prision mayor, to indemnify the offended party in the amount of P6,996.00, and to pay the costs. Petitioner-accused appealed to the Court of Appeals. Instead of filing a Brief for the People, the Office of the Solicitor General filed a Motion and Manifestation joining the accused's cause, and recommending the reversal of the Trial Court's judgment on the ground that complainant is not a transient visitor; that said Court acted with unusual haste in the arraignment, trial, and rendition of the judgment of conviction; and that the evidence adduced failed to prove the guilt of the accused beyond reasonable doubt. In its Decision promulgated on August 21, 1981, the Court of Appeals refuted the contentions of the Office of the Solicitor General, affirmed conviction, but modified the penalty. 1wph1.t WHEREFORE, finding accused-appellant guilty beyond reasonable doubt as principal in the crime of ROBBERY as charged in the information, defined by Art. 293 of the Revised Penal Code and penalized under Art. 294, par. 5 thereof; and there being no aggravating nor any mitigating circumstance affecting his criminal liability, thus entitling him to the imposition of the penalty in its medium period, he is therefore hereby sentenced to an indeterminate penalty of 2 years, 4 months and 1 day of prision correccional as the minimum to 8 years of prision mayor as the maximum and to pay costs. Except with the aforesaid modification, the judgment appealed from is hereby AFFIRMED in all other respects. Petitioner-accused appealed by certiorari to this Court assigning the following errors to the Court of Appeals: 1wph1.t 1. The Respondent Honorable Court of Appeals erred in brushing aside the mute but clear import of lack of adherence to the basic fundamental formulation of due process whereby counsel and client must be accorded the right to be heard i.e., before proceedings to commence trial ample opportunity must be given for them to confer and prepare for the defense. 2. The Respondent Honorable Court of Appeals erred in not sustaining the submission for acquittal made by the state counsel, the Honorable Solicitor General in its Motion and Manifestation in lieu of appellee's brief anchored upon grave and conclusive circumstantial facts negativing petitioner's guilt. 3. The respondent Honorable Court of Appeals erred in merely modifying the judgment of conviction of the petitioner based upon mere assumptions and suspicion of guilt. Required to comment by this Court, the Office of the Solicitor General adopted its Motion and Manifestation filed before the Court of Appeals and recommended the grant of the petition for certiorari averring that the findings and conclusions of respondent Court of Appeals are not supported by substantial evidence. In his first assigned error, petitioner-accused claims lack of due process because of the unusual speed with which the Trial Court disposed of his case. The record does show that the accused was arraigned at 4:35 P.M. on July 26, 1979. The request of defense counsel for one hour within which to confer with his client was deferred by the Trial Court till after the prosecution had presented its evidence but the Court clarified that it would allow counsel to consult his client from time to time during cross-examination. Trial commenced thereafter and continued until 7:30 in the evening, with the prosecution resting its case. The following day, trial was resumed, for the presentation of evidence for the defense, at 8:30 A. M, and judgment was promulgated at 11:35 that same morning. Applicable to this case is General Order No. 39 amending General Order No. 12, dated September 30, 1972, which gave Civil Courts concurrent jurisdiction with Military Tribunals over crimes committed against tourists and transients, and mandates that cases involving tourists be disposed of within 24 hours from the filing of the complaint. 1wph1.t 23. Crimes where the offended party is a tourist or a transient. The civil court shall have concurrent jurisdiction with the military tribunals over the said crimes, provided that civil courts shall dispose of such cases within 24 hours after the filing thereof by the arresting officer.t@lF The court or tribunal that first assumes jurisdiction shall exercise jurisdiction to the exclusion of all others.

Page

183

Considering that explicit requirement, the Trial Court had no other alternative but to speed up trial. That defense counsel was aware of the prescribed time element is shown by the fact that he had asked for only one hour within which to confer with his client although normally he would have been entitled to at least 2 days to prepare for trial. 5 In point of fact, the Trial Court did not deny defense counsel's request for conference with petitioner-accused. The Trial Court merely deferred such conference till after the prosecution had presented its witnesses. It is to be noted further that defense counsel was not totally unprepared for trial for he was ready with two witnesses when asked by the Court. Moreover, after the prosecution had rested its case, trial was resumed the next day, thereby giving the defense enough time to prepare for the presentation of its direct evidence. Besides, notwithstanding the brief span of trial time, rebuttal and surrebuttal were presented by the prosecution and the defense, respectively. The rendition of the judgment not long after the trial was terminated is not necessarily indicative of inordinate haste. On the contrary, Judge Regino T. Veridiano I I, the Trial Fiscal, and the defense counsel are to be commended for their punctilious compliance with the explicit mandate of the law. A reading of the transcript and of the judgment rendered will also reveal that petitioner-accused was duly and amply heard in his defense. He was not denied procedural due process. The submission of the State that complainant is "not a transient visitor" for his testimony shows clearly that he has been in Olongapo City many times for the past fifteen years" 6 is not well taken, the exact declaration of complainant having been "a number of times" and not "many times". And even if complainant has been in Olongapo City a number of times, that does not make him any less a transient, or one whose stay is "of uncertain duration" or for a "short time", or for a "brief period" only each time. 7 There is no question either that notwithstanding the number of times that he has been to this country, complainant is a "tourist" or one who travels from place to place for pleasure or culture. 8 As a "tourist" or a "transient", complainant falls within the coverage of General Order No. 12, as amended, supra. We likewise find it difficult to agree with the Solicitor General's position that the guilt of petitioner-accused has not been established beyond reasonable doubt. Complainant was categorical in his Identification of petitioner-accused and emphatic as to the latter's direct and active involvement in the robbery. Petitioner-accused's version of the occurrence does not ring with truth. As pointed out by the Court of Appeals: 1wph1.t Appellant advances the argument that if robbery was his intention, then he would not have done it in the very premises of his home. This explanation appeared lame and weak. He did so, because he never expected that their victim being a tourist will have the insistence and temerity of lodging and pushing through a complaint against him and his cohorts for forcibly divesting him of his money. No doubt, appellant and his confederates must have been emboldened by the fact that even if their victim complained but considering his unfamiliarity with the place, it will be almost next to impossible for him (the American victim) to trace his way back to appellant's place and pinpoint their Identities. In fact, the American MP's were able to tract down his (Magat's) place only because of its notoriety for assaults and acts as that perpetrated against the complainant. Then too appellant and Brosas were Identified only by their photos in the files of the police. Both happened to be notorious police characters having been previously involved in a series of robbery and theft cases.t@lF They were readily pointed to and Identified by complainant upon seeing their photos as among the persons who divested him of his money on the day of the incident in question. 9 Moreover, if as petitioner-accused testified, Lanigan was shouting at petitioner-accused "you cheated me, give my money back" 10 it is incredible that "after that the American suggested that he was going to leave the place because he will cash the traveller's check ...". 11 One who has been allegedly cheated would refuse to return to play some more. Again, complainant had been to Olongapo City a number of times in the past, and, therefore was not a complete stranger to the place. He would have had more or less, an Idea where to go for entertainment, so that petitioner-accused's allegation that complainant was looking for a girl when brought to his place hardly deserves credence. In the last analysis, the issue simmers down to one of credibility. The well established rule is that the conclusions of a Trial Court on the question of credibility are entitled to utmost respect and will remain undisturbed on appeal unless substantial facts, which might affect the result of the case,, have been overlooked, which is not the case herein. Suffice it to quote some notable observations of the Court of Appeals on the matter of credibility even as it refuted some of the contentions advanced by the Office of the Solicitor General in support of the latter's bid for acquittal of the accused. 1wph1.t The second point raised by the state counsel is that allegedly complainant admitted having been strangled by his neck and yet he did not sustain any physical injury or bodily harm as could be gleaned from his testimony of July 26, 1979 (p. 12 of the motion and manifestation). That complainant did not suffer any injury whatsoever did not make his version of the incident incredible because as the accused together with his confederates tried to divest the complainant of his money, the latter struggled and it was at that juncture when complainant was choked. What

Page

184

possible injury must he necessarily sustain in a situation of that sort? Maybe only the reddening of the portion choked which however, was no longer visible to the naked eye after a couple of hours or so. The third circumstance advanced by the Honorable State Counsel is that it was rather incredible and absurd for one who had robbed another to still endeavor to teach his victim how to play a game of cards. The argument appears plausible but not conclusive. Complainant was brought to another room and taught the rudiments of poker blackjack preparatory to the theory to be set up by the defense that if the American victim has lost his money ... it was in gambling where cards were utilized during the game. And secondly, to properly appease the victim and condition his mind making him cool in the process so that whatever he may have in mind by way of retaliation may no longer be pursued by him. But the victim-complainant happened to be a person not of the type the accused thought of him to be. In short, he was underestimated by the culprits. Lastly, it is likewise claimed that when the complainant first appeared before the police officer on July 19, 1979, the day when the robbery was committed, he allegedly told the police that 'a jeepney driver picked him up and with the use of flowery words was able to take his money.' On the fourth day, however, following the incident or on July 23, complainant in his sworn statement stated that he was choked and strangled by two or three persons and the accused took his money from his pocket while they were in a house at No. 8 Fontaine Extension, Olongapo City. The statement referred to appeared embodied in Exhibit 'A' which was allegedly prepared by a certain Pfc. Alberto dela Isla, the contents of which reads as follows: 1wph1.t This is in connection with Police Blotter Entry No. 2387, (p. 453 dated 15 July, 1979.) Complainant alleged that on or about 2:00 P.M. to 3:00 P.M. July 1975, at the above mentioned located, suspect with intent to gain and with intimidation took and carted away his cash money amounting to $940.00 more or less. Complainant further alleged that while he was walking along Magsaysay Drive, Q.C., when a jeepney driver picked him up and with the use of flowery words was able to take his money. Furthermore, suspect/s choked him while others were holding his hand and at the same time threatened him that if he did not stop strangling he will be killed . Complainant pointed the person of LEONARDO MAGAT as one of the suspects when a picture of the said suspect was showed to him. (Emphasis supplied). Pfc. Isla was never placed on the witness stand to testify on the alleged report. The contents therein appearing therefore is decidedly hearsay . . . the prosecution being denied of the right to cross-examine him on the truth thereof. But what appears confusing is the fact that when complainant-victim made a follow-up of his complaint with the police, since nothing appeared to have been done in connection therewith, no records whatsoever pertaining to his complaint could be found. And yet here comes this alleged police report. But let it be assumed that complainant when interviewed made the statement that now appears in this Exhibit 'A'. Analyzing the said statement in its entirety, the conclusion arrived at appeared not warranted for if complainant was divested of his money merely through the use of flowers words then why was there a necessity for choking him and holding his hands and threatening him and, further, that if he did not stop then he will be killed. Interpreted in the light of the testimony of the complainant, it would appear that the first step that led into complainant's being divested of his money were the flowery words made by Brosas to him that ultimately brought him to Magat's place whereby, through force and intimidation the offenders took his money from his pocket. 12 All told, we find the second and third assigned errors also without merit, and like the Trial Court and the Appellate Court, we find petitioner- accused's guilt proven beyond reasonable doubt. WHEREFORE, this Petition for Review is denied and the judgment of the Court of Appeals hereby affirmed. Costs against petitioner. SO ORDERED.

Page

185

(6) SATURNINA GALMAN AND REYNALDO GALMAN, petitioners, vs. THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO ACUPIDO, respondents. [G.R. Nos. 7120809 August 30, 1985] PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner, vs. THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents. [G.R. Nos. 71212-13 August 30, 1985] CUEVAS, JR., J.: On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the country after a long-sojourn abroad, was gunned down to death. The assassination rippled shock-waves throughout the entire country which reverberated beyond the territorial confines of this Republic. The after-shocks stunned the nation even more as this ramified to all aspects of Philippine political, economic and social life. To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses appeared and testified and/or produced documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the Board Among the witnesses who appeared, testified and produced evidence before the Board were the herein private respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4 UPON termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the other members of the Board namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private respondents were charged as accessories, along with several principals, and one accomplice. Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY. In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private respondents before the Agrava Board. 6 Private respondents, through their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-entitled cases" 7 contending that its admission will be in derogation of his constitutional right against selfincrimination and violative of the immunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and the rest of the other private respondents likewise filed separate motions to exclude their respective individual testimonies invoking the same ground. 8Petitioner TANODBAYAN opposed said motions contending that the immunity relied upon by the private respondents in support of their motions to exclude their respective testimonies, was not available to them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit their respective memorandum on the issue after which said motions will be considered submitted for resolution. 10 On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending motions for exclusion and the opposition thereto, together with the memorandum in support thereof, as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's Resolution on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the testimonies of private respondents and other evidences produced by them before the Board, all of which have been previously marked in the course of the trial. 12

Page

186

All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by them in their respective motion for exclusion. On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other evidence produced by the private respondents in view of the immunity granted by P.D. 1886. 13 Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before Us by way of certiorari 14 praying for the amendment and/or setting aside of the challenged Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a separate petition for certiorari 15 on the same ground. Having arisen from the same factual beginnings and raising practically Identical issues, the two (2) petitioners were consolidated and will therefore be jointly dealt with and resolved in this Decision. The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8) private respondents who did not invoke their rights against self-incrimination before the Agrava Board. It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said testimonies are admissible against the private respondents, respectively, because of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by contending that such failure to claim said constitutional privilege amounts to a waiver thereof. 16 The private respondents, on the other hand, claim that notwithstanding failure to set up the privilege against self- incrimination before the Agrava Board, said evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section would suffer from constitutional infirmity for being violative of the witness' right against self- incrimination. 17 Thus, the protagonists are locked in horns on the effect and legal significance of failure to set up the privilege against self-incrimination. The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to rule on issues involving immunity statutes. The relative novelty of the question coupled with the extraordinary circumstance that had precipitated the same did nothing to ease the burden of laying down the criteria upon which this Court will henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall be guided, as always, by the constitution and existing laws. The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and independent body, instead of any ordinary police agency, be charged with the task of conducting the investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the probable motive behind the assassination and the person or persons responsible for or involved in the assassination hastened its creation and heavily contributed to its early formation.19 Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all legal intents and purposes, an entity charged, not only with the function of determining the facts and circumstances surrounding the killing, but more importantly, the determination of the person or persons criminally responsible therefor so that they may be brought before the bar of justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt with criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent portion of which provides SECTION 12. The findings of the Board shall be made public. Should the findings warrant the prosecution of any person, the Board may initiate the filing of proper complaint with the appropriate got government agency. ... (Emphasis supplied) The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment and/or determination of the culprit or culprits, their consequent prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify before the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned to testify will include not merely plain witnesses but also those suspected as authors and co-participants in the tragic killing. And when suspects are summoned and called to testify and/or produce evidence, the situation is one where the person testifying or producing evidence is undergoing investigation for the commission of an offense and not merely in order to shed light on the facts and surrounding circumstances of the assassination, but more importantly, to determine the character and extent of his participation therein.

Page

187

Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest) at the time they were summoned and gave their testimonies before the Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so. 21 The jeopardy of being placed behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are sacrosantly enshrined and protected by our fundamental law. 21-a Both these constitutional rights (to remain silent and not to be compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were not immune from prosecution by reason of the testimony given by them. Of course, it may be argued is not the right to remain silent available only to a person undergoing custodial interrogation? We find no categorical statement in the constitutional provision on the matter which reads: ... Any person under investigation for the commission of an offense shall have the right to remain and to counsel, and to be informed of such right. ... 22 (Emphasis supplied) Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific portion of the subject provision. In all these cases, it has been categorically declared that a person detained for the commission of an offense undergoing investigation has a right to be informed of his right to remain silent, to counsel, and to an admonition that any and all statements to be given by him may be used against him. Significantly however, there has been no pronouncement in any of these cases nor in any other that a person similarly undergoing investigation for the commission of an offense, if not detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of the Bill of Rights. The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and investigation", as in fact the sentence opens with the phrase "any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners' contention that the use of the word "confession" in the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police investigation, for although the word "confession" is used, the protection covers not only "confessions" but also "admissions" made in violation of this section. They are inadmissible against the source of the confession or admission and against third person. 25 It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying conditions than one who is at liberty while being investigated. But the common denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. This is the lamentable situation we have at hand. All the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on that fateful day. Being at the scene of the crime as such, they were among the first line of suspects in the subject assassination. General Ver on the other hand, being the highest military authority of his co-petitioners labored under the same suspicion and so with General Olivas, the first designated investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and rumors from uglywagging tongues, all point to them as having, in one way or another participated or have something to do, in the alleged conspiracy that brought about the assassination. Could there still be any doubt then that their being asked to testify, was to determine whether they were really conspirators and if so, the extent of their participation in the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being called to the witness stand was merely to elicit from them facts and circumstances surrounding the tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting and determining the so-called surrounding facts and circumstances of the assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude that they were called to the stand to determine their probable involvement in the crime being investigated. Yet they have not been informed or at the very least even warned while so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any statement given by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other police agency, all the herein private respondents could not have been compelled to give any statement whether incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to remain silent, to counsel, and be informed that any and all statements given by them may be used against them. Did they lose their aforesaid constitutional rights simply because the investigation was by the Agrava Board and not by any police investigator, officer or agency? True, they continued testifying. May that be construed as a waiver of their rights to remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are not persuaded that when they testified, they voluntarily waived their constitutional rights not to be compelled to be a witness against themselves much less their right to remain silent.

Page

188

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of the defendant. 26 Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where certain police officers summoned to an inquiry being conducted by the Attorney General involving the fixing of traffic tickets were asked questions following a warning that if they did not answer they would be removed from office and that anything they said might be used against them in any criminal proceeding, and the questions were answered, the answers given cannot over their objection be later used in their prosecutions for conspiracy. The United States Supreme Court went further in holding that: the protection of the individuals under the Fourteenth Amendment against coerced statements prohibits use in subsequent proceedings of statements obtained under threat or removal from office, and that it extends to all, whether they are policemen or other members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held that in the context of threats of removal from office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against self- incrimination. To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be invoked by any of the herein private respondents before the Agrava Board. The Cabal vs. Kapunan 28 doctrine militates very heavily against this theory. Said case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea that for him to be compelled to testify will be in violation of his right against self- incrimination. We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture case where only property rights were involved, "the right not to be compelled to be a witness against himself" is secured in favor of the defendant, then with more reason it cannot be denied to a person facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements to be given by him, hang on the balance. Further enlightenment on the subject can be found in the historical background of this constitutional provision against self- incrimination. The privilege against self- incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American influence. At first, the provision in our organic laws were similar to the Constitution of the United States and was as follows: That no person shall be ... compelled in a criminal case to be a witness against himself. 30 As now worded, Section 20 of Article IV reads: No person shall be compelled to be a witness against himself. The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify against himself" applies to the herein private respondents notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a criminal case No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional rights, but also the right to "due process" which is fundamental fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M. Fernando, due process ... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair play(Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 3233). It exacts fealty "to those strivings for justice and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and political thought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with fixed content unrelated to time, place and circumstances."(Cafeteria Workers v. McElroy 1961, 367 US

Page

189

1230) Decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939, 308 US 313). Our review of the pleadings and their annexes, together with the oral arguments, manifestations and admissions of both counsel, failed to reveal adherence to and compliance with due process. The manner in which the testimonies were taken from private respondents fall short of the constitutional standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of private respondents cannot be admitted against them in ally criminal proceeding. This is true regardless of absence of claim of constitutional privilege or of the presence of a grant of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and extensively discussed in the pleadings and oral arguments of the parties. Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other, which grants what is known as "transactional immunity." The distinction between the two is as follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, "transactional immunity" grants immunity to the witness from prosecution for an offense to which his compelled testimony relates." 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads: SEC. 5. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office. (Emphasis supplied) it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness immuned from prosecution notwithstanding his invocation of the right against self- incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against self- incrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents should have been informed of their rights to remain silent and warned that any and all statements to be given by them may be used against them. This, they were denied, under the pretense that they are not entitled to it and that the Board has no obligation to so inform them. It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners that the right against selfincrimination must be invoked before the Board in order to prevent use of any given statement against the testifying witness in a subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the Constitution, which is the first test of admissibility. It reads: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. (Emphasis supplied) The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier discussed, this exclusionary rule applies not only to confessions but also to admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the commission of an offense. Any interpretation of a statute which will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more constructions or interpretations could possibly be resorted to, then that one which will avoid unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the more usual and apparent import of the language used. 34 To save the statute from a declaration of unconstitutionality it must be given a reasonable construction that will bring it within the fundamental law. 35 Apparent conflict between two clauses should be harmonized. 36 But a literal application of a requirement of a claim of the privilege against self- incrimination as a condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its exercise, thus:

Page

190

SEC. 4. The Board may hold any person in direct or indirect contempt, and impose appropriate penalties therefor. A person guilty of .... including ... refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so may be summarily adjudged in direct contempt by the Board. ... Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes upon the witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is offered. 37 Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results the private respondents had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same law practically strips away from the witness. With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that hover before Us, we have strictly adhered to the Constitution in upholding the rule of law finding solace in the view very aptly articulated by that well-known civil libertarian and admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs. Manalang 38 and we quote: I am completely conscious of the need for a balancing of the interests of society with the rights and freedoms of the individuals. I have advocated the balancing-of-interests rule in an situations which call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any human being. (Emphasis supplied) Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or innocence of the herein private respondents an issue which is before the Sandiganbayan. We are merely resolving a question of law and the pronouncement herein made applies to all similarly situated, irrespective of one's rank and status in society. IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same are DISMISSED. No pronouncement as to costs. SO ORDERED.

Page

191

(7) BATAAN SHIPYARD & ENGINEERING CO., INC. (BASECO), petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, CHAIRMAN JOVITO SALONGA, COMMISSIONER MARY CONCEPCION BAUTISTA, COMMISSIONER RAMON DIAZ, COMMISSIONER RAUL R. DAZA, COMMISSIONER QUINTIN S. DOROMAL, CAPT. JORGE B. SIACUNCO, et al., respondents. [G.R. No. 75885 May 27, 1987] NARVASA, J.: Challenged in this special civil action of certiorari and prohibition by a private corporation known as the Bataan Shipyard and Engineering Co., Inc. are: (1) Executive Orders Numbered 1 and 2, promulgated by President Corazon C. Aquino on February 28, 1986 and March 12, 1986, respectively, and (2) the sequestration, takeover, and other orders issued, and acts done, in accordance with said executive orders by the Presidential Commission on Good Government and/or its Commissioners and agents, affecting said corporation. 1. The Sequestration, Takeover, and Other Orders Complained of a. The Basic Sequestration Order The sequestration order which, in the view of the petitioner corporation, initiated all its misery was issued on April 14, 1986 by Commissioner Mary Concepcion Bautista. It was addressed to three of the agents of the Commission, hereafter simply referred to as PCGG. It reads as follows: RE: SEQUESTRATION ORDER By virtue of the powers vested in the Presidential Commission on Good Government, by authority of the President of the Philippines, you are hereby directed to sequester the following companies. 1. Bataan Shipyard and Engineering Co., Inc. (Engineering Island Shipyard and Mariveles Shipyard) 2. Baseco Quarry 3. Philippine Jai-Alai Corporation 4. Fidelity Management Co., Inc. 5. Romson Realty, Inc. 6. Trident Management Co. 7. New Trident Management 8. Bay Transport 9. And all affiliate companies of Alfredo "Bejo" Romualdez You are hereby ordered: 1. To implement this sequestration order with a minimum disruption of these companies' business activities. 2. To ensure the continuity of these companies as going concerns, the care and maintenance of these assets until such time that the Office of the President through the Commission on Good Government should decide otherwise. 3. To report to the Commission on Good Government periodically. Further, you are authorized to request for Military/Security Support from the Military/Police authorities, and such other acts essential to the achievement of this sequestration order. 1 b. Order for Production of Documents On the strength of the above sequestration order, Mr. Jose M. Balde, acting for the PCGG, addressed a letter dated April 18, 1986 to the President and other officers of petitioner firm, reiterating an earlier request for the production of certain documents, to wit: 1. Stock Transfer Book 2. Legal documents, such as: 2.1. Articles of Incorporation 2.2. By-Laws 2.3. Minutes of the Annual Stockholders Meeting from 1973 to 1986

Page

192

2.4. Minutes of the Regular and Special Meetings of the Board of Directors from 1973 to 1986 2.5. Minutes of the Executive Committee Meetings from 1973 to 1986 2.6. Existing contracts with suppliers/contractors/others. 3. Yearly list of stockholders with their corresponding share/stockholdings from 1973 to 1986 duly certified by the Corporate Secretary. 4. Audited Financial Statements such as Balance Sheet, Profit & Loss and others from 1973 to December 31, 1985. 5. Monthly Financial Statements for the current year up to March 31, 1986. 6. Consolidated Cash Position Reports from January to April 15, 1986. 7. Inventory listings of assets up dated up to March 31, 1986. 8. Updated schedule of Accounts Receivable and Accounts Payable. 9. Complete list of depository banks for all funds with the authorized signatories for withdrawals thereof. 10. Schedule of company investments and placements. 2 The letter closed with the warning that if the documents were not submitted within five days, the officers would be cited for "contempt in pursuance with Presidential Executive Order Nos. 1 and 2." c. Orders Re Engineer Island (1) Termination of Contract for Security Services A third order assailed by petitioner corporation, hereafter referred to simply as BASECO, is that issued on April 21, 1986 by a Capt. Flordelino B. Zabala, a member of the task force assigned to carry out the basic sequestration order. He sent a letter to BASECO's Vice-President for Finance, 3 terminating the contract for security services within the Engineer Island compound between BASECO and "Anchor and FAIRWAYS" and "other civilian security agencies," CAPCOM military personnel having already been assigned to the area, (2) Change of Mode of Payment of Entry Charges On July 15, 1986, the same Capt. Zabala issued a Memorandum addressed to "Truck Owners and Contractors," particularly a "Mr. Buddy Ondivilla National Marine Corporation," advising of the amendment in part of their contracts with BASECO in the sense that the stipulated charges for use of the BASECO road network were made payable "upon entry and not anymore subject to monthly billing as was originally agreed upon." 4 d. Aborted Contract for Improvement of Wharf at Engineer Island On July 9, 1986, a PCGG fiscal agent, S. Berenguer, entered into a contract in behalf of BASECO with Deltamarine Integrated Port Services, Inc., in virtue of which the latter undertook to introduce improvements costing approximately P210,000.00 on the BASECO wharf at Engineer Island, allegedly then in poor condition, avowedly to "optimize its utilization and in return maximize the revenue which would flow into the government coffers," in consideration of Deltamarine's being granted "priority in using the improved portion of the wharf ahead of anybody" and exemption "from the payment of any charges for the use of wharf including the area where it may install its bagging equipments" "until the improvement remains in a condition suitable for port operations." 5 It seems however that this contract was never consummated. Capt. Jorge B. Siacunco, "Head- (PCGG) BASECO Management Team," advised Deltamarine by letter dated July 30, 1986 that "the new management is not in a position to honor the said contract" and thus "whatever improvements * * (may be introduced) shall be deemed unauthorized * * and shall be at * * (Deltamarine's) own risk." 6 e. Order for Operation of Sesiman Rock Quarry, Mariveles, Bataan By Order dated June 20, 1986, Commissioner Mary Bautista first directed a PCGG agent, Mayor Melba O. Buenaventura, "to plan and implement progress towards maximizing the continuous operation of the BASECO Sesiman Rock Quarry * * by conventional methods;" but afterwards, Commissioner Bautista, in representation of the PCGG, authorized another party, A.T. Abesamis, to operate the quarry, located at Mariveles, Bataan, an agreement to this effect having been executed by them on September 17, 1986. 7 f. Order to Dispose of Scrap, etc. By another Order of Commissioner Bautista, this time dated June 26, 1986, Mayor Buenaventura was also "authorized to clean and beautify the Company's compound," and in this connection, to dispose of or sell "metal scraps" and other materials, equipment and machineries no longer usable, subject to specified guidelines and safeguards including audit and verification. 8

Page

193

g. The TAKEOVER Order By letter dated July 14, 1986, Commissioner Ramon A. Diaz decreed the provisional takeover by the PCGG of BASECO, "the Philippine Dockyard Corporation and all their affiliated companies." 9 Diaz invoked the provisions of Section 3 (c) of Executive Order No. 1, empowering the Commission * * To provisionally takeover in the public interest or to prevent its disposal or dissipation, business enterprises and properties taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos, until the transactions leading to such acquisition by the latter can be disposed of by the appropriate authorities. A management team was designated to implement the order, headed by Capt. Siacunco, and was given the following powers: 1. Conducts all aspects of operation of the subject companies; 2. Installs key officers, hires and terminates personnel as necessary; 3. Enters into contracts related to management and operation of the companies; 4. Ensures that the assets of the companies are not dissipated and used effectively and efficiently; revenues are duly accounted for; and disburses funds only as may be necessary; 5. Does actions including among others, seeking of military support as may be necessary, that will ensure compliance to this order; 6. Holds itself fully accountable to the Presidential Commission on Good Government on all aspects related to this take-over order. h. Termination of Services of BASECO Officers Thereafter, Capt. Siacunco, sent letters to Hilario M. Ruiz, Manuel S. Mendoza, Moises M. Valdez, Gilberto Pasimanero, and Benito R. Cuesta I, advising of the termination of their services by the PCGG. 10 2. Petitioner's Plea and Postulates It is the foregoing specific orders and acts of the PCGG and its members and agents which, to repeat, petitioner BASECO would have this Court nullify. More particularly, BASECO prays that this Court1) declare unconstitutional and void Executive Orders Numbered 1 and 2; 2) annul the sequestration order dated April- 14, 1986, and all other orders subsequently issued and acts done on the basis thereof, inclusive of the takeover order of July 14, 1986 and the termination of the services of the BASECO executives. 11 a. Re Executive Orders No. 1 and 2, and the Sequestration and Takeover Orders While BASECO concedes that "sequestration without resorting to judicial action, might be made within the context of Executive Orders Nos. 1 and 2 before March 25, 1986 when the Freedom Constitution was promulgated, under the principle that the law promulgated by the ruler under a revolutionary regime is the law of the land, it ceased to be acceptable when the same ruler opted to promulgate the Freedom Constitution on March 25, 1986 wherein under Section I of the same, Article IV (Bill of Rights) of the 1973 Constitution was adopted providing, among others, that "No person shall be deprived of life, liberty and property without due process of law." (Const., Art. I V, Sec. 1)." 12 It declares that its objection to the constitutionality of the Executive Orders "as well as the Sequestration Order * * and Takeover Order * * issued purportedly under the authority of said Executive Orders, rests on four fundamental considerations: First, no notice and hearing was accorded * * (it) before its properties and business were taken over; Second, the PCGG is not a court, but a purely investigative agency and therefore not competent to act as prosecutor and judge in the same cause; Third, there is nothing in the issuances which envisions any proceeding, process or remedy by which petitioner may expeditiously challenge the validity of the takeover after the same has been effected; and Fourthly, being directed against specified persons, and in disregard of the constitutional presumption of innocence and general rules and procedures, they constitute a Bill of Attainder." 13 b. Re Order to Produce Documents It argues that the order to produce corporate records from 1973 to 1986, which it has apparently already complied with, was issued without court authority and infringed its constitutional right against self-incrimination, and unreasonable search and seizure. 14

Page

194

c. Re PCGG's Exercise of Right of Ownership and Management BASECO further contends that the PCGG had unduly interfered with its right of dominion and management of its business affairs by 1) terminating its contract for security services with Fairways & Anchor, without the consent and against the will of the contracting parties; and amending the mode of payment of entry fees stipulated in its Lease Contract with National Stevedoring & Lighterage Corporation, these acts being in violation of the non-impairment clause of the constitution; 15 2) allowing PCGG Agent Silverio Berenguer to enter into an "anomalous contract" with Deltamarine Integrated Port Services, Inc., giving the latter free use of BASECO premises; 16 3) authorizing PCGG Agent, Mayor Melba Buenaventura, to manage and operate its rock quarry at Sesiman, Mariveles; 17 4) authorizing the same mayor to sell or dispose of its metal scrap, equipment, machinery and other materials; 18 5) authorizing the takeover of BASECO, Philippine Dockyard Corporation, and all their affiliated companies; 6) terminating the services of BASECO executives: President Hilario M. Ruiz; EVP Manuel S. Mendoza; GM Moises M. Valdez; Finance Mgr. Gilberto Pasimanero; Legal Dept. Mgr. Benito R. Cuesta I; 19 7) planning to elect its own Board of Directors; 20 8) allowing willingly or unwillingly its personnel to take, steal, carry away from petitioner's premises at Mariveles * * rolls of cable wires, worth P600,000.00 on May 11, 1986; 21 9) allowing "indiscriminate diggings" at Engineer Island to retrieve gold bars supposed to have been buried therein. 3. Doubts, Misconceptions regarding Sequestration, Freeze and Takeover Orders Many misconceptions and much doubt about the matter of sequestration, takeover and freeze orders have been engendered by misapprehension, or incomplete comprehension if not indeed downright ignorance of the law governing these remedies. It is needful that these misconceptions and doubts be dispelled so that uninformed and useless debates about them may be avoided, and arguments tainted b sophistry or intellectual dishonesty be quickly exposed and discarded. Towards this end, this opinion will essay an exposition of the law on the matter. In the process many of the objections raised by BASECO will be dealt with. 4. The Governing Law a. Proclamation No. 3 The impugned executive orders are avowedly meant to carry out the explicit command of the Provisional Constitution, ordained by Proclamation No. 3, 23 that the President-in the exercise of legislative power which she was authorized to continue to wield "(until a legislature is elected and convened under a new Constitution" "shall give priority to measures to achieve the mandate of the people," among others to (r)ecover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the people through orders of sequestration or freezing of assets or accounts." 24 b. Executive Order No. 1 Executive Order No. 1 stresses the "urgent need to recover all ill-gotten wealth," and postulates that "vast resources of the government have been amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad." 25 Upon these premises, the Presidential Commission on Good Government was created, 26 "charged with the task of assisting the President in regard to (certain specified) matters," among which was precisely* * The recovery of all in-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his
22

Page

195

administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship. 27 In relation to the takeover or sequestration that it was authorized to undertake in the fulfillment of its mission, the PCGG was granted "power and authority" to do the following particular acts, to wit: 1. To sequester or place or cause to be placed under its control or possession any building or office wherein any illgotten wealth or properties may be found, and any records pertaining thereto, in order to prevent their destruction, concealment or disappearance which would frustrate or hamper the investigation or otherwise prevent the Commission from accomplishing its task. 2. To provisionally take over in the public interest or to prevent the disposal or dissipation, business enterprises and properties taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos, until the transactions leading to such acquisition by the latter can be disposed of by the appropriate authorities. 3. To enjoin or restrain any actual or threatened commission of acts by any person or entity that may render moot and academic, or frustrate or otherwise make ineffectual the efforts of the Commission to carry out its task under this order. 28 So that it might ascertain the facts germane to its objectives, it was granted power to conduct investigations; require submission of evidence by subpoenae ad testificandum and duces tecum; administer oaths; punish for contempt. 29 It was given power also to promulgate such rules and regulations as may be necessary to carry out the purposes of * * (its creation). 30 c. Executive Order No. 2 Executive Order No. 2 gives additional and more specific data and directions respecting "the recovery of ill-gotten properties amassed by the leaders and supporters of the previous regime." It declares that: 1) * * the Government of the Philippines is in possession of evidence showing that there are assets and properties purportedly pertaining to former Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents or nominees which had been or were acquired by them directly or indirectly, through or as a result of the improper or illegal use of funds or properties owned by the government of the Philippines or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of their office, authority, influence, connections or relationship, resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines:" and 2) * * said assets and properties are in the form of bank accounts, deposits, trust accounts, shares of stocks, buildings, shopping centers, condominiums, mansions, residences, estates, and other kinds of real and personal properties in the Philippines and in various countries of the world." 31 Upon these premises, the President1) froze "all assets and properties in the Philippines in which former President Marcos and/or his wife, Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees have any interest or participation; 2) prohibited former President Ferdinand Marcos and/or his wife * *, their close relatives, subordinates, business associates, duties, agents, or nominees from transferring, conveying, encumbering, concealing or dissipating said assets or properties in the Philippines and abroad, pending the outcome of appropriate proceedings in the Philippines to determine whether any such assets or properties were acquired by them through or as a result of improper or illegal use of or the conversion of funds belonging to the Government of the Philippines or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of their official position, authority, relationship, connection or influence to unjustly enrich themselves at the expense and to the grave damage and prejudice of the Filipino people and the Republic of the Philippines;

Page

196

3) prohibited "any person from transferring, conveying, encumbering or otherwise depleting or concealing such assets and properties or from assisting or taking part in their transfer, encumbrance, concealment or dissipation under pain of such penalties as are prescribed by law;" and 4) required "all persons in the Philippines holding such assets or properties, whether located in the Philippines or abroad, in their names as nominees, agents or trustees, to make full disclosure of the same to the Commission on Good Government within thirty (30) days from publication of * (the) Executive Order, * *. 32 d. Executive Order No. 14 A third executive order is relevant: Executive Order No. 14, 33 by which the PCGG is empowered, "with the assistance of the Office of the Solicitor General and other government agencies, * * to file and prosecute all cases investigated by it * * as may be warranted by its findings." 34 All such cases, whether civil or criminal, are to be filed "with the Sandiganbayanwhich shall have exclusive and original jurisdiction thereof." 35 Executive Order No. 14 also pertinently provides that civil suits for restitution, reparation of damages, or indemnification for consequential damages, forfeiture proceedings provided for under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with * * (said Executive Orders Numbered 1 and 2) may be filed separately from and proceed independently of any criminal proceedings and may be proved by a preponderance of evidence;" and that, moreover, the "technical rules of procedure and evidence shall not be strictly applied to* * (said)civil cases." 36 5. Contemplated Situations The situations envisaged and sought to be governed are self-evident, these being: 1) that "(i)ll-gotten properties (were) amassed by the leaders and supporters of the previous regime"; 37 a) more particularly, that ill-gotten wealth (was) accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, * * located in the Philippines or abroad, * * (and) business enterprises and entities (came to be) owned or controlled by them, during * * (the Marcos) administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, Connections or relationship; 38 b) otherwise stated, that "there are assets and properties purportedly pertaining to former President Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents or nominees which had been or were acquired by them directly or indirectly, through or as a result of the improper or illegal use of funds or properties owned by the Government of the Philippines or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of their office, authority, influence, connections or relationship, resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines"; 39 c) that "said assets and properties are in the form of bank accounts. deposits, trust. accounts, shares of stocks, buildings, shopping centers, condominiums, mansions, residences, estates, and other kinds of real and personal properties in the Philippines and in various countries of the world;" 40 and 2) that certain "business enterprises and properties (were) taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos. 41 6. Government's Right and Duty to Recover All Ill-gotten Wealth There can be no debate about the validity and eminent propriety of the Government's plan "to recover all ill-gotten wealth." Neither can there be any debate about the proposition that assuming the above described factual premises of the Executive Orders and Proclamation No. 3 to be true, to be demonstrable by competent evidence, the recovery from Marcos, his family and his dominions of the assets and properties involved, is not only a right but a duty on the part of Government. But however plain and valid that right and duty may be, still a balance must be sought with the equally compelling necessity that a proper respect be accorded and adequate protection assured, the fundamental rights of private property and free enterprise which are deemed pillars of a free society such as ours, and to which all members of that society may without exception lay claim.

Page

197

* * Democracy, as a way of life enshrined in the Constitution, embraces as its necessary components freedom of conscience, freedom of expression, and freedom in the pursuit of happiness. Along with these freedoms are included economic freedom and freedom of enterprise within reasonable bounds and under proper control. * * Evincing much concern for the protection of property, the Constitution distinctly recognizes the preferred position which real estate has occupied in law for ages. Property is bound up with every aspect of social life in a democracy as democracy is conceived in the Constitution. The Constitution realizes the indispensable role which property, owned in reasonable quantities and used legitimately, plays in the stimulation to economic effort and the formation and growth of a solid social middle class that is said to be the bulwark of democracy and the backbone of every progressive and happy country. 42 a. Need of Evidentiary Substantiation in Proper Suit Consequently, the factual premises of the Executive Orders cannot simply be assumed. They will have to be duly established by adequate proof in each case, in a proper judicial proceeding, so that the recovery of the ill-gotten wealth may be validly and properly adjudged and consummated; although there are some who maintain that the fact-that an immense fortune, and "vast resources of the government have been amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad," and they have resorted to all sorts of clever schemes and manipulations to disguise and hide their illicit acquisitionsis within the realm of judicial notice, being of so extensive notoriety as to dispense with proof thereof, Be this as it may, the requirement of evidentiary substantiation has been expressly acknowledged, and the procedure to be followed explicitly laid down, in Executive Order No. 14. b. Need of Provisional Measures to Collect and Conserve Assets Pending Suits Nor may it be gainsaid that pending the institution of the suits for the recovery of such "ill-gotten wealth" as the evidence at hand may reveal, there is an obvious and imperative need for preliminary, provisional measures to prevent the concealment, disappearance, destruction, dissipation, or loss of the assets and properties subject of the suits, or to restrain or foil acts that may render moot and academic, or effectively hamper, delay, or negate efforts to recover the same. 7. Provisional Remedies Prescribed by Law To answer this need, the law has prescribed three (3) provisional remedies. These are: (1) sequestration; (2) freeze orders; and (3) provisional takeover. Sequestration and freezing are remedies applicable generally to unearthed instances of "ill-gotten wealth." The remedy of "provisional takeover" is peculiar to cases where "business enterprises and properties (were) taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos." 43 a. Sequestration By the clear terms of the law, the power of the PCGG to sequester property claimed to be "ill-gotten" means to place or cause to be placed under its possession or control said property, or any building or office wherein any such property and any records pertaining thereto may be found, including "business enterprises and entities,"-for the purpose of preventing the destruction, concealment or dissipation of, and otherwise conserving and preserving, the same-until it can be determined, through appropriate judicial proceedings, whether the property was in truth will- gotten," i.e., acquired through or as a result of improper or illegal use of or the conversion of funds belonging to the Government or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of official position, authority relationship, connection or influence, resulting in unjust enrichment of the ostensible owner and grave damage and prejudice to the State. 44 And this, too, is the sense in which the term is commonly understood in other jurisdictions. 45 b. "Freeze Order" A "freeze order" prohibits the person having possession or control of property alleged to constitute "ill-gotten wealth" "from transferring, conveying, encumbering or otherwise depleting or concealing such property, or from assisting or taking part in its transfer, encumbrance, concealment, or dissipation." 46 In other words, it commands the possessor to hold the property and conserve it subject to the orders and disposition of the authority decreeing such freezing. In this sense, it is akin to a garnishment by which the possessor or ostensible owner of property is enjoined not to deliver, transfer, or otherwise dispose of any effects or credits in his possession or control, and thus becomes in a sense an involuntary depositary thereof. 47

Page

198

c. Provisional Takeover In providing for the remedy of "provisional takeover," the law acknowledges the apparent distinction between "ill gotten" "business enterprises and entities" (going concerns, businesses in actual operation), generally, as to which the remedy of sequestration applies, it being necessarily inferred that the remedy entails no interference, or the least possible interference with the actual management and operations thereof; and "business enterprises which were taken over by the government government of the Marcos Administration or by entities or persons close to him," in particular, as to which a "provisional takeover" is authorized, "in the public interest or to prevent disposal or dissipation of the enterprises." 48 Such a "provisional takeover" imports something more than sequestration or freezing, more than the placing of the business under physical possession and control, albeit without or with the least possible interference with the management and carrying on of the business itself. In a "provisional takeover," what is taken into custody is not only the physical assets of the business enterprise or entity, but the business operation as well. It is in fine the assumption of control not only over things, but over operations or on- going activities. But, to repeat, such a "provisional takeover" is allowed only as regards "business enterprises * * taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos." d. No Divestment of Title Over Property Seized It may perhaps be well at this point to stress once again the provisional, contingent character of the remedies just described. Indeed the law plainly qualifies the remedy of take-over by the adjective, "provisional." These remedies may be resorted to only for a particular exigency: to prevent in the public interest the disappearance or dissipation of property or business, and conserve it pending adjudgment in appropriate proceedings of the primary issue of whether or not the acquisition of title or other right thereto by the apparent owner was attended by some vitiating anomaly. None of the remedies is meant to deprive the owner or possessor of his title or any right to the property sequestered, frozen or taken over and vest it in the sequestering agency, the Government or other person. This can be done only for the causes and by the processes laid down by law. That this is the sense in which the power to sequester, freeze or provisionally take over is to be understood and exercised, the language of the executive orders in question leaves no doubt. Executive Order No. 1 declares that the sequestration of property the acquisition of which is suspect shall last "until the transactions leading to such acquisition * * can be disposed of by the appropriate authorities." 49 Executive Order No. 2 declares that the assets or properties therein mentioned shall remain frozen "pending the outcome of appropriate proceedings in the Philippines to determine whether any such assets or properties were acquired" by illegal means. Executive Order No. 14 makes clear that judicial proceedings are essential for the resolution of the basic issue of whether or not particular assets are "ill-gotten," and resultant recovery thereof by the Government is warranted. e. State of Seizure Not To Be Indefinitely Maintained; The Constitutional Command There is thus no cause for the apprehension voiced by BASECO 50 that sequestration, freezing or provisional takeover is designed to be an end in itself, that it is the device through which persons may be deprived of their property branded as "ill-gotten," that it is intended to bring about a permanent, rather than a passing, transitional state of affairs. That this is not so is quite explicitly declared by the governing rules. Be this as it may, the 1987 Constitution should allay any lingering fears about the duration of these provisional remedies. Section 26 of its Transitory Provisions, 51 lays down the relevant rule in plain terms, apart from extending ratification or confirmation (although not really necessary) to the institution by presidential fiat of the remedy of sequestration and freeze orders: SEC. 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shag remain operative for not more thaneighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period. A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof. The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided. 52

Page

199

f. Kinship to Attachment Receivership As thus described, sequestration, freezing and provisional takeover are akin to the provisional remedy of preliminary attachment, or receivership. 53 By attachment, a sheriff seizes property of a defendant in a civil suit so that it may stand as security for the satisfaction of any judgment that may be obtained, and not disposed of, or dissipated, or lost intentionally or otherwise, pending the action. 54 By receivership, property, real or personal, which is subject of litigation, is placed in the possession and control of a receiver appointed by the Court, who shall conserve it pending final determination of the title or right of possession over it. 55 All these remedies sequestration, freezing, provisional, takeover, attachment and receivership are provisional, temporary, designed for-particular exigencies, attended by no character of permanency or finality, and always subject to the control of the issuing court or agency. g. Remedies, Non-Judicial Parenthetically, that writs of sequestration or freeze or takeover orders are not issued by a court is of no moment. The Solicitor General draws attention to the writ of distraint and levy which since 1936 the Commissioner of Internal Revenue has been by law authorized to issue against property of a delinquent taxpayer. 56 BASECO itself declares that it has not manifested "a rigid insistence on sequestration as a purely judicial remedy * * (as it feels) that the law should not be ossified to a point that makes it insensitive to change." What it insists on, what it pronounces to be its "unyielding position, is that any change in procedure, or the institution of a new one, should conform to due process and the other prescriptions of the Bill of Rights of the Constitution." 57 It is, to be sure, a proposition on which there can be no disagreement. h. Orders May Issue Ex Parte Like the remedy of preliminary attachment and receivership, as well as delivery of personal property in replevinsuits, sequestration and provisional takeover writs may issue ex parte. 58 And as in preliminary attachment, receivership, and delivery of personality, no objection of any significance may be raised to the ex parte issuance of an order of sequestration, freezing or takeover, given its fundamental character of temporariness or conditionality; and taking account specially of the constitutionally expressed "mandate of the people to recover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the people;" 59 as well as the obvious need to avoid alerting suspected possessors of "ill-gotten wealth" and thereby cause that disappearance or loss of property precisely sought to be prevented, and the fact, just as self-evident, that "any transfer, disposition, concealment or disappearance of said assets and properties would frustrate, obstruct or hamper the efforts of the Government" at the just recovery thereof. 60 8. Requisites for Validity What is indispensable is that, again as in the case of attachment and receivership, there exist a prima facie factual foundation, at least, for the sequestration, freeze or takeover order, and adequate and fair opportunity to contest it and endeavor to cause its negation or nullification. 61 Both are assured under the executive orders in question and the rules and regulations promulgated by the PCGG. a. Prima Facie Evidence as Basis for Orders Executive Order No. 14 enjoins that there be "due regard to the requirements of fairness and due process." 62Executive Order No. 2 declares that with respect to claims on allegedly "ill-gotten" assets and properties, "it is the position of the new democratic government that President Marcos * * (and other parties affected) be afforded fair opportunity to contest these claims before appropriate Philippine authorities." 63 Section 7 of the Commission's Rules and Regulations provides that sequestration or freeze (and takeover) orders issue upon the authority of at least two commissioners, based on the affirmation or complaint of an interested party, or motu proprio when the Commission has reasonable grounds to believe that the issuance thereof is warranted. 64 A similar requirement is now found in Section 26, Art. XVIII of the 1987 Constitution, which requires that a "sequestration or freeze order shall be issued only upon showing of a prima facie case."65 b. Opportunity to Contest

Page

200

And Sections 5 and 6 of the same Rules and Regulations lay down the procedure by which a party may seek to set aside a writ of sequestration or freeze order, viz:

SECTION 5. Who may contend.-The person against whom a writ of sequestration or freeze or hold order is directed may request the lifting thereof in writing, either personally or through counsel within five (5) days from receipt of the writ or order, or in the case of a hold order, from date of knowledge thereof. SECTION 6. Procedure for review of writ or order.-After due hearing or motu proprio for good cause shown, the Commission may lift the writ or order unconditionally or subject to such conditions as it may deem necessary, taking into consideration the evidence and the circumstance of the case. The resolution of the commission may be appealed by the party concerned to the Office of the President of the Philippines within fifteen (15) days from receipt thereof. Parenthetically, even if the requirement for a prima facie showing of "ill- gotten wealth" were not expressly imposed by some rule or regulation as a condition to warrant the sequestration or freezing of property contemplated in the executive orders in question, it would nevertheless be exigible in this jurisdiction in which the Rule of Law prevails and official acts which are devoid of rational basis in fact or law, or are whimsical and capricious, are condemned and struck down. 66 9. Constitutional Sanction of Remedies If any doubt should still persist in the face of the foregoing considerations as to the validity and propriety of sequestration, freeze and takeover orders, it should be dispelled by the fact that these particular remedies and the authority of the PCGG to issue them have received constitutional approbation and sanction. As already mentioned, the Provisional or "Freedom" Constitution recognizes the power and duty of the President to enact "measures to achieve the mandate of the people to * * * (recover ill- gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the people through orders of sequestration or freezing of assets or accounts." And as also already adverted to, Section 26, Article XVIII of the 1987 Constitution 67 treats of, and ratifies the "authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986." The institution of these provisional remedies is also premised upon the State's inherent police power, regarded, as t lie power of promoting the public welfare by restraining and regulating the use of liberty and property," 68 and as "the most essential, insistent and illimitable of powers * * in the promotion of general welfare and the public interest," 69 and said to be co-extensive with selfprotection and * * not inaptly termed (also) the'law of overruling necessity." " 70 10. PCGG not a "Judge"; General Functions It should also by now be reasonably evident from what has thus far been said that the PCGG is not, and was never intended to act as, a judge. Its general function is to conduct investigations in order to collect evidenceestablishing instances of "ill-gotten wealth;" issue sequestration, and such orders as may be warranted by the evidence thus collected and as may be necessary to preserve and conserve the assets of which it takes custody and control and prevent their disappearance, loss or dissipation; and eventually file and prosecute in the proper court of competent jurisdiction all cases investigated by it as may be warranted by its findings. It does not try and decide, or hear and determine, or adjudicate with any character of finality or compulsion, cases involving the essential issue of whether or not property should be forfeited and transferred to the State because "ill-gotten" within the meaning of the Constitution and the executive orders. This function is reserved to the designated court, in this case, the Sandiganbayan. 71 There can therefore be no serious regard accorded to the accusation, leveled by BASECO, 72 that the PCGG plays the perfidious role of prosecutor and judge at the same time. 11. Facts Preclude Grant of Relief to Petitioner Upon these premises and reasoned conclusions, and upon the facts disclosed by the record, hereafter to be discussed, the petition cannot succeed. The writs of certiorari and prohibition prayed for will not be issued. The facts show that the corporation known as BASECO was owned or controlled by President Marcos "during his administration, through nominees, by taking undue advantage of his public office and/or using his powers, authority, or influence, " and that it was by and through the same means, that BASECO had taken over the business and/or assets of the National Shipyard and Engineering Co., Inc., and other government-owned or controlled entities.

Page

BASECO describes itself in its petition as "a shiprepair and shipbuilding company * * incorporated as a domestic private corporation * * (on Aug. 30, 1972) by a consortium of Filipino shipowners and shipping executives. Its main office is at Engineer Island, Port Area, Manila, where its Engineer Island Shipyard is housed, and its main shipyard is located at Mariveles Bataan." 73 Its Articles of

201

12. Organization and Stock Distribution of BASECO

Incorporation disclose that its authorized capital stock is P60,000,000.00 divided into 60,000 shares, of which 12,000 shares with a value of P12,000,000.00 have been subscribed, and on said subscription, the aggregate sum of P3,035,000.00 has been paid by the incorporators. 74 The same articles Identify the incorporators, numbering fifteen (15), as follows: (1) Jose A. Rojas, (2) Anthony P. Lee, (3) Eduardo T. Marcelo, (4) Jose P. Fernandez, (5) Generoso Tanseco, (6) Emilio T. Yap, (7) Antonio M. Ezpeleta, (8) Zacarias Amante, (9) Severino de la Cruz, (10) Jose Francisco, (11) Dioscoro Papa, (12) Octavio Posadas, (13) Manuel S. Mendoza, (14) Magiliw Torres, and (15) Rodolfo Torres. By 1986, however, of these fifteen (15) incorporators, six (6) had ceased to be stockholders, namely: (1) Generoso Tanseco, (2) Antonio Ezpeleta, (3) Zacarias Amante, (4) Octavio Posadas, (5) Magiliw Torres, and (6) Rodolfo Torres. As of this year, 1986, there were twenty (20) stockholders listed in BASECO's Stock and Transfer Book. 75 Their names and the number of shares respectively held by them are as follows:
1. Jose A. Rojas 2. Severino G. de la Cruz 3. Emilio T. Yap 4. Jose Fernandez 5. Jose Francisco 6. Manuel S. Mendoza 7. Anthony P. Lee 8. Hilario M. Ruiz 9. Constante L. Farias 10. Fidelity Management, Inc. 11. Trident Management 12. United Phil. Lines 13. Renato M. Tanseco 14. Fidel Ventura 15. Metro Bay Drydock 16. Manuel Jacela 17. Jonathan G. Lu 18. Jose J. Tanchanco 19. Dioscoro Papa 20. Edward T. Marcelo TOTAL 1,248 shares 1,248 shares 2,508 shares 1,248 shares 128 shares 96 shares 1,248 shares 32 shares 8 shares 65,882 shares

7,412 shares 1,240 shares 8 shares 8 shares 136,370 shares 1 share 1 share 1 share 128 shares 4 shares 218,819 shares.

13 Acquisition of NASSCO by BASECO Barely six months after its incorporation, BASECO acquired from National Shipyard & Steel Corporation, or NASSCO, a government-owned or controlled corporation, the latter's shipyard at Mariveles, Bataan, known as the Bataan National Shipyard (BNS), and except for NASSCO's Engineer Island Shops and certain equipment of the BNS, consigned for future negotiation all its structures, buildings, shops, quarters, houses, plants, equipment and facilities, in stock or in transit. This it did in virtue of a "Contract of Purchase and Sale with Chattel Mortgage" executed on February 13, 1973. The price was P52,000,000.00. As partial payment thereof, BASECO delivered to NASSCO a cash bond of P11,400,000.00, convertible into cash within twenty-four (24) hours from completion of the inventory undertaken pursuant to the contract. The balance of P41,600,000.00, with interest at seven percent

Page

202

(7%) per annum, compounded semi-annually, was stipulated to be paid in equal semi-annual installments over a term of nine (9) years, payment to commence after a grace period of two (2) years from date of turnover of the shipyard to BASECO. 76 14. Subsequent Reduction of Price; Intervention of Marcos Unaccountably, the price of P52,000,000.00 was reduced by more than one-half, to P24,311,550.00, about eight (8) months later. A document to this effect was executed on October 9, 1973, entitled "Memorandum Agreement," and was signed for NASSCO by Arturo Pacificador, as Presiding Officer of the Board of Directors, and David R. Ines, as General Manager. 77 This agreement bore, at the top right corner of the first page, the word "APPROVED" in the handwriting of President Marcos, followed by his usual full signature. The document recited that a down payment of P5,862,310.00 had been made by BASECO, and the balance of P19,449,240.00 was payable in equal semi-annual installments over nine (9) years after a grace period of two (2) years, with interest at 7% per annum. 15. Acquisition of 300 Hectares from Export Processing Zone Authority On October 1, 1974, BASECO acquired three hundred (300) hectares of land in Mariveles from the Export Processing Zone Authority for the price of P10,047,940.00 of which, as set out in the document of sale, P2,000.000.00 was paid upon its execution, and the balance stipulated to be payable in installments. 78 16. Acquisition of Other Assets of NASSCO; Intervention of Marcos Some nine months afterwards, or on July 15, 1975, to be precise, BASECO, again with the intervention of President Marcos, acquired ownership of the rest of the assets of NASSCO which had not been included in the first two (2) purchase documents. This was accomplished by a deed entitled "Contract of Purchase and Sale," 79which, like the Memorandum of Agreement dated October 9, 1973 supra also bore at the upper right-hand corner of its first page, the handwritten notation of President Marcos reading, "APPROVED, July 29, 1973," and underneath it, his usual full signature. Transferred to BASECO were NASSCO's "ownership and all its titles, rights and interests over all equipment and facilities including structures, buildings, shops, quarters, houses, plants and expendable or semi-expendable assets, located at the Engineer Island, known as the Engineer Island Shops, including all the equipment of the Bataan National Shipyards (BNS) which were excluded from the sale of NBS to BASECO but retained by BASECO and all other selected equipment and machineries of NASSCO at J. Panganiban Smelting Plant." In the same deed, NASSCO committed itself to cooperate with BASECO for the acquisition from the National Government or other appropriate Government entity of Engineer Island. Consideration for the sale was set at P5,000,000.00; a down payment of P1,000,000.00 appears to have been made, and the balance was stipulated to be paid at 7% interest per annum in equal semi annual installments over a term of nine (9) years, to commence after a grace period of two (2) years. Mr. Arturo Pacificador again signed for NASSCO, together with the general manager, Mr. David R. Ines. 17. Loans Obtained It further appears that on May 27, 1975 BASECO obtained a loan from the NDC, taken from "the last available Japanese war damage fund of $19,000,000.00," to pay for "Japanese made heavy equipment (brand new)." 80 On September 3, 1975, it got another loan also from the NDC in the amount of P30,000,000.00 (id.). And on January 28, 1976, it got still another loan, this time from the GSIS, in the sum of P12,400,000.00. 81 The claim has been made that not a single centavo has been paid on these loans. 82 18. Reports to President Marcos In September, 1977, two (2) reports were submitted to President Marcos regarding BASECO. The first was contained in a letter dated September 5, 1977 of Hilario M. Ruiz, BASECO president. 83 The second was embodied in a confidential memorandum dated September 16, 1977 of Capt. A.T. Romualdez. 84 They further disclose the fine hand of Marcos in the affairs of BASECO, and that of a Romualdez, a relative by affinity. a. BASECO President's Report In his letter of September 5, 1977, BASECO President Ruiz reported to Marcos that there had been "no orders or demands for ship construction" for some time and expressed the fear that if that state of affairs persisted, BASECO would not be able to pay its debts to the Government, which at the time stood at the not inconsiderable amount of P165,854,000.00. 85 He suggested that, to "save the situation," there be a "spin-off (of their) shipbuilding activities which shall be handled exclusively by an entirely new corporation to be created;" and towards this end, he informed Marcos that BASECO was

Page

203

* * inviting NDC and LUSTEVECO to participate by converting the NDC shipbuilding loan to BASECO amounting to P341.165M and assuming and converting a portion of BASECO's shipbuilding loans from REPACOM amounting to P52.2M or a total of P83.365M as NDC's equity contribution in the new corporation. LUSTEVECO will participate by absorbing and converting a portion of the REPACOM loan of Bay Shipyard and Drydock, Inc., amounting to P32.538M. 86 b. Romualdez' Report Capt. A.T. Romualdez' report to the President was submitted eleven (11) days later. It opened with the following caption: MEMORANDUM: FOR : The President SUBJECT: An Evaluation and Re-assessment of a Performance of a Mission FROM: Capt. A.T. Romualdez. Like Ruiz, Romualdez wrote that BASECO faced great difficulties in meeting its loan obligations due chiefly to the fact that "orders to build ships as expected * * did not materialize." He advised that five stockholders had "waived and/or assigned their holdings inblank," these being: (1) Jose A. Rojas, (2) Severino de la Cruz, (3) Rodolfo Torres, (4) Magiliw Torres, and (5) Anthony P. Lee. Pointing out that "Mr. Magiliw Torres * * is already dead and Mr. Jose A. Rojas had a major heart attack," he made the following quite revealing, and it may be added, quite cynical and indurate recommendation, to wit: * * (that) their replacements (be effected) so we can register their names in the stock book prior to the implementation of your instructions to pass a board resolution to legalize the transfers under SEC regulations; 2. By getting their replacements, the families cannot question us later on; and 3. We will owe no further favors from them. 87 He also transmitted to Marcos, together with the report, the following documents: 88 1. Stock certificates indorsed and assigned in blank with assignments and waivers; 89 2. The articles of incorporation, the amended articles, and the by-laws of BASECO; 3. Deed of Sales, wherein NASSCO sold to BASECO four (4) parcels of land in "Engineer Island", Port Area, Manila; 4. Transfer Certificate of Title No. 124822 in the name of BASECO, covering "Engineer Island"; 5. Contract dated October 9, 1973, between NASSCO and BASECO re-structure and equipment at Mariveles, Bataan; 6. Contract dated July 16, 1975, between NASSCO and BASECO re-structure and equipment at Engineer Island, Port Area Manila; 7. Contract dated October 1, 1974, between EPZA and BASECO re 300 hectares of land at Mariveles, Bataan; 8. List of BASECO's fixed assets; 9. Loan Agreement dated September 3, 1975, BASECO's loan from NDC of P30,000,000.00;

Page

204

10. BASECO-REPACOM Agreement dated May 27, 1975; 11. GSIS loan to BASECO dated January 28, 1976 of P12,400,000.00 for the housing facilities for BASECO's rankand-file employees. 90 Capt. Romualdez also recommended that BASECO's loans be restructured "until such period when BASECO will have enough orders for ships in order for the company to meet loan obligations," and that An LOI may be issued to government agencies using floating equipment, that a linkage scheme be applied to a certain percent of BASECO's net profit as part of BASECO's amortization payments to make it justifiable for you, Sir. 91 It is noteworthy that Capt. A.T. Romualdez does not appear to be a stockholder or officer of BASECO, yet he has presented a report on BASECO to President Marcos, and his report demonstrates intimate familiarity with the firm's affairs and problems. 19. Marcos' Response to Reports President Marcos lost no time in acting on his subordinates' recommendations, particularly as regards the "spin-off" and the "linkage scheme" relative to "BASECO's amortization payments." a. Instructions re "Spin-Off" Under date of September 28, 1977, he addressed a Memorandum to Secretary Geronimo Velasco of the Philippine National Oil Company and Chairman Constante Farias of the National Development Company, directing them "to participate in the formation of a new corporation resulting from the spin-off of the shipbuilding component of BASECO along the following guidelines: a. Equity participation of government shall be through LUSTEVECO and NDC in the amount of P115,903,000 consisting of the following obligations of BASECO which are hereby authorized to be converted to equity of the said new corporation, to wit: 1. NDC P83,865,000 (P31.165M loan & P52.2M Reparation) 2. LUSTEVECO P32,538,000 (Reparation) b. Equity participation of government shall be in the form of non- voting shares. For immediate compliance. 92 Mr. Marcos' guidelines were promptly complied with by his subordinates. Twenty-two (22) days after receiving their president's memorandum, Messrs. Hilario M. Ruiz, Constante L. Farias and Geronimo Z. Velasco, in representation of their respective corporations, executed a PRE-INCORPORATION AGREEMENT dated October 20, 1977. 93 In it, they undertook to form a shipbuilding corporation to be known as "PHIL-ASIA SHIPBUILDING CORPORATION," to bring to realization their president's instructions. It would seem that the new corporation ultimately formed was actually named "Philippine Dockyard Corporation (PDC)." 94 b. Letter of Instructions No. 670 Mr. Marcos did not forget Capt. Romualdez' recommendation for a letter of instructions. On February 14, 1978, he issued Letter of Instructions No. 670 addressed to the Reparations Commission REPACOM the Philippine National Oil Company (PNOC), the Luzon Stevedoring Company (LUSTEVECO), and the National Development Company (NDC). What is commanded therein is summarized by the Solicitor General, with pithy and not inaccurate observations as to the effects thereof (in italics), as follows: * * 1) the shipbuilding equipment procured by BASECO through reparations be transferred to NDC subject to reimbursement by NDC to BASECO (of) the amount of s allegedly representing the handling and incidental expenses incurred by BASECO in the installation of said equipment (so instead of NDC getting paid on its loan to BASECO, it was made to pay BASECO instead the amount of P18.285M); 2) the shipbuilding equipment procured from reparations through EPZA, now in the possession of BASECO and BSDI (Bay Shipyard & Drydocking, Inc.)

Page

205

be transferred to LUSTEVECO through PNOC; and 3) the shipbuilding equipment (thus) transferred be invested by LUSTEVECO, acting through PNOC and NDC, as the government's equity participation in a shipbuilding corporation to be established in partnership with the private sector. xxx xxx xxx And so, through a simple letter of instruction and memorandum, BASECO's loan obligation to NDC and REPACOM * * in the total amount of P83.365M and BSD's REPACOM loan of P32.438M were wiped out and converted into non-voting preferred shares. 95 20. Evidence of Marcos' Ownership of BASECO It cannot therefore be gainsaid that, in the context of the proceedings at bar, the actuality of the control by President Marcos of BASECO has been sufficiently shown. Other evidence submitted to the Court by the Solicitor General proves that President Marcos not only exercised control over BASECO, but also that he actually owns well nigh one hundred percent of its outstanding stock. It will be recalled that according to petitioner- itself, as of April 23, 1986, there were 218,819 shares of stock outstanding, ostensibly owned by twenty (20) stockholders. 96 Four of these twenty are juridical persons: (1) Metro Bay Drydock, recorded as holding 136,370 shares; (2) Fidelity Management, Inc., 65,882 shares; (3) Trident Management, 7,412 shares; and (4) United Phil. Lines, 1,240 shares. The first three corporations, among themselves, own an aggregate of 209,664 shares of BASECO stock, or 95.82% of the outstanding stock. Now, the Solicitor General has drawn the Court's attention to the intriguing circumstance that found in Malacanang shortly after the sudden flight of President Marcos, were certificates corresponding to more than ninety-five percent (95%) of all the outstanding shares of stock of BASECO, endorsed in blank, together with deeds of assignment of practically all the outstanding shares of stock of the three (3) corporations above mentioned (which hold 95.82% of all BASECO stock), signed by the owners thereof although not notarized. 97 More specifically, found in Malacanang (and now in the custody of the PCGG) were: 1) the deeds of assignment of all 600 outstanding shares of Fidelity Management Inc. which supposedly owns as aforesaid 65,882 shares of BASECO stock; 2) the deeds of assignment of 2,499,995 of the 2,500,000 outstanding shares of Metro Bay Drydock Corporation which allegedly owns 136,370 shares of BASECO stock; 3) the deeds of assignment of 800 outstanding shares of Trident Management Co., Inc. which allegedly owns 7,412 shares of BASECO stock, assigned in blank; 98 and 4) stock certificates corresponding to 207,725 out of the 218,819 outstanding shares of BASECO stock; that is, all but 5 % all endorsed in blank. 99 While the petitioner's counsel was quick to dispute this asserted fact, assuring this Court that the BASECO stockholders were still in possession of their respective stock certificates and had "never endorsed * * them in blank or to anyone else," 100 that denial is exposed by his own prior and subsequent recorded statements as a mere gesture of defiance rather than a verifiable factual declaration. By resolution dated September 25, 1986, this Court granted BASECO's counsel a period of 10 days "to SUBMIT, as undertaken by him, * * the certificates of stock issued to the stockholders of * * BASECO as of April 23, 1986, as listed in Annex 'P' of the petition.' 101 Counsel thereafter moved for extension; and in his motion dated October 2, 1986, he declared inter alia that "said certificates of stock are in the possession of third parties, among whom being the respondents themselves * * and petitioner is still endeavoring to secure copies thereof from them." 102 On the same day he filed another motion praying that he be allowed "to secure copies of the Certificates of Stock in the name of Metro Bay Drydock, Inc., and of all other Certificates, of Stock of petitioner's stockholders in possession of respondents." 103

Page

206

In a Manifestation dated October 10, 1986,, 104 the Solicitor General not unreasonably argued that counsel's aforestated motion to secure copies of the stock certificates "confirms the fact that stockholders of petitioner corporation are not in possession of * * (their) certificates of stock," and the reason, according to him, was "that 95% of said shares * * have been endorsed in blank and found in Malacaang after the former President and his family fled the country." To this manifestation BASECO's counsel replied on November 5, 1986, as already mentioned, Stubbornly insisting that the firm's stockholders had not really assigned their stock. 105 In view of the parties' conflicting declarations, this Court resolved on November 27, 1986 among other things "to require * * the petitioner * * to deposit upon proper receipt with Clerk of Court Juanito Ranjo the originals of the stock certificates alleged to be in its possession or accessible to it, mentioned and described in Annex 'P' of its petition, (and other pleadings) * * within ten (10) days from notice." 106 In a motion filed on December 5, 1986, 107 BASECO's counsel made the statement, quite surprising in the premises, that "it will negotiate with the owners (of the BASECO stock in question) to allow petitioner to borrow from them, if available, the certificates referred to" but that "it needs a more sufficient time therefor" (sic). BASECO's counsel however eventually had to confess inability to produce the originals of the stock certificates, putting up the feeble excuse that while he had "requested the stockholders to allow * * (him) to borrow said certificates, * * some of * * (them) claimed that they had delivered the certificates to third parties by way of pledge and/or to secure performance of obligations, while others allegedly have entrusted them to third parties in view of last national emergency." 108He has conveniently omitted, nor has he offered to give the details of the transactions adverted to by him, or to explain why he had not impressed on the supposed stockholders the primordial importance of convincing this Court of their present custody of the originals of the stock, or if he had done so, why the stockholders are unwilling to agree to some sort of arrangement so that the originals of their certificates might at the very least be exhibited to the Court. Under the circumstances, the Court can only conclude that he could not get the originals from the stockholders for the simple reason that, as the Solicitor General maintains, said stockholders in truth no longer have them in their possession, these having already been assigned in blank to then President Marcos. 21. Facts Justify Issuance of Sequestration and Takeover Orders In the light of the affirmative showing by the Government that, prima facie at least, the stockholders and directors of BASECO as of April, 1986 109 were mere "dummies," nominees or alter egos of President Marcos; at any rate, that they are no longer owners of any shares of stock in the corporation, the conclusion cannot be avoided that said stockholders and directors have no basis and no standing whatever to cause the filing and prosecution of the instant proceeding; and to grant relief to BASECO, as prayed for in the petition, would in effect be to restore the assets, properties and business sequestered and taken over by the PCGG to persons who are "dummies," nominees or alter egos of the former president. From the standpoint of the PCGG, the facts herein stated at some length do indeed show that the private corporation known as BASECO was "owned or controlled by former President Ferdinand E. Marcos * * during his administration, * * through nominees, by taking advantage of * * (his) public office and/or using * * (his) powers, authority, influence * *," and that NASSCO and other property of the government had been taken over by BASECO; and the situation justified the sequestration as well as the provisional takeover of the corporation in the public interest, in accordance with the terms of Executive Orders No. 1 and 2, pending the filing of the requisite actions with the Sandiganbayan to cause divestment of title thereto from Marcos, and its adjudication in favor of the Republic pursuant to Executive Order No. 14. As already earlier stated, this Court agrees that this assessment of the facts is correct; accordingly, it sustains the acts of sequestration and takeover by the PCGG as being in accord with the law, and, in view of what has thus far been set out in this opinion, pronounces to be without merit the theory that said acts, and the executive orders pursuant to which they were done, are fatally defective in not according to the parties affected prior notice and hearing, or an adequate remedy to impugn, set aside or otherwise obtain relief therefrom, or that the PCGG had acted as prosecutor and judge at the same time. 22. Executive Orders Not a Bill of Attainder Neither will this Court sustain the theory that the executive orders in question are a bill of attainder. 110 "A bill of attainder is a legislative act which inflicts punishment without judicial trial." 111 "Its essence is the substitution of a legislative for a judicial determination of guilt." 112 In the first place, nothing in the executive orders can be reasonably construed as a determination or declaration of guilt. On the contrary, the executive orders, inclusive of Executive Order No. 14, make it perfectly clear that any judgment of guilt in the amassing or acquisition of "ill-gotten wealth" is to be handed down by a judicial tribunal, in this case, the Sandiganbayan, upon complaint filed and prosecuted by the PCGG. In the second place, no punishment is inflicted by the executive orders, as the merest glance at their provisions will immediately make apparent. In no sense, therefore, may the executive orders be regarded as a bill of attainder. 23. No Violation of Right against Self-Incrimination and Unreasonable Searches and Seizures

Page

207

BASECO also contends that its right against self incrimination and unreasonable searches and seizures had been transgressed by the Order of April 18, 1986 which required it "to produce corporate records from 1973 to 1986 under pain of contempt of the Commission if it fails to do so." The order was issued upon the authority of Section 3 (e) of Executive Order No. 1, treating of the PCGG's power to "issue subpoenas requiring * * the production of such books, papers, contracts, records, statements of accounts and other documents as may be material to the investigation conducted by the Commission, " and paragraph (3), Executive Order No. 2 dealing with its power to "require all persons in the Philippines holding * * (alleged "ill-gotten") assets or properties, whether located in the Philippines or abroad, in their names as nominees, agents or trustees, to make full disclosure of the same * *." The contention lacks merit. It is elementary that the right against self-incrimination has no application to juridical persons. While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse ofsuchprivileges * * 113 Relevant jurisprudence is also cited by the Solicitor General. 114 * * corporations are not entitled to all of the constitutional protections which private individuals have. * * They are not at all within the privilege against self-incrimination, although this court more than once has said that the privilege runs very closely with the 4th Amendment's Search and Seizure provisions. It is also settled that an officer of the company cannot refuse to produce its records in its possession upon the plea that they will either incriminate him or may incriminate it." (Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186; emphasis, the Solicitor General's). * * The corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It received certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserve right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that a state, having chartered a corporation to make use of certain franchises, could not, in the exercise of sovereignty, inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose. The defense amounts to this, that an officer of the corporation which is charged with a criminal violation of the statute may plead the criminality of such corporation as a refusal to produce its books. To state this proposition is to answer it. While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privileges and franchises may refuse to show its hand when charged with an abuse of such privileges. (Wilson v. United States, 55 Law Ed., 771, 780 [emphasis, the Solicitor General's]) At any rate, Executive Order No. 14-A, amending Section 4 of Executive Order No. 14 assures protection to individuals required to produce evidence before the PCGG against any possible violation of his right against self-incrimination. It gives them immunity from prosecution on the basis of testimony or information he is compelled to present. As amended, said Section 4 now provides that xxx xxx xxx The witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony, or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. The constitutional safeguard against unreasonable searches and seizures finds no application to the case at bar either. There has been no search undertaken by any agent or representative of the PCGG, and of course no seizure on the occasion thereof. 24. Scope and Extent of Powers of the PCGG

a. PCGG May Not Exercise Acts of Ownership

Page

208

One other question remains to be disposed of, that respecting the scope and extent of the powers that may be wielded by the PCGG with regard to the properties or businesses placed under sequestration or provisionally taken over. Obviously, it is not a question to which an answer can be easily given, much less one which will suffice for every conceivable situation.

One thing is certain, and should be stated at the outset: the PCGG cannot exercise acts of dominion over property sequestered, frozen or provisionally taken over. AS already earlier stressed with no little insistence, the act of sequestration; freezing or provisional takeover of property does not import or bring about a divestment of title over said property; does not make the PCGG the owner thereof. In relation to the property sequestered, frozen or provisionally taken over, the PCGG is a conservator, not an owner. Therefore, it can not perform acts of strict ownership; and this is specially true in the situations contemplated by the sequestration rules where, unlike cases of receivership, for example, no court exercises effective supervision or can upon due application and hearing, grant authority for the performance of acts of dominion. Equally evident is that the resort to the provisional remedies in question should entail the least possible interference with business operations or activities so that, in the event that the accusation of the business enterprise being "ill gotten" be not proven, it may be returned to its rightful owner as far as possible in the same condition as it was at the time of sequestration. b. PCGG Has Only Powers of Administration The PCGG may thus exercise only powers of administration over the property or business sequestered or provisionally taken over, much like a court-appointed receiver, 115 such as to bring and defend actions in its own name; receive rents; collect debts due; pay outstanding debts; and generally do such other acts and things as may be necessary to fulfill its mission as conservator and administrator. In this context, it may in addition enjoin or restrain any actual or threatened commission of acts by any person or entity that may render moot and academic, or frustrate or otherwise make ineffectual its efforts to carry out its task; punish for direct or indirect contempt in accordance with the Rules of Court; and seek and secure the assistance of any office, agency or instrumentality of the government. 116 In the case of sequestered businesses generally (i.e., going concerns, businesses in current operation), as in the case of sequestered objects, its essential role, as already discussed, is that of conservator, caretaker, "watchdog" or overseer. It is not that of manager, or innovator, much less an owner. c. Powers over Business Enterprises Taken Over by Marcos or Entities or Persons Close to him; Limitations Thereon Now, in the special instance of a business enterprise shown by evidence to have been "taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos," 117 the PCGG is given power and authority, as already adverted to, to "provisionally take (it) over in the public interest or to prevent * * (its) disposal or dissipation;" and since the term is obviously employed in reference to going concerns, or business enterprises in operation, something more than mere physical custody is connoted; the PCGG may in this case exercise some measure of control in the operation, running, or management of the business itself. But even in this special situation, the intrusion into management should be restricted to the minimum degree necessary to accomplish the legislative will, which is "to prevent the disposal or dissipation" of the business enterprise. There should be no hasty, indiscriminate, unreasoned replacement or substitution of management officials or change of policies, particularly in respect of viable establishments. In fact, such a replacement or substitution should be avoided if at all possible, and undertaken only when justified by demonstrably tenable grounds and in line with the stated objectives of the PCGG. And it goes without saying that where replacement of management officers may be called for, the greatest prudence, circumspection, care and attention - should accompany that undertaking to the end that truly competent, experienced and honest managers may be recruited. There should be no role to be played in this area by rank amateurs, no matter how wen meaning. The road to hell, it has been said, is paved with good intentions. The business is not to be experimented or played around with, not run into the ground, not driven to bankruptcy, not fleeced, not ruined. Sight should never be lost sight of the ultimate objective of the whole exercise, which is to turn over the business to the Republic, once judicially established to be "ill-gotten." Reason dictates that it is only under these conditions and circumstances that the supervision, administration and control of business enterprises provisionally taken over may legitimately be exercised. d. Voting of Sequestered Stock; Conditions Therefor So, too, it is within the parameters of these conditions and circumstances that the PCGG may properly exercise the prerogative to vote sequestered stock of corporations, granted to it by the President of the Philippines through a Memorandum dated June 26, 1986. That Memorandum authorizes the PCGG, "pending the outcome of proceedings to determine the ownership of * * (sequestered) shares of stock," "to vote such shares of stock as it may have sequestered in corporations at all stockholders' meetings called for the election of directors, declaration of dividends, amendment of the Articles of Incorporation, etc." The Memorandum should be construed in such a manner as to be consistent with, and not contradictory of the Executive Orders earlier promulgated on the same matter. There should be no exercise of the right to vote simply because the right exists, or because the stocks sequestered constitute the controlling or a substantial part of the corporate voting power. The stock is not to be voted to replace directors, or revise the articles or by-laws, or otherwise bring about substantial changes in policy, program or practice of the corporation except for demonstrably weighty and defensible grounds, and always in the context of the stated purposes of sequestration or provisional takeover, i.e., to prevent the dispersion or undue disposal of the corporate assets. Directors are not to be voted out simply because the power to do so exists. Substitution of directors is not to be done without reason or rhyme, should indeed be shunned if at an possible, and undertaken only

Page

209

when essential to prevent disappearance or wastage of corporate property, and always under such circumstances as assure that the replacements are truly possessed of competence, experience and probity. In the case at bar, there was adequate justification to vote the incumbent directors out of office and elect others in their stead because the evidence showed prima facie that the former were just tools of President Marcos and were no longer owners of any stock in the firm, if they ever were at all. This is why, in its Resolution of October 28, 1986; 118 this Court declared that Petitioner has failed to make out a case of grave abuse or excess of jurisdiction in respondents' calling and holding of a stockholders' meeting for the election of directors as authorized by the Memorandum of the President * * (to the PCGG) dated June 26, 1986, particularly, where as in this case, the government can, through its designated directors, properly exercise control and management over what appear to be properties and assets owned and belonging to the government itself and over which the persons who appear in this case on behalf of BASECO have failed to show any right or even any shareholding in said corporation. It must however be emphasized that the conduct of the PCGG nominees in the BASECO Board in the management of the company's affairs should henceforth be guided and governed by the norms herein laid down. They should never for a moment allow themselves to forget that they are conservators, not owners of the business; they are fiduciaries, trustees, of whom the highest degree of diligence and rectitude is, in the premises, required. 25. No Sufficient Showing of Other Irregularities As to the other irregularities complained of by BASECO, i.e., the cancellation or revision, and the execution of certain contracts, inclusive of the termination of the employment of some of its executives, 119 this Court cannot, in the present state of the evidence on record, pass upon them. It is not necessary to do so. The issues arising therefrom may and will be left for initial determination in the appropriate action. But the Court will state that absent any showing of any important cause therefor, it will not normally substitute its judgment for that of the PCGG in these individual transactions. It is clear however, that as things now stand, the petitioner cannot be said to have established the correctness of its submission that the acts of the PCGG in question were done without or in excess of its powers, or with grave abuse of discretion. WHEREFORE, the petition is dismissed. The temporary restraining order issued on October 14, 1986 is lifted.

Page

210

(8) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMIRO ALEGRE y CERDONCILLO, MARIO COMAYAS y CUDILLAN, MELECIO CUDILLAN y ARCILLAS, and JESUS MEDALLA y CUDILLAN, defendantsappellants. ** Not sure kun mau na ini, waray kasi SCRA or GR No. a adto sa list. [G.R. No. L-30423 November 7, 1979] ANTONIO, J.: This is an automatic review of a decision of the court of First Instance of Rizal, Seventh Judicial District, Branch VII, Pasay City finding all the accused, namely, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas and Jesus Medalla y Cudillan, guilty of the crime of Robbery with Homicide and sentencing them as follows: WHEREFORE, this Court finds accused Melecio Cudillan, ,Jesus Medalla, Ramiro Alegre, and Mario Comayas guilty beyond reasonable doubt of ROBBERY WITH HOMICIDE, committed with four (4) aggravating circumstances, not offset by any mitigating circumstance, and hereby sentences all of them to suffer the penalty of death, to be carried out pursuant to the applicable provisions of law, to indemnify jointly and severally the heirs of Adlina Sajo in the amount of P350,000.00, representing the value of the pieces of jewelry unrecovered, to pay jointly and severally also the heirs of Adelina Sajo the amount of P12,000.00. and to pay the costs. With or without appeal, let this case be elevated to the Supreme Court for review, pursuant to law. During the pendency of this appeal, Melecio Cudillan died on arrival at the New Bilibid Prison Hospital on August 16, 1970, and the case as against the said accused, insofar as his criminal liability is concerned, was dismissed on August 29, 1974. This decision, therefore, is limited to appellants Ramiro Alegre, Mario Comayas and Jesus Medalla. This case arose from the death of Adelina Sajo y Maravilla, Spinster, 57 years old, whose body was found in her bathroom inside her house at the Maravilla compound, Ignacio Street, Pasay City, in the early morning of July 26, 1966. According to the Necropsy Report, she died of asphyxia by manual strangulation, and the time of her death was placed between eighteen to twenty-two hours before 12:30 p.m. of July 26, 1966. Her bedroom was in "shambles," evidently indicating that it was ransacked. The drawers and several cabinets were open, and some personal garments, hadbags and papers were scattered on the floor. No witness saw the commission of the crime. Appellant Ramiro Alegre, who was then living with relatives in one of the rented rooms on the ground floor of the victim's house, was taken to the Pasay City police headquarters for investigation in connection with the case, but was later released that same day for lack of any evidence implicating him in the crime. During the latter part of July, 1966, Melecio Cudillan was apprehended in Tacloban City, Leyte, in the act of pawning a bracelet, one of the pieces of jewelry taken from the victim. In explaining how he came into possession of the stolen pieces of jewelry, he admitted his participation in the killing and robbery of Adlina Sajo. This appears in his extrajudicial confession before the police authorities of Tacloban City on July 29, 1966 (Exhibits "F", "F-1" and "F-2"). In this statement, which was written in the English language, Melecio Cudillan implicated a certain "Esok" of Villalon, Calubian, Leyte; Jesus Medalla, of Villahermosa, Calubian, Leyte; Mario Cudillan, also of Villahermosa, Calubian, Leyte; one "Danny" Fernandez, of Balaquid, Cabucgayan, Biliran Sub-province; and one "Rammy, " another Leyteno. When brought to Metro Manila and while he was inside the Pasay City police headquarters, Melecio Cudillan again executed an extrajudicial confession (Exhibits "A ", "A-1 " to "A-6" on July 31, 1966. This was sworn to before the Assistant City Fiscal of Pasay City on August 1, 1966. In this second statement, he narrated in detail the participation in the commission of the crime of Jesus Medalla, "Celso" Fernandez, "Rami" and "Mario." According to said statement, the declarant went near the cell within the Office of the Investigation Section, Secret Service Division, and Identified Ramiro Alegre, Jesus Medalla and Mario Comayas as the persons he referred to as Jesus Medalla, "Rami" and "Mario" in his declaration. On the basis of the aforementioned extrajudicial confession of Melecio Cudillan, an Information for Robbery with Homicide was filed by the Special Counsel of Pasay City against Celso Fernandez, alias "Esok," Jesus Medalla y Cudillan, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas, and one John Doe." When arraigned on August 10, 1966, Mario Comayas, Melecio Cudillan, Jesus Medalla and Ramiro Alegre entered a plea of not guilty. The prosecution presented nine (9) witnesses. None of them, however, testified on the actual commission of the crime. The recital of facts contained in the decision under review was based principally and mainly on the extrajudicial confessions of Melecio Cudillan. Thus, the details of the planning and the execution of the crime were taken from the "Pasay Sworn Statement" (Exhibits "A",

Page

211

"A-1" to "A-6"). The only evidence, therefore, presented by the prosecution to prove the guilt of appellants are the testimonies of Sgt. Mariano Isla and Hernando Carillo. The testimony of Sgt. Mariano Isla of the Pasay City police is to the effect that when he was investigating Melecio Cudillan, the latter pointed to Ramiro Alegre, Mario Comayas and Jesus Medalla as his companions in the commission of the crime. According to him, said appellants "just stared at him (Melecio Cudilla) and said nothing." Q. In what particular place in the Police Department did you have to confront the accused Melecio Cudillan with the other suspects'? A. In the office of the Secret Service Division. Q. When you said there was a confrontation between the accused Melecio Cudillan and other suspects whom do you refer to as other suspects? A. Jesus Medalla, Celso Fernandez, Rosario Dejere and Mario. There was another person Eduardo Comayas. He was also one of those suspects but Melecio Cudillan failed to point to him as his companion. Q. Who were those persons or suspects pointed to by Melecio Cudillan in the Police Department of Pasay City as his companions? A. To Jesus Medalla, Ramiro Alegre and Mario Comayas. Q. When Melecio Cudilla pointed to these persons what did these three persons do? A. They just stared at him and said nothing. (t.s.n., pp. 15-16, Hearing of October 28, 1966). According to the trial court, had the appellants "really been innocent (they) should have protested vigorously and not merely kept their silence." Hernando Carillo, a detention prisoner in the Pasay City jail, declared that the three (3) appellants admitted to him that they took part in the robbery and homicide committed in the residence of the deceased, viz.: ATTY. DEPASUCAT: Q. Do you know the other accused Ramiro Alegre? A. Yes, sir. Q. If he is inside the court room, will you please point him out? INTERPRETER: Witness points to the fellow in the second row, fourth from the left who, upon being asked, gave his name as Ramiro Alegre. ATTY. DEPASUCAT: Q. Did you have any occasion to talk to Ramiro Alegre? A. Yes, sir. Q. Where? A. In the city jail because our cells are also near each other. Q. And what did you and Ramiro Alegre talk about? A. Concerning his case and he told me that he has also anticipated in the commission of the killing of Adelina Sajo. Q. By the way, when did you talk with Ramiro Alegre, more or less? A. About the middle of June. Q. And what else did Ramiro Alegre tell you, if any? A. That he was also inside the room when they killed Adelina Sajo. Q. Now, regarding that conversation you had with the accused Jesus Medalla, when did that take place, more or less? A. About that month also of June, about the middle of June. Q. What year? A. 1967. Q. Do you know the other accused Mario Comayas? A. Yes, sir. Q. Why do you know him? A. He is also one of the prisoners and our cells are near each other. Q. If he is inside the courtroom, will you please point him out? INTERPRETER: Witness indicating to the fellow who gave his name as Mario Comayas. ATTY. DEPASUCAT: Q. Did you have any occasion to talk with the accused Mario Comayas?

Page

212

A. Yes, sir. Q. When was that, more or less? A. In the month of June, about the middle part also of June. Q. And what did you talk about? A. Regarding this case of Adelina Sajo and he admitted to me that he was one of those who planned and killed Adelina Sajo. Q. I see! And what, else did he tell you, if any? A. That while the killing was being perpetrated upstairs he was told to by the door. Q. How about the other accused Melencio Cudillan, do you know him? A. Yes, sir. Q. If he is in court, will you please point him out? INTERPRETER: Witness pointing to the accused who gave his name as Melecio Cudillan. ATTY. DEPASUCAT: Q. Why do you know Melecio Cudillan? A. Because he is with me in one cell. Q. Were you able also to talk with Melecio Cudillan? A. Most of the time because we used to talk about our case. Q. When have you talked with Melecio Cudillan, more or less? A. Three days after my confinement and subsequently thereafter up to about the first week of June, 1967. Q. And what did the accused Melecio Cudillan tell you about this case? ATTY. RAMIREZ: Objection, Your Honor, leading. COURT: Witness may answer, there is already a basis. A. That they were the ones who planned and killed Adelina Sajo. (t.s.n., pp. 286-289, Hearing of July 21, 1967). However, during the trial, Melecio Cudillan repudiated both the Tacloban City and Pasay City sworn statements as the product of compulsion and duress. He claimed that he was not assisted by counsel when he was investigated by the police. Appellants Jesus Medalla and Mario Comayas denied any involvement in the crime. They testified that at the time of the incident in question. they were attending the internment of the deceased child of Ciriaco Abobote. According to Jesus Medalla, he and his companions left the Maravilla compound at 10:00 o'clock in the morning of July 25, 1966 to attend the internment. 'They left the cemetery at about 5:00 o'clock in the afternoon and proceeded directly to his house at Leveriza Street where he stayed the whole night. Mario Comayas confirmed that he and Jesus Medalla were at the house of Ciriaco Abobote in the morning of July 25, 1966, until after 5:00 o'clock in the afternoon when he returned to the bakery where he was employed to resume his work. Appellant Ramiro Alegre did not testify but presented three (3) witnesses to support his defense. Thus, Urbano Villanueva testified that he was a sub-contractor of Jose Inton for the welding project of David M. Consunji at the Sheraton Hotel construction; that Ramiro Alegre began working at the construction as a welder on July 13, 1966, and that from 7:00 o'clock in the morning to 4:00 o'clock in the afternoon, Alegre worked in the project and that he knew this because he is the foreman and timekeeper in the project. He Identified the Time Record of Ramiro Alegre (Exhibit "1"). Rodolfo Villanueva and Romeo Origenes testified that from 7:00 o'clock in the morning up to 4:00 o'clock in the afternoon of July 25, 1966, appellant Ramiro Alegre was at the Sheraton Hotel construction at Roxas Boulevard. Their testimony is confirmed by the Time Record of Ramiro Alegre (Exhibit "1") which contained the number of hours he actually worked at the Sheraton Hotel construction project. Appellants now contend that the lower court erred in utilizing the extrajudicial confessions of Melecio Cudillan (now deceased) as evidence against herein appellants; in concluding from the alleged "Silence" of appellants when allegedly pointed to by Melecio Cudillan as "his companions" in the commission of the crime, an admission of guilt; and in giving undue weight and credence to the testimony of an inmate of the Pasay City Jail that appellants admitted to him their participation in the crime. I The extrajudicial confessions of Melecio Cudillan (Exhibits "A", "A- I " to "A-6" and "F", "F-1" and "F-2"), on the basis of which the trial court was able to reconstruct how Melecio Cudillan committed the crime in question, cannot be used as evidence and are not competent proof against appellants Ramiro Alegre and Jesus Medalla, under the principle of " res inter alios acta alteri nocere non debet" 1 there being no independent evidence of conspiracy. 2 As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co- accused. It is merely hearsay evidence as far as the other accused are concerned. 3 While there are recognized exceptions to this rule, the facts and circumstances attendant in the case

Page

213

at bar do not bring it within the purview of such exceptions. The only evidence, therefore, linking the appellants to the crime would be their purported tacit admissions and/or failure to deny their implications of the crime made by Melecio Cudillan, and/or their purported verbal confessions to Hernando Carillo, an inmate of the Pasay City jail. II The next question to be resolved is whether or not the silence of appellants while under police custody, in the face of statements of Melecio Cudillan implicating them as his companions in the commission of the crime, could be considered as tacit admission on their part of their participation therein. The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, 4 and that he may refuse to answer an incriminating question. 5 It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of silence would be illusory. 6 The leading case of Miranda v. Arizona 7 held that the prosecution may not use at trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in the face of an accusation made at a police custodial interrogation. Prior to Miranda, it was the view of many authorities that a man to whom a statement implicating him in a crime is directed may fail to reply if he is in custody under a charge of the commission of that crime, not because he acquiesces in the truth of the statement, but because he stands on his constitutional right to remain silent, as being the safest course for him to pursue and the best way out of his predicament. 8 Other courts have held that the circumstance that one is under arrest by itself does not render the evidence inadmissible, and that an accusation of a crime calls for a reply even from a person under arrest or in the custody of an officer, where the circumstances surrounding him indicate that he is free to answer if he chooses. 9 We hold that the better rule is that the silence of an accused under custody, or his failure to deny statements by another implicating him in a crime, especially when such accused is neither asked to comment or reply to such implications or accusations, cannot be considered as a tacit confession of his participation in the commission of the crime. Such an inference of acquiescence drawn from his silence or failure to deny the statement would appear incompatible with the right of an accused against self-incrimination. The right or privilege of a person accused of a crime against self- incrimination is a fundamental right. It is a personal right of great importance and is given absolutely and unequivocably. The privilege against self-incrimination is an important development in man's struggle for liberty. It reflects man's fundamental values and his most noble of aspirations, the unwillingness of civilized men to subject those' suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; the fear that self-incriminating statements may be obtained by inhumane treatment and abuses, and the respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life." 10 In the words of Chavez v. Court of Appeals: 11 ... this right is 'not merely a formal technical rule the enforcement of which is left to the discretion of the court;' it is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice ... Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. It must be stressed here that even under a regime of martial law, the operations of our laws governing the rights of an accused person are not open to doubt. Under the code for the administration of detainees, all officers, civilian and military personnel are sworn to uphold the rights of detainees. Among such fundamental rights are the right against compulsory testimonial self-incrimination, the right, when under investigation for the commission of an offense, to remain silent, to have counsel, and to be informed of his rights; the right not to be subjected to force, violence, threats, intimidation and degrading punishment or torture in the course of one's detention, and the safeguard that any confession obtained in violation of the foregoing rights shall be inadmissible in evidence. 12The 1973 Constitution gives explicit constitutional sanction to the right to silence. Thus, in Section 20 of Article IV of the Constitution, there is this categorical mandate: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." This privilege against self-incrimination guaranteed by the Constitution protects, therefore, the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence. 13

Page

214

This aspect of the right has been comprehensively explained by then Associate Justice Enrique M. Fernando, now Chief justice, in Pascual Jr. v. Board of Medical Examiners, 14 thus: The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: 'The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt.' Only last year, in Chavez v. Court of Appeals, speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant 'to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will.' Identifying the right of an accused to remain silent with right to privacy, this Court, in Pascual explained that the privilege against selfincrimination "enables the citizen to create a zone of privacy which government may not force to surrender to its detriment." We hold, therefore, that it was error for the trial court to draw from appellants' silence while under police custody, in the face of the incriminatory statements of Melecio Cudillan, the conclusion that the aforesaid appellants had tacitly admitted their guilt. We hold, further, that in view of the inadmissibility of the extrajudicial confession of Melecio Cudillan implicating herein appellants, the remaining evidence against them, consisting in the testimonies of Sgt. Mariano Isla and Hernando Carillo, is insufficient to sustain the judgment of conviction. Indeed, it is inherently improbable that herein appellants would have readily confessed their participation in the commission of a heinous crime to a casual acquaintance in a prison detention cell, considering that on the same occasion they strongly denied any involvement in such crime before the police authorities. WHEREFORE, the judgement appealed from is reversed, and appellants Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan and Jesus Medalla y Cudillan are hereby ACQUITTED of the crime with which they are charged. Their immediate release from detention is ordered, unless they or any one of them is otherwise held for some other lawful cause. SO ORDERED.

Page

215

(9) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SILVESTRE CARILLO, defendant-appellant. ** Not sure na naman kun mau na ini. Waray kasi 77 SCRA 572. Pero yaun 77 PHIL 572, kaya mau nala ak gincopy, just in case nagsala la si Mam. Check nala sa SCRA kun nanu gud. [G.R. No. L-283 October 30, 1946] TUASON, J.: The appellant was found guilty of murder by the Court of First Instance of Cebu and was sentence to reclusion perpetua with the accessories of law and to pay the heirs of the deceased an indemnity of P2,000 and costs. Defendant admits the commission of the crime charged. The dispute centers on the manner and the motive of the killing. The evidence for the prosecution consist of Exhibit A, defendant's confession made in answer to question propounded by Capt. F.M. Palanca, a former guerrilla officer attached to the Philippine Army, and Exhibit B, another confession in which he ratified Exhibit A, also in the form of questions and answers, before Assistant City Fiscal Cesar Kintanar of the City of Cebu. In his first confession, the accused stated that he had killed Pastor Calma in the early evening of June 29, 1945, at the Philippine Independent Church cemetery by shooting him with a carbine. He said his reason for taking Calma's life was "because of my hatred against him when he tried to arrest and take me to the Jap kempetai, last year, 1944." He added that Calma "not only held my neck but he also slapped me about three times and at the same time inquired from me the reason of my hanging around his place." By way of corroboration, Jorge Dapat that, while talking with friends he heard shooting and then saw many people gathering at the Philippine Independent Church cemetery. He went to the place, which was near defendant's house, and saw Pastor Calma dead. About a minute later, Silvestre Carillo with an American MP arrived. The American MP asked Carillo whether he was the one who shot Pastor Calma, and Carillo answered yes, but witness did not hear the other questions which the American MP asked defendant. At the trial, defendant gave an entirely different version of the killing. He said he was a soldier; had been one since 1943. He sought to prove that Calma was an escaped prisoner, having run away from the stockade where he had been confined as a former Japaneseemployed undercover, and that when he tried to arrest Calma, the latter resisted. Calma, he said, started to rush against him to wrest his gun. Asked how he happened to sign Exhibit A, defendant answered that as Palanca was a captain and he was a mere buck private, he did not more than obey Palanca's order. He declared that in the office of the American MP he had been told to make a statement and an American had struck him in the head. He further said he did not read Exhibit B, his statements before Fiscal Cesar Kintanar; that he signed it because he was not aware of its contents. He denied that this exhibit was translated to him. He swore that he appeared in the City Fiscal's office because he had been cited and that the fiscal suggested he plead guilty in order that he might be used as a government witness against Calma's wife whom the Fiscal was planning to prosecute. Jorge Dapat testifying for the defense stated that Calma was shot because he was an escaped prisoner and "because, as I have known, he did not want to be brought back alive to the jail," and that Calma himself told him this at Rosing's house. It is obvious that appellant's confession as transcribed in Exhibit A was freely made. No violence intimidation or duress is alleged to have been employed by Capt. Palanca to wring this confession against accused's will. The reason given by defendant for repudiating Exhibit A that he could not refuse Captain Palanca's order to sign it because Palanca was his superior in rank leaves out unexplained the all important question why he made the statements themselves which are set forth in that document. If an American MP hit the accused in the head, as the latter declared, that incident, if true, does not seem to have direct relation to his examination by Captain Palanca. The inference we drew from his vague and unexplicit testimony on this point is that his experience with the American military police was in an investigation conducted before he was turned over to the Philippine Army in which he belonged. The accused admitted that Captain Palanca and he were alone at Palanca's office when his statements were taken down, although, as a matter of fact, another officer, who wrote the said statements on typewriter, was present. Like Exhibit A, Exhibit B stands unimpeached. Speaking of Exhibit B, defendant merely said that he signed it because he did not know what it contained. He did not charge Fiscal Kintanar with having resorted to any improper means during the examination to force him to make any declaration. Defendant's testimony that the Fiscal promised to use him as a witness against Calma's wife in consideration of his confession does not make sense, and this testimony does not seem to have been given in earnest.

Page

216

If defendant's confession as transcribed in Exhibit A was voluntary, we have to conclude that Calma was slain in the manner and for the reason set out in that document. It is needless to say that no one in his right mind would convict himself without compulsion by fabricating a highly self-damaging story and suppressing the truth which would absolve him. Several questions of identical character affecting the admission of Exhibits A and B are raised. Paragraph 18, section 1, Article III of the Constitution, which provides that "no person shall be compelled to be a witness against himself," does not support the proposition that the confession of an accused is inadmissible. The conviction of an accused on a voluntary extrajudicial statement in no way violates the constitutional guarantee against selfincrimination. What the above inhibition seeks to protect is compulsary disclosure of incriminating facts. While there could be some possible objections to the admissibility of a confession on grounds of its untrustworthiness, such confession is never excluded as evidence on account of any supposed violation of the constitutional immunity of the party from self-incrimination. (Hendrickson vs. People, 10 N.Y., 33; 3 Wigmore on Evidence, p. 250.) The use of voluntary confession is a universal, time-honored practice grounded on common law and expressly sanctioned by statutes. More of this presently. lawphil.net Appellant assails the admissibility of Exhibits A and B on another ground. He contends that under article 24 of Commonwealth Act No. 408, otherwise known as the Articles of War, these documents should be rejected. Article 24 of Act No. 408 is as follows: ART. 24. No witness before a military court, commission, court of inquiry, or board, or before any officer conducting an investigation, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry or board, or before an officer conducting an investigation shall be compelled to incriminate himself, or to answer any question not material to the issue when such answer might tend to degrade him. It is clear from the title and purpose of this enactment that article 24 has reference to court martial proceedings, not to proceedings in the ordinary civil courts of justice. And a close examination of the article will show that it seeks to protect a witness from being compelled to answer incriminating questions, or degrading questions not material to the issue, but is does not prohibit the taking of incrimating or degrading statements of witnesses who choose to give them voluntarily, uninfluenced by fear of punishment, if they refuse, or by promises of leniency or reward. This legal precept does not differ essentially from the general rule of evidence embodied in the Rules of Court as sections 14 and 96, Rule 123, which expressly make acknowledgment of guilt evidence against the person making it, subject only to the indispensable condition that it be free from any taint of compulsion sufficient to vitiate its voluntary character. Our attention is called to paragraph 2, section 37, of Commonwealth Act No. 58, known as the Charter of the City of Cebu, by reason of which, in appellant's opinion, the court erred in admitting Exhibit B. This particular provision of the Cebu City Charter states in substance that sworn statements made before the City Fiscal in the course of an investigation conducted by him may not be accepted as evidence against the declarant in case of eventual prosecution. The prosecution contends that the Rules of Court, which were promulgated in 1940, after the passage of Commonwealth Act No. 48, pursuant to section 13, Article VIII, of the Constitution, have repealed the provisions of the Charter of the City of Cebu which are inconsistent with these Rule. The case of Ruges vs. Dosdos ( 69 Phil., 158), is cited, in which the court held that General Orders No. 58, as amended by a resolution of this court of March 24, 1937, adopted under the powers conferred upon it by the above-mentioned section and article of the Fundamental Law, abrogated section 45 of the Cebu City Charter because the latter clashed with the new rules regarding the time and manner in which an appeal should be taken from any final judgment of the justice of the peace or of the municipal court by the convicted party to the Court of First Instance. It is argued that by the same token, section 37, paragraph 2, of Act No. 58 must give way to the above-mentioned sections 14 and 96, Rule 123 of the Rules of Court, with which it is in conflict. It is unnecessary to decide this objection and we refrain from rendering any ruling thereon. The statements in Exhibit B are mere confirmatory of the statements in Exhibit A, which, independently of Exhibit B, establish the guilt of the appellant beyond reasonable doubt.

Page

217

The lower convicted the accused of murder with evident premeditation, apparently, as qualifying circumstance. The Solicitor General, in recommending affirmance of the sentence bases his recommendation on the alleged presence of this qualifying circumstance. Treachery was not proved and is not now urged.

We are not fully satisfied that evident premeditation, within the meaning of this term as used in the Revised Penal Code, has been proven beyond a reasonable doubt. Although in appellant's confession there is a statement that, on the morning of June 29, when he heard that Calma was at large, he proposed to kill the now deceased, there is an entire absence of evidence showing that he meditiated and reflected on his intention between the time it was conceived and the time the crime was actually perpetrated. Defendant's proposition was nothing but an expression of his own determination to commit the crime, which is entirely distinct from the premeditation which the law requires to be well defined and established to aggravate the criminal responsibility. (United States vs. Angeles, 6 Phil., 480.) To authorize the finding of evident premeditation, it must appear not only that the accused had made a decision to commit the crime prior to the moment of its execution but that this decision was the result of meditation, calculation or reflection, or persistent attempt. As has been pointed out, the evidence fails to prove that appellant meditated and reflected on his purpose to permit the formation of a deliberate determination. We cannot close this decision without making a reference to the defamatory remarks which counsel for appellant makes in his brief, casting aspersions on the trial Judge's motives and conduct. These remarks have no relevancy to the case, are of no value to us in the decision of the issues, and are not borne out by the record. To say that it is unprofessional worthy of the highest rebuke for a lawyer to attribute to a judge motive which do not appear on the record and have no materiality to the case is to reassert aplatitude. (Ferrer vs. De Inchausti, 38 Phil., 905.) The fact that counsel, according to a writing filed later with this court, has apologized to the judge and the judge has expressed satisfaction with the apology, has not written finish to the episode; for the libel transcends the confines of personalities, injured feelings or mental anguish. Its poison infects the judiciary of which the judge is a member. In attempting to heap ridicule on the judge and bring him into disrepute without justifiable ends and basis, in connection with the performance of his official duties, counsel by his act put in jeopardy the good name of and confidence in the court over which the judge presides. Counsel should conduct himself towards the judges who try his cases with that courtesy all have a right to expect. As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice. We find the appellant guilty of homicide and modify the judgment from which this is an appeal by sentencing him to an indeterminate penalty of from six (6) years and one (1) day of prision mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, with the accesories of law, to pay the heirs of the deceased P2,000 by way of indemnity, and to pay the costs on both instances.

Page

218

(10) JESUS P. MORFE, plaintiff-appellee, vs. AMELITO R. MUTUC, as Executive Secretary, ET AL., defendants-appellants. [G.R. No. L-20387 January 31, 1968] FERNANDO, J.: Congress in 1960 enacted the Anti-Graft and Corrupt Practices Act 1 to deter public officials and employees from committing acts of dishonesty and improve the tone of morality in public service. It was declared to be the state policy "in line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto." 2 Nor was it the first statute of its kind to deal with such a grave problem in the public service that unfortunately has afflicted the Philippines in the post-war era. An earlier statute decrees the forfeiture in favor of the State of any property found to have been unlawfully acquired by any public officer or employee. 3 One of the specific provisions of the Anti-Graft and Corrupt Practices Act of 1960 is that every public officer, either within thirty (30) days after its approval or after his assumption of office "and within the month of January of every other year thereafter", as well as upon the termination of his position, shall prepare and file with the head of the office to which he belongs, "a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar: . . ." 4 In this declaratory relief proceeding, the periodical submission "within the month of January of every other year thereafter" of such sworn statement of assets and liabilities after an officer or employee had once bared his financial condition upon assumption of office was challenged for being violative of due process as an oppressive exercise of police power and as an unlawful invasion of the constitutional right to privacy, implicit in the ban against unreasonable search and seizure construed together with the prohibition against self-incrimination. The lower court in the decision appealed from sustained plaintiff, then as well as now, a judge of repute of a court of first instance. For it, such requirement of periodical submission of such sworn statement of assets and liabilities exceeds the permissible limit of the police power and is thus offensive to the due process clause. We do not view the matter thus and accordingly reverse the lower court. 1. The reversal could be predicated on the absence of evidence to rebut the presumption of validity. For in this action for declaratory relief filed with the Court of First Instance of Pangasinan on January 31, 1962, plaintiff, after asserting his belief "that it was a reasonable requirement for employment that a public officer make of record his assets and liabilities upon assumption of office and thereby make it possible thereafter to determine whether, after assuming his position in the public service, he accumulated assets grossly disproportionate to his reported incomes, the herein plaintiff [having] filed within the period of time fixed in the aforesaid Administrative Order No. 334 the prescribed sworn statement of financial condition, assets, income and liabilities, . . ." 5 maintained that the provision on the "periodical filing of sworn statement of financial condition, assets, income and liabilities after an officer or employee had once bared his financial condition, upon assumption of office, is oppressive and unconstitutional." 6 As earlier noted, both the protection of due process and the assurance of the privacy of the individual as may be inferred from the prohibition against unreasonable search and seizure and self-incrimination were relied upon. There was also the allegation that the above requirement amounts to "an insult to the personal integrity and official dignity" of public officials, premised as it is "on the unwarranted and derogatory assumption" that they are "corrupt at heart" and unless thus restrained by this periodical submission of the statements of "their financial condition, income, and expenses, they cannot be trusted to desist from committing the corrupt practices defined. . . ." 7 It was further asserted that there was no need for such a provision as "the income tax law and the tax census law also require statements which can serve to determine whether an officer or employee in this Republic has enriched himself out of proportion to his reported income." 8 Then on February 14, 1962, came an Answer of the then Executive Secretary and the then Secretary of Justice as defendants, where after practically admitting the facts alleged, they denied the erroneous conclusion of law and as one of the special affirmative defenses set forth: "1. That when a government official, like plaintiff, accepts a public position, he is deemed to have voluntarily assumed the obligation to give information about his personal affair, not only at the time of his assumption of office but during the time he continues to discharge public trust. The private life of an employee cannot be segregated from his public life. . . ." 9 The answer likewise denied that there was a violation of his constitutional rights against self-incrimination as well as unreasonable search and seizure and maintained that "the provision of law in question cannot be attacked on the ground that it impairs plaintiff's normal and legitimate enjoyment of his life and liberty because said provision merely seeks to adopt a reasonable measure of insuring the interest or general welfare in honest and clean public service and is therefore a legitimate exercise of the police power." 10 On February 27, 1962, plaintiff filed a Motion for judgment on the pleadings as in his opinion all his material allegations were admitted. Then on March 10, 1962, an order was issued giving the parties thirty days within which to submit memoranda, but with or

Page

219

without them, the case was deemed submitted for decision the lower court being of the belief that "there is no question of facts, . . . the defendants [having admitted] all the material allegations of the complaint." 11 The decision, now on appeal, came on July 19, 1962, the lower court declaring "unconstitutional, null and void Section 7, Republic Act No. 3019, insofar as it required periodical submittal of sworn statements of financial conditions, assets and liabilities of an official or employee of the government after he had once submitted such a sworn statement upon assuming office; . . . ." 12 In Ermita-Malate Hotel and Motel Operators Association v. The Mayor of Manila , 13 it was the holding of this Court that in the absence of a factual foundation, the lower court deciding the matter purely "on the pleadings and the stipulation of facts, the presumption of validity must prevail." In the present case likewise there was no factual foundation on which the nullification of this section of the statute could be based. Hence as noted the decision of the lower court could be reversed on that ground. A more extended consideration is not inappropriate however, for as likewise made clear in the above Ermita-Malate Hotel case: "What cannot be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider." Moreover, in the Resolution denying the Motion for Reconsideration in the above case, we expressly affirmed: "This is not to discount the possibility of a situation where the nullity of a statute, executive order, or ordinance may not be readily apparent but the threat to constitutional rights, especially those involving the freedom of the mind, present and ominous." 14 In such an event therefore, "there should not be a rigid insistence on the requirement that evidence be presented." Also, in the same Resolution, Professor Freund was quoted thus: "In short, when freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled, it is the lawmakers' judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause. 15 2. We inquire first whether or not by virtue of the above requirement for a periodical submission of sworn statement of assets and liabilities, there is an invasion of liberty protected by the due process clause. Under the Anti-Graft Act of 1960, after the statement of policy, 16 and definition of terms, 17 there is an enumeration of corrupt practices declared unlawful in addition to acts or omissions of public officers already penalized by existing law. They include persuading, inducing, or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense; requesting or receiving directly or indirectly any gift, present, share, percentage, or benefit, for himself, or for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity, has to intervene under the law; requesting or receiving directly or indirectly any gift, present, or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given; accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination; causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence; neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party; entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby; having directly or indirectly financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity or in which he is prohibited by the Constitution or by any law from having any interests; becoming interested directly or indirectly, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in such action; approving or granting knowingly any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled and divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. 18 After which come the prohibition on private individuals, 19 prohibition on certain relatives, 20 and prohibition on Members of Congress. 21 Then there is this requirement of a statement of assets and liabilities, that portion requiring periodical submission being challenged here. 22 The other sections of the Act deal with dismissal due to unexplained wealth, reference being made to the previous

Page

220

statute, 23 penalties for violation, 24 the vesting of original jurisdiction in the Court of First Instance as the competent court, 25 the prescription of offenses, 26 the prohibition against any resignation or retirement pending investigation, criminal or administrative or pending a prosecution, 27 suspension and loss of benefits, 28 exception of unsolicited gifts or presents of small or insignificant value as well as recognition of legitimate practice of one's profession or trade or occupation, 29 the separability clause, 30 and its effectivity. 31 Nothing can be clearer therefore than that the Anti-Graft Act of 1960 like the earlier statute 32 was precisely aimed at curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. It is intended to further promote morality in public administration. A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then prevailing called for norms of such character. The times demanded such a remedial device. The statute was framed with that end in view. It is comprehensive in character, sufficiently detailed and explicit to make clear to all and sundry what practices were prohibited and penalized. More than that, an effort was made, so evident from even a cursory perusal thereof, to avoid evasions and plug loopholes. One such feature is the challenged section. Thereby it becomes much more difficult by those disposed to take advantage of their positions to commit acts of graft and corruption. While in the attainment of such public good, no infringement of constitutional rights is permissible, there must be a showing, clear, categorical, and undeniable, that what the Constitution condemns, the statute allows. More specifically, since that is the only question raised, is that portion of the statute requiring periodical submission of assets and liabilities, after an officer or employee had previously done so upon assuming office, so infected with infirmity that it cannot be upheld as valid? Or, in traditional terminology, is this requirement a valid exercise of the police power? In the aforesaid Ermita-Malate Hotel decision, 33 there is a reaffirmation of its nature and scope as embracing the power to prescribe regulations to promote the health, morals, education, good order, safety, or the general welfare of the people. It has been negatively put forth by Justice Malcolm as "that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." 34 Earlier Philippine cases refer to police power as the power to promote the general welfare and public interest; 35 to enact such laws in relation to persons and property as may promote public health, public morals, public safety and the general welfare of each inhabitant; 36 to preserve public order and to prevent offenses against the state and to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood calculated to prevent conflict of rights. 37 In his work on due process, Mott 38 stated that the term police power was first used by Chief Justice Marshall. 39 As currently in use both in Philippine and American decisions then, police power legislation usually has reference to regulatory measures restraining either the rights to property or liberty of private individuals. It is undeniable however that one of its earliest definitions, valid then as well as now, given by Marshall's successor, Chief Justice Taney does not limit its scope to curtailment of rights whether of liberty or property of private individuals. Thus: "But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its domain." 40 Text writers like Cooley and Burdick were of a similar mind. 41 What is under consideration is a statute enacted under the police power of the state to promote morality in public service necessarily limited in scope to officialdom. May a public official claiming to be adversely affected rely on the due process clause to annul such statute or any portion thereof? The answer must be in the affirmative. If the police power extends to regulatory action affecting persons in public or private life, then anyone with an alleged grievance can invoke the protection of due process which permits deprivation of property or liberty as long as such requirement is observed. While the soundness of the assertion that a public office is a public trust and as such not amounting to property in its usual sense cannot be denied, there can be no disputing the proposition that from the standpoint of the security of tenure guaranteed by the Constitution the mantle of protection afforded by due process could rightfully be invoked. It was so implicitly held in Lacson v. Romero, 42 in line with the then pertinent statutory provisions 43that procedural due process in the form of an investigation at which he must be given a fair hearing and an opportunity to defend himself must be observed before a civil service officer or employee may be removed. There was a reaffirmation of the view in even stronger language when this Court through Justice Tuason in Lacson v. Roque 44 declared that even without express provision of law, "it is established by the great weight of authority that the power of removal or suspension for cause can not, except by clear statutory authority, be exercised without notice and hearing." Such is likewise the import of a statement from the then Justice, now Chief Justice, Concepcion, speaking for the Court in Meneses v. Lacson; 45 "At any rate, the reinstatement directed in the decision appealed from does not bar such appropriate administrative action as the behaviour of petitioners herein may warrant, upon compliance with the requirements of due process."

Page

221

To the same effect is the holding of this Court extending the mantle of the security of tenure provision to employees of governmentowned or controlled corporations entrusted with governmental functions when through Justice Padilla in Tabora v. Montelibano, 46 it stressed: "That safeguard, guarantee, or feeling of security that they would hold their office or employment during good behavior and would not be dismissed without justifiable cause to be determined in an investigation, where an opportunity to be heard and defend themselves in person or by counsel is afforded them, would bring about such a desirable condition." Reference was there made to promoting honesty and efficiency through an assurance of stability in their employment relation. It was to be expected then that through Justice Labrador in Unabia v. City Mayor, 47 this Court could categorically affirm: "As the removal of petitioner was made without investigation and without cause, said removal is null and void. . . ." It was but logical therefore to expect an explicit holding of the applicability of due process guaranty to be forthcoming. It did in Cammayo v. Via, 48 where the opinion of Justice Endencia for the Court contained the following unmistakable language: "Evidently, having these facts in view, it cannot be pretended that the constitutional provision of due process of law for the removal of the petitioner has not been complied with." Then came this restatement of the principle from the pen of Justice J.B.L. Reyes "We are thus compelled to conclude that the positions formerly held by appellees were not primarily confidential in nature so as to make their terms of office co-terminal with the confidence reposed in them. The inevitable corollary is that respondents-appellees, Leon Piero, et al., were not subject to dismissal or removal, except for cause specified by law and within due process. . . ." 49 In a still later decision, Abaya v. Subido, 50 this Court, through Justice Sanchez, emphasized "that the vitality of the constitutional principle of due process cannot be allowed to weaken by sanctioning cancellation" of an employee's eligibility or "of his dismissal from service without hearing upon a doubtful assumption that he has admitted his guilt for an offense against Civil Service rules." Equally emphatic is this observation from the same case: "A civil service employee should be heard before he is condemned. Jurisprudence has clung to this rule with such unrelenting grasp that by now it would appear trite to make citations thereof." If as is so clearly and unequivocally held by this Court, due process may be relied upon by public official to protect the security of tenure which in that limited sense is analogous to property, could he not likewise avail himself of such constitutional guarantee to strike down what he considers to be an infringement of his liberty? Both on principle, reason and authority, the answer must be in the affirmative. Even a public official has certain rights to freedom the government must respect. To the extent then, that there is a curtailment thereof, it could only be permissible if the due process mandate is not disregarded. Since under the constitutional scheme, liberty is the rule and restraint the exception, the question raised cannot just be brushed aside. In a leading Philippine case, Rubi v. Provincial Board, 51 liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare." In accordance with this case therefore, the rights of the citizens to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any avocation, are all deemed embraced in the concept of liberty. This Court in the same case, however, gave the warning that liberty as understood in democracies, is not license. Implied in the term is restraint by law for the good of the individual and for the greater good, the peace and order of society and the general well-being. No one can do exactly as he pleases. Every man must renounce unbridled license. In the words of Mabini as quoted by Justice Malcolm, "liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual." The liberty to be safeguarded is, as pointed out by Chief Justice Hughes, liberty in a social organization, 52implying the absence of arbitrary restraint not immunity from reasonable regulations and prohibitions imposed in the interest of the community. 53 It was Linton's view that "to belong to a society is to sacrifice some measure of individual liberty, no matter how slight the restraints which the society consciously imposes." 54 The above statement from Linton however, should be understood in the sense that liberty, in the interest of public health, public order or safety, of general welfare, in other words through the proper exercise of the police power, may be regulated. The individual thought, as Justice Cardozo pointed out, has still left a "domain of free activity that cannot be touched by government or law at all, whether the command is specially against him or generally against him and others." 55 Is this provision for a periodical submission of sworn statement of assets and liabilities after he had filed one upon assumption of office beyond the power of government to impose? Admittedly without the challenged provision, a public officer would be free from such a requirement. To the extent then that there is a compulsion to act in a certain way, his liberty is affected. It cannot be denied however that under the Constitution, such a restriction is allowable as long as due process is observed. The more crucial question therefore is whether there is an observance of due process. That leads us to an inquiry into its significance. "There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the standard of due process which must exist both as a procedural and as substantive requisite to free the challenged ordinance, or any action for that

Page

222

matter, from the imputation of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts fealty 'to those strivings for justice' and judges the act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought.' It is not a narrow or 'technical conception with fixed content unrelated to time, place and circumstances,' decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of our society.' Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases." 56 It would be to dwell in the realm of abstractions and to ignore the harsh and compelling realities of public service with its ever-present temptation to heed the call of greed and avarice to condemn as arbitrary and oppressive a requirement as that imposed on public officials and employees to file such sworn statement of assets and liabilities every two years after having done so upon assuming office. The due process clause is not susceptible to such a reproach. There was therefore no unconstitutional exercise of police power. 4. The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of assets and liabilities is violative of the constitutional right to privacy. There is much to be said for this view of Justice Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom." 57 As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights and the right most valued by civilized men." 58 The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual whose claim to privacy and interference demands respect. As Laski so very aptly stated: "Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders his personality. If his will is set by the will of others, he ceases to be master of himself. I cannot believe that a man no longer master of himself is in any real sense free." 59 Nonetheless, in view of the fact that there is an express recognition of privacy, specifically that of communication and correspondence which "shall be inviolable except upon lawful order of Court or when public safety and order" 60 may otherwise require, and implicitly in the search and seizure clause, 61 and the liberty of abode 62 the alleged repugnancy of such statutory requirement of further periodical submission of a sworn statement of assets and liabilities deserves to be further looked into. In that respect the question is one of first impression, no previous decision having been rendered by this Court. It is not so in the United States where, in the leading case of Griswold v. Connecticut, 63 Justice Douglas, speaking for five members of the Court, stated: "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its SelfIncrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." After referring to various American Supreme Court decisions, 64 Justice Douglas continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate one." The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." 65 It has wider implications though. The constitutional right to privacy has come into its own.1wph1.t So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow

Page

223

the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." 66 Even with due recognition of such a view, it cannot be said that the challenged statutory provision calls for disclosure of information which infringes on the right of a person to privacy. It cannot be denied that the rational relationship such a requirement possesses with the objective of a valid statute goes very far in precluding assent to an objection of such character. This is not to say that a public officer, by virtue of a position he holds, is bereft of constitutional protection; it is only to emphasize that in subjecting him to such a further compulsory revelation of his assets and liabilities, including the statement of the amounts and sources of income, the amounts of personal and family expenses, and the amount of income taxes paid for the next preceding calendar year, there is no unconstitutional intrusion into what otherwise would be a private sphere. 5. Could it be said, however, as plaintiff contends, that insofar as the challenged provision requires the periodical filing of a sworn statement of financial condition, it would be violative of the guarantees against unreasonable search and seizure and against selfincrimination? His complaint cited on this point Davis v. United States. 67 In that case, petitioner Davis was convicted under an information charging him with unlawfully having in his possession a number of gasoline ration coupons representing so many gallons of gasoline, an offense penalized under a 1940 statute. 68 He was convicted both in the lower court and in the Circuit Court of Appeals over the objection that there was an unlawful search which resulted in the seizure of the coupons and that their use at the trial was in violation of Supreme Court decisions. 69In the District Court, there was a finding that he consented to the search and seizure. The Circuit Court of Appeals did not disturb that finding although expressed doubt concerning it, affirming however under the view that such seized coupons were properly introduced in evidence, the search and seizure being incidental to an arrest, and therefore reasonable regardless of petitioner's consent. In affirming the conviction the United States Supreme Court, through Justice Douglas emphasized that the Court was dealing in this case "not with private papers or documents, but with gasoline ration coupons which never became the private property of the holder but remained at all times the property of the government and subject to inspection and recall by it." 70 He made it clear that the opinion was not to be understood as suggesting "that officers seeking to reclaim government property may proceed lawlessly and subject to no restraints. Nor [does it] suggest that the right to inspect under the regulations subjects a dealer to a general search of his papers for the purpose of learning whether he has any coupons subject to inspection and seizure. The nature of the coupons is important here merely as indicating that the officers did not exceed the permissible limits of persuasion in obtaining them." 71 True, there was a strong dissenting opinion by Justice Frankfurter in which Justice Murphy joined, critical of what it considered "a process of devitalizing interpretation" which in this particular case gave approval "to what was done by arresting officers" and expressing the regret that the Court might be "in danger of forgetting what the Bill of Rights reflects experience with police excesses." Even this opinion, however, concerned that the constitutional guarantee against unreasonable search and seizure "does not give freedom from testimonial compulsion. Subject to familiar qualifications every man is under obligation to give testimony. But that obligation can be exacted only under judicial sanctions which are deemed precious to Anglo-American civilization. Merely because there may be the duty to make documents available for litigation does not mean that police officers may forcibly or fraudulently obtain them. This protection of the right to be let alone except under responsible judicial compulsion is precisely what the Fourth Amendment meant to express and to safeguard." 72 It would appear then that a reliance on that case for an allegation that this statutory provision offends against the unreasonable search and seizure clause would be futile and unavailing. This is the more so in the light of the latest decision of this Court in Stonehill v. Diokno, 73 where this Court, through Chief Justice Concepcion, after stressing that the constitutional requirements must be strictly complied with, and that it would be "a legal heresy of the highest order" to convict anybody of a violation of certain statutes without reference to any of its determinate provisions delimited its scope as "one of the most fundamental rights guaranteed in our Constitution," safeguarding "the sanctity, of the domicile and the privacy of communication and correspondence. . . ." Such is precisely the evil sought to be remedied by the constitutional provision above quoted to outlaw the so-called general warrants. It thus appears clear that no violation of the guarantee against unreasonable search and seizure has been shown to exist by such requirement of further periodical submission of one's financial condition as set forth in the Anti-Graft Act of 1960. Nor does the contention of plaintiff gain greater plausibility, much less elicit acceptance, by his invocation of the non-incrimination clause. According to the Constitution: "No person shall be compelled to be a witness against himself." 74 This constitutional provision gives the accused immunity from any attempt by the prosecution to make easier its task by coercing or intimidating him to furnish the evidence necessary to convict. He may confess, but only if he voluntarily wills it. He may admit certain facts but only if he freely chooses to.75 Or he could remain silent, and the prosecution is powerless to compel him to talk. 76 Proof is not solely testimonial in

Page

224

character. It may be documentary. Neither then could the accused be ordered to write, when what comes from his pen may constitute evidence of guilt or innocence. 77 Moreover, there can be no search or seizure of his house, papers or effects for the purpose of locating incriminatory matter. 78 In a declaratory action proceeding then, the objection based on the guaranty against self-incrimination is far from decisive. It is well to note what Justice Tuason stated: "What the above inhibition seeks to [prevent] is compulsory disclosure of incriminating facts." 79 Necessarily then, the protection it affords will have to await, in the language of Justice J. B. L. Reyes, the existence of actual cases, "be they criminal, civil or administrative." 80 Prior to such a stage, there is no pressing need to pass upon the validity of the fear sincerely voiced that there is an infringement of the non-incrimination clause. What was said in an American State decision is of relevance. In that case, a statutory provision requiring any person operating a motor vehicle, who knows that injury has been caused a person or property, to stop and give his name, residence, and his license number to the injured party or to a police officer was sustained against the contention that the information thus exacted may be used as evidence to establish his connection with the injury and therefore compels him to incriminate himself. As was stated in the opinion: "If the law which exacts this information is invalid, because such information, although in itself no evidence of guilt, might possibly lead to a charge of crime against the informant, then all police regulations which involve identification may be questioned on the same ground. We are not aware of any constitutional provision designed to protect a man's conduct from judicial inquiry or aid him in fleeing from justice. But, even if a constitutional right be involved, it is not necessary to invalidate the statute to secure its protection. If, in this particular case, the constitutional privilege justified the refusal to give the information exacted by the statute, that question can be raised in the defense to the pending prosecution. Whether it would avail, we are not called upon to decide in this proceeding." 81 6. Nor could such a provision be nullified on the allegation that it constitutes "an insult to the personal integrity and official dignity" of public officials. On its face, it cannot thus be stigmatized. As to its being unnecessary, it is well to remember that this Court, in the language of Justice Laurel, "does not pass upon questions of wisdom, justice or expediency of legislation." 82 As expressed by Justice Tuason: "It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern." 83 There can be no possible objection then to the observation of Justice Montemayor: "As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary." 84 For they, according to Justice Labrador, "are not supposed to override legitimate policy and . . . never inquire into the wisdom of the law." 85 It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, 86 that only congressional power or competence, not the wisdom of the action taken may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on its wisdom cannot be sustained. WHEREFORE, the decision of the lower court of July 19, 1962 "declaring unconstitutional, null and void Section 7, Republic Act No. 3019, insofar as it requires periodical submittal of sworn statements of financial conditions, assets and liabilities of an official or employee of the government after he had once submitted such a sworn statement . . . is reversed." Without costs.

Page

225

SECTION 17 (1) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RADEL GALLARDE, accused-appellant. [G.R. No. 133025. February 17, 2000] DAVIDE, JR., C.J.: This is an appeal from the judgment of the Regional Trial Court of Tayug, Pangasinan, Branch 51, finding accused-appellant Radel Gallarde[1](hereafter GALLARDE) guilty beyond reasonable doubt of the crime of murder in Criminal Case No. T-1978 and sentencing him to suffer thepenalty of reclusion perpetua and to pay the heirs of Editha Talan (hereafter EDITHA) the amount of P70,000 as actual damages.[2] On 24 June 1997, GALLARDE was charged with the special complex crime of rape with homicide in an information whose accusatory portion reads as follows: That on or about the 6th day of May 1997, in the evening, amidst the field located at Brgy. Trenchera, [M]unicipality of Tayug, [P]rovince of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with one EDITHA TALAN, a minor-10 years of age, against her will and consent, and thereafter, with intent to kill, cover the nose and mouth of the said minor resulting to her death and then bury her in the field, to the damage and prejudice of the heirs of said EDITHA TALAN. [3] During the arraignment on 1 September 1997, GALLARDE, with the assistance of counsel, entered a plea of not guilty. [4] Trial of the case immediately ensued as the defense waived the holding of the pre-trial conference. The witnesses presented by the prosecution were Mario Fernandez, Jaime Cabinta, Rosy Clemente, Felicisimo Mendoza, Alfredo Cortez, Renato Fernandez, SPO4 Oscar B. Lopez, and Dr. Perfecto Tebangin. The relevant and material facts established by their testimonies are faithfully summarized in the Appellees Brief as follows: Korte In the evening of May 26, 1997, at the house of spouses Eduardo and Elena Talan in Brgy. Trenchea, Tayug, Pangasinan, their neighbors converged. Among them were appellant Radel Gallarde, Francisco, Renato, Edwin, all surnamed Fernandez, Romel Hernandez, Jaime Cabinta, Rosy Clemente, Jon Talen, Noel Arellaga and Ramil Bargon. Idling by was Editha, 10 year old daughter of spouses Talan. A fluorescent lamp illuminated them as they partook beer (TSN dated October 13, 1997, pp. 3-4). After a while, Roger stood up and invited Jaime and appellant to dine in the kitchen. As they partook of the meal, appellant suddenly left. Jaime, too, stepped out of the kitchen to urinate. Outside the house, he chanced upon appellant and Editha talking to each other. Jaime whistled at appellant but instead of minding him, the latter sprinted towards the road leading to his house (Id., pp. 4-6). Thereafter, Editha entered the kitchen and took hold of a kerosene lamp. Jaime followed her and asked where she was going. Editha answered that she would look for appellant. Soon Editha left enroute to where appellant fled (Id., pp. 7-8). By 10:00 oclock that evening, the drinking buddies had dispersed but Jaime, Francisco, Edwin and Rose regrouped at Renatos place where they talked and relaxed. Moments later, Roger arrived and informed them that Editha was missing. Roger asked the group to help look for her ( Id., p. 10). Elena Talan informed his uncle, Barangay Ex-kagawad Mario Fernandez, about her daughters disappearance. The latter, together with his son Edwin, wife Virginia and nephew Freddie Cortez wasted no time in joining their neighbors search the houses, dikes and fields to look for the missing child. The searchers used a lighted rubber tire (TSN dated Sept. 24, 1997, pp. 8-10 and 24). When Jaime mentioned that appellant was the last person he saw talking to Editha, the searchers went back to the house of appellant. About 7 meters away from appellants house, one of the searchers, Alfredo Cortez, found Edithas left foot slipper (TSN dated October 22, 1997, pp. 4 -6). Suddenly, Edwin Fernandez announced: "Tata, Radel is here!" pointing to the toilet about 6 meters away from appellants house. The searchers found appellant

Page

226

squatting with his short pants. His hands and knees were covered with soil. When confronted by ex-kagawad Hernandez why he was there, appellant answered he was relieving himself ( Id., pp. 11-16). Asked where Editha was, appellant replied: "I do not know, I did not do anything to her." When told "according to Jimmy, you were with Editha," appellant responded "I let her go and brought her back to the dike and let her go home." To the next question, "where did you come from since a while a go you were not yet in this toilet?" appellant answered "I was with Kiko, I was asleep in their house. One of the searchers Mario Bado, got angry and countered that appellants statement was impossible because Kiko was with him drinking ( Id., pp. 16-20). Sclaw After the confrontation at the toilet, Ex-kagawad Fernandez brought appellant to Brgy. Captain Felicisimo Mendoza, informing the latter that appellant was the last person seen talking with the missing child. Fernandez then rejoined the searchers (Id., pp. 21-22). Back in the field, Virginia Fernandez tripped on a wet ground. As she reached for her slipper, she saw Edithas right foot slipper (the other one was earlier found near the house of appellant) ( Id., pp. 23-24). Around 3 meters farther from Edithas right foot slipper; another slipper was found. It was old, 8 to 9 inches in length and appellant was seen wearing it in the morning of that day (TSN dated Sept. 25, 1997, pp. 25). The searchers, thereafter, noticed disheveled grasses. Along the way, they saw a wide hole among the disheveled grass. Ex-kagawad Fernandez accidentally dropped the lighted rubber tire and as his nephew Freddie picked it up, the latter exclaimed: "Uncle, look at this loose soil!" Ex-kagawad Fernandez forthwith scratched some earth aside and then Edithas hand pitted out. The Fernandez screamed in terror ( Id., pp. 5-6). Meantime, Barangay Captain Mendoza heard shouts saying: "She is here, she is now here already dead!" Mindful of appellants safety, Brgy. Captain Mendoza decided to bring appellant to the municipal building. On their way though, they met policemen on board a vehicle. He flagged them down and turned over the person of appellant, saying: "Here is the suspect in the disappearance of the little girl. Since you are already here, I am giving him to you" (TSN dated Oct. 21, 1997, pp. 4-5). The policemen together with appellant proceeded to where the people found Editha. One of the policemen shoved more soil aside. The lifeless Editha was completely naked when she was recovered. ( Id., pp. 9-10). The cause of Edithas death as revealed in the post-mortem examination showed "suffocation of the lungs as a result from powerful covering of the nose and mouth, associated with laceration of the vagina and raptured hymen (Exh. "T", TSN dated Oct. 23, 1997, pp. 22-23)."[5] Sclex On the other hand, GALLARDE was the lone witness for the defense. He interposed a denial and the alibi that he was at home with his mother and brothers at the time the crime occurred. He declared that he is 18 years old, single, a former construction worker. He knew EDITHA, a neighbor whom he considered as a sister because she used to come to his house. They never had a quarrel or misunderstanding. He neither raped not killed Editha. [6] On cross-examination by the prosecutor and to questions propounded by the court, GALLARDE admitted that he saw Editha on the night of 6 May 1997 in her parents house, particularly in the kitchen. He was there because he joined a group drinking Colt 45 beer, as he was called by Rudio Fernandez. He drank and had dinner in the kitchen. After dinner he returned to the drinking place and eventually went home because he was then a little drunk. He knows Kgd. Mario Fernandez, but after he left the Talan residence he did not see Kgd. Fernandez anymore. Kgd. Fernandez saw him inside his (Gallardes) toilet on the night of May 6; thereafter Ferna ndez took him to the barangay captain and later he was turned over to the PNP at Camp Narciso Ramos. The police informed him that he was a suspect in the rape and killing of Editha Talan, and he told them that he did not commit the crime. At the Talan residence he was wearing short pants and rubber slippers. Fernandez asked him at the police headquarters to pull down his shorts and he complied. He was then wearing briefs with a hemline that was a little loose. He was informed that a cadaver was recovered near his house. When he was asked questions while in police custody, he was not represented by any lawyer.

Page

227

GALLARDE further declared on cross-examination and on questions by the court that he considered Editha Talan as a sister and her parents also treated him in a friendly manner. When he came to know that Edithas parents suspected him of the crime, he was still on friendly terms with them. However, he did no go to them to tell them he was innocent because they brandished a bolo in anger.

Finally, he testified that in the evening of May 6 he came to know that Editha died. She was still alive when he was drinking at the back of the Talan house and left for home. From the time he arrived, he never left again that night, and his mother and brothers knew it for a fact.[7] On 12 February 1998, the trial court rendered a decision convicting GALLARDE of the crime of murder only, not of the complex crime of rape with homicide because of the lack of proof of carnal knowledge. It observed: Xlaw Exh. "T" and Dr. Tebangins testimony thereon show that the late Editha Talan sustained slit wounds inflicted as a means of suffocating her to death, a laceration of the lower portion of her vagina, and a ruptured hymen. What allegedly oozed from her vagina was blood, coupled with dirt. Had there been observed the presence of even just a drop of seminal fluid in or around her vagina, the Court would readily conclude that the laceration and rupture resulted from phallic intrusion. Without such observation, however, "carnal knowledge" as element of rape would be an open question. The trial court did not appreciate the alternative circumstance of intoxication either as a mitigating or aggravating circumstance pursuant to Article 15 of the Revised Penal Code because GALLARDEs alleged ine briation on the night of 6 May 1997, was not satisfactorily proven. As to the civil aspect of the case, the trial court considered the stipulation of the parties on 27 October 1997 fixing a liquidated amount ofP70,000 as actual damages, and leaving the matter of moral damages to the discretion of the court. The trial court was not inclined to award moral damages because the "evidence before it tends to disclose that on the night of 6 May 1997, before she died, Editha was a much-neglected child." Accordingly, in its decision[8] of 12 February 1998, the trial court decreed: WHEREFORE, his guilt having been established beyond a reasonable doubt, the Court hereby convicts the accused RADEL GALLARDE Y HERMOSA of the crime of MURDER, and sentences him to suffer the penalty of reclusion perpetua and to indemnify the heirs of the late Editha Talan in the negotiated sum of P70,000.00. [9] His motion for reconsideration,[10] having been denied by the trial court in its Resolution[11] of 28 February 1998, GALLARDE seasonably appealed to us. We accepted the appeal on 9 September 1998. In his Appellants Brief filed on 16 March 1999, GALLARDE alleges that the tr ial court committed the following errors: 1.......In convicting [him] of the crime of murder in an information for rape with homicide. Xsc 2.......In concluding that the prosecution has proven beyond reasonable doubt that [he] was responsible for the death of Editha Talan. 3.......In not acquitting [him] on the ground of notches of proof beyond reasonable doubt. [12] We sustain GALLARDEs contention that the trial co urt erred in convicting him of murder in an information charging him of rape with homicide. A reading of the accusatory portion of the information shows that there was no allegation of any qualifying circumstance. Although it is true that the term "homicide" as used in special complex crime of rape with homicide is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on the occasion of rape, [13] it is settled in this jurisdiction that where a complex crime is charged and the evidence fails to support the charge as to one of the component offense, the accused can be convicted of the other. [14] In rape with homicide, in order to be convicted of murder in case the evidence fails to support the charge of rape, the qualifying circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be informed of the nature of the offense with which he is charged. [15] It is fundamental that every element of the offense must be alleged in the complaint or information. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense.[16] In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE cannot be convicted of murder. An accused cannot be convicted of an offense higher than that with which he is charged in the complaint or information under which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any

Page

228

offense, unless it is charged in the complaint or information for which he is tried, or is necessarily included in that which is charged. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or information under which he is tried would be an unauthorized denial of that right.[17] Scx Nevertheless, we agree with the trial court that the evidence for the prosecution, although circumstantial, was sufficient to establish beyond reasonable doubt the guilt of GALLARDE for the death of EDITHA. Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.[18] The prosecution is not always tasked to present direct evidence to sustain a judgment of conviction; the absence of direct evidence does not necessarily absolve an accused from any criminal liability. [19] Even in the absence of direct evidence, conviction can be had on the basis of circumstantial evidence, provided that the established circumstances constitute an unbroken chain which leads one to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. [20] The rules on evidence and precedents sustain the conviction of an accused through circumstantial evidence, as long as the following requisites are present: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused.[21] The importance of circumstantial evidence is more apparent in the prosecution of cases of rape with homicide. The nature of the crime of rape, where it is usually only the victim and the rapist who are present at the scene of the crime, makes prosecutions for the complex crime of rape with homicide particularly difficult since the victim can no longer testify against the perpetrator of the crime. In these cases pieces of the evidence against the accused are usually circumstantial. [22] The circumstantial evidence in the case at bar, when analyzed and taken together, leads to no other conclusion than that GALLARDE, and no other else, killed EDITHA and that he is guilty therefor. We quote with approval the lower courts enumeration of the circumstantial evidence in this case: Scmis 1. Gallarde, 18, and Editha, 10, were neighbors and friends, even as she used to frequent his place. 2. Both were at the Talan residence on the night of May 6, 1997 while neighbors indulged themselves in beer. 3. Among said neighbors Cabinta saw them hand in hand by the toilet situated five (5) meters east of the Talan kitchen. 4. After Cabinta whistled he saw Gallarde run home towards north after letting go of Edithas hands. Neighbor Clemente also noticed that Gallarde disappeared, and that Editha returned to the kitchen. 5. Cabinta followed Editha back to the kitchen, and saw her holding a kerosene lamp. She told him that she was going to look for "Dalpac," and off she went in the same direction Gallarde took. 6. Gallarde wore short pants and rubber slippers at the drinking place. Subsequently he was seen wearing shorts in his own toilet. 7. At past 10:00 in the evening during an intensive search for the then missing Editha, her lifeless body was found in a shallow grave situated some distance behind Gallardes residence. 8. Before Edithas body was discovered, a searcher found a girls slipper (Exh. "B"), 5 -6 inches long, among thickets seven meters away from Gallardes house. 9. Another searcher saw a second slipper (Exh. "B-1"), of the same color and size as the first one. Both slippers were Edithas, the searchers recalled. 10. A third rubber slipper (Exh. "C") was thereafter found in the field, near Exh. "B-1." It was an old slipper, 8-9 inches long and with a hole at the rear end.

Page

229

11. Soil stuck to each one of the three slippers. Missc 12. Gallarde was not at home when searchers went to look for him there, after Cabinta told them that Editha was last seen with Gallarde. 13. When Gallarde was discovered squatting in the dark toilet behind his house and beside the thickets, his shorts were up and on. His hands and knees were soiled. 14....... At the toilet he was asked the innocent question of where Editha was and he answered revealingly, thus: "I did not do anything to her" and "I let her go and brought her back to the dike and let her go home." 15. When asked where he had been, as the toilet was first seen empty, Gallarde said he was with Kiko and he slept at the latters house, which answer Mario Bado promptly refuted saying, "Vulva of your mother Kiko was with m e drinking." Bado and Kiko were not at the place of the Talans that night. 16. Yanked out of the dark toilet near his own house, Gallarde joined Kgd. Mario Fernandez sans protest. 17. Dr. Tebangin found on Edithas cheeks two slit wounds, each being an inc h away from her nostrils. Both wounds were fresh and reddish. ......From the lower portion of Edithas vagina blood oozed, accompanied by dirt. ......Her hymen was ruptured and was still bleeding. ......The medico-legal concluded that there must have been a forceful covering of Edithas nose and mouth because of the presence of the slit wounds on both sides of her face, and that in 30 seconds unconsciousness and weakening resulted, with the vaginal injuries contributing to her death. [23] Misspped As to the crime of rape, there is much to be desired with respect to the prosecutions evidence therefor, but not for the rea son adduced by the trial court, namely, the absence of spermatozoa in EDITHAs private part and thereabout. It is well settled that the absence of spermatozoa in or around the vagina does not negate the commission of rape. [24] Our doubt on the commission of rape is based on the fact that there is at all no convincing proof that the laceration of the vagina and the rupture of the hymen of EDITHA were caused in the course of coitus or by a male organ. Our meticulous reading of the testimony of Dr. Tebangin disclosed that he was never asked if the laceration and the rupture could have been caused by the penis of a human being. Needless to state, these could have been caused by any object other than the penis of a person. We cannot sustain the contention of GALLARDE that he was not positively identified as the assailant since there was no eyewitness to the actual commission of the crime. It does not follow that although nobody saw GALLARDE in the act of killing EDITHA, nobody can be said to have positively identified him. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identity a suspect or accused in a criminal case as the perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually seen the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it is basic and elementary that there can be no conviction until and unless an accused is positively identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. [25] If resort to circumstantial evidence would not be allowed to prove identity of the accused on the absence of direct evidence, then felons would go free and the community would be denied proper protection. Spped As discussed above, the circumstantial evidence as established by the prosecution in this case and enumerated by the trial court positively established the identity of GALLARDE, and no one else, as the person who killed EDITHA.

Page

230

We cannot agree with the trial courts rejection of the photographs (Exhibits " I," "J" and "K") taken of GALLARDE immediately after the incident on the ground that "the same were taken while [GALLARDE] was already under the mercy of the police." The taking of pictures of an accused even without the assistance of counsel, being a purely mechanical act, is not a violation of his constitutional right against self-incrimination. The constitutional right of an accused against self-incrimination[26] proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required.[27] The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act.[28] Hence, it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy;[29] and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;[30] to expel morphine from his mouth;[31] to have the outline of his foot traced to determine its identity with bloody footprints;[32] and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done.[33] There is also no merit in GALLARDEs argument that the failure of the prosecution to prove beyond reasonable doubt the place and time of the commission of the crime is fatal and will justify his acquittal. Jospped The place, time and date of the commission of the offense are not essential elements of the crime of rape with homicide. The gravamen of the offense is the carnal knowledge of a woman and that on the occasion of or as a reason thereof, the crime of homicide was committed. Conviction may be had on proof of the commission of the crime provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information, within the period of the statute of limitation, and within the jurisdiction of the court.[34] The allegation of the place of commission of the crime in the complaint or information is sufficient if it can be understood therefrom that the offense was committed or some of the essential ingredients thereof occurred at some place within the jurisdiction of the court.[35] The rule merely requires that the information shows that the crime was committed within the territorial jurisdiction of the court. The Court may even take judicial notice that said place is within its jurisdiction. [36] As to the time of the commission of the crime, the phrase "on or about" employed in the information does not require the prosecution "to prove any precise date or time," but may prove any date or time which is not so remote as to surprise and prejudice the defendant."[37] Contrary to the claim of GALLARDE, the prosecution was able to establish the proximate time of the commission of the crime, which was sometime between 9:00 p.m., when GALLARDE left the house of Talan followed by EDITHA, and 10:30 p.m., when the body of EDITHA was found. This was further corroborated by the examining physician who testified, on the basis of the degree of rigor mortis, that EDITHA died more or less, at 10:00 p.m. of 6 May 1997. [38] Likewise, GALLARDEs alibi and bare denial deserve no consideration. He did not present witnesses who could confirm his presence in his house. No member of his family corroborated him on this matter. The defenses of denial and alibi, if unsubstantiated by clear and convincing evidence, are negative and self-serving, deserve no weight in law, and cannot be given evidentiary value over the testimony of credible witnesses who testify on affirmative matters. [39] Sppedjo Moreover, even assuming that GALLARDEs claim is true, his stay in his house did not preclude his physical presence at the locus criminis or its immediate vicinity. The place where the body of EDITHA was found buried was a few meters from his house, the place pointed to in the alibi and can be reached in a short while. For the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. [40] Besides, no evil motive has been established against the witnesses for the prosecution that might prompt them to incriminate the accused or falsely testify against him. It is settled that when there is no showing that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that the witnesses were not so actuated and their testimonies are thus entitled to full faith and credit.[41] Testimonies of witnesses who have no motive or reason to falsify or perjure their testimonies should be given credence.[42] With respect to GALLARDEs claim that he was arrested without warrant, suffice it to say that any objection, defect, or irreg ularity attending an arrest must be made before the accused enters his plea. [43] The records show no objection was ever interposed prior to arraignment and trial.[44]GALLARDEs assertion that he was denied due process by virtue of his alleged illegal arrest is negated by his

Page

231

voluntary submission to the jurisdiction of the trial court, as manifested by the voluntary and counsel-assisted plea he entered during arraignment and by his active participation in the trial thereafter.[45] It is settled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.[46] It is much too late in the day to complain about the warrantless arrest after a valid information had been filed and the accused arraigned and trial commenced and completed and a judgment of conviction rendered against him.[47] Verily, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error; such arrest does not negate the validity of the conviction of the accused.[48] Nexold Homicide, which we find to be the only crime committed by GALLARDE, is defined in Article 249 of the Revised Penal Code and is punished with reclusion temporal. In the absence of any modifying circumstance, it shall be imposed in its medium period. GALLARDE is entitled to the benefits of the Indeterminate Sentence Law. Accordingly, he can be sentenced to suffer an indeterminate penalty ranging from ten (10) years of the medium period of prision mayor as minimum to seventeen (17) years and four (4) months of the medium period of reclusion temporal asmaximum. As to the civil aspect of the case, the parties agreed on P70,000 as liquidated damages. This should be construed as actual damages. However, as indemnity for death, the additional sum of P50,000, per current case law, should be awarded. WHEREFORE, the assailed decision of the Regional Trial Court, Branch 51, Tayug, Pangasinan, in Criminal Case No. T-1978 finding accused-appellant RADEL GALLARDE guilty of the crime of murder is hereby modified. As modified, RADEL GALLARDE is hereby found guilty beyond reasonable doubt, as principal, of the crime of Homicide, defined under Article 249 of the Revised Penal Code, and is hereby sentenced to suffer an indeterminate penalty ranging from ten (10) years of the medium period of of prision mayor as minimum to seventeen (17) years and four (4) months of the medium period of reclusion temporal as maximum, and to pay the heirs of the victim, Editha Talan, the sum of P70,000 as liquidated actual damages and P50,000 as indemnity for the death of Editha Talan. Costs against accused-appellant RADEL GALLARDE in both instances. SO ORDERED.

Page

232

(2) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ENCARNACION MALIMIT alias MANOLO,accused appellant. [G.R. No. 109775. November 14, 1996] FRANCISCO, J.: Appellant Jose Encarnacion Malimit, charged with[1] and convicted of the special complex crime of robbery with homicide,[2] was meted by the trial court[3] the penalty of reclusion perpetua. He was also ordered to indemnify the heirs of Onofre Malaki the sum of Fifty Thousand Pesos (P50,000.00) without subsidiary imprisonment in case of insolvency, and to pay the cost. [4] In this appeal, appellant asks for his acquittal alleging that the trial court committed the following errors, to wit: I THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE PROSECUTION WITNESSES ON THEIR ALLEGED IDENTIFICATION OF THE ACCUSED-APPELLANT AS THE PERPETRATOR OF THE CRIME DESPITE THE FACT (SIC) THEY REVEALED THEIR ALLEGED KNOWLEDGE OF THE CRIME MORE THAN FIVE MONTHS AFTER THE INCIDENT. II THE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE WALLET AND ITS CONTENTS ALTHOUGH THE CIRCUMSTANCES WHICH LEAD TO ITS PRODUCTION WAS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED. III THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. [5] The following is the recital of facts as summarized by the appellee in its Brief, and duly supported by the evidence on record: On April 15, 1991, around 8:00 oclock in the evening, [Onofre] Malaki was attending to his store . Malakis houseboy Edilberto Batin, on the other hand, was busy cooking chicken for supper at the kitchen located at the back of the store (TSN, June 19, 199 (sic), p. 14). Soon thereafter, Florencio Rondon, a farmer, arrived at the store of Malaki. Rond on was to purchase chemical for his rice farm (TSN, May 22, 1992, p. 19). Rondon came from his house, approximately one hundred and fifty (150) meters distant from Malakis stor e (Ibid., p. 24). Meanwhile, Batin had just finished cooking and from the kitc hen, he proceeded directly to the store to ask his employer (Malaki) if supper is to be prepared. As Batin stepped inside the store, he was taken aback when he saw appellant coming out of the store with a bolo (TSN, June 9, 1992, p. 14), while his boss, ba thed in his own blood, was sprawled on the floor struggling for his life (hovering between life and death) (Ibid.). Rondon, who was outside and barely five (5) meters away from the store, also saw appellant Jose Malimit (or Manolo) rushin g out through the front door of Malakis store with a blood -stained bolo (TSN, May 22, 1992, p. 29). Aided by the illumination coming from a pressure lamp (petromax) inside the store, Rondon clearly recognized Malimit (Ibid., p. 22). Batin immediately went out of the store to seek help. Outside the store, he met Rondon (TSN, June 9, 1992, p. 15). After a brief conversation, both Batin and Rondon rushed to the nearby house of Malakis brother -in-law Eutiquio Beloy and informed Beloy of the tragic incident which befell Malaki. Batin, along with Beloy, went back to the store. Inside, they saw the lifeless body of Malaki in a pool of blood lying prostrate at the floor. Beloy readily noticed that the stores drawer was opened and ransacked and the wa llet of Malaki was missing from his pocket (Ibid., pp. 16-17).[6] In his first assignment of error, appellant questions the credibility of prosecution witnesses Florencio Rondon and Edilberto Batin by pointing out their alleged delay in revealing what they knew about the incident. He posits that while the crime took place on April 15, 1991, it was only onSeptember 17, 1991 when these witnesses tagged him as the culprit.

Page

233

We find these contentions bereft of merit. Appellant haphazardly concluded that Rondon and Batin implicated the appellant to this gruesome crime only on September 17, 1991. The aforementioned date however, was merely the date [7]when Rondon and Batin executed their respective affidavits,[8] narrating that they saw the appellant on the night of April 15, 1991 carrying a bolo stained with blood and rushing out of Malakis store. As to appellants claim of delay, suffice it to state that extant from the records a re ample testimonial evidence negating appellants protestation, to wit: (1) after h aving discovered the commission of the crime, Rondon and Batin immediately looked for Eutiquio Beloy, Malakis brother -in-law, and informed him that appellant was the only person they saw running away from the crime scene;[9] (2) Beloy and Batin reported the crime with the CAFGU detachment in their barangay where Batin declared that it was appellant who robbed Malaki on that fateful night; [10]and (3) Batin again made a similar statement later at the Silago Police Station.[11] Next, appellant derided the non-presentation by the prosecution of the police blotter which could prove if appellant was indeed implicated right away by Batin to the crime. [12] We do not believe, however, that it was necessary for the prosecution to present as evidence a copy of the aforementioned police blotter. Neither was its non-presentation in court fatal to the prosecutions case. Entries in the police blotter are merely corroborative evidence of the uncontroverted testimony of Batin that he identified the appellant as the perpetrator of the crime before the Silago police. As such, its presentation as evidence is not indispensable. [13] Besides, if appellant believed that he was not identified therein, then he should have secured a copy thereof from the Silago Police Station and utilized the same as controverting evidence to impeach Batins credibility as witness.[14] Having failed to do so, appellant cannot now pass the blame on the prosecution for something which appellant himself should have done. Even assuming arguendo that Rondon and Batin identified the appellant only on September 15, 1991, or after the lapse of five months from commission of the crime, this fact alone does not render their testimony less credible. The non-disclosure by the witness to the police officers of appellants identity immediately after the occurrence of the crime is not entirely against human experience.[15] In fact the natural reticence of most people to get involved in criminal prosecutions against immediate neighbors, as in this case,[16] is of judicial notice.[17] At any rate, the consistent teaching of our jurisprudence is that the findings of the trial court with regard to the credibility of witnesses are given weight and the highest degree of respect by the appellate court. [18] This is the established rule of evidence, as the matter of assigning values to the testimony of witnesses is a function best performed by the trial court which can weigh said testimony in the light of the witness demeanor, conduct and attitude at the trial. [19] And although the rule admits of certain exceptions, namely: (1) when patent inconsistencies in the statements of witnesses are ignored by the trial court, or (2) when the conclusions arrived at are clearly unsupported by the evidence,[20] we found none in this case. In his second assignment of error, appellant asseverates that the admission as evidence of Malakis wallet [21] together with its contents, viz., (1) Malakis residence certificate;[22] (2) his identification card;[23] and (3) bunch of keys,[24] violates his right against self-incrimination.[25]Likewise, appellant sought for their exclusion because during the custodial investigation, wherein he pointed to the investigating policemen the place where he hid Malakis wallet, he was not informed of his constitutional rights. We are not persuaded. The right against self-incrimination guaranteed under our fundamental law finds no application in this case. This right, as put by Mr. Justice Holmes in Holt vs. United States,[26] x x x is a prohibition of the use of physical or moral compulsion, to extort communications from him x x x. It is simply a prohibition against legal process to extract from the [accused]s own lips, against his will, admission of his guilt.[27] It does not apply to the instant case where the evidence sought to be excluded is not an incriminating statement but an object evidence. Wigmore, discussing the question now before us in his treatise on evidence, thus, said: If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also for his physical control in whatever form exercise, then, it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles a clearreduction ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, *** but testimonial compulsion.[28] Neither are we prepared to order the exclusion of the questioned pieces of evidence pursuant to the provision of the Constitution under Article III, Section 12, viz: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

Page

(3) Any confession or admission obtained in violation of this or Sec. 17 hereof, shall be inadmissible in evidence against him.(Underscoring ours.)

234

xxx

xxx

x x x.

xxx

xxx

x x x

These are the so-called Miranda rights so oftenly disregarded by our men in uniform. However, infractions thereof render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules,[29] is not affected even if obtained or taken in the course of custodial investigation. Concededly, appellant was not informed of his right to remain silent and to have his own counsel by the investigating policemen during the custodial investigation. Neither did he execute a written waiver of these rights in accordance with the constitutional prescriptions. Nevertheless, these constitutional short-cuts do not affect the admissibility of Malakis wallet, identification card, residence certificate and keys for the purpose of establishing other facts relevant to the crime. Thus, the wallet is admissible to establish the fact that it was the very wallet taken from Malaki on the night of the robbery. The identification card, residence certificate and keys found inside the wallet, on the other hand, are admissible to prove that the wallet really belongs to Malaki. Furthermore, even assuming arguendo that these pieces of evidence are inadmissible, the same will not detract from appellants culpability considering the existence of other evidence and circumstances establishing appellants identity and g uilt as perpetrator of the crime charged. We, now come to appellants third assignment of error where he demurs on the prosecutions evidence, contending that they are insufficient to sustain his conviction. Our close scrutiny of the record reveals otherwise. Time and again, we ruled that there can be a verdict of conviction based on circumstantial evidence when the circumstances proved form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused, to the exclusion of all the others, as the perpetrator of the crime.[30] In order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz., (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[31] In this case, there were at least five (5) circumstances constituting an unbroken chain of events which by their concordant combination and cumulative effect, satisfy the requirements for the conviction of the appellant,[32] specifically: (1) appellant was seen by Rondon and Batin, whose credibilities were untarnished, holding a bolo in his right hand and rushing out of Malakis store seconds prior to their discovery of the crime;[33] (2) Malaki sustained multiple stab wounds[34] and he died of cardiac arrest, secondary to severe external hemorrhage due to multiple stab wounds; [35](3) witness Elmer Ladica saw the appellant on August 6, 1991, accompanied by some policemen, retrieve Malakis wallet underneath a stone at the seashore in Barangay Hingatungan;[36] (4) appellant himself admitted in his testimony that on August 6, 1991, he accompanied several policemen to the seashore where he hid Malakis wallet;[37] and (5) appellants flight and his subsequent disappearance from Hingatungan immediately after the incident.[38] On the other hand, appellants version of the story does not inspire belief. He maintains that on that fateful night he was in his house together with his wife. He claims that they had just arrived from a gambling spree allegedly in the house of a certain Maui Petalcorin. Surprisingly, however, the defense did not b other to call appellants wife to the witness stand to corroborate appellants alibi. Neither did it present as witness Maui Petalcorin, or any other person who may have seen the appellant in the said place, if only to provide a semblance of truth to this assertion. As the defense of alibi is weak in view of the positive identification of the appellant by the prosecution witnesses,[39] it becomes weaker because of the unexplained failure of the defense to present any corroboration.[40] Furthermore, proof that appellant was in his house when the crime was committed is not enough. Appellant must likewise demonstrate that he could not have been physically present at the place of the crime or in its vicinity, at the time of its commission.[41] In this case, appellant himself admitted that his house was just about eighty (80) meters away from the house of Malaki.[42] It was, therefore, not impossible for him to have been physically present at the place of the commission of the crime, as in fact, no evidence to negate this possibility was ever adduced by him at the trial. Appellants insistence that he merely found Malakis wallet by chance while gathe ring shells along the seashore, and that he feared being implicated in the crime for which reason he hid the wallet underneath a stone, hardly inspires belief. We are at a loss, just as the trial court was, as to why appellant should fear being implicated in the crime if indeed he merely found Malakis wallet by chance. No inference can be drawn from appellants purported apprehension other than the logical conclusion that appellant ha d knowledge of the crime. Besides, proof that appellant is in possession of a stolen property gives rise to a valid presumption that he stole the same.[43] In fine, as the killing of Malaki took place on the occasion of robbery, appellant was correctly convicted by the trial court of the special complex crime of robbery with homicide, defined and penalized under Article 294, paragraph 1 of the Revised Penal Code. WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED in toto. SO ORDERED.

Page

235

(3) FERMIN A. BAGADIONG, petitioner, vs. HON. FELICIANO S. GONZALES, Judge of the Court of First Instance of Catanduanes, CLEMENTE ABUNDO, RAFAEL VILLANLUNA and FRANCISCO A. PERFECTO, respondents. [G.R. No. L-25966 December 28, 1979] DE CASTRO, J.: This is a special civil action for certiorari instituted on April 27, 1966 by the petitioner to annul the order 1 dated April 18, 1966 of respondent Judge of the Court of First Instance of Catanduanes in Civil Case No. 546, entitled " Clemente Abundo and Rafael Villaluna, plaintiffs, versus Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong and Armando Ala, defendants, Francisco A. Perfecto, intervenor." Alleged as ground for the petition is that the order was issued with grave abuse of discretion, amounting to lack of jurisdiction. The facts are as follows: On January 12, 1966, the herein plaintiffs-respondents filed a aforementioned Civil Case No. 546 for prohibition with preliminary prohibitory and mandatory injunction with the Court of First Instance of Catanduanes against defendants Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong (the herein petitioner) and Armando Ala who are the Governor, Vice Governor, Provincial Treasurer and Provincial Auditor of the Province of Catanduanes, respectively. In the said petition, it is alleged that defendants, including the herein petitioner, are authorizing, approving and effecting the disbursements of public funds of the province for purposes stated in the alleged annual Provincial Budget of the Province for the Fiscal Year 1965-1966 purporting on its face to have been approved by the Provincial Board on August 23, 1965 under Resolution No. 62-A; that the aforesaid budget is falsified document because the Provincial Board never approved the same, the alleged Provincial Board Resolution No. 62-A which is claimed to have approved the said Budget does not exist; that upon discovery of the anomaly, plaintiffs Clemente Abundo and Rafael Villaluna made representations with the Secretary of Finance on November 17, 1965, to have the alleged Board Resolution No. 62-A approving the budget, considered null and void because the said plaintiffs never took part in the deliberation approving the said Resolution; that for the defendants to continue making disbursements of public funds under the falsified budget, the people and the government of the Province of Catanduanes will suffer irreparable damage and injury from which there is no other plain, speedy and adequate remedy in the ordinary course of law except the instant petition. Plaintiffs pray that pending resolution of the petition on the merits, a preliminary injunction be issued restraining the defendants from authorizing, approving and effecting the disbursements of public funds on the basis of the said budget. 2 On January 14, 1966, a writ of preliminary injunction was issued by the respondent Judge against the defendants commanding them to desist from authorizing and making any further disbursements of funds from the budget in question. On January 17, 1966, the defendants filed a motion for reconsideration and to dissolve the writ of preliminary injunction. 3 A complaint in intervention 4 was filed on January 21, 1966 by herein respondent Francisco A. Perfecto praying, among others, that the annual budget of the Province of Catanduanes for the fiscal year 1965-1966 be declared null and void ab initio, the same being falsification that all original parties to the case be ordered to refund the province all moneys purportedly appropriated under the falsified budget and disbursed and collected by them, respectively; and that all the said original parties be condemned, jointly and severally, to pay the Province of Catanduanes an amount equal to all disbursements under the falsified budget, by way of exemplary damages. On January 31, 1966, the respondent judge denied the motion to vacate and lift the writ of preliminary injunction in an order 5 dated January 31, 1966. When the Civil Case No. 546 was called for trial on April 18, 1966, counsel for plaintiffs called one of the defendants, the herein petitioner, Fermin A. Bagadiong, to the witness stand as one of the witnesses for the plaintiffs. Counsel for the defendants raised the objection that the said party cannot be called as a witness for the plaintiffs because it would violate his constitutional right against selfincrimination. On the other hand, counsel for the plaintiffs contended that this being purely a civil action, the right against selfincrimination is not involved, and if any testimony elicited from the herein petitioner would tend to incriminate himself, there would be ample time for the herein petitioner to raise the proper objection. The respondent Judge in his order 6 held that the position taken by the counsel for the plaintiffs is legally correct, thereby, ruling that the petitioner may testify as a witness for the plaintiffs. After a verbal motion to reconsider the aforesaid order was denied by the respondent Judge, the herein petitioner filed with this Court the instant petition, claiming as earlier stated, that the respondent Judge acted in excess of his jurisdiction and/or with grave abuse of discretion in allowing the herein petitioner to testify for the respondents in Civil Case No. 546, and that there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.

Page

236

After the respondents have filed their answer to the instant petition, as required by this Court, both parties submitted their respective memoranda in lieu of oral argument, after which the case was considered submitted for decision. The principal issue raised in the instant case is whether or not respondent Judge acted in excess of his jurisdiction and with grave abuse of discretion in allowing the herein petitioner to testify as a witness for the herein respondents, despite his claim of violating his right against self-incrimination. The petitioner contends that the provision of the Rules of Court which authorizes a party to call the adverse party to the witness stand applies only to purely civil actions where the defendant does not run the risk of being prosecuted for any offense. Likewise, the petitioner assets that the right against self-incrimination can only be claimed when the incriminatory question is being propounded and not before, by a mere witness, but not by a party defendant, as in the case at bar. We find no merit to these contentions. There is no legal impediment for a party to call any of the adverse parties to be his witness, as clearly provided in Section 6, Rule 132 of the Rules of Court which expressly provides:
A party may interrogate any unwilling or hostile witness by leading questions. A party may call on adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be crossexamined by the adverse party only upon the subject-matter of his examination in chief.

It is in a criminal case, when the accused may not be compelled to testify, or to so much as utter a word, even for his own defense. 7 But while the constitutional guaranty against self-incrimination protects a person in all types of cases, be they criminal, civil or administrative, 8 said privilege, in proceedings other than a criminal case against him who invokes it, is considered an option to refuse to answer incriminating question, and not a prohibition of inquiry. As aptly stated by this Court in the case of Gonzales vs. Secretary of Labor, et al: 9
Except in criminal cases, there in no rule prohibiting a party litigant form utilizing his adversary as a witness. As a matter of fact, Section 83 of Rule 123, Rules of Court, expressly authorizes a party to call an adverse party to the witness stand and interrogate him. This rule is, of course, subject to the constitutional injunction not to compel any person to testify against himself. But it is established that the privilege against self-incrimination must be invoked at the proper time, and the proper time to invoke it is when a question calling for a criminating answer is propounded . This has to be so, because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify "cannot decline to appear, nor can he decline to be sworn as a witness" and "no claim of privilege can be made until a question calling for a criminating answer is asked; at that time, and generally speaking, at that time only, the claim of privilege may properly be imposed." (Emphasis supplied).

In the instant case, petitioner invoked the privilege even prior to any question being propounded, and simply declined to take the witness stand. In the above-cited Gonzales case, it will be noted that the privilege against self-incrimination must be invoked when a question calling for an incriminating answer is propounded, because before a question is asked, there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. Moreover, the herein petitioner was being directed to take the stand, not in a criminal case where he is an accused but in civil action. This is expressly permitted by Section 6, Rule 132 of the Rules of Court which authorizes a party to call any adverse party as his witness. In the later case of Suarez v. Tengco, 2 SCRA 71, 73-74, the following was stated:
Here, petitioner invoked the privilege even prior to any question, and simply declined to take the witness stand. Note that in the Gonzales case, above-cited, the adverse party was directed to take the witness stand in proceedings to investigate an alleged failure to pay overtime compensation, which, under corresponding special laws, carries a penal sanction. Here, petitioner was being directed to take the stand, not in a criminal case where he is an accused, but in an independent civil action which, although arising from the same facts involved in a criminal case pending before the same court, is still be regarded by law as an "entirely separate and distinct" action, governed by a corresponding different set of rules (Civil Code of the Phil., Art. 2177).

Page

WHEREFORE, the instant petition to prohibit the respondent judge from directing petitioner to take the witness stand and testify is denied, without prejudice to petitioner's properly invoking the guaranty against self-incrimination when questions are propounded to him on the stand. Costs against the petitioner. SO ORDERED.

237

The almost exact similarity of the instant case and the case just cited leaves no room for doubt, and there is complete justification therefore that the same ruling must be applied here.

(4) SECTION 16 CASE NO. 9 (5) SECTION 12 CASE NO. 10

(6) ARSENIO PASCUAL, JR., petitioner-appellee, vs. BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants. [G.R. No. L-25018 May 26, 1969] FERNANDO, J.: The broad, all-embracing sweep of the self-incrimination clause,1 whenever appropriately invoked, has been accorded due recognition by this Court ever since the adoption of the Constitution. 2 Bermudez v. Castillo,3decided in 1937, was quite categorical. As we there stated: "This Court is of the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it." As phrased by Justice Laurel in his concurring opinion: "The provision, as doubtless it was designed, would be construed with the utmost liberality in favor of the right of the individual intended to be served." 4 Even more relevant, considering the precise point at issue, is the recent case of Cabal v. Kapunan,5where it was held that a respondent in an administrative proceeding under the Anti-Graft Law 6 cannot be required to take the witness stand at the instance of the complainant. So it must be in this case, where petitioner was sustained by the lower court in his plea that he could not be compelled to be the first witness of the complainants, he being the party proceeded against in an administrative charge for malpractice. That was a correct decision; we affirm it on appeal. Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of an administrative case7 for alleged immorality, counsel for complainants announced that he would present as his first witness herein petitioner-appellee, who was the respondent in such malpractice charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness, unless in the meantime he could secure a restraining order from a competent authority. Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the Board of Examiners was guilty, at the very least, of grave abuse of discretion for failure to respect the constitutional right against self-incrimination, the administrative proceeding against him, which could result in forfeiture or loss of a privilege, being quasi-criminal in character. With his assertion that he was entitled to the relief demanded consisting of perpetually restraining the respondent Board from compelling him to testify as witness for his adversary and his readiness or his willingness to put a bond, he prayed for a writ of preliminary injunction and after a hearing or trial, for a writ of prohibition. On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the respondent Board commanding it to refrain from hearing or further proceeding with such an administrative case, to await the judicial disposition of the matter upon petitioner-appellee posting a bond in the amount of P500.00. The answer of respondent Board, while admitting the facts stressed that it could call petitioner-appellee to the witness stand and interrogate him, the right against self-incrimination being available only when a question calling for an incriminating answer is asked of a witness. It further elaborated the matter in the affirmative defenses interposed, stating that petitioner-appellee's remedy is to object once he is in the witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary course of law," precluding the issuance of the relief sought. Respondent Board, therefore, denied that it acted with grave abuse of discretion. There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the complainants in the administrative case for malpractice against petitioner-appellee, asking that they be allowed to file an answer as intervenors. Such a motion was granted and an answer in intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board, which for them is limited to compelling the witness to take the stand, to be distinguished, in their opinion, from the power to compel a witness to incriminate himself. They likewise alleged that the right against self-incrimination cannot be availed of in an administrative hearing. A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act and testify as a witness for the complainant in said investigation

Page

238

without his consent and against himself." Hence this appeal both by respondent Board and intervenors, the Gatbontons. As noted at the outset, we find for the petitioner-appellee. 1. We affirm the lower court decision on appeal as it does manifest fealty to the principle announced by us inCabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to annul an order of Judge Kapunan, it appeared that an administrative charge for unexplained wealth having been filed against petitioner under the Anti-Graft Act,9the complainant requested the investigating committee that petitioner be ordered to take the witness stand, which request was granted. Upon petitioner's refusal to be sworn as such witness, a charge for contempt was filed against him in the sala of respondent Judge. He filed a motion to quash and upon its denial, he initiated this proceeding. We found for the petitioner in accordance with the well-settled principle that "the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand." It was noted in the opinion penned by the present Chief Justice that while the matter referred to an a administrative charge of unexplained wealth, with the Anti-Graft Act authorizing the forfeiture of whatever property a public officer or employee may acquire, manifestly out proportion to his salary and his other lawful income, there is clearly the imposition of a penalty. The proceeding for forfeiture while administrative in character thus possesses a criminal or penal aspect. The case before us is not dissimilar; petitioner would be similarly disadvantaged. He could suffer not the forfeiture of property but the revocation of his license as a medical practitioner, for some an even greater deprivation. To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to an American Supreme Court opinion highly persuasive in character. 10 In the language of Justice Douglas: "We conclude ... that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." We reiterate that such a principle is equally applicable to a proceeding that could possibly result in the loss of the privilege to practice the medical profession. 2. The appeal apparently proceeds on the mistaken assumption by respondent Board and intervenors-appellants that the constitutional guarantee against self-incrimination should be limited to allowing a witness to object to questions the answers to which could lead to a penal liability being subsequently incurred. It is true that one aspect of such a right, to follow the language of another American decision, 11 is the protection against "any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used." If that were all there is then it becomes diluted. lawphi1.et The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: "The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt." 12Only last year, in Chavez v. Court of Appeals, 13 speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant "to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free genuine will." Why it should be thus is not difficult to discern. The constitutional guarantee, along with other rights granted an accused, stands for a belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the privilege is the respect a government ... must accord to the dignity and integrity of its citizens." 14 It is likewise of interest to note that while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his detriment." 15 So also with the observation of the late Judge Frank who spoke of "a right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." 16 In the light of the above, it could thus clearly appear that no possible objection could be legitimately raised against the correctness of the decision now on appeal. We hold that in an administrative hearing against a medical practitioner for alleged malpractice, respondent Board of Medical Examiners cannot, consistently with the self-incrimination clause, compel the person proceeded against to take the witness stand without his consent. WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without pronouncement as to costs.

Page

239