CRISTOPHER GAMBOA, petitioner, vs. HON.

ALFREDO CRUZ, JUDGE of

the Court of First Instance of Manila, Br. XXIX, respondent.

"The hearing of this case for the purpose of presenting the evidence for
the accused is hereby set on November 28, 1980, at 8:30 o'clock in the
morning."
Hence, the instant petition.

Rene V. Sarmiento for petitioner.

DECISION

On 3 March 1981, the Court issued a temporary restraining order "effective as of this date and
continuing until otherwise ordered by the court". 1
Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of
discretion, in issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is null
and void for being violative of his rights to counsel and to due process. 2

PADILLA, J p:

We find no merit in the contentions of petitioner.

Petition for certiorari and prohibition, with prayer for a temporary restraining order, to annul and set
aside the order dated 23 October 1980 of the Court of First Instance of Manila, Branch XXIX, in Criminal
Case No. 47622, entitled "People of the Philippines, Plaintiff vs. Cristopher Gamboa y Gonzales,
Accused," and to restrain the respondent court from proceeding with the trial of the aforementioned
case.
Petitioner alleges that:
On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for vagrancy, without a warrant of
arrest, by Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2, Manila, where he
was booked for vagrancy and then detained therein together with several others.
The following day, 20 July 1979, during the lineup of five (5) detainees, including petitioner, complainant
Erlinda B. Bernal pointed to petitioner and said, "that one is a companion." After the identification, the
other detainees were brought back to their cell but petitioner was ordered to stay on. While the
complainant was being interrogated by the police investigator, petitioner was told to sit down in front of
her.
On 23 July 1979, an information for robbery was filed against the petitioner.
On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held. On 2 April 1980, the
prosecution formally offered its evidence and then rested its case.
On 14 July 1980, petitioner, by counsel, instead of presenting his defense, manifested in open court that
he was filing a Motion to Acquit or Demurrer to Evidence. On 13 August 1980, petitioner filed said
Motion predicated on the ground that the conduct of the line-up, without notice to, and in the absence
of, his counsel violated his constitutional rights to counsel and to due process.
On 23 October 1980, the respondent court issued the following order (assailed in the petition at bar)
denying the Motion to Acquit:
"For resolution is a motion to acquit the accused based on the grounds
that the constitutional rights of the said accused, to counsel and to due
process, have been violated. After considering the allegations and
arguments in support of the said motion in relation to the evidence
presented, the Court finds the said motion to be without merit and,
therefore, denies the same.

To begin with, the instant petition is one for certiorari, alleging grave abuse of discretion, amounting to
lack of jurisdiction, committed by the respondent judge in issuing the questioned order dated 23 October
1980.
It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise
of power, the very antithesis of judicial prerogative in accordance with centuries of both civil law and
common law traditions. 3 To warrant the issuance of the extraordinary writ of certiorari, the alleged lack
of jurisdiction, excess thereof, or abuse of discretion must be so gross or grave, as when power is
exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility, or the
abuse must be so patent as to amount to an evasion of positive duty, or to a virtual refusal to perform a
duty enjoined by law, or to act at all, in contemplation of law. 4 This is not the situation in the case at bar.
The respondent court considered petitioner's arguments as well as the prosecution's evidence against
him, and required him to present his evidence.
The rights to counsel and to due process of law are indeed two (2) of the fundamental rights guaranteed
by the Constitution, whether it be the 1973 or 1987 Constitution. In a democratic society, like ours, every
person is entitled to the full enjoyment of the rights guaranteed by the Constitution.
On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973 Constitution, 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."
The same guarantee, although worded in a different manner, is included in the 1987 Constitution.
Section 12 (1, 2 & 3), Article III thereof provides:
"Sec. 12 (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.

(2) No torture, force, violence, threat, intimidation, or any other means

which vitiate the free will shall be used against him. Secret detention
places, solitary, incommumicado, or other similar forms of detention
are prohibited.
(3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible in evidence against him."
The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts
to ask questions to elicit information and/or confessions or admissions from the respondent/accused. At
such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious
practice of extorting false or coerced admissions or confessions from the lips of the person undergoing
interrogation, for the commission of an offense.
Any person under investigation must, among other things, be assisted by counsel. The above-cited
provisions of the Constitution are clear. They leave no room for equivocation. Accordingly, in several
cases, this Court has consistently held that no custodial investigation shall be conducted unless it be in
the presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by
the court upon petition either of the detainee himself or by anyone in his behalf, and that, while the
right may be waived, the waiver shall not be valid unless made in writing and in the presence of counsel.
5
As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not
part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. The
Solicitor General states: LLphil
"When petitioner was identified by the complainant at the police lineup, he had not been held yet to answer for a criminal offense. The
police line-up is not a part of the custodial inquest, hence, he was not
yet entitled to counsel. Thus, it was held that when the process had not
yet shifted from the investigatory to the accusatory as when police
investigation does not elicit a confession the accused may not yet avail
of the services of his lawyer (Escobedo v. Illinois of the United States
Federal Supreme Court, 378 US 478, 1964). Since petitioner in the
course of his identification in the police line-up had not yet been held
to answer for a criminal offense, he was, therefore, not deprived of his
right to be assisted by counsel because the accusatory process had not
yet set in. The police could not have violated petitioner's right to
counsel and due process as the confrontation between the State and
him had not begun. In fact, when he was identified in the police line-up
by complainant he did not give any statement to the police. He was,
therefore, not interrogated at all as he was not facing a criminal charge.
Far from what he professes, the police did not, at that stage, exact a
confession to be used against him. For it was not he but the
complainant who was being investigated at that time. He "was ordered
to sit down in front of the complainant while the latter was being
investigated" (par. 3.03, Petition). Petitioner's right to counsel had not
accrued." 6
Even under the constitutional guarantees obtaining in the United States, petitioner would have no cause
for claiming a violation of his rights to counsel and due process. In Kirby vs. Illinois, 7 the facts of the case
and the votes of the Justices therein are summarized as follows:

"After arresting the petitioner and a companion and bringing them to a

police station, police officers learned that certain items found in their
possession had been stolen in a recent robbery. The robbery victim was
brought to the police station and immediately identified the petitioner
and his companion as the robbers. No attorney was present when the
identification was made, and neither the petitioner nor his companion
had asked for legal assistance or had been advised of any right to the
presence of counsel. Several weeks later, the petitioner and his
companion were indicted for the robbery. At trial in an Illinois state
court, the robbery victim testified that he had seen the petitioner and
his companion at the police station, and he pointed them out in the
courtroom and identified them as the robbers. The petitioner and his
companion were convicted, and the Illinois Appellate Court, First
District, affirmed the petitioner's conviction, holding that the
constitutional rule requiring the exclusion of evidence derived from out
of-court identification procedures conducted in the absence of counsel
did not apply to preindictment identifications (121 III App 2d 323, 257
NEE 2d 589).

"On certiorari, the United States Supreme Court, although not agreeing
on an opinion, affirmed. In an opinion by STEWART, J., announcing the
judgment of the court and expressing the view of four members of the
court, it was held that the constitutional right to counsel did not attach
until judicial criminal proceedings were initiated, and that the
exclusionary rule relating to out-of-court identifications in the absence
of counsel did not apply to identification testimony based upon a police
station show-up which took place before the accused had been indicted
or otherwise formally charged with any criminal offense.
"BURGER, Ch. J., concurring, joined in the plurality opinion and
expressed his agreement that the right to counsel did not attach until
criminal charges were formally made against an accused.
"POWELL, J., concurred in the result on the ground that the
exclusionary rule should not be extended.
"BRENNAN, J., joined by DOUGHLAS and MARSHALL, JJ., dissented on
the grounds that although Supreme Court decisions establishing the
exclusionary rule happened to involve postindictment identifications,
the rationale behind the rule was equally applicable to the present case.
"WHITE, J., dissented on the grounds that Supreme Court decisions
establishing the exclusionary rule governed the present case." 8
Mr. Justice Steward, expressing his view and that of three other members 9 of the Court, said:
"In a line of constitutional cases in this Court stemming back to the
Court's landmark opinion in Powell v. Alabama, 287 US 45, 77 L Ed 158,
53 S Ct 55, 84 ALR 527, it has been firmly established that a person's
Sixth and Fourteenth Amendment right to counsel attaches only at or

after the time that adversary judicial proceedings have been initiated
against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 US
458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama, 368
US 52, 7 L Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L
Ed 2d 799, 83 S Ct 792, 92 ALR 2d 733; White v. Maryland, 373 US 59,
10 L Ed 2d 193, 83 S Ct 1050; Massiah v. United States, 377 US 201, 12 L
Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 1149,
87 S Ct 1926; Gilbert v. California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct
1951; Coleman v. Alabama, 399 US 1, 26 L Ed 2d 387, 90 S Ct. 1999.

An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not a
final order. It is, therefore, not appealable. Neither can it be the subject of a petition for certiorari. Such
order of denial may only be reviewed, in the ordinary course of law, by an appeal from the judgment,
after trial. As stated in Collins vs. Wolfe, 12 and reiterated in Mill vs. Yatco, 13 the accused, after the
denial of his motion to quash, should have proceeded with the trial of the case in the court below, and if
final judgment is rendered against him, he could then appeal, and, upon such appeal, present the
questions which he sought to be decided by the appellate court in a petition for certiorari.
In Acharon vs. Purisima, 14 the procedure was well defined, thus:

This is not to say that a defendant in a criminal case has a constitutional

right to counsel only at the trial itself. The Powell case makes clear that
the right attaches at the time of arraignment and the Court has recently
held that it exists also at the time of a preliminary hearing. Coleman v.
Alabama, supra. But the point is that, while members of the court have
differed as to existence of the right to counsel in the contexts of some
of the above cases, all of those cases have involved points of time at or
after the initiation of adversary judicial criminal proceedings whether
by way of formal charge, preliminary hearing, indictment, information,
or arraignment." (Emphasis supplied). 10
As may be observed, the 1973 and 1987 Philippine Constitutions go farther and beyond the guarantee of
the right to counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution. For while,
under the latter, the right to counsel "attaches only at or after the time that adversary judicial
proceedings have been initiated against him (the accused)," under the 1973 and 1987 Philippine
Constitutions, the right to counsel attaches at the start of investigation against a respondent and,
therefore, even before adversary judicial proceedings against the accused have begun. LibLex
Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under police
investigation the right to counsel, this occasion may be better than any to remind police investigators
that, while the Court finds no real need to afford a suspect the services of counsel during a police line-up,
the moment there is a move or even an urge of said investigators to elicit admissions or confessions or
even plain information which may appear innocent or innocuous at the time, from said suspect, he
should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in
writing and in the presence of counsel.
On the right to due process, the Court finds that petitioner was not, in any way, deprived of this
substantive and constitutional right, as he was duly represented by a member of the Bar. He was
accorded all the opportunities to be heard and to present evidence to substantiate his defense; only that
he chose not to, and instead opted to file a Motion to Acquit after the prosecution had rested its case.
What due process abhors is the absolute lack of opportunity to be heard. 11 The case at bar is far from
this situation.
In any event, certiorari and prohibition are not the proper remedies against an order denying a Motion
To Acquit. Section 1, Rule 117 of the Rules of Court provides that, upon arraignment, the defendant shall
immediately either move to quash the complaint or information or plead thereto, or do both and that, if
the defendant moves to quash, without pleading, and the motion is withdrawn or overruled, he should
immediately plead, which means that trial must proceed. If, after trial on the merits, judgment is
rendered adversely to the movant (in the motion to quash), he can appeal the judgment and raise the
same defenses or objections (earlier raised in his motion to quash) which would then be subject to
review by the appellate court.

"Moreover, when the motion to quash filed by Acharon to nullify the

criminal cases filed against him was denied by the Municipal Court of
General Santos his remedy was not to file a petition for certiorari but to
go to trial without prejudice on his part to reiterate the special defenses
he had invoked in his motion and, if, after trial on the merits, an
adverse decision is rendered, to appeal therefrom in the manner
authorized by law. This is the procedure that he should have followed
as authorized by law and precedents. Instead, he took the usual step of
filing a writ of certiorari before the Court of First Instance which in our
opinion is unwarranted it being contrary to the usual course of law." 15
Conformably with the above rulings, whether or not petitioner was, afforded his rights to counsel and to
due process is a question which he could raise, as a defense or objection, upon the trial on the merits,
and, if that defense or objection should fail, he could still raise the same on appeal.
On the other hand, if a defendant does not move to quash the complaint or information before he
pleads, he shall be taken to have waived all objections which are grounds for a motion to quash, except
where the complaint or information does not charge an offense, or the court is without jurisdiction of
the same. 16
Here, petitioner filed a Motion To Acquit only after the prosecution had presented its evidence and
rested its case. Since the exceptions, above-stated, are not applicable, petitioner is deemed to have
waived objections which are grounds for a motion to quash.
Besides, the grounds relied upon by petitioner in his Motion to Acquit are not among the grounds
provided in Sec. 2, Rule 117 of the Rules of Court for quashing a complaint or information. Consequently,
the lower court did not err in denying petitioner's Motion to Acquit.
WHEREFORE, the petition is DISMISSED. The temporary restraining order issued on 3 March 1981 is
LIFTED. The instant case is remanded to the respondent court for further proceedings to afford the
petitioner-accused the opportunity to present evidence on his behalf. This decision is immediately
executory. With costs against the petitioner.
SO ORDERED.
||| (Gamboa v. Cruz, G.R. No. L-56291, June 27, 1988)
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO MACAM
y LONTOC, EUGENIO CAWILAN, JR. y BELEN, ANTONIO CEDRO y
SANTOS, ERNESTO ROQUE y MARIANO AND DANILO ROQUE y
MARIANO, accused. DANILO ROQUE and ERNESTO ROQUE, accusedappellants.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT TO COUNSEL; ATTACHES
UPON THE START OF AN INVESTIGATION. In Gamboa v. Cruz, 162 SCRA 642 (1988), we held that the
right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to
ask questions to elicit information, confessions or admissions from the accused (See also People v.
Dimaano, 209 SCRA 819 [1992]).
2. ID.; ID.; ID.; ID.; RATIONALE IN EXTENDING RIGHT BEFORE TRIAL. Historically, the counsel guarantee
was intended to assure the assistance of counsel at the trial, inasmuch as the accused was "confronted
with both the intricacies of the law and the advocacy of the public prosecutor." However, as a result of
the changes in patterns of police investigation, today's accused confronts both expert adversaries and
the judicial system well before his trial begins (U.S. v. Ash, 413 U.S. 300, 37 L Ed 2d 619, 93 Ct 2568
[1973]). It is therefore appropriate to extend the counsel guarantee to critical stages of prosecution even
before the trial. The law enforcement machinery at present involves critical confrontations of the
accused by the prosecution at pre-trial proceedings "where the result might well settle the accused's fate
and reduce the trial itself to a mere formality." A police line-up is considered a "critical" stage of the
proceedings (U.S. v. Wade, 388 U.S. 218, 18 L Ed 2d 1149, 87 S Ct 1926 [1967]).
3. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; IDENTIFICATION OF UNCOUNSELED ACCUSED,
INADMISSIBLE. After the start of the custodial investigation, any identification of an uncounseled
accused made in a police line-up is inadmissible. This is particularly true in the case at bench where the
police officers first talked to the victims before the confrontation was held. The circumstances were such
as to impart improper suggestions on the minds of the victims that may lead to a mistaken identification.
Appellants were handcuffed and had contusions on their faces.
4. ID.; ID.; ID.; FAILURE TO OBJECT TO THE IN-COURT IDENTIFICATION, ADMISSIBLE; REASON. However,
the prosecution did not present evidence regarding appellants' identification at the police line-up. Hence,
the exclusionary sanctions against the admission in evidence of custodial identification of an
uncounseled accused can not be applied. On the other hand, appellants did not object to the in-court
identification made by the prosecution witnesses. The prosecution witnesses, who made the
identification of appellants at the police line-up at the hospital, again identified appellants in open court.
Appellants did not object to the in-court identification as being tainted by the illegal line-up. In the
absence of such objection, the prosecution need not show that said identifications were of independent
origin (Gilber v. California, 388 U.S. 263, 18 L Ed 2d 1178, 87 S Ct 1951 [1967]).
5. ID.; CRIMINAL PROCEDURE; ARREST; UNLAWFUL ARREST; CURED WHERE ACCUSED VOLUNTARILY
SUBMITTED TO THE JURISDICTION OF THE TRIAL COURT. The arrest of appellants was made without
the benefit of a warrant of arrest. However, appellants are estopped from questioning the legality of
their arrest. This issue is being raised for the first time by appellants before this Court. They have not
moved for the quashing of the information before the trial court on this ground. Thus, any irregularity
attendant to their arrest was cured when they voluntarily submitted themselves to the jurisdiction of the
trial court by entering a plea of not guilty and by participating in the trial (People v. Rabang, 187 SCRA
682 [1990]).
6. CRIMINAL LAW; CONSPIRACY; NEED NOT BE PROVEN BY DIRECT EVIDENCE. Appellants further
contend that their guilt has not been proved beyond reasonable doubt, conspiracy not having been
established by positive and conclusive evidence. The presence of conspiracy between appellants and the
other accused can be shown through their conduct before, during and after the commission of the crime
(People v. Dagoma, 209 SCRA 819 [1992]).

7. REMEDIAL LAW; EVIDENCE; CREDIBILITY; DENIAL; CANNOT OVERCOME POSITIVE IDENTIFICATION.

Appellant Danilo Roque's denial of his participation in the commission of the crime is not sufficient to
overcome the testimony of the prosecution witnesses, who positively identified the former as one of the
persons who entered the Macam's residence, robbed and stabbed the occupants therein.
8. CONSTITUTIONAL LAW; NO PRESUMPTION OF GUILT AGAINST AN ACCUSED WHO OPTS NOT TO TAKE
THE WITNESS STAND. Appellant Ernesto Roque did not even testify in his defense at the trial. The
Constitution does not create any presumption of guilt against an accused who opts not to take the
witness stand (Griffin v. California, 380 U.S. 609, 14 L. Ed 2d 106, 85 S Ct 1229 [1965]). That is his right.
9. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY UPHELD ON APPEAL.
However, appellant Ernesto Roque cannot rely on the testimony of Danilo Roque because said
testimony failed to rebut and impeach the evidence of the prosecution against both appellants (Cf.
Desmond v. U.S. 345 F. 2d 225 [CA 1st 1965]). We agree with the finding of the trial court that appellant
Ernesto Roque, while remaining outside the house of Macam, stood as a look-out, which makes him a
direct co-conspirator in the crime (U.S. v. Santos, 4 Phil. 189 [1905]).
10. CRIMINAL LAW; ROBBERY WITH HOMICIDE; NOT TWO SEPARATE CRIMES; CASE AT BAR.
Appellants contend that the crimes committed were robbery and homicide, and not the complex crime
of robbery with homicide. We do not agree. The rule is whenever homicide has been committed as a
consequence or on occasion of the robbery, all those who took part as principals in the robbery will also
be held guilty as principals of the special crime of robbery with homicide although they did not actually
take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide
(People v. Veloso, 112 SCRA 173 [1982]; People v. Bautista, 49 Phil. 389 [1926]; U.S. v. Macalalad, 9 Phil.
1 [1970]).
11. CIVIL LAW; DAMAGES; LIABILITY FOR INDEMNITY FOR DEATH IS SOLIDARY; CASE AT BAR. Lastly,
the award of civil damages made by the trial court is not in accordance with law and jurisprudence. In its
judgment, the trial court disposed in pertinent part as follows: "In Crim. Case Q-53781, the court finds
accused DANILO ROQUE and ERNESTO ROQUE guilty beyond reasonable doubt of the crime of Robbery
with Homicide, . . . and hereby sentences each of them to suffer the penalty of RECLUSION PERPETUA
and each to indemnify the heirs of the deceased the sum of P30,000.00, . . . ". The trial court overlooked
the rule in Article 110 of the Revised Penal Code that the principals shall be "severally (in solidum)" liable
among themselves (People v. Hasiron, 214 SCRA 586 [1992]). WHEREFORE, the decision is AFFIRMED
with the MODIFICATIONS: (1) that the civil damages awarded in favor of the heirs of Leticia Macam are
increased to P50,000.00; and (2) that the word "each" before "to indemnify the heirs" in the dispositive
portion of the decision is deleted.
DECISION

QUIASON, J p:
This is an appeal from the decision of the Regional Trial Court, Branch 104, Quezon
City in Criminal Case No. Q-53781, finding Danilo Roque and Ernesto Roque guilty beyond
reasonable doubt of the crime of Robbery with Homicide and sentencing each of them to suffer
the penalty of reclusion perpetua.
I

In Criminal Case No. Q-53781, appellants, together with Eduardo Macam, Antonio
Cedro and Eugenio Cawilan, Jr., were accused of Robbery with Homicide as defined and penalized
under Article 294(1) of the Revised Penal Code, committed as follows:
"That on or about the 18th day of August, 1987, in
Quezon City, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused; conspiring together, confederating
with and mutually helping one another, with intent to gain, and by
means of intimidation and/or violence upon person, armed with a
firearm and bladed weapons, did, then and there, willfully, unlawfully
and feloniously rob one BENITO MACAM y SY in the manner as follows:
on the date and in the place aforementioned, the said accused,
pursuant to their conspiracy, entered the residence of said offended
party located at No. 43-A Fema Road, Brgy. Bahay Toro, this City, and
thereafter divested the said offended party of the following properties:
One (1) model .59 cal. 9mm (toygun).
One (1) Walter P 38 cal. 9mm (toygun).

intent to kill, did, then and there, willfully, unlawfully and feloniously
attack, assault and employ personal violence upon the person of one
Leticia Macam y Tui, thereby inflicting upon her serious and mortal
injuries which were direct and immediate cause (sic) of her untimely
death, and on the occasion of said offense, one Benito Macam y Sy,
Salvacion Enrera y Escota, and Nilo Alcantara y Bautista, all sustained
physical injuries which have required medical attendance for a period
of more than thirty (30) days and which have incapacitated all of them
from performing their customary labor for the said period of time, to
the damage and prejudice of the heirs of the late LETICIA MACAM y TUI
and to the damage and prejudice of the said offended parties in such
amount as may be awarded under the provisions of the Civil Code
(Rollo, pp. 3-4).

Together with Criminal Case No. Q-53781, Criminal Case No. Q-53783 was filed
against Eugenio Cawilan, Sr. for violation of Presidential Decree No. 1612, otherwise known as
the Anti-Fencing Law (Rollo, p. 31).

One (1) airgun rifle with leather attache case.

Upon being arraigned, all the accused in Criminal Cases Nos. Q-53781 and Q-53783
pleaded "not guilty" to the crimes charged.

One (1) master CO2 refiller.

After the prosecution had presented its evidence on July 4, 1989, accused Eduardo
Macam, Antonio Cedro and Eugenio Cawilan, Jr., assisted by their respective counsels, changed
their plea from "not guilty" to "guilty" (Rollo, p. 23). Consequently, a separate judgment was
rendered sentencing each of them to suffer the penalty of reclusion perpetua and ordering each
of them to pay P30,000.00 to the heirs of Leticia Macam without subsidiary imprisonment in case
of insolvency, but with all the accessory penalties provided for by law, and to pay the costs (Rollo,
p. 24).

One (1) Sony TV antennae.

Three (3) betamax tapes.
One (1) Kenyo betamax rewinder.
One (1) Samsonite attache case.
One (1) set of four pieces of trays.
One (1) Airmail typewriter.
One (1) Sony betamax.

The trial proceeded with respect to Eugenio Cawilan, Sr. and appellants. Of the
latter, only Danilo Roque testified.
On September 26, 1989, the trial court rendered its judgment finding appellants
guilty beyond reasonable doubt of the crime of Robbery with Homicide in Criminal Case No. Q53781 and acquitting Eugenio Cawilan, Sr. of violation of the Anti-Fencing Law in Criminal Case No.
Q-53783 (Rollo, pp. 43-44).
II

One (1) Sony TV Trinitron.

One (1) chessboard.
One (1) Toyota Crown car bearing plate No. CAS-997.
Assorted jewelry.
Cash money (still undetermined).
One (1) .22 Walter.
valued in the total amount of P454,000.00, more or less, Philippine
Currency, and by reason of the crime of Robbery, said accused, with

The trial court accepted the prosecution's version as correct and made the
following findings of fact:
"The prosecution evidence, stripped of non-essentials,
shows that on August 18, 1987, Eduardo Macam, Antonio Cedro,
Eugenio Cawilan, Jr., Danilo Roque and Ernesto Roque went to the
house of Benito Macam located at 43 Fema Road, Quezon City, and that
upon arrival at said place, Eduardo Macam, a nephew of Benito Macam,
entered the house and talked to Benito Macam. Benito then offered
lunch to Eduardo, who told him that he had companions waiting
outside. Benito then told his maid, Salvacion Enrera, to call the said
companions of Eduardo and ask them to enter the house and have their
lunch. Salvacion went outside and called the persons waiting in a
tricycle who, she positively identified, were Antonio Cedro, Eugenio

Cawilan, Jr., Danilo Roque and Ernesto Roque. Salvacion Enrera testified
that only Antonio Cedro, Eugenio Cawilan, Jr. and Danilo Roque entered
the house and that Ernesto Roque remained in the tricycle. After
Antonio Cedro, Eugenio Cawilan, Jr. and Danilo Roque had taken their
lunch, Eduardo Macam suddenly grabbed the clutch bag of Benito
Macam and pulled out Benito's gun and after they announced a hold-up,
they started ransacking the place and looking for valuables. After tying
up the members of Benito Macam's household, namely, Leticia Macam,
Nilo Alcantara, Salvacion Enrera, and the children of Benito Macam, the
same persons brought them to a room upstairs. After a while, Leticia
Macam, Nilo Alcantara, Salvacion Enrera, and Benito Macam were
taken out of the room and brought to another room where Leticia
Macam was killed and Benito Macam, Nilo Alcantara, and Salvacion
Enrera were stabbed. The prosecution presented as Exhibit "C" a list of
the items taken by the said persons with a total value of P536,700.00.
Nilo Alcantara testified that while he was being brought
downstairs by Antonio Cedro, he saw Leticia Macam being held by
Danilo Roque inside the comfort room and that Danilo Roque told
Antonio Cedro that "pare doon mo na upakan yan." Nilo then testified
that he was brought back to a room upstairs where he suddenly heard a
very loud scream from Leticia Macam, after which, he was suddenly
stabbed by Antonio Cedro.
Salvacion Enrera testified that she was brought to
another room by Antonio Cedro where she saw Benito Macam and Nilo
Alcantara bloodied from stab wounds and that she heard a loud scream
from Mrs. Leticia Macam prior to her being stabbed by Danilo Roque
(Rollo, pp. 36-37).
III
The version of the defense, as summarized by the trial court, is as follows:
"In exculpation, the defense in Criminal Case Q-53781
presented its sole witness accused Danilo Roque, who testified that in
the morning of August 18, 1987, while he was driving his tricycle, he
was stopped by three persons who, he came to know only during the
trial of this case, were Eduardo Macam, Eugenio Cawilan, Jr. and
Antonio Cedro. According to Danilo Roque, the said persons stopped
him and asked that he bring them to Fema Road for which they were
willing to pay P50.00 and that he agreed to bring them to Fema Road
after Eduardo Macam gave him a calling card. Danilo Roque testified
that they stopped at the residence of Benito Macam where Eduardo
Macam alighted from his tricycle and entered the compound, and that
after a while, he, together with Antonio Cedro and Eugenio Cawilan, Jr.,
was called by the maid of Benito Macam to go in the house and eat.
After eating, Danilo stated that he washed the dishes and swept the
floor, when suddenly, Eugenio Cawilan, Jr. pulled out a gun and
announced a hold-up and told Danilo to keep silent and just follow
what was asked of him to do. After the said persons tied the occupants
of the house of Benito Macam, they told Danilo to help them gather
some of the things therein, which order, Danilo obeyed for fear of his
life. Danilo Roque then testified that after placing the things in a car

parked inside the house, Eduardo Macam said, "Kailangan patayin ang
mga taong yan dahil kilala ako ng mga yan," and that upon hearing this,
he went out of the house and went home using his tricycle. He likewise
testified that his brother, Ernesto Roque, was not at the said location.
Danilo testified that his brother Ernesto had just arrived from the
province on August 19, 1987 and that he asked Ernesto to go with him
to the factory of Zesto Juice and that while they were at the said factory,
where he was told by Eduardo Macam to get his payment, he and his
brother Ernesto were suddenly apprehended by the security guards. He
and Ernesto were then brought to the Quezon City Headquarters where
Danilo alleged (sic) they (Ernesto Roque, Eduardo Macam, Eugenio
Cawilan, Jr., and Antonio Cedro) were forced to admit certain acts"
(Rollo, pp. 34-35).
The issues raised by appellants can be summarized into whether or not (a) their
arrest was valid; and (b) their guilt have been proved beyond reasonable doubt.
Appellants contend that their arrest without a warrant and their uncounseled
identification by the prosecution witnesses during the police line-up at the hospital are violative
of their constitutional rights under Section 12, Article 3 of the Constitution (Rollo, p. 119).
Appellants gave the following version of the circumstances surrounding their
arrests:
". . . , Accused-Appellant Danilo Roque stated that
between 4:00 o'clock (sic) and 5:00 o'clock (sic) in the afternoon of
August 19, 1987, he and his brother, Accused-Appellant Ernesto Roque,
went to the factory of Accused Eduardo Macam's father in Kaloocan
City to collect the fare of P50.00 from Accused Eduardo Macam; they
were suddenly approached by the security guards of the factory and
brought inside the factory where they were mauled by the security
guards and factory workers and told they were involved in a robberykilling; thereafter, Patrolman Lamsin and his policemen-companions
brought them to the headquarters of the Quezon City Police
Department for investigation and detention; the other Accused,
Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr., were in the
jail of the Station Investigation Division, the Accused including AccusedAppellants Danilo Roque and Ernesto Roque were forced to admit to
the robbery killing, but Accused-Appellants Danilo Roque and Ernesto
Roque refused to admit they had anything to do with it; then all the
Accused were brought to the Quezon City General Hospital before each
of the surviving victims of the crime charged in handcuffs and made to
line up in handcuffs together with some policemen in civilian clothes for
identification by the surviving victims who the policemen spoke to
before all of the Accused were pointed to as the suspects in the crime
charged (TSN, July 12, 1989, pp. 15-18; Rollo, pp. 145-148) (Rollo, pp.
121-122).
It appears that the security guards at the factory of the father of accused Eduardo
Macam detained appellants. They were later brought to the Quezon City Police Headquarters for
investigation. Since they refused to admit their participation in the commission of the crime,
appellants were then brought to the Quezon City General Hospital and were made to line-up
together with several policemen in civilian clothes. Salvacion Enrera, Benito Macam and Nilo
Alcantara, who were confined at the hospital for injuries sustained during the robbery, were

asked to pinpoint the perpetrators. At that time, appellants were handcuffed and bore contusions
on their faces caused by the blows inflicted on them by the police investigators (TSN, July 12,
1989, pp. 15-18).
In Gamboa v. Cruz, 162 SCRA 642 (1988), we held that the right to counsel attaches
upon the start of an investigation, i.e., when the investigating officer starts to ask questions to
elicit information, confessions or admissions from the accused (See also People v. Dimaano, 209
SCRA 819 [1992]).
Historically, the counsel guarantee was intended to assure the assistance of
counsel at the trial, inasmuch as the accused was "confronted with both the intricacies of the law
and the advocacy of the public prosecutor." However, as a result of the changes in patterns of
police investigation, today's accused confronts both expert adversaries and the judicial system
well before his trial begins (U.S. v. Ash, 413 U.S. 300, 37 L Ed 2d 619, 93 S Ct 2568 [1973]). It is
therefore appropriate to extend the counsel guarantee to critical stages of prosecution even
before the trial. The law enforcement machinery at present involves critical confrontations of the
accused by the prosecution at pre-trial proceedings "where the result might well settle the
accused's fate and reduce the trial itself to a mere formality." A police line-up is considered a
"critical" stage of the proceedings (U.S. v. Wade, 388 U.S. 218, 18 L Ed 2d 1149, 87 S Ct 1926
[1967]).

After the start of the custodial investigation, any identification of an uncounseled

accused made in a police line-up is inadmissible. This is particularly true in the case at bench
where the police officers first talked to the victims before the confrontation was held. The
circumstances were such as to impart improper suggestions on the minds of the victims that may
lead to a mistaken identification. Appellants were handcuffed and had contusions on their faces.
However, the prosecution did not present evidence regarding appellant's
identification at the police line-up. Hence, the exclusionary sanctions against the admission in
evidence of custodial identification of an uncounseled accused can not be applied. On the other
hand, appellants did not object to the in-court identification made by the prosecution witnesses.
The prosecution witnesses, who made the identification of appellants at the police line-up at the
hospital, again identified appellants in open court. Appellants did not object to the in-court
identification as being tainted by the illegal line-up. In the absence of such objection, the
prosecution need not show that said identifications were of independent origin (Gilbert v.
California, 388 U.S. 263, 18 L Ed 2d 1178, 87 S Ct 1951 [1967]).
The arrest of appellants was made without the benefit of a warrant of arrest.
However, appellants are estopped from questioning the legality of their arrest. This issue is being
raised for the first time by appellants before this Court. They have not moved for the quashing of
the information before the trial court on this ground. Thus, any irregularity attendant to their
arrest was cured when they voluntarily submitted themselves to the jurisdiction of the trial court
by entering a plea of not guilty and by participating in the trial (People v. Rabang, 187 SCRA 682
[1990]).
Appellants further contend that their guilt has not been proved beyond reasonable
doubt, conspiracy not having been established by positive and conclusive evidence (Rollo, p. 131).
The presence of conspiracy between appellants and the other accused can be
shown through their conduct before, during and after the commission of the crime (People v.
Dagoma, 209 SCRA 819 [1992]).
It is undeniable that appellant Danilo Roque was the tricycle driver, who brought

the accused Eduardo Macam, Antonio Cedro and Eugenio Cawilan, Jr. to the house of Benito
Macam. He contends that he did not know the said accused. Yet, why did he agree to bring them
to the Macam residence when the route going to that place is out of his regular route? Why did
he agree to bring them to that place without being paid the P50.00 as agreed but was merely
given a calling card?
Upon arriving at the residence of Benito Macam, appellant Danilo Roque, together
with his co-accused, went inside the house to eat. He even admitted that after eating, he washed
the dishes, swept the floor and sat on the sofa in the sala instead of going out of the house. This
conduct is not in keeping with his being merely the tricycle driver hired by the accused to
transport them to their destination.
Appellant Danilo Roque was the one who gathered the articles stolen from the
house of the victim and who placed them inside the tricycle. While he claimed that he was merely
intimidated by the accused to do so, his subsequent conduct belied this claim. According to him,
he escaped after hearing accused Eduardo Macam tell his co-accused to kill all the possible
witnesses who may be asked to identify them. Yet he continued to ply his route as if nothing
unusual happened. How he was able to escape unnoticed by his co-accused is a puzzle by itself.
Likewise, he did not mention the incident to anyone, not even to his brother, appellant Ernesto
Roque, whom he saw the following day. He did not report the incident to the police. In People v.
Logronio, 214 SCRA 519 (1992), we noted: "For criminals to make an innocent third party a
passive and unnecessary witness to their crime of robbing and killing, and then to let such witness
go free and unharmed, is obviously contrary to ordinary human experience."
Appellant Danilo Roque's denial of his participation in the commission of the crime
is not sufficient to overcome the testimony of the prosecution witnesses, who positively
identified the former as one of the persons who entered the Macam's residence, robbed and
stabbed the occupants therein.
Salvacion Enrera testified that she was stabbed by appellant Danilo Roque. Nilo
Alcantara, likewise, positively identified appellant Danilo Roque as one of those who brought
Leticia Macam to the comfort room, where she was found dead.
Appellant Ernesto Roque did not even testify in his defense at the trial. The
Constitution does not create any presumption of guilt against an accused who opts not to take
the witness stand (Griffin v. California, 380 U.S. 609, 14 L. Ed 2d 106, 85 S Ct 1229 [1965]). That is
his right. However, appellant Ernesto Roque cannot rely on the testimony of Danilo Roque
because said testimony failed to rebut and impeach the evidence of the prosecution against both
appellants (Cf. Desmond v. U.S. 345 F. 2d 225 [CA 1st 1965]). We agree with the finding of the
trial court that appellant Ernesto Roque, while remaining outside the house of Macam, stood as a
look-out, which makes him a direct co-conspirator in the crime (U.S. v. Santos, 4 Phil. 189 [1905]).
Appellants contend that the crimes committed were robbery and homicide, and
not the complex crime of robbery with homicide (Rollo, p. 143). We do not agree. The rule is
whenever homicide has been committed as a consequence or on occasion of the robbery, all
those who took part as principals in the robbery will also be held guilty as principals of the special
crime of robbery with homicide although they did not actually take part in the homicide, unless it
clearly appears that they endeavored to prevent the homicide (People v. Veloso, 112 SCRA 173
[1982]; People v. Bautista, 49 Phil. 389 [1926]; U.S. v. Macalalad, 9 Phil. 1 [1907]).
Lastly, the award of civil damages made by the trial court is not in accordance with
law and jurisprudence. In its judgment, the trial court disposed in pertinent part as follows: "In
Crim. Case Q-53781, the court finds accused DANILO ROQUE and ERNESTO ROQUE guilty beyond
reasonable doubt of the crime of Robbery with Homicide, . . . and hereby sentences each of them

to suffer the penalty of RECLUSION PERPETUA and each to indemnify the heirs of the deceased
the sum of P30,000.00, ." (Rollo, pp. 43-44; underscoring supplied). The trial court overlooked the
rule in Article 110 of the Revised Penal Code that the principals shall be "severally (in solidum)"
liable among themselves (People v. Hasiron, 214 SCRA 586 [1992]).
WHEREFORE, the decision is AFFIRMED with the MODIFICATIONS: (1) that the civil
damages awarded in favor of the heirs of Leticia Macam are increased to P50,000.00; and (2) that
the word "each" before "to indemnify the heirs" in the dispositive portion of the decision is
deleted.
SO ORDERED.
||| (People v. Roque, G.R. Nos. 91011-12, November 24, 1994)
THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN
AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial
Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RIGHT AGAINST SELFINCRIMINATION; RIGHT CONSTRUED. The right against self-incrimination, mentioned in Section 20,
Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily
or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. The right is NOT to
"be compelled to be a witness against himself." It prescribes an "option of refusal to answer
incriminating questions and not a prohibition of inquiry." It simply secures to a witness, whether he be a
party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to
which has a tendency to incriminate him for some crime.
2. ID.; ID.; ID.; ID.; TIME TO ASSERT RIGHT. The right can be claimed only when the specific question,
incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does
not give a witness the right to disregard a subpoena, to decline to appear before the court at the time
appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as
required, take the stand, be sworn and answer questions. It is only when a particular question is
addressed to him, the answer to which may incriminate him for some offense, that he may refuse to
answer on the strength of the constitutional guaranty.

other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be
used against him.
5. ID.; ID.; ID.; RIGHT TO BE EXEMPT FROM BEING A WITNESS AGAINST HIMSELF, CONSTRUED. The
right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies
that he cannot be compelled to testify or produce evidence in the criminal case in which he is the
accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or
order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused,
or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be
compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory
question at the time it is put to him the defendant in a criminal action can refuse to testify altogether.
He can refuse to take the witness stand, be sworn, answer any question. And, as the law categorically
states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him."
6. ID.; ID.; ID.; RIGHTS OF THE ACCUSED BEFORE AND AFTER THE CASE IS FILED IN THE COURT. A
person suspected of having committed a crime and subsequently charged with its commission in court,
has the following rights in that matter of his testifying or producing evidence, to wit: 1) BEFORE THE
CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having
been taken into custody or otherwise deprived of his liberty in some significant way, and on being
interrogated by the police: the continuing right to remain silent and to counsel, and to be informed
thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the
free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS
FILED IN COURT a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by
such refusal; c) to testify to his own behalf, subject to cross-examination by the persecution; d) WHILE
TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some time other
than that for which he is prosecuted.
7. ID.; ID.; ID.; RIGHTS DURING CUSTODIAL INVESTIGATION DOES NOT ENCOMPASS STATEMENTS MADE
DURING AN ADMINISTRATIVE INQUIRY; CASE AT BAR. Felipe Ramos was not in any sense under
custodial interrogation, as the term should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a
hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of
the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also
clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the
administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the
record having thereafter been marked during the trial of the criminal action subsequently filed against
him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors
on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged
irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground
that the so-called "Miranda rights" had not been accorded to Ramos.
DECISION

3. ID.; ID.; ID.; ID.; NOT A SELF-EXECUTING RIGHT. The right against self-incrimination is not selfexecuting or automatically operational. It must be claimed. If not claimed by or in behalf of the witness,
the protection does not come into play. It follows that the right may be waived, expressly, or impliedly,
as by a failure to claim it at the appropriate time.
4. ID.; ID.; ID.; OTHER RIGHTS OF THE ACCUSED. The accused in a criminal case in court has other
rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of
protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the
defendant is entitled among others 1) to be exempt from being a witness against himself, and 2) to
testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any

NARVASA, J p:
What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an
individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the
Constitution, with the right of any person "under investigation for the commission of an offense . . . to

remain silent and to counsel, and to be informed of such right," granted by the same provision. The
relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its
Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of
plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of
February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and
Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees'
Association (PALEA) to which Ramos pertained. 2
On the day before the investigation, February 8, 1986, Ramos gave to his superiors a handwritten note 3
reading as follows:
"2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS
WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED
VS. HIM IN THE AMT. OF P76,000 (APPROX.) SUBJECT TO
CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE
1700/9 FEB 86.
(s) Felipe Ramos
(Printed) F. Ramos"
At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R.
Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA
Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team."
Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers
were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit
Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying
back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to
settle his obligation, and proferred a "compromise . . . to pay on staggered basis, (and) the amount
would be known in the next investigation;" that he desired the next investigation to be at the same place,
"Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and
that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned
out is not dealt with the parties at all; but it would seem that no compromise agreement was reached
much less consummated.
About two (2) months later, an information was filed against Felipe Ramos charging him with the crime
of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987.
In that place and during that time, according to the indictment, 5 he (Ramos)
". . . with unfaithfulness and/or abuse of confidence, did then and there
willfully . . . defraud the Philippine Airlines, Inc., Baguio Branch, . . . in
the following manner, to wit: said accused . . . having been entrusted
with and received in trust fare tickets of passengers for one-way-trip
and round-trip in the total amount of P76,700.65, with the express
obligation to remit all the proceeds of the sale, account for it and/or to
return those unsold, . . . once in possession thereof and instead of

complying with his obligation, with intent to defraud, did then and
there . . . misappropriate, misapply and convert the value of the tickets
in the sum of P76,700.65 and in spite of repeated demands, . . . failed
and refused to make good his obligation, to the damage and prejudice
of the offended party . . ."

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued.
The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the
Fiscal.
At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21,
1988, 6 which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February
9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his
"handwritten admission . . . given on February 8, 1986," also above referred to, which had been marked
as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiffs Evidence." 7 Particularly as regards
the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was
taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same
reasons interposed under Exhibits 'A' and 'J.' "
By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the
testimony of the witnesses who testified in connection therewith and for whatever they are worth,"
except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it
appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City
Ticket Office, in an investigation conducted by the Branch Manager . . . since it does not appear that the
accused was reminded of this constitutional rights to remain silent and to have counsel, and that when
he waived the same and gave his statement, it was with the assistance actually of a counsel." He also
declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on
February 8, 1986 . . . for the same reason stated in the exclusion of Exhibit 'A' since it does not appear
that the accused was assisted by counsel when he made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September
14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v.
Juan Ponce Enrile, et al., 121 SCRA 538, Peo. v. Galit, 135 SCRA 467, Peo. v. Sison, 142 SCRA 219, and Peo.
v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the right to
counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and
the explicit precept in the present Constitution that the rights in custodial investigation "cannot be
waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe
Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of
the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;"
and the fact that Ramos was not detained at the time, or the investigation was administrative in
character could not operate to except the case "from the ambit of the constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari
and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the
Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to
comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING
the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R
(People . . . vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid

case or on any matter in relation to the same case, now pending before the Regional Trial Court of
Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to
comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have
all been filed. The Solicitor General has made common cause with the petitioner and prays "that the
petition be given due course and thereafter judgment be rendered setting aside respondent Judge's
Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has
thereby removed whatever impropriety might have attended the institution of the instant action in the
name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in
question.
The Court deems that there has been full ventilation of the issue of whether or not it was grave abuse
of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to
resolve it.
At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent
Judge has given a construction that is disputed by the People. The section reads as follows:
SEC. 20. 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.
It should at once be apparent that there are two (2) rights, or sets of rights, dealth with in the section,
namely:
1) the right against self-incrimination i.e., the right of a person not to be compelled to be a witness
against himself set out in the first sentence, which is a verbatim reproduction of Section 18, Article III
of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American
Constitution, 12 and

claimed only when the specific question, incriminatory in character, is actually put to the witness. It
cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to
decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness
receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It
is only when a particular question is addressed to him, the answer to which may incriminate him for
some offense, that he may refuse to answer on the strength of the constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or
other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness
of his right against self-incrimination. It is a right that a witness knows or should know, in accordance
with the well known axiom that every one is presumed to know the law, that ignorance of the law
excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be
expected to know in advance the character or effect of a question to be put to the latter. 17
The right against self-incrimination is not self-executing or automatically operational. It must be claimed.
If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the
right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights.
These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects"
under investigation by police authorities; and this is what makes these rights different from that
embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately
applies to any person testifying in any proceeding, civil, criminal, or administrative.
This provision granting explicit rights to persons under investigation for an offense was not in the 1935
Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona,
19 a decision described as an "earthquake in the world of law enforcement." 20
Section 20 states that whenever any person is "under investigation for the commission of an offense"

2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation
for the commission of an offense."

1) he shall have the right to remain silent and to counsel, and to be

informed of each right, 21

Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of
these rights. It has placed the rights in separate sections. The right against self-incrimination, "No person
shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987
Constitution. The rights of a person in custodial interrogation, which have been made more explicit, are
now contained in Section 12 of the same Article III. 13

2) nor force, violence, threat, intimidation, or any other means which

vitiates the free will shall be used against him; 22 and

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is
accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in
any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to be a witness
against himself."
The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to
answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness,
whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e.,
one the answer to which has a tendency to incriminate him for some crime. However, the right can be

3) any confession obtained in violation of . . . (these rights shall be

inadmissible in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police
custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding
against the suspect. 24
He must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a court
of law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise those rights must

be afforded to him throughout the interrogation. After such warnings

have been given, such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer or
make a statement. But unless and until such warnings and waivers are
demonstrated by the prosecution at the trial, no evidence obtained as a
result of interrogation can be used against him.
The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statement without full warnings of constitutional
rights." 25
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation
of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant
"questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has
also been more precisely described by this Court. 28
. . . After a person is arrested and his custodial investigation
begins a confrontation arises which at best may be termed
unequal. The detainee is brought to an army camp or police
headquarters and there questioned and "cross-examined"
not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in
strange and unfamiliar surroundings, and every person he
meets he considers hostile to him. The investigators are
well-trained and seasoned in their work. They employ all the
methods and means that experience and study have taught
them to extract the truth, or what may pass for it, out of the
detainee. Most detainees are unlettered and are not aware
of their constitutional rights. And even if they were, the
intimidating and coercive presence of the officers of the law
in such an atmosphere overwhelms them into silence.
Section 20 of the Bill of Rights seeks to remedy this
imbalance."
Not every statement made to the police by a person involved in some crime is within the scope of the
constitutional protection. If not made "under custodial interrogation," or "under investigation for the
commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went to
a police precinct and before any sort of investigation could be initiated, declared that he was giving
himself up for the killing of an old woman because she was threatening to kill him by barang, or
witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional
procedure on custodial interrogation not being exigible under the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against selfincrimination and (2) those during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial

interrogation. His interrogation by the police, if any there had been would already have been ended at
the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect
to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no
occasion to speak of his right while under "custodial interrogation" laid down by the second and
subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is
no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary investigation before the public
prosecutor), in common with all other persons, possesses the right against self-incrimination set out in
the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a
specific incriminatory question at the time that it is put to him. 30
Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or
refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under
the Rules of Court, in all criminal prosecutions the defendant is entitled among others
1) to be exempt from being a witness against himself, 31 and
2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined
as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or
be used against him. 32
The right of the defendant in a criminal case "to be exempt from being a witness against himself"
signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is
the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process
or order of the Court. He cannot be required to be a witness either for the prosecution, or for a coaccused, or even for himself. 33 In other words unlike an ordinary witness (or a party in a civil action)
who may be compelled to testify by subpoena, having only the right to refuse to answer a particular
incriminatory question at the time it is put to him the defendant in a criminal action can refuse to
testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as
the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or
be used against him." 35
If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does
testify, then he "may be cross-examined as any other witness." He may be cross-examined as to any
matters stated in his direct examination, or connected therewith. 36 He may not on cross-examination
refuse to answer any question on the ground that the answer that he will give, or the evidence he will
produce, would have a tendency to incriminate him for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal action be asked a question which might
incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that
of which he is accused, he may decline to answer that specific question, on the strength of the right
against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution
(now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused
should testify in his behalf, he may not on cross-examination refuse to answer any question on the
ground that he might be implicated in that crime of murder; but he may decline to answer any particular
question which might implicate him for a different and distinct offense, say, estafa.
In fine, a person suspected of having committed a crime and subsequently charged with its commission
in court, has the following rights in that matter of his testifying or producing evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but

after having been taken into custody or otherwise deprived of his liberty in some significant way, and on
being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed
thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the
free will; and to have evidence obtained in violation of these rights rejected; and
2) AFTER THE CASE IS FILED IN COURT 37

accusation against him, it would be absurd to reject his statements, whether at the administrative
investigation, or at a subsequent criminal action brought against him, because he had not been accorded,
prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be
informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is selfevident that the employee's statements, whether called "position paper," "answer," etc., are submitted
by him precisely so that they may be admitted and duly considered by the investigating officer or
committee, in negation or mitigation of his liability.

a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such refusal;
c) to testify to his own behalf, subject to cross-examination by the prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific question which tends to
incriminate him for some time other than that for which he is prosecuted.
It should by now be abundantly apparent that respondent Judge has misapprehended the nature and
import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken
them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly
erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and
logical. The thesis was however so far divorced from the actual and correct state of the constitutional
and legal principles involved as to make application of said thesis to the case before him tantamount to
totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave
abuse of discretion. They should be as they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial
interrogation, as the term should be properly understood, prior to and during the administrative inquiry
into the discovered irregularities in ticket sales in which he appeared to have had a hand. The
constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973
Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too,
that Ramos had voluntarily answered questions posed to him on the first day of the administrative
investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having
thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A,
just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8,
1986, the day before the investigation, offering to compromise his liability in the alleged irregularities,
was a free and even spontaneous act on his part. They may not be excluded on the ground that the socalled "Miranda rights" had not been accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger . . (of) the violation of the right of any
person against self-incrimination when the investigation is conducted by the complaining parties,
complaining companies, or complaining employers because being interested parties, unlike the police
agencies who have no propriety or pecuniary interest to protect, they may in their overeagerness or
zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under
an atmosphere of moral coercion, undue ascendancy, and undue influence." It suffices to draw attention
to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on
any employee by his employer until and unless the employee has been accorded due process, by which is
meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and
opportunity to explain his side. The requirement entails the making of statements, oral or written, by the
employee under such administrative investigation in his defense, with opportunity to solicit the
assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any
statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the

Of course the possibility cannot be discounted that in certain instances the judge's expressed
apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to
bear on an employee under investigation or for that matter, on a person being interrogated by
another whom he has supposedly offended. In such an event, any admission or confession wrung from
the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating
consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the
general, incontestable proposition that involuntary or coerced statements may not in justice be received
against the makers thereof, and really should not be accorded any evidentiary value at all.
WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent
Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby
ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R,
and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of
October 26, 1988 having become functus oficio, is now declared of no further force and effect.
||| (People v. Ayson, G.R. No. 85215, July 07, 1989)
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONILO PINLAC
Y LIBAO, accused-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF THE ACCUSED; RIGHT TO BE INFORMED;

CONTEMPLATES THE TRANSMISSION OF MEANINGFUL INFORMATION. When the Constitution
requires a person under investigation "to be informed" of his right to remain silent and to counsel, it
must be presumed to contemplate the transmission of a meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle.
2. ID.; ID.; ID.; ID.; ID.; MERE REPETITION OF CONSTITUTIONAL PROVISION, NOT SUFFICIENT. As a rule,
therefore, it would not be sufficient for a police officer just to repeat to the person under investigation
the provisions of the Constitution. He is not only duty-bound to tell the person the rights to which the
latter is entitled; he must also explain their effects in practical terms, (See People vs. Ramos, 122 SCRA
312; People vs. Caguioa, 95 SCRA 2). In other words, the right of a person under interrogation "to be
informed" implies a correlative obligation on the part of the police investigator to explain, and
contemplates an effective communication that results in understanding what is conveyed. Short of this,
there is a denial of the right, as it cannot truly be said that the person has been "informed" of his rights.
(People vs. Nicandro, 141 SCRA 289).
3. ID.; ID.; ID.; FAILURE TO COMPLY WITH CONSTITUTIONAL REQUIREMENTS, ENTITLES ACCUSED TO
ACQUITTAL. Going to the instant case, We find that the evidence for the prosecution failed to prove

compliance with these constitutional rights. Furthermore, the accused was not assisted by counsel and
his alleged waiver was made without the assistance of counsel. The record of the case is also replete
with evidence which was not satisfactorily rebutted by the prosecution, that the accused was maltreated
and tortured for seven (7) solid hours before he signed the prepared extra-judicial confession. All
considered, We hold that the guilt of the accused (petitioner) has not been established beyond
reasonable doubt.
DECISION

PARAS, J p:
The Decision of the Regional Trial Court, Branch CXLV (145) Makati, Metro Manila dated March 18, 1986
rendered jointly in its Criminal Case No. 10476 and Criminal Case No. 10477, is before Us on automatic
review. Therein, accused Ronilo Pinlac y Libao was charged in two (2) separate information, as follows:

once inside, took, robbed and carried away a Hitachi Cassette tape
recorder of undetermined value, belonging to the said SAEKI OSAMU,
to the damage and prejudice of the owner thereof, in the amount of
undetermined value.
"That on the occasion of the said Robbery, the above named accused,
RONILO PINLAC y LIBAO in order to insure the commission of the said
Robbery, with deliberate intent to kill and without justifiable cause, did,
then and there willfully, unlawfully and feloniously attack, assault and
stab one SAEKI OSAMU, several times with a kitchen knife he was then
provided with, thereby causing several mortal wounds on the person of
the said SAEKI OSAMU, which directly caused his death.
After said accused entered a plea of not guilty, the cases proceeded to trial. On March 18, 1986, the trial
court rendered its now assailed decision finding the accused guilty as charged with the dispositive
portion thereof reading as follows:
"WHEREFORE, premises considered, the Court hereby renders
judgment:

Re: Criminal Case No. 10476

"That on or about the 8th day of April, 1984, in the Municipality of
Makati, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above named accused RONILO PINLAC y LIBAO,
with intent to gain and by means of force and violence upon things, did,
then and there wilfully, unlawfully and feloniously enter the house of
KOJI SATO, by detaching the four (4) pieces of window jalousies and
destroying the aluminum screens of the servant's quarters and entered
through the same, an opening not intended for entrance or egress, and
once inside, took, robbed and carried away the following articles, to
wit:
Cash amount and/or cash money P 180.00
Alba (Seiko) wrist watch 300.00
Gold necklace with pendant
of undetermined value,
to the damage and prejudice of the owner KOJI SATO, in the aforesaid
total amount of P480.00 and a necklace of undetermined value."
Re: Criminal Case No. 10477
"That on or about the 8th day of April, 1984, in the Municipality of
Makati, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above named accused, RONILO PINLAC y LIBAO,
with intent to gain and by means of force and violence upon things, did,
then and there willfully, unlawfully and feloniously enter the house of
SAEKI OSAMU, by slashing the screen wall of his house and entered
through the same, an opening not intended for entrance or egress, and

1. In Criminal Case No. 10476 finding accused, Ronilo Pinlac y Libao,

guilty beyond reasonable doubt of the crime of robbery, and sentencing
him to suffer imprisonment of SIX (6) YEARS of prision correccional, as
minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as
maximum, and to pay the offended party, Koji Sato, in the amount of
Five Hundred Pesos (P500.00), Philippine Currency, without subsidiary
imprisonment in case of insolvency, and to pay the costs. He is credited
in the service of his sentence with the full time during which he has
undergone preventive imprisonment.
2. In Criminal Case No. 10477 finding accused, Ronilo Pinlac y Libao,
guilty beyond reasonable doubt of the crime of robbery with homicide,
and sentencing him to the supreme penalty of DEATH, and to pay the
heirs of the victim, Saeki Osamu, the sum of Thirty Thousand Pesos
(P30,000.00), Philippine Currency, and to pay the costs."
The facts of the case as summarized by the trial court in its decision are
"Long before April 1984, two Japanese nationals were neighbors in San
Lorenzo Village, Makati, Metro Manila.
Mr. Koji Sato, 27 years old, married and a mechanical engineer by
profession rented a house at No. 32 Arguilla Street in the said plush
subdivision. He was living alone in said house, although he had a
housemaid by the name of Irene Jandayan, who started working for
him in 1981, and a cook by the name of Delia Marcelino. The latter was
employed for almost a year; she went on maternity leave three days
before the end of February 1984, since she was due to deliver a child
with her husband, Pinlac, who had frequently visited her in Sato's place.
A low concrete fence separated the house rented by Sato from that
rented by Mr. Saeki Osamu, 35 years old, whose house is No. 34 in the

same street. The latter, whose wife, Hiroko Saeki, was in the same
address but who returned to Japan sometime after his untimely demise,
was a staff member of the Japan International Cooperation Agency in
the Philippines.
April 7, 1984, fell on a Saturday. The following day was Jandayan's dayoff. According to arrangement she was allowed to begin her day-off in
the evening of Saturday.
At around five o'clock in the afternoon of April 7th Sato went out of his
house. At around 6:45 following, Jandayan also left the house in order
to go home to Novaliches, Quezon City. But before leaving the house
Jandayan saw to it that the windows and doors were securely closed
and locked. It was only in the morning of the following Monday that
Jandayan returned to her employer's residence.
Returning home at around 11:30 in the evening of the same day, Sato
noticed that the front door was already unlocked. Upon returning to his
room upstairs he discovered that his Walkman transistor which was
placed beside his bed was already missing. He searched for it upstairs,
downstairs and around the house. It was only after entering Jandayan's
room that he found his transistor together with his two wrist watches
(he was then wearing one), cigarette lighter and eyeglass case. Another
watch, an Alba Seiko, which he bought in Japan for 7,000 yen (the
approximate equivalent of P300.00), a gold necklace which had
sentimental value because given to him as a gift, and cash money
amounting to P180.00, were all missing. They were never recovered.
Sato thereafter went to the Makati Police Station to report the robbery.
He requested some policemen to repair to his residence to investigate.
It was when the police investigators had already reached his residence
that he learned about the death of Osamu.
On April 8, 1984, police detective Renato Mallari, together with
detectives Evelio Bactad, Alex Samson, Isagani Viclar and police
sergeant Vicente Flores, acting upon a report, went to the Makati
Medical Center where Osamu was rushed to. Learning that Osamu died
upon arrival in the hospital, they proceeded to No. 34 Arguilla Street.
Thereat Viclar took photographs from different angles of the scene of
the crime. The death weapon, the kitchen knife marked Exhibit "Q" was
recovered from the living room of the house. This was later turned over
to the PC crime laboratory for chemical examination. Blood was
scattered in the living room. The telephone cord in the living room was
cut off. Going around the house the investigators saw the slashed
screen wall near the back door. Several footprints were found in the
backyard; these correspond to the impressions of the soles of Pinlac's
shoes (Exhibit R). Osamu's maid, Evelyn Salomea, was investigated. She
revealed that she saw Pinlac enter the house of Sato at seven o'clock in
the evening, although she did not see him leave thereafter; and that
Jandayan has knowledge of the address of Marcelino. Her two
statements were introduced in evidence as Exhibits "Z" and "AA".
Subsequently, the policemen went to Marcelino's residence in Taguig,

Metro Manila and, finding Pinlac thereat, invited him to the police
station. Detective Samson (who also took the witness stand) opined
that the killer made his entry by removing the panels of jalousies at the
rear of the house and that fingerprints were lifted from the victim's
house. Policemen Mallari submitted his final report Exhibit "X",
regarding this incident.

Upon returning to her room at seven o'clock in the morning of April 9,

1984, Jandayan saw that almost one-half of the jalousies were
detached and that her room was dirty. In the afternoon of the same day
(4:35 P.M.) she gave her sworn statement marked Exhibit "B". She told
the investigator that in the morning of April 6 she was called by Pinlac
thru the telephone to inform that she had a letter from his wife. That
she had to go to the guardhouse to get the letter from him since he was
not allowed to enter the subdivision; that at eight o'clock in the
afternoon of the same day Pinlac again called her to inquire about her
reply; that she again went to the guardhouse to deliver to Pinlac her
reply letter to Marcelino and the sum of Fifty Pesos which she owed her.
At around 8:30 o'clock in the evening of April 9th, Sgt. Flores extracted
the extra-judicial confession of Pinlac (Exhibit "F", "F-1" and "F-2")." (pp.
65-67, Rollo)
The foregoing findings of fact are vigorously denied by the accused. His version of the incident is that
"From 9:00 P.M., on April 7, 1984 up to 11:00 P.M., the accused has
never left the premises of his house; this fact was corroborated by
defense witness Barcelino Heramis who noticed accused's presence in
the premises as he and his children were then practicing their musical
instrument that evening.
At about 2:00 P.M., April 9, 1986, three (3) Policemen, came to his
house in Taguig and arrested the accused for robbing Mr. Sato and for
killing Mr. Osamu, without any Warrant of Arrest shown to him despite
his demand. Before he was brought first to the houses of Mr. Sato and
Mr. Osamu, walked him around and showed him the destroyed
window; and thereafter brought him inside the house. In short, he was
ordered to reenact according to what the police theorized how the
crime was committed. It was at this moment that the prints of the sole
of accused's shoes were all over the premises of Osamu and Sato's
houses.
During the investigation at the Police Headquarters in Makati, Metro
Manila, he was tortured and forced to admit the crimes charged; and as
a result of that unbearable physical torture, his lips and mouth suffered
cuts and cracks to bleed furiously; and that blood dripped into his
clothings down to his shoes, thus explains why there are blood stains in
his shoes. Before and during the arrest, the police officers have never
mentioned about the stain of blood in accused's shoes which they could
have easily detected during the arrest. They got his shoes only after it

were stained with blood oozing from accused's lips and mouth as a
result of the injuries he sustained from the torturers.
It was on that evening of April 9, 1986 at about 9:00 o'clock, when
accused could no longer bear the torture starting from 2:00 P.M. for
seven (7) solid hours when he ultimately succumbed to the wishes of
his torturers and finally signed a prepared confession which he was not
even allowed to read, nor explained to him. The police investigators did
not even wait in the following morning for the accused to sign the same
considering that said confession was subscribed only on the following
day April 10, 1986 by a certain Assistant Fiscal."(pp. 53-54, Rollo)

silent and to counsel, it must be presumed to contemplate the transmission of a meaningful information
rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a
rule, therefore, it would not be sufficient for a police officer just to repeat to the person under
investigation the provisions of the Constitution. He is not only duty-bound to tell the person the rights to
which the latter is entitled; he must also explain their effects in practical terms, (See People vs. Ramos,
122 SCRA 312; People vs. Caguioa, 95 SCRA 2). In other words, the right of a person under interrogation
"to be informed" implies a correlative obligation on the part of the police investigator to explain, and
contemplates an effective communication that results in understanding what is conveyed. Short of this,
there is a denial of the right, as it cannot truly be said that the person has been "informed" of his rights.
(People vs. Nicandro, 141 SCRA 289).
"The Fiscal has the duty to adduce evidence that there was compliance
with the duties of an interrogating officer As it is the obligation of
the investigating officer to inform a person under investigation of his
right to remain silent and to counsel, so it is the duty of the prosecution
to affirmatively establish compliance by the investigating officer with
his said obligation. Absent such affirmative showing, the admission or
confession made by a person under investigation cannot be admitted in
evidence.

In assailing his conviction, the accused (now petitioner) contends that the trial court erred in admitting in
evidence his extra-judicial confession, which was allegedly obtained thru force, torture, violence and
intimidation, without having been apprised of his constitutional rights and without the assistance of
counsel.
Numerous factors combine to make the appeal meritorious. The prosecution evidence leaves much to be
desired. No direct evidence or testimony of any eyewitness was presented identifying the accused as the
perpetrator of the crime charged. The only evidence furnished by the police authorities were merely
circumstantial evidence regarding the fingerprints of the accused found in the window stabs of the
maid's quarters and in the kitchen cabinet in the house of Mr. Sato. But this was satisfactorily explained
by the accused to the effect that aside from being a frequent visitor in the house of Mr. Sato where his
wife works as a cook wherein at those times he could have unknowingly left his fingerprints, but most
especially during the time when he was arrested and ordered to reenact. In the process he held some of
these window slabs, walls, furniture, etc., in accordance with the order of the arresting officer. The only
evidence presented by the prosecution which could have been fatal, is the extra-judicial confession of
the accused, which is now being assailed as violative of the Constitution.
In the case of People vs. Galit, G.R. No. L-51770, promulgated on March 20, 1985, which cited the case of
Morales vs. Ponce Enrile, 121 SCRA 538, this Court reiterated the correct procedure for peace officers to
follow when making arrest and in conducting a custodial investigation. Therein, We said
"7. 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, . . . He shall be informed of his constitutional
rights to remain silent and to counsel and that any statement he might
make could be used against him. The person arrested shall have the
right to communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means by telephone if possible or by letter
or messenger. It shall be the responsibility of the arresting officer to see
to it that this is accomplished. No custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the court
upon petition either of the detainee himself or by anyone in his behalf.
The right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel. Any statement obtained in
violation of the procedure herein laid down, whether exculpatory or
inculpatory in whole or in part shall be inadmissible in evidence." (pp.
19-20, 139 SCRA).
When the Constitution requires a person under investigation "to be informed" of his right to remain

Thus, in People vs. Ramos, supra, the Court ruled that the verbal
admission of the accused during custodial investigation was
inadmissible, although he had been apprised of his constitutional rights
to silence and to counsel, for the reason that the prosecution failed to
show that those rights were explained to him, such that it could not be
said that "the appraisal was sufficiently manifested and intelligently
understood" by the accused." (People vs. Nicandro supra)
Going to the instant case, We find that the evidence for the prosecution failed to prove compliance with
these constitutional rights. Furthermore, the accused was not assisted by counsel and his alleged waiver
was made without the assistance of counsel. The record of the case is also replete with evidence which
was not satisfactorily rebutted by the prosecution, that the accused was maltreated and tortured for
seven (7) solid hours before he signed the prepared extra-judicial confession.
On June 23, 1987, the Solicitor General filed a Manifestation and Motion in lieu of brief, praying that the
judgment of conviction be reversed and the accused be acquitted of the crime charged.
All considered, We hold that the guilt of the accused (petitioner) has not been established beyond
reasonable doubt.
WHEREFORE, the appealed Decision is REVERSED and SET ASIDE, and the petitioner is hereby ACQUITTED.
SO ORDERED.
||| (People v. Pinlac y Libao, G.R. Nos. 74123-24, September 26, 1988)
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMON BOLANOS,
accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF PERSON UNDER CUSTODIAL INVESTIGATION; RULE.
Being already under custodial investigation while on board the police patrol jeep on the way to the
Police Station where formal investigation may have been conducted, appellant should have been
informed of his Constitutional rights under Article III, Section 12 of the 1987 Constitution which explicitly
provides: "(1) Any person under investigation for the commission of an offense shall have the right to
remain silent and to have competent and independent preferably of his own choice. If the person cannot
afford the service of counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel. "(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited. "(3) Any confession or admission
obtained in violation of this or the preceding section shall be inadmissible in evidence against him. "(4)
The law shall provide for penal and civil sanctions for violation of this section as well as compensation
and rehabilitation of victims of torture or similar practices and their families."
DECISION

on an improvised bed full of blood with stab wounds. They then inquired about the circumstances of the
incident and were informed that the deceased was with two (2) companions, on the previous night, one
of whom was the accused who had a drinking spree with the deceased and another companion (Claudio
Magtibay) till the wee hours of the following morning, June 23, 1990. (Ibid., p. 3) prLL
The corroborating testimony of Patrolmen Francisco Dayao, further indicated that when they
apprehended the accused-appellant, they found the firearm of the deceased on the chair where the
accused was allegedly seated; that they boarded Ramon Bolanos and Claudio Magtibay on the police
vehicle and brought them to the police station. In the vehicle where the suspect was riding, "Ramon
Bolanos accordingly admitted that he killed the deceased Oscar Pagdalian because he was abusive."
(Ibid., p. 4)
During the trial, it was clearly established that the alleged oral admission of the appellant was given
without the assistance of counsel as it was made while on board the police vehicle on their way to the
police station. The specific portion of the decision of the court a quo reads as follows:
". . . the police boarded the two, the accused Ramon Bolanos and
Claudio Magtibay in their jeep and proceeded to the police station of
Balagtas, Bulacan to be investigated, on the way the accused told the
police, after he was asked by the police if he killed the victim, that he
killed the victim because the victim was abusive; this statement of the
accused was considered admissible in evidence against him by the
Court because it was given freely and before the investigation.
"The foregoing circumstances clearly lead to a fair and reasonable
conclusion that the accused Ramon Bolanos is guilty of having killed the
victim Oscar Pagdalian." (Judgment, p. 6)

PARAS, J p:
This is a review of the decision of the Regional Trial Court of Malolos, Bulacan, Branch 14, under Criminal
Case No. 1831-M-90, for "Murder", wherein the accused-appellant, Ramon Bolanos was convicted, as
follows:
"WHEREFORE, judgment is rendered finding the accused guilty beyond
reasonable doubt of the Crime of Murder and the Court hereby
imposed upon the accused Ramon Bolanos the penalty of Reclusion
Perpetua (life imprisonment) and to pay the heirs of the victim
P50,000.00. With Costs.
"SO ORDERED." (Judgment, p. 6)
The antecedent facts and circumstances, follow:
The evidence for the prosecution consisted of the testimonies of Patrolmen Marcelo J. Fidelino and
Francisco Dayao of the Integrated National Police (INP), Balagtas, Bulacan, Calixto Guinsaya, and Dr.
Benito Caballero, Medico-Legal Officer of Bocaue, Bulacan and documentary exhibits. The testimonial
evidence were after the fat narration of events based on the report regarding the death of the victim,
Oscar Pagdalian which was communicated to the Police Station where the two (2) policemen who
responded to the incident are assigned and subsequently became witnesses for the prosecution.
(Appellant's Brief, p. 2)
Patrolmen Rolando Alcantara and Francisco Dayao testified that they proceeded to the scene of the
crime of Marble Supply, Balagtas, Bulacan and upon arrival they saw the deceased Oscar Pagdalian lying

A Manifestation (in lieu of Appellee's Brief), was filed by the Solicitor General's Office, dated April 2, 1992,
with the position that the lower court erred in admitting in evidence the extra-judicial confession of
appellant while on board the police patrol jeep. Said office even postulated that: "(A)ssuming that it was
given, it was done in violation of appellant's Constitutional right to be informed, to remain silent and to
have a counsel of his choice, while already under police custody." (Manifestation, p. 4)
Being already under custodial investigation while on board the police patrol jeep on the way to the Police
Station where formal investigation may have been conducted, appellant should have been informed of
his Constitutional rights under Article III, Section 12 of the 1987 Constitution which explicitly provides:
"(1) Any person under investigation for the commission of an offense
shall have the right to remain silent and to have competent and
independent preferably of his own choice. If the person cannot afford
the service of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
cdphil
"(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.
"(3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible in evidence against him.

"(4) The law shall provide for penal and civil sanctions for violation of
this section as well as compensation and rehabilitation of victims of
torture or similar practices and their families." (Emphasis supplied)
Considering the clear requirements of the Constitution with respect to the manner by which confession
can be admissible in evidence, and the glaring fact that the alleged confession obtained while on board
the police vehicle was the only reason for the conviction, besides appellant's conviction was not proved
beyond reasonable doubt, this Court has no recourse but to reverse the subject judgment under review.
WHEREFORE, finding that the Constitutional rights of the accused-appellant have been violated, the
appellant is ACQUITTED, with costs de oficio.
SO ORDERED.
||| (People v. Bolanos, G.R. No. 101808, July 03, 1992)
ERNESTO NAVALLO, petitioner, vs. HONORABLE SANDIGANBAYAN
(SECOND DIVISION) and PEOPLE OF THE PHILIPPINES, respondents.

SYLLABUS

1. REMEDIAL LAW; SANDIGANBAYAN; ARRAIGNMENT OF ACCUSED AT THE REGIONAL TRIAL COURT

DOES NOT DEPRIVE THE SANDIGANBAYAN OF ITS JURISDICTION TO TRY THE CASE; CASE AT BAR.
Presidential Decree No. 1606 is explicit and clear. Sections 4 and 8 of the law provide that a case falling
under the jurisdiction of the Sandiganbayan shall be transferred to it so long as the accused has not as
yet been properly arraigned elsewhere on the date of effectivity of the law, i.e., on 10 December 1978.
The accused is charged with having violated paragraph 4, Article 217, of the Revised Penal Code, an
offense which falls under Title VII of the Revised Penal Code and, without question, triable by the
Sandiganbayan. Navallo's arraignment before the Regional Trial Court on 18 July 1985 is several years
after Presidential Decree No. 1606, consigning that jurisdiction to the Sandiganbayan, had become
effective.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; REQUISITES. Double jeopardy requires
the existence of the following requisites: (1) The previous complaint or information or other formal
charge is sufficient in form and substance to sustain a conviction: (2) The court has jurisdiction to try the
case; (3) The accused has been arraigned and has pleaded to the charge; and (4) The accused is convicted
or acquitted or the case is dismissed without his express consent. When all the above elements are
present, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or
(c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily
included in, the first offense charged, can rightly be barred.
3. ID.; ID.;. ID.; CASE AT BAR. In the case at bench, the RTC was devoid of jurisdiction when it
conducted an arraignment of the accused which by then had already been conferred on the
Sandiganbayan. Moreover, neither did the case there terminate with conviction or acquittal nor was it
dismissed.
4. ID.; ID.; RIGHTS OF THE ACCUSED DURING CUSTODIAL INVESTIGATION; RIGHT NOT AVAILABLE WHERE
ONE IS UNDER NORMAL AUDIT EXAMINATION. Accused-petitioner claims to have been deprived of his

constitutional rights under Section 12, Article III, of the 1987 Constitution. Well-settled is the rule that
such rights are invocable only when the accused is under "custodial investigation," or is "in custody
investigation," which we have since defined as any "questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way." A person under a normal audit examination is not under custodial investigation. An
audit examiner himself can hardly be deemed to be the law enforcement officer contemplated in the
above rule. In any case, the allegation of his having been "pressured" to sign the Examination Report
prepared by Dulguime appears to be belied by his own testimony.
5. CRIMINAL LAW; MALVERSATION; PRESUMED WHERE PUBLIC OFFICER FAILED TO ACCOUNT PUBLIC
FUNDS OR PROPERTY WHICH HE IS CHARGED WITH. Accused-petitioner challenges the sufficiency of
evidence against him. Suffice it to say that the law he contravened itself creates a presumption of
evidence. Article 217 of the Revised Penal Code states that "(t)he failure of a public officer to have dully
forthcoming any public funds or property with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such missing funds or property to
personal use." An accountable officer, therefore, may be convicted of malversation even in the absence
of direct proof of misappropriation as long as there is evidence of shortage in his accounts which he is
unable to explain.
6. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACTS OF THE TRIAL COURT, GENERALLY UPHELD ON
APPEAL. Findings of facts made by a trial court are accorded the highest degree of respect by an
appellate tribunal and, absent a clear disregard of the evidence before it that can otherwise affect the
results of the case, those findings should not be ignored. We see nothing on record in this case that can
justify a deviation from the rule.
DECISION

VITUG, J p:
On 11 May 1978, an information charging petitioner with having violated Article 217, paragraph 4, of the
Revised Penal Code, was filed with the then Court of First Instance ("CFI") of Surigao del Norte (docketed
Criminal Case No. 299). It read:
"That on or before January 27, 1978 in the municipality of del Carmen,
Province of Surigao del Norte and within the jurisdiction of this
Honorable Court, accused who is the Collecting and Disbursing Officer
of the Numancia National Vocational School, which school is also
located at del Carmen, Surigao del Norte and while a Collecting and
Disbursing Officer of the aforestated school therefore was holding in
trust moneys and/or properties of the government of the Republic of
the Philippines and holding in trust public funds with all freedom,
intelligence, criminal intent and intent of gain, did then and there
voluntarily, unlawfully, feloniously and without lawful authority
appropriate and misappropriate to his own private benefit, public funds
he was holding in trust for the Government of the Philippines in the
total sum of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS
and SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency, which
total sum accused failed to account during an audit and failed as well to

restitute despite demands by the office of the Provincial Auditor, to the

damage and prejudice of the Government equal to the amount
misappropriated.
"Act contrary to par. 4 of Article 217, of the Revised Penal Code with a
penalty of Reclusion Temporal, minimum and medium periods and in
addition to penalty of perpetual special disqualification and fine as
provided in the same Article." 1
A warrant of arrest was issue, followed by two alias warrants of arrest, but accused-petitioner Ernesto
Navallo still then could not be found.
Meanwhile, on 10 December 1978, Presidential Decree No. 1606 took effect creating the Sandiganbayan
and conferring on it original and exclusive jurisdiction over crimes committed by public officers
embraced in Title VII of the Revised Penal Code.
On 15 November 1984, Navallo was finally arrested. He was, however, later released on provisional
liberty upon the approval of his property bail bond. When arraigned by the Regional Trial Court ("RTC")
on 18 July 1985, he pleaded not guilty. On 22 May 1986, upon motion of the prosecution, the RTC
transferred the case and transmitted its records to the Sandiganbayan. On 27 January 1989, Special
Prosecutor Luz L. Quinones-Marcos opined that since Navallo had already been arraigned before the
case was transferred to the Sandiganbayan, the RTC should continue taking cognizance of the case. The
matter was referred to the Office of the Ombudsman which held otherwise. The information was
docketed (Criminal Case No. 13696) with the Sandiganbayan. A new order for Navallo's arrest was issued
by the Sandiganbayan. The warrant was returned with a certification by the RTC Clerk of Court that the
accused had posted a bail bond. The bond, having been later found to be defective, on 30 August 1989, a
new bond was approved and transmitted to the Sandiganbayan. prcd
Navallo filed a motion to quash, contending (1) that the Sandiganbayan had no jurisdiction over the
offense and the person of the accused and (2) that since the accused had already been arraigned by the
RTC, the attempt to prosecute him before the Sandiganbayan would constitute double jeopardy. On 15
September 1989, the Sandiganbayan issued a resolution denying Navallo's motion. On 20 October 1989,
Navallo was arraigned; he pleaded, "not guilty," to the charge. Trial ensued.
Evidence for the Prosecution:
On 27 January 1978, the Provincial Auditor of Surigao del Norte, Antonio Espino, made a preliminary
audit examination of cash and other accounts of Ernesto Navallo (then Collecting and Disbursing Officer
of Numancia National Vocational School). Espino found Navallo to be short of P16,483.62. The auditor,
however, was then merely able to prepare a cash count sheet since he still had to proceed to other
municipalities. Before departing, Espino sealed the vault of Navallo.
On 30 January 1978, Leopoldo a. Dulguime was directed by Espino to complete the preliminary
examination and to conduct a final audit. Dulguime broke the seal, opened the vault, and made a new
cash count. Dulguime next examined the cashbook of Navallo. Dulguime did not examine the official
receipts reflected in the cashbook, said receipts having been previously turned over to the Office of the
Provincial Auditor. After the audit, he had the cashbook likewise deposited with the same office. The
audit covered the period from July 1976 to January 1978 on the basis of postings and record of
collections certified to by Navallo. Dulguime made a Report of Examination and wrote Navallo a letter
demanding the restitution of the missing amount. The latter neither complied nor offered any
explanation for the shortage. The official receipts and cashbook, together with some other records, were
subsequently lost or damaged on account of a typhoon that visited the province.

Evidence for the Defense:

The accused, Navallo, testified that in 1970, he was a Clerk I in the Numancia National Vocational School.
In 1976, he was appointed Collecting and Disbursing Officer of the school. His duties included the
collection of tuition fees, preparation of vouchers for salaries of teachers and employees, and remittance
of collections exceeding P500.00 to the National Treasury. Even while he had not yet received his
appointment papers, he, together with, and upon the instructions of, Cesar Macasemo (the Principal and
Navallo's predecessor as Collecting and Disbursing Officer of the school), was himself already doing
entries in the cashbook. Navallo and Macasemo thus both used the vault. Navallo said that he stated the
job of a disbursement officer in June 1977, and began to discharge in full the duties of his new position
(Collection and Disbursement Officer) only in 1978. There was no formal turn over of accountability from
Macasemo to Navallo.

Gainsaying the prosecution's evidence, Navallo continued that the charge against him was motivated by
a personal grudge on the part of Espino. On 25 January 1978, he said, he was summoned to appear at
the Numancia National Vocational School where he saw Espino and Macasemo. The safe used by him
and by Macasemo was already open when he arrived, and the cash which was taken out from the safe
was placed on top of a table. He did not see the actual counting of the money and no actual audit of his
accountability was made by Espino. Navallo signed the cash count only because he was pressured by
Macasemo who assured him that he (Macasemo) would settle everything. The collections in 1976,
reflected in the Statement of Accountability, were not his, he declared, but those of Macasemo who had
unliquidated cash advances. prLL
Navallo admitted having received the demand letter but he did not reply because he was already in
Manila looking for another employment. He was in Manila when the case was filed against him. He did
not exert any effort to have Macasemo appear in the preliminary investigation, relying instead of
Macasemo's assurance that he would settle the matter. He, however, verbally informed the investigating
fiscal that the shortage represented the unliquidated cash advance of Macasemo.
The Appealed Decision:
On 08 November 1990, after evaluation the evidence, the Sandiganbayan reached a decision, and it
rendered judgment, thus:
"WHEREFORE, the Court finds the accused ERNESTO NAVALLO y GALON
GUILTY beyond reasonable doubt as principal of the crime of
malversation of public funds defined and penalized under Article 217,
paragraph 4, of the Revised Penal Code.
"Accordingly and there being no modifying circumstances nor reason
negating the application of the Indeterminate Sentence Law, as
amended, the Court imposes upon the accused the indeterminate
sentence ranging from TEN (10) YEARS and ONE (1) DAY of prision
mayor as minimum to SIXTEEN (160 YEARS, FIVE (5) MONTHS and
ELEVEN (11) DAYS of reclusion temporal as maximum; the penalty of
perpetual special disqualification, and a fine in the amount of SIXTEEN
THOUSAND FOUR HUNDRED EIGHTY THREE PESOS AND SIXTY-TWO
CENTAVOS (P16,483.62), Philippine Currency.
"The Court further orders the accused to restitute the amount

malversed to the Government.

effectivity of the law, i.e., on 10 December 1978. The accused is charged with having violated paragraph
4, Article 217, of the Revised Penal Code

"SO ORDERED." 2
Accused-petitioner's motion for reconsideration was denied by the Sandiganbayan in its resolution of 05
February 1991.
Hence, the instant petition.
Four issues are raised in this appeal
1. Whether or not the Sandiganbayan acquired jurisdiction to try and decide the offense filed against
petitioner in spite of the fact that long before the law creating the Sandiganbayan took effect, an
Information had already been filed with the then Court of First Instance of Surigao del Norte.
2. Whether or not double jeopardy set in when petitioner was arraigned by the Regional Trial Court on
July 18, 1985.
3. Whether or not petitioner was under custodial investigation when he signed the certification prepared
by State Auditing Examiner Leopoldo Dulguime.
4. Whether or not the guilt of petitioner has been established by the prosecution beyond reasonable
doubt as to warrant his conviction for the offense imputed against him. Cdpr
We see no merit in the petition.
On 10 December 1978, Presidential Decree No. 1606 took effect providing, among other things, thusly:
"SECTION 4. Jurisdiction. The Sandiganbayan shall have jurisdiction
over:
"(a) Violations of Republic Act No. 3019, as amended, otherwise known
as the Anti-Graft and Corrupt Practices Act, and Republic Act No. 1379;
"(b) Crimes committed by public officers and employees, including
those employed in government-owned or controlled corporations,
embraced in Title VII of the Revised Penal Code, whether simple or
complexed with other crimes; and
"(c) Other crimes or offenses committed by public offices or employees,
including those employed in government-owned or controlled
corporations, in relation to their office."
"xxx xxx xxx
"SECTION 8. Transfer of cases. As of the date of the effectivity of this
decree, any case cognizable by the Sandiganbayan within its exclusive
jurisdiction where none of the accused has been arraigned shall be
transferred to the Sandiganbayan."
The law is explicit and clear. A case falling under the jurisdiction of the Sandiganbayan shall be
transferred to it so long as the accused has not as yet been properly arraigned elsewhere on the date of

"ARTICLE 217. Malversation of public funds or property. Presumption

of Malversation. Any public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property, shall
suffer:
"xxx xxx xxx
"4. The penalty of reclusion temporal in its medium and maximum
periods, if the amount involved is more than twelve thousand pesos but
is less than twenty-two thousand pesos. If the amount exceeds the
latter, the penalty shall be reclusion temporal in its maximum period to
reclusion perpetua."
an offense which falls under Title VII of the Revised Penal Code and, without question, triable by
the Sandiganbayan. Navallo's arraignment before the RTC on 18 July 1985 is several years after
Presidential Decree No. 1606, consigning that jurisdiction to the Sandiganbayan, had become
effective.
Accused-petitioner, invoking Section 7, Rule 117, of the Revised Rules of Court, pleads double jeopardy.
We cannot agree. Double jeopardy requires the existence of the following requisites:
(1) The previous complaint or information or other formal charge is
sufficient in form and substance to sustain a conviction;
(2) The court has jurisdiction to try the case;
(3) The accused has been arraigned and has pleaded to the charge; and
(4) The accused is convicted or acquitted or the case is dismissed
without his express consent.
When all the above elements are present, a second prosecution for (a) the same offense, or (b)
an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense
which necessarily includes, or is necessarily included in, the first offense charged, can rightly be
barred.
In the case at bench, the RTC was devoid of jurisdiction when it conducted an arraignment of the
accused which by then had already been conferred on the Sandiganbayan. Moreover, neither did the
case there terminate with conviction or acquittal nor was it dismissed.
Accused-petitioner claims to have been deprived of his constitutional rights under Section 12, Article III,
of the 1987 Constitution. 3 Well-settled is the rule that such rights are invocable only when the accused
is under "custodial investigation," or is "in custody investigation," 4 which we have since defined as any
"questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way." 5 A person under a normal audit

examination is not under custodial investigation. An audit examiner himself can hardly be deemed to be
the law enforcement officer contemplated in the above rule. In any case, the allegation of his having
been "pressured" to sign the Examination Report prepared by Dulguime appears to be belied by his own
testimony. To quote:

Macasemo as to how he (Navallo) could be relieved of his responsibility

for the missing amount when he was promised by Macasemo that
everything would be all right. When Navallo was already in Manila, he
did not also even write Macasemo about the shortage.

"Q. How were you pressured?

"A. Mr. Macasemo told me to sign the report because he will be the
one to settle everything.

"As to the collections made in 1976 which Navallo denied having made,
the evidence of the prosecution shows that he assumed the office of
Collecting and Disbursing Officer in July 1976 and the cashbook which
was examined during the audit contained entries from July 1976 to
January 1978, which he certified to. Navallo confirmed that indeed he
was appointed Collecting and Disbursing Officer in 1976.

"xxx xxx xxx

"Q. Why did you allow yourself to be pressured when you will be the
one ultimately to suffer?

"Finally, the pretense that the missing amount was the unliquidated
cash advance of Macasemo and that Navallo did not collect tuition fees
in 1976 was advanced for the first time during the trial, that is, 12 long
solid years after the audit on January 30, 1978. Nothing was said about
it at the time of the audit and immediately thereafter."

"A. Because he told me that everything will be all right and that he will
be the one to talk with the auditor.
"Q. Did he tell you exactly what you will do with the auditor to be
relieved of responsibility?
"A. No, your honor.
"Q. Why did you not ask him?
"A. I was ashamed to ask him, your Honor, because he was my
superior." 6
Navallo may have been persuaded, but certainly not pressured, to sign the auditor's report. Furthermore,
Navallo again contradicted himself when, in his very petition to this Court, he stated:
"Bearing in mind the high respect of the accused with his superior
officer and taking favors that his superior officer has extended him in
recommending him the position he held even if he was not an
accountant, he readily agreed to sign the auditor's report even if he was
not given the opportunity to explain the alleged shortage." 7
Finally, accused-petitioner challenges the sufficiency of evidence against him. Suffice it to say that the
law he contravened itself creates a presumption of evidence. Article 217 of the Revised Penal Code
states that "(t)he failure of a public officer to have dully forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that
he has put such missing funds or property to personal use." An accountable officer, therefore, may be
convicted of malversation even in the absence of direct proof of misappropriation as long as there is
evidence of shortage in his accounts which he is unable to explain. 8 Not least insignificant is the
evaluation of the evidence of the Sandiganbayan itself which has found thusly:
"The claim that the amount of the shortage represented the
unliquidated cash advance of Macasemo does not inspire belief. No
details whatsoever were given by the accused on the matter such as,
for instance, when and for what purpose was the alleged cash advance
granted, what step or steps were taken by Navallo or Macasemo to
liquidate it. In fact, Navallo admitted that he did not even ask

Findings of fact made by a trial court are accorded the highest degree of respect by an appellate
tribunal and, absent a clear disregard of the evidence before it that can otherwise affect the
results of the case, those findings should not be ignored. We see nothing on record in this case
that can justify a deviation from the rule. Cdpr
WHEREFORE, the petition is DISMISSED and the decision of respondent Sandiganbayan is AFFIRMED in
toto.
SO ORDERED.
||| (Navallo v. Sandiganbayan, G.R. No. 97214, July 18, 1994)
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNEL ALICANDO Y
BRIONES, accused-appellant.

The Solicitor General for plaintiff-appellee.

Jose B. Tiongco for accused-appellant.
SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARRAIGNMENT AND PLEA; REQUIREMENT THAT THE
COMPLAINT OR INFORMATION MUST BE READ IN THE LANGUAGE OR DIALECT KNOWN TO THE
ACCUSED; NOT COMPLIED WITH IN CASE AT BAR. The arraignment of the appellant is null and void.
The trial judge failed to follow Section (1)(a) of Rule 116 on arraignment. The reading of the complaint or
information to the appellant in the language or dialect known to him is a new requirement imposed by
the 1985 Rules on Criminal Procedure. It implements the constitutional right of an appellant ". . . to be
informed of the nature and cause of the accusation against him." The new rule also responds to the

reality that the Philippines is a country divided by dialects and Pilipino as a national language is still in the
process of evolution. Judicial notice can be taken of the fact that many Filipinos have limited
understanding either of the Pilipino or English language, our official languages for purposes of
communication and instruction. The importance of reading the complaint or information to the appellant
in the language or dialect known to him cannot thus be understated. In the case at bar, the records do
not reveal that the Information against the appellant was read in the language or dialect known to him.
The Information against the appellant is written in the English language. It is unbeknown whether the
appellant knows the English language. Neither is it known what dialect is understood by the appellant.
Nor is there any showing that the Information as couched in English was translated to the appellant in his
own dialect before his plea of guilt. One need not draw a picture to show that the arraignment of the
appellant is a nullity. It violated Section 1(a) of Rule 116, the rule implementing the constitutional right of
the appellant to be informed of the nature and cause of the accusation against him. It also denied
appellant his constitutional right to due process of law. It is urged that we must presume that the
arraignment of the appellant was regularly conducted. When life is at stake, we cannot lean on this
rebuttable presumption. We cannot assume. We must be sure.
2. ID.; ID.; ID.; PLEA OF GUILTY TO CAPITAL OFFENSE; NULL AND VOID WHERE THE SEARCHING INQUIRY
CONDUCTED BY THE COURT IS PROCEDURALLY INADEQUATE. The plea of guilt made by the appellant
is likewise null and void. The trial court violated Section 3 of Rule 116 when it accepted the plea of guilt
of the appellant. Said section provides: "Sec. 3. Plea of guilty to capital offense; reception of evidence.
When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of his plea and require the prosecution to
prove his guilt and the precise degree of culpability. The accused may also present evidence in his
behalf." The records reveal how the trial judge inadequately discharged this duty of conducting a
"searching inquiry." Section 3 of Rule 116 which the trial court violated is not a new rule for it merely
incorporated the decision of this Court in People vs. Apduhan, Jr., (24 SCRA 798 [1968]) and reiterated in
an unbroken line of cases. The bottom line of the rule is that the plea of guilt must be based on a free
and informed judgment. Thus, the searching inquiry of the trial court must be focused on: (1) the
voluntariness of the plea, and (2) the full comprehension of the consequences of the plea. The questions
of the trial court failed to show the voluntariness of the plea of guilt of the appellant nor did the
questions demonstrate appellant's full comprehension of the consequences of his plea. The records do
not reveal any information about the personality profile of the appellant which can serve as a
trustworthy index of his capacity to give a free and informed plea of guilt. The age, socio-economic status,
and educational background of the appellant were not plumbed by the trial court. The questions were
framed in English yet there is no inkling that appellant has a nodding acquaintance of English. It will be
noted too that the trial court did not bother to explain to the appellant the essential elements of the
crime of rape with homicide. A cursory examination of the questions of the trial court to establish the
voluntariness of appellant's plea of guilt will show their utter insufficiency. The trial court simply inquired
if appellant had physical marks of maltreatment. It did not ask the appellant when he was arrested, who
arrested him, how and where he was interrogated, whether he was medically examined before and after
his interrogation, etc. It limited its efforts trying to discover late body marks of maltreatment as if
involuntariness is caused by physical abuse alone. Regretfully, it even turned a blind eye on the following
damning entry on the June 13, 1994 Record of Events of the Iloilo PNP (Exh. "M") showing that after his
arrest, the appellant was mobbed by inmates while in jail and had suffered hematoma. Likewise, the trial
court's effort to determine whether appellant had full comprehension of the consequences of his plea is
fatally flawed. It warned the appellant he would get the mandatory death penalty without explaining the
meaning of "mandatory." It did not inform the appellant of the indemnity he has to pay for the death of
the victim It cautioned appellant there ". . . will be some effects on your civil rights" without telling the
appellant what those "effects" are and what "civil rights" of his are involved Appellant's plea of guilt is
void and the trial court erred in using it to sentence him to death. We stress that under the 1985 Rules of
Criminal Procedure, a conviction in capital offenses cannot rest alone on a plea of guilt. Section 3 of Rule
116 requires that after a free and intelligent plea of guilt, the trial court must require the prosecution to

prove the guilt of the appellant and the precise degree of his culpability beyond reasonable doubt. This
rule modifies jurisprudence that a plea of guilt even in capital offenses is sufficient to sustain a conviction
charged in the information without need of further proof. The change is salutary for it enhances one of
the goals of the criminal process which is to minimize erroneous conviction. We share the stance that "it
is a fundamental value determination of our system that it is far worse to convict an innocent person
than let a guilty man go free." ADHcTE
3. ID.; EVIDENCE; ADMISSIBILITY; VERBAL CONFESSION MADE DURING THE CUSTODIAL INTERROGATION
WITHOUT THE BENEFIT OF COUNSEL AND THE PHYSICAL EVIDENCE DERIVED THEREFROM, INADMISSIBLE.
Some prosecution evidence, offered independently of the plea of guilt of the appellant, were
inadmissible, yet, were considered by the trial court in convicting the appellant. The trial court gave full
faith and credit to the physical evidence presented by the prosecution. To quote its Decision, viz: ". . .
Further, there are physical evidence to prove Khazie was raped. These consists of a pillow with
bloodstains in its center and the T-shirt of the accused colored white with bloodstains on its bottom.
These physical evidence are evidence of the highest order. They strongly corroborate the testimony of
Luisa Rebada that the victim was raped." These are inadmissible evidence for they were gathered by PO3
Danilo Tan of the Iloilo City PNP as a result of custodial interrogation where appellant verbally confessed
to the crime without the benefit of counsel. It is now familiar learning that the Constitution has
stigmatized as inadmissible evidence uncounselled confession or admission. In the case at bar, PO3 Tan
did not even have the simple sense to reduce the all important confession of the appellant in writing.
Neither did he present any writing showing that appellant waived his right to silence and to have
competent and independent counsel. Despite the blatant violation of appellant's constitutional right, the
trial court allowed his uncounselled confession to flow into the records and illicitly used it in sentencing
him to death. It is not only the uncounselled confession that is condemned as inadmissible, but also
evidence derived therefrom. The pillow and the T-shirt with the alleged bloodstains were evidence
derived from the uncounselled confession illegally extracted by the police from the appellant. We have
not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the
libertarian exclusionary rule known as the " fruit of the poisonous tree," a phrase minted by Mr. Justice
Felix Frankfurter in the celebrated case of Nardone v. United States. According to this rule, once the
primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative
evidence (the "fruit") derived from it is also inadmissible Stated otherwise, illegally seized evidence is
obtained as a direct result of the illegal act, whereas the " fruit of the poisonous tree" is the indirect result
of the same illegal act. The " fruit of the poisonous tree" is at least once removed from the illegally seized
evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained
by the State should not be used to gain other evidence because the originally illegally obtained evidence
taints all evidence subsequently obtained.
4. ID.; ID.; ID.; ID.; BURDEN OF PROOF TO SHOW THAT ACCUSED VALIDLY WAIVED HIS RIGHT TO REMAIN
SILENT AND TO COUNSEL RESTS WITH THE PROSECUTION; CLEAR AND CONVINCING EVIDENCE
REQUIRED. The burden to prove that an accused waived his right to remain silent and the right to
counsel before making a confession under custodial interrogation rests with the prosecution. It is also the
burden of the prosecution to show that the evidence derived from confession is not tainted as "fruit of
the poisonous tree." The burden has to be discharged by clear and convincing evidence. Indeed, par. 1 of
Section 12 of Article III of the Constitution provides only one mode of waiver the waiver must be in
writing and in the presence of counsel. In the case at bar, the records show that the prosecution utterly
failed to discharge this burden. It matters not that in the course of the hearing, the appellant failed to
make a timely objection to the introduction of these constitutionally proscribed evidence. The lack of
objection did not satisfy the heavy burden of proof that rested on the prosecution.

5. ID.; COURTS; COMMITMENT TO THE CRIMINAL JUSTICE SYSTEM. Our commitment to the criminal

justice system is not only to convict and punish violators of our laws. We are equally committed to the
ideal that the process of detection, apprehension, conviction and incarceration of criminals should be
accomplished with fairness, and without impinging on the dignity of the individual. In a death penalty
case, the Court cannot rush to judgment even when a lowlife is involved for an erroneous conviction will
leave a lasting stain in our escutcheon of justice. ACSaHc

character of the questions propounded. Judges are not required to go into obsessive detail about the
psychological, educational and sociological background of the accused if from a reasonable inquiry
conducted through a reasonable number of questions he is fully convinced a searching inquiry has been
met. There is a world of difference between a fastidious attention to detail which furthers the end of
justice and an attention to detail and minutiae bordering on obsessiveness which ultimately obstructs
justice and defeats the purpose of the law. caIDSH

KAPUNAN, J., dissenting opinion:

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARRAIGNMENT AND PLEA; PROCEDURE COMPLIED WITH IN
CASE AT BAR. A thorough review of the record reveals that there was full compliance with existing
rules on arraignment and plea. It is plainly obvious from an examination of the appropriate rules and the
record of the case that: 1) there is absolutely nothing on the record which would warrant a finding the
information was not read in the language or dialect known to the appellant; 2) the rule on arraignment
and plea does not absolutely require that the same be indicated in the record of every criminal case; 3)
Rule 116, Section 1 contains nothing requiring trial courts to indicate in the record the fact that the
information was read in the language or dialect known to the defendant, even if the same was in fact
actually complied with by the lower court. When an accused is arraigned in connection with a criminal
charge, it is the duty of the court to inform him of its nature and cause so that he may be able to
comprehend the charges against him as well as the circumstances attendant thereto. When the charge is
of a serious nature, it becomes the imperative duty of the lawyer present not only to assist the accused
during the reading of the information but also to explain to him the gravity and consequence of his plea.
Trial judges are enjoined to refrain from accepting with alacrity the accused's plea of guilty. While justice
demands speedy administration, judges are duty-bound to be extra solicitous in seeing to it that when an
accused pleads guilty, he fully understands the meaning of his plea and the import of an inevitable
conviction. Consequently, three things need to be accomplished after the accused in a criminal case
enters a plea of guilty to a capital offense: (1) the court should conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of the accused's plea; (2) the lower court
should require the prosecution to prove the guilt of the accused and the precise degree of his culpability;
and (3) the court should inquire whether or not the accused wishes to present evidence on his behalf
and should allow him to do so if he so desires. A judge who fails to observe this requirement commits a
grave abuse of discretion. These requirements have been complied with in this case.
2. ID.; ID.; ID.; PLEA OF GUILTY TO CAPITAL OFFENSE; MANNER OF CONDUCTING THE SEARCHING
INQUIRY INTO THE VOLUNTARINESS AND FULL COMPREHENSION OF THE CONSEQUENCES OF THE PLEA;
LEFT TO THE DISCRETION OF THE TRIAL JUDGE. There is no hard and fast rule requiring judges to
conduct their searching inquiry in the detailed manner suggested by the majority opinion, although
judges should ideally strive to conduct as detailed an inquiry as would be reasonable under the
circumstances. In People v. Dayot (187 SCRA 637 [1990]) we held that: A searching inquiry . . . compels
the judge to content himself reasonably that the accused has not been coerced or placed under a state
of duress and that his guilty plea has not therefore been given improvidently other by actual
threats of physical harm from malevolent quarters or simply because of his, the judge's, intimidating
robes. . . . While there can be no hard and fast rule as to how a judge may conduct searching inquiry, as
to the number and character of questions he may put to the accused, or as to the earnestness with
which he may conduct it, since each case must be measured according to its individual merit, taking into
consideration the age, educational attainment, and social status of the accused confessing guilt, among
other things, the singular barometer is that the judge must in all cases, fully convince himself that: (1) the
accused, in pleading guilty, is doing so voluntarily, and (2) he, in so doing, is truly guilty, and that there
exists a rational basis for a finding of guilt, based on his testimony. This Court leaves to judges,
considering their training, ample discretion, but expects them at the same time, that they will be true to
their calling and be worthy ministers of the law. The purpose of a searching inquiry is to satisfy the judge
that the defendant's plea was entered into voluntarily and that the defendant understood the
consequences of his plea. There is no hard and fast rule, as the Dayot case states, as to the number and

3. ID.; ID.; ID.; PLEA OF GUILTY IN CASE AT BAR; NOT IMPROVIDENT. In the case before us, when the
appellant pleaded guilty in open court on June 28, 1994, appellant was clearly assisted by counsel. The
court took pains to repeatedly remind him of the grave consequences of a plea of guilty, which appellant
said he understood. On every such occasion, he had every opportunity, through his counsel, to ask the
court for clarification. The trial court, on its own, in fact went out of its way to repeatedly inform the
defendant of the nature of his plea and the implications of the plea he was making. On July 11, 1994,
before the presentation of evidence for the prosecution, he was once again asked by the court if he was
sure of his plea. At this time, appellant had more than sufficient time or about thirteen days to reflect on
all the possible consequences of his plea. If indeed it was not voluntarily made during his arraignment, he
had enough time and opportunity with the assistance of his lawyer to recant or at least express
reservations about the same. However, in spite of several warnings given by the trial court on different
occasions, appellant stood pat with his judicial admission. Significantly, the records fail to indicate that
appellant questioned his plea of guilty at any stage of the trial. He had the opportunity to cross-examine
the witnesses for the prosecution. He did not put up any defense nor denied the inculpatory testimonies,
documents and real evidence presented against him (in fact, it was appellant himself who directed the
police investigators to the location of the various physical evidence, e.g., green slippers. earrings).
Appellant's silence as to the accusations made against him in open court from the time of his
arraignment and during his entire trial therefore assumes a great deal of significance in the context of
the majority's insistence that herein appellant's plea of guilty was improvident and therefore void. In the
face of the seriousness of the accusations against him, his reticence was eloquent. As the Court held in
People vs. Pillones: Silence is assent as well as consent, and may, where a direct and specific accusation
of crime is made, be regarded under some circumstances as a quasi-confession. An innocent person will
at once naturally and emphatically repel an accusation of crime, as a matter of self-preservation and selfdefense, and as a precaution against prejudicing himself. A person's silence, therefore, particularly when
it is persistent, will justify an inference that he is not innocent. (Underhill's Criminal Evidence, 4th Ed., p.
401.) The absence of an extrajudicial confession does not detract from the efficacy or validity of
appellant's plea of guilty, it does not affect the requirement compelling the prosecution to prove the
guilt of the accused and the precise degree of his culpability. Nowhere in the rule does it state that an
extrajudicial confession is a prerequisite for a conviction based on a plea of guilty. While the
constitutional infirmities that attended the custodial investigation of the appellant were serious and
should not be glossed over, his conviction was based mainly on his plea of guilt made in open court and
not on the extrajudicial confession, which formed but a small aspect of the prosecution's case. An
extrajudicial confession only serves to confirm or substantiate a plea of guilty entered in open court. As
between an extrajudicial confession and a judicial admission, the latter significantly is given evidentiary
weight. Even assuming the extrajudicial confession in this case could not be given evidentiary weight
because of mistakes committed by authorities in conducting their custodial investigation and in their
gathering evidence, his plea of guilty on arraignment, his repeated admissions to the same in spite of
repeated warnings of the trial judge of the consequences of his plea and the presence of ample
corroborating testimony from a credible eyewitness to the crime establish appellant's guilt beyond
reasonable doubt. The essence of the plea of guilty in a trial is that the accused admits his guilt freely,
voluntarily and with full knowledge of the consequences and meaning of his act, and with a clear
understanding of the precise nature of the crime charged in the complaint or information. A plea of
guilty, when formally entered on arraignment is sufficient to sustain a conviction charged in the
information without need of further proof. This, notwithstanding, (in line with the pronouncement of the
Court in several cases) the trial court received evidence to determine if the appellant erred in admitting

his guilt. Independent of such plea, there was more than sufficient evidence adduced to prove that
appellant indeed committed the acts charged.

4. ID.; EVIDENCE; DISPUTABLE PRESUMPTIONS; PRESUMPTION OF REGULARITY IN THE PERFORMANCE

OF OFFICIAL DUTIES; APPLICABLE IN CASE AT BAR. The records in an overwhelming number of criminal
cases brought before us contain informations written in the English language without any indication,
whatsoever, that the same was translated from a language or dialect known to the defendant. And yet,
even in Metro Manila alone, one observes that the bulk of proceedings in our trial courts, including the
process of arraignment, is conducted in the vernacular. On the record of these cases normally printed in
English, courts hardly bother to point out those sections of the trial conducted in the vernacular and
translated into English. Because of this widespread practice, which the section on arraignment in the
Rules of Court does not proscribe the presumption of regularity ought to apply. Otherwise, we should
compel ourselves to review the criminal cases decided by this Court since the imposition of the 1985
Revised Rules on Criminal Procedure and see whether there was any indication that the arraignment of
these criminal cases were, the records therein then ought to show, conducted in a language known to the
defendants. The absurdity of this argument by the defense then becomes apparent, because it would be
fairly obvious to all of us that most of these proceedings were actually conducted in the vernacular, but
the fact was never put on record. In fact, Section 1(b) of Rule 116 even states that while the arraignment
and plea be made of record failure to enter (the same) of record shall not affect the validity of the
proceedings. Even the rule on placing the arraignment and plea on record is not absolute, and I cannot
see how we can be too strict about indicating on record whether proceedings were made in the
vernacular in cases where in fact the proceedings were so conducted. The argument that the information
was not read in the language or dialect known to appellant merely grasps on straws and ought to be
dismissed for being so inconsequential as to be bereft of merit. Moreover, it is a matter of common
practice that in every court, especially in the provinces, an interpreter is always at hand to translate to
the parties all questions propounded to them in the language or dialect known to them. It is also
common practice that the transcript of stenographic notes submitted to the court only reflect the court
proceedings conducted in the English language. While again, the records do not categorically indicate
that the information was read in the language or dialect known to the defendant or that the questions
asked were mandated in the vernacular or dialect understood by him it is presumed, as we have actually
done in many cases before this, that such duty was regularly performed in the absence of any evidence
to the contrary. In the face of this common practice, the burden now lies on the defense to prove the
contrary. Under the principle of equal application of laws, we cannot have varying degrees of
fastidiousness in the enforcement of procedural rules based on the gravity of the penalty.
5. ID.; ID.; ADMISSIBILITY; PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE OF THE EXCEPTIONS TO
THE EXCLUSIONARY RULE. I submit, that under the peculiar circumstances of this case, the evidence
objected to would have been inevitably discovered anyway. In a long line of cases, courts have
recognized that evidence derived from information obtained illegally is not absolutely inadmissible under
the fruit of the poisonous tree doctrine where it is shown that such evidence would have been inevitably
gained even without the unlawful act. The case of U.S. vs. Seohnlein, for instance, held the view that a
confession by the accused in a bank robbery case was not fruit of the poisonous tree for the reason that
the information which led to his confession, though the product of an illegal search would have been
discovered in the absence of such illegality. The Court in Lockridge vs. Superior Court was of the opinion
that where a witness is discovered as a result of illegal police conduct, his testimony is admissible is he
would have been discovered in the normal course of a normally conducted investigation. These and
other recognized limitations to the fruit of the poisonous tree doctrine do not have the effect of diluting
the effect of our exclusionary rules. Rather, they serve the purpose of the rule well by maintaining a
reasonable balance between the need to deny evidence come by through the exploitation of an illegality
on one hand and the need to minimize opportunity for the defendant in a criminal case to reap an

undeserved and socially undesirable bonanza. Certainly it could not be argued that with nothing in their
hands, the police would not have gone back to the site for a better inspection. AEcTaS
6. ID.; ID.; WEIGHT AND SUFFICIENCY; EVIDENCE PRESENTED BY THE PROSECUTION SUFFICIENT TO
SUSTAIN CONVICTION IN CASE AT BAR. Assuming arguendo the validity of the defense's arguments
over the pieces of evidence recovered by the police in the case at bench above-mentioned, a thorough
review of the evidence utilized by the trial court leads us to the conclusion that the defendant's
conviction would have been sustained, in any case, without the pieces of evidence objected to. Lest we
mistake the trees for the forest, a shifting of the pieces of evidence, and a separation therefrom of the
physical evidence objected to would nevertheless still leave the prosecution with enough legal evidence
to convict the accused with moral certainty. These include: 1. The defendant's own repeated admissions,
in the presence of counsel and in open court that he committed the acts charged; 2. The essentially
uncontradicted testimony of the prosecution's eyewitness, Luisa Rebada. It is well-settled in this
jurisdiction that the testimony of a lone witness, free from signs of impropriety or falsehood, is sufficient
to convict an accused even if uncorroborated. In this case, Rebada's testimony was positive and
straightforward. I see no reason why the same should not be given the credence and the weight that it
deserves, without our ignoring established principles in the law on evidence. Such factual findings of the
trial court on the issue of credibility of a witness are accorded great weight and respect on appeal, as it
should have been in the instant case, because the trial court had the every available opportunity to
observe the demeanor of the lone witness during the trial. Her belated reporting of the incident the next
morning, to which the defense urged the lower court to accord great weight, is hardly out of the ordinary.
Individual reactions are motivated by varied and varying environmental factors. There is no standard
norm of human behavioral response when one is confronted with a strange, startling or frightful
experience. Fear and self-preservation are strong motivating factors. It is common for people to choose
not to get involved when a crime is committed, otherwise there should only be a few unsolved crimes.
Rebada, in this case, was obviously terrified with what she saw. Self-preservation and fear of possible
reprisals from the appellant would have initially overwhelmed any desire on her part to reveal what she
had seen during the incident. She tried her best to remain as calm and casual as possible, and pretend
that she did not see anything the instant she saw Alicando, when she asked appellant what time Khazi
Mae got down from his house following the incident. Given these factors, it would have been too much
to expect Rebada in her mixed state of dread, fear, revulsion and instinctive self-preservation to harness
superhuman reserves of courage to stop appellant when she saw him in that compromising position.
Man's actions and reactions cannot be stereotyped. Some individuals flee from an adverse stimulus,
others confront it. Upon seeing the dead girl's distraught parents, and overcoming her fear with some
prodding from her husband, Luisa Rebada was finally driven by conscience to reveal what she knew the
following morning. The minor inconsistencies in Rebada's testimony are understandable under these
circumstances. However, it should be stressed here that the trial court's conclusions were founded
principally on the direct, positive and categorical assertions made by Rebada as regards material events
in the crime. It is worthy to stress, moreover, that Rebada never wavered in her oral testimony even on
intense cross-examination from the defense. In her affidavit, she declared that she saw Khazi Mae at
appellant's house, that appellant closed the window; and after hearing the child's cry and squeal, peeped
into the opening and saw appellant on top of the victim. These were the very same declarations she
made when she took the witness stand. While she may have wavered on a minor detail (as to whether it
was the right or the left hand of the appellant which was used in choking the victim) these should not be
sufficient to debunk her credibility. She had no reason to falsely testify against the appellant and there
were no possible motives alleged for her to do so. She is not in any way related to the Penecillas, and
there was no evidence adduced to show that she harbored any ill-feelings towards the appellant. In a
sense, her credibility is even enhanced by the absence of any improper motive. Together with the direct
testimony of the eyewitness, Rebada, there is, I repeat, sufficient evidence corroborating and
unmistakably pointing to the appellant as the author of the crime. Khazi Mae was last seen in the
company of the appellant. Rebada testified that she saw appellant naked on top of Khazi Mae.
Recovered from the latter's house were Khazi Mae's green slippers, pair of gold earrings, her dress,

bloodied buri mat and pillow. The fact of shoddy police work in the recovery of these pieces of evidence
does not escape us. But whether or not these pieces should have been admissible is on hindsight hardly
relevant in the face of ample legally admissible evidence justifying the trial court's guilty verdict.

7. CRIMINAL LAW; RAPE WITH HOMICIDE; ESTABLISHED IN CASE AT BAR. Rape is committed whenever
there is penetration, no matter how slight into the genital organ of the victim. The vaginal and anal
findings of Dr. Tito Doromal revealed that the lacerated wound from the fourchette up to the dome of
the rectum was caused by a forcible entry of an object. In view of settled jurisprudence to the effect that
rape is committed by the mere touching of the male genital organ on the vagina, it hardly is relevant
whether or not semen or sperm are present or absent. Absence of emission does not negate rape.
Rebada's testimony that she saw appellant naked on top of the victim when she peeped through an
opening between the floor and the door of appellant's house and the autopsy report revealing the
laceration of the vagina eloquently testify to the crime committed and its authorship in the case at bench.
As correctly observed by the Solicitor General, the corpus delicti was there for all to see. The trial court,
therefore, did not err in dispensing with the results of the NBI laboratory examination of Khazi Mae's
underwear to determine the presence of male semen, a fact of little relevance after the rape was
established by definitive legal evidence. Finally, notwithstanding the fact that the proximate cause of
death was asphyxiation by strangulation, it cannot be denied that Khazi Mae was raped and killed on the
same occasion. As we observed in People v. Yu, (1 SCRA 199 [1961]) unity of thought and action in the
criminal purpose of the accused cannot be altered by the circumstances that both the crime of rape and
the crime of murder resulted. The accused had to choke and strangle the girl at the same time that he
was satisfying his lust on her. Based on all of the foregoing, it is clear and inescapable that appellant
committed the heinous crime of Rape with Homicide under Sec. 11 of RA. 7659.
8. ID.; PENALTIES; IMPOSITION OF THE DEATH PENALTY FOR SPECIFIC OFFENSES UNDER Republic Act
7659; MANDATORY. I reiterate my position in People vs. Veneracion, that the reimposition of the
death penalty for specific offenses under Republic Act 7659 has left our courts with no choice but to
impose the penalty for crimes clearly enumerated in the said law. If a court, after leaving no stone
unturned, finds it necessary to impose the penalty, I believe that it does not do so as an infallible God
exercising a divine right to give or take away human life, but as a fallible human institution recognizing
the importance of according majesty to laws so indispensable to maintaining social order. In the instant
case; after a thorough and searching review of the evidence and an evaluation of the procedural and
constitutional objections adduced either in support of an acquittal or of imposing a less severe penalty it
should be fairly obvious to us that the trial court committed no error in finding the accused guilty as
charged. Recognizing our fallible nature, the quantum of evidence necessary to convict has never been
absolute proof beyond any doubt but merely proof beyond reasonable doubt. The death penalty in the
instant case was clearly imposed in conformity with the mandate of law and Constitution. SADECI
DECISION

PUNO, J p:
The case at bar involves the imposition of the death penalty. With all our frailties,
we are asked to play the role of an infallible God by exercising the divine right to give or take
away life. We cannot err in the exercise of our judgment for our error will be irrevocable. Worse,
our error can result in the worst of crimes murder by the judiciary.

The records reveal that appellant Arnel Alicando was charged with the crime of rape with homicide 1 in
an Information which reads:
"That on or about the 12th day of June 1994 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused, did
then and there willfully, unlawfully and feloniously and by means of
force, violence and intimidation to wit: by then and there pinning down
one KHAZIE MAE PENECILLA, a minor, four years of age, choking her
with his right hand, succeeded in having carnal knowledge with her and
as a result thereof she suffered asphyxia by strangulation, fractured
cervical vertebra and lacerations of the vaginal and rectal openings
causing profuse hemorrhages and other injuries which are necessarily
fatal and which were the direct cause of her death.
CONTRARY TO LAW."
On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio
Antiquiera of the PAO, Department of Justice. Appellant pleaded guilty.
After appellant's plea of guilt, the trial court ordered the prosecution to present its
evidence. It also set the case for reception of evidence for the appellant, if he so desired. 2
The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo
Penecilla, father of the four year old victim Khazie Mae, was drinking liquor with Ramil Rodriguez
and Remus Gaddi in his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. Appellant
joined them but every now and then would take leave and return. Appellant was living in his
uncle's house some five (5) arm's length from Penecilla's house. At about 4:30 p.m., Penecilla's
group stopped drinking and left.
Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2)
arm's length from the house of appellant. At about 5:30 p.m. of that day, she saw the victim at
the window of appellant's house. She offered to buy her "yemas" but appellant closed the
window. Soon she heard the victim crying. She approached appellant's house and peeped
through an opening between its floor and door. The sight shocked her appellant was naked, on
top of the victim, his left hand choking her neck. She retreated to her house in fright.
She gathered her children together and informed her compadre, Ricardo Lagrana,
then in her house, about what she saw. Lagrana was also overcome with fear and hastily left.
Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find
Khazie Mae. He and his wife searched for her until 1 o'clock in the morning. Their effort was
fruitless. Rebada was aware that the Penecillas were looking for their daughter but did not tell
them what she knew. Instead, Rebada called out appellant from her window and asked him the
time Khazie Mae left his house. Appellant replied he was drunk and did not know.
As the sun started to rise, another neighbor, Leopoldo Santiago went down from
his house to answer the call of nature. He discovered the lifeless body of Khazie Mae under his
house. Her parents were informed and so was the police. At 9:00 a.m., Rebada suffered a change
of heart. She informed Romeo Penecilla and his wife Julie Ann, that appellant committed the
crime. Forthwith, appellant was arrested and interrogated by PO3 Danilo Tan. He verbally
confessed his guilt without the assistance of counsel. On the basis of his uncounseled verbal
confession and follow up interrogations, the police came to know and recovered from appellant's
house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a stained pillow and a
stained T-shirt all of which were presented as evidence for the prosecution.

The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer.
His autopsy report reveals the following injuries sustained by the victim:

A) ASPHYXIA BY STRANGULATION.
B) FRACTURED, 2nd CERVICAL VERTEBRA..

"HEAD & NECK/THORACO-ABDOMINAL REGIONS:

1) Contusion, purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right
infraclavicular area.
2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left
chest wall.
3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right
antero-inferior chest wall.
4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.
5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac
crest .

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL & RECTAL

OPENINGS."
Appellant adopted the autopsy report of Dr. Doromal as his documentary evidence
to prove that the proximate cause of Khazie Mae's death was asphyxia by strangulation.
On July 20, 1994, the trial court found appellant guilty and sentenced him to death,
viz:
"WHEREFORE, the court hereby finds the accused, Arnel Alicando,
GUILTY beyond reasonable doubt for (sic) the Crime of Rape with
Homicide penalized under Article 335 of the Revised Penal Code as
amended by paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No.
7659. Arnel Alicando is hereby sentenced to suffer a (sic) penalty of
death and to indemnify the heirs of the offended party, Khazie Mae D.
Penecilla, the sum of P50,000.00.

ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.
b) Fractured, crecoid cartilage.
c) Both lungs, expanded with multiple petechial hemorrhages.
d) Other internal organs, congested.

The death sentence shall be executed by putting the person under

sentence to death by electrocution (electric chair). As soon as facilities
are provided by the Bureau of Prisons, the method of carrying out his
sentence shall be changed by gas poisoning (sic).
Here ends Khazie Mae's quest for justice. Her tormentor must suffer for
the grievous offense he had committed. He deserves no mercy.

EXTREMITIES:
1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd,
left forearm.
2) Old wound, 2 x 1.5 cm. in dia., posterior middle 3rd, left forearm.
3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd,
right forearm.
VAGINAL FINDINGS/ANAL FINDINGS:
a) Lacerated wound, from the fourchette up to the dome of the rectum.
b) Hematoma, from the fourchette up to the rectum.
c) Lacerated wound, lateral wall of the vagina up to the level of the
promontory of the sacrum with a length of 8 centimeters.

Cost against the accused.

SO ORDERED. "
The case is before us on automatic review considering the death penalty imposed
by the trial court. A new counsel, Atty. Joel Tiongco, took the cudgel for appellant. In his Brief,
appellant assails the decision of the trial court as a travesty of justice.
We find that the Decision of the trial court sentencing the appellant to death is
shot full of errors, both substantive and procedural. The conviction is based on an amalgam of
inadmissible and incredible evidence and supported by scoliotic logic.
First. The arraignment of the appellant is null and void. The trial judge failed to
follow section (1) (a) of Rule 116 on arraignment. Said section provides:
xxx xxx xxx
Section 1. Arraignment and plea; how made.

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and

anal openings.
CAUSE OF DEATH:

(a) The accused must be arraigned before the court where the
complaint or information has been filed or assigned for trial. The
arraignment must be made in open court by the judge or clerk by

furnishing the accused a copy of the complaint or information with the

list of witnesses, reading the same in the language or dialect known to
him and asking him whether he pleads guilty or not guilty. The
prosecutor may, however, call at the trial witnesses other than those
named in the complaint or information."
The reading of the complaint or information to the appellant in the language or dialect known to
him is a new requirement imposed by the 1985 Rules on Criminal Procedure. It implements the
constitutional right of an appellant ". . . to be informed of the nature and cause of the accusation
against him." 3 The new rule also responds to the reality that the Philippines is a country divided
by dialects and Pilipino as a national language is still in the process of evolution. 4 Judicial notice
can be taken of the fact that many Filipinos have limited understanding either of the Pilipino or
English language, our official languages for purposes of communication and instruction. 5 The
importance of reading the complaint or information to the appellant in the language or dialect
known to him cannot thus be understated.
In the case at bar, the records do not reveal that the Information against the
appellant was read in the language or dialect known to him. The Information against the
appellant is written in the English language. It is unbeknown whether the appellant knows the
English language. Neither is it known what dialect is understood by the appellant. Nor is there any
showing that the Information couched in English was translated to the appellant in his own
dialect before his plea of guilt. The scanty transcript during his arraignment, reads: 6
xxx xxx xxx
Prosecutor Edwin Fama Appearing as public prosecutor
Atty. Rogelio Antiquiera For the accused, Your Honor. Ready for
arraignment and pre-trial.)
Interpreter (Reading the information to the accused for arraignment
and pre-trial.)
Note: (After reading the information to the accused, accused pleads
guilty)"
One need not draw a picture to show that the arraignment of the appellant is a nullity. It violated
section l(a) of Rule 116, the rule implementing the constitutional right of the appellant to be
informed of the nature and cause of the accusation against him. It also denied appellant his
constitutional right to due process of law. 7 It is urged that we must presume that the
arraignment of the appellant was regularly conducted. When life is at stake, we cannot lean on
this rebuttable presumption. We cannot assume. We must be sure.
Second. The plea of guilt made by the appellant is likewise null and void. The trial
court violated section 3 of Rule 116 when it accepted the plea of guilt of the appellant. Said
section provides:
"Sec. 3. Plea of guilty to capital offense; reception of evidence. When
the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to prove his guilt
and the precise degree of culpability. The accused may also present
evidence in his behalf."

The records reveal how the trial judge inadequately discharged this duty of conducting a
"searching inquiry." In the hearing of June 28, 1994, the transcripts reveal the following: 8
xxx xxx xxx
Note
(After reading the information to the accused, accused pleads guilty.)
Court
Question (sic) of the court to the accused.
Q Considering that this is a crime and under the amended law is a
heinous crime, because of your plea of guilty without the
consent or even against the discretion of the court, the
court will give you a mandatory death penalty because of
the crime charged, do you understand?
Accused
Yes, Your Honor.
Q Did you enter a plea of guilty on your own voluntary will or without
any force or intimidation from any one or whatever?
Accused
None, Your Honor.
Q Are you sure?
Accused
Yes, Your Honor.
Q Or maybe because you were manhandled or maltreated by anyone
and that will just be the consideration for you to plead
guilty?
Accused
No, Your Honor.
Court
Were you not manhandled, please let us see your body?
Note
(Accused raised his prison uniform or shirt and showed to the court his
body from waist up.)

Accused

Our first witness is Dr. Tito Doromal, Your Honor.

No, Your Honor.

Court:

Court

For the accused, Your Honor.

You were not maltreated in the jail?

Atty. Antiquiera:

Accused

Before the court will proceed with the reception of evidence by the
prosecution Arnel Alicando, please come here. (at this
juncture, Arnel Alicando, come near to the court)

No, Your Honor.

Court
Please let us see whether you have bruises so that you will be
examined by a physician to the order of the court?

The court is warning you again that this is reception of evidence by the
prosecution after you plead guilty to the crime charged
at, do you understand?
A Yes.

Accused
No, Your Honor.

Q Do you still affirm and confirm to your plea of guilty of rape with
homicide?

Court

A Yes, Your Honor.

If you will plead guilty, that plea of guilty has no use because there will
be a mandatory death penalty, do you still insist on your
plea of guilty?

Q Do you still insist that your plea of guilty is voluntary without force,
intimidation or whatsoever?
A Yes.

Accused
Yes, Your Honor.

Q The court is warning you that after reception of evidence, the

imposable penalty is mandatory death?

Court

A Yes, Your Honor.

If you plead guilty to the crime charged there will be some effects on
your civil rights but not until the decision will be affirmed
by the Supreme Court.

Q Despite of that, you still insist on your plea of guilty?

Accused

Court

Yes, Your Honor.

Okey, proceed."

Note
(See Order dated June 28, 1994 attached to the records of this case.)"
In the next hearing on July 11, 1994, the following verbal exchange transpired, viz: 9
xxx xxx xxx
Fiscal Fama:
Appearing as the public prosecutor, ready, Your Honor.

A Yes, Your Honor.

Section 3 of Rule 116 which the trial court violated is not a new rule for it merely
incorporated the decision of this Court in People vs. Apduhan, Jr., 10 and reiterated in an
unbroken line of cases. 11 The bottom line of the rule is that the plea of guilt must be based on a
free and informed judgment. Thus, the searching inquiry of the trial court must be focused on: (1)
the voluntariness of the plea, and (2) the full comprehension of the consequences of the plea.
The questions of the trial court failed to show the voluntariness of the plea of guilt of the
appellant nor did the questions demonstrate appellant's full comprehension of the consequences
of his plea. The records do not reveal any information about the personality profile of the
appellant which can serve as a trustworthy index of his capacity to give a free and informed plea
of guilt. The age, socio-economic status, and educational background of the appellant were not
plumbed by the trial court. The questions were framed in English yet there is no inkling that

appellant has a nodding acquaintance of English. It will be noted too that the trial court did not
bother to explain to the appellant the essential elements of the crime of rape with homicide.
A cursory examination of the questions of the trial court to establish the
voluntariness of appellant's plea of guilt will show their utter insufficiency. The trial court simply
inquired if appellant had physical marks of maltreatment. It did not ask the appellant when he
was arrested, who arrested him, how and where he was interrogated, whether he was medically
examined before and after his interrogation, etc. It limited its efforts trying to discover late body
marks of maltreatment as if involuntariness is caused by physical abuse alone. Regretfully, it even
turned a blind eye on the following damning entry on the June 13, 1994 Record of Events of the
Iloilo PNP (Exh. "M") showing that after his arrest, the appellant was mobbed by inmates while in
jail and had suffered hematoma, viz:

"xxx xxx xxx

Further, there are physical evidence to prove Khazie was raped. These
consists of a pillow with bloodstains in its center 14 and the T-shirt 15
of the accused colored white with bloodstains on its bottom. These
physical evidence are evidence of the highest order. They strongly
corroborate the testimony of Luisa Rebada that the victim was raped."
These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the Iloilo City PNP
as a result of custodial interrogation where appellant verbally confessed to the crime without the
benefit of counsel. PO3 Tan admitted under cross-examination, viz: 16
xxx xxx xxx

"c- 0262-94
INFORMATION
2:50 PM - PO2 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC,
informed this office thru SPO1 W. Garcera alleging that at about 9:00
AM this date when the suspect ARNEL ALICANDO Y BRIONES, 24 yrs. old,
residence of Rizal, Palapala Zone I, CP, been arrested and mobbed by
the irate residents of Zone I, Rizal, Palapala, GP, in connection of the
Rape with Homicide case wherein the victim KHAZIE MAE PENECILLA Y
DRILON, 4 yrs. old, residence of same place who was discovered dead
under the house thereat. Suspect when turned over to this office and
put on lock up cell was also mobbed by the angry inmates thus causing
upon him hematoma contusion on different parts of his body."
Likewise, the trial court's effort to determine whether appellant had full
comprehension of the consequences of his plea is fatally flawed. It warned the appellant he
would get the mandatory death penalty without explaining the meaning of "mandatory". It did
not inform the appellant of the indemnity he has to pay for the death of the victim. It cautioned
appellant there ". . . will be some effects on your civil rights" without telling the appellant what
those "effects" are and what "civil rights" of his are involved.

CROSS-EXAMINATION BY ATTY. ANTIOUIERA:

Q Mr. Witness, when for the first time did you see Arnel Alicando?
A June 13, 1994, when I arrested him.
Q Previous to that you have never seen him?
A Yes, sir.
Q When for the first time did you start investigating Arnel Alicando?
A After I finished investigating the body of the victim, Khazie Mae
Penecilla.
Q And that was also after you were informed that Arnel Alicando was a
suspect in the raping of Khazie Mae Penecilla?
A Yes, sir.
Atty. Antiquiera:

Appellant's plea of guilt is void and the trial court erred in using it to sentence him
to death. We stress that under the 1985 Rules of Criminal Procedure, a conviction in capital
offenses cannot rest alone on a plea of guilt. Section 3 of Rule 116 requires that after a free and
intelligent plea of guilt, the trial court must require the prosecution to prove the guilt of the
appellant and the precise degree of his culpability beyond reasonable doubt. This rule modifies
prior jurisprudence that a plea of guilt even in capital offenses is sufficient to sustain a conviction
charged in the information without need of further proof. The change is salutary for it enhances
one of the goals of the criminal process which is to minimize erroneous conviction. We share the
stance that "it is a fundamental value determination of our system that it is far worse to convict
an innocent person than let a guilty man go free." 12

Q And who was that person who informed you of the suspect?
A Luisa Rebada.
Q Mrs. Rebada who is the witness in this case?
A Yes, sir.
Q And you started investigating Arnel Alicando in the morning of June
13, 1994?

Third. Some prosecution evidence, offered independently of the plea of guilt of the
appellant, were inadmissible, yet, were considered by the trial court convicting the appellant.

A Yes, sir.

Thus, the trial court gave full faith and credit to the physical evidence presented by
the prosecution. To quote its Decision, 13 viz:

Q How long did you interrogate Arnel Alicando in the morning of June
13, 1994?

A I cannot remember the length of time I investigated him.

Q Did it take you the whole morning of June 13, 1994 in interrogating
and investigating Arnel Alicando?

constitutional rights?
A On June 13.
Q On what hour did you inform him?

A Yes, sir.
A After the witness identified him.
Q And the investigation you conducted continued in the afternoon of
the same date?
A Yes, sir.
Q The following day, June 14, 1994, you still investigated and
interrogated Arnel Alicando.

Q What constitutional rights inform Alicando of?

A The right to remain silent and right to get his lawyer and I have
interpreted in Visayan language.
Q And during your investigation for almost two (2) days the accused
was never represented by counsel, is that correct?

A Yes, sir.
A Yes, sir.
Q And when did you stop, finally, investigating and interrogating Arnel
Alicando?
A After I finished recovering all the exhibits in relation to this case.

Atty. Antiquiera:
Q Are you aware of the law that enjoins a public officer to inform the
person of his constitutional rights?

Q What date did you stop your investigation?

A Yes, sir.
A June 14, 1994, when I finished recovering the white T-shirt and pair of
earring.
Atty. Antiquiera:
Q You testified in this case, Mr. Witness you never informed the court
that you apprised the accused of his constitutional rights,
is that correct?
A I apprised him.
Q My question is, during your testimony before this court under the
direct examination of the prosecution you never
informed the court that you apprised the accused of his
constitutional rights?
Pros. Fama:
I did not ask him that question. How will he answer?
Court:
Sustained.
Atty. Antiquiera:
Q When did you inform, the date when you informed Alicando of his

That is all, Your Honor."

It is now familiar learning that the Constitution has stigmatized as inadmissible evidence
uncounselled confession or admission. Section 12 paragraphs (1) and (3) of Article III of the
Constitution provides:
xxx xxx xxx
Sec. 12. (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.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible against him."
In the case at bar, PO3 Tan did not even have the simple sense to reduce the all
important confession of the appellant in writing. Neither did he present any writing showing that
appellant waived his right to silence and to have competent and independent counsel. Despite
the blatant violation of appellant's constitutional right, the trial court allowed his uncounselled
confession to flow into the records and illicitly used it in sentencing him to death.
It is not only the uncounselled confession that is condemned as inadmissible, but

also evidence derived therefrom. The pillow and the T-shirt with the alleged bloodstains were
evidence derived from the uncounselled confession illegally extracted by the police from the
appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17
xxx xxx xxx
Q Did the accused Arnel Alicando accompany you to the place of the
incident?
A Yes, sir.
Q When you arrived at the place of the incident what did you do?
A He pointed to the fish basin.
Q Can you identify this fish basin which you said pointed to you by
Arnel Alicando?
A Yes, sir.
Q Please point?
A (Witness pointing to the fish basin already marked as Exhibit "H".)
Q Did you ask the accused what he did with this fish basin?

Q In what particular place did you recover those things ?

A Inside the room where he raped child.
Q Whose house is that ?
A The house of Imelda Alicando.
Q The wife of Romeo Alicando?
A Yes, sir.
Q In what particular place is that situated ?
A Inside the room where the accused was sleeping at Rizal-Palapala.
Pros. Fama:
Q You mean to say inside that room the victim was raped by the
accused?
A Yes, sir.
Q Can you point that pillow which you said you recovered inside he
room of Imelda Alicando?

A I asked the accused what he did with the fish basin and he answered
that he used the fish basin to cover Khazie Mae Penecilla
when she was already dead.

A Yes, sir.

Pros. Fama:

A (Witness taking out from the fish basin the mat and pillow.)

Q You mean to say to conceal the crime ?

Q Did you find something on the pillow?

A Yes, sir.

A The pillow have bloodstain in the middle.

Q What else aside from this fish basin, what else did you recover?

This was already marked as Exhibit "J", Your Honor and the mat as
Exhibit "I".

Q And the mat?

A At around 7 o'clock in the evening he further pointed to us the old

mat and the pillow wherein he laid the victim Khazie
Mae Penecilla.

Q Aside from this what did you recover from the place of incident?

Q You mean to say that you returned back to the scene of the incident
that time?

A On June 14, 1994, at about 10:00 o'clock in the morning the accused
Arnel Alicando further informed me that he kept the
gold earring of the victim and her clothes inside the
room of the house of Imelda Alicando.

A It was already night time and it was only Kagawad Rodolfo Ignacio,
my companion, who went to the place of the incident.
Q You mean to say you were verbally instructed by the accused?
A Yes, sir.

Q Where?
A I saw the clothes of Khazie Mae Penecilla inside the room where the
rape took place hanged on the clothes line. And I found
the pair of earring at the bamboo post of the fence.

Court:
Q Where is that bamboo post of the fence situated?
A Around the fence of Imelda Alicando situated at the from gate on the
right side .
Pros. Fama:
Q You mean to say you returned back on June 14, you recovered the
items accompanied by the accused?
A No more, I only followed his direction.
Q He made verbal direction to you?
A Yes, sir.
Q Can you please show us the white t-shirt?
A (Witness taking out a white t-shirt from the fish basin.)
Q Please examine that white t-shirt?
A The t-shirt have a bloodstain."
We have not only constitutionalized the Miranda warnings in our jurisdiction. We
have also adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree," a
phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United States.
18 According to this rule, once the primary source (the "tree") is shown to have been unlawfully
obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. 19
Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas
the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the
poisonous tree" is at least once removed from the illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that evidence illegally obtained by the State
should not be used to gain other evidence because the originally illegally obtained evidence taints
all evidence subsequently obtained. 20 We applied this exclusionary rule in the recent case of
People vs. Salanga, et al., 21 a ponencia of Mr. Justice Regalado. Salanga was the appellant in the
rape and killing of a 15-year old barrio lass. He was, however, illegally arrested. Soldiers took him
into custody. They gave him a body search which yielded a lady's underwear. The underwear was
later identified as that of the victim. We acquitted Salanga. Among other reasons, we ruled that
"the underwear allegedly taken from the appellant is inadmissible in evidence, being a so-called "
fruit of the poisonous tree." 22

victim. In addition, there was no testimony that the t-shirt was the one worn by the appellant
when he allegedly committed the crime. It must also be noted that it is not unnatural for
appellant to have bloodstains on his shirt. He is a butcher by occupation. Romeo Penecilla himself,
the father of the victim, testified he knows the appellant "because he used to accompany me
during butchering of animals." 23
The burden to prove that an accused waived his right to remain silent and the right
to counsel before making a confession under custodial interrogation rests with the prosecution. It
is also the burden of the prosecution to show that the evidence derived from confession is not
tainted as "fruit of the poisonous tree." The burden has to be discharged by clear and convincing
evidence. Indeed, par. 1 of Section 12 of Article III of the Constitution provides only one mode of
waiver the waiver must be in writing and in the presence of counsel. In the case at bar, the
records show that the prosecution utterly failed to discharge this burden. It- matters not that in
the course of the hearing, the appellant failed to make a timely objection to the introduction of
these constitutionally proscribed evidence. The lack of objection did not satisfy the heavy burden
of proof that rested on the prosecution.
There is no and there ought not to be any disagreement on basic principles. The
Court should be concerned with the heinousness of the crime at bar and its despicable
perpetration against a 4-year old girl, an impersonation of innocence itself. The Court should also
be concerned with the multiplication of malevolence in our midst for there is no right to be evil
and there are no ifs and buts about the imposition of the death penalty as long as it remains
unchallenged as part of the laws of our land. These concerns are permanent, norms hewn in
stone, and they transcend the transitoriness of time.
Be that as it may, our commitment to the criminal justice system is not only to
convict and punish violators of our laws. We are equally committed to the ideal that the process
of detection, apprehension, conviction and incarceration of criminals should be accomplished
with fairness, and without impinging on the dignity of the individual. In a death penalty case, the
Court cannot rush to judgment even when a lowlife is involved for an erroneous conviction will
leave a lasting stain in our escutcheon of justice.
In sum, the Court cannot send the appellant to die in the electric chair on the basis
of the procedural irregularities committed by, and the inadmissible evidence considered by the
trial court. In Binabay vs. People, et al., 24 a ponencia of Mr. Chief Justice R. Concepcion, this
Court held that no valid judgment can be rendered upon an invalid arraignment. Since in the case
at bar, the arraignment of the appellant is void, his judgment of conviction is also void. In fairness
to the appellant, and in justice to the victim, the case has to be remanded to the trial court for
further proceedings. There is no philosophy of punishment that allows the State to kill without
any semblance of fairness and justice.
IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused
Arnel Alicando of the crime of Rape with Homicide and sentencing him to suffer the penalty of
death is annulled and set aside and the case is remanded to the trial court for further proceedings.
No costs.
SO ORDERED.

But even assuming arguendo that the pillow and the t-shirt were admissible
evidence, still, the trial court erred in holding that they "strongly corroborated the testimony of
Luisa Rebada that the victim was raped." For one, there was no basis for the trial court to
conclude that the stains on the pillow and t-shirt were human bloodstains. The pillow and the tshirt were not examined by any expert. To hold that they were human bloodstains is guesswork.
For another, there was no testimony that the stains were caused by either the appellant or the

||| (People v. Alicando y Briones, G.R. No. 117487, December 12, 1995)
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J.
DONATO, in his official capacity as Presiding Judge, Regional Trial
Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog,
respondents.

The Solicitor General for petitioner.

Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity,
Nationalism, Inc. (MABINI) for Rodolfo Salas.
SYLLABUS

1. CONSTITUTIONAL LAW; RIGHT OF ACCUSED TO BAIL; GOVERNED BY THE LAW AT THE TIME THE
COURT RESOLVED THE PETITION FOR BAIL. At the time the original and the amended Informations for
rebellion and the application for bail were filed before the court below the penalty imposable for the
offense for which the private respondent was charged was reclusion perpetua to death. During the
pendency of the application for bail EXECUTIVE ORDER NO. 187 was issued by the President, by virtue of
which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was
restored. The restored law was the governing law at the time the respondent court resolved the petition
for bail.
2. ID.; ID.; ABSOLUTE WHEN THE OFFENSE CHARGED IS PUNISHABLE BY ANY PENALTY LOWER THAN
RECLUSION PERPETUA. We agree with the respondent court that bail cannot be denied to the private
respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal
Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. It is,
therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution and provides thus:
Section 3, Rule 114 of the Rules of Court, as amended. Therefore, before conviction bail is either a
matter of right or of discretion. It is a matter of right when the offense charged is punishable by any
penalty lower than reclusion perpetua. To that extent the right is absolute.
3. ID.; ID.; ID.; CANNOT BE DENIED EVEN IF THE SECURITY OF THE STATE SO REQUIRES; PEOPLE VS.
HERNANDEZ, ET AL. (99 PHIL. 515) CITED. And so, in a similar case for rebellion, People vs. Hernandez,
et al., 99 Phil 515, despite the fact that the accused was already convicted, although erroneously, by the
trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and
sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his
appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused
because the security of the State so requires, and because the judgment of conviction appealed from
indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, individual freedom
is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general
principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major
preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first
paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4),
(5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of
several aspects of freedom."
4. ID.; ID.; ID.; SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS
SUSPENDED. The 1987 Constitution strengthens further the right to bail by explicitly providing that it
shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns
the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: "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."

5. ID.; ID.; SUBJECT TO THE SOUND DISCRETION OF THE COURT IF THE OFFENSE CHARGED IS PUNISHABLE
BY RECLUSION PERPETUA. If the offense charged is punishable by reclusion perpetua bail becomes a
matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to
determining whether or not evidence of guilt is strong. (Teehankee vs. Director of Prisons [76 Phil. 756,
770] But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right.
In the same case, We held: "The provision on bail in our Constitution is patterned after similar provisions
contained in the Constitution of the United States and that of many states of the Union. And it is said
that: 'The Constitution of the United States and the constitution of the many states provide that all
persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or
the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or
judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a
matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption
thereof is great!"
6. ID.; ID.; RIGHT OF PROSECUTION TO PRESENT EVIDENCE TO DENY THEREOF; WHEN AVAILABLE. The
prosecution does not have the right to present evidence for the denial of bail in the instances where bail
is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires
that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence
that it may desire to introduce before the court should resolve the motion for bail.
7. ID.; ID. ; GUIDELINES IN FIXING BAILBOND. We agree with petitioner that it was error for the
respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the
prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of
the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs.
Dacudao, et al., 170 SCRA, 489, 495: "Certain guidelines in the fixing of a bailbond call for the
presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are
the nature and circumstances of the crime, character and reputation of the accused, the weight of the
evidence against him, the probability of the accused appearing at the trial, whether or not the accused is
a fugitive from justice, and whether or not the accused is under bond in other case. . . ."
8. ID.; ID.; SUBJECT TO THE LIMITATION THAT PERSON APPLYING FOR ADMISSION TO BAIL SHOULD BE IN
THE CUSTODY OF THE LAW; APPLICABLE IN CASE AT BAR. He further admits that, in the light of Section
1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to
the limitation that the person applying for admission to bail should be in the custody of the law or
otherwise deprived of his liberty." When the parties in G. R. No. 76009 stipulated that: "b. Petitioner
Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person."
they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the
court, or in actual confinement or detention, as distinguished from the stipulation concerning his copetitioners, who were to be released in view of the recall of the warrants of arrest against them; they
agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should
be made of the deliberate care of the parties in making a fine distinction between legal custody and
court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the
persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement
that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise,
or had this been unclear to private respondent and his counsel, they should have insisted on the use of a
clearer language. It must be remembered that at the time the parties orally manifested before this Court
on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint
Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private
respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose
Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement
that herein petitioner shall remain in custody of the law, or detention or confinement.

9. ID.; ID.; MAY BE WAIVED BY THE ACCUSED. It is "competent for a person to waive a right
guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will."
This Court has recognized waivers of constitutional rights such as, for example, the right against
unreasonable searches and seizures; the right to counsel and to remain silent; and the right to be heard.
Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights.
Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent
counsel, preferably of his own choice states : ". . . These rights cannot be waived except in writing and in
the presence of counsel." This provision merely particularizes the form and manner of the waiver; it,
nevertheless, clearly suggests that the other rights may be waived in some other form or manner
provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is
another of the Constitutional rights which can be waived. It is a right which is personal to the accused
and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.

do not infringe on the rights of others, and further provided the waiver of the right or privilege is not
forbidden by law, and does not contravene public policy; and the principle is recognized that everyone
has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and
protection of the individual in his private capacity, if it can be dispensed with and relinquished without
infringing on any public right, and without detriment to the community at large. . . . Although the general
rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a
waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it
infringes on the rights of others, or would be against public policy or morals and the public interest may
be waived. While it has been stated generally that all personal rights conferred by statute and
guaranteed by constitution may be waived, it has also been said that constitutional provisions intended
to protect property may be waived, and even some of the constitutional rights created to secure
personal liberty are subjects of waiver."
DECISION

10. CRIMINAL LAW; REBELLION; IMPOSABLE PENALTY AS AMENDED BY R. A. NO. 6968. It must be
stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and
fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took
effect after publication in at least two newspapers of general circulation, amended, among others,
Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it
now reads: "Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes,
maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person
merely participating or executing the commands of others in a rebellion or insurrection shall suffer the
penalty of reclusion perpetua."
11. ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. Republic Act No. 6968 cannot apply to the private
respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws
shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual
criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is serving the same."
12. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DEFINED AND PURPOSE. In defining bail as: ". . . the
security given for the release of a person in custody of the law, . . ." Section 1 of Rule 114 of the Revised
Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that
as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction
and yet secure his appearance at the trial. It presupposes that the person applying for it should be in the
custody of the law or otherwise deprived of liberty.
13. CIVIL LAW; WAIVER OF RIGHT; CONSTRUED. Waiver is defined as "a voluntary and intentional
relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege,
which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender,
by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered
and such person forever deprived of its benefit; or such conduct as warrants an inference of the
relinquishment of such right; or the intentional doing of an act inconsistent with claiming it."
14. ID.; ID.; RULE. As to what rights and privileges may be waived, the authority is settled: ". . . the
doctrine of waiver extends to rights and privileges of any character, and, since the word 'waiver' covers
every conceivable right, it is the general rule that a person may waive any matter which affects his
property, and any alienable right or privilege of which he is the owner or which belongs to him or to
which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by
constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit,

DAVIDE, JR., J p:
The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City
Fiscal of Manila and the Judge a Advocate General, filed the instant petition for certiorari and prohibition,
with a prayer for restraining order/ preliminary injunction, to set aside the order of respondent Judge
dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case
No. 86-48926 for Rebellion, 1 and the subsequent Order dated July 30, 1987 granting the motion for
reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying
petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow
petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987.
The pivotal issues presented before Us are whether the right to bail may, under certain circumstances,
be denied to a person who is charged with an otherwise bailable offense, and whether such right may be
waived.
The following are the antecedents of this petition:
In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial
Court of Manila, later amended in an Amended Information 3 which was filed on 24 October 1986,
private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were charged for the
crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly
committed as follows:
"That in or about 1968 and for some time before said year and
continuously thereafter until the present time, in the City of Manila and
elsewhere in the Philippines, the Communist Party of the Philippines, its
military arm, the New People's Army, its mass infiltration network, the
National Democratic Front with its other subordinate organizations and
fronts, have, under the direction and control of said organizations'
leaders, among whom are the aforenamed accused, and with the aid,
participation or support of members and followers whose whereabouts
and identities are still unknown, risen publicly and taken arms
throughout the country against the Government of the Republic of the

Philippines for the purpose of overthrowing the present Government,

the seat of which is in the City of Manila, or of removing from the
allegiance to that government and its laws, the country's territory or
part of it;
That from 1970 to the present, the above-named accused in their
capacities as leaders of the aforenamed organizations, in conspiracy
with, and in support of the cause of, the organizations aforementioned,
engaged themselves in war against the forces of the government,
destroying property or committing serious violence, and other acts in
the pursuit of their unlawful purpose, such as . . . ."
(then follows the enumeration of specific acts committed before and
after February 1986).
At the time the Information was filed the private respondent and his co-accused were in military custody
following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had
earlier escaped from military detention and a cash reward of P250,000.00 was offered for his capture. 4
A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for
private respondent and his co-accused was filed with this Court 5 which, as shall hereafter be discussed
in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the
parties under which herein private respondent "will remain in legal custody and will face trial before the
court having custody over his person" and the warrants for the arrest of his co-accused are deemed
recalled and they shall be immediately released but shall submit themselves to the court having
jurisdiction over their person.
On November 7, 1986, private respondent filed with the court below a Motion to Quash the Information
alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the
offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the
criminal action or liability has been extinguished, 6 to which petitioner filed an Opposition 7 citing,
among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R.
No. 76009, private respondent categorically conceded that:
xxx xxx xxx
"Par. 2 (b) Petitioner Rodolfo Salas will remain in legal custody and
face trial before the court having custody over his person."
In his Order of March 6, 1987, 8 respondent Judge denied the motion to quash.
Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition
for bail, 9 which herein petitioner opposed in an Opposition filed on 27 May 1987 10 on the ground that
since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which
amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death
on those who promote, maintain, or head a rebellion, the accused is no longer entitled to bail as
evidence of his guilt is strong.
On 5 June 1987 the President issued EXECUTIVE ORDER NO. 187 repealing, among others, P.D. Nos. 1996,
942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed
before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to
exceed P20,000.00, was restored.

EXECUTIVE ORDER NO. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No.
24) which was officially released for circulation on June 26, 1987.
In his Order of 7 July 1987 11 respondent Judge, taking into consideration EXECUTIVE ORDER NO. 187,
granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon
private respondent the additional condition that he shall report to the court once every two (2) months
within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated:
". . . There is no more debate that with the effectivity of EXECUTIVE
ORDER NO. 187, the offense of rebellion, for which accused Rodolfo
Salas is herein charged, is now punishable with the penalty of prision
mayor and a fine not exceeding P20,000.00, which makes it now
bailable pursuant to Section 13, Article III, 1986 Constitution and
Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old
rule, bail is now a matter of right in non-capital offenses before final
judgment. This is very evident upon a reading of Section 3, Rule 114,
aforementioned, in relation to Section 21, same rule. In view, therefore,
of the present circumstances in this case, said accused-applicant is now
entitled to bail as a matter of right inasmuch as the crime of rebellion
ceased to be a capital offense."
As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent
considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all
vestiges of our democracy and to replace it with their ideology, and that his release would allow his
return to his organization to direct its armed struggle to topple the government before whose courts he
invokes his constitutional right to bail, respondent Judge replied:
"True, there now appears a clash between the accused's constitutional
right to bail in a non-capital offense, which right is guaranteed in the Bill
of Rights and, to quote again the prosecution, 'the existence of the
government that bestows the right, the paramount interest of the
state.' Suffice to state that the Bill of Rights, one of which is the right to
bail, is a 'declaration of the rights of the individual, civil, political and
social and economic, guaranteed by the Constitution against
impairment or intrusion by any form of governmental action. Emphasis
is placed on the dignity of man and the worth of individual. There is
recognition of certain inherent and inalienable rights of the individual,
which the government is prohibited from violating' (QuisumbingFernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this
Court, in case of such conflict as now pictured by the prosecution, the
same should be resolved in favor of the individual who, in the eyes of
the law, is alone in the assertion of his rights under the Bill of Rights as
against the State. Anyway, the government is that powerful and strong,
having the resources, manpower and the wherewithals to fight those
'who oppose, threaten (sic) and destroy a just and orderly society and
its existing civil and political institutions.' The prosecution's fear may or
may not be founded that the accused may later on jump bail and rejoin
his comrades in the field to sow further disorders and anarchy against
the duly constituted authorities. But, then, such a fear can not be a
reason to deny him bail. For the law is very explicit that when it comes

to bailable offenses an accused is entitled as a matter of right to bail.

Dura est lex sed lex."
In a motion to reconsider 12 the above order filed on 16 July 1987, petitioner asked the court to increase
the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10
dated 3 July 1987, the bail for the provisional release of an accused should be in an amount computed at
P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and
explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped
from the custody of the military authorities and the offense for which he is charged is not an ordinary
crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his
end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the
government through armed struggle and replace it with an alien system based on a foreign ideology is
attained."
On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly asking the court
to deny bail to the private respondent and to allow it to present evidence in support thereof considering
the "inevitable probability that the accused will not comply with this main condition of his bail to
appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely
known by the People of the Philippines and which this Honorable Court may have judicial notice of:
1. The accused has evaded the authorities for thirteen years and was an
escapee from detention when arrested;
2. He was not arrested at his residence as he had no known address;
3. He was using the false name "Manuel Mercado Castro" at the time of
his arrest and presented a Driver's License to substantiate his false
identity;
4. The address he gave "Panamitan, Kawit, Cavite," turned out to be
also a false address;
5. He and his companions were on board a private vehicle with a
declared owner whose identity and address were also found to be false;
6. Pursuant to Ministry Order No. 1-A dated 11 January 1982,a reward
of P250,000.00 was offered and paid for his arrest,"
which "clearly indicate that the accused does not entertain the slightest intention to appear in
court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the
Communist Party of the Philippines and head of its military arm, the NPA, together with his
followers, are now engaged in an open warfare and rebellion against this government and
threatens the existence of this very Court from which he now seeks provisional release," and that
while he is entitled to bail as a matter of right in view of EXECUTIVE ORDER NO. 187 which
restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when
the interest of the State conflicts with that of an individual, that of the former prevails for "the
right of the State of self-preservation is paramount to any of the rights of an individual enshrined
in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United
States of America holding "that there is no absolute constitutional barrier to detention of
potentially dangerous resident aliens pending deportation proceedings, 14 and that an arrestee
may be incarcerated until trial as he presents a risk of flight; 15 and sustaining a detention prior
to trial of arrestee charged with serious felonies who are found after an adversary hearing to

pose threat to the safety of individuals and to the community which no condition of release can
dispel." 16
On 30 July 1987 respondent Judge handed down the Orders 17 adverted to in the introductory portion of
this decision the dispositive portion of which reads:
"WHEREFORE, in the light of the foregoing considerations, the Court
finds the 'supplemental' motion for reconsideration to be without merit
and hereby denies it but finds the first motion for reconsideration to be
meritorious only insofar as the amount of bail is concerned and hereby
reconsiders its Order of July 7, 1987 only to increase the amount of bail
from P30,000.00 to P50,000.00, subject to the approval of this Court,
and with the additional condition that accused Rodolfo Salas shall
report to the court once every two (2) months within the first ten (10)
days of every period thereof (Almendras vs. Villaluz, et al., L-31665,
August 6, 1975, 66 SCRA 58)."
In denying the supplemental motion for reconsideration the respondent Judge took into account the
"sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for
reconsideration wherein it conceded the right of the private respondent to bail but merely asked to
increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the
petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the
cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a
proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive
bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs.
Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90
Phil. 172.
Unable to agree with said Order, petitioner commenced this petition submitting therein the following
issues:
"THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED
WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS
JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING
REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION
FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY
TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT
OF BAIL TO THE RESPONDENT RODOLFO SALAS.
THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED
WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS
JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT
RODOLFO SALAS."
in support of which petitioner argues that private respondent is stopped from invoking his right
to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody
and face trial before the court having custody of his person" in consideration of the recall of the
warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail,
even in non-capital offenses, is not absolute when there is prima facie evidence that the accused
is a serious threat to the very existence of the State, in which case the prosecution must be
allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with
grave abuse of discretion when he did not allow petitioner to present all the evidence it may

desire to support its prayer for the denial of bail and when he declared that the State has
forfeited its right to do so since during all the time that the petition for bail was pending, it never
manifested, much less hinted, its intention to adduce such evidence. And that even if release on
bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally
P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal
background, the gravity of the pending charge, and the likelihood of flight. 18

In Our resolution of 11 August 1987 19 We required the respondents to comment on the petition and
issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing
his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00.
In his Comment filed on 27 August 1987, 20 private respondent asks for the outright dismissal of the
petition and immediate lifting of the temporary restraining order on the following grounds:
I
RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE
ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS
PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE
FIRST TIME ON APPEAL.
II
RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT
TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.

petition and reply be considered as the Memorandum for petitioner and the Comment as the
Memorandum for private respondent, which We granted in Our resolutions of 19 November 1987 26 and
1 December 1987, 27 respectively.
In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the
issues raised in this petition, 28 which he complied with by filing his Manifestation on 30 May 1990 29
wherein he manifests that he supports the petition and submits that the Order of respondent Judge of
July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had
waived the right to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting
wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to
insure the attendance of the accused at the trial of the case against him, which would be frustrated by
the "almost certainty that respondent Salas will jump bail of whatever amount"; and application of the
guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of
bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right
of the petitioner to hearing on the application of private respondent for bail cannot be denied by
respondent Judge.
And now on the issues presented in this case.
I.
Unquestionably, at the time the original and the amended Informations for rebellion and the application
for bail were filed before the court below the penalty imposable for the offense for which the private
respondent was charged was reclusion perpetua to death. During the pendency of the application for bail
EXECUTIVE ORDER NO. 187 was issued by the President, by virtue of which the penalty for rebellion as
originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the
governing law at the time the respondent court resolved the petition for bail.

III
RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE
(RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS
MANDATED BY THE CONSTITUTION.
IV
THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO
PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO
PRESENT EVIDENCE IS NONEXISTENT AND/OR HAD BEEN WAIVED.
V
THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE
VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS
OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS.
We required the petitioner to reply to the comment of private respondent. 21 The reply was filed on 18
September 1987. 22
In Our resolution of 15 October 1987 23 We gave due course to the petition and required the parties to
file simultaneously their memoranda within twenty days from notice.
In their respective manifestations and motions dated 5 November 24 and 23 November 1987 25
petitioner and private respondents asked to be excused from filing their Memoranda and that the

We agree with the respondent court that bail cannot be denied to the private respondent for he is
charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is
attached the penalty of prision mayor and a fine not exceeding P20,000.00. 30 It is, therefore, a bailable
offense under Section 13 of Article III of the 1987 Constitution which provides thus:
"Sec. 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be prescribed by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required."
Section 3, Rule 114 of the Rules of Court, as amended, also provides:
"Bail, a matter of right: exception. All persons in custody shall, before
final conviction, be entitled to bail as a matter of right, except those
charged with a capital offense or an offense which, under the law at the
time of its commission and at the time of the application for bail, is
punishable by reclusion perpetua, when evidence of guilt is strong."
Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when
the offense charged is punishable by any penalty lower than reclusion perpetua. 31 To that extent the
right is absolute. 32

And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the
accused was already convicted, although erroneously, by the trial court for the complex crime of
rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted
bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the
vigorous stand of the People that We must deny bail to the accused because the security of the State so
requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of
Hernandez is strong, We held:
". . . Furthermore, individual freedom is too basic, too transcendental
and vital in a republican state, like ours, to be derived upon mere
general principles and abstract consideration of public safety. Indeed,
the preservation of liberty is such a major preoccupation of our political
system that, not satisfied with guaranteeing its enjoyment in the very
first paragraph of section (1) of the Bill of Rights, the framers of our
Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13),
(14), (15), (16), (17), (18), and (21) of said section (1) to the protection
of several aspects of freedom."
The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's
ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: LexLib
"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."
Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of
discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to
determining whether or not evidence of guilt is strong. 33 But once it is determined that the evidence of
guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We
held:
"The provision on bail in our Constitution is patterned after similar
provisions contained in the Constitution of the United States and that
of many states of the Union. And it is said that:
'The Constitution of the United States and
the constitution of the many states provide that all
persons shall be bailable by sufficient sureties, except for
capital offenses, where the proof is evident or the
presumption of guilt is great, and, under such provisions,
bail is a matter of right which no court or judge can
properly refuse, in all cases not embraced in the
exceptions. Under such provisions bail is a matter of
right even in cases of capital offenses, unless the proof of
guilt is evident or the presumption thereof is great!" 34

Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the
instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary,
due process requires that the prosecution must be given an opportunity to present, within a reasonable
time, all the evidence that it may desire to introduce before the court should resolve the motion for bail.
35
We agree, however, with petitioner that it was error for the respondent court to fix the bond at
P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the
amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to
the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495:
"Certain guidelines in the fixing of a bailbond call for the presentation
of evidence and reasonable opportunity for the prosecution to refute it.
Among them are the nature and circumstances of the crime, character
and reputation of the accused, the weight of the evidence against him,
the probability of the accused appearing at the trial, whether or not the
accused is a fugitive from justice, and whether or not the accused is
under bond in other case . . . ."
In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an
opportunity to be heard for the purpose of determining the amount of bail, but not for the denial
thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail.

II.
It must, however, be stressed that under the present state of the law, rebellion is no longer punishable
by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October
1990 and which took effect after publication in at least two newspapers of general circulation, amended,
among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as
amended, it now reads:
"Article 135. Penalty for rebellion, insurrection or coup d'etat. Any
person who promotes, maintains, or heads a rebellion or insurrection
shall suffer the penalty of reclusion perpetua.
"Any person merely participating or executing the commands of others
in a rebellion or insurrection shall suffer the penalty of reclusion
perpetua."
xxx xxx xxx
This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its
effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of
this Code, although at the time of the publication of such laws a final sentence has been pronounced and
the convict is serving the same." 36
III.
We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009.

LLpr
On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 8648926 with the trial court, a petition for habeas corpus for herein private respondent, and his co-accused
Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and
Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon
Montao, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of
habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and
his co-accused before the Court and explain by what authority they arrested and detained them. The
following proceedings took place thereafter in said case:
1. In a resolution of 7 October 1986 We issued a writ of habeas corpus,
required respondents to make a return of the writ on or before the
close of office hours on 13 October and set the petition for hearing on
14 October 1986 at 10:00 o'clock in the morning.
2. On 13 October 1986 respondents, through the Office of the Solicitor
General, filed a Return To The Writ of Habeas Corpus alleging therein
that private respondent and Josefina Cruz alias "Mrs. Mercado", and
Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the
military on September 29, 1986 in the evening at the Philippine General
Hospital Compound at Taft Ave., Manila, being leaders or members of
the Communist Party of the Philippines, New People's Army and
National Democratic Front, organizations dedicated to the overthrow of
the Government through violent means, and having actually committed
acts of rebellion under Article 134 of the Revised Penal Code, as
amended. After their arrest they were forthwith charged with rebellion
before Branch XII of the Regional Trial Court, National Capital Region in
Criminal Case No. 86-48926 and on 3 October warrants for their arrest
were issued and respondents continue to detain them because of the
warrants of arrest and the pendency of the criminal cases against them.
Respondents further allege that, contrary to the allegation in the
petition, herein private respondent was not a member of the NDF panel
involved in peace negotiations with the Government; neither is he and
his companions Cruz and Concepcion covered by any safe conduct pass
issued by competent authorities.
3. At the hearing on 14 October 1986 the parties informed the Court of
certain agreements reached between them. We issued a resolution
reading as follows:
"When this case was called for hearing this morning,
Attorneys Romeo Capulong, Arno V. Sanidad, Efren H.
Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon
Cura, and William Chua appeared for the petitioners with
Atty. Capulong arguing for the petitioners. Solicitor
General Sedfrey Ordoez, Assistant Solicitor General
Romeo C. de la Cruz and Trial Attorney Josue E.
Villanueva appeared for the respondents, with Solicitor
General Ordoez arguing for the respondents.
Petitioners' counsel, Atty. Romeo Capulong, manifested

in open Court that in conformity with the agreement

reached with the government, the petition for habeas
corpus will be withdrawn with detainee Rodolfo Salas to
remain under custody, whereas his co-detainees Josefina
Cruz and Jose Milo Concepcion will be released
immediately.
Solicitor General Sedfrey Ordoez, also in open Court,
confirmed the foregoing statement made by petitioners'
counsel regarding the withdrawal of the petition for
habeas corpus, declaring that no objection will be
interposed to the immediate release of detainees
Josefina Cruz and Jose Milo Concepcion, and that no
bond will be required of them, but they will continue to
face trial with their co-accused, Rodolfo Salas; further,
that they will not be rearrested on the basis of the
warrants issued by the trial court provided that they
manifest in open Court their willingness to subject
themselves to the jurisdiction of the Court and to appear
in court when their presence is required.
In addition, he stated that he is willing to confer with
petitioners' counsel today relative to the compromise
agreement that they have previously undertaken to
submit. prcd
Upon manifestation of petitioners' counsel, Atty. Romeo
Capulong, that on his oath as member of the Bar, the
detainees Josefina Cruz and Jose Milo Concepcion have
agreed to subject themselves to the jurisdiction of the
trial court, the Court ordered their immediate release.
Thereafter, the Court approved the foregoing
manifestations and statements and required both parties
to SUBMIT to the Court their compromise agreement by
4:00 o'clock this afternoon. Teehankee, C.J., is on official
leave."
4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties
submitted a Joint Manifestation and Motion duly signed by Atty. Romeo
Capulong, counsel for petitioners, and Solicitor General Sedfrey
Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial
Attorney Josue S. Villanueva, counsel for respondents, which reads as
follows:
"COME NOW petitioners and the respondents, assisted
by their respective counsel, and to this Honorable
Tribunal respectfully manifest:
1. That in the discussion between Romeo Capulong,
petitioners' counsel, and Solicitor General Sedfrey A.
Ordoez on October 13, 1986 exploratory talks were

conducted to find out how the majesty of the law may

be preserved and human considerations may be called
into play.
2. That in the conference both counsel agreed to the
following terms of agreement:
a. The petition for habeas corpus will be withdrawn by petitioners and
Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at
the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No.
4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed
against them under their personal recognizance.
b. Petitioner Rodolfo Salas will remain in legal custody and face trial before
the court having custody over his person.
c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo
Concepcion is hereby deemed recalled in view of formal manifestation before the
Supreme Court that they will submit themselves to the court having jurisdiction over their
person.
3. That on October 14, the Solicitor General was able to
obtain the conformity of the Government to the
foregoing terms which were likewise accepted by
petitioner (sic) and their counsel of record.
4. That the two counsel submitted their oral
manifestation during the hearing on October 14 and the
present manifestation in compliance with the resolution
announced in court this morning.
WHEREFORE, it is prayed that the petition for habeas corpus be
dismissed."
5. On 16 October 1986 We issued the following resolution:
"G.R. No. 76009 [In the Matter of the Petition for Habeas
Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo
Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V.
Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon
Montao and Col. Virgilio Saldajeno] Considering the
Joint Manifestation and Motion dated October 14, 1986
filed by Attorneys Romeo Capulong, Arno V. Sanidad,
Efren H. Mercado and Ricardo Fernandez, Jr. as counsel
for petitioners and Solicitor General Sedfrey A. Ordoez
and Assistant Solicitor General Romeo C. de la Cruz and
Trial Attorney Josue S. Villanueva as counsel for
respondents which states that they have entered into an
agreement whereby: [a] the petition for habeas corpus
will be withdrawn by petitioners, and Josefina Cruz and
Jose Milo Concepcion will be immediately released but
shall appear at the trial of the criminal case for rebellion

[People vs. Rodolfo Salas, et al., Criminal Case No. 4886,

Regional Trial Court, National Capital Judicial Region,
Branch XII, Manila], filed against them, on their personal
recognizance; [b] petitioner Rodolfo Salas will remain in
legal custody and face trial before the court having
custody over his person; and [c] the warrant of arrest for
the person of Josefina Cruz and Jose Milo Concepcion is
hereby deemed recalled in view of the formal
manifestation before this Court that they will submit
themselves to the court having jurisdiction over their
person and in view of the said agreement, the petition
for habeas corpus be dismissed, the Court Resolved to
DISMISS the petition for habeas corpus but subject to
the condition that petitioners' lead counsel, Atty.
Capulong, upon his oath as member of the Bar, shall
abide by his commitment to ensure the appearance of
Josefina Cruz and Jose Milo Concepcion at the trial of the
criminal case for rebellion filed against them. Teehankee,
C.J., is on official leave."

It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even
during the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." 37 Upon
the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for
in their petition for habeas corpus they precisely questioned the legality of the arrest and the continued
detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court
or by the compromise agreement of the parties but left open for further determination in another
proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by
this Court, and the legal steps promptly taken by private respondent after the agreement was reached,
like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were
clear and positive assertions of his statutory and constitutional rights to be granted not only provisional
but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as
used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to
be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver.
Interestingly, private respondent admits that:
"'Custody' has been held to mean nothing less than actual
imprisonment. It is also defined as the detainer of a person by virtue of
a lawful authority, or the 'care and possession of a thing or person.'
(Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citing Smith v.
Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306)"
He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled
jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for
admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38
When the parties in G.R. No. 76009 stipulated that:
"b. Petitioner Rodolfo Salas will remain in legal custody and face trial
before the court having custody over his person."

they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of
the court, or in actual confinement or detention, as distinguished from the stipulation concerning
his co-petitioners, who were to be released in view of the recall of the warrants of arrest against
them; they agreed, however, "to submit themselves to the court having jurisdiction over their
persons." Note should be made of the deliberate care of the parties in making a fine distinction
between legal custody and court having custody over the person in respect to Rodolfo Salas and
court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely
intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain
in custody. Had the parties intended otherwise, or had this been unclear to private respondent
and his counsel, they should have insisted on the use of a clearer language. It must be
remembered that at the time the parties orally manifested before this Court on 14 October 1986
the terms and conditions of their agreement and prepared and signed the Joint Manifestation
and Motion, a warrant of arrest had already been issued by the trial court against private
respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz
and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed
the agreement that herein petitioner shall remain in custody of the law, or detention or
confinement. cdrep
In defining bail as:
". . . the security given for the release of a person in custody of the
law, . . ."
Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for
the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an
accused from imprisonment until his conviction and yet secure his appearance at the trial. 39 It
presupposes that the person applying for it should be in the custody of the law or otherwise
deprived of liberty. 40
Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had
unequivocably waived his right to bail.
But, is such waiver valid?
Article 6 of the Civil Code expressly provides:
"Art. 6. Rights may be waived, unless the waiver is contrary to law,
public order, public policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law."
Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing
legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have
enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist,
with the intent that such right shall be surrendered and such person forever deprived of its benefit; or
such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an
act inconsistent with claiming it." 41
As to what rights and privileges may be waived, the authority is settled:
". . . the doctrine of waiver extends to rights and privileges of any
character, and, since the word 'waiver' covers every conceivable right, it
is the general rule that a person may waive any matter which affects his

property, and any alienable right or privilege of which he is the owner

or which belongs to him or to which he is legally entitled, whether
secured by contract, conferred with statute, or guaranteed by
constitution, provided such rights and privileges rest in the individual,
are intended for his sole benefit, do not infringe on the rights of others,
and further provided the waiver of the right or privilege is not
forbidden by law, and does not contravene public policy; and the
principle is recognized that everyone has a right to waive, and agree to
waive, the advantage of a law or role made solely for the benefit and
protection of the individual in his private capacity, if it can be dispensed
with and relinquished without infringing on any public right, and
without detriment to the community at large. . . . .
Although the general rule is that any right or privilege conferred by
statute or guaranteed by constitution may be waived, a waiver in
derogation of a statutory right is not favored, and a waiver will be
inoperative and void if it infringes on the rights of others, or would be
against public policy or morals and the public interest may be waived.
prcd
While it has been stated generally that all personal rights conferred by
statute and guaranteed by constitution may be waived, it has also been
said that constitutional provisions intended to protect property may be
waived, and even some of the constitutional rights created to secure
personal liberty are subjects of waiver." 42
In Commonwealth vs. Petrillo, 43 it was held:
"Rights guaranteed to one accused of a crime fall naturally into two
classes: (a) those in which the state, as well as the accused, is
interested; and (b) those which are personal to the accused, which are
in the nature of personal privileges. Those of the first class cannot be
waived; those of the second may be."
It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action
which would be invalid if taken against his will." 44
This Court has recognized waivers of constitutional rights such as, for example, the right against
unreasonable searches and seizures; 45 the right to counsel and to remain silent; 46 and the right to be
heard. 47
Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights.
Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent
counsel, preferably of his own choice states:
". . . These rights cannot be waived except in writing and in the
presence of counsel."
This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests
that the other rights may be waived in some other form or manner provided such waiver will not offend
Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a
right which is personal to the accused and whose waiver would not be contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.
prLL
The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private
respondent.

CESAR DE LA PEA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT.

FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA
CAPT. ELMER AMON PAF, CAPT. VERGEL NACINO, and LT. JOEY
SARROZA, petitioners, vs. BGEN. DEMETRIO CAMUA, COL. HERMINIO
A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY
FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T.
MALLILLIN, PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL
NO. 14, respondents.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 8648926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz
alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED
and SET ASIDE.
SO ORDERED.
||| (People v. Donato, G.R. No. 79269, June 05, 1991)
BGEN. JOSE COMENDADOR, BGEN. MARIELO BLANDO, CAPT. DANILO
PIZARRO, CAPT. MANUEL ISON, COL. LUISITO SANCHEZ, LTC.
ROMELINO GOJO, LTC. ARSENIO TECSON, LTC. RAFAEL GALVEZ, LTC.
TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT, LTC.
FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA
PEA, MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT.
JAIME JUNIO, CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL
NACINO, and LT. JOEY SARROZA, petitioners, vs. GEN. RENATO S. DE
VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL
COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO
L. DAGZA, MAJ. FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA,
and GENERAL COURT-MARTIAL NO. 14 COMPOSED OF: BGEN.
DEMETRIO CAMUA, COL. HERMINIO A. MENDOZA, COL. ERNESTO B.
YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A.
VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents.

[G.R. No. 97454. August 2, 1991.]

AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF
STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL
MAJOR GEN. CESAR NAZARENO and LT. COL. ALBERTO OLARIO,
Commanding Officer of the PNP/INP Detention Center/Jail, petitioners,
vs. HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court,
Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL. 1LT.
SERVANDO A. BAOANAN PN(M), 1LT. WILFREDO JIMENEZ PAF, 1LT.
ATANACIO T. MACALAN, JR PM(M), 2LT. ELISEO T. RASCO PC, 2LT.
JONAS CALLEJA PC, 2LT. JAIRUS JS. GELVEZON III PM M), 2LT. JOSELITO
CABREROS PM(M), 2LT. MEMEL ROJAS PN(M) and 2LT. HERMINIO L.
CANTACO PC, respondents.

Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero, Ericson
Aurelio, Levino Valencia, Danilo Amon, Vergel Nacino, Florencio Flores, Benigno Junio and Joey Sarroza.
Manuel Q. Malvar for Rafael Galvez and Danny Lim.
Manuel E. Valenzuela for Arsenio Tecson.
Mariano R. Santiago for Alfredo Oliveros.

[G.R. No. 95020. August 2, 1991.]

Ricardo J.M. Rivera for Manuel Ison.
BGEN. DEMETRIO CAMUA, COL. HERMINIO A. MENDOZA, COL.
ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY
A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, petitioners, vs. HON.
MAXIMIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL
TRIAL COURT, Q.C., LTC. JACINTO LIGOT, PA., respondents.

Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.

Alfredo Lazaro for Romelino Gojo.
Manuel A. Barcelona, Jr. for Jose Comendador.
Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando.

[G.R. No. 96948. August 2, 1991.]

Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.
BGEN. JOSE COMENDADOR, BGEN. MARCELO BLANDO, CAPT. DANILO
PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M),
LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ PA, LTC. TIBURCIO
FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC. JACINTO LIGOT, PA,
LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ.

Efren C. Moncupa for A.L. Tecson.

M.M. Lazaro & Associates for respondents Ligot and Ison.

Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot.

You are hereby directed to appear in person before the undersigned

Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall,
Camp Crame Quezon City, then and there to submit your counteraffidavit and the affidavits of your witnesses, if any, in the pre-trial
investigation of the charge/charges against you for viol of AWs
________. DO NOT SUBMIT A MOTION TO DISMISS.

Salvador B. Britanico for Cesar de la Pea.

Gilbert R.T. Reyes for Danilo Pizarro.
Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177.

Failure to submit the aforementioned counter-affidavits on the date

above specified shall be deemed a waiver of your right to submit
controverting evidence.

The Solicitor General for respondents.

DECISION

On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements
of witnesses, and death and medical certificates of victims of the rebellion.

CRUZ, J p:

At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting
the PTI Panel to grant them 10 days within which to file their objections in writing. This was done
through a Motion for Summary Dismissal dated February 21, 1990.

These four cases have been consolidated because they involve practically the same parties and related
issues arising from the same incident.

In a resolution dated February 27, 1990, the PTI Panel denied the motion and gave the petitioners 5 days
from notice to submit their respective counter-affidavits and the affidavits of their witnesses.

The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454
are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in
the failed coup d'etat that took place on December 1 to 9, 1989.

On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI
Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14, 1990.

The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct
Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the
Revised Penal Code (Murder).
In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the
conduct of the Pre-Trial Investigation (PTI) Panel constituted to investigate the charges against them and
the creation of the General Court Martial (GCM) convened to try them.
In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against
its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408.
In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are
assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either
to set aside its ruling denying bail to the private respondents.
In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City
in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections
are likewise raised as in G.R. No. 95020.
I
Before the charges were referred to GCM No. 14, a Pre-Trial Investigation (PTI) Panel had been
constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R.
Nos. 93177 and 96948.
The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the
petitioners, to wit:

The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article
of War 71, which provides:
ARTICLE 71. Charges; Action upon. Charges and specifications must
be signed by a person subject to military law, and under the oath either
that he has personal knowledge of, or has investigated, the matters set
forth therein and that the same are true in fact, to the best of his
knowledge and belief.
No charge will be referred to a general court-martial for trial until after
a thorough and impartial investigation thereof shall have been made.
This investigation will include inquiries as to the truth of the matter set
forth in said charges, form of charges, and what disposition of the case
should be made in the interest of justice and discipline. At such
investigation full opportunity shall be given to the accused to crossexamine witnesses against him if they are available and to present
anything he may desire in his own behalf either in defense or mitigation,
and the investigating officer shall examine available witnesses
requested by the accused. If the charges are forwarded after such
investigation, they shall be accompanied by a statement of the
substance of the testimony taken on both sides. (Emphasis supplied.)
They also allege that the initial hearing of the charges consisted merely of a roll call and that no
prosecution witnesses were presented to reaffirm their affidavits. While the motion for summary
dismissal was denied, the motion for reconsideration remains unresolved to date and they have not
been able to submit their counter-affidavits.
At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising

their right to raise peremptory challenges against the president and members of GCM No. 14. They
invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory
challenges had been discontinued under P.D. No. 39.
In G.R. No. 95020, Ltc. Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by
GCM No. 14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and
mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the
petition and the answer thereto filed by the president and members of GCM No. 14, Judge Maximiano C.
Asuncion issued an order granting provisional liberty to Ligot.
On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare
in contempt the commanding officer of the PC/INP Jail for disobeying the said order. He later also
complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of
the appeal to be taken" to this Court.
After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of
intervenors Ltc. Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of
additional intervenors Ltc. Romelino Gojo and Capt. Manuel Ison.

On August 22, 1990, the trial court rendered judgment inter alia.
(a) Declaring, that Section 13, Article III of the Constitution granting the
right to bail to all persons with the defined exception is applicable and
covers all military men facing court-martial proceedings. Accordingly,
the assailed orders of General Court-Martial No. 14 denying bail to
petitioner and intervenors on the mistaken assumption that bail does
not apply to military men facing court-martial proceedings on the
ground that there is no precedent, are hereby set aside and declared
null and void. Respondent General Court-Martial No. 14 is hereby
directed to conduct proceedings on the applications of bail of the
petitioner, intervenors and which may as well include other persons
facing charges before General Court-Martial No. 14
Pending the proceedings on the applications for bail before General
Court-Martial No. 14, this Court reiterates its orders of release on the
provisional liberty of petitioner Jacinto Ligot as well as intervenors
Franklin Brawner and Arsenio Tecson.
On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for
habeas corpus on the ground that they were being detained in Camp Crame without charges. The
petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent
Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the
petitioners after more than a year after their arrest, the trial court ordered their release.
II
The Court has examined the records of this case and rules as follows.
It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present
their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then

again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to
submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration
which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in
effect denied when the PTI Panel resolved to recommend that the charges be referred to the General
Court Martial for trial.
The said petitioners cannot now claim they have been denied due process because the investigation was
resolved against them owing to their own failure to submit their counter-affidavits. They had been
expressly warned in the subpoena sent them that "failure to submit the aforementioned counteraffidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting
evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel
was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their
defense.
Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of,
it is deemed waived or forfeited without violation of the Bill of Rights.
There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now
settled that "even a failure to conduct a pre-trial investigation does not deprive a general court-martial
of jurisdiction." We so held in Arula v. Espino, 1 thus:
xxx xxx xxx
But even a failure to conduct a pre-trial investigation does not deprive a
general court-martial of jurisdiction.
The better accepted concept of pre-trial investigation is that it is
directory, not mandatory, and in no way affects the jurisdiction of a
court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949),
the Court said:
"We do not think that the pre-trial investigation
procedure by Article 70 (The Philippine counterpart is
article of war 71, Commonwealth Act 408) can properly
be construed as an indispensable pre-requisite to the
exercise of Army general court martial jurisdiction. The
Article does serve important functions in the
administration of court-martial procedures and does
provide safeguards to an accused. Its language is clearly
such that a defendant could object to trial in the absence
of the required investigation. In that event the courtmartial could itself postpone trial pending the
investigation. And the military reviewing authorities
could consider the same contention, reversing a courtmartial conviction where failure to comply with Article
70 has substantially injured an accused. But we are not
persuaded that Congress intended to make otherwise
valid court-martial judgments wholly void because pretrial investigations fall short of the standards prescribed
by Article 70. That Congress has not required analogous
pre-trial procedure for Navy court-martial is an
indication that the investigatory plan was not intended

to be exalted to the jurisdictional level.

xxx xxx xxx
Shortly after enactment of Article 70 in
1920 the Judge Advocate General of the Army did hold
that where there had been no pre-trial investigation,
court-martial proceedings were void ab initio. But this
holding has been expressly repudiated in later holdings
of the Judge Advocate General. This later interpretation
has been that the pre-trial requirements of Article 70 are
directory, not mandatory, and in no way effect the
jurisdiction of a court-martial. The War Department's
interpretation was pointedly called to the attention of
Congress in 1947 after which Congress amended Article
70 but left unchanged the language here under
consideration."
A trial before a general court-martial convened without any pretrial
investigation under article of war 71 would of course be altogether
irregular; but the court-martial might nevertheless have jurisdiction.
Significantly, this rule is similar to the one obtaining in criminal
procedure in the civil courts to the effect that absence of preliminary
investigation does not go into the jurisdiction of the court but merely to
the regularity of the proceedings.
As to what law should govern the conduct of the preliminary investigation, that issue was resolved more
than two years ago in Kapunan v. De Villa, 2 where we declared:
The Court finds that, contrary to the contention of petitioners, there
was substantial compliance with the requirements of law as provided in
the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The
amended charge sheets, charging petitioners and their co-respondents
with mutiny and conduct unbecoming an officer, were signed by Maj.
Antonio Ruiz, a person subject to military law, after he had investigated
the matter through an evaluation of the pertinent records, including
the reports of respondent AFP Board of Officers, and was convinced of
the truth of the testimonies on record. The charge sheets were sworn
to by Maj. Ruiz, the "accuser," in accordance with and in the manner
provided under Art. 71 of the Articles of War. Considering that P.D. No.
77, as amended by P.D. No. 911, is only of suppletory application, the
fact that the charge sheets were not certified in the manner provided
under said decrees, i.e., that the officer administering the oath has
personally examined the affiant and that he is satisfied that they
voluntarily executed and understood his affidavit, does not invalidate
said charge sheets. Thereafter, a "pretrial investigation" was conducted
by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as
amended by P.D. No. 911, petitioners were subpoenaed and required
to file their counter-affidavit. However, instead of doing so, they filed
an untitled pleading seeking the dismissal of the charges against them.
That petitioners were not able to confront the witnesses against them
was their own doing, for they never even asked Maj. Baldonado to

subpoena said witnesses so that they may be made to answer

clarificatory questions in accordance with P.D. No. 77, as amended by
P.D. No. 911.
The petitioners also allege that GCM No. 14 has not been constituted in accordance with Article 8 of the
Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by
Gen. Renato de Villa as Chief of Staff.
Article of War No. 8 reads:
ARTICLE 8. General Courts-Martial. The President of the Philippines,
the Chief of Staff of the Armed Forces of the Philippines, the Chief of
Constabulary and, when empowered by the President, the commanding
officer of a major command or task force, the commanding officer of a
division, the commanding officer of a military area, the superintendent
of the Military Academy, the commanding officer of a separate brigade
or body of troops may appoint general courts-martial; but when any
such commander is the accuser or the prosecutor of the person or
persons to be tried, the court shall be appointed by superior competent
authority . . .
While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he
authorized it because the order itself said it was issued "By Command of General De Villa" and it has not
been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed
that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president
and members. It is significant that General De Villa has not disauthorized or revoked or in any way
disowned the said order, as he would certainly have done if his authority had been improperly invoked.
On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M-6 in
the Comment filed for him and the other respondents by the Solicitor General.
Coming now to the right to peremptory challenge, we note that this was originally provided for under
Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to
wit:
ARTICLE 18. Challenges. Members of general or special courtsmartial may be challenged by the accused or the trial judge advocate
for cause stated to the court. The court shall determine the relevancy
and validity thereof, and shall not receive a challenge to more than one
member at a time. Challenges by the trial judge advocate shall
ordinarily be presented and decided before those by the accused are
offered. Each side shall be entitled to the peremptory challenge, but
the law member of the court shall not be challenged except for cause.

The history of peremptory challenge was traced in Martelino v. Alejandro, 3 thus:

In the early formative years of the infant Philippine Army, after the
passage in 1935 of Commonwealth Act No. 1 (otherwise known as the
National Defense Act), except for a handful of Philippine Scout officers
and graduates of the United States military and naval academies who
were on duty with the Philippine Army, there was a complete dearth of

officers learned in military law, this aside from the fact that the officer
corps of the developing army was numerically inadequate for the
demands of the strictly military aspects of the national defense
program. Because of these considerations it was then felt that
peremptory challenges should not in the meanwhile be permitted and
that only challenges for cause, in any number, would be allowed. Thus
Article 18 of the Articles of War (Commonwealth Act No. 408), as
worded on September 14, 1938, the date of the approval of the Act,
made no mention or reference to any peremptory challenge by either
the trial judge advocate of a court-martial or by the accused. After
December 17, 1958, when the Manual for Courts-Martial of the
Philippine Army became effective, the Judge Advocate General's Service
of the Philippine Army conducted a continuing and intensive program
of training and education in military law, encompassing the length and
breadth of the Philippines. This program was pursued until the
outbreak of World War II in the Pacific on December 7, 1941. After the
formal surrender of Japan to the allies in 1945, the officer corps of the
Armed Forces of the Philippines had expanded to a very large number,
and a great many of the officers had been indoctrinated in military law.
It was in these environmental circumstances that Article of War 18 was
amended on June 12, 1948 to entitle "each side" to one peremptory
challenge, with the sole proviso that "the law member of court shall not
be challenged except for cause."
On September 27, 1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of
the Armed Forces to create military tribunals "to try and decide cases of military personnel and such
other cases as may be referred to them."
On November 7, 1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction,
Procedure, and other matters relevant to Military Tribunals). This decree disallowed the peremptory
challenge, thus:
No peremptory challenge shall be allowed. Challenges for cause may be
entertained to insure impartiality and good faith. Challenges shall
immediately be heard and determined by a majority of the members
excluding the challenged member. A tie vote does not disqualify the
challenged member. A successfully challenged member shall be
immediately replaced.
On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which
was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the
continuing threats to the existence, security and stability of the State." The modified rule on challenges
under P.D. No. 39 was embodied in this decree.
On January 17, 1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of
martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the
dissolution of the military tribunals created pursuant thereto upon final determination of the cases
pending therein.
P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned
therein. With the termination of martial law and the dissolution of the military tribunals created
thereunder, the reason for the existence of P.D. No. 39 ceased automatically.

It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases.
Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima:
the reason of law is its soul.
Applying these rules, we hold that the withdrawal of the right to peremptory challenge in P.D. No. 39
became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation
No. 2045. As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived
and now again allows the right to peremptory challenge.
We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains
withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law
was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer
operative, having been cast out under the new dispensation as, in the words of the Freedom
Constitution, one of the "iniquitous vestiges of the previous regime."
The military tribunal was one of the most oppressive instruments of martial law. It is curious that the
present government should invoke the rules of that discredited body to justify its action against the
accused officers.
The Court realizes that the recognition of the right to peremptory challenge may be exploited by a
respondent in a court-martial trial to delay the proceedings and defer his deserved punishment. It is
hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of
Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not
to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on
their adverse effects. This is a problem only the political departments can resolve.
The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and
mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial
Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces
accused of violations of the Articles of War, the respondent courts have no authority to order their
release and otherwise interfere with the court-martial proceedings.
The petitioners further contend that under Sec. 9(3) of BP 129, the Court of Appeals is vested with
"exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather
irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals, 4 where this Court held that
"appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of
Appeals."
It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to
the remedies employed by the accused officers before the respondent courts.
In Martelino, we observed as follows:
It is true that civil courts as a rule exercise no supervision or correcting
power over the proceedings of courts-martial, and that mere errors in
their proceedings are not open to consideration. The single inquiry, the
test, is jurisdiction. But it is equally true that in the exercise of their
undoubted discretion, courts-martial may commit such an abuse of
discretion what in the language of Rule 65 is referred to as "grave
abuse of discretion" as to give rise to a defect in their jurisdiction.
This is precisely the point at issue in this action suggested by its nature

as one for certiorari and prohibition . . .

The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court
over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on
petitions for habeas corpus and quo warranto. 5 In the absence of a law providing that the decisions,
orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the
Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar
jurisdiction.
We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not
been recognized and is not available in the military, as an exception to the general rule embodied in the
Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is
given more emphasis in the military where the right to bail does not exist."
The justification for this exception was well explained by the Solicitor General as follows:
The unique structure of the military should be enough reason to
exempt military men from the constitutional coverage on the right to
bail.
Aside from structural peculiarity, it is vital to note that mutinous
soldiers operate within the framework of democratic system, are
allowed the fiduciary use of firearms by the government for the
discharge of their duties and responsibilities and are paid out of
revenues collected from the people. All other insurgent elements carry
out their activities outside of and against the existing political system.
xxx xxx xxx
National security considerations should also impress upon this
Honorable Court that release on bail of respondents constitutes a
damaging precedent. Imagine a scenario of say 1,000 putschists
roaming the streets of the Metropolis on bail, or if the assailed July 25,
1990 Order were sustained, on 'provisional' bail. The sheer number
alone is already discomforting. But, the truly disquieting thought is that
they could freely resume their heinous activity which could very well
result in the overthrow of duly constituted authorities, including this
Honorable Court, and replace the same with a system consonant with
their own concept of government and justice.
The argument that denial from the military of the right to bail would violate the equal protection clause
is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and
does not apply where the subject of the treatment is substantially different from others. The accused
officers can complain if they are denied bail and other members of the military are not. But they cannot
say they have been discriminated against because they are not allowed the same right that is extended
to civilians.

The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred
to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26,
1991, by the respondent court, where the petitioners submitted the charge memorandum and
specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant
to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12,
1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge
sheets and specifications and were required to submit their counter-affidavits on or before April 11,
1991. There was indeed a delay of more than one year in the investigation and preparation of the
charges against the private respondents. However, this was explained by the Solicitor General thus:
. . . The AFP Special Investigating Committee was able to complete its
pre-charge investigation only after one (1) year because hundreds of
officers and thousands of enlisted men were involved in the failed coup.
All of them, as well as other witnesses, had to be interviewed or
investigated, and these inevitably took months to finish. The pre-charge
investigation was rendered doubly difficult by the fact that those
involved were dispersed and scattered throughout the Philippines. In
some cases, command units, such as the Scout Rangers, have already
been disbanded. After the charges were completed, the same still had
to pass review and approval by the AFP Chief of Staff.
While accepting this explanation, the Court nevertheless must reiterate the following admonition:
This Court as protector of the rights of the people, must stress the point
that if the participation of petitioner in several coup attempts for which
he is confined on orders of Adjutant General Jorge Agcaoili cannot be
established and no charges can be filed against him or the existence of
a prima facie case warranting trial before a military commission is
wanting, it behooves respondent then Major General Rodolfo Biazon
(now General) to release petitioner. Respondents must also be
reminded that even if a military officer is arrested pursuant to Article 70
of then Articles of War, indefinite confinement is not sanctioned, as
Article 71 thereof mandates that immediate steps must be taken to try
the person accused or to dismiss the charge and release him. Any
officer who is responsible for unnecessary delay in investigating or
carrying the case to a final conclusion may even be punished as a court
martial may direct. 6
It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991,
the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was
ultimately denied, after hearing, on March 4, 1991. The 48-hour period for appeal under Rule 41, Section
18, of the Rules of Court did not run until after notice of such denial was received by the petitioners on
March 12, 1991. Contrary to the private respondents' contention, therefore, the decision had not yet
become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on
March 12, 1991.
III

On the contention of the private respondents in G.R. No. 97454 that they had not been charged after
more than one year from their arrest, our finding is that there was substantial compliance with the
requirements of due process and the right to a speedy trial.

Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the
Court in Arula:
The referral of charges to a court-martial involves the exercise of

judgment and discretion (AW 71). A petition for certiorari, in order to

prosper, must be based on jurisdictional grounds because, as long as
the respondent acted with jurisdiction, any error committed by him or
it in the exercise thereof will amount to nothing more than an error of
judgment which may be reviewed or corrected only by appeal. Even an
abuse of discretion is not sufficient by itself to justify the issuance of a
writ of certiorari.
As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of
discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal
of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where
we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and
97454, where the private respondents should not have been ordered released.
ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the
petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of
peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions
are also GRANTED, and the orders of the respondent courts for the release of the private respondents
are hereby REVERSED and SET ASIDE. No costs.
SO ORDERED.
||| (Comendador v. De Villa, G.R. No. 93177, 95020, 96948, 97454, August 02, 1991)
RICARDO L. MANOTOC, JR., petitioner, vs. THE COURT OF APPEALS,
HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as Judges
of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF
THE PHILIPPINES, the SECURITIES & EXCHANGE COMMISSION, HON.
EDMUNDO M. REYES, as Commissioner of Immigration, and the Chief
of the Aviation Security Command (AVSECOM), respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; PROHIBITION AGAINST LEAVING THE PHILIPPINES, A
NECESSARY CONSEQUENCE THEREOF. A court has the power to prohibit a person admitted to bail
from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond.
The condition imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held in People v. Uy
Tuising, 61 Phil. 404 (1935). ". . . the result of the obligation assumed by appellee (surety) to hold the
accused amenable at all times to the orders and processes of the lower court, was to prohibit said
accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes
will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend
beyond that of the Philippines they would have no binding force outside of said jurisdiction." Indeed, if
the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond
the reach of the courts.
2. ID.; ID.; ID.; DEFINED. Rule 114, Section 1 of the Rules of Court defines bail as the security required
and given for the release of a person who is in the custody of the law, that he will appear before any

court in which his appearance may be required as stipulated in the bail bond or recognizance.
3. ID.; ID.; ID.; OBJECT. Its object is to relieve the accused of imprisonment and the state of the burden
of keeping him, pending the trial, and at the same time, to put the accused as much under the power of
the court as if he were in custody of proper officer, and to secure the appearance of the accused so as to
answer the call of the court and do what the law may require of him.
4. ID.; ID.; ID.; EFFECT. The effect of a recognizance or bail bond, when fully executed or filed of record,
and the prisoner released thereunder, is to transfer the custody of the accused from the public officials
who have him in their charge to keepers of his own selection. Such custody has been regarded merely as
a continuation of the original imprisonment. The sureties become invested with full authority over the
person of the principal and have the right to prevent the principal from leaving the state. If the sureties
have the right to prevent the principal from leaving the state, more so then has the court from which the
sureties merely derive such right, and whose jurisdiction over the person of the principal remains
unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by
petitioner himself, notwithstanding his allegation that he is at total liberty to leave the country, for he
would not have filed the motion for permission to leave the country in the first place, if it were otherwise.
5. ID.; ID.; ID.; SHEPHERD CASE (C.A.-G.R. No. 23505-R, February 13, 1980) DIFFERENTIATED FROM CASE
AT BAR. To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in
People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage:
". . . The law obliges the bondsmen to produce the person of the appellants at the pleasure of the
Court. . . . The law does not limit such undertaking of the bondsmen as demandable only when the
appellants are in the territorial confines of the Philippines and not demandable if the appellants are out
of the country. Liberty, the most important consequence of bail, albeit provisional, is indivisible. If
granted at all, liberty operates as fully within as without the boundaries of the granting state. This
principle perhaps accounts for the absence of any law or jurisprudence expressly declaring that liberty
under bail does not transcend the territorial boundaries of the country." The faith reposed by petitioner
on the above-quoted opinion of the appellate court is misplaced. The rather broad and generalized
statement suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence
expressly declaring that liberty under bail does not transcend the territorial boundaries of the country, it
is not for the reason suggested by the appellate court. Also, petitioner's case is not on all fours with the
Shepherd case. In the latter case, the accused was able to show the urgent necessity for her travel
abroad, the duration thereof and the conforme of her sureties to the proposed travel thereby satisfying
the court that she would comply with the conditions of her bail bond. In contrast, petitioner in this case
has not satisfactorily shown any of the above.
6. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; LACK OF GRAVE ABUSE OF DISCRETION WHERE DENIAL OF
MOTION FOR PERMISSION TO LEAVE THE COUNTRY WAS PREMISED ON THE FAILURE OF PETITIONER TO
SATISFY THE TRIAL COURT OF THE URGENCY OF HIS TRAVEL. As petitioner has failed to satisfy the trial
courts and the appellate court of the urgency of his travel, the duration thereof, as well as the consent of
his surety to the proposed travel, We find no abuse of judicial discretion in their having denied
petitioner's motion for permission to leave the country, in much the same way, albeit with contrary
results, that We found no reversible error to have been committed by the appellate court in allowing
Shepherd to leave the country after it had satisfied itself that she would comply with the conditions of
her bail bond.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; LIBERTY OF ABODE AND TRAVEL; IMPAIRED BY ORDER OF THE
TRIAL COURT RELEASING PETITIONER ON BAIL. The constitutional right to travel being invoked by
petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states: "The liberty of
abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in
the interest of national security, public safety or public health." To our mind, the order of the trial court

releasing petitioner on bail constitutes such lawful order as contemplated by the above-quoted
constitutional provision.
DECISION

trip.
"In view thereof, permission to leave the country is denied Ricardo
Manotoc, Jr. now or in the future until these two (2) cases are
terminated." 2
On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:

FERNAN, J p:
The issue posed for resolution in this petition for review may be stated thus: Does a person facing a
criminal indictment and provisionally released on bail have an unrestricted right to travel?
Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management,
Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of
the latter into the hands of professional men, he holds no officer-position in said business, but acts as
president of the former corporation. LexLib

"6. Finally, there is also merit in the prosecution's contention that if

the Court would allow the accused to leave the Philippines the surety
companies that filed the bail bonds in his behalf might claim that they
could no longer be held liable in their undertakings because it was the
Court which allowed the accused to go outside the territorial
jurisdiction of the Philippine Court, should the accused fail or decide
not to return.

"WHEREFORE, the motion of the accused is

Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction,
petitioner, who was then in the United States, came home, and together with his co-stockholders, filed a
petition with the Securities and Exchange Commission for the appointment of a management committee,
not only for Manotoc Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition
relative to the Manotoc Securities, Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the
Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo
Manotoc, Jr., Petitioners", was granted and a management committee was organized and appointed.
Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the
then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a
memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the
Immigration Regulation Division.
When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake,
six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as
president and vice-president, respectively, of Manotoc Securities, Inc. In due course, corresponding
criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance of
Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon, and
Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove. In all cases, petitioner has been
admitted to bail in the total amount of P105,000.00, with FGU Insurance Corporation as surety.

DENIED." 3
It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or
withdrawal of the latter's memorandum dated February 4, 1980, but said request was also denied in a
letter dated May 27, 1982.
Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals 4 seeking
to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as
the communication-request of the Securities and Exchange Commission, denying his leave to travel
abroad. He likewise prayed for the issuance of the appropriate writ commanding the Immigration
Commissioner and the Chief of the Aviation Security Command (AVSECOM) to clear him for departure.
On October 5,1982, the appellate court rendered a decision 5 dismissing the petition for lack of merit.

"Accused Ricardo Manotoc Jr. desires to leave for the United States on
the all embracing ground that his trip is '. . . relative to his business
transactions and opportunities.'

Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on certiorari.
Pending resolution of the petition to which we gave due course on April 14, 1983 6 petitioner filed on
August 15, 1984 a motion for leave to go abroad pendente lite. 7 In his motion, petitioner stated that his
presence in Louisiana, U.S.A. is needed in connection "with the obtention of foreign investment in
Manotoc Securities, Inc." 8 He attached the letter dated August 9, 1984 of the chief executive officer of
the Exploration Company of Louisiana, Inc., Mr. Marsden W. Miller 9 requesting his presence in the
United States to "meet the people and companies who would be involved in its investments." Petitioner,
likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court
of Makati (formerly Nos. 45542-45545) had been dismissed as to him "on motion of the prosecution on
the ground that after verification of the records of the Securities and Exchange Commission . . . (he) was
not in any way connected with the Manotoc Securities, Inc. as of the date of the commission of the
offenses imputed to him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati,
however, remained pending as Judge Camilon, when notified of the dismissal of the other cases against
petitioner, instead of dismissing the cases before him, ordered merely the informations amended so as
to delete the allegation that petitioner was president and to substitute that he was "controlling/majority
stockholder," 11 of Manotoc Securities, Inc. prLL

"The Court sees no urgency from this statement. No matter of any

magnitude is discerned to warrant judicial imprimatur on the proposed

On September 20, 1984, the Court in a resolution en banc denied petitioner's motion for leave to go
abroad pendente lite. 12

On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for
permission to leave the country", stating as ground therefor his desire to go to the United States,
"relative to his business transactions and opportunities." 1 The prosecution opposed said motion and
after due hearing, both trial judges denied the same. The order of Judge Camilon dated March 9, 1982,
reads:

Petitioner contends that having been admitted to bail as a matter of right, neither the courts which
granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his liberty,
could prevent him from exercising his constitutional right to travel.
Petitioner's contention is untenable.
A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond.
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of
a person who is in the custody of the law, that he will appear before any court in which his appearance
may be required as stipulated in the bail bond or recognizance.
"Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending
the trial, and at the same time, to put the accused as much under the power of the court as if he were in
custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the
court and do what the law may require of him." 13
The condition imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held in People v. Uy
Tuising, 61 Phil. 404 (1935).
". . . the result of the obligation assumed by appellee (surety) to hold
the accused amenable at all times to the orders and processes of the
lower court, was to prohibit said accused from leaving the jurisdiction
of the Philippines, because, otherwise, said orders and processes will be
nugatory, and inasmuch as the jurisdiction of the courts from which
they issued does not extend beyond that of the Philippines they would
have no binding force outside of said jurisdiction."
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed
beyond the reach of the courts.
"The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner
released thereunder, is to transfer the custody of the accused from the public officials who have him in
their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of
the original imprisonment. The sureties become invested with full authority over the person of the
principal and have the right to prevent the principal from leaving the state." 14
If the sureties have the right to prevent the principal from leaving the state, more so then has the court
from which the sureties merely derive such right, and whose jurisdiction over the person of the principal
remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is
recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the
country, for he would not have filed the motion for permission to leave the country in the first place, if it
were otherwise.
To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs.
Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage:
". . . The law obliges the bondsmen to produce the person of the
appellants at the pleasure of the Court. . . . The law does not limit such
undertaking of the bondsmen as demandable only when the appellants

are in the territorial confines of the Philippines and not demandable if

the appellants are out of the country. Liberty, the most important
consequence of bail, albeit provisional is indivisible. If granted at all,
liberty operates as fully within as without the boundaries of the
granting state. This principle perhaps accounts for the absence of any
law or jurisprudence expressly declaring that liberty under bail does not
transcend the territorial boundaries of the country."
The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The
rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed, neither
law nor jurisprudence expressly declaring that liberty under bail does not transcend the territorial
boundaries of the country, it is not for the reason suggested by the appellate court.
Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able
to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties
to the proposed travel thereby satisfying the court that she would comply with the conditions of her bail
bond. In contrast, petitioner in this case has not satisfactorily shown any of the above. As aptly observed
by the Solicitor General in his comment:
"A perusal of petitioner's 'Motion for Permission to Leave the Country'
will show that it is solely predicated on petitioner's wish to travel to the
United States where he will, allegedly attend to some business
transactions and search for business opportunities. From the tenor and
import of petitioner's motion, no urgent or compelling reason can be
discerned to justify the grant of judicial imprimatur thereto. Petitioner
has not sufficiently shown that there is absolute necessity for him to
travel abroad. Petitioner's motion bears no indication that the alleged
business transactions could not be undertaken by any other person in
his behalf. Neither is there any hint that petitioner's absence from the
United States would absolutely preclude him from taking advantage of
business opportunities therein, nor is there any showing that
petitioner's non-presence in the United States would cause him
irreparable damage or prejudice." 15
Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it.
Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The
court cannot allow the accused to leave the country without the assent of the surety because in
accepting a bail bond or recognizance, the government impliedly agrees "that it will not take any
proceedings with the principal that will increase the risks of the sureties or affect their remedies against
him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation
inconsistent with the conditions thereof, which is made without his assent. This result has been reached
as to a stipulation or agreement to postpone the trial until after the final disposition of other cases, or to
permit the principal to leave the state or country." 16 Thus, although the order of March 26, 1982 issued
by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the criminal
cases pending before said judge, We see the rationale behind said order.
As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the
duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial
discretion in their having denied petitioner's motion for permission to leave the country, in much the
same way, albeit with contrary results, that We found no reversible error to have been committed by the
appellate court in allowing Shepherd to leave the country after it had satisfied itself that she would
comply with the conditions of her bail bond.

On July 1, 1997, Hong Kong reverted back to the People's Republic of China and became the Hong Kong
Special Administrative Region.
The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV
of the 1973 Constitution states:
"The liberty of abode and of travel shall not be impaired except upon
lawful order of the court, or when necessary in the interest of national
security, public safety or public health."
To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as
contemplated by the above-quoted constitutional provision.
Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court
finds that no gainful purpose will be served in discussing the other issues raised by petitioner.
WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense
of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud,
penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of
arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for
each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the
provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of
Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the
provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent.
That same day, the NBI agents arrested and detained him.

SO ORDERED.
||| (Manotoc, Jr. v. Court of Appeals, G.R. No. L-62100, May 30, 1986)
GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION,
represented by the Philippine Department of Justice, petitioner, vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ,
respondents.

DECISION

SANDOVAL-GUTIERREZ, J p:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure,
as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila
(presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1)
the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and
(2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001
filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine
Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent
judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in
the Constitution granting bail to a potential extraditee.

On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas
corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R.
No. 140520, praying that the Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining
the validity of the Order of Arrest against private respondent. The Decision became final and executory
on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed
with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 9995733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent
filed in the same case a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail,
holding that there is no Philippine law granting bail in extradition cases and that private respondent is a
high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733.
It was then raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his
application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing
private respondent to post bail, thus: CaDATc

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong
signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20,
1997. HESAIT

In conclusion, this Court will not contribute to accused's further erosion

of civil liberties. The petition for bail is granted subject to the following
conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused

hereby undertakes that he will appear and answer the

issues raised in these proceedings and will at all times
hold himself amenable to orders and processes of this
Court, will further appear for judgment. If accused fails in
this undertaking, the cash bond will be forfeited in favor
of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion
of filing its own motion for hold departure order before
this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors
handling this case or if they so desire to the nearest
office, at any time and day of the week; and if they
further desire, manifest before this Court to require that
all the assets of accused, real and personal, be filed with
this Court soonest, with the condition that if the accused
flees from his undertaking, said assets be forfeited in
favor of the government and that the corresponding
lien/annotation be noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied
by respondent judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing
in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right
being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail guaranteed under
the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a
prolonged deprivation of one's liberty. HCaIDS
Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time
that this Court has an occasion to resolve the question of whether a prospective extraditee may be
granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of
Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo, 1 this Court, speaking through

then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision
on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus:
. . . . As suggested by the use of the word "conviction," the
constitutional provision on bail quoted above, as well as Section 4, Rule
114 of the Rules of Court, applies only when a person has been arrested
and detained for violation of Philippine criminal laws. It does not apply
to extradition proceedings because extradition courts do not render
judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption
of innocence in favor of every accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt" (De la Camara v.
Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It
follows that the constitutional provision on bail will not apply to a case
like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is
suspended" does not detract from the rule that the constitutional right
to bail is available only in criminal proceedings. It must be noted that
the suspension of the privilege of the writ of habeas corpus finds
application "only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion" (Sec. 18, Art. VIII,
Constitution). Hence, the second sentence in the constitutional
provision on bail merely emphasizes the right to bail in criminal
proceedings for the aforementioned offenses. It cannot be taken to
mean that the right is available even in extradition proceedings that are
not criminal in nature. ScTIAH
At first glance, the above ruling applies squarely to private respondent's case. However, this Court
cannot ignore the following trends in international law: (1) the growing importance of the individual
person in public international law who, in the 20th century, has gradually attained global recognition; (2)
the higher value now being given to human rights in the international sphere; (3) the corresponding duty
of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty
of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law
on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth of the individual
person and the sanctity of human rights. Slowly, the recognition that the individual person may properly
be a subject of international law is now taking root. The vulnerable doctrine that the subjects of
international law are limited only to states was dramatically eroded towards the second half of the past
century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented
spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against
peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have
been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These
significant events show that the individual person is now a valid subject of international law.

On a more positive note, also after World War II, both international organizations and states gave

recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General
Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the
other fundamental rights of every person were proclaimed. While not a treaty, the principles contained
in the said Declaration are now recognized as customarily binding upon the members of the
international community. Thus, in Mejoff v. Director of Prisons, 2 this Court, in granting bail to a
prospective deportee, held that under the Constitution, 3 the principles set forth in that Declaration
are part of the law of the land. In 1966, the UN General Assembly also adopted the International
Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the
rights enshrined therein are the rights of every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to uphold the
fundamental human rights as well as value the worth and dignity of every person. This commitment is
enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of
every human person and guarantees full respect for human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every person to liberty and due process, ensuring
that those detained or arrested can participate in the proceedings before a court, to enable it to decide
without delay on the legality of the detention and order their release if justified. In other words, the
Philippine authorities are under obligation to make available to every person under detention such
remedies which safeguard their fundamental right to liberty. These remedies include the right to be
admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal
proceedings, however, in light of the various international treaties giving recognition and protection to
human rights, particularly the right to life and liberty, a reexamination of this Court's ruling in Purganan
is in order. caADSE
First, we note that the exercise of the State's power to deprive an individual of his liberty is not
necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as
deportation and quarantine, 4 have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history.
Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This
Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been
allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings,
taking into cognizance the obligation of the Philippines under international conventions to uphold
human rights. HDAaIc
The 1909 case of US v. Go-Sioco 5 is illustrative. In this case, a Chinese facing deportation for failure to
secure the necessary certificate of registration was granted bail pending his appeal. After noting that the
prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him
as a person who has committed the most serious crime known to law;" and that while deportation is not
a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the
provisions relating to bail was applied to deportation proceedings. aEcADH
In Mejoff v. Director of Prisons 6 and Chirskoff v. Commission of Immigration, 7 this Court ruled that
foreign nationals against whom no formal criminal charges have been filed may be released on bail
pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the
Universal declaration of Human Rights in sustaining the detainee's right to bail.
If bail can be granted in deportation cases, we see no justification why it should not also be allowed in
extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to
deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are
administrative proceedings where the innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the
light of the various treaty obligations of the Philippines concerning respect for the promotion and
protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus,
the Philippines should see to it that the right to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition"
as "the removal of an accused from the Philippines with the object of placing him at the disposal of
foreign authorities to enable the requesting state or government to hold him in connection with any
criminal investigation directed against him or the execution of a penalty imposed on him under the penal
or criminal law of the requesting state or government." aSATHE
Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the
surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative
duty of the other state to surrender him to the demanding state. 8 It is not a criminal proceeding. 9 Even
if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not
punishment for a crime, even though such punishment may follow extradition. 10 It is sui generis, tracing
its existence wholly to treaty obligations between different nations. 11 It is not a trial to determine the
guilt or innocence of the potential extraditee. 12 Nor is it a full-blown civil action, but one that is
merely administrative in character. 13 Its object is to prevent the escape of a person accused or
convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or
punishment. 14
But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the
purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No.
1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention
of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows
the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending
receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice rearrest and extradition of the accused if a request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal
process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and
forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a
necessary step in the process of extradition, but the length of time of the detention should be
reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained incarcerated
until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been
detained for over two (2) years without having been convicted of any crime. By any standard, such an
extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was
this prolonged deprivation of liberty which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however, there is no
provision prohibiting him or her from filing a motion for bail, a right to due process under the
Constitution.
The applicable standard of due process, however, should not be the same as that in criminal proceedings.
In the latter, the standard of due process is premised on the presumption of innocence of the accused.
As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of
admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the
issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential

extraditee. This is based on the assumption that such extraditee is a fugitive from justice. 15 Given the
foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a
flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations
under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to
comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition.
However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditee's rights to life, liberty, and due process. More so, where these rights are
guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines
is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a
certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or denying bail
can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in character, the standard of substantial
evidence used in administrative cases cannot likewise apply given the object of extradition law which is
to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan,
then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he
termed "clear and convincing evidence" should be used in granting bail in extradition cases. According
to him, this standard should be lower than proof beyond reasonable doubt but higher than
preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that
he is not a flight risk and will abide with all the orders and processes of the extradition court. cITCAa

In this case, there is no showing that private respondent presented evidence to show that he is not a
flight risk. Consequently, this case should be remanded to the trial court to determine whether private
respondent may be granted bail on the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether
private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial
court should order the cancellation of his bail bond and his immediate detention; and thereafter,
conduct the extradition proceedings with dispatch.
SO ORDERED.
||| (Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, April 19,
2007)
FRANCISCO S. TATAD, petitioner, vs. THE SANDIGANBAYAN, and THE
TANODBAYAN, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; DELAY OF THREE YEARS IN THE TERMINATION
OF PRELIMINARY INVESTIGATION, A VIOLATION THEREOF. We find the long delay in the termination
of the preliminary investigation by the Tanodbayan in the instant case to be violative 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 constitutionally guarantee of "speedy disposition" of cases as
embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate
delay is violative of the petitioner's constitutional rights.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; LONG DELAY IN FILING OF INFORMATIONS AGAINST
ACCUSED WARRANTS DISMISSAL OF CASES. We are constrained to hold that the inordinate delay in
terminating the preliminary investigation and filing the information in the instant case is violative of the
constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the
cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and
10503 should be dismissed.
DECISION

YAP, J p:
In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985,
petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7, 1985, and the
resolutions of the Sandiganbayan, dated August 9, 1985, August 12, 1985 and September 17, 1985, and
to enjoin the Tanodbayan and the Sandiganbayan from continuing with trial or any other proceedings in
Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, all entitled "People of the Philippines versus
Francisco S. Tatad."
The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes, former
Head Executive Assistant of the then Department of Public Information (DPI) and Assistant Officer-inCharge of the Bureau of Broadcasts, filed a formal report with the Legal Panel, Presidential Security
Command (PSC), charging petitioner, who was then Secretary and Head of the Department of Public
Information, with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act. Apparently, no action was taken on said report.
Then, in October 1979, or five years later, it became publicly known that petitioner had submitted his
resignation as Minister of Public Information, and two months after, or on December 12, 1979, Antonio
de los Reyes filed a complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the petitioner,
accusing him of graft and corrupt practices in the conduct of his office as then Secretary of Public
Information. The complaint repeated the charges embodied in the previous report filed by complainant
before the Legal Panel, Presidential Security Command (PSC).
On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E. Marcos. On
April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the Criminal
Investigation Service (CIS) for fact-finding investigation. On June 16, 1980, Roberto P. Dizon, CIS
Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation Report, with the
following conclusion, ". . . evidence gathered indicates that former Min. TATAD had violated Sec. 3 (e)
and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also liable under Sec.
5 of RA 3019," and recommended appropriate legal action on the matter.

Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by virtue of
PD 1791, but the motion was denied on July 26, 1982 and his motion for reconsideration was also denied
on October 5, 1982. On October 25, 1982, all affidavits and counter-affidavits were with the Tanodbayan
for final disposition. On July 5, 1985, the Tanodbayan approved a resolution, dated April 1, 1985,
prepared by Special Prosecutor Marina Buzon, recommending that the following informations be filed
against petitioner before the Sandiganbayan, to wit: LLphil
"1. Violation of Section 3, paragraph (e) of R.A. 3019 for giving D' Group,
a private corporation controlled by his brother-in-law, unwarranted
benefits, advantage or preference in the discharge of his official
functions through manifest partiality and evident bad faith;
"2. Violation of Section 3, paragraph (b) of R.A. 3019 for receiving a
check of P125,000.00 from Roberto Vallar, President/General Manager
of Amity Trading Corporation as consideration for the release of a check
of P588,000.00 to said corporation for printing services rendered for
the Constitutional Convention Referendum in 1973;
"3. Violation of Section 7 of R.A. 3019 on three (3) counts for his failure
to file his Statement of Assets and Liabilities for the calendar years 1973,
1976 and 1978."
Accordingly, on June 12, 1985, the following informations were filed with the Sandiganbayan against the
petitioner:
Re: Criminal Case No. 10499
"The undersigned Tanodbayan Special Prosecutor accuses Francisco S.
Tatad with Violation of Section 3, paragraph (b) of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That on or about the 16th day of July, 1973 in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being then the Secretary of the Department
(now Ministry) of Public Information, did then and there, wilfully and
unlawfully demand and receive a check for P125,000.00 from Roberto
Vallar, President/General Manager of Amity Trading Corporation as
consideration for the payment to said Corporation of the sum of
P588,000.00, for printing services rendered for the Constitutional
Convention Referendum of January, 1973, wherein the accused in his
official capacity had to intervene under the law in the release of the
funds for said project.
That the complaint against the above-named accused was filed with the
Office of the Tanodbayan on May 16, 1980.

TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise

known as the Anti-Graft and Corrupt Practices Act, committed as
follows:
That on or about the 31st day of January, 1974 in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a public officer being then the Secretary of the
Department (now Ministry) of Public Information, did then and there
wilfully and unlawfully fail to prepare and file with the Office of the
President, a true detailed and sworn statement of his assets and
liabilities, as of December 31, 1973, 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 year (1973), as required of every public officer.
That the complaint against the above-named accused was filed with the
Office of the Tanodbayan on June 20, 1980.
CONTRARY TO LAW."
Re: Criminal Case No. 10501
"The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 3, paragraph (e) of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That on the about the month of May, 1975 and for sometime prior
thereto, in the City of Manila, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, a public officer being
then the Secretary of the Department (now Ministry) of Public
Information, did then and there, wilfully and unlawfully give Marketing
Communication Group, Inc. (D' Group), a private corporation of which
his brother-in-law, Antonio L. Cantero, is the President, unwarranted
benefits, advantage or preference in the discharge of his official
functions, through manifest partiality and evident bad faith, by allowing
the transfer of D' GROUP of the funds, assets and ownership of South
East Asia Research Corporation (SEARCH), allegedly a private
corporation registered with the Securities and Exchange Corporation on
June 4, 1973, but whose organization and operating expenses came
from the confidential funds of the Department of Public Information as
it was organized to undertake research, projects for the government,
without requiring an accounting of the funds advanced by the
Department of Public Information and reimbursement thereof by D'
GROUP, to the damage and prejudice of the government.

CONTRARY TO LAW."

That the complaint against the above-named accused was filed with the
office of the Tanodbayan on May 16, 1980.

Re: Criminal Case No. 10500

CONTRARY TO LAW."

"The undersigned Tanodbayan Special Prosecutor accused FRANCISCO S.

Re: Criminal Case No. 10502

"The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.

TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, committed as
follows:
That on or about the 31st day of January, 1977 in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a public officer being then the Secretary of the
Department (now Ministry) of Public Information, did then and there
wilfully and unlawfully fail to prepare and file with the Office of the
President, a true and sworn statement of his assets and liabilities, as of
December 31, 1976, including a statement of the amounts of his
personal and family expenses and the amount of income taxes paid for
the next preceding calendar year (1976), as required of every public
officer.

That the complaint against the above-named accused was filed with the
Office of the Tanodbayan on June 20, 1988.
CONTRARY TO LAW."

2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500

and 10501;
3. The facts charged in Criminal Case No. 10500 (for failure to file
Statement of Assets and Liabilities for the year 1973) do not constitute
an offense;
4. No prima facie case against the accused-movant exists in Criminal
Cases Nos. 10500, 10502 and 10503;
5. No prima facie case against the accused-movant exists in Criminal
Case No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as
amended;
6. No prima facie case against the accused-movant exists in Criminal
Case No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended."
On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to quash,
stating therein in particular that there were only two grounds in said motion that needed refutation,
namely:
1. The offenses charged in Criminal Cases Nos. 10499, 10500 and 10501,
have already prescribed and criminal liability is extinguished; and

Re: Criminal Case No. 10503

"The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, committed as
follows:
That on or about the 15th day of April, 1979, in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a public officer being then the Secretary of the
Department (now Ministry) of Public Information, did then and there
wilfully and unlawfully fail to prepare and file with the Office of the
President, a true, detailed and sworn statement of his assets and
liabilities, as a December 31, 1978, 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 year (1978), as required of every public officer.
That the complaint against the above-named accused was filed with the
office of the Tanodbayan on June 20, 1980.
CONTRARY TO LAW."
On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the
information on the following grounds: LLjur
"1. The prosecution deprived accused-movant of due process of law
and of the right to a speedy disposition of the cases filed against him,
amounting to loss of jurisdiction to file the informations;

2. The facts charged in the information (Criminal Case No. 10500 For
failure to file Statement of Assets and Liabilities for the year 1973) do
not constitute an offense.
On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122 SCRA 538,
contended that the filing of the complaint or denuncia in the fiscal's office interrupts the period of
prescription. Since the above-numbered cases were filed with the Office of the Tanodbayan in 1980 and
the alleged offenses were committed on July 16, 1973, January 31, 1974 and in May 1975, respectively,
although the charges were actually filed in Court only on July 9, 1985, the Tanodbayan has still the right
to prosecute the same, it appearing that the ten (10) year prescriptive period has not yet lapsed.
Moreover, Tanodbayan pointed out that a law such as Batas Pambansa Blg. 195, extending the period of
limitation with respect to criminal prosecution, unless the right to acquittal has been acquired, is
constitutional.
Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and Liabilities in
P.D. 379 is separate and distinct from that required pursuant to the provisions of the Anti-Graft Law, as
amended. For while the former requires "any natural or juridical person having gross assets of
P50,000.00 or more . . ." to submit a statement of assets and liabilities ". . . regardless of the networth,"
the mandate in the latter law is for ALL government employees and officials to submit a statement of
assets and liabilities. Hence, the prosecution under these two laws are separate and distinct from each
other. Tanodbayan also explained that delay in the conduct of preliminary investigation does not impair
the validity of the informations filed and that neither will it render said informations defective. Finally,
Tanodbayan added that P.D. 911, the law which governs preliminary investigations is merely directory
insofar as it fixes a period of ten (10) days from its termination to resolve the preliminary investigation.
prcd
On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's motion to
quash, the dispositive portion of which reads:

"WHEREFORE, prescinding therefrom, We find, and so hold, that the

accused's "Consolidated Motion to Quash" should be as it is hereby,
denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985
Rules on Criminal Procedure, the defect in the information in Criminal
Case No. 10500 being one which could be cured by amendment, the
Tanodbayan is hereby directed to amend said information to change
the date of the alleged commission of the offense therein charged from
January 31, 1974 to September 30, 1974 within five (5) days from
receipt hereof.
SO ORDERED."
On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the
Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date of the
commission of the offense to September 30, 1974.
On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was denied by the
Sandiganbayan on September 17, 1985. Hence, petitioner filed this petition on October 16, 1985
assailing the denial of his motion to quash. On October 22, 1985, the Court, without giving due course to
the petition, resolved to require the respondents to comment thereon and issued a temporary
restraining order effective immediately and continuing until further orders of the Court, enjoining the
respondents Sandiganbayan and Tanodbayan from continuing with the trial and other proceedings in
Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503. In compliance with said resolution, the
respondents, through Solicitor General Estelito P. Mendoza, filed their comment on January 6, 1986.
On April 10, 1986, The Court required the parties to move in the premises considering the supervening
events, including the change of administration that had transpired, and the provisions for Sec. 18, Rule 3
of the Rules of Court insofar as the public respondents were concerned, which required the successor
official to state whether or not he maintains the action or position taken by his predecessor in office. On
June 20, 1986, the new Tanodbayan manifested that since "the charges are not political offenses and
they have no political bearing whatsoever," he had no alternative but to pursue the cases against the
petitioner, should the Court resolve to deny the position; that in any event, petitioner is not precluded
from pursuing any other legal remedies under the law, such as the filing of a motion for re-evaluation of
his cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27, 1986 in
which he concurred with the position taken by the new Tanodbayan. LexLib
Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for reevaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in question be
re-evaluated and the informations be quashed. The Court is not aware of what action, if any, has been
taken thereon by the Tanodbayan. However, be that as it may, the filing of the aforesaid motion for reevaluation with the Tanodbayan has no material bearing insofar as the duty of this Court to resolve the
issues raised in the instant petition is concerned.
Petitioner has raised the following issues in his petition:
1. Whether the prosecution's long delay in the filing of these cases with the
Sandiganbayan had deprived petitioner of his constitutional right to due process and the right to
a speedy disposition of the cases against him.
2. Whether the crimes charged has already prescribed.
3. Whether there is a discriminatory prosecution of the petitioner by the

Tanodbayan.
4. Whether Sandiganbayan should have ruled on the question of amnesty raised by
the petitioner.
5. Whether petitioner's contention of the supposed lack or non-existence of prima
facie evidence to sustain the filing of the cases at bar justifies the quashal of the questioned
informations.
Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due process" and
"speedy disposition of cases" in unduly prolonging the termination of the preliminary investigation and in
filing the corresponding informations only after more than a decade from the alleged commission of the
purported offenses, which amounted to loss of jurisdiction and authority to file the informations. The
respondent Sandiganbayan dismissed petitioner's contention, saying that the applicability of the
authorities cited by him to the case at bar was "nebulous;" that it would be premature for the court to
grant the "radical relief" prayed for by petitioner at this stage of the proceeding; that the mere
allegations of "undue delay" do not suffice to justify acceptance thereof without any showing "as to the
supposed lack or omission of any alleged procedural right granted or allowed to the respondent accused
by law or administrative fiat" or in the absence of "indubitable proof of any irregularity or abuse"
committed by the Tanodbayan in the conduct of the preliminary investigation; that such facts and
circumstances as would establish petitioner's claim of denial of due process and other constitutionally
guaranteed rights could be presented and more fully threshed out at the trial. Said the Sandiganbayan:
"That there was a hiatus in the proceedings between the alleged
termination of the proceedings before the investigating fiscal on
October 25, 1982 and its resolution on April 17, 1985 could have been
due to certain factors which do not appear on record and which both
parties did not bother to explain or elaborate upon in detail. It could
even be logically inferred that the delay may be due to painstaking and
grueling scrutiny by the Tanodbayan as to whether the evidence
presented during the preliminary investigation merited prosecution of a
former high-ranking government official. In this respect, We are of the
considered opinion that the provision of Pres. Decree No. 911, as
amended, regarding the resolution of a complaint by the Tanodbayan
within ten (10) days from termination of the preliminary investigation is
merely "directory" in nature, in view of the nature and extent of the
proceedings in said office.

The statutory grounds for the quashal of an information are clearly set
forth in concise language in Rule 117, Section 2, of the 1985 Rules on
Criminal Procedure and no other grounds for quashal may be
entertained by the Court prior to arraignment inasmuch as it would be
itself remiss in the performance of its official functions and subject to
the charge that it has gravely abused its discretion. Such facts and
circumstances which could otherwise justify the dismissal of the case,
such as failure on the part of the prosecution to comply with due
process or any other constitutionally-guaranteed rights may be
presented during the trial wherein evidence for and against the issue
involved may be fully threshed out and considered. Regrettably, the
accused herein attempts to have the Court grant such as radical relief
during this stage of the proceedings which precludes a precocious or

summary evaluation of insufficient evidence in support thereof."

This bring us to the crux of the issue at hand. Was petitioner deprived of his constitutional right to due
process and the right to "speedy disposition" of the cases against him as guaranteed by the Constitution?
May the court, ostrich-like, bury its head in the sand, as it were, at the initial stage of the proceedings
and wait to resolve the issue only after the trial? prcd
In a number of cases, 1 this Court has not hesitated to grant the so-called "radical relief" and to spare the
accused from undergoing the rigors and expense of a full-blown trial where it is clear that the has been
deprived of due process of law or other constitutionally guaranteed rights. Of course, it goes without
saying that in the application of the doctrine enunciated in those cases, particular regard must be taken
of the facts and circumstances peculiar to each case.
Coming to the case at bar, the following relevant facts appear on record and are largely undisputed. The
complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal Panel of the
Presidential Security Command (PSC) on October 1974, containing charges of alleged violations of Rep.
Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The "report" was made to
"sleep" in the office of the PSC until the end of 1979 when it became widely known that Secretary (then
Minister) Tatad had a falling out with President Marcos and had resigned from the Cabinet. On
December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint filed with the
Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the complaint on April
1, 1980 which was around two months after petitioner Tatad's resignation was accepted by Pres.
Marcos by referring the complaint to the CIS, Presidential Security Command, for investigation and
report. On June 16, 1980, the CIS report was submitted to the Tanodbayan, recommending the filing of
charges for graft and corrupt practices against former Minister Tatad and Antonio L. Cantero. By October
25, 1982, all affidavit and counter-affidavits were in and the case was ready for disposition by the
Tanodbayan. However, it was only on July 5, 1985 that a resolution was approved by the Tanodbayan,
recommending the filing of the corresponding criminal informations against the accused Francisco Tatad.
Five (5) criminal informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner
Tatad alone.

has included a provision that is deliberately intended to become meaningless and to be treated as a dead
letter.
We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the
instant case to be violative 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 constitutionally guarantee of
"speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the
1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of
close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance
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 "the delay may be due to a painstaking and
grueling scrutiny by the Tanodbayan as to whether the evidence presented 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 Republic Act No. 3019, which certainly did not involve complicated
legal and factual issues necessitating such "painstaking and grueling scrutiny" as 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.
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 but the absence of a a preliminary investigation can be corrected by giving the
accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be
corrected, for until now, man has not yet invented a device for setting back time. LexLib

A painstaking review of the facts can not but leave the impression that political motivations played a vital
role in activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life,
as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly, departing from
established procedures prescribed by law for preliminary investigation, which require the submission of
affidavits and counter-affidavits by the Tanodbayan referred the complaint to the Presidential Security
Command for fact-finding investigation and report. cdphil

After a careful review of the facts and circumstances of this case, we are constrained to hold that the
inordinate delay in terminating the preliminary investigation and filing the information in the instant case
is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy
disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500,
10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on
the other issues raised by petitioner.

We find such blatant departure from the established procedure as a dubious, but revealing attempt to
involve an office directly under the President in the prosecution was politically motivated. We cannot
emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other
purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice
evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong,
powerless or mighty. Only by strict adherence to the established procedure may the public's perception
of the impartiality of the prosecutor be enhanced.

Accordingly, the Court Resolved to give due course to the petition and to grant the same. The
informations in Criminal Cases Nos. 10499, 10500, 10502 and 10503, entitled "People of the Philippines
vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining order issued on October 22,
1985 is made permanent.

Moreover, the long delay in resolving the case under preliminary investigation can not be justified on the
basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to
resolve a case under preliminary investigation by him from its termination. While we agree with the
respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be
disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law

SO ORDERED.
||| (Tatad v. Sandiganbayan, G.R. Nos. 72335-39, March 21, 1988)
SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON,
MARY CONCEPCION BAUTISTA, JOAQUIN G. BERNAS, S.J., M.
BELLARMINE BERNAS, O.S.B., FRANCISCO I. CHAVEZ, SOLITA COLLASMONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA, MARCELO B.
FERNAN, FRANCISCO GARCHITORENA, ** ANDREW GONZALEZ, JOSE C.

LAURETA, SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA

MUOZ PALMA, JAIME V. ONGPIN, FELIX PEREZ, JOSE B.L. REYES, JOSE
E. ROMERO, JR., RAMON DEL ROSARIO, JR., RICARDO J. ROMULO,
AUGUSTO SANCHEZ, EMMANUEL V. SORIANO, DAVID SYCIP, ENRIQUE
SYQUIA, CRISTINA TAN, JESUS VARGAS, BERNARDO M. VILLEGAS,
VICENTE JAYME, *** , petitioners, vs. SANDIGANBAYAN, FIRST
DIVISION (represented by Justice Manuel Pamaran, Chairman, and
Justices Augusto Amores and Bienvenido Vera Cruz, Members),
JUSTICE BERNARDO FERNANDEZ (Ombudsman) and GEN. FABIAN C.
VER, MAJ. GEN. PROSPERO A. OLIVAS, BRIG. GEN. LUTHER A.
CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS, JR.,
CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M.
BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT.
ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT.
FILOMENO MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO
M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA,
SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A.
BONA, CIC ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G.
ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO, respondents.

Lupino Lazaro and Arturo M. de Castro for petitioners.

Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr.
Rodolfo U. Jimenez for respondent Brig. Gen. Custodio.
Ramon M. Bernaldo for respondent H. Gosuico.
Romulo Quimbo for respondent B. Vera Cruz.
Norberto J. Quisumbing for respondent P. Olivas.
Felix Solomon for respondent Col. A. Custodio.
Alfonso S. Cruz for B. Fernandez.
Edgardo B. Gayos for M. Pamaran.
SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; FINDINGS OF COMMISSION THAT PROCEEDINGS HAVE BEEN
VITIATED BY LACK OF DUE PROCESS, UPHELD; CASE AT BAR. The Commission submitted the following
recommendation: "Considering the existence of adequate credible evidence showing that the
prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the
compulsion of some pressure which proved to be beyond their capacity to resist, and which not only
prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have
otherwise presented, but also predetermined the final outcome of the case, the Commission is of the
considered thinking and belief, subject to the better opinion and judgment of this Honorable court, that

the proceedings in the said case have been vitiated by lack of due process, and hereby respectfully
recommends that the prayer in the petition for a declaration of a mistrial in Sandiganbayan Cases Nos.
10010 and 10011 entitled 'People vs. Luther Custodio, et al.,' be granted." The Court adopts and
approves the Report and its findings and holds on the basis thereof and of the evidence received and
appreciated by the Commission and duly supported by the facts of public record set that the then
President (codenamed Olympus) had stage-managed in and from Malacaang Palace "a scripted and
predetermined manner of handling and disposing of the Aquino Galman murder case;" and that "the
prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the
compulsion of some pressure which proved to be beyond their capacity to resist, and which not only
prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have
otherwise presented, but also predetermined the final outcome of the case" of total absolution of the
twenty-six respondents-accused of all criminal and civil liability. The Court finds that the Commission's
Report and findings and conclusions are duly substantiated by the evidence and facts of public record.
Composed of distinguished members of proven integrity with a combined total of 141 years of
experience in the practice of law (55 years) and in the prosecutorial and judicial services (86 years in the
trial and appellate courts), experts at sifting, the chaff from the grain, the Commission properly
appraised the evidences presented and denials made by public respondents.
2. ID.; ID.; MOCKERY OF JUDICIAL PROCESS; A CASE OF. The record shows suffocatingly that from
beginning to end, the then President used, or more precisely, misused the overwhelming resources of
the government and his authoritarian powers to corrupt and make a mockery of the judicial process in
the Aquino-Galman murder cases. As graphically depicted in the Report, and borned out by the
happenings (res ipsa loquitur), since the resolution prepared by his "Coordinator," Manuel Lazaro, his
Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused was
unpalatable (it would summon the demonstrators back to the streets and at any rate was not acceptable
to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial
as ordered at the Malacaang conference, would accomplish the two principal clamor for the suspected
killers to be charged in court and of giving them through their acquittal the legal shield of double
jeopardy. Indeed, the secret Malacaang conference at which the authoritarian President called together
the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel
headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and
the close monitoring of the entire proceedings to assure the predetermined ignominious final outcome
are without parallel and precedent in out annals and jurisprudence.
3. ID.; ID.; ID.; SECRET CONFERENCE AT MALACAANG AND THE ENTIRE PROSECUTION PANEL
REGARDING IMMINENT FILING OF THE CRIMINAL CHARGES AGAINST THE ACCUSED; VITIATED ALL
PROCEEDINGS IN THE SANDIGANBAYAN. The fact of the secret Malacaang conference of January 10,
1985 at which the authoritarian President discussed with the Presiding Justice of the Sandiganbayan and
the entire prosecution panel the matter of the imminent filing of the criminal charges against all the
twenty-six accused (as admitted by respondent Justice Fernandez to have been confirmed by him to the
then President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without
precedent. This was illegal under out penal laws. This illegality vitiated from the very beginning all
proceedings in the Sandiganbayan court headed by the very Presiding Justice who attended. As the
Commission noted: "The very acts of being summoned to Malacaang and their ready acquiescence
thereto the circumstances then obtaining, are in themselves pressure dramatized and exemplified. . . .
Verily, it can be said that any avowal of independent action or resistance to presidential pressure
became illusory from the very moment they stepped inside Malacaang Palace on January 10, 1985."
4. ID.; ID.; JUDGMENT; VOID AB INITIO IN VIEW COLLUSION AS TO HANDLING AND TREATMENT OF
CASES. No court whose Presiding Justice has received "orders or suggestions" from the very President
who by an amendatory decree made it possible to refer the cases to the Sandiganbayan, can be an
impartial court, which is the very essence of due process of law. Jurisdiction over cases should be

determined by law, and not by preselection of the Executive, which could be much too easily
transformed into a means of predetermining the outcome of individual cases." This criminal collusion as
to the handling and treatment of the cases by public respondent at the secret Malacaang conference
(and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent
Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive
arguments of respondents accused, particularly General Ver and Olivas and those categorized as
accessories, that there has been no evidence or witness suppressed against them, that the erroneous
conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated
and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There
will be time and opportunity to present all these arguments and considerations at the remand and retrial
of the cases herein ordered before a neutral and impartial court.
5. ID.; ID.; ID.; ACQUITTAL; DECLARED UNLAWFUL AND VOID AB INITIO; CASE AT BAR. The Supreme
Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts
of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if
they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress
the truth, instead of repositories of judicial power whose judges are sworn and committed to render
impartial justice to all alike who seek the enforcement or protection of a right or the prevention or
redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. The
Court is constrained to declare the sham trial a mock trial - the non-trial of the century and that the
predetermined judgment of acquittal was unlawful and void ab initio.
6. ID.; ID.; ID.; DOUBLE JEOPARDY; CANNOT BE INVOKED WHERE PROSECUTION IS DENIED DUE
PROCESS.- No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against
this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution
which represents the sovereign people in criminal cases is denied due process. As the Court stressed in
the 1985 case of People vs. Bocar, "Where the prosecution is deprived of a fair opportunity to prosecute
and prove its case, its right to due process is thereby violated.

7. ID.; ID.; ID.; VOID WHERE DENIAL OF RIGHT TO DUE PROCESS IS APPARENT. "The cardinal present is
that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus,
the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director
of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971] which cannot be glossed over or
disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision
rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25,
1973], 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or
decision rendered notwithstanding such violation may be regarded as a 'lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever it exhibits its head' (Aducayen vs. Flores,
supra).
8. ID.; ID.; DOUBLE JEOPARDY; WHEN APPLICABLE. "Respondent Judge's dismissal order dated July 7,
1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim
of double 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 (People vs. Ylagan, 58 Phil. 851). The lower court
was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due
process. "In effect, the first jeopardy was never terminated, and the remand of the criminal case for
further hearing and/or trial before the lower courts amounts merely to a continuation of the first
jeopardy, and does not expose the accused to a second jeopardy." Respondents-accused's contention
that the Sandiganbayan judgment of acquittal ends the case which cannot be appealed or reopened,

without being put in double jeopardy was forcefully disposed of by the Court in People Court of Appeals,
which is fully applicable here, as follows: "That is the general rule and pre-supposes a valid judgment. As
earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having
been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal
effect, no judgment at all. By it no rights are divested. Through it, no rights can be attained. Being
worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All
acts performed under it and all claims flowing out of it are void. . . .
9. ID.; ID.; ID.; CANNOT BE INVOKED IN A SHAM AND MOCK TRIAL. More so does the rule against the
invoking of double jeopardy hold in the cases at bar where as we have held, the sham trial was but a
mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig
the trial and closely monitored the entire proceedings to assure the predetermined final outcome of
acquittal and total absolution as innocent of all the respondent-accused. Fully aware of the prosecution's
difficulties in locating witnesses and overcoming their natural fear and reluctance to appear and testify,
respondent Sandiganbayan maintained a "dizzying tempo" of the proceedings and announced its
intention to terminate the proceedings in about 6 months time or less than a year, pursuant to the
scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile attitude
towards (it)" and their being the subject of warnings, reprimand and contempt proceedings as compared
to the nil situation for the defense.
10. ID.; ID.; JUDGMENT; VOID WHERE VERDICT WAS DICTATED, COERCED AND SCRIPTED. A dictated,
coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal
contemplation, it is no judgment at all. It neither binds nor bars anyone. Such judgment is "a lawless
thing which can be treated as an outlaw." It is a terrible and unspeakable affront to the society and the
people.
11. ID.; ID.; COURTS; CALLED UPON TO RENDER JUSTICE WHERE IT IS DUE. "Private respondents
invoke 'justice for the innocent.' For justice to prevail, the scales must be balance. It is not to be
dispensed for he accused alone. The interests of the society, which they have wronged must also be
equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal
neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could
also mean injustice. This is where the Courts play a vital role. They render justice where justice is due.
12. ID.; ID.; JUDGMENT ACQUITTAL OF ACCUSED BY THE SANDIGANBAYAN DURING PENDENCY OF FINAL
ACTION OF SUPREME COURT; CONSTITUTES GRAVE ABUSE OF DISCRETION. Although no restraining
order was issued anew, respondent Sandiganbayan should not have precipitately issued its decision of
total absolution of all the accused pending the final action of this Court. This is the teaching of Valdez vs.
Aquilzan, wherein the Court is setting aside the hasty convictions, ruled that "prudence dictated that
(respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the
promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the
respondent judge acted precipitately by deciding the cases [hastily without awaiting this Court's action].
All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack
of jurisdiction which substantively prejudiced the petitioner."
13. ID.; ID.; SECOND MOTION FOR RECONSIDERATION; OPINION IN LUZON BROKERAGE CO., INC. vs.
MARITIME BLDG., CO., INC. (36 SCRA 305 [1978], NOT APPLICABLE. Respondent invocation of the
writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., is inappropriate. The writer therein
held that a party should be entitled to only one Supreme Court and may not speculate on vital changes in
the Court's membership for review of his lost case once more, since public policy and sound practice
demand that litigation be put to an end and no second pro forma motion for reconsideration reiterating
the same arguments should be kept pending so long (for over six (6) years and one (1) month since the
denial of the first motion for reconsideration). This opinion cannot be properly invoked, because here,

petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the
denial under date of February 4th of the first motion for reconsideration and the same was admitted per
the Court's Resolution of April 3, 1986 and is not being resolved within five months of its filing after the
Commission had received the evidence of the parties who were heard by the Court only last August 26th.
Then the second motion for reconsideration is based on an entirely new material ground which was not
known at the time of the denial of the petition and filing of the first motion for reconsideration, i.e., the
secret Malacaang conference on January 10, 1985 which came to light only fifteen months later in
March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of
the petition and that the authoritarian president had dictated and predetermined the final outcome of
acquittal. Hence, the ten members of the Court (without any new appointees) unanimously voted to
admit the second motion for reconsideration.
ALAMPAY, J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; SECOND MOTION FOR RECONSIDERATION; GRANTING
THEREOF JUSTIFIED IN VIEW OF THE CERTAIN SIGNIFICANT FACTS AND CIRCUMSTANCES NOT
PREVIOUSLY DISCLOSED TO THE COURT. Considering that certain significant facts and circumstances
not previously disclosed to the Court were found by the Commission constituted by this Court, purposely
to inquire and ascertain the veracity of the same, to be duly established by sufficient evidence and are
indicative of "a scripted and predetermined manner of handling and disposing of the Aquino-Galman
murder case . . .;" and that there exists "adequate credible evidence showing that the prosecution in the
Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of
some pressure which proved to be beyond their capacity to resist and which not only prevented the
prosecution to fully ventilate its position and to offer all the evidences it could have otherwise presented,
but also predetermined the outcome of the case; . . ." I join in granting petitioner's second motion for
reconsideration.
MELENCIO-HERRERA, J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; RULE OF PUBLIC PROSECUTOR.
As it is, the prosecution failed to fully ventilate its position and to lay out before respondent Court all
the pertinent facts which could have helped that Court in arriving at a just decision. It had, thus, failed in
its task. "A public prosecutor is 'the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice and
every definite sense the servant of the law, the two fold aim of which is that guilt shall not escape or
innocence suffer." (Suarez v. Platon, 69 Phil. 556 [1940]). "He owes the state, the court and the accused
the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous
attention, clarifying contradictions and filling up gaps and loopholes in his evidence to the end that the
court's mind may not be tortured by doubts, the innocent may not suffer, and the guilty may not escape
unpunished" (People vs. Esquivel, 82 Phil. 453 [1948]).
2. ADMINISTRATIVE SUPERVISION OVER COURTS AND COURT PERSONNEL; SANDIGANBAYAN; EQUALLY
CULPABLE FOR MISCARRIAGE OF JUSTICE; CASE AT BAR. Respondent Court, in showing partiality for
the accused from beginning to end, from the raffle of the subject cases to the promulgation of judgment,
which absolved the accused, en masse, from any and all liability, is equally culpable for miscarriage of
justice. Due process of law, which "requires a hearing before an impartial and disinterested tribunal" and
the right of every litigant to "nothing less than the cold neutrality of an impartial Judge" (Gutierrez vs.
Santos, 112 Phil. 184 [1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was violated.

3. REMEDIAL LAW; CRIMINAL PROCEDURE; JUDGMENT; NULL AND VOID AB INITIO; VITIATED BY LACK OF
DUE PROCESS. The proceedings below, having been vitiated by lack of due process, to the detriment
of the State and the People, were invalid and the judgment rendered null and void ab initio. There having
been no trial at all in contemplation of law, there is likewise no judgment on which a plea of double
jeopardy may be based. "To entitle the accused to the plea of former jeopardy, the proceedings must
have been valid (State vs. Bartlett, 164 N.W. 757; State vs. O'Day 185 So. 290). The lack of any
fundamental requisite which would render void the judgment would make ineffective a plea of jeopardy
based on such proceedings (Steen vs. State, 242 S.W. 1047).
4. ID.; ID.; DOUBLE JEOPARDY; ATTACHES EVEN IF COLLUSION TAKES PLACE AND THE ACCUSED WERE
NOT A PARTY TO THE SAME; PRINCIPLE NOT APPLICABLE IN CASE AT BAR. The accused, however,
argue that double jeopardy attaches for, even assuming without conceding, that pressure and collusion
did take place, they were not a party to the same; and, for those who were charged only either as
accomplices or accessories, they contend that their alleged offense involved only a cover-up in the
investigation of the crime so that, whatever pressure was exerted could only have benefited the
principals, consequently, to subject them to a re-trial is to put them twice in jeopardy. It is true that
where an accused was not a party to the fraud, a conviction cannot be avoided by the state (State vs.
Heflin, 96 So. 459, 19 Ala. App. 222). However, that exception is inapplicable to the cases at bar where
both the prosecution and the Trial Court itself were parties to the fraud and collusion. Nor can it be said
that the accused were not a part thereof. The agreement to file the murder charge in Court so that, after
being acquitted as planned, the accused could no longer be prosecuted under the doctrine of double
jeopardy; the "categorization" of the accused into principals, accomplices and accessories so that not all
of them would be denied bail during the trial, were fraudulently conceived for their benefit and for the
purpose of protecting them for subsequent prosecution. It is, thus, no bar to a subsequent prosecution
for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682). "A verdict of
acquittal procured by the accused by fraud and collusion is a nullity and does not put him in jeopardy;
and consequently, it is no bar to a second trial for the same offense (State vs. Lee, 30A, 1110, 65 Conn.
265, 48 Am. S.R. 202, 27 L. RA. 498).
RESOLUTION

TEEHANKEE, C.J p:
Last August 21st, our nation marked with solemnity and for the first time in freedom the third
anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno
"Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in September,
1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing squad by a military
tribunal for common offenses alleged to have been committed long before the declaration of martial law
and whose jurisdiction over him as a civilian entitled to trial by judicial process by civil courts he
repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not courts but mere
instruments and subject to the control of the President as created by him under the General Orders
issued by him as Commander-in-Chief of the Armed Forces of the Philippines, and that he had already
been publicly indicted and adjudged guilty by the President of the charges in a nationwide press
conference held on August 24, 1971 when he declared the evidence against Ninoy "not only strong but
overwhelming." 1 This followed the Plaza Miranda bombing of August 21, 1971 of the proclamation rally
of the opposition Liberal Party candidates for the November, 1971 elections (when eight persons were
killed and practically all of the opposition candidates headed by Senator Jovito Salonga and many more
were seriously injured), and the suspension of the privilege of the writ of habeas corpus under

Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the communists but
the truth has never been known. But the then President never filed the said charges against Ninoy in the
civil courts.
Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo
successful heart surgery. After three years of exile and despite the regime's refusal to give him a passport,
he sought to return home "to strive for a genuine national reconciliation founded on justice." He was to
be cold-bloodedly killed while under escort away by soldiers from his plane that had just landed at the
Manila International Airport on that fateful day at past 1 p.m. His brain was smashed by a bullet fired
point-blank into the back of his head by a murderous assassin, notwithstanding that the airport was
ringed by airtight security of close to 2,000 soldiers and "from a military viewpoint, it (was) technically
impossible to get inside (such) a cordon." 2 The military investigators reported within a span of three
hours that the man who shot Aquino (whose identity was then supposed to be unknown and was
revealed only days later as Rolando Galman, although he was the personal friend of accused Col. Arturo
Custodio who picked him up from his house on August 17, 1983) was a communist-hired gunman, and
that the military escorts gunned him down in turn. The military later filmed a re-enactment of the killing
scripted according to this version and continuously replayed it on all TV channels as if it were taken live
on the spot. The then President instantly accepted the military version and repeated it in a nationally
televised press conference that he gave late in the evening of August 22, 1983, wherein he said, in order
to induce disbelief that the military had a hand in the killing, that "if the purpose was to eliminate Aquino,
this was not the way to do it."
The national tragedy shocked the conscience of the entire nation and outraged the free world. The large
masses of people who joined in the ten-day period of national mourning and came out in millions in the
largest and most orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom and
their yearning for the truth, justice and freedom. LibLex
The then President was constrained to create a Fact Finding Board 3 to investigate "the treacherous and
vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all
Filipinos become a national tragedy and national shame specially because of the early distortions and
exaggerations in both foreign and local media 4 so that all right thinking and honest men desire to
ventilate the truth through fare, independent and dispassionate investigation by prestigious and free
investigators." After two false starts, 5 he finally constituted the Board 6 on October 22, 1983 which held
125 hearing days commencing November 3, 1983 (including 3 hearings in Tokyo and 8 hearings in Los
Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377 pages of transcripts,
until the submission of their minority and majority reports to the President on October 23 and 24, 1984.
This was to mark another first anywhere in the world wherein the minority report was submitted one
day ahead by the ponente thereof, the chairman, who was received congenially and cordially by the then
President who treated the report as if it were the majority report instead of a minority report of one and
forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for
trial in the Sandiganbayan which was better known as a graft court; and the majority report of the four
other members was submitted on the following day to the then President who coldly received them and
could scarcely conceal his instant rejection of their report with the grim statement that "I hope you can
live with your conscience with what you have done."
The fact is that both majority and minority reports were one in rejecting the military version as
propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-hired
assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no subversive
affiliations." They were in agreement that "only the soldiers in the staircase with Sen. Aquino could have
shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen. Aquino" and that "the
SWAT troopers who gunned down Galman and the soldiers who escorted Sen. Aquino down the service
stairs, deliberately and in conspiracy with one another, gave a perjured story to us regarding the alleged

shooting by Galman of Sen. Aquino and the mowing down, in turn, of Galman himself;" in short, that
Ninoy's assassination was the product of a military conspiracy, not a communist plot. The only difference
between the two reports is that the majority report found all the twenty-six private respondents
abovenamed in the title of the case headed by then AFP Chief General Fabian C. Ver involved in the
military conspiracy and therefore "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr.
and Rolando Galman at the MIA on August 21, 1983;" while the chairman's minority report would
exclude nineteen of them and limit as plotters "the six persons who were on the service stairs while
Senator Aquino was descending" and "General Luther Custodio . . . because the criminal plot could not
have been planned and implemented without his intervention." Cdpr
The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work lies
in what will transpire in accordance with the action that the Office of the President may thereafter direct
to be taken." The four-member majority report (also prophetically) wrote in the epilogue (after warning
the forces who adhere to an alien and intolerable political ideology against unscrupulously using the
report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes and for the
first time confirmed our worst fears of what unchecked evil would be capable of doing" They wrote:
cdphil

"The task of the Board was clear and unequivocal. This task was not
only to determine the facts and circumstances surrounding the death of
the late former Senator. Of greater significance is the awesome
responsibility of the Board to uphold righteousness over evil, justice
over injustice, rationality over irrationality, humaneness over
inhumanity. The task was indeed a painful test, the inevitable result of
which will restore our country's honored place among the sovereign
nations of the free world where peace, law and order, freedom, and
justice are a way of life.
"More than any other event in contemporary Philippine history, the
killing of the late former Senator Aquino has brought into sharper focus,
the ills pervading Philippine society. It was the concretization of the
horror that has been haunting this country for decades, routinely
manifested by the breakdown of peace and order, economic instability,
subversion, graft and corruption, and an increasing number of abusive
elements in what are otherwise noble institutions in our country the
military and law enforcement agencies. We are, however, convinced
that, by and large, the great majority of the officers and men of these
institutions have remained decent and honorable, dedicated to their
noble mission in the service of our country and people.
"The tragedy opened our eyes and for the first time confirmed our
worst fears of what unchecked evil would be capable of doing. As
former Israeli Foreign Minister Abba Eban observes. 'Nobody who has
great authority can be trusted not to go beyond its proper limits.' Social
apathy, passivity and indifference and neglect have spawned in secret a
dark force that is bent on destroying the values held sacred by
freedom-loving people.
"To assert our proper place in the civilized world, it is imperative that
public officials should regard public service as a reflection of human

ideals in which the highest sense of moral values and integrity are
strictly required.
"A tragedy like that which happened on August 21, 1983, and the crisis
that followed, would have normally caused the resignation of the Chief
of the Armed Forces in a country where public office is viewed with
highest esteem and respect and where the moral responsibilities of
public officials transcend all other considerations."
It is equally the fact that the then President through all his recorded public acts and statements from the
beginning disdained and rejected his own Board's above findings and insisted on the military version of
Galman being Ninoy's assassin. In upholding this view that "there is no involvement of anyone in his
government in the assassination," he told David Briscoe (then AP Manila Bureau Chief) in a Radio-TV
interview on September 9, 1983 that "I am convinced that if any member of my government were
involved, I would have known somehow . . . Even at a fairly low level, I would have known. I know how
they think. I know what they are thinking of." 7 He told CBS in another interview in May, 1984 (as his Fact
Finding Board was holding its hearings) the following:
"CBS: 'But indeed there has been recent evidence that seems to
contradict earlier reports, namely, the recent evidence seems to
indicate that some of the guards may have been responsible (for
shooting Ninoy)."
"MARCOS: 'Well, you are of course wrong. What you have been reading
are the newspapers and the newspaper reports have been biased. The
evidence still proves that Galman was the killer. The evidence also
shows that there were intelligence reports connecting the communist
party to the killing.'" 8
In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence upon
release of the Board's majority report implicating him, he wrote that "(W)e are even more aware,
general, that the circumstances under which the board has chosen to implicate you in its findings are
fraught with doubt and great contradictions of opinion and testimony. And we are deeply disturbed that
on the basis of so-called evidence, you have been so accused by some members of the Board," and
extended "My very best wishes to you and your family for a speedy resolution of your case," 9 even as he
announced that he would return the general to his position as AFP Chief "if he is acquitted by the
Sandiganbayan." In an interview on June 4, 1985 with the Gamma Photo Agency, as respondent court
was hearing the cases, he was quoted as saying that "as will probably be shown, those witnesses (against
the accused) are perjured witnesses." 10
It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo
Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other
petitioners, composed of three former Justices of this Court, five incumbent and former university
presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens of
the community, filed the present action alleging that respondents Tanodbayan and Sandiganbayan
committed serious irregularities constituting mistrial and resulting in miscarriage of justice and gross
violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to due
process of law. They asserted that the Tanodbayan did not represent the interest of the people when he
failed to exert genuine and earnest efforts to present vital and important testimonial and documentary
evidence for the prosecution and that the Sandiganbayan Justices were biased, prejudiced and partial in
favor of the accused, and that their acts "clouded with the gravest doubts the sincerity of government to
find out the truth about the Aquino assassination." Petitioners prayed for the immediate issuance of a

temporary restraining order restraining the respondent Sandiganbayan from rendering a decision on the
merits in the pending criminal cases which it had scheduled on November 20, 1985 and that judgment be
rendered declaring a mistrial and nullifying the proceedings before the Sandiganbayan and ordering a retrial before an impartial tribunal by an unbiased prosecutor. 10
At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining order
enjoining respondent court from rendering a decision in the two criminal cases before it, the Court
resolved by nine-to-two votes 11 to issue the restraining order prayed for. The Court also granted
petitioners a five-day period to file a reply to respondents' separate comments and respondent
Tanodbayan a three-day period to submit a copy of his 84-page memorandum for the prosecution as
filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as Annex
5 of his comment. cdll
But ten days later on November 28, 1985, the Court by the same nine-to-two-vote ratio in reverse, 12
resolved to dismiss the petition and to lift the temporary restraining order issued ten days earlier
enjoining the Sandiganbayan from rendering its decision. 13 The same Court majority denied petitioners'
motion for a new 5-day period counted from receipt of respondent Tanodbayan's memorandum for the
prosecution (which apparently was not served on them and which they alleged was "very material to the
question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to
respondents' separate comments, by an eight-to three vote, with Justice Gutierrez joining the dissenters.
14
On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did not
indicate the legal ground for such action and urging that the case be set for a full hearing on the merits
because if the charge of partiality and bias against the respondents and suppression of vital evidence by
the prosecution are proven, the petitioners would be entitled to the reliefs demanded: The People are
entitled to due process which requires an impartial tribunal and an unbiased prosecutor. If the State is
deprived of a fair opportunity to prosecute and convict because certain material evidence is suppressed
by the prosecution and the tribunal is not impartial, then the entire proceedings would be null and void.
Petitioners prayed that the Sandiganbayan be restrained from promulgating their decision as scheduled
anew on December 2, 1985.
On December 5, 1985, the Court required the respondents to comment on the motion for
reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled, respondent
Sandiganbayan issued its decision acquitting all the accused of the crime charged, declaring them
innocent and totally absolving them of any civil liability. This marked another unusual first in that
respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was not on trial) as
the assassin of Ninoy contrary to the very information and evidence submitted by the prosecution. In
opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal, the instant case
had become moot and academic. On February 4, 1986, the same Court majority denied petitioners'
motion for reconsideration for lack of merit, with the writer and Justice Abad Santos maintaining our
dissent.
On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration
attached therewith. The thrust of the second motion for reconsideration was the startling and therefore
unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue of
the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered the respondents
Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel headed by Herrera to
whitewash the criminal cases against the 26 respondents accused and produce a verdict of acquittal.
cdrep
On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and

ordered the respondents to comment thereon. 15

Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that he
had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new
Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added
"relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein respondent
never succumbed to any alleged attempts to influence his actuations in the premises, having instead
successfully resisted perceived attempts to exert pressure to drop the case after preliminary investigation
and actually ordered the filing and prosecution of the two (2) murder cases below against herein privateparty respondents." He candidly admitted also in his memorandum: "There is not much that need be said
about the existence of pressure. That there were pressures can hardly be denied; in fact, it has never
been denied." 15a He submitted that "even as he vehemently denies insinuations of any direct or
indirect complicity or participation in any alleged attempt to supposedly whitewash the cases below, . . .
should this Honorable Court find sufficient cause to justify the reopening and retrial of the cases below,
he would welcome such development so that any wrong that had been caused may be righted and so
that, at the very least the actuations of herein respondent in the premises may be reviewed and
reexamined, confident as he is that the end will show that he had done nothing in the premises that
violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of
April 14, 1986 "interposed no objection to the reopening of the trial of the cases . . . as, in fact, he urged
that the said cases be reopened in order that justice could take its course."
Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9, 1986
stated that the trial of the criminal cases by them was valid and regular and decided on the basis of
evidence presented and the law applicable, but manifested that "if it is true that the former Tanodbayan
and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into suppressing vital
evidence which would probably alter the result of the trial, Answering Respondents would not interpose
any objection to the reopening of those cases, if only to allow justice to take its course." Respondent
Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment, asserted that he passed no note
to anyone; the note being bandied about is not in his handwriting; he had nothing to do with the writing
of the note or of any note of any kind intended for any lawyer of the defense or even of the prosecution;
and requested for an investigation by this Court to settle the note-passing issue once and for all.
Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the
second motion for reconsideration that he revealed that the Sandiganbayan Justices and Tanodbayan
prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified his
revelations, as follows:
"1. AB INITIO, A VERDICT OF ACQUITTAL!
Incidents during the preliminary investigation showed ominous signs
that the fate of the criminal case on the death of Ex-Senator Benigno
Aquino and Rolando Galman on August 21, 1983 was dooned to an
ignominous end. Malacaang wanted dismissal to the extent that a
prepared resolution was sent to the Investigating Panel (composed of
the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for
signature. This, of course, was resisted by the panel, and a resolution
charging all the respondents as principals was forwarded to the
Tanodbayan on January 10, 1985.
2. MALACAANG CONFERENCE PLANNED SCENARIO OF TRIAL.

At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the
former President) summoned to Malacaang Justice Bernardo
Fernandez (the Tanodbayan), Sandiganbayan Justice Manuel Pamaran
(the Presiding Justice) and all the members of the Panel.
Also present at the meeting were Justice Manuel Lazaro (the
Coordinator) and Mrs. Imelda R. Marcos, who left earlier, came back
and left again. The former President had a copy of the panel's signed
resolution (charging all accused as principals), evidently furnished him
in advance, and with prepared notes on the contents thereof. LLjur
The former President started by vehemently maintaining that Galman
shot Aquino at the tarmac. Albeit initially the undersigned argued
against the theory, to remain silent was the more discreet posture
when the former President became emotional (he was quite sick then).
During a good part of the conference, the former President talked
about Aquino and the communists, lambasting the Agrava Board,
specially the Legal Panel. Shifting to the military he rumbled on such
statements as: 'It will be bloody . . . Gen. Ramos, though close to me, is
getting ambitious and poor Johnny does not know what to do' . . . 'our
understanding with Gen. Ramos is that his stint is only temporary, but
he is becoming ambitious;' . . . 'the boys were frantic when they heard
that they will be charged in court, and will be detained at city jail.'
From outright dismissal, the sentiment veered towards a more
pragmatic approach. The former President more or less conceded that
for political and legal reasons all the respondents should be charged in
court. Politically, as it will become evident that the government was
serious in pursuing the case towards its logical conclusion, and thereby
ease public demonstrations; on the other hand, legally, it was perceived
that after (not IF) they are acquitted, double jeopardy would inure. The
former President ordered then that the resolution be revised by
categorizing the participation of each respondent.
In the matter of custody of the accused pendente lite the Coordinator
was ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente
Eduardo and Director Jolly Bugarin to put on record that they had no
place in their respective institutions. The existence of PD No. 1950
(giving custody to commanding officers of members of AFP charged in
court) was never mentioned.
It was decided that the presiding justice (First Division) would
personally handle the trial, and assurance was made by him that it
would be finished in four to six months, pointing out that, with the
recent effectivity of the New Rules on Criminal Procedure, the trial
could be expedited.
Towards the end of the two hour meeting and after the script had been
tacitly mapped out, the former President uttered: 'Magmoro-moro na
lang kayo.'

The parting words of the former President were: 'Thank you for your
cooperation. I know how to reciprocate.'
While still in the palace grounds on the way out, the undersigned
manifested his desire to the Tanodbayan to resign from the panel, or
even the office. This, as well as other moves to this effect, had always
been refused. Hoping that with sufficient evidence sincerely and
efficiently presented by the prosecution, all involves in the trial would
be conscience-pricked and realize the futility and injustice of
proceeding in accordance with the script, the undersigned opted to say
on."
Herrera further added details on the "implementation of the script," such as the holding of a
"make-believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan
at noon of January 23, 1985, while there were no members of the media; the installation of TV
monitors directly beamed to Malacaang; the installation of a "war room" occupied by the
military; attempts to direct and stifle witnesses for the prosecution; the suppression of the
evidence that could be given by U.S. Airforce men about the "scrambling" of Ninoy's plane; the
suppression of rebuttal witnesses and the bias and partiality of the Sandiganbayan; its cavalier
disregard of his plea that it "should not decide these cases on the merits without first making a
final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill with the declaration
that "the Court finds all accused innocent of the crimes charged in the two informations, and
accordingly, they incur neither criminal nor civil liability," adding that "in the almost twenty years
that the undersigned has been the prosecutor in the sala of the Presiding Justice this is the only
occasion where civil liability is pronounced in a decision of acquittal." He "associated himself with
the motion for reconsideration and likewise prayed that the proceedings in the Sandiganbayan
and its decision be declared null and void."
New Solicitor General Sedfrey Ordoez' comment of April 25, 1986 submitted that a declaration of
mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of
evidence and collusion. He submitted that this would require reception of evidence by a Court-appointed
or designated commissioner or body of commissioners (as was done in G.R. No. 71316, Fr. Romano case;
and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco Filipino case); and that if petitioners' claim
were substantiated, a reopening of the double murder case is proper to avoid a miscarriage of justice
since the verdict of acquittal would no longer be a valid basis for a double jeopardy claim. prLL
Respondents-accused opposed the second motion for reconsideration and prayed for its denial.
Respondent Olivas contended that the proper step for the government was to file a direct action to
annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures.
As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the issues
had become moot and academic because of the rendition of the Sandiganbayan's judgment of acquittal
of all respondents-accused on December 2, 1985, with counsels for respondents Ver and Tigas, as well as
Olivas, further arguing that assuming that the judgment of acquittal is void for any reason, the remedy is
a direct action to annul the judgment where the burden of proof falls upon the plaintiff to establish by
clear, competent and convincing evidence the cause of the nullity.

After petitioners had filed their consolidated reply, the Court resolved per its
resolution of June 5, 1986 to appoint a three-member commission composed of retired Supreme
Court Justice Conrado Vasquez, chairman, and retired Intermediate Appellate Court Justices

Milagros German and Eduardo Caguioa as members, to hear and receive evidence, testimonial
and documentary, of the charges of collusion and pressures and relevant matters, upon prior
notice to all parties, and to submit their findings to this Court for proper disposition. The
Commission conducted hearings on 19 days, starting on June 16, 1986 and ending on July 16,
1986. On the said last day, respondents announced in open hearing that they decided to forego
the taking of the projected deposition of former President Marcos, as his testimony would be
merely corroborative of the testimonies of respondents Justice Pamaran and Tanodbayan
Fernandez. On July 31, 1986, it submitted its extensive 64-page Report 16 wherein it discussed
fully the evidence received by it and made a recapitulation of its findings in capsulized form, as
follows:
"1. The Office of the Tanodbayan, particularly Justice Fernandez and the
Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe
and Special Prosecutor Tamayo, was originally of the view that all of the
twenty-six (26) respondents named in the Agrava Board majority report
should all be charged as principals of the crime of double murder for
the death of Senator Benigno Aquino and Rolando Galman.
2. When Malacaang learned of the impending filing of the said charge
before the Sandiganbayan, the Special Investigating Panel having
already prepared a draft Resolution recommending such course of
action, President Marcos summoned Justice Fernandez, the three
members of the Special Investigating Panel, and Justice Pamaran to a
conference in Malacaang in the early evening of January 10, 1985.
3. In said conference, President Marcos initially expressed his
disagreement with the recommendation of the Special Investigating
Panel and disputed the findings of the Agrava Board that it was not
Galman who shot Benigno Aquino.
4. Later in the conference, however, President Marcos was convinced of
the advisability of filing the murder charge in court so that, after being
acquitted as planned, the accused may no longer be prosecuted in view
of the doctrine of double jeopardy.
5. Presumably in order to be assured that not all of the accused would
be denied bail during the trial, considering that they would be charged
with capital offenses, President Marcos directed that the several
accused be 'categorized' so that some of them would merely be
charged as accomplices and accessories.
6. In addition to said directive, President Marcos ordered that the case
be handled personally by Justice Pamaran who should dispose of it in
the earliest possible time.
7. The instructions given in the Malacaang conference were followed
to the letter; and compliance therewith manifested itself in several
specific instances in the course of the proceedings, such as, the
changing of the resolution of the special investigating panel, the filing of
the case with the Sandiganbayan and its assignment to Justice Pamaran,
suppression of some vital evidence, harassment of witnesses,
recantation of witnesses who gave adverse testimony before the

Agrava Board, coaching of defense counsels, the hasty trial, monitoring

of proceedings, and even in the very decision rendered in the case.
8. That expression of President Marcos' desire as to how he wanted the
Aquino-Galman case to be handled and disposed of constituted
sufficient pressure on those involved in said task to comply with the
same in the subsequent course of the proceedings.
9. That while Justice Pamaran and Justice Fernandez manifested no
revulsion against complying with the Malacaang directive, Justice
Herrera played his role with manifestly ambivalent feelings.
10. Sufficient evidence has been ventilated to show a scripted and
predetermined manner of handling and disposing of the AquinoGalman murder case, as stage-managed from Malacaang and
performed by willing dramatis personnae as well as by recalcitrant ones
whipped into line by the omni-present influence of an authoritarian
ruler."

members of proven integrity with a combined total of 141 years of experience in the practice of law (55
years) and in the prosecutoral and judicial services (86 years in the trial and appellate courts), experts at
sifting the chaff from the grain, 17 the Commission properly appraised the evidences presented and
denials made by public respondents, thus:
"The desire of President Marcos to have the Aquino-Galman case
disposed of in a manner suitable to his purposes was quite
understandable and was but to be expected. The case had stirred
unprecedented public outcry and wide international attention. Not
invariably, the finger of suspicion pointed to those then in power who
supposedly had the means and the most compelling motive to
eliminate Senator Aquino. A day or so after the assassination, President
Marcos came up with a public statement aired over television that
Senator Aquino was killed not by his military escorts, but by a
communist hired gun. It was, therefore, not a source of wonder that
President Marcos would want the case disposed of in a manner
consistent with his announced theory thereof which, at the same time,
would clear his name and his administration of any suspected guilty
participation in the assassination.

The Commission submitted the following recommendation. prcd

"Considering the existence of adequate credible evidence showing that
the prosecution in the Aquino-Galman case and the Justices who tried
and decided the same acted under the compulsion of some pressure
which proved to be beyond their capacity to resist, and which not only
prevented the prosecution to fully ventilate its position and to offer all
the evidences which it could have otherwise presented, but also
predetermined the final outcome of the case, the Commission is of the
considered thinking and belief, subject to the better opinion and
judgment of this Honorable Court, that the proceedings in the said case
have been vitiated by lack of due process, and hereby respectfully
recommends that the prayer in the petition for a declaration of a
mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled 'People
vs. Luther Custodio, et al.,' be granted."
The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and
required them to submit their objections thereto. It thereafter heard the parties and their objections at
the hearing of August 26, 1986 and the matter was submitted for the Court's resolution.
The Court adopts and approves the Report and its findings and holds on the basis thereof and of the
evidence received and appreciated by the Commission and duly supported by the facts of public record
and knowledge set forth above and hereinafter, that the then President (code-named Olympus) had
stage-managed in and from Malacaang Palace "a scripted and predetermined manner of handling and
disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino-Galman case and
the Justices who tried and decided the same acted under the compulsion of some pressure which proved
to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its
position and to offer all the evidences which it could have otherwise presented, but also predetermined
the final outcome of the case" of total absolution of the twenty-six respondents-accused of all criminal
and civil liability.
The Court finds that the Commission's Report (incorporated herein by reference) and findings and
conclusions are duly substantiated by the evidence and facts of public record. Composed of distinguished

"The calling of the conference was undoubtedly to accomplish thus

purpose . . .
"President Marcos made no bones to conceal his purpose for calling
them. From the start, he expressed irritation and displeasure at the
recommendation of the investigating panel to charge all of the twentysix (26) respondents as principals of the crime of double murder. He
insisted that it was Galman who shot Senator Aquino, and that the
findings of the Agrava Board were not supported by evidence that
could stand in court. He discussed and argued with Justice Herrera on
this point. Midway in the course of the discussion, mention was made
that the filing of the charge in court would at least mollify public
demands and possibly prevent further street demonstrations. It was
further pointed out that such a procedure would be a better
arrangement because, if the accused are charged in court and
subsequently acquitted, they may claim the benefit of the doctrine of
double jeopardy and thereby avoid another prosecution if some other
witnesses shall appear when President Marcos is no longer in office.
xxx xxx xxx
"After an agreement was reached as to filing the case, instead of
dismissing it, but with some of the accused to be charged merely as
accomplices or accessories, and the question of preventive custody of
the accused having thereby received satisfactory solution, President
Marcos took up the matter of who would try the case and how long it
would take to be finished.
"According to Justice Herrera, President Marcos told Justice Pamaran
'point blank' to personally handle the case. This was denied by Justice
Pamaran. No similar denial was voiced by Justice Fernandez in the entire
course of his two-day testimony. Justice Pamaran explained that such

order could not have been given inasmuch as it was not yet certain
then that the Sandiganbayan would try the case and, besides, cases
therein are assigned by raffle to a division and not to a particular Justice
thereof.
"It was preposterous to expect Justice Pamaran to admit having
received such presidential directive. His denial, however, falls to pieces
in the light of the fact that the case was indeed handled by him after
being assigned to the division headed by him. A supposition of mere
coincidence is at once dispelled by the circumstance that he was the
only one from the Sandiganbayan called to the Malacaang conference
wherein the said directive was given . . .

"The giving of such directive to Justice Pamaran may also be inferred

from his admission that he gave President Marcos the possible time
frame when asked as to how long it would take him to finish the case.
"The testimony of Justice Herrera that, during the conference, and after
an agreement was reached on filing the case and subsequently
acquitting the accused, President Marcos told them 'Okay, mag moromoro na lamang kayo;' and that on their way out of the room President
Marcos expressed his thanks to the group and uttered 'I know how to
reciprocate,' did not receive any denial or contradiction either on the
part of Justice Fernandez or Justice Pamaran. (No other person present
in the conference was presented by the respondents. Despite an earlier
manifestation by the respondents of their intention to present Fiscal
Bernabe and Prosecutor Tamayo, such move was abandoned without
any reason having been given therefor.).
"The facts set forth above are all supported by the evidence on record.
In the mind of the Commission, the only conclusion that may be drawn
therefrom is that pressure from Malacaang had indeed been made to
bear on both the court and the prosecution in the handling and
disposition of the Aquino-Galman case. The intensity of this pressure is
readily deductible from the personality of the one who exerted it, his
moral and official ascendancy over those to whom his instructions were
directed, the motivation behind such instructions, and the nature of the
government prevailing at that time which enabled the then head of
state to exercise authoritarian powers. That the conference called to
script or stage-manage the prosecution and trial of the Aquino-Galman
case was considered as something anomalous that should be kept away
from the public eye is shown by the effort to assure its secrecy. None
but those directly involved were called to attend. The meeting was held
in an inner room of the Palace. Only the First Lady and Presidential
Legal Assistant Justice Lazaro were with the President. The conferees
were told to take the back door in going to the room where the
meeting was held, presumably to escape notice by the visitors in the
reception hall waiting to see the President. Actually, no public mention
was ever made of this conference until Justice Herrera made his expose
some fifteen (15) months later when the former President was no longer

around.
"President Marcos undoubtedly realized the importance of the matter
he wanted to take up with the officials he asked to be summoned. He
had to do it personally, and not merely through trusted assistants. The
lack of will or determination on the part of Justice Fernandez and
Justice Pamaran to resist the presidential summons despite their
realization of its unwholesome implications on their handling of the
celebrated murder case may be easily inferred from their unquestioned
obedience thereto. No effort to resist was made, despite the existence
of a most valid reason to beg off, on the lame excuses that they went
there out of 'curiosity,' or 'out of respect to the Office of the President,'
or that it would be 'unbecoming to refuse a summons from the
President.' Such frame of mind only reveals their susceptibility to
presidential pressure and lack of capacity to resist the same. The very
acts of being summoned to Malacaang and their ready acquiescence
thereto under the circumstances then obtaining, are in themselves
pressure dramatized and exemplified. Their abject deference to
President Marcos may likewise be inferred from the admitted fact that,
not having been given seats during the two-hour conference (Justice
Fernandez said it was not that long, but did not say how long) in which
President Marcos did the talking most of the time, they listened to him
on their feet. Verily, it can be said that any avowal of independent
action or resistance to presidential pressure became illusory from the
very moment they stepped inside Malacaang Palace on January 10,
1985." 18
The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on whether the
Sandiganbayan and the Office of the Tanodbayan actually succumbed to such pressure, as may be
gauged by their subsequent actuations in their respective handling of the case." It duly concluded that
"the pressure exerted by President Marcos in the conference held on January 10, 1985 pervaded the
entire proceedings of the Aquino-Galman [murder] cases" as manifested in several specific incidents and
instances it enumerated in the Report under the heading of "Manifestations of Pressure and
Manipulation."
Suffice it to give hereinbelow brief excerpts:
1. The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as
principals by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and 6
others as accessories and the civilian as accomplice, and recommending bail for the latter two categories:
"The categorization may not be completely justified by saying that, in the mind of Justice Fernandez,
there was no sufficient evidence to justify that all of the accused be charged as principals. The majority
of the Agrava Board found the existence of conspiracy and recommended that all of the accused be
charged accordingly. Without going into the merit of such finding, it may hardly be disputed that, in case
of doubt, and in accordance with the standard practice of the prosecution to charge accused with the
most serious possible offense or in the highest category so as to prevent an incurable injustice in the
event that the evidence presented in the trial will show his guilt of the graver charge, the most logical
and practical course of action should have been, as originally recommended by the Herrera panel, to
charge all the accused as principals. As it turned out, Justice Fernandez readily opted for categorization
which, not surprisingly, was in consonance with the Malacaang instruction." It is too much to attribute
to coincidence that such unusual categorization came only after the then President's instruction at
Malacaang when Gen. Ver's counsel Atty. Coronel, had been asking the same of Tanodbayan Fernandez

since November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that time, [the Malacaang
conference on January 10, 1985], his own view was in conformity with that of the Special Investigating
Panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder. 19 As
the Commission further noted, "Justice Fernandez never denied the claim of Justice Herrera that the
draft resolution of January 10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have
been the subject of a press conference on the afternoon of said date which did not go through due to the
summons for them to go to Malacaang in the early evening of said date." 20
2. Suppression of vital evidence and harassment of witnesses: "Realizing, no doubt, that a party's case is
as strong as the evidence it can present, unmistakable and persistent efforts were exerted in behalf of
the accused to weaken the case of the prosecution and thereby assure and justify [the accused's]
eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and some were
indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled, perjured or
threatened either to refrain from testifying or to testify in a manner favorable to the defense."
The Report specified the ordeals of the prosecution witnesses: 21 Cesar Loterina, PAL employee, Roberta
Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had
to be discarded as prosecution witnesses before at the trial. Witnesses Viesca and Raas who also
testified before the Board "disappeared all of a sudden and could not be located by the police. The
Commission narrated the efforts to stifle Kiyoshi Wakamiya, eyewitness who accompanied Ninoy on his
fateful flight on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse
of power." Wakamiya was not even allowed to return to Manila on August 20, 1984 to participate in the
first death anniversary of Ninoy but was deported as an undesirable alien and had to leave on the next
plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese
police in accordance with their law and Wakamiya claimed before the Commission that the English
transcription of his testimony, as prepared by an official of the Philippine Embassy in Tokyo, was
inaccurate and did not correctly reflect the testimony he gave "although there was no clear showing of
the discrepancy from the original transcription which was in Nippon-go. Upon his arrival at the MIA on
August 21, 1985 on invitation of Justice Herrera to testify at the ongoing trial, "a shot was fired and a
soldier was seen running away by media men who sought to protect Wakamiya from harm by
surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday
(August 24th) notwithstanding Herrera's request to let him stay until he could testify the following
Monday (August 26th). In the case of principal eyewitness Rebecca Quijano, the Commission reported
that Cdpr
". . . Undoubtedly in view of the considerable significance of her
proposed testimony and its unfavorable effect on the cause of the
defense, the efforts exerted to suppress the same was as much as, if
not more than those in the case of Wakamiya . . . She recounted that
she was in constant fear of her life, having been hunted by armed men;
that their house in Tabaco, Albay was ransacked, her family harassed by
the foreclosure of the mortgage on their house by the local Rural Bank,
and ejected therefrom when she ignored the request of its manager to
talk with her about her proposed testimony; that a certain William
Farias offered her plane tickets for a trip abroad; that Mayor Rudy
Farias of Laoag City kept on calling her sister in the United States to
warn her not to testify; that, later, Rudy and William Farias offered her
two million pesos supposedly coming from Bongbong Marcos, a house
and lot in Baguio, the dropping of her estafa case in Hongkong, and the
punishment of the persons responsible for the death of her father, if
she would refrain from testifying.

"It is a matter of record, however, that despite such cajolery and

harassments, or perhaps because of them, Ms. Quijano eventually
testified before the Sandiganbayan. Justice Herrera was told by Justice
Fernandez of the displeasure expressed by Olympus at Justice Herrera's
going out of his way to make Ms. Quijano to testify, and for his refusal
to honor the invitation to attend the birthday party of the First Lady on
May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985.
The insiduous attempts to tamper with her testimony, however, did not
end with her taking the witness stand. In the course of her testimony
several notes were passed to Atty. Rodolfo Jimenez, the defense
counsel who cross-examined her, one of which suggested that she be
asked more questions about Dean Narvasa who was suspected of
having coached her as to what to declare (Exhibit 'D'); and on another
occasion, at a crucial point in her testimony, a power brownout
occurred; which lasted for about twenty minutes, throwing the
courtroom into darkness, and making most of those present to scamper
for safety, and Ms. Quijano to pass over the railing of the rostrum so as
to be able to leave the courtroom. It was verified that the brownout
was limited to the building housing the Sandiganbayan, it not having
affected the nearby Manila City Hall and the Finance Building Justice
Herrera declared that the main switchboard of the Sandiganbayan
electrical system was located beside the room occupied by Malacaang
people who were keeping track of the proceedings."
Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two
Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks after
Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who jotted down
the number of the car that took them away, also disappeared. On January 29, 1984, during the
proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was kidnapped
together with a neighbor named Rogelio Taruc. They have been missing since then, despite his attempts
to find any of them. According to him, "nobody was looking for these five persons because they said
Marcos was in power [despite his appeal to the Minister of National Defense to locate them]. Today, still
no one is looking for these people." And he appealed to the new leadership for its assistance in learning
their fate.
3. The discarding of the affidavits executed by U.S. airmen: "While it is true that the U.S. airmen's
proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa
Airfield or some other place, such showing would not necessarily contravene the theory of the
prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport.
Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane merely
showed a 'wider range of conspiracy,' it being possibly just one of two or three other plans designed to
accomplish the same purpose of liquidating Senator Aquino. In any event, even assuming that the said
piece of evidence could go either way, it may not be successfully contended that it was prudent or wise
on the part of the prosecution to totally discard the said piece of evidence. Despite minor inconsistencies
contained therein, its introduction could have helped the cause of the prosecution. If it were not so, or
that it would even favor the defense, as averred by Justice Fernandez, the determined effort to suppress
the same would have been totally uncalled for. LLjur
"4. Nine proposed rebuttal witnesses not presented

5. The failure to exhaust available remedies against adverse developments: "When the Supreme Court
denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the military
respondents headed by Gen. Ver before the Fact Finding Board], the latter almost immediately
announced to media that he was not filing a motion for the reconsideration of said denial, for the reason
that it would be futile to do so and foolhardy to expect a favorable action on the same . . . His posture . . .
is, in the least, indicative that he was living up to the instruction of finishing the trial of the case as soon
as possible, if not of something else.
"6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President
Marcos ordered Justice Pamaran point-blank to handle the case. The pro-forma denial by Justice
Pamaran of such instruction crumbles under the actuality of such directive having been complied with to
the letter . . .
"Justice Pamaran sought to discredit the claim that he was ordered by
President Marcos to handle the case personally by explaining that cases
in the Sandiganbayan are assigned by raffle and not to a particular
Justice, but to a division thereof. The evidence before the Commission
on how the case happened to be assigned to Justice Pamaran evinces a
strong indication that such assignment was not done fairly or regularly.
"There was no evidence at all that the assignment was indeed by virtue
of a regular raffle, except the uncorroborated testimony of Justice
Pamaran . . . Despite an announcement that Justice Escareal would be
presented by the respondents to testify on the contents of his aforesaid
Memorandum, such was not done. No reason was given why Justice
Escarel could not, or would not like to testify. Neither was any one of
the officials or employees of the Sandiganbayan who, according to
Justice Pamaran, were present during the supposed raffle, presented to
corroborate the claim of Justice Pamaran as regards the said raffle.
xxx xxx xxx
"It is also an admitted fact that the two Informations in the double
murder case were filed by Justice Herrera on January 23, 1985, at 12:02
p.m., and the members of the Raffle Committee were summoned at
12:20 p.m. or only 18 minutes after the filing of the two Informations.
Such speed in the actual assignment of the case can truly be
categorized as unusual, if not extraordinary, considering that before a
case filed may be included in the raffle, there is need for a certain
amount of paper work to be undertaken. If such preliminary
requirements were done in this case within the limited time available
therefor, the charge that the raffle was rushed to avoid the presence of
media people would ring with truth.
"What is more intriguing is the fact that although a raffle might have
been actually conducted which resulted in the assignment of the case
to the First Division of the Sandiganbayan, the Commission did not
receive any evidence on how or why it was handled personally by
Justice Pamaran who wrote the decision thereof, and not by any one of
the two other members of his division . . ."
7. The custody of the accused; their confinement in a military camp, instead of in a civilian jail: "When the

question of custody came up after the case was filed in the Sandiganbayan, the latter issued an order
directing the confinement of the accused in the City Jail of Manila. This order was not carried out in view
of the information given by the Warden of the City Jail that there was no space for the twenty-six
accused in said jail. The same information was given when the custody was proposed to be given to the
National Penitentiary in Muntinglupa and to the National Bureau of Investigation. At that point, the
defense came up with Presidential Decree No. 1950A which authorizes the custody of the accused
military personnel with their respective Commanding Officers. Justice Herrera claimed that the said
Presidential Decree was not known even to the Tanodbayan Justice Fernandez who had to call up the
then Minister of Justice Estelito Mendoza to request a copy of the same, and was given such copy only
after sometime . . .
8. The monitoring of proceedings and developments from Malacaang and by Malacaang personnel.
"There is an uncontradicted evidence that the progress of the proceedings in the Sandiganbayan as well
as the developments of the case outside the Court had been monitored by Malacaang presumably for it
to know what was happening and to take remedial measures as may be necessary, Justice Pamaran had
candidly admitted that television cameras "boldly carrying the label of 'Office of the President of the
Philippines'" were installed in the courtroom for that purpose. There was a room in the Sandiganbayan,
mischievously called 'war room', wherein military and Malacaang personnel stayed to keep track of the
proceedings," the close monitoring by Malacaang showed its results oh several occasions specified in
the Report. Malacaang was immediately aware of the Japanese witness Wakamiya's presence in Justice
Herrera's office on August 21, 1985 and forestalled the giving of his testimony by having the Japanese
Embassy advise Wakamiya to leave the country at once. Likewise, Col. Balbino Diego, Malacaang
intelligence chief, suddenly appeared at the National Bureau of Investigation office when the "crying
lady" Rebecca Quijano was brought there by NBI agents for interrogation and therein sought to obtain
custody of her. "It is likewise an undisputed fact," the Commission noted "that several military personnel
pretended to be deputy sheriffs of the Sandiganbayan and attended the trials thereof in the prescribed
deputy sheriffs' uniforms." The Commission's inescapable finding: "It is abundantly clear that President
Marcos did not only give instructions as to how the case should be handled. He saw to it that he would
know if his instructions will be complied with.
9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the
twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an
integral part of the scenario which was cleverly designed to accomplish two principal objectives,
seemingly conflicting in themselves, but favorable both to then administration and to the accused; to wit,
[1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged in court,
and [2] the foreclosure of any possibility that they may again be prosecuted for the same offense in the
event that President Marcos shall no longer be in power.

"In rendering its decision, the Sandiganbayan overdid itself in favoring the presidential directive. Its bias
and partiality in favor of the accused was glaringly obvious. The evidence presented by the prosecution
was totally ignored and disregarded. . . . It was deemed not sufficient to simply acquit all of the twentysix accused on the standard ground that their guilt had not been proven beyond reasonable doubt, as
was the most logical and appropriate way of justifying the acquittal in the case, there not being a total
absence of evidence that could show guilt on the part of the accused. The decision had to pronounce
them 'innocent of the crime charged on the two informations, and accordingly, they incur neither criminal
nor civil liability.' It is a rare phenomenon to see a person accused of a crime to be favored with such total
absolution. . . .
"Doubt on the soundness of the decision entertained by one of the two justices who concurred with the
majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified that in

October, 1985, when the decision was being prepared, Justice Augusto Amores told him that he was of
the view that some of the accused should be convicted, he having found difficulty in acquitting all of
them; however, he confided to Justice Herrera that Justice Pamaran made it clear to him and Justice Vera
Cruz that Malacaang had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986, p. 49).
Justice Amores also told Justice Herrera that he would confirm this statement (which was mentioned in
Justice Herrera's comment to the Second Motion for Reconsideration) if asked about it (TSN, June 19,
1986, pp. 92-93). This testimony of Justice Herrera remained unrebutted." (Emphasis supplied).
The record shows suffocatingly that from beginning to end, the then President used, or more precisely,
misused the overwhelming resources of the government and his authoritarian powers to corrupt and
make a mockery of the judicial process in the Aquino-Galman murder cases. As graphically depicted in
the Report, supra, and borne out by the happenings (res ipsa loquitura 22 ), since the resolution
prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the
Tanodbayan's dismissal of the cases against all accused was unpalatable (it would summon the
demonstrators back to the streets 23 ) and at any rate was not acceptable to the Herrera prosecution
panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the
Malacaang conference, would accomplish the two principal objectives of satisfaction of the public
clamor for the suspected killers to be charged in court and of giving them through their acquittal the
legal shield of double jeopardy. 24
Indeed, the secret Malacaang conference at which the authoritarian President called together the
Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel
headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and
the close monitoring of the entire proceedings to assure the pre-determined ignominious final outcome
are without parallel and precedent in our annals and jurisprudence. To borrow a phrase from Ninoy's
April 14, 1975 letter withdrawing his petition for habeas corpus, 25 "This is the evil of one-man rule at its
very worst." Our Penal Code penalizes "any executive officer who shall address any order or suggestion to
any judicial authority with respect to any case or business coming within the exclusive jurisdiction of the
courts of justice." 26 His obsession for "the boys'" acquittal led to several first which would otherwise be
inexplicable:
1. He turned his back on and repudiated the findings of the very Fact Finding Board that he himself
appointed to investigate the "national tragedy and national shame" of the "treacherous and vicious
assassination of Ninoy Aquino" and "to ventilate the truth through free, independent and dispassionate
investigation by prestigious and free investigators.
"2. He cordially received the chairman with her minority report one day ahead of the four majority
members and instantly referred it to respondents "for final resolution through the legal system" as if it
were the majority and controlling report; and rebuked the four majority members when they presented
to him the next day their report calling for the indictment of all 26 respondents headed by Gens. Ver and
Olivas (instead of the lesser seven under the chairman's minority report).
3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally disregarded
the Board's majority and minority findings of fact and publicly insisted that the military's "fall guy"
Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers' incompetence
and gross negligence to provide any security for Ninoy in contrast to their alacrity in gunning down the
alleged assassin Galman and sealing his lips.
4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as Ninoy's
assassin notwithstanding that he was not on trial but the victim according to the very information filed,
and evidence to the contrary submitted, by the Herrera prosecution panel; and

5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to convict
some of the accused) granted all 26 accused total absolution and pronounced them "innocent of the
crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability,"
notwithstanding the evidence on the basis of which the Fact Finding Board had unanimously declared
the soldiers' version of Galman being Aquino's killer a "perjured story, given deliberately and in
conspiracy with one another."
The fact of the secret Malacaang conference of January 10, 1985 at which the authoritarian President
discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of
the imminent filing of the criminal charges against all the twenty-six accused (as admitted by respondent
Justice Fernandez to have been confirmed by him to the then President's "Coordinator" Manuel Lazaro
on the preceding day) is not denied. It is without precedent. This was illegal under our penal laws, supra.
This illegality vitiated from the very beginning all proceedings in the Sandiganbayan court headed by the
very Presiding Justice who attended. As the Commission noted: "The very acts of being summoned to
Malacaang and their ready acquiescence thereto under the circumstances then obtaining, are in
themselves pressure dramatized and exemplified . . . Verily, it can be said that any avowal of
independent action or resistance to presidential pressure became illusory from the very moment they
stepped inside Malacaang Palace on January 10, 1985." LLphil
No court whose Presiding Justice has received "orders or suggestions" from the very President who by an
amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition
challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan
instead of to a court martial, as mandatory required by the known P.D. 1850 at the time providing for
exclusive jurisdiction of courts martial over criminal offenses committed by military men 26a ) made it
possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of
due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and
not by preselection of the Executive, which could be much too easily transformed into a means of
predetermining the outcome of individual cases." 26b This criminal collusion as to the handling and
treatment of the cases by public respondents at the secret Malacaang conference (and revealed only
after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and
voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of
respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that
there has been no evidence or witness suppressed against them, that the erroneous conclusions of
Olivas as police investigator do not make him an accessory of the crimes he investigated and the
appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be
time and opportunity to present all these arguments and considerations at the remand and retrial of the
cases herein ordered before a neutral and impartial court. LLphil
The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand
unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would
have no reason to exist if they were allowed to be used as mere tools of injustice, deception and
duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are
sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a
right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of
politics and prejudice. More so, in the case at bar where the people and the world are entitled to know
the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military
tribunal Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the
regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim
of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved
parties plead once more for due process of law and a retrial before an impartial court with an unbiased
prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century
and that the predetermined judgment of acquittal was unlawful and void ab initio.

1. No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this
Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which
represents the sovereign people in criminal cases is denied due process. As the Court stressed in the
1985 case of People vs. Bocar, 27
"Where the prosecution is deprived of a fair opportunity to prosecute
and prove its case, its right to due process is thereby violated. 27a
"The cardinal precept is that where there is a violation of basic
constitutional rights, courts are ousted of their jurisdiction. Thus, the
violation of the State's right to due process raises a serious
jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L30026, 37 SCRA 420 [Jan. 30, 1971] which cannot be glossed over or
disregarded at will. Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard of that right is
void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25,
19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 Feb.
27, 1973]). Any judgment or decision rendered notwithstanding such
violation may be regarded as a 'lawless thing, which can be treated as
an outlaw and slain at sight, or ignored wherever it exhibits its head'
(Aducayen vs. Flores, supra).
"Respondent Judge's dismissal order dated July 7, 1967 being null and
void for lack of jurisdiction, the same does not constitute a proper basis
for a claim of double jeopardy (Serino vs. Zosa, supra).

reluctance to appear and testify, respondent Sandiganbayan maintained a "dizzying tempo" of the
proceedings and announced its intention to terminate the proceedings in about 6 months time or less
than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's
seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and contempt
proceedings as compared to the nil situation for the defense. Herrera likewise complained of being
"cajoled into producing witnesses and pressed on making assurances that if given a certain period, they
will be able to produce their witnesses," Herrera pleaded for "a reasonable period of preparation of its
evidence" and cited other pending cases before respondent court that were pending trial for a much
longer time where the "dizzying tempo" and "fast pace" were not maintained by the court. 28 Manifestly,
the prosecution and the sovereign people were denied due process of law with a partial court and biased
Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian
President to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of
acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment at all.
It neither binds nor bars anyone. Such a judgment is "a lawless thing which can be treated as an outlaw".
It is a terrible and unspeakable affront to the society and the people. To paraphrase Brandeis: 29 If the
authoritarian head of the government becomes the lawbreaker, he breeds contempt for the law, he
invites every man to become a law unto himself, he invites anarchy. prLL
Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which
cannot be appealed or reopened, without being put in double jeopardy was forcefully disposed of by the
Court in People vs. Court of Appeals, which is fully applicable here, as follows: "That is the general rule
and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of
acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches,
therefore. A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it,
no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It
neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void.
xxx xxx xxx

xxx xxx xxx

"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 (People vs. Ylagan, 58 Phil.
851). The lower court was not competent as it was ousted of its
jurisdiction when it violated the right of the prosecution to due process.
"In effect, the first jeopardy was never terminated, and the remand of
the criminal case for further hearing and/or trial before the lower
courts amounts merely to a continuation of the first jeopardy, and does
not expose the accused to a second jeopardy."
More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we have
held, the sham trial was but a mock trial where the authoritarian president ordered respondents
Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure
the predetermined final outcome of acquittal and total absolution as innocent of all the respondentsaccused. Notwithstanding the laudable efforts of Justice Herrera which saw him near the end
"deactivating" himself from the case, as it was his belief that its eventual resolution was already a
foregone conclusion, they could not cope with the misuse and abuse of the overwhelming powers of the
authoritarian President to weaken the case of the prosecution, to suppress its evidence, harass,
intimidate and threaten its witnesses, secure their recantation or prevent them from testifying. Fully
aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and

"Private respondent invoke 'justice for the innocent'. For justice to prevail, the scales must balance. It is
not to be dispensed for the accused alone. The interests of the society, which they have wronged must
also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of
acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it
could also mean injustice. This is where the Courts play a vital role. They render justice where justice is
due. 30
2. Motion to Disqualify/Inhibit should have been resolved ahead. The private prosecutors had filed a
motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of
manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M.
Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel. Justice
Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the prosecution
memorandum that respondent Sandiganbayan "should not decide the case on the merits without first
making a final ruling on the Motion for Inhibition." Herrera quoted the exchange between him and the
Presiding Justice to show the latter's "following the script of Malacaang"
"PJ PAMARAN
"Well the court believes that we should proceed with the trial and then
deal later on with that. After all the most important thing here is, shall
we say, the decision of the case."
"J. HERRERA

I think more important than the decision of the case, Your Honor, is the
capacity of the Justices to sit in judgment. That is more important than
anything else." (p. 13 TSN, June 25, 1985) (Italics supplied by Herrera)."
31
But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the
decision, for supposedly not having joined the petition for inhibition, contrary to the facts abovestated, as follows:
". . . the motion for inhibition above referred to related exclusively for
the contempt proceeding. Too, it must be remembered that the
prosecution neither joined that petition, nor did it at any time manifest
a desire to file a similar motion prior to the submission of these cases
for decision. To do it now is not alone out of season but is also a
confession of official insouciance." (Page 22, Decision). 32
The action for prohibition was filed in the Court to seek the disqualification of respondents Justices
pursuant to the procedure recognized by the Court in the 1969 case of Paredes vs. Gopengco 33 since an
adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party
without any remedy nor appeal in view of the double jeopardy rule, not to mention the overriding and
transcendental public interest that would make out a case of denial of due process to the People if the
alleged failure on the part of the Tanodbayan to present the complete evidence for the prosecution is
substantiated. 34
In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting of
the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been taken
cognizance of by the Court which had required the respondents', including the Sandiganbayan's,
comments. Although no restraining order was issued anew, respondent Sandiganbayan should not have
precipitately issued its decision of total absolution of all the accused pending the final action of this Court.
This is the teaching of Valdez vs. Aquilizan 35 , wherein the court in setting aside the hasty convictions,
ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least
to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave
way to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without
awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion
on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner."

3. Re: Objections of respondents. The other related objections of respondents' counsels must be
rejected in the face of the Court's declaration that the trial was a mock trial and that the predetermined
judgment of acquittal was unlawful and void ab initio.
(a) It follows that there is no need to resort to a direct action to annul the judgment, instead of the
present action which was timely filed initially to declare a mistrial and to enjoin the rendition of the void
judgment. And after the hasty rendition of such judgment for the declaration of its nullity, following the
presentation of competent proof heard by the Commission and the Court's findings therefrom that the
proceedings were from the beginning vitiated not only by lack of due process but also by the collusion
between the public respondents (court and Tanodbayan) for the rendition of a predetermined verdict of
acquitting all the twenty-six respondents-accused. cdll
(b) It is manifest that this does not involve a case of mere irregularities in the conduct of the proceedings
or errors of judgment which do not affect the integrity or validity of the judgment or verdict.

(c) The contention of one of defense counsel that the State and the sovereign people are not entitled to
due process is clearly erroneous and contrary to the basic principles and jurisprudence cited hereinabove.
(d) The submittal of respondents-accused that they had not exerted the pressure applied by the
authoritarian president on public respondents and that no evidence was suppressed against them must
be held to be untenable in the wake of the evil plot now exposed for their preordained wholesale
exoneration.
(e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co.,
Inc. 36 is inappropriate. The writer therein held that a party should be entitled to only one Supreme
Court and may not speculate on vital changes in the Court's membership for review of his lost case once
more, since public policy and sound practice demand that litigation be put to an end and no second pro
forma motion for reconsideration reiterating the same arguments should be kept pending so long (for
over six (6) years and one (1) month since the denial of the first motion for reconsideration). This opinion
cannot be properly invoked, because here, petitioners' second motion for reconsideration was filed
promptly on March 20, 1986 following the denial under date of February 4th of the first motion for
reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being
resolved within five months of its filing after the Commission had received the evidence of the parties
who were heard by the Court only last August 26th. Then, the second motion for reconsideration is
based on an entirely new material ground which was not known at the time of the denial of the petition
and filing of the first motion for reconsideration, i.e, the secret Malacaang conference on January 10,
1985 which came to light only fifteen months later in March, 1986 and showed beyond per-adventure
(as proved in the Commission hearings) the merits of the petition and that the authoritarian president
had dictated and predetermined the final outcome of acquittal. Hence, the ten members of the Court
(without any new appointees) unanimously voted to admit the second motion for reconsideration. 37
4. With the declaration of nullity of the proceedings, the cases must now be tried before an impartial
court with an unbiased prosecutor. There has been the long dark night of authoritarian regime, since
the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now admitted by
Enrile himself) was staged to trigger the imposition of martial law and authoritarian one-man rule, with
the padlocking of Congress and the abolition of the office of the Vice-President.
As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members of
the Bar last May, "In the past few years, the judiciary was under heavy attack by an extremely powerful
executive. During this state of judicial siege, lawyers both in and outside the judiciary perceptively
surrendered to the animus of technicality. In the end, morality was overwhelmed by technicality, so that
the latter emerged ugly and naked in its true manifestation."
Now that the light is emerging, the Supreme Court faces the task of restoring public faith and confidence
in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse. Its strength
has mainly in public confidence, based on the truth and moral force of its judgments. This has been built
on its cherished traditions of objectivity and impartiality, integrity and fairness and unswerving loyalty to
the Constitution and the rule of law which compels acceptance as well by the leadership as by the people.
The lower courts draw their bearings from the Supreme Court. With this Court's judgment today
declaring the nullity of the questioned judgment or acquittal and directing a new trial, there must be a
rejection of the temptation of becoming instruments of injustice as vigorously as we rejected becoming
its victims. The end of one form of injustice should not become simply the beginning of another. This
simply means that the respondents accused must now face trial for the crimes charged against them
before an impartial court with an unbiased prosecutor with all due process. What the past regime had
denied the people and the aggrieved parties in the sham trial must now be assured as much to the
accused as to the aggrieved parties. The people will assuredly have a way of knowing when justice has
prevailed as well as when it has failed. cdrep

The notion nurtured under the past regime that those appointed to public office owe their primary
allegiance to the appointing authority and are accountable to him alone and not to the people or the
Constitution must be discarded. The function of the appointing authority with the mandate of the people,
under our system of government, is to fill the public posts. While the appointee may acknowledge with
gratitude the opportunity thus given of rendering public service, the appointing authority becomes
functus officio and the primary loyalty of the appointed must be rendered to the Constitution and the
sovereign people in accordance with his sacred oath of office. To paraphrase the late Chief Justice Earl
Warren of the United States Supreme Court, the Justices and judges must ever realize that they have no
constituency, serve no majority nor minority but serve only the public interest as they see it in
accordance with their oath of office, guided only the Constitution and their own conscience and honor.
5. Note of Commendation. The Court expresses its appreciation with thanks for the invaluable services
rendered by the Commission composed of retired Supreme Court Justice Conrado M. Vasquez, chairman,
and retired Court of Appeals Justices Milagros German and Eduardo Caguioa as members. In the pure
spirit of public service, they rendered selflessly and without remuneration thorough, competent and
dedicated service in discharging their tasks of hearing and receiving the evidence, evaluating the same
and submitting their Report and findings to the Court within the scheduled period and greatly easing the
Court's burden.
ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of November
28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for reconsideration
are hereby set aside and in lieu thereof, judgment is hereby rendered nullifying the proceedings in
respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos. 10010 and 10011
entitled "People of the Philippines vs. Gen. Luther Custodio, et al." and ordering a re-trial of the said
cases which should be conducted with deliberate dispatch and with careful regard for the requirements
of due process, so that the truth may be finally known and justice done to all.
This resolution is immediately executory. SO ORDERED.
||| (Galman v. Sandiganbayan, G.R. No. 72670, September 12, 1986)
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR.,
petitioners, vs. COMMISSION ON ELECTIONS, respondent.

The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has
filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30,
1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such,
has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo
Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo. cdasia
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as
discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said
Section 4 provides:
"Sec. 4. Special Disqualification. In addition to violation of section 10
of Art. XII-C of the Constitution and disqualification mentioned in
existing laws, which are hereby declared as disqualification for any of
the elective officials enumerated in section 1 hereof.
Any retired elective provincial, city of municipal official who has
received payment of the retirement benefits to which he is entitled
under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected,
shall not be qualified to run for the same elective local office from which
he has retired." (Paragraphing and emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the
classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation."
For their part, petitioners Igot and Salapantan, Jr. assail the validity of the following statutory provisions:
"Sec. 7. Term of office. Unless sooner removed for cause, all local
elective officials hereinabove mentioned shall hold office for a term of
six (6) years. which shall commence on the first Monday of March
1980."
. . ." Batas Pambansa Blg. 51
"Sec. 4. . . .

Raul M . Gonzales for petitioners.

Office of the Solicitor General for respondent.
DECISION

"Any person who has committed any act of disloyalty to the State,
including acts amounting to subversion, insurrection, rebellion or other
similar crimes, shall not be qualified to be a candidate for any of the
offices covered by this Act, or to participate in any partisan political
activity therein:
provided, that a judgment of conviction for any of the aforementioned
crimes shall be conclusive evidence of such fact and.

MELENCIO-HERRERA, J p:
This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners,
in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission
on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Blg. 51, 52, and 53 for
being unconstitutional.

the filing of charges for the commission of such crimes before a civil
court or military tribunal after preliminary investigation shall be prima
facie evidence of such fact.
". . . (Batas Pambansa Blg. 52) (Paragraphing and emphasis supplied).
"Section 1. Election of certain Local Officials. . . . The election shall be

held on January 30, 1980." (Batas Pambansa, Blg. 52).

"Section 6. Election and Campaign Period. The election period shall
be fixed by the Commission on Elections in accordance with Section 6,
Art. XII-C of the Constitution. The period of campaign shall commence
on December 29, 1979 and terminate on January 28, 1980." (ibid.)

Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue,
and in effect, a petition for an advisory opinion from this Court to be "rendered without the benefit of a
detailed factual record." Petitioner Dumlao's case is clearly within the primary jurisdiction (see
concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of
respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of
which reads:

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53,
on the ground that it is contrary to section 9(1), Art. XII(C) of the Constitution, which provides that a
"bona fide candidate for any public office shall be free from any form of harassment and discrimination."

"Section 2. The Commission on Elections shall have the following power

and functions.

The question of accreditation will not be taken up in this case but in that of Bacalso, et als., vs. COMELEC
et als. (G.R. No. L-52232) where the issue has been squarely raised. cdasia

2) Be the sole judge of all contests relating to the elections, returns and
qualifications of all members of the National Assembly and elective
provincial and city officials." (Emphasis supplied)

Petitioners then pray that the statutory provisions they have challenged be declared null and void for
being violative of the Constitution.

1) . . .

The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:
"Section 11. Any decision, order, or ruling of the Commission may be
brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from his receipt of a copy thereof."

I. The procedural aspect.

At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions.
Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan. Petitioner Dumlao does
not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in
his. They, respectively, contest completely different statutory provisions. Petitioner Dumlao has joined
this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in
the nature of a taxpayer's suit. Although petitioners plead time constraints as the reason of their joint
Petition, it would have required only a modicum more of effort for petitioner Dumlao, on one hand, and
petitioners Igot and Salapantan, on the other, to have filed separate suits, in the interest of orderly
procedure.
For another, there are standards that have to be followed in the exercise of the function of judicial
review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the
party raising the constitutional question; (3) the plea that the function be exercised at the earliest
opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the
case (People vs. Vera, 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the parties have raised
the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg.
52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and
seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been
adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has
been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this

B. Proper party.
The long-standing rule has been that "the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that
Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been
convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local
elective positions. Neither one of them has been alleged to have been adversely affected by the
operation of the statutory provisions they assail as unconstitutional. Theirs is a generalized grievance.
They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can
claim no locus standi in seeking judicial redress. LibLex
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the
rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public
Works (110 Phil. 331 [1960], thus:
". . . it is well settled that the validity of a statute may be contested only
by one who will sustain a direct injury in consequence of its
enforcement. Yet, there are many decisions nullifying, at the instance of
taxpayers, laws providing for the disbursement of public funds, upon
the theory that 'the expenditure of public funds, by an officer of the
State for the purpose of administering an unconstitutional act
constitutes a misapplication of such funds,' which may be enjoined at
the request of a taxpayer."
In the same vein, it has been held:
"In the determination of the degree of interest essential to give the

requisite standing to attack the constitutionality of a statute, the

general rule is that not only persons individually affected, but also
taxpayers have sufficient interest in preventing the illegal expenditure
of moneys raised by taxation and they may, therefore, question the
constitutionality of statutes requiring expenditure of public moneys."
(Philippine Constitution Association, Inc., et als., vs. Gimenez, et als. 15
SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1,
and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the
elections to be held involve the expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional
protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a
misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil.
331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners
seek to restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing
Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a
taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43
SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a well-settled ruled that the constitutionality of an act
of the legislature will not be determined by the courts unless that question is properly raised an
presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented."
We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually
without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent,
and procedural regularity would require that his suit be dismissed.

taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If
the groupings are based on reasonable and real differentiations, one class can be treated and regulated
differently from another class. For purposes of public service, employees 65 years of age, have been
validly classified differently from younger employees. Employees attaining that age are subject to
compulsory retirement, while those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates should not be
more than 65 years of age at the time they assume office, if applicable to everyone, might or might not
be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law
should be to promote the emergence of younger blood in our political elective echelons. On the other
hand, it might be that persons more than 65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not be a
reasonable disqualification for elective local officials. For one thing, there can also be retirees from
government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65,
for a 65-year old retiree could be a good local official just like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal
office, there is reason to disqualify him from running for the same office from which he had retired, as
provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of
the retiree for government work is present, and what is emphatically significant is that the retired
employee has already declared himself tired an unavailable for the same government work, but, which,
by virtue of a change of mind, he would like to assume again. It is for the very reason that inequality will
neither result from the application of the challenged provision. Just as that provision does not deny
equal protection, neither does it permit such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons
similarly situated are similarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is
proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not
violated by a reasonable classification is germane to the purpose of the law and applies to all those
belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606
[1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong,
etc., et al. vs. Hernandez, 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question being pursuant to that purpose, it
cannot be considered invalid "even if at times, it may be susceptible to the objection that it is marred by
theoretical inconsistencies: (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547).

II. The substantive viewpoint.

We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being
entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed
in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec
(27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzales cases having been penned by our present
Chief Justice. The reasons which have impelled us are the paramount public interest involved and the
proximity of the elections which will be held only a few days hence.

There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned
provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically
unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the
Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs.
Telfair, 4 Dall. 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the
competence of the legislature to prescribe qualifications for one who desires to become a candidate for
office provided they are reasonable, as in this case.

Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is
belied by the fact that several petitions for the disqualification of other candidates for local positions
based on the challenged provision have already been filed with the COMELEC (as listed in p. 15,
respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful
discrimination. LexLib

In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas
Pambansa Blg. 52, quoted in full earlier, and which they challenged, may be divided in two parts. The
first provides:

The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of equal protection is neither well

"a judgment of conviction for any of the aforementioned crimes shall be

conclusive evidence of such fact. . . . "

The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption
of validity that attached to a challenged statute, of the well-settled principle that "all reasonable doubts
should be resolved in favor of constitutionality," and that Courts will not set aside a statute as
constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold
that this in one such clear case. Cdphil
Explicit is the constitutional provision that, 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 (Article
IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous
with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a
candidate is disqualified from running from public office on the ground alone that charges have been
filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate
effect, except as to the degree of proof, no distinction is made between a person convicted of acts of
disloyalty and one against whom charges have been filed for such acts, as both of them would be
ineligible to run for public office. A person disqualified to run for public office on the ground that charges
have been filed against him is virtually placed in the same category as a person already convicted of a
crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to
hold office during the term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and therefore, may be
rebutted, yet, there is "clear and present danger" that because the proximity of the elections, time
constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the
prima facie evidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather
than before an administrative body such as the COMELEC. A highly possible conflict of finding between
two government bodies, to the extreme detriment of a person charged, will thereby be avoided.
Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted
for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable
portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas
Pambansa Blg. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas Pambansa Bilang 52 is hereby declared valid.
Said paragraph reads:
"SEC. 4. Special disqualification. In addition to violation of Section 10
of Article XII(C) of the Constitution and disqualifications mentioned in
existing laws which are hereby declared as disqualifications for any of
the elective officials enumerated in Section 1 hereof, any retired
elective provincial, city or municipal official, who has received payment
of the retirement benefits to which he is entitled under the law and
who shall have been 65 years of age at the commencement of the term
of office to which he seeks to be elected, shall not be qualified to run
for the same elective local office from which he has retired."
2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that ". . . the
filing of charges for the commission of such crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for

being violative of the constitutional presumption of innocence guaranteed to an accused.

SO ORDERED.
||| (Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980)
BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON
ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.

Estelito P. Mendoza and Villareal Law Offices for petitioner.

Balgos and Perez for private respondent.
SYLLABUS

POLITICAL LAW; THE LOCAL GOVERNMENT CODE OF 1991; DISQUALIFICATION TO RUN FOR ANY
ELECTIVE LOCAL POSITION; FUGITIVE FROM JUSTICE, DEFINED. The Oversight Committee finally came
out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It
provided: "Art. 73. Disqualifications. The following persons shall be disqualified from running for any
elective local position: "(a) . . . "(b) Fugitives from justice in criminal or non-political cases here or abroad.
Fugitive from justice refers to a person who has been convicted by final judgment. " Private respondent
reminds us that the construction placed upon a law by the officials in charge of its enforcement deserves
great and considerable weight (Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166,
181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an
enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can
neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds,
albeit with some personal reservations of the ponente (expressed during the Courts en banc
deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of
1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive)
"who has been convicted by final judgment," is an inordinate and undue circumscription of the law.
DAVIDE, JR., J., separate opinion:
1. POLITICAL LAW; SEC. 40; R.A. 7160 (LOCAL GOVERNMENT CODE OF 1991); ART. 73, RULES AND
REGULATIONS; UNREASONABLY EXPANDS THE SCOPE OF DISQUALIFICATION. Section 40 of R.A. No.
7160, otherwise known as the Local Government Code of 1991 enumerates those who are disqualified
from running for any elective local position, among whom is a: (e) Fugitive from justice in criminal or
non-political cases here or abroad. The term "fugitive from justice" refers not only to those who flee
after conviction to avoid punishment but also to those who, after being charged, flee to avoid
prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight
Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the
Rules and Regulations Implementing the Local Government Code of 1991, as inordinate and an undue
circumscription of the law. Justice Davide agrees and further submits that it also unreasonably expands
the scope of the disqualification in the 1991 Local Government Code because it disqualifies all those who
have been convicted by final judgment, regardless of the extent of the penalty imposed and of whether
they have served or are serving their sentences or have evaded service of sentence by jumping bail or
leaving for another country. The definition thus disregards the true and accepted meaning of the word
fugitive. This new definition is unwarranted for nothing in the legislative debates has been shown to

sustain it and the clear language of the law leaves no room for a reexamination of the meaning of the
term.
2. ID.; ID.; DISQUALIFICATIONS, JUSTIFIED. There are certain fundamental considerations which do not
support the application of the presumption of innocence under the Bill of Rights which support
disqualification. Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to
determine who are disqualified from exercising the right of suffrage. Since the minimum requirement of
a candidate for a public office is that he must be a qualified voter, it logically follows that Congress has
the plenary power to determine who are disqualified to seek election for a public office. Secondly, a
public office is a public trust. Section 1, Article XI of the Constitution expressly so provides. A public office
is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN BERNAS, The Constitution
of the Republic of the Philippines, A Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188
[1920]). Accordingly, stricter qualifications for public office may thus be required by law. Thirdly, the
disqualification in question does not, in reality, involve the issue of presumption of innocence. Elsewise
stated, one is not disqualified because he is presumed guilty by the filing of an information or criminal
complaint against him. He is disqualified because he is a "fugitive from justice," i.e., he was not brought
within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought
within the jurisdiction of the court and was tried and convicted, he has successfully evaded arrest; or if
he was brought within the jurisdiction of the court and was tried and convicted, he has successfully
evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on
his flight from justice. In the face of the settled doctrine that flight is an indication of guilt, it may even be
truly said that it is not the challenged disqualifying provision which overcomes the presumption of
innocence but rather the disqualified person himself who has proven his guilt. Finally, Dumlao vs.
COMELEC (95 SCRA 392 [1980]) cannot be invoked to case doubt on the validity of the challenged
disqualification. Dumlao struck out as violative of the constitutional presumption of innocence that
portion of the second paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of charges for the
commission of such crimes before a civil court or military tribunal after preliminary investigation shall be
prima facie evidence of such fact." It is clear that the law challenged therein did in fact establish a
presumption of guilt from the mere filing of the information or criminal complaint, in violation of the
constitutional right to presumption of innocence.
DECISION

VITUG, J p:
The Court is called upon, in this petition for certiorari, to resolve the conflicting
claims of the parties on the meaning of the term "fugitive from justice" as that phrase is so used
under the provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That
law states:
"Sec. 40. Disqualifications. The following persons are disqualified
from running for any elective local position:
"xxx xxx xxx
"(e) Fugitive from justice in criminal or non-political cases here or
abroad(.)"

Bienvenido Marquez, a defeated candidate for the elective position of Governor in

the Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for
the reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his
petition for quo warranto against the winning candidate, herein private respondent Eduardo
Rodriguez, for being allegedly a fugitive from justice. prLL
It is averred that at the time private respondent filed his certificate of candidacy, a
criminal charge against him for ten (10) counts of insurance fraud or grand theft of personal
property was still pending before the Municipal Court of Los Angeles Judicial District, County of
Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed,
has yet to be served on private respondent on account of his alleged "flight" from that country.
Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of
respondent's certificate of candidacy, on the ground of the candidate's disqualification under
Section 40(e) of the Local Government Code, was filed by petitioner with the COMELEC. On 08
May 1992, the COMELEC dismissed the petition.
Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th
May 1992 resolution of COMELEC was dismissed without prejudice, however, to the filing in due
time of a possible post-election quo warranto proceeding against private respondent. The Court,
in its resolution of 02 June 1992, held:
"Evidently, the matter elevated to this Court was a pre-proclamation
controversy. Since the private respondent had already been proclaimed
as the duly elected Governor of the Province of Quezon, the petitioner
below for disqualification has ceased to be a pre-proclamation
controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 8446263 and Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly
decided on 29 March 1989, 171 SCRA 468, this court held that a preproclamation controversy is no longer viable at this point of time and
should be dismissed. The proper remedy of the petitioner is to pursue
the disqualification suit in a separate proceeding. llcd
"ACCORDINGLY, the Court Resolved to DISMISS the petition, without
prejudice to the filing of the appropriate proceedings in the proper
forum, if so desired, within ten (10) days from notice." 1
Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992.
Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28) against private respondent
before the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division)
dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of
the resolution.
Hence, this petition for certiorari, the core issue of which, such as to be expected,
focuses on whether private respondent who, at the time of the filing of his certificate of
candidacy (and to date), is said to be facing a criminal charge before a foreign court and evading a
warrant for his arrest comes within the term "fugitive from justice" contemplated by Section
40(e) of the Local Government Code and, therefore, disqualified from being a candidate for, and
thereby ineligible from holding on to, an elective local office.

Petitioner's position is perspicuous and to the point. The law, he asseverates,

needs no further interpretation and construction. Section 40(e) of Republic Act No. 7160, is

rather clear, he submits, and it disqualifies "fugitives from justice in criminal or non-political cases
here or abroad" from seeking any elective local office. The Solicitor General, taking the side of
petitioner, expresses a like opinion and concludes that the phrase "fugitive from justice" includes
not only those who flee after conviction to avoid punishment but likewise those who, after being
charged, flee to avoid prosecution. This definition truly finds support from jurisprudence
(Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth
Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal
Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as
expressing the general and ordinary connotation of the term.
In turn, private respondent would have the Court respect the conclusions of the
Oversight Committee which, conformably with Section 5332 of RA. 7160, was convened by the
President to "formulate and issue the appropriate rules and regulations necessary for the
efficient and effective implementation of any and all provisions of the Code to ensure
compliance with the principles of Local Autonomy." cdll

"MS. DOCTOR. Mr. Chairman. . .

"THE CHAIRMAN. Yes.
"MS. DOCTOR. Let's move to. . .
"THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording,
this is very important. Manny, can you come up?
"MR. REYES. Let's use the word conviction by final judgment.
"THE CHAIRMAN. Fugitive means somebody who is convicted by final
judgment. Okay, Fugitive means a person convicted by final judgment.
Insert that on Line 43 after the semi-colon. Is that approved? No
objection, approved (TSN, Oversight Committee, 07 May 1991).

Here are some excerpts from the committee's deliberations:

"xxx xxx xxx

"'CHAIRMAN MERCADO. Session is resumed.

'So, we are in agreement to retain Line 12, Page 36, as is. So next,
Page 39.
'CHAIRMAN DE PEDRO. Kay Benny Marquez.

"THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2?

Sino ba ang gumawa nito? Okay, on page 2, lines 43 and 44, 'fugitive
from justice.' What 'fugitive?' Sino ba ang gumawa nito, ha?
"MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to
clarify the word what is meant by the word 'fugitive.'

'REP. CUENCO. What does he want?

"THE CHAIRMAN. 'Fugitive from justice means a person' ba ito, ha?
'CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na
kung kuwestiyunin ang constitutionality nito before the Supreme
Court later on.

"MR. SANCHEZ. Means a person. . .

"THE CHAIRMAN. Ha?

'REP. CUENCO. Anong nakalagay diyan?

"HON. REYES. A person who has been convicted.
'CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.
'Any person who is a fugitive from justice in criminal or nonpolitical
cases here or abroad."

"THE CHAIRMAN. Yes, fugitive from justice, oo. Fugitive from justice
shall mean or means one who has been convicted by final judgment. It
means one who has been convicted by final judgment.

'Mabigat 'yung abroad.' One who is facing criminal charges with the
warrant of arrest pending, unserved. . .

"HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.

"THE CHAIRMAN. Ano? Sige, tingnan natin.

'HONORABLE SAGUISAG. I think that is even a good point, and what

is a fugitive? It is not defined. We have loose understanding. . .
'CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong
'fugitive.'
'Si Benny umalis na, with the understanding na okay na sa atin ito.'
"THE CHAIRMAN. Whether we have this rule or not she can run. She is
not a fugitive from justice. Mrs. Marcos can run at this point and I
have held that for a long time ago. So can. . .

"HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya?

"THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been
convicted by final judgment, meaning that if he is simply in jail and
because he put up, post bail, but the case is still being reviewed, that
is not yet conviction by final judgment." 3
The Oversight Committee evidently entertained serious apprehensions on the possible
constitutional infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification therein
meant were to be so taken as to embrace those who merely were facing criminal charges. A
similar concern was expressed by Senator R.A.V. Saguisag who during the bicameral conference

committee of the Senate and the House of Representatives, made this reservation:
". . . de ipa-refine lang natin 'yung language especially 'yung, the
scope of fugitive. Medyo bothered ako doon, a." 4
The Oversight Committee finally came out with Article 73 of the Rules and
Regulations Implementing the Local Government Code of 1991. It provided:
"Art. 73. Disqualifications. The following persons shall be
disqualified from running for any elective local position:

DAVIDE, JR., J.:

Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the
qualifications for elective provincial, city, municipal, and barangay officials shall be those
provided for in the Local Government Code. The quondam Local Government Code was B.P. Blg.
337, which was superseded by R.A. No. 7160, otherwise known as the Local Government Code
of 1991. Section 39 of the latter provides for the qualifications and election of local elective
officials. Section 40 enumerates those who are disqualified from running for any elective local
position, among whom is a:
(e) Fugitive from justice in criminal or non-political cases here or
abroad.

"(a) . . .
"(b) Fugitives from justice in criminal or non-political cases here or
abroad. Fugitive from justice refers to a person who has been
convicted by final judgment." 5 (Italics supplied)
Private respondent reminds us that the construction placed upon a law by the
officials in charge of its enforcement deserves great and considerable weight (Atlas
Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly
agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must
merely be made to apply as it is so written. An administrative rule or regulation can neither
expand nor constrict the law but must remain congruent to it. The Court believes and thus
holds, albeit with some personal reservations of the ponente (expressed during the Court's en
banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local
Government Code of 1991, to the extent that it confines the term "fugitive from justice" to
refer only to a person (the fugitive) "who has been convicted by final judgment," is an
inordinate and undue circumscription of the law.
Unfortunately, the COMELEC did not make any definite finding on whether or
not, in fact, private respondent is a "fugitive from justice" as such term must be interpreted
and applied in the light of the Court's opinion. The omission is understandable since the
COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of
the Rules and Regulations promulgated by the Oversight Committee. The Court itself, not being
a trier of facts, is thus constrained to remand the case to the COMELEC for a determination of
this unresolved factual matter. prLL
WHEREFORE, the questioned resolutions of the Commission on Elections are
REVERSED and SET ASIDE, and the case is hereby REMANDED to the Commission which is
DIRECTED to proceed and resolve the case with dispatch conformably with the foregoing
opinion. No special pronouncement on costs.
SO ORDERED.

The term "fugitive from justice" refers not only to those who flee after
conviction to avoid punishment but also to those who, after being charged, flee to avoid
prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the
Oversight Committee, i.e., "a person who has been convicted by final judgment," as appearing
in Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, as
inordinate and an undue circumscription of the law. I agree.
But this is only one side of the coin. I further submit that it also unreasonably
expands the scope of the disqualification in the 1991 Local Government Code because it
disqualifies all those who have been convicted by final judgment, regardless of the extent of
the penalty imposed and of whether they have served or are serving their sentences or have
evaded service of sentence by jumping bail or leaving for another country. The definition thus
disregards the true and accepted meaning of the word fugitive. This new definition is
unwarranted for nothing in the legislative debates has been shown to sustain it and the clear
language of the law leaves no room for a reexamination of the meaning of the term.
I do not share the doubt of Mr. Justice Vitug on the constitutionality of the
disqualification based on the presumption of innocence clause of the Bill of Rights. There are
certain fundamental considerations which do not support the application of the presumption.
LLpr
Firstly, Section 1, Article V of the Constitution recognizes the authority of
Congress to determine who are disqualified from exercising the right of suffrage. Since the
minimum requirement of a candidate for a public office is that he must be a qualified voter, it
logically follows that Congress has the plenary power to determine who are disqualified to seek
election for a public office.
Secondly, a public office is a public trust. Section 1, Article XI of the Constitution
expressly provides:

Feliciano, Padilla, Regalado, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur.
Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., join J. Davide in his separate opinion.
Davide, Jr., J., see separate opinion.
Separate Opinions

Sec. 1. Public office is public trust. Public officers and employees must
at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism
and justice, and lead modest lives.
A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN
BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40, citing
Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public office may

thus be required by law.

embezzled.

Thirdly, the disqualification in question does not, in reality, involve the issue of
presumption of innocence. Elsewise stated, one is not disqualified because he is presumed
guilty by the filing of an information or criminal complaint against him. He is disqualified
because he is a "fugitive from justice," i.e., he was not brought within the jurisdiction of the
court because he had successfully evaded arrest; or if he was brought within the jurisdiction of
the court and was tried and convicted, he has successfully evaded service of sentence because
he had jumped bail or escaped. The disqualification then is based on his flight from justice. In
the face of the settled doctrine that flight is an indication of guilt, it may even be truly said that
it is not the challenged disqualifying provision which overcomes the presumption of innocence
but rather the disqualified person himself who has proven his guilt. LibLex

SO ORDERED.

Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast
doubt on the validity of the challenged disqualification. Dumlao struck out as violative of the
constitutional presumption of innocence that portion of the second paragraph, Section 4 of B.P.
Blg. 52 providing that "the filing of charges for the commission of such crimes before a civil
court or military tribunal after preliminary investigation shall be prima facie evidence of such
fact." It is clear that the law challenged therein did in fact establish a presumption of guilt from
the mere filing of the information or criminal complaint, in violation of the constitutional right
to presumption of innocence.
||| (Marquez, Jr. v. COMELEC, G.R. No. 112889, April 18, 1995)
GENEROSO P. CORPUZ, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.

Law Firm of Roberto P. Halili for petitioner.

DECISION

As Supervising Accounting Clerk in the Office of the Provincial Treasurer of Nueva Vizcaya, the petitioner
was designated Acting Supervising Cashier in the said Office. In this capacity, he received collections,
disbursed funds and made bank deposits and withdrawals pertaining to government accounts. llcd
On April 13, 1981, his designation as Acting Supervising Cashier was terminated, and on April 22, 1981, a
Transfer of Accountabilities was effected between the petitioner and his successor. The Certificate of
Turnover revealed a shortage in the amount of P72,823.08. 1
A letter of demand dated April 22, 1981, required the petitioner to produce the missing amount but he
was able to pay only P10,159.50. The balance was demanded in another letter dated October 12, 1981.
This was subsequently reduced by P12,067.51 through the payment to the petitioner of temporarily
disallowed cash items and deductions from his salary before his dismissal from the service. 2
On September 27, 1982, a final letter of demand for the total deficiency of P50,596.07 was sent to the
petitioner. The demand not having been met, an information for malversation of the said amount was
filed against him with the respondent court on October 11, 1983.
The above facts are not denied by the petitioner. 3 He insists, however, that he is not guilty of the charge
because the shortage imputed to him was malversed by other persons.
His claim is that the P50,000.00 constituting the bulk of the shortage represented the unliquidated
withdrawal made by Paymaster Diosdado Pineda through one of four separate checks issued and
encashed while the petitioner was on official leave of absence. He avers he was later made to post the
amount in his cash book by Acting Deputy Provincial Treasurer Bernardo C. Aluning and he had no choice
but to comply although he had not actually received the said amount. cdll
The four checks drawn from the Philippine National Bank and the corresponding vouchers dated are
described as follows:

CRUZ, J p:

1. Provincial Voucher dated December 22, 1980 from the General Fund
in the amount of P50,000.00 and paid by PNB Check No. 956637 dated
December 22, 1980.

The petitioner seeks reversal of the decision of the respondent court dated February 27, 1986, the
dispositive portion of which reads as follows:

2. Provincial Voucher dated December 23, 1980 from the Infrastructure

Fund in the amount of P50,000.00 and paid by PNB Check No.
SN958525 dated December 23, 1980.

WHEREFORE, the Court finds the accused Generoso Corpuz y Padre,

guilty beyond reasonable doubt as principal of the crime of
Malversation of Public Funds, and there being no modifying
circumstances in attendance, and applying the Indeterminate Sentence
Law, hereby sentences him to suffer imprisonment ranging from Twelve
(12) Years and One (1) Day of reclusion temporal, as minimum, to
Twenty (20) years of reclusion temporal, as maximum; to restitute to
the provincial government of Nueva Vizcaya the sum of P50,596.07
which is the amount misappropriated, and to pay the costs of this suit.
Further, the accused is ordered to suffer the penalty of perpetual
special disqualification, and to pay a fine equal to the amount

3. Provincial Voucher dated December 23, 1980 from the General Fund
in the amount of P50,000.00 and paid by PNB Check No. 956639J dated
December 22, 1980.
4. Provincial Voucher dated December 29, 1980 from the Infrastructure
Fund in the amount of P50,000.00 and paid by PNB Check No. 958226
dated December 29, 1980.
Testifying for the prosecution, Pineda insisted he had liquidated all four checks after the amounts
thereof were disbursed, turning over to the petitioner the corresponding withdrawal vouchers, paid
vouchers, and payrolls, (which were all submitted as exhibits). 4 He added that the petitioner was not

really absent on the dates in question as alleged but was in fact the one who prepared the said checks in
the morning before attending to his sick wife in the hospital, returning to the office in the afternoon. He
said that the payroll payments made on December 22, 23 and 29, 1980, were liquidated on December 29,
1980, after the petitioner came back from the hospital. 5

Thirdly, Diosdado Pineda, who was presented as a prosecution witness,

swore that he duly liquidated the proceeds of the four (4) checks as
follows:
ATTY. DEL ROSARIO ON DIRECT EXAMINATION:

Acting Provincial Treasurer Perfecto Martinez corroborated Pineda's testimony that the petitioner was
not on official leave on the dates in question. He said that although Check No. 958525 had already been
encashed on December 23, 1980, the encashment was not immediately recorded in the petitioner's
cashbook, "which (was) one way of temporarily hiding the early detection of a shortage." It was only in
March 1981 that the shortage was discovered and, when confronted with it, the petitioner had no
explanation to offer. 6

q. If the payroll is already accomplished, where do you give the payroll?

a. I give it back to the cashier with the corresponding voucher to
support the vouchers paid by me or disbursed by me.
AJ ESCAREAL:

Aluning denied he had exerted pressure on the petitioner to post the shortage in the petitioner's cash
book. He explained that after receiving the bank statement from the PNB for December 1980, he
discovered that although the amount of P50,000.00 appeared to have been already encashed, the
encashment was not reflected in the petitioner's cash book. As his superior, he required the petitioner to
make the proper entry in the cash book because the amount withdrawn was already part of the latter's
accountability. 7
After considering the evidence of the parties, the Sandiganbayan, through Justice Amante Q. Alconcel,
made the following findings:

q. So that your cash advances will be liquidated?

a. Yes, Your honor.
xxx xxx xxx
q. In the absence of the cashier, to whom do you give these
documents?

The evidence on record is devoid of any explanation from the defense

as to the amount of P595.87. Hence, the accused must be held
answerable for the misappropriation of the said amount.

a. I give them to the cashier only, no other person.

As to the amount of P50,000.00, We are not disposed to give credence

to his claim that same has not been liquidated by the paymaster, for
the following reasons:

q. In his absence, do you keep these documents?

First, Check No. 958525 is only one of four (4) checks issued and
encashed for the same purpose, and that is, to pay salary differentials
as well as salaries and wages of provincial officials and employees of
the province of Nueva Vizcaya covering the period, January to
December, 1980. Issuance and encashment occurred on December 23,
1980, and in fact, another check (No. 956639) was also issued and
encashed on the same day. The two (2) other checks (Nos. 956637 and
958526) were issued and encashed on December 22 and 29, 1980,
respectively. Except for Check No. 958525, which was only entered in
accused's Cash Book on March 31, 1981, or three (3) months after its
issuance and encashment, all the other three (3) were duly entered.
Then Check No. 956639 which, as pointed out above, was issued and
encashed on the same day as Check No. 958525, was duly entered in
his Cash Book. Non-entry of the latter check on time was a subtle way
of camouflaging the embezzlement of its money equivalent.

q. For payrolls that you paid for December 22, 23 and 29, when did you
give these payrolls to the cashier?

Secondly, there seems to be no logical reason why Checks, Nos. 956639

and 958525, could not have been liquidated together by Diosdado
Pineda who used the proceeds to pay salary differentials of government
officials and employees of the province of Nueva Vizcaya, since these
have been issued and encashed on the same day.

ATTY. DEL ROSARIO

a. Yes, Your Honor.

a. On December 29, sir.

AJ ESCAREAL:
q. Duly accomplished?
a. Duly accomplished, Your Honor.
xxx xxx xxx
AJ ALCONCEL:
q. Where did you see your cashier on the 29th?
a. At the office, Your Honor.
ATTY. DEL ROSARIO:

q. At what time?
a. In the afternoon, sir.
AJ ALCONCEL:

suspect has already been established. The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to personal use. 8 And what
determines whether the crime of malversation has been committed is the presence of the following
requirements under Article 217 of the Revised Penal Code:

q. Are you not aware that your cashier was absent on that date?

(a) That the offender be a public officer.

a. He was present on that day, sir. He would go out because the wife
was supposedly having a check-up but in the afternoon,
he would return. (t.s.n., March 29, 1985, pp. 16-18)

(b) That he had the custody or control of funds or property by reason of

the duties of his office.
(c) That those funds or property were public funds or property for
which he was accountable.

The cashier referred to by the witness is the accused, Generoso P.

Corpuz.
And fourthly, We are not impressed by accused's claim that he was
absent on December 22, 23 and 29, 1980. His witness, Diosdado Pineda,
declared otherwise. His Employee's Leave Card (Exhibit J), wherein his
earned leaves are indicated, shows that during the month of December,
1980, he earned 1.25 days vacation leave and 1.25 days sick leave,
which is the same number of days vacation and sick leaves that he
earned monthly from July 7, 1976 to October 1981. Moreover, even if it
were true that he was absent on December 23, 1980, the day when
Check No. 958525 was issued and encashed, yet, the other check which
was issued and encashed on the same day was duly liquidated.
The above findings are mainly factual and are based on substantial evidence. There is no reason to
disturb them, absent any of the exceptional circumstances that will justify their review and reversal. On
the contrary, the Court is convinced that the facts as established point unmistakably to the petitioner's
guilt of the offense charged.
This conclusion is bolstered by the Solicitor General's observation that:
Moreover, petitioner's denial of responsibility for the missing
P50,000.00 is negated by the following factors:
First. When he entered the said amount in his cash book in March, 1981,
he did not make any notation that said amount, though entered, was
not actually received.

(d) That he appropriated, took, misappropriated or consented or,

through abandonment or negligence, permitted another
person to take them.
The petitioner's claim that he is the victim of a "sinister design" to hold him responsible for a crime he
has not committed is less than convincing. His attempt to throw the blame on others for his failure to
account for the missing money only shows it is he who is looking for a scapegoat. The plaintive protest
that he is "a small fry" victimized by the "untouchables" during the Marcos regime is a mere emotional
appeal that does not impress at all. The suggestion that the supposed injustice on the petitioner would
be abetted by this Court unless his conviction is reversed must be rejected as an arrant
presumptuousness.
The equipoise rule invoked by the petitioner is applicable only where the evidence of the parties is
evenly balanced, in which case the constitutional presumption of innocence should tilt the scales in favor
of the accused. There is no such equipoise here. The evidence of the prosecution is overwhelming and
has not been overcome by the petitioner with his nebulous claims of persecution and conspiracy. The
presumed innocence of the accused must yield to the positive finding that he malversed the sum of
P50,310.87 to the prejudice of the public whose confidence he has breached. His conviction must be
affirmed.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.
||| (Corpuz v. People, G.R. No. 74259, February 14, 1991)
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO
HOLGADO, defendant-appellant.

Second. At the time he signed the certificate of turn-over (Exhibit C), he

did not make any certification that the amount of P50,000.00 should
not be charged against him.

Mauricio Carlos for appellant.

Assistant Solicitor General Manuel P. Barcelona and Solicitor Felix V. Makasiar for

Third. Despite his insistence that Pineda and Martinez misappropriated

the money, he did not file any case, whether civil, criminal or otherwise,
against either or both.
The absence of a post-audit is not, as the petitioner contends, a fatal omission. That is not a preliminary
requirement to the filing of an information for malversation as long as the prima facie guilt of the

appellee.
SYLLABUS

1. CRIMINAL PROCEDURE OF; QUALIFIED PLEA OF GUILTY; AMBIGUOUS

INFORMATION; ACCUSED WITHOUT COUNSEL; IMPOSITION OF HEAVY PENALTY. M When an
accused unaided by counsel qualifiedly admits his guilt to an ambiguous or vague information
from which a serious crime can be deduced, it is not prudent for the trial court to render a serious
judgment finding the accused guilty of a capital offense without absolutely any evidence to
determine and clarify the true facts of the case.

"I am ready, your honor.

"Court: to the accused.
"Q. Do you have an attorney or are you going to plead guilty? A. I
have no lawyer and I will plead guilty.
"Court:

2. ID.; DUTIES OF COURT WHEN DEFENDANT APPEARS WITHOUT ATTORNEY.

Under the provision of section 3 of rule 112 of the rules of Court, when a defendant appears
without attorney, the court has four important duties to comply with: (1) It must inform the
defendant that it is his right to have attorney before being arraigned; (2) after giving him such
information the court must ask him if he desires the aid of an attorney; (3) if he desires and is
unable to employ attorney, the court must assign attorney de oficio to defend him; and 94) if the
accused desires to procure an attorney of his own the court must grant him a reasonable time
therefor.

Arraign the accused.

"Note:
"Interpreter read the information to the accused in the
local dialect after which he was asked this question.
"Q. What do you plead? A. I plead guilty, but I was instructed by one
Mr. Ocampo.

3. ID.; DUE PROCESS OF LAW; RIGHT OF ACCUSED TO BE REPRESENTED BY

COUNSEL IS CONSTITUTIONAL. One of the great principles of justice guaranteed by our
Constitution is that "no person shall be held to answer for a criminal offense without due process
of law," and that all accused "shall enjoy the right to be heard by himself and 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 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. And this can happen more
easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted
by counsel is deemed so important that it has become a constitutional right and it is so
implemented that under our rules of procedure it is not enough for the court to apprise an
accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of
an attorney, but it is essential that the court should assign one de oficio for him if he so desires
and he is poor or grant him a reasonable time to procure an attorney of his own.
DECISION

"Q. Who is that Mr. Ocampo, what is his complete name? A. Mr.
Numeriano Ocampo.
"The provincial fiscal is hereby ordered to investigate
that man.
"Fiscal:
"I have investigated this case and found out that this
Ocampo has nothing to do with this case and I found no
evidence against this Ocampo.
"Court:
"Sentence reserved."
Two days later, or on May 10, 1948, the trial court rendered the following
judgment:
"[Criminal Case No. V-118]
"THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO
HOLGADO defendant-appellant.

MORAN, C.J p:

"SLIGHT ILLEGAL DETENTION

Appellant Frisco Holgado was charged in the Court of First Instance of Romblon
with slight illegal detention because according to the information, being a private person, he did
"feloniously and without justifiable motive, kidnap and detain one Artemia Fabreag in the house
of Antero Holgado for about eight hours thereby depriving said Artemia Fabreag of her personal
liberty."
On May 8, 1948, the day set for the trial, the trial court proceeded as follows:
"Court:
"Is this case ready for trial?
"Fiscal:

"SENTENCE.
"The accused, Frisco Holgado, stands charged with the
crime of kidnapping and serious illegal detention in the following.
"INFORMATION
"That on or about December 11, 1947, in
the municipality of Concepcion, Province of Romblon,
Philippines, and within the jurisdiction of this Honorable
Court, the said accused being a private individual, did
then and there wilfully, unlawfully and feloniously, and
without justifiable motive, kidnap and detain one
Artemia Fabreag in the house of Antero Holgado for

about 8 hours thereby depriving said Artemia Fabreag of

her personal liberty.
"Contrary to Law.
"This case is called for trial on May 8, 1948. Upon
arraignment the accused pleaded guilty to the information above
described.
"The offense committed by the accused is kidnapping
and serious illegal detention as defined by article 267 of the Revised
Penal Code as amended by section 2 of Republic Act No. 18 and
punished by reclusion temporal in its minimum period to death.
Applying indeterminate sentence law the penalty shall be prision mayor
in its maximum degree to reclusion temporal in the medium degree, as
minimum, or ten (10) years and one (1) day of prision mayor to twenty
(20) years, with the accessory penalties provided for by law, with costs.
The accused is entitled to one-half of his preventive imprisonment."
It must be noticed that in the caption of the case as it appears in the judgment
above quoted, the offense charged is named SLIGHT ILLEGAL DETENTION while in the body of the
judgment it is said that the accused "stands charged with the crime of kidnapping and serious
illegal detention." In the information filed by the provincial fiscal it is said that he "accuses Frisco
Holgado of the crime of slight illegal detention." The facts alleged in said information are not
clear as to whether the offense charged is merely "slight illegal detention" as the offense is
named therein or the capital offense of "kidnapping and serious illegal detention" as found by the
trial judge in his judgment. Since the accused-appellant pleaded guilty and no evidence appears
to have been presented by either party, the trial judge must have deduced the capital offense
from the facts pleaded in the information.
Under the circumstances, particularly the qualified plea given by the accused, who
was unaided by counsel, it was not prudent, to say the least, for the trial court to render such a
serious judgment finding the accused guilty of a capital offense, and imposing upon him such a
heavy penalty as ten years and one day of prision mayor to twenty years, without absolutely any
evidence to determine and clarify the true facts of the case.
The proceedings in the trial court are irregular from the beginning. It is expressly
provided in our Rules of Court, Rule 112, section 3, that:.
"If the defendant appears without attorney, he must be
informed by the court that it is his right to have attorney before being
arraigned, and must be asked if he desires the aid of attorney. If he
desires and is unable to employ attorney, the Court must assign
attorney de oficio to defend him. A reasonable time must be allowed
for procuring attorney."
Under this provision, when a defendant appears without attorney, the court has
four important duties to comply with: 1 It must inform the defendant that it is his right to have
attorney before being arraigned; 2 After giving him such information the court must ask him if
he desires the aid of an attorney; 3 If he desires and is unable to employ attorney, the court
must assign attorney de oficio to defend him; and 4 If the accused desires to procure an
attorney of his own the court must grant him a reasonable time therefor.
Not one of these duties had been complied with by the trial court. The record
discloses that said court did not inform the accused of his right to have an attorney nor did it ask

him if he desired the aid of one. The trial court failed to inquire whether or not the accused was
to employ an attorney, to grant him reasonable time to procure one or to assign an attorney de
oficio. The question asked by the court to the accused was "Do you have an attorney or are you
going to plead guilty?" Not only did such a question fail to inform the accused that it was his right
to have an attorney before arraignment, but, what is worse, the question was so framed that it
could have been construed by the accused as a suggestion from the court that he plead guilty if
he had no attorney. And this is a denial of fair hearing in violation of the due process clause
contained in our Constitution.
One of the great principles of justice guaranteed by our Constitution is that "no
person shall be held to answer for a criminal offense without due process of law", and that all
accused "shall enjoy the right to be heard by himself and 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. And this can happen more easily to persons who
are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed
so important that it has become a constitutional right and it is so implemented that under our
rules of procedure it is not enough for the Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential
that the court should assign one de oficio for him if he so desires and he is poor or grant him a
reasonable time to procure an attorney of his own.

It must be added, in the instant case, that the accused who was unaided by
counsel pleaded guilty but with the following qualification: "but I was instructed by one Mr.
Ocampo." The trial court failed to inquire as to the true import of this qualification. The record
does not show whether the supposed instruction was real and whether it had reference to the
commission of the offense or to the making of the plea of guilty. No investigation was opened by
the court on this matter in the presence of the accused and there is now no way of determining
whether the supposed instruction is a good defense or may vitiate the voluntariness of the
confession. Apparently the court became satisfied with the fiscal's information that he had
investigated Mr. Ocampo and found that the same had nothing to do with this case. Such attitude
of the court was wrong for the simple reason that a mere statement of the fiscal was not
sufficient to overcome a qualified plea of the accused. But above all, the court should have seen
to it that the accused be assisted by counsel specially because of the qualified plea given by him
and the seriousness of the offense found to be capital by the court.
The judgment appealed from is reversed and the case is remanded to the Court
below for a new arraignment and a new trial after the accused is apprised of his right to have and
to be assisted by counsel. So ordered.
||| (People v. Holgado, G.R. No. L-2809, March 22, 1950)
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO
AGBAYANI y MENDOZA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Froilan V. Siobal for accused-appellant.

SYNOPSIS

Eduardo Agbayani was sentenced to death by the Regional Trial Court, Branch 106 of Quezon City for
raping her 14-year old daughter, Eden. The conviction was based on the testimonies of prosecution
witnesses, Dr. Florante Baltazar, the victim and SPO1 Salvador Buenviaje.
The defense, on the other hand, interpose the defense of denial and alibi, and one of the evidence
presented was the affidavit of desistance of the victim. However, it was retracted by the victim during
the presentation of the rebuttal evidence claiming that she was only pressured by her mother and sister
to sign it.
Hence, in this appeal the appellant questioned the credibility of the testimony of the victim in view of
her execution of the affidavit of desistance.
The Court ruled that affidavits, being taken ex parte, are generally considered inferior to the testimony
given in open court, 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. cIHCST
The decision of the trial court is affirmed.
SYLLABUS

1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; PRESUMPTION OF REGULAR PERFORMANCE OFFICIAL

DUTY; TRIAL COURT PRESUMED TO HAVE COMPLIED WITH ITS DUTY TO INFORM ACCUSED OF HIS RIGHT
TO COUNSEL. The trial court's order of 22 December 1994 states that said de oficio counsel were "duly
appointed by the Court with the consent of the accused." Since appellant 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. In other words, the trial court is presumed to
have complied with its four-fold duties under Section 6 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.
2. ID.; ID.; ID.; ID.; ID.; FAILURE OF THE RECORD TO DISCLOSE AFFIRMATIVELY THAT TRIAL JUDGE
ADVISED ACCUSED OF HIS RIGHT TO COUNSEL, NOT SUFFICIENT TO REVERSE CONVICTION. 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.

3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; RIGHT TO QUESTION FAILURE OF TRIAL
COURT TO INFORM ACCUSED OF RIGHT TO COUNSEL DEEMED WAIVED BY HIS CONSENT TO BE ASSISTED
BY TWO (2) COUNSEL DE OFICIO. 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. 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.
4. REMEDIAL LAW; COURTS; TRIAL COURTS' COMPLIANCE WITH THEIR PRE-ARRAIGNMENT DUTIES MUST
APPEAR ON RECORD. 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, a de oficio counsel will be appointed for him, must appear on record.
5. ID.; CRIMINAL PROCEDURE; TWO (2) DAYS TIME TO PREPARE FOR TRIAL MUST BE EXPRESSLY
DEMANDED, OTHERWISE, IT IS DEEMED WAIVED. 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. Only when so demanded does denial thereof constitute reversible error and a
ground for new trial. Further, such right may be waived, expressly or impliedly. In the instant case,
appellant did not ask for time to prepare for trial, hence, he effectively waived such right.
6. ID.; EVIDENCE; CREDIBILITY; THIS COURT WILL NOT GENERALLY INTERFERE WITH THE JUDGMENT OF
THE TRIAL COURT IN PASSING UPON CREDIBILITY OF OPPOSING WITNESSES. 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. 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. 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
7. ID.; ID.; ID.; MOTIVE OF 14-YEAR OLD DAUGHTER IN CHARGING HER OWN FATHER OF RAPE. 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.
8. CRIMINAL LAW; RAPE; MAY BE COMMITTED WHERE PEOPLE CONGREGATE. 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. In People v. Opena, 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. DHSaCA
9. ID.; ID.; FORCE OR INTIMIDATION; SUBSTITUTED BY MORAL ASCENDANCY OR INFLUENCE BY THE
FATHER OVER HIS DAUGHTER. 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 to render her incapable of resisting or asking for help. 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. Likewise, it must not be forgotten that at her tender age of
14 years, EDEN could not be expected to act with 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. 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.
10. ID.; ID.; INTIMIDATION; SUFFICIENT IF IT PRODUCED FEAR FOR VICTIM'S LIFE; RESISTANCE,
UNNECESSARY. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since
it is addressed to the victim 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 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.

11. REMEDIAL LAW; EVIDENCE; AFFIDAVIT OF; DESISTANCE; CONSIDERED INFERIOR TO THE TESTIMONY
GIVEN IN OPEN COURT. 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; 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.
12. CIVIL LAW; DAMAGES; P50,000.00 INDEMNITY FOR RAPE. To take 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.
DECISION

PER CURIAM p:
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]: dctai
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:
That I am executing this affidavit for purposes 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," 15 which penalty, however, was modified to a fine of
P200.00 upon EDEN's motion for reconsideration. 1 6
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 tile 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
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 assuming arguendo 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, 5-4 95, 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
his 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 he 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 Trial, 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.
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

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." LibLex
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 oficio were 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:

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 or 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 R.J. 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 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

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:

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, a de oficio counsel will be appointed for him, must
appear on record.

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.

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:

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.

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 crossexamined 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:

While in People v. Miranda 36 this Court explicitly stated:

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

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.

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

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.

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 crossexamining exhaustively EDEN.

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.

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 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.

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.

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 crossexamination 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 or 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,

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 to 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 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 the 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. LibLex

pursuant to Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. NO. 7659.
With costs de oficio.

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

SO ORDERED.
||| (People v. Agbayani y Mendoza, G.R. No. 122770, January 16, 1998)
ODON PECHO, petitioner, vs. PEOPLE OF THE PHILIPPINES and the
SANDIGANBAYAN, respondents.

A.M. Navarro Law Office for petitioner.

The Solicitor General for respondents.
SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; TO BE INFORMED OF THE NATURE
AND CAUSE OF ACCUSATION; ORIGIN AND OBJECTIVES. On the assumption that the prosecution's
evidence had satisfied the quantum of proof for conviction for the complex crime of attempted estafa
through falsification of public and commercial documents, there is absolutely no merit in the petitioner's
claim that he could not be convicted of the said crime without offending his right to be informed of the
nature and cause of the accusation against him, which is guaranteed by the Bill of Rights. Such right, an
ancient bulwark of the liberties of men, has its origin in the Bill of Rights which the people of Great
Britain demanded and received from the Prince and Princess of Orange on 13 February 1688. It was
adopted by the Constitution of the United States and was extended to the Philippines by Act No. 235, or
the Philippine Bill of 1902. It was later carried into the Jones Law and, ultimately, enshrined in the
Constitutions of 1935, 1973, and 1987. It has the following objectives: First. To furnish the accused with
such a description of the charge against him as will enable him to make his defense; 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 or defendant), and circumstances. In short, the complaint must contain a specific
allegation of every fact and circumstance necessary to constitute the crime charged. ASHaTc
2. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; NATURE AND CAUSE OF
ACCUSATION; DETERMINED BY THE ACTUAL RECITAL OF FACTS STATED IN THE INFORMATION OR
COMPLAINT. What determines the real nature and cause of accusation against an accused is the
actual recital of facts stated in the information or complaint and not the caption or preamble of the
information or complaint nor the specification of the provision of law alleged to have been violated, they
being conclusions of law. An incorrect caption is not a fatal mistake. It follows then that an accused may
be convicted of a crime which, although not the one charged, is necessarily included in the latter as
provided by Section 4, Rule 120 of the Rules of Court. The succeeding Section 5 prescribes the rule in
determining when an offense includes or is included in another. We have shown in the challenged
decision why the complex crime of attempted estafa through falsification of public and commercial
documents is included in the offense charged. Moreover, we held that the information in this case "can

also be considered as charging two offenses: the violation of Section 3(e) of R.A. No. 3019 and the
complex crime of attempted estafa through falsification of official and commercial documents," and
since the petitioner failed to object before trial to such duplicity, he could be validly convicted of both or
either of the offenses charged and proved.
3. ID.; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT TO CONVICT. Under Section 4, Rule
133 of the Rules of Court, circumstantial evidence would be sufficient to convict if (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. As
jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld
only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the
circumstances proven 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.
4. ID.; ID.; ID.; PROOF BEYOND REASONABLE DOUBT; REQUIRED TO OVERCOME ACCUSED'S RIGHT TO BE
PRESUMED INNOCENT. The evidence for the prosecution likewise failed to prove that the petitioner
(1) personally represented himself as an agent of Eversun Commercial Trading; (2) knew of the falsity of
any of the public and commercial documents in question; and (3) had, at any time, possession of all or
some of the said documents. Otherwise stated, there is no sufficient circumstantial evidence to prove
conspiracy between the petitioner and Catre to commit the complex crime of estafa through falsification
of public and commercial documents. Neither is there evidence of petitioner's active participation in the
commission of the crime. The concordant combination and cumulative effect of the acts of the petitioner
as proven by the prosecution's evidence fails to satisfy the requirements of Section 4, Rule 133 of the
Rules of Court. There is reasonable doubt as to his guilt. And since his constitutional right to be
presumed innocent until proven guilty can be overthrown only by proof beyond reasonable doubt, the
petitioner must then be acquitted even though his innocence may be doubted.
5. CRIMINAL LAW; CONSPIRACY; DEFINED; WHEN PRESENT. There is conspiracy when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it. Direct
proof of previous agreement to commit a crime is not necessary. Conspiracy may be deduced from the
mode and manner in which the offense was perpetrated, or inferred from the acts of the accused
themselves when such point to a joint purpose and design, concerted action, and community of interest.
It is, however, settled that the same degree of proof required for establishing the crime is likewise
required to support a finding of conspiracy. In other words, conspiracy must be shown to exist as clearly
and as convincingly as the commission of the offense itself in order to uphold the fundamental principle
that no one shall be found guilty of a crime except upon proof beyond reasonable doubt.
6. ID.; ID.; THE ACT OF ONE IS THE ACT OF ALL. The information charges the petitioner and his coaccused Joe Catre as principals who "conspir[ed], confabulat[ed], conniv[ed], confederat[ed], and
mutually help[ed] one another," with Catre "representing himself to be a representative of Everson
Commercial Trading of Cotabato City, a corporation, firm or partnership which turned out to be nonexistent, fake or fictitious." The evidence for the prosecution, as admitted by the respondent, only
showed that it was Catre who possessed the falsified documents, contracted the services of Calica, and
delivered the documents to the latter for processing. In the absence of satisfactory explanation, Catre,
being the one in possession of the forged documents, is presumed to be the forger. Catre, however,
could not provide the explanation because only the petitioner was tried. The information states that his
address is "unknown," and the record does not show that a warrant for his arrest was issued. The only
warrant of arrest that was issued was that for the petitioner. Assuming that such evidence and the
others adduced by the prosecution are to be admitted to prove the commission of the crime, a prima
facie case enough to prove the guilt of Catre with moral certainty was duly established against Catre as a
principal. Accordingly, if conspiracy were proven, the petitioner would be equally guilty of the offense

proved. For, in a conspiracy, every act of one of the conspirators in furtherance of a common design or
purpose of such a conspiracy is, in contemplation of law, the act of each of them.
7. ID.; ID.; TO BE A PARTY THERETO, THE CONSPIRATOR SHOULD HAVE PERFORMED SOME OVERT ACT AS
A DIRECT OR INDIRECT CONTRIBUTION IN THE EXECUTION OF THE CRIME. It is also essential for one to
be a party to a conspiracy as to be liable for the acts of the others that there be intentional participation
in the transaction with a view to the furtherance of the common design. Except when he is the
mastermind in a conspiracy, it is necessary that a conspirator should have performed some overt act as a
direct or indirect contribution in the execution of the crime planned to be committed. The overt act may
consist of active participation in the actual commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the commission of the crime or by exerting moral
ascendancy over the other co-conspirators. IDaCcS
RESOLUTION

DAVIDE, JR., J p:
In our decision of 14 November 1994, we modified the appealed judgment of the Sandiganbayan in
Criminal Case No. 14844 by holding the petitioner guilty of the complex crime of attempted estafa
through falsification of official and commercial documents, and sentencing him to suffer an
indeterminate penalty ranging from two (2) years, four (4) months, and one (1) day of prision
correccional as minimum to ten (10) years and one (1) day of prision mayor as maximum and to pay a
fine of Two Thousand Pesos (P2,000.00).
In short, we held that although the petitioner could not be convicted of the crime charged, viz., violation
of Section 3(e) of R.A. No. 3019, as amended because the said section penalizes only consummated
offenses and the offense charged in this case was not consummated he could, nevertheless, be
convicted of the complex crime of attempted estafa through falsification of official and commercial
documents, which is necessarily included in the crime charged.

Unable to accept our verdict, the petitioner seasonably filed a motion for reconsideration on the ground
that after having been acquitted of the violation of Section 3(e) of R.A. No. 3019, a special law, he could
not be convicted anymore of attempted estafa through falsification of official and commercial
documents, an offense punishable under the Revised Penal Code, a general law; otherwise, the
constitutional provision on double jeopardy would be violated. In other words, his acquittal of the crime
charged precludes conviction for the complex crime of attempted estafa through falsification of official
and commercial documents, because both offenses arose from the same overt act as alleged in the
information in Criminal Case No. 14844.
In its Comment on the motion for reconsideration signed only by Assistant Solicitor General Romeo C. de
la Cruz and Solicitor Josette Sonia Holgado-Marcilla, the Office of the Solicitor General disagrees with the
petitioner and asserts that the rule on double jeopardy cannot be successfully invoked in this case
considering that no new information for estafa through falsification of public document was filed against
the petitioner; only one information was filed against him and his co-accused. For double jeopardy to
exist, there must be such new information and the accused must be able to show that (1) he has been
previously brought to trial, (2) in a court of competent jurisdiction, (3) upon a valid complaint or

information sufficient in form and substance, (4) for the same offense or an attempt to or frustration
thereof as that charged in the new information, and that (5) the case has been dismissed or terminated
without his consent or after he had pleaded to the information but before judgment was rendered. 1

SCRA 369). In this regard, it is respectfully submitted that

there is no overt act conclusively attributable to
petitioner which would pin him down as a co-conspirator.

Nevertheless, the Office of the Solicitor General joins the petitioner in the latter's plea for his acquittal,
but for another ground, namely, insufficiency of evidence.

15. Thus, it is the inexorable duty of the Solicitor General to

recommend petitioner's acquittal, as he so recommends,
inasmuch as the People was not able to adduce evidence
sufficient to overcome the constitutional presumption of
petitioner's innocence.

In the resolution of 22 August 1995, we directed the Solicitor General to inform the Court whether he
agrees with the recommendation of Assistant Solicitor General De la Cruz and Solicitor Holgado-Marcilla.
In his Manifestation of 14 September 1995, the Solicitor General not only expressed full agreement with
the said recommendation, but even added the following observations:

We then required the parties to submit their respective memoranda on the following issues:

10. After reading the Court's Decision, the Solicitor General has noted
that petitioner's conviction is based on circumstantial
evidence.

(a) the sufficiency of the evidence for the complex crime of attempted
estafa through falsification of public and commercial
documents, and

11. The law and a host of the Court's ruling declare that circumstantial
evidence is sufficient for conviction if the following
conditions concur:

(b) the validity of the conviction therefor under an information for the
violation of Section 3(e) of R.A. No. 3019, as amended,
vis-a-vis the constitutional right of the accused to be
informed of the nature and cause of the accusation
against him.

(1) There is more that 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 (Section 3, Rule 133, Rules of Court).
12. In this case, it should be stressed that the inference that petitioner
falsified documents appears to be based on another
inference, i.e., that he was in possession of the same
because he accompanied his co-accused Catre in the
transactions. However, other than accompanying Catre,
there is no evidence on record that petitioner had
custody of the falsified documents.

In their respective memoranda, the petitioner and the Office of the Solicitor General are one in asserting
that the petitioner could not be convicted based entirely on circumstantial evidence because of the
failure of the prosecution to satisfy the requisites set forth in Section 4, Rule 133 of the Rules of Court,
namely, (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. The petitioner further cited portions of the transcripts of the stenographic notes of
the testimony of Customs Broker Constantino Calica which prove that it was Catre alone who made the
introduction to Calica that they were agents of Eversun Commercial Trading, and that it was Catre who
did all the talking and directly transacted with Calica regarding the terms and conditions of the particular
engagement and who actually delivered the documents to him. There is no evidence that the petitioner
had a hand in the processing of the import entry declaration for the release of the shipment from the
Bureau of Customs or was instrumental in the approval of the import entry declaration. Thus:
Q Now, did Mr. Odon Pecho actually engage your services?

13. As to the conspiracy angle, there is likewise no showing that

petitioner interceded for Catre. In fact, it was Catre who
talked to Calica. (p. 19-20, TSN, August 26, 1991) Neither
was it shown that petitioner had a hand in the
processing of the import entry declaration for the
release of the shipment from the Bureau of Customs. It
was not also proven that he was instrumental in the
approval of the import entry declaration.

A They are two, sir, Mr. Joe Catre and Mr. Odon Pecho.

14. The elements of conspiracy, like the physical acts constituting the
crime itself, must be proven beyond reasonable doubt.
(People vs. Manuel, 234 SCRA 532). To hold an accused
guilty as co-principal by reason of conspiracy, it must be
shown that he performed an overt act in pursuance or
furtherance of the conspiracy. (People vs. Roxas, 241

A Yes, sir.

Q Who actually transacted with you with regards to your services, is it

Mr. Catre or Mr. Pecho?
A Mr. Joe Catre, sir.
Q So it was Joe Catre?

Q And not Odon Pecho, is that right?

A Well, he is the companion of Mr. Catre and they introduced
themselves to me that they are the authorized

representative of the importer.

A At that time your Honor, it was Mr. Catre who was doing that talking.

Q That is right. Who introduced to you?

Q Did Mr. Catre give his name to you?

A Mr. Catre was the one who talks [sic] to me, sir.

A Yes, Your Honor.

Q But in your testimony, the person who delivered to you the

documents, the bill of lading, the commercial invoices,
the packing list, the importer's sworn statement, etc.
which was made the basis of the, of your preparation for
the processing of the import entry, who delivered to you
these documents that you mentioned?

Q How did he introduce himself?

A Mr. Catre, sir.

A He did not introduce himself to me Your Honor.

Q And who talked to you about the terms and conditions of this
engagement or contracts?

Q So during that meeting you do not know that the name of the
companion of Mr. Catre is Odon Pecho.

A Mr. Catre, sir.

A Yes, your Honor.

Q And not Mr. Odon Pecho?

Q And how did your son attend to it?

A Yes, sir.

A Two days after Your Honor, Mr. Catre called our office to assist and
help them in the preparation of the cargo at the arrastre
operator because that is usually being done by the
broker when the shipment goes for examination. (t.s.n.,
Hearing of August 26, 1991)

Q Who actually delivered to you the documents, Mr. Catre or Mr.

Pecho?

A That he is Mr. Joe Catre, Your Honor.

Q How about his companion, did his companion introduce himself to
you or he was introduced by Mr. Catre to you?

A It was Mr. Catre, sir, he was the one handling the case.
AJ ESCAREAL
Q [To] Whom did you talk first?
A Mr. Catre, Your Honor, he was the one handling the case, the
documents, Your Honor.

As to the second issue, the Office of the Solicitor General rejects the theory of the petitioner and submits
that the information in this case contains the essential ingredients of estafa through falsification of public
and commercial documents; therefore, assuming there is sufficient evidence, the petitioner could be
convicted of the complex crime of attempted estafa through falsification of public and commercial
documents without violating Section 14(2), Article III of the Constitution on the right of the accused to be
informed of the nature and cause of the accusation against him.
I

Q Do you know how they introduced themselves to you?

A That is the only thing that I remember Your Honor that they came to
my office and told me that they are the importer's
representatives and that they are engaging my services.
Q Who said that?
A Mr. Catre, Your Honor.
Q How about Mr. Pecho?
A No, Your Honor.
Q Did he say anything?

We shall first take up the second issue since it involves a constitutional right of the accused.
On the assumption that the prosecution's evidence had satisfied the quantum of proof for conviction for
the complex crime of attempted estafa through falsification of public and commercial documents, there
is absolutely no merit in the petitioner's claim that he could not be convicted of the said crime without
offending his right to be informed of the nature and cause of the accusation against him, which is
guaranteed by the Bill of Rights. 2 Such right, an ancient bulwark of the liberties of men, has its origin in
the Bill of Rights which the people of Great Britain demanded and received from the Prince and Princess
of Orange on 13 February 1688. It was adopted by the Constitution of the United States and was
extended to the Philippines by Act No. 235, or the Philippine Bill of 1902. 3 It was later carried into the
Jones Law and, ultimately, enshrined in the Constitutions of 1935, 1973, and 1987. It has the following
objectives:

First. To furnish the accused with such a description of the charge

against him as will enable him to make his defense; 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 or defendant), and
circumstances. In short, the complaint must contain a specific allegation
of every fact and circumstance necessary to constitute the crime
charged. 4
Conformably therewith, the Rules of Court has prescribed the appropriate rules. 5
What determines the real nature and cause of accusation against an accused is the actual recital
of facts stated in the information or complaint and not the caption or preamble of the
information or complaint nor the specification of the provision of law alleged to have been
violated, they being conclusions of law. 6 An incorrect caption is not a fatal mistake. 7
It follows then that an accused may be convicted of a crime which, although not the one charged, is
necessarily included in the latter. Section 4, Rule 120 of the Rules of Court thus provides:
SEC. 4. Judgment in case of variance between allegation and proof.
When there is variance between the offense charged in the complaint
or information, and that proved or established by the evidence, and the
offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved included
in that which is charged, or of the offense charged included in that
which is proved.
The succeeding Section 5 prescribes the rule in determining when an offense includes or is included in
another. We have shown in the challenged decision why the complex crime of attempted estafa through
falsification of public and commercial documents is included in the offense charged. Moreover, we held
that the information in this case "can also be considered as charging two offenses: the violation of
Section 3(e) of R.A. No. 3019 and the complex crime of attempted estafa through falsification of official
and commercial documents," and since the petitioner failed to object before trial to such duplicity, 8 he
could be validly convicted of both or either of the offenses charged and proved. 9
II
We shall now turn to the first issue: whether the evidence adduced by the prosecution had established
beyond reasonable doubt the guilt of the petitioner for the complex crime of attempted estafa through
falsification of public and commercial documents. In light of the consistent and persistent negative
stance of the Office of the Solicitor General, personally confirmed and reinforced by the Solicitor General
in his separate Manifestation, we re-evaluated the evidence.
In our decision of 14 November 1994, we based the conviction of the petitioner on conspiracy.
The question that logically crops up then is not whether the combination of the circumstantial evidence
proved in this case against the petitioner had established beyond reasonable doubt that he is guilty of
the complex crime of attempted estafa through falsification of public and commercial documents, as

asseverated by him and the public respondent. Rather, the question is whether the prosecution had
discharged its duty to establish conspiracy between the petitioner and Catre.
The information 10 charges the petitioner and his co-accused Joe Catre as principals 11 who "conspir[ed],
confabulat[ed], conniv[ed], confederat[ed], and mutually help[ed] one another," with Catre
"representing himself to be a representative of Eversun Commercial Trading of Cotabato City, a
corporation, firm or partnership which turned out to be non-existent, fake or fictitious." The evidence for
the prosecution, as admitted by the respondent, only showed that it was Catre who possessed the
falsified documents, contracted the services of Calica, and delivered the documents to the latter for
processing. In the absence of satisfactory explanation, Catre, being the one in possession of the forged
documents, is presumed to be the forger. 12 Catre, however, could not provide the explanation because
only the petitioner was tried. The information states that his address is "unknown," and the record does
not show that a warrant for his arrest was issued. The only warrant of arrest that was issued was that for
the petitioner. 13 Assuming that such evidence and the others adduced by the prosecution are to be
admitted to prove the commission of the crime, a prima facie case enough to prove the guilt of Catre
with moral certainty was duly established against Catre as a principal. Accordingly, if conspiracy were
proven, the petitioner would be equally guilty of the offense proved. For, in a conspiracy, every act of
one of the conspirators in furtherance of a common design or purpose of such a conspiracy is, in
contemplation of law, the act of each of them. 14
There is conspiracy when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. 15 Direct proof of previous agreement to commit a crime is not
necessary. Conspiracy may be deduced from the mode and manner in which the offense was
perpetrated, or inferred from the acts of the accused themselves when such point to a joint purpose and
design, concerted action, and community of interest. 16 It is, however, settled that the same degree of
proof required for establishing the crime is likewise required to support a finding of conspiracy. It other
words, conspiracy must be shown to exist as clearly and as convincingly as the commission of the offense
itself in order to uphold the fundamental principle that no one shall be found guilty of a crime except
upon proof beyond reasonable doubt. 17
It is also essential for one to be a party to a conspiracy as to be liable for the acts of the others that there
be intentional participation in the transaction with a view to the furtherance of the common design. 18
Except when he is the mastermind in a conspiracy, it is necessary that a conspirator should have
performed some overt act as a direct or indirect contribution in the execution of the crime planned to be
committed. 19 The overt act may consist of active participation in the actual commission of the crime
itself, or it may consist of moral assistance to his co-conspirators by being present at the commission of
the crime or by exerting moral ascendancy over the other co-conspirators. 20
Since conspiracy must be established by proof beyond reasonable doubt, then the next inquiry would be
whether the prosecution was able to adduce such proof against the petitioner. It is in this respect that
we agree with the People and the petitioner that the prosecution had only circumstantial evidence
against the petitioner.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict if
(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. As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can
be upheld only if the circumstances proven constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e.,
the circumstances proven 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. 21

In the instant case, all that the prosecution was able to prove insofar as the petitioner is concerned is
that he and co-accused Catre are from Surigao del Norte; that he accompanied Catre in contracting the
services of customs broker Constantino Calica; and that he also was with Catre when the latter went with
Dennis Calica, son of Constantino Calica, to the Manila International Container Port. In all these instances,
however, it was Catre who transacted the business and did all the talking. As a matter of fact, the
petitioner was not even introduced to Calica. As recapitulated by the Office of the Solicitor General in its
Memorandum:
[T]here is no evidence that petitioner interceded for Catre. Prosecution
witness Calica testified that it was Catre and not petitioner, who
introduced themselves as agents of Eversun Commercial Trading. He
also testified that it was Catre who did all the talking and directly
transacted with him (Calica) regarding the terms and conditions of the
particular engagement and it was also Catre, and not petitioner, who
actually delivered the documents to him (tsn, August 26, 1991). There is
no evidence that petitioner had a hand in the processing of the import
entry declaration for the release of the shipment from the Bureau of
Customs. There is also no evidence that petitioner was instrumental in
the approval of the import entry declaration. In short, there is no
showing that petitioner performed an overt act in furtherance of
alleged conspiracy. 22
The evidence for the prosecution likewise failed to prove that the petitioner (1) personally represented
himself as an agent of Eversun Commercial Trading; (2) knew of the falsity of any of the public and
commercial documents in question; and (3) had, at any time, possession of all or some of the said
documents.
Otherwise stated, there is no sufficient circumstantial evidence to prove conspiracy between the
petitioner and Catre to commit the complex crime of estafa through falsification of public and
commercial documents. Neither is there evidence of petitioner's active participation in the commission
of the crime. The concordant combination and cumulative effect of the acts of the petitioner as proven
by the prosecution's evidence fails to satisfy the requirements of Section 4, Rule 133 of the Rules of
Court. There is reasonable doubt as to his guilt. And since his constitutional right to be presumed
innocent until proven guilty 23 can be overthrown only by proof beyond reasonable doubt, 24 the
petitioner must then be acquitted even though his innocence may be doubted. 25

WHEREFORE, the petitioner's motion for reconsideration is GRANTED. Our decision of 14 November
1994 is SET ASIDE, and another is hereby rendered REVERSING the challenged decision of 28 June 1993
and resolution of 12 August 1993 of the Sandiganbayan in Criminal Case No. 14844 and ACQUITTING
petitioner ODON PECHO of the complex crime of attempted estafa through falsification of official and
commercial documents, without, however, prejudice to any appropriate administrative action which his
office may take against him as may be warranted by the circumstances in this case.
SO ORDERED.
||| (Pecho v. People, G.R. No. 111399, September 27, 1996)
LAURO G. SORIANO, JR., petitioners, vs. THE HONORABLE
SANDIGANBAYAN AND THE PEOPLE OF THE PHILIPPINES, respondents.

Dakila F. Castro for petitioner.

The Solicitor General for respondents.
DECISION

ABAD SANTOS, J p:
The principal issue in this petition to review a decision of the Sandiganbayan is whether or not the
preliminary investigation of a criminal complaint conducted by a Fiscal is a "contract or transaction" so as
to bring it within the ambit of Section 3 (b) of Republic Act No. 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act.
The factual background is as follows:
Thomas N. Tan was accused of qualified theft in a complaint lodged with the City Fiscal of Quezon City.
The case was docketed as I.S. No. 82-2964 and assigned for investigation to the petitioner who was then
an Assistant City Fiscal. In the course of the investigation the petitioner demanded P4,000.00 from Tan as
the price for dismissing the case. Tan reported the demand to the National Bureau of Investigation which
set up an entrapment. Because Tan was hard put to raise the required amount only P2,000.00 in bills
were marked by the NBI which had to supply one-half thereof. The entrapment succeeded and an
information was filed with the Sandiganbayan in Criminal Case No. 7393 which reads as follows:
"The undersigned Tanodbayan Special Prosecutor accuses LAURO G.
SORIANO, for Violation of Section 3, paragraph (b) of Republic Act 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That on or about the 21st day of March
1983, at Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, a public officer, being then and still is an
Assistant City Fiscal of the Quezon City Fiscal's Office,
detailed as the Investigating Fiscal in the case of
MARIANNE Z. LACAMBRA versus THOMAS N. TAN,
docketed as I.S. No. 82-2964, for Qualified Theft, taking
advantage of his official position and with grave abuse of
authority, did then and there willfully, unlawfully and
feloniously demand and request from Thomas N. Tan the
amount of FOUR THOUSAND PESOS (P4,000.00)
Philippine Currency, and actually received from said
Thomas N. Tan the amount of TWO THOUSAND PESOS
(P2,000.00) Philippine Currency, in consideration for a
favorable resolution by dismissing the above-mentioned
case, wherein said accused has to intervene in his official
capacity as such Investigating Fiscal.
CONTRARY TO LAW.

Manila, Philippines, March 22, 1983.

(SGD.) EDGARDO C. LABELLA
Special Prosecutor"
After trial the Sandiganbayan rendered a decision with the following dispositive portion:
"WHEREFORE, the Court finds accused Lauro G. Soriano, Jr., GUILTY
beyond reasonable doubt, as Principal, in the Information, for Violation
of Section 3, paragraph (b), of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act, and
hereby sentences him to suffer the indeterminate penalty of
imprisonment ranging from SIX (6) YEARS and ONE (1) MONTH, as
minimum, to NINE (9) YEARS and ONE (1) DAY, as maximum; to suffer
perpetual disqualification from public office; to suffer loss of all
retirement or gratuity benefits under any law; and, to pay costs.
"Of the sum of Two Thousand Pesos (P2,000.00) used in the
entrapment operations, and which was fully recovered from the
accused, One Thousand Pesos (P1,000.00) shall be returned to private
complainant Thomas N. Tan, and the other half, to the National Bureau
of Investigation, National Capital Region."
A motion to reconsider the decision was denied by the Sandiganbayan; hence the instant petition.
The petitioner has raised several legal questions plus one factual question. The latter is to the effect that
the Sandiganbayan convicted him on the weakness of his defense and not on the strength of the
prosecution's evidence, This claim is not meritorious not only because it is not for Us to review the
factual findings of the court a quo but also because a reading of its decision shows that it explicitly stated
the facts establishing the guilt of the petitioner and the competence of the witnesses who testified
against him.
As stated above, the principal issue is whether or not the investigation conducted by the petitioner can
be regarded as a "contract or transaction" within the purview of Sec. 3 (b) of R.A. No. 3019. On this issue
the petition is highly impressed with merit.
The afore-mentioned provision reads as follows:
"SEC. 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful: prcd
(a) . . .
(b) Directly or indirectly requesting or receiving 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."

The petitioner states:

"Assuming in gratia argumenti, petitioner's guilt, the facts make out a
case of Direct Bribery defined and penalized under the provision of
Article 210 of the Revised Penal Code and not a violation of Section 3,
subparagraph (b) of Rep. Act 3019, as amended.
"The evidence for the prosecution clearly and undoubtedly support, if
at all, the offense of Direct Bribery, which is not the offense charged
and is not likewise included in or is necessarily included in the offense
charged, which is for violation of Section 3, subparagraph (b) of Rep.
Act 3019, as amended. The prosecution showed that: the accused is a
public officer; in consideration of P4,000.00 which was allegedly
solicited, P2,000.00 of which was allegedly received, the petitioner
undertook or promised to dismiss a criminal complaint pending
preliminary investigation before him, which may or may not constitute
a crime; that the act of dismissing the criminal complaint pending
before petitioner was related to the exercise of the function of his
office. Therefore, it is with pristine clarity that the offense proved, if at
all, is Direct Bribery." (Petition, p. 5.)
Upon the other hand, the respondents claim:
"A reading of the above-quoted provision would show that the term
'transaction' as used thereof is not limited in its scope or meaning to a
commercial or business transaction but includes all kinds of transaction,
whether commercial, civil or administrative in nature, pending with the
government. This must be so, otherwise, the Act would have so stated
in the 'Definition of Terms', Section 2 thereof. But it did not, perforce
leaving no other interpretation than that the expressed purpose and
object is to embrace all kinds of transaction between the government
and other party wherein the public officer would intervene under the
law." (Comment, p. 8.)
It is obvious that the investigation conducted by the petitioner was not a contract. Neither was it a
transaction because this term must be construed as analogous to the term which precedes it. A
transaction, like a contract, is one which involves some consideration as in credit transactions and this
element (consideration) is absent in the investigation conducted by the petitioner.
In the light of the foregoing, We agree with the petitioner that it was error for the Sandiganbayan to
have convicted him of violating Sec. 3 (b) of R.A. No. 3019.
The petitioner also claims that he cannot be convicted of bribery under the Revised Penal Code because
to do so would be violative of his constitutional right to be informed of the nature and cause of the
accusation against him. Wrong. A reading of the information which has been reproduced herein clearly
makes out a case of bribery so that the petitioner cannot claim deprivation of the right to be informed.
IN THE LIGHT OF THE FOREGOING, the judgment of the Sandiganbayan is modified in that the petitioner
is deemed guilty of bribery as defined and penalized by Article 210 of the Revised Penal Code and is
hereby sentenced to suffer an indeterminate penalty of six (6) months of arresto mayor, as minimum, to
two (2) years of prision correccional, as maximum, and to pay a fine of Two Thousand (P2,000.00) Pesos.
The rest of the judgment is hereby affirmed. Costs against the petitioner. Cdpr

SO ORDERED.
||| (Soriano, Jr. v. Sandiganbayan, G.R. No. L-65952, July 31, 1984)
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.

Hermis I. Montecillo for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor Jose F. Racela, Jr. and
Solicitor Carlos N. Ortega for respondents.
DECISION

FERNANDO, J p:
The jurisdictional infirmity imputed to respondent Judge Romulo R. Senining of the City Court of Cebu
which was not remedied by respondent Judge Rafael T. Mendoza of the Court of First Instance of Cebu in
this certiorari proceeding was the absence of an arraignment of petitioner Manuel Borja, who was
accused of slight physical injuries. This notwithstanding, respondent Judge Senining proceeded with the
trial in absentia 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
affirming the judgment of the City Court. It is the contention of 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 There was thus, at the very least, a grave abuse 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 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." 20 With 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.

According to the Court, there was no grave abuse of discretion committed by the trial court when it
ordered the so-called reopening of the case to complete the testimony of the prosecution witness.
Appellant was never deprived of his day in court. Appellant was given every opportunity to support his
case or to refute the prosecution's evidence after the prosecution rested its case. The physical evidence
in this case corroborated what the prosecution's witness testified to. Hence, the Supreme Court affirmed
the trial court's finding that appellant was guilty of the crime charged. The penalty, however; was
reduced to reclusion perpetua as neither mitigating nor aggravating circumstance was present in the
instant case.
SYLLABUS

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.

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCHES AND SEIZURES; WARRANT ISSUED SHOULD
DESCRIBE WITH PARTICULARITY THE THINGS TO BE SEIZED; RATIONALE. The constitutional
requirement of reasonable particularity of description of the things to be seized is primarily meant to
enable the law enforcers serving the warrant to: (1) readily identify the properties to be seized and thus
prevent them from seizing the wrong items; and (2) leave said peace officers with no discretion
regarding the articles to be seized and thus prevent unreasonable searches and seizures. What the
Constitution seeks to avoid are search warrants of broad or general characterization or sweeping
descriptions, which will authorize police officers to undertake a fishing expedition to seize and confiscate
any and all kinds of evidence or articles relating to an offense.

SYNOPSIS

2. ID.; ID.; ID.; ID.; WHEN TECHNICAL DESCRIPTION IS NOT NECESSARY; APPLICATION IN CASE AT BAR.
However, it is not required that technical precision of description be required, particularly, where by the
nature of the goods to be seized, their description must be rather general, since the requirement of a
technical description would mean that no warrant could issue. Thus, it has been held that the term
"narcotics paraphernalia" is not so wanting in particularity as to create a general warrant. Nor is the
description "any and all narcotics" and "all implements, paraphernalia, articles, papers and records
pertaining to" the use, possession, or sale of narcotics or dangerous drugs so broad as to be
unconstitutional. A search warrant commanding peace officers to seize "a quantity of loose heroin" has
been held sufficiently particular. Tested against the foregoing precedents, the description "an
undetermined amount of marijuana" must be held to satisfy the requirement for particularity in a search
warrant: Noteworthy, what is to be seized in the instant case is property of a specified character, i.e.,
marijuana, an illicit drug. By reason of its character and the circumstances under which it would be found,
said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to
such character, the place, and the circumstances. Thus, this Court has held that the description "illegally
in possession of undetermined quantity/amount of dried marijuana leaves and Methamphetamine
Hydrochloride (Shabu) and sets of paraphernalia" particularizes the things to be seized.

Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid
conducted by the operatives of the NBI and the PNP NARCOM at the premises allegedly leased by
appellant and at his residence yielded huge quantities of marijuana. The City Prosecutor of Baguio City
charged appellant with illegal possession of marijuana, which later on resulted to the filing of two
separate informations which were docketed to Criminal Cases Nos. 15800-R and 15822-R. In Criminal
Case No. 15822-R, the trial court agreed with appellant that the taking of marijuana from appellant's
rented premises was the result of an illegal search and hence, inadmissible in evidence against appellant.
Appellant was accordingly acquitted of the charge. However, the trial court found that the evidence for
the prosecution was more than ample to prove appellant's guilt in Criminal Case No. 15800-R and duly
convicted him of illegal possession of marijuana and sentenced him to death. Hence, this automatic
review.

3. ID.; ID.; ID.; SEARCH WARRANT; REQUIRES THAT THE JUDGE MUST PERSONALLY EXAMINE THE
COMPLAINANT AND HIS WITNESSES UNDER OATH OR AFFIRMATION BEFORE THE ISSUANCE THEREOF.
Before a valid search warrant is issued, both the Constitution and the 2000 Revised Rules of Criminal
Procedure require that the judge must personally examine the complainant and his witnesses under oath
or affirmation. The personal examination must not be merely routinary or pro forma, but must be
probing and exhaustive. . . . It is presumed that a judicial function has been regularly performed, absent a
showing to the contrary. A magistrate's determination of probable cause for the issuance of a search
warrant is paid great deference by a reviewing court, as long as there was substantial basis for that
determination. Substantial basis means that the questions of the examining judge brought out such facts
and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has
been committed, and the objects in connection with the offense sought to be seized are in the place
sought to be searched. IAEcaH

||| (Borja v. Mendoza, G.R. No. L-45667, June 20, 1977)

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO TEE a.k.a.
ESTOY TEE, accused-appellant.

The Solicitor General for plaintiff-appellee.

Jose Mencio Molintas for accused-appellant.

4. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; GROUNDS AND OBJECTIONS NOT
RAISED THEREIN PRESUMED WAIVED. But it is settled that when a motion to quash a warrant is filed,
all grounds and objections then available; existent or known, should be raised in the original or
subsequent proceedings for the quashal of the warrant, otherwise they are deemed waived.
5. ID.; ID.; RIGHT TO SPEEDY TRIAL; DEFINED AND CONSTRUED. A speedy trial means a trial conducted
according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious,
and oppressive delays. In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that "where
a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his
protest beyond a reasonable period of time, as in this instance, for more than a year, the accused is
entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be
restrained of his liberty, by habeas corpus to obtain his freedom." The concept of speedy trial is
necessarily relative. A determination as to whether the right has been violated involves the weighing of
several factors such as the length of the delay, the reason for the delay, the conduct of the prosecution
and the accused, and the efforts exerted by the defendant to assert his right, as well as the prejudice and
damage caused to the accused.
6. ID.; ID.; ID.; WHEN DEEMED VIOLATED. The Speedy Trial Act of 1998, provides that the trial period
for criminal cases in general shall be one hundred eighty (180) days. However, in determining the right of
an accused to speedy trial, courts should do more than a mathematical computation of the number of
postponements of the scheduled hearings of the case. The right to a speedy trial is deemed violated only
when: (1) the proceedings are attended by vexatious, capricious, and oppressive delays; or (2) when
unjustified postponements are asked for and secured; or (3) when without cause or justifiable motive a
long period of time is allowed to elapse without the party having his case tried.
7. ID.; ID.; REOPENING OF CASES; RESTS UPON THE DISCRETION OF THE TRIAL COURT; RESTRICTIONS
THEREOF, NOT PRESENT IN CASE AT BAR. As a rule, the matter of reopening of a case for reception of
further evidence after either prosecution or defense has rested its case is within the discretion of the
trial court. However, a concession to a reopening must not prejudice the accused or deny him the
opportunity to introduce counter evidence. Strictly speaking, however, there was no reopening of the
cases in the proceedings below. A motion to reopen may properly be presented only after either or both
parties have formally offered and closed their evidence, but before judgment.
8. ID.; EVIDENCE; TESTIMONY OF WITNESS; CANNOT BE DISREGARDED ENTIRELY EVEN WHEN ONLY PART
THEREOF WERE FOUND TRUE; APPLICATION IN CASE AT BAR. It is the bounden duty of the courts to
test the prosecution evidence rigorously, so that no innocent person is made to suffer the unusually
severe penalties meted out for drug offenses. Though we scrutinized minutely the testimony of
Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear aware
of treading the thin line between innocence and feeling guilty, with certain portions of his story tending
to be self-exculpatory. However, his whole testimony could not be discredited. The established rule is
that testimony of a witness may be believed in part and disbelieved in other parts, depending on the
corroborative evidence and the probabilities and improbabilities of the case. But it is accepted, as a
matter of common sense, that if certain parts of a witness' testimony are found true, his testimony
cannot be disregarded entirely.
9. CRIMINAL LAW; ILLEGAL POSSESSION OF DANGEROUS DRUGS; ELEMENTS; CONSTRUED. In a
prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral
certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2)
that such possession is not authorized by law; and (3) that the accused freely and consciously possessed
the said drug. . . . In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act
applies generally to all persons and proscribes the sale of dangerous drugs by any person, and no person
is authorized to sell such drugs. Said doctrine is equally applicable with respect to possession of

prohibited drugs. REPUBLIC ACT NO. 6425, which penalizes the possession of prohibited drugs, applies
equally to all persons in this jurisdiction and no person is authorized to possess said articles, without
authority of law. Anent the third element, we have held that to warrant conviction, possession of illegal
drugs must be with knowledge of the accused or that animus possidendi existed together with the
possession or control of said articles. Nonetheless, this dictum must be read in consonance with our
ruling that possession of a prohibited drug per se constitutes prima facie evidence of knowledge or
animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession.
In effect, the onus probandi is shifted to the accused to explain the absence of knowledge or animus
possidendi in this situation.

10. ID.; ID.; PENALTY. The legislature never intended that where the quantity involved exceeds those
stated in Section 20 of REPUBLIC ACT NO. 6425 the maximum penalty of death shall automatically be
imposed. The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, the
penalty to be imposed must conform with Article 63 of the Revised Penal Code. As already held, the
death penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code. The rules
in Article 63 apply although the prohibited drugs involved are in excess of the quantities provided for in
Section 20 of REPUBLIC ACT NO. 6425. Thus, finding neither mitigating nor aggravating circumstances in
the present case, appellant's possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R,
does not merit capital punishment but only the lesser penalty of reclusion perpetua.
DECISION

QUISUMBING, J p:
For automatic review is the consolidated judgment 1 of the Regional Trial Court (RTC) of Baguio City,
Branch 6, dated September 17, 1999, in Criminal Cases Nos. 15800-R and 15822-R, involving violations of
Section 8, Article II, of the Dangerous Drugs Law. 2 Since appellant was acquitted in the second case, we
focus on the first case, where appellant has been found guilty and sentenced to death and fined one
million pesos.
The decretal portion of the trial court's decision reads:
WHEREFORE, judgment is hereby rendered, as follows:
1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee
guilty beyond reasonable doubt of the offense of illegal possession of
marijuana of about 591.81 kilos in violation of Section 8, Article II of RA
6425 as amended by Section 13 of RA 7659 as charged in the
Information, seized by virtue of a search warrant and sentences him to
the supreme penalty of death and to pay a fine of 1 million pesos
without subsidiary imprisonment in case of insolvency.
The 591.81 kilos of marijuana contained in 26 boxes and one yellow
sack (Exhibits U-1 to U-27) are ordered forfeited in favor of the State to
be destroyed immediately in accordance with law.

2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed
to prove the guilt of accused Modesto Tee beyond reasonable doubt
and hereby acquits him of the charge of illegal possession of marijuana
in violation of Section 8, Art. 2 of RA 6425 as amended by Section 13 of
RA 7659 as charged in the Information since the marijuana confiscated
have to be excluded in evidence as a product of unreasonable search
and seizure.

provision of law.
CONTRARY TO LAW. 4
On August 7, 1998, the prosecution moved to "amend" the foregoing charge sheet "considering that
subject marijuana were seized in two (2) different places." 5
As a result, the information in Criminal Case No. 15800-R was amended to read as follows:

The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh.
B to S and their component parts) although excluded in evidence as the
product(s) of unreasonable search and seizure, are nevertheless
ordered forfeited in favor of the State to be destroyed immediately in
accordance with law considering that they are prohibited articles.

That on or about the 1st day of July, 1998, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully,
feloniously and knowingly have in his possession the following, to wit:

The City Jail Warden is, therefore, directed to release the accused
Modesto Tee in connection with Crim. Case No. 15822-R unless held on
other charges.

- Six hundred two (602) bricks of dried flowering tops separately

contained in twenty-six (26) boxes and a yellow sack,
weighing 591.81 kilograms

COST(S) DE OFICIO.

a prohibited drug, without the authority of law to possess, in violation

of the above-cited provision of law.

SO ORDERED. 3
CONTRARY TO LAW. 6
Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid
conducted by operatives of the National Bureau of Investigation (NBI) and Philippine National Police
Narcotics Command (PNP NARCOM) at premises allegedly leased by appellant and at his residence
yielded huge quantities of marijuana.
On July 20, 1998, appellant moved to quash the search warrant on the ground that it was too general
and that the NBI had not complied with the requirements for the issuance of a valid search warrant. The
pendency of said motion, however, did not stop the filing of the appropriate charges against appellant. In
an information dated July 24, 1998, docketed as Criminal Case No. 15800-R, the City Prosecutor of
Baguio City charged Modesto Tee, alias "Estoy Tee," with illegal possession of marijuana, allegedly
committed as follows:

A separate amended information docketed as Criminal Case No. 15822-R was likewise filed, the
accusatory portion of which reads:
That on or about the 1st day of July, 1998 in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully,
feloniously and knowingly have in his possession the following, to wit:
1. Ninety-two (92) bricks of dried flowering tops separately contained in
four (4) boxes; and

That on or about the 1st day of July, 1998 in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully,
feloniously and knowingly have in his possession the following, to wit:

2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twentythree (23) bags of dried flowering tops separately
contained in thirteen (13) sacks, with a total weight of
336.93 kilograms;

1. Ninety-two (92) bricks of dried flowering tops separately contained in

four (4) boxes; and

a prohibited drug, without the authority of law to possess, in violation

of the above-cited provision of law.

2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and

twenty-three (23) bags of dried flowering tops separately contained in
thirteen (13) sacks, with a total weight of 336.93 kilograms; and

CONTRARY TO LAW. 7

3. Six hundred two (602) bricks of dried flowering tops separately

contained in twenty-six (boxes) and a yellow sack, weighing 591.81
kilograms,
all having a grand total weight of 928.74 kilograms, a prohibited drug,
without the authority of law to possess, in violation of the above-cited

On September 4, 1998, the trial court denied the motion to quash the search warrant and ordered
appellant's arraignment.
When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to enter a plea. The trial
court entered a plea of not guilty for him. 8 Trial on the merits then ensued.
The facts of this case, as gleaned from the records, are as follows:

Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the appellant Modesto Tee are
well acquainted with each other, since Abratique's wife is the sister of Tee's sister-in-law. 9
Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggled
cigarettes. 10 Abratique brought appellant to his friend, Albert Ballesteros, who had a house for rent in
Bakakeng, Baguio City. After negotiating the terms and conditions, Ballesteros agreed to rent out his
place to appellant. Appellant then brought several boxes of purported "blue seal" cigarettes to the
leased premises.
Shortly thereafter, however, Ballesteros learned that the boxes stored in his place were not "blue seal"
cigarettes but marijuana. Fearful of being involved, Ballesteros informed Abratique. Both later prevailed
upon appellant to remove them from the premises. 11
Appellant then hired Abratique's taxi and transported the boxes of cannabis from the Ballesteros place
to appellant's residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. 12
On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet on the pretext of
buying and transporting strawberries. Upon reaching La Trinidad, however, appellant directed Abratique
to proceed to Sablan, Benguet, where appellant proceeded to load several sacks of marijuana in
Abratique's taxi. He then asked Abratique to find him a place where he could store the contraband. 13
Abratique brought appellant to his grandmother's house at No. 27 Dr. Cario St., QM Subdivision, Baguio
City, which was being managed by Abratique's aunt, Nazarea Abreau. Nazarea agreed to rent a room to
appellant. Abratique and appellant unloaded and stored there the sacks of marijuana brought from
Sablan. 14 Abratique was aware that they were transporting marijuana as some of the articles in the
sacks became exposed in the process of loading. 15

The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellant's residence
where they served the warrant upon appellant himself. 21 The search was witnessed by appellant,
members of his family, barangay officials, and members of the media. 22 Photographs were taken during
the actual search. 23 The law enforcers found 26 boxes and a sack of dried marijuana 24 in the water
tank, garage, and storeroom of appellant's residence. 25 The total weight of the haul was 591.81
kilograms. 26 Appellant was arrested for illegal possession of marijuana.
The seized items were then submitted to the NBI laboratory for testing. NBI Forensic Chemist Maria
Carina Madrigal conducted the tests. Detailed microscopic and chromatographic examinations of the
items taken from appellant's rented room at No. 27, Dr. Cario St., as well as those from his residence at
Green Valley, showed these to be marijuana. 27
In his defense, appellant contended that the physical evidence of the prosecution was illegally obtained,
being the products of an unlawful search, hence inadmissible. Appellant insisted that the search warrant
was too general and the process by which said warrant was acquired did not satisfy the constitutional
requirements for the issuance of a valid search warrant. Moreover, Abratique's testimony, which was
heavily relied upon by the judge who issued the warrant, was hearsay.
In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of the 336.93
kilograms of marijuana was the result of an illegal search and hence, inadmissible in evidence against
appellant. Appellant was accordingly acquitted of the charge. However, the trial court found that the
prosecution's evidence was more than ample to prove appellant's guilt in Criminal Case No. 15800-R and
as earlier stated, duly convicted him of illegal possession of marijuana and sentenced him to death.
Hence, this automatic review.
Before us, appellant submits that the trial court erred in:

Eventually, Abratique and Nazarea were bothered by the nature of the goods stored in the rented room.
She confided to her daughter, Alice Abreau Fianza, about their predicament. As Alice Fianza's brother-inlaw, Edwin Fianza, was an NBI agent, Alice and Abratique phoned him and disclosed what had transpired.
16
On the morning of July 1, 1998, alerted by information that appellant would retrieve the sacks of
prohibited drugs that day, Edwin Fianza and other NBI operatives conducted a stake out at No. 27, Dr.
Cario St. While the NBI agents were conducting their surveillance, they noticed that several PNP
NARCOM personnel were also watching the place. 17 The NBI then learned that the PNP NARCOM had
received a tip from one of their informers regarding the presence of a huge amount of drugs in that place.
The NBI and PNP NARCOM agreed to have a joint operation.
As the day wore on and appellant did not show up, the NBI agents became apprehensive that the whole
operation could be jeopardized. They sought the permission of Nazarea Abreau to enter the room rented
by appellant. She acceded and allowed them entry. The NBI team then searched the rented premises and
found four (4) boxes and thirteen (13) sacks of marijuana, totaling 336.93 kilograms. 18

Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness, applied for a search
warrant from RTC Judge Antonio Reyes at his residence. 19 Judge Reyes ordered the NBI agents to fetch
the Branch Clerk of Court, Atty. Delilah Muoz, so the proceedings could be properly recorded. After Atty.
Muoz arrived, Judge Reyes questioned Lising and Abratique. Thereafter, the judge issued a warrant
directing the NBI to search appellant's residence at Km. 6, Dontogan, Green Valley, Baguio City, for
marijuana. 20

1. . . . UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE

LACK OF COMPLIANCE OF (sic) SEVERAL REQUIREMENTS BEFORE IT
SHOULD HAVE BEEN ISSUED AND IT BEING A GENERAL WARRANT;
2. . . . GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND
ALLOWING ABRATIQUE TO TESTIFY AGAINST APPELLANT;
3. . . . GIVING CREDENCE TO THE TESTIMONY OF ABRATIQUE;
4. . . .NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING
HIM TO DEATH DESPITE THE ILLEGALLY OBTAINED EVIDENCE AS FOUND
IN THE FIRST CASE. 28
We find that the pertinent issues for resolution concern the following: (1) the validity of the search
conducted at the appellant's residence; (2) the alleged prejudice caused by the reopening of the case and
absences of the prosecution witness, on appellant's right to speedy trial; (3) the sufficiency of the
prosecution's evidence to sustain a finding of guilt with moral certainty; and (4) the propriety of the
penalty imposed.
1. On the Validity of the Search Warrant; Its Obtention and Execution
Appellant initially contends that the warrant, which directed the peace officers to search for and seize
"an undetermined amount of marijuana," was too general and hence, void for vagueness. He insists that
Abratique could already estimate the amount of marijuana supposed to be found at appellant's

residence since Abratique helped to transport the same.

and control marijuana or Indian hemp, in violation of Section 8 of REPUBLIC ACT NO. 6425.

For the appellee, the Office of the Solicitor General (OSG) counters that a search warrant is issued if a
judge finds probable cause that the place to be searched contains prohibited drugs, and not that he
believes the place contains a specific amount of it. The OSG points out that, as the trial court observed, it
is impossible beforehand to determine the exact amount of prohibited drugs that a person has on
himself.

We have carefully scrutinized Search Warrant No. 415 (7-98), 41 and we find that it is captioned "For
Violation of R.A. 6425, as amended." 42 It is clearly stated in the body of the warrant that "there is
probable cause to believe that a case for violation of R.A. 6425, as amended, otherwise known as the
Dangerous Drugs Act of 1972, as further amended by R.A. 7659 has been and is being committed by one
MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by having
in his possession and control an UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation
of the aforementioned law." 43 In an earlier case, we held that though the specific section of the
Dangerous Drugs Law is not pinpointed, "there is no question at all of the specific offense alleged to have
been committed as a basis for the finding of probable cause." 44 Appellant's averment is, therefore,
baseless. Search Warrant No. 415 (7-98) appears clearly issued for one offense, namely, illegal
possession of marijuana.

Appellant avers that the phrase "an undetermined amount of marijuana" as used in the search warrant
fails to satisfy the requirement of Article III, Section 2 29 of the Constitution that the things to be seized
must be particularly described. Appellant's contention, in our view, has no leg to stand on. The
constitutional requirement of reasonable particularity of description of the things to be seized is
primarily meant to enable the law enforcers serving the warrant to: (1) readily identify the properties to
be seized and thus prevent them from seizing the wrong items; 30 and (2) leave said peace officers with
no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures. 31
What the Constitution seeks to avoid are search warrants of broad or general characterization or
sweeping descriptions, which will authorize police officers to undertake a fishing expedition to seize and
confiscate any and all kinds of evidence or articles relating to an offense. 32 However, it is not required
that technical precision of description be required, 33 particularly, where by the nature of the goods to
be seized, their description must be rather general, since the requirement of a technical description
would mean that no warrant could issue. 34
Thus, it has been held that term "narcotics paraphernalia" is not so wanting in particularity as to create a
general warrant. 35 Nor is the description "any and all narcotics" and "all implements, paraphernalia,
articles, papers and records pertaining to" the use, possession, or sale of narcotics or dangerous drugs so
broad as to be unconstitutional. 36 A search warrant commanding peace officers to seize "a quantity of
loose heroin" has been held sufficiently particular. 37
Tested against the foregoing precedents, the description "an undetermined amount of marijuana" must
be held to satisfy the requirement for particularity in a search warrant. Noteworthy, what is to be seized
in the instant case is property of a specified character, i.e., marijuana, an illicit drug. By reason of its
character and the circumstances under which it would be found, said article is illegal. A further
description would be unnecessary and ordinarily impossible, except as to such character, the place, and
the circumstances. 38 Thus, this Court has held that the description "illegally in possession of
undetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride
(Shabu) and sets of paraphernalia" particularizes the things to be seized. 39
The search warrant in the present case, given its nearly similar wording, "undetermined amount of
marijuana or Indian hemp," in our view, has satisfied the Constitution's requirements on particularity of
description. The description therein is: (1) as specific as the circumstances will ordinarily allow; (2)
expresses a conclusion of fact not of law by which the peace officers may be guided in making the
search and seizure; and (3) limits the things to be seized to those which bear direct relation to the
offense for which the warrant is being issued. 40 Said warrant imposes a meaningful restriction upon the
objects to be seized by the officers serving the warrant. Thus, it prevents exploratory searches, which
might be violative of the Bill of Rights.
Appellant next assails the warrant for merely stating that he should be searched, as he could be guilty of
violation of REPUBLIC ACT NO. 6425. Appellant claims that this is a sweeping statement as said statute
lists a number of offenses with respect to illegal drugs. Hence, he contends, said warrant is a general
warrant and is thus unconstitutional.
For the appellee, the OSG points out that the warrant clearly states that appellant has in his possession

Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his failure to exhaustively
examine the applicant and his witness. Appellant points out that said magistrate should not have
swallowed all of Abratique's statements hook, line, and sinker. He points out that since Abratique
consented to assist in the transport of the marijuana, the examining judge should have elicited from
Abratique his participation in the crime and his motive for squealing on appellant. Appellant further
points out that the evidence of the NBI operative who applied for the warrant is merely hearsay and
should not have been given credit at all by Judge Reyes.

Again, the lack of factual basis for appellant's contention is apparent. The OSG points out that Abratique
personally assisted appellant in loading and transporting the marijuana to the latter's house and to
appellant's rented room at No. 27 Dr. Cario St., Baguio City. Definitely, this indicates personal
knowledge on Abratique's part. Law enforcers cannot themselves be eyewitnesses to every crime; they
are allowed to present witnesses before an examining judge. In this case, witness Abratique personally
saw and handled the marijuana. Hence, the NBI did not rely on hearsay information in applying for a
search warrant but on personal knowledge of the witness, Abratique.
Before a valid search warrant is issued, both the Constitution 45 and the 2000 Revised Rules of Criminal
Procedure 46 require that the judge must personally examine the complainant and his witnesses under
oath or affirmation. The personal examination must not be merely routinary or pro forma, but must be
probing and exhaustive. 47 In the instant case, it is not disputed that Judge Antonio Reyes personally
examined NBI Special Investigator III Darwin A. Lising, the applicant for the search warrant as well as his
witness, Danilo G. Abratique. Notes of the proceedings were taken by Atty. Delilah Muoz, Clerk of Court,
RTC of Baguio City, Branch 61, whom Judge Reyes had ordered to be summoned. In the letter of
transmittal of the Clerk of Court of the RTC of Baguio City, Branch 61 to Branch 6 of said court, mention is
made of "notes" at "pages 711." 48 We have thoroughly perused the records of Search Warrant No. 415
(7-98) and nowhere find said "notes." The depositions of Lising and Abratique were not attached to
Search Warrant No. 415 (7-98) as required by the Rules of Court. We must stress, however, that the
purpose of the Rules in requiring depositions to be taken is to satisfy the examining magistrate as to the
existence of probable cause. 49 The Bill of Rights does not make it an imperative necessity that
depositions be attached to the records of an application for a search warrant. Hence, said omission is not
necessarily fatal, for as long as there is evidence on the record showing what testimony was presented.
50 In the testimony of witness Abratique, Judge Reyes required Abratique to confirm the contents of his
affidavit; 51 there were instances when Judge Reyes questioned him extensively. 52 It is presumed that a
judicial function has been regularly performed, 53 absent a showing to the contrary. A magistrate's
determination of probable cause for the issuance of a search warrant is paid great deference by a
reviewing court, 54 as long as there was substantial basis for that determination. 55 Substantial basis

means that the questions of the examining judge brought out such facts and circumstances as would
lead a reasonably discreet and prudent man to believe that an offense has been committed, and the
objects in connection with the offense sought to be seized are in the place sought to be searched.

to be reset due to the failure or willful refusal of Abratique to testify against him. Appellant insists that
said lapse on the prosecution's part violated Supreme Court Circular No. 38-98. 65 Appellant now alleges
that the prosecution deliberately resorted to delaying the case to cause him untold miseries.

On record, appellant never raised the want of adequate depositions to support Warrant No. 415 (7-98) in
his motion to quash before the trial court. Instead, his motion contained vague generalities that Judge
Reyes failed to ask searching questions of the applicant and his witness. Belatedly, however, he now
claims that Judge Reyes perfunctorily examined said witness. 56 But it is settled that when a motion to
quash a warrant is filed, all grounds and objections then available, existent or known, should be raised in
the original or subsequent proceedings for the quashal of the warrant, otherwise they are deemed
waived. 57

For the appellee, the OSG points out that the two-month delay in the trial is not such a great length of
time as to amount to a violation of appellant's right to a speedy trial. A trial is always subject to
reasonable delays or postponements, but absent any showing that these delays are capricious and
oppressive, the State should not be deprived of a reasonable opportunity to prosecute the criminal
action.

In this case, NBI Special Investigator Lising's knowledge of the illicit drugs stored in appellant's house was
indeed hearsay. But he had a witness, Danilo Abratique, who had personal knowledge about said drugs
and their particular location. Abratique's statements to the NBI and to Judge Reyes contained credible
and reliable details. As the NBI's witness, Abratique was a person on whose statements Judge Reyes
could rely. His detailed description of appellant's activities with respect to the seized drugs was
substantial. In relying on witness Abratique, Judge Reyes was not depending on casual rumor circulating
in the underworld, but on personal knowledge Abratique possessed.

On record, the trial court found that prosecution witness Danilo G. Abratique failed to appear in no less
than eighteen (18) hearings, namely those set for February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22,
and 23; April 6, 7, 8, 16, and 19, all in 1999. 66 No less than four (4) warrants of arrest were issued
against him to compel him to testify. 67 The NBI agent who supposedly had him in custody was found
guilty of contempt of court for failing to produce Abratique at said hearings and sanctioned. 68 The
prosecution had to write the NBI Regional Director in Baguio City and NBI Director in Manila regarding
the failure of the Bureau's agents to bring Abratique to court. 69 Nothing on record discloses the reason
for Abratique's aforecited absences. On the scheduled hearing of June 7, 1999, he was again absent thus
causing the trial court to again order his arrest for the fifth time. 70 He also failed to show up at the
hearing of June 8, 1999. 71

In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held that:
The true test of sufficiency of a deposition or affidavit to warrant
issuance of a search warrant is whether it has been drawn in such a
manner that perjury could be charged thereon and affiant be held liable
for damages caused. 58
Appellant argues that the address indicated in the search warrant did not clearly indicate the place to be
searched. The OSG points out that the address stated in the warrant is as specific as can be. The NBI even
submitted a detailed sketch of the premises prepared by Abratique, thus ensuring that there would be
no mistake.
A description of the place to be searched is sufficient if the officer serving the warrant can, with
reasonable effort, ascertain and identify the place intended 59 and distinguish it from other places in the
community. 60 A designation or description that points out the place to be searched to the exclusion of
all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement
of definiteness.
Appellant finally harps on the use of unnecessary force during the execution of the search warrant.
Appellant fails, however, to point to any evidentiary matter in the record to support his contention.
Defense witness Cipriana Tee, appellant's mother, testified on the search conducted but she said nothing
that indicated the use of force on the part of the NBI operatives who conducted the search and seizure.
61 What the record discloses is that the warrant was served on appellant, 62 who was given time to read
it, 63 and the search was witnessed by the barangay officials, police operatives, members of the media,
and appellant's kith and kin. 64 No breakage or other damage to the place searched is shown. No injuries
sustained by appellant, or any witness, appears on record. The execution of the warrant, in our view, has
been orderly and peaceably performed. EHIcaT
2. On The Alleged Violation of Appellant's Substantive Rights
Appellant insists that the prosecution's unjustified and willful delay in presenting witness Abratique
unduly delayed the resolution of his case. He points out that a total of eight (8) scheduled hearings had

Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates
violated appellant's constitutional 72 and statutory right to a speedy trial.
A speedy trial means a trial conducted according to the law of criminal procedure and the rules and
regulations, free from vexatious, capricious, and oppressive delays. 73 In Conde v. Rivera and Unson, 45
Phil. 650, 652 (1924), the Court held that "where a prosecuting officer, without good cause, secures
postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in
this instance, for more than a year, the accused is entitled to relief by a proceeding in mandamus to
compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his
freedom."
The concept of speedy trial is necessarily relative. A determination as to whether the right has been
violated involves the weighing of several factors such as the length of the delay, the reason for the delay,
the conduct of the prosecution and the accused, and the efforts exerted by the defendant to assert his
right, as well as the prejudice and damage caused to the accused. 74
The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one
hundred eighty (180) days. 75 However, in determining the right of an accused to speedy trial, courts
should do more than a mathematical computation of the number of postponements of the scheduled
hearings of the case. 76 The right to a speedy trial is deemed violated only when: (1) the proceedings are
attended by vexatious, capricious, and oppressive delays; 77 or (2) when unjustified postponements are
asked for and secured; 78 or (3) when without cause or justifiable motive a long period of time is allowed
to elapse without the party having his case tried. 79

In the present case, although the absences of prosecution witness Abratique totaled twenty (20) hearing
days, there is no showing whatsoever that prosecution capriciously caused Abratique's absences so as to
vex or oppress appellant and deny him his rights. On record, after Abratique repeatedly failed to show up
for the taking of his testimony, the prosecution went to the extent of praying that the trial court order
the arrest of Abratique to compel his attendance at trial. The prosecution likewise tried to get the NBI to

produce Abratique as the latter was in the Bureau's custody, but to no avail. Eventually, the trial court
ordered the prosecution to waive its right to present Abratique and rest its case on the evidence already
offered. 80
Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of time. Delay of less
than two months has been found, in fact, to be not an unreasonably lengthy period of time. 81
Moreover, nothing on record shows that appellant Modesto Tee objected to the inability of the
prosecution to produce its witness. Under the Rules, appellant could have moved the trial court to
require that witness Abratique post bail to ensure that the latter would testify when required. 82
Appellant could have moved to have Abratique found in contempt and duly sanctioned. Appellant did
neither. It is a bit too late in the day for appellant to invoke now his right to speedy trial.
No persuasive reason supports appellant's claim that his constitutional right to speedy trial was violated.
One must take into account that a trial is always subject to postponements and other causes of delay.
But in the absence of a showing that delays were unreasonable and capricious, the State should not be
deprived of a reasonable opportunity of prosecuting an accused. 83
Appellant next contends that the trial court gravely abused its discretion, and exhibited partiality, when
it allowed the reopening of the case after the prosecution had failed to present Abratique on several
occasions and had been directed to rest its case. Appellant stresses that the lower court's order to
reopen the case to receive Abratique's further testimony is an indication that the trial court favored the
prosecution and unduly prejudiced appellant.
On appellee's behalf, the Solicitor General points out that the trial court's order was in the interest of
substantial justice and hence, cannot be termed as an abuse of discretion. The OSG points out that the
prosecution had not formally rested its case and had yet to present its formal offer of evidence, hence,
the submission of additional testimony by the same witness cannot be prejudicial to the accused, it being
but the mere continuation of an uncompleted testimony. Furthermore, appellant did not properly
oppose the prosecution's motion to reopen the case.
At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985 Rules of Criminal
Procedure were in effect. There was no specific provision at that time governing motions to reopen. 84
Nonetheless, long and established usage has led to the recognition and acceptance of a motion to
reopen. In view of the absence of a specific procedural rule, the only controlling guideline governing a
motion to reopen was the paramount interests of justice. As a rule, the matter of reopening of a case for
reception of further evidence after either prosecution or defense has rested its case is within the
discretion of the trial court. 85 However, a concession to a reopening must not prejudice the accused or
deny him the opportunity to introduce counter evidence. 86
Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to
reopen may properly be presented only after either or both parties have formally offered and closed
their evidence, but before judgment. 87 In the instant case, the records show that on April 19, 1999, the
prosecution was directed to close its evidence and given 15 days to make its formal offer of evidence. 88
This order apparently arose from the manifestation of the prosecution on April 16, 1999 that should they
fail to produce witness Abratique on the next scheduled hearing the prosecution would rest its case. 89
On April 19, 1999, which was the next scheduled hearing after April 16, 1999, Abratique was absent
notwithstanding notices, orders, and warrants of arrest. However, on April 27, 1999, or before the
prosecution had formally offered its evidence, Abratique was brought to the trial court by the NBI. In its
order of said date, the trial court pointed out that the prosecution could move to "reopen" the case for
the taking of Abratique's testimony. 90 On May 7, 1999, the prosecution so moved, stressing that it had
not yet formally offered its evidence and that the substantial rights of the accused would not be

prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed no opposition to the
motion. The trial court granted the motion six days later. Plainly, there was nothing to reopen, as the
prosecution had not formally rested its case. Moreover, the taking of Abratique's testimony was not for
the purpose of presenting additional evidence, but more properly for the completion of his unfinished
testimony. In U.S. vs. Base, 91 we held that a trial court is not in error, if it opts to reopen the
proceedings of a case, even after both sides had rested and the case submitted for decision, by the
calling of additional witnesses or recalling of witnesses so as to satisfy the judge's mind with reference to
particular facts involved in the case. A judge cannot be faulted should he require a material witness to
complete his testimony, which is what happened in this case. It is but proper that the judge's mind be
satisfied on any and all questions presented during the trial, in order to serve the cause of justice.
Appellant's claim that the trial court's concession to "reopen" the case unduly prejudiced him is not well
taken. We note that appellant had every opportunity to present his evidence to support his case or to
refute the prosecution's evidence point-by-point, after the prosecution had rested its case. In short,
appellant was never deprived of his day in court. A day in court is the touchstone of the right to due
process in criminal justice. 92 Thus, we are unable to hold that a grave abuse of discretion was
committed by the trial court when it ordered the so-called "reopening" in order to complete the
testimony of a prosecution witness.
3. On the Sufficiency of the Prosecution's Evidence
In bidding for acquittal, appellant assails the credibility of Abratique as a witness. Appellant insists that
Abratique's testimony is profuse with lies, contrary to human nature, hence incredible. According to
appellant, Abratique was evasive from the outset with respect to certain questions of the trial court. He
adds that it appeared the court entertained in particular the suspicion that witness Abratique had
conspired with appellant in committing the crime charged. Appellant questions Abratique's motive in
informing the NBI about his activities related to the marijuana taking, transfer, and warehousing.
The OSG contends that Abratique's testimony, taken as a whole, is credible. It points out that Abratique
testified in a straightforward manner as to his knowledge of the huge cache of prohibited drugs stashed
by appellant in two different places. His testimony, said the OSG, when fused with the physical evidence
consisting of 591.81 kilograms of marijuana found by law enforcers at appellant's residence, inexorably
leads to the inculpation of appellant.
It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent
person is made to suffer the unusually severe penalties meted out for drug offenses. 93 Though we
scrutinized minutely the testimony of Abratique, we find no cogent reason to disbelieve him. From his
account, Abratique might appear aware treading the thin line between innocence and feeling guilty, with
certain portions of his story tending to be self-exculpatory. However, his whole testimony could not be
discredited. The established rule is that testimony of a witness may be believed in part and disbelieved in
other parts, depending on the corroborative evidence and the probabilities and improbabilities of the
case. But it is accepted, as a matter of common sense, that if certain parts of a witness' testimony are
found true, his testimony cannot be disregarded entirely. 94
Abratique testified in open court that appellant rented the taxicab he was driving, and he helped
appellant transport huge amounts of marijuana to appellant's rented room at No. 27 Dr. Cario St.,
Baguio City and to appellant's residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He
also declared on the witness stand that out of fear of being involved, he decided to divulge his
knowledge of appellant's possession of large caches of marijuana to the NBI. When the places referred to
by Abratique were searched by the authorities, marijuana in staggering quantities was found and seized
by the law enforcers. Stated plainly, the physical evidence in this case corroborated Abratique's
testimony on material points.

Appellant imputes questionable motives to Abratique in an effort to discredit him. He demands that
Abratique should likewise be prosecuted. However, by no means is the possible guilt of Abratique a
tenable defense for appellant. Nor would Abratique's prosecution mean appellant's absolution.
In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral
certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2)
that such possession is not authorized by law; and (3) that the accused freely and consciously possessed
the said drug. 95

We find the foregoing elements proven in Criminal Case No. 15800-R beyond reasonable doubt.
In said case, the testimony of Abratique and the recovery of 591.81 kilograms of marijuana from
appellant's residence served to prove appellant's possession of a prohibited drug. Tests conducted by the
NBI forensic chemist proved the seized articles to be marijuana. These articles were seized pursuant to a
valid search warrant and hence, fully admissible in evidence.
In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally
to all persons and proscribes the sale of dangerous drugs by any person, and no person is authorized to
sell such drugs. Said doctrine is equally applicable with respect to possession of prohibited drugs.
REPUBLIC ACT NO. 6425, which penalizes the possession of prohibited drugs, applies equally to all
persons in this jurisdiction and no person is authorized to possess said articles, without authority of law.
Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be
with knowledge of the accused or that animus possidendi existed together with the possession or control
of said articles. 96 Nonetheless, this dictum must be read in consonance with our ruling that possession
of a prohibited drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient
to convict an accused absent a satisfactory explanation of such possession. 97 In effect, the onus
probandi is shifted to accused to explain the absence of knowledge or animus possidendi 98 in this
situation.
Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his mother as his lone
witness, who testified on matters totally irrelevant to his case. We can only conclude that, failing to
discharge the burden of the evidence on the possession of prohibited drug, appellant's guilt in Criminal
Case No. 15800-R was established beyond reasonable doubt.

marijuana during the trial was made in the NBI premises itself by the
witnesses since it was physically cumbersome and inconvenient to keep
bringing them to the court during every trial. 101
In sentencing appellant to death, the trial court noted not only the huge quantity of marijuana bales
involved, but also "the acts of accused of hiding them in different places . . . and transferring them from
place to place and making them appear as boxes of cigarettes to avoid and evade apprehension and
detection." They showed his being a big supplier, said the trial court, [whose] criminal perversity and
craft that "deserve the supreme penalty of death." 102
We are unable to agree, however, with the penalty imposed by the trial court. The legislature never
intended that where the quantity involved exceeds those stated in Section 20 of REPUBLIC ACT NO. 6425
the maximum penalty of death shall automatically be imposed. 103 The statute prescribes two indivisible
penalties: reclusion perpetua and death. Hence, the penalty to be imposed must conform with Article 63
104 of the Revised Penal Code. As already held, the death penalty law, Republic Act No. 7659 did not
amend Article 63 of the Revised Penal Code. 105 The rules in Article 63 apply although the prohibited
drugs involved are in excess of the quantities provided for in Section 20 of REPUBLIC ACT NO. 6425. 106
Thus, finding neither mitigating nor aggravating circumstances in the present case, appellant's
possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R, does not merit capital
punishment but only the lesser penalty of reclusion perpetua.
The trial court imposed a fine on appellant in the sum of One Million Pesos (P1,000,000.00), without
subsidiary imprisonment in case of insolvency. The imposition of a fine is mandatory in cases of
conviction of possession of illegal drugs. This being within the limits allowed by the law, the amount of
the fine must be sustained. All these sanctions might not remedy all the havoc wrought by prohibited
drugs on the moral fiber of our society, especially the youth. 107 But these penalties should warn
peddlers of prohibited drugs that they cannot ply their trade in our streets with impunity.
WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No.
15800-R, convicting appellant MODESTO TEE alias "ESTOY" TEE of violation of Section 8 of REPUBLIC ACT
NO. 6425, as amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to
suffer the penalty of reclusion perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on
him is sustained. Appellant is likewise directed to pay the costs of suit. IEHTaA
SO ORDERED.
||| (People v. Tee, G.R. Nos. 140546-47, January 20, 2003)

4. On The Proper Penalty

Under REPUBLIC ACT NO. 6425 as amended by Republic Act No. 7659, the penalty of reclusion perpetua
to death and a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos
(P10,000,000.00) 99 shall be imposed if the quantity of marijuana involved in a conviction for possession
of marijuana or Indian hemp shall be 750 grams or more. 100
In the present case, the quantity of marijuana involved has been shown by the prosecution to be far in
excess of 750 grams, as stressed by the trial court:
The volume is rather staggering. It is almost one whole house or one
whole room. In fact, when they were first brought to the court, it took
hours to load them on the truck and hours also to unload them
prompting the court to direct that the boxes and sack of marijuana be
instead kept at the NBI office in Baguio. And the identification of said

AURELIA CONDE, petitioner, vs. PABLO RIVERA, acting provincial fiscal

of Tayabas, and FEDERICO M. UNSON, justice of the peace of Lucena,
Tayabas, respondents.

Godofredo Reyes for petitioner.

Attorney-General Villa-Real for respondents
SYLLABUS

1. CONSTITUTIONAL LAW; CRIMINAL PROCEDURE; SPEEDY TRIAL. Philippine

organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall
enjoy the right to have a speedy trial.
2. ID.; ID. The Government of the Philippine Islands should be the last to set an
example of delay and oppression in the administration of justice.
3. ID.; ID.; ID.; MANDAMUS; HABEAS CORPUS. WHERE A Prosecuting officer,
without good cause, secures postponements of the trial of a defendant against his protest
beyond a reasonable period of time, as in this instance for more than a year, the accused is
entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he
be restrained of his liberty, by habeas corpus to obtain his freedom.
DECISION

MALCOLM, J p:
Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced
to respond to no less the five information for various crimes and misdemeanors, has appeared
with her witnesses and counsel at hearings no less than on eight different occasions only to see
the cause postponed, has twice been required to come to the Supreme Court for protection, and
now, after the passage of more than one year from the time when the first information was filed,
seems as far away from a definite resolution of her troubles as she was when originally charged.
Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other
accused persons, has a right to a speedy trial in order that if innocent she may go free, and she
has been deprived of that right in defiance of law. Dismissed from her humble position, and
compelled to dance attendance on courts while investigations and trials are arbitrarily postponed
without her consent, is pal palpably and openly unjust to her and a detriment to the public. By
the use of upon the appropriate information, could have attended to the formal preliminary
examination, and could have prepared the case for a trial free from vexatious, capricious, and
oppressive delays.
Once before, as intimated, the petitioner had to come to us for redress of her
grievances. We thought then we had pointed out the way for the parties. We hope propose to do
all in our power to assist this poor woman to obtain justice. On the one hand has been the
petitioner, of humble station, without resources, but fortunately assisted by a persistent lawyer,
while on the other hand has been the Government of the Philippine Island s which should be the
last to set an example of delay and oppression in the administration of justice. The Court is thus
under a moral and legal obligation to see that these proceedings come to an end and that the
accused is discharged from the custody of the law.
We lay down the legal proposition that, where a prosecuting officer, without good
cause, secures postponements of the trial of a defendant against his protest beyond a reasonable
period of time, as in this instance for more than a year, the accused is entitled to relief by a
proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his
liberty, by habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911],
160 Cal., 334; U.S. vs. Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs.
Judge of First Instance, Fourteenth Judicial District, and the Provincial Fiscal of Tayabas, No.

21236. 1
The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain
from further attempts to prosecute the accused pursuant to informations growing out of the
facts set forth in previous in formations, and the charges now pending before the justice of the of
Lucena, Tayabas, are ordered dismissed, with costs against the respondent fiscal. We append to
our order the observation that, without doubt, the Attorney-General, being fully cognizant of the
facts of record, will take such administrative action as to him seems proper to the end that
incidents of this character may not recur. So ordered.
||| (Conde v. Rivera, G.R. No. 21741, January 25, 1924)
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE
SANDIGANBAYAN OF THE PLUNDER CASES AGAINST FORMER
PRESIDENT JOSEPH E. ESTRADA

SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA

BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO, and
ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and
INTEGRATED BAR OF THE PHILIPPINES, oppositors.

Fortun Narvasa & Salazar Law Offices and Saguisag and Associates Law Offices for J. Estrada.
SYNOPSIS

This is a motion for reconsideration of the decision of the Court denying

petitioners' request for permission to televise and broadcast live the trial of former President
Joseph E. Estrada before the Sandiganbayan. This motion was filed by the Secretary of Justice, as
one of the petitioners, who argued that there is really no conflict between the right of the people
to public information and the freedom of the press, on one hand, and, on the other, the right of
the accused to a fair trial. He further elaborated that if there is a clash between these rights, it
must be resolved in favor of the right of the people and the press because the people, as the
repository of sovereignty, are entitled to information, and live media coverage is a safeguard
against attempts by any party to use the courts as instruments for the pursuit of selfish interests.
On the other hand, former President Joseph E. Estrada reiterated his objection to the live TV and
radio coverage of his trial on the ground that its allowance will violate the sub judice rule. ETHSAI
The Court ruled that considering the significance of the trial before the
Sandiganbayan of former President Estrada and the importance of preserving the records thereof,
the Court believes that there should be an audio-visual recording of the proceedings. The
recordings will not be for live or real time broadcast but for documentary purposes. Only later will
they be available for public showing, after the Sandiganbayan shall have promulgated its decision
in every case to which the recording pertains. The master film shall be deposited in the National
Museum and in the Records Management and Archives Office for historical preservation and
exhibition pursuant to law.
SYLLABUS

1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF PEOPLE TO INFORMATION ON

MATTERS OF PUBLIC CONCERN; AUDIO-VISUAL RECORDING OF THE PLUNDER CASES AGAINST FORMER
PRESIDENT JOSEPH E. ESTRADA WILL BE FOR DOCUMENTARY PURPOSES ONLY. Considering the
significance of the trial before the Sandiganbayan of former President Estrada and the importance of
preserving the records thereof, the Court believes that there should be an audio-visual recording of the
proceedings. The recordings will not be for live or real time broadcast but for documentary purposes.
Only later will they be available for public showing, after the Sandiganbayan shall have promulgated its
decision in every case to which the recording pertains. The master film shall be deposited in the National
Museum and the Records Management and Archives Office for historical preservation and exhibition
pursuant to law.
2. ID.; ID.; ID.; ID.; ID.; RULES FOR AUDIO-VISUAL RECORDING INSIDE THE COURTROOM. For the
purpose of recording the proceedings, cameras will be inconspicuously installed in the courtroom and
the movement of TV crews will be regulated, consistent with the dignity and solemnity of the
proceedings. The trial shall be recorded in its entirety, except such portions thereof as the
Sandiganbayan may decide should not be held public pursuant to Rule 119, 21 of the Revised Rules of
Criminal Procedure. No comment shall be included in the documentary except annotations which may be
necessary to explain certain scenes which are depicted. The audio-visual recordings shall be made under
the supervision and control of the Sandiganbayan or its Division as the case may be.
3. ID.; ID.; ID.; ID.; ID.; REASONS FOR TELEVISED RECORDING. There are several reasons for such
televised recording. First, the hearings are of historic significance. They are an affirmation of our
commitment to the rule that "the King is under no man, but he is under God and the law." (Quod Rex non
debet esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases involve matters of vital concern
to our people who have a fundamental right to know how their government is conducted. This right can
be enhanced by audio-visual presentation. Third, audio-visual presentation is essential for the education
and civic training of the people. Above all, there is the need to keep audio-visual records of the hearings
for documentary purposes. The recordings will be useful in preserving the essence of the proceedings in
a way that the cold print cannot quite do because it cannot capture the sights and sounds of events.
They will be primarily for the use of appellate courts in the event a review of the proceedings, rulings, or
decisions of the Sandiganbayan is sought or becomes necessary. The accuracy of the transcripts of
stenographic notes taken during the trial can be checked by reference to the tapes. SEIacA
4. ID.; ID.; ID.; ID.; ID.; PURPOSE FOR THE DELAY OF THE RELEASE OF THE TAPES FOR BROADCAST. On
the other hand, by delaying the release of the tapes for broadcast, concerns that those taking part in the
proceedings will be playing to the cameras and will thus be distracted from the proper performance of
their roles whether as counsel, witnesses, court personnel, or judges will be allayed. The possibility
that parallel trials before the bar of justice and the bar of public opinion may jeopardize, or even prevent,
the just determination of the cases can be minimized. The possibility that judgment will be rendered by
the popular tribunal before the court of justice can render its own will be avoided. At the same time,
concerns about the regularity and fairness of the trial which, it may be assumed, is the concern of
those opposed to, as much as of those in favor of, televised trials will be addressed since the tapes will
not be released for public showing until after the decision of the cases by the Sandiganbayan. By delaying
the release of the tapes, much of the problem posed by real time TV and radio broadcast will be avoided.
5. ID.; ID.; ID.; ID.; ID.; RIGHT OF PRIVACY OF THE ACCUSED IS NOT A BAR TO THE PRODUCTION OF SUCH
DOCUMENTARY. Nor is the right of privacy of the accused a bar to the production of such
documentary. In Ayer Productions Pty. Ltd. v. Capulong, this Court set aside a lower court's injunction
restraining the filming of "Four Day Revolution," a documentary film depicting, among other things, the
role of then Minister of National Defense Juan Ponce Enrile in the 1986 EDSA people power. This Court
held: "A limited intrusion into a person's privacy has long been regarded as permissible where that
person is a public figure and the information sought to be elicited from him or to be published about him

constitute matters of a public character."

6. ID.; ID.; ID.; ID.; MAKING OF A MOVIE BASED ON THE TRIAL COULD NOT BE PREVENTED. No one can
prevent the making of a movie based on the trial. But, at least, if a documentary record is made of the
proceedings, any movie that may later be produced can be checked for its accuracy against such
documentary and any attempt to distort the truth can thus be averted.
7. ID.; ID.; ID.; ID.; DOCUMENTARY RECORDING OF CELEBRATED CASES; EXPLAINED. Indeed, a
somewhat similar proposal for documentary recording of celebrated cases or causes clbres was made
way back in 1971 by Paul Freund of the Harvard Law School. As he explained: "In fairness let me refer to
an American experience many of my lay friends found similarly moving. An educational television
network filmed a trial in Denver of a Black Panther leader on charges of resisting arrest, and broadcast
the document in full, in four installments, several months after the case was concluded concluded
incidentally, with a verdict of acquittal. No one could witness the trial without a feeling of profound
respect for the painstaking way in which the truth was searched for, for the ways whereby law copes
with uncertainties and ambiguities through presumptions and burden of proof, and the sense of gravity
with which judge and jury carried out their responsibilities. I agree in general with the exclusion of
television from the courtroom, for the familiar good reasons. And yet the use of television at a trial for
documentary purposes, not for the broadcast of live news, and with the safeguards of completeness and
consent, is an educational experiment that I would be prepared to welcome. Properly safeguarded and
with suitable commentary, the depiction of an actual trial is an agency of enlightenment that could have
few equals in its impact on the public understanding. Understanding of our legal process, so rarely
provided by our educational system, is now a desperate need." Professor Freund's observation is as valid
today as when it was made thirty years ago. It is perceptive for its recognition of the serious risks posed
to the fair administration of justice by live TV and radio broadcasts, especially when emotions are
running high on the issues stirred by a case, while at the same time acknowledging the necessity of
keeping audio-visual recordings of the proceedings of celebrated cases, for public information and
exhibition, after passions have subsided.
8. ID.; ID.; ID.; ID.; CONDITIONS FOR AUDIO-VISUAL RECORDING OF THE TRIAL. [A]n audio-visual
recording of the trial of former President Estrada before the Sandiganbayan is hereby ordered to be
made, for the account of the Sandiganbayan, under the following conditions: (a) the trial shall be
recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not
be held public under Rule 119, 21 of the Rules of Criminal Procedure; (b) cameras shall be installed
inconspicuously inside the courtroom and the movement of TV crews shall be regulated consistent with
the dignity and solemnity of the proceedings; (c) the audio-visual recordings shall be made for
documentary purposes only and shall be made without comment except such annotations of scenes
depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings before the
Sandiganbayan shall have rendered its decision in all the cases against the former President shall be
prohibited under pain of contempt of court and other sanctions in case of violations of the prohibition;
(e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be
made under the supervision and control of the Sandiganbayan or its Division concerned and shall be
made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be deposited in the National Museum and the
Records Management and Archives Office for preservation and exhibition in accordance with law.

VITUG, J., Separate Opinion:

1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; NOT DIMINISHED BY
ADVANCES IN SCIENCE AND TECHNOLOGY. Due process is timeless. It is a precious fundamental right

that secures and protects, under a rule of law, the life and liberty of a person from the oppression of
power. A cherished fixture in our bill of rights, its encompassing guarantee will not be diminished by
advances in science and technology.

MENDOZA, J p:

2. ID.; ID.; ID.; RIGHT OF PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN; CAN BE
ACHIEVED VIA OTHER MEDIA COVERAGE OTHER THAN LIVE RADIO/TV COVERAGE. I see it as being an
implicit retreat, unwisely, from an age-old struggle of the individual against the tyranny of the sovereign.
The right of the public to information, in any event, is not here really being sacrificed. The right to know
can very well be achieved via other media coverage; the windows of information through which the
public might observe and learn are not closed.

This is a motion for reconsideration of the decision denying petitioners' request for permission to
televise and broadcast live the trial of former President Estrada before the Sandiganbayan. The motion
was filed by the Secretary of Justice, as one of the petitioners, who argues that there is really no conflict
between the right of the people to public information and the freedom of the press, on the one hand,
and, on the other, the right of the accused to a fair trial; that if there is a clash between these rights, it
must be resolved in favor or of the right of the people and the press because the people, as the
repository of sovereignty, are entitled to information; and that live media coverage is a safeguard against
attempts by any party to use the courts as instruments for the pursuit of selfish interests. STCDaI

3. ID.; ID.; ID.; ID.; ID.; AUDIO-VISUAL RECORDING OF THE PLUNDER CASES AGAINST FORMER PRESIDENT
JOSEPH E. ESTRADA WILL BE FOR DOCUMENTARY PURPOSES ONLY; REASONS. In addressing the
present motion for reconsideration, colleagues on the Court opine that there should be an audio-visual
recording of the proceedings for documentary purposes because, first, the hearings are of historic
significance; second, the Estrada cases involve matters of vital concern to our people who have a
fundamental right to know how their government works; third, the audio-visual presentation is essential
for education and civic training of the people; and fourth, such recording can be used by appellate courts
in the event that the review of the proceedings, ruling, or decisions of the Sandiganbayan is sought or
becomes necessary.

On the other hand, former President Joseph E. Estrada reiterates his objection to the live TV and radio
coverage of his trial on the ground that its allowance will violate the sub judice rule and that, based on
his experience with the impeachment trial, live media coverage will only pave the way for so-called
"expert commentary" which can trigger massive demonstrations aimed at pressuring the Sandiganbayan
to render a decision one way or the other. Mr. Estrada contends that the right of the people to
information may be served through other means less distracting, degrading, and prejudicial than live TV
and radio coverage.

4. ID.; ID.; ID.; ID.; ID.; EXPERIENCE ATTESTS TO THE INTIMIDATING EFFECT OF CAMERAS AND
ELECTRONIC DEVICES IN COURTROOMS. The proposition has novel features; regrettably, I still find it
hard to believe that the presence of the cameras inside the courtroom will not have an untoward impact
on the court proceedings. No empirical data has been shown to suggest otherwise. To the contrary,
experience attests to the intimidating effect of cameras and electronic devices in courtrooms on the
litigants, witnesses and jurors. In addition, the natural reticence of witnesses at the stand can even easily
be exacerbated by placing them on camera in contravention of normal experience. The demeanor of the
witnesses can also have an abstruse effect on the ability of the judge to accurately assess the credibility
of such witnesses. The presence of cameras, for whatever reason, may not adequately address the
dangers mentioned in the Court's decision of 29 June 2001. There are just too many imponderables.

In lieu of live TV and radio coverage of the trial, the Court, by the vote of eight (8) Justices, 2 has resolved
to order the audio-visual recording of the trial for documentary purposes. Seven (7) Justices 3 vote
against the audio-visual recording of the trial.

The Court has considered the arguments of the parties on this important issue and, after due
deliberation, finds no reason to alter or in any way modify its decision prohibiting live or real time
broadcast by radio or television of the trial of the former president. By a vote of nine (9) to six (6) of its
members, 1 the Court denies the motion for reconsideration of the Secretary of Justice.

What follows is the opinion of the majority.

5. ID.; ID.; ID.; ID.; ID.; IT IS NOT PRIVACY THAT CAN CAUSE CONCERN MORE THAN THE EROSION OF
REALITY THAT CAMERAS TEND TO CAST. Most importantly, it does not seem right to single out and
make a spectacle of the cases against Mr. Estrada. Dignity is a precious part of personality innate in every
human being, and there can be no cogent excuse for impinging it even to the slightest degree. It is not
the problem of privacy that can cause concern more than the erosion of reality that cameras tend to cast.
TcEDHa

Considering the significance of the trial before the Sandiganbayan of former President Estrada and the
importance of preserving the records thereof, the Court believes that there should be an audio-visual
recording of the proceedings. The recordings will not be for live or real time broadcast but for
documentary purposes. Only later will they be available for public showing, after the Sandiganbayan
shall have promulgated its decision in every case to which the recording pertains. The master film shall
be deposited in the National Museum and the Records Management and Archives Office for historical
preservation and exhibition pursuant to law. 4

6. ID.; ID.; ID.; ID.; ID.; THE RULE MUST BE OF GENERAL APPLICATION. In the petition, albeit entitled an
administrative matter, the only issue raised is whether the cases of a former President pending before
the Sandiganbayan can be covered by live television and radio broadcast. The matter now being sought
to be addressed by my esteemed colleagues is not even an issue. If it has to be considered at all, the rule
must be of general application and promulgated after a thorough study and deliberation, certainly far
more than what have been said and done in this case. Hearings, where expert opinion is sought and
given, should prove to be helpful and of value.

For the purpose of recording the proceedings, cameras will be inconspicuously installed in the courtroom
and the movement of TV crews will be regulated, consistent with the dignity and solemnity of the
proceedings. The trial shall be recorded in its entirety, except such portions thereof as the
Sandiganbayan may decide should not be held public pursuant to Rule 119, 21 of the Revised Rules of
Criminal Procedure. No comment shall be included in the documentary except annotations which may be
necessary to explain certain scenes which are depicted. The audio-visual recordings shall be made under
the supervision and control of the Sandiganbayan or its Division as the case may be.

RESOLUTION

There are several reasons for such televised recording. First, the hearings are of historic significance.
They are an affirmation of our commitment to the rule that "the King is under no man, but he is under
God and the law." (Quod Rex non debet esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases
involve matters of vital concern to our people who have a fundamental right to know how their
government is conducted. This right can be enhanced by audio-visual presentation. Third, audio-visual

presentation is essential for the education and civic training of the people.

presumptions and burden of proof, and the sense of gravity with which
judge and jury carried out their responsibilities.

Above all, there is the need to keep audio-visual records of the hearings for documentary purposes. The
recordings will be useful in preserving the essence of the proceedings in a way that the cold print cannot
quite do because it cannot capture the sights and sounds of events. They will be primarily for the use of
appellate courts in the event a review of the proceedings, rulings, or decisions of the Sandiganbayan is
sought or becomes necessary. The accuracy of the transcripts of stenographic notes taken during the
trial can be checked by reference to the tapes.

I agree in general with the exclusion of television from the courtroom,

for the familiar good reasons. And yet the use of television at a trial for
documentary purposes, not for the broadcast of live news, and with the
safeguards of completeness and consent, is an educational experiment
that I would be prepared to welcome. Properly safeguarded and with
suitable commentary, the depiction of an actual trial is an agency of
enlightenment that could have few equals in its impact on the public
understanding.

On the other hand, by delaying the release of the tapes for broadcast, concerns that those taking part in
the proceedings will be playing to the cameras and will thus be distracted from the proper performance
of their roles whether as counsel, witnesses, court personnel, or judges will be allayed. The
possibility that parallel trials before the bar of justice and the bar of public opinion may jeopardize, or
even prevent, the just determination of the cases can be minimized. The possibility that judgment will be
rendered by the popular tribunal before the court of justice can render its own will be avoided.
At the same time, concerns about the regularity and fairness of the trial which, it may be assumed, is
the concern of those opposed to, as much as of those in favor of, televised trials will be addressed
since the tapes will not be released for public showing until after the decision of the cases by the
Sandiganbayan. By delaying the release of the tapes, much of the problem posed by real time TV and
radio broadcast will be avoided.
Thus, many important purposes for preserving the record of the trials can be served by audio-visual
recordings without impairing the right of the accused to a fair trial.
Nor is the right of privacy of the accused a bar to the production of such documentary. In Ayer
Productions Pty. Ltd. v. Capulong, 5 this Court set aside a lower court's injunction restraining the filming
of "Four Day Revolution," a documentary film depicting, among other things, the role of then Minister of
National Defense Juan Ponce Enrile in the 1986 EDSA. people power. This Court held: "A limited intrusion
into a person's privacy has long been regarded as permissible where that person is a public figure and
the information sought to be elicited from him or to be published about him constitute matters of a
public character." 6

No one can prevent the making of a movie based on the trial. But, at least, if a documentary record is
made of the proceedings, any movie that may later be produced can be checked for its accuracy against
such documentary and any attempt to distort the truth can thus be averted.
Indeed, a somewhat similar proposal for documentary recording of celebrated cases or causes clbres
was made way back in 1971 by Paul Freund of the Harvard Law School. As he explained:

Understanding of our legal process, so rarely provided by our

educational system, is now a desperate need. 7
Professor Freund's observation is as valid today as when it was made thirty years ago. It is perceptive for
its recognition of the serious risks posed to the fair administration of justice by live TV and radio
broadcasts, especially when emotions are running high on the issues stirred by a case, while at the same
time acknowledging the necessity of keeping audio-visual recordings of the proceedings of celebrated
cases, for public information and exhibition, after passions have subsided.
WHEREFORE, an audio-visual recording of the trial of former President Estrada before the Sandiganbayan
is hereby ordered to be made, for the account of the Sandiganbayan, under the following conditions: (a)
the trial shall be recorded in its entirety, excepting such portions thereof as the Sandiganbayan
determine should not be held public under Rule 119, 21 of the Rules of Criminal Procedure; (b) cameras
shall be installed inconspicuously inside the courtroom and the movement of TV crews shall be regulated
consistent with the dignity and solemnity of the proceedings; (c) the audio-visual recordings shall be
made for documentary purposes only and shall be made without comment except such annotations of
scenes depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings
before the Sandiganbayan shall have rendered its decision in all the cases against the former President
shall be prohibited under pain of contempt of court and other sanctions in case of violations of the
prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings
shall be made under the supervision and control of the Sandiganbayan or its Division concerned and shall
be made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be deposited in the National Museum and the
Records Management and Archives Office for preservation and exhibition in accordance with law.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Panganiban and Gonzaga-Reyes, JJ., concur.
Bellosillo, J., I am for full live coverage hence I maintain my original view; nevertheless, I concur.

In fairness let me refer to an American experience many of my lay

friends found similarly moving. An educational television network
filmed a trial in Denver of a Black Panther leader on charges of resisting
arrest, and broadcast the document in full, in four installments, several
months after the case was concluded concluded incidentally, with a
verdict of acquittal.
No one could witness the trial without a feeling of profound respect for
the painstaking way in which the truth was searched for, for the ways
whereby law copes with uncertainties and ambiguities through

Vitug, J., pls. see Separate Opinion.

Kapanun, J., I maintain my original view prohibiting live T.V. and radio coverage and concur with the
separate opinion of Justice Vitug.
Quisumbing, J., although earlier I respectfully Dissented, as I favor live TV coverage I now concur in the
Result.
Pardo, J., I concur with the denial of the motion for reconsideration only. The conditions are inadequate.

I join J. Vitug's opinion.

cogent excuse for impinging it even to the slightest degree. It is not the problem of privacy that can
cause concern more than the erosion of reality that cameras tend to cast.

Buena, Ynares-Santiago and De Leon, JJ., concur with the Separate Opinion of Justice Vitug.
Sandoval-Gutierrez, J., I concur but only in the denial with finality of the MR.
Separate Opinions

VITUG, J p:
Due process is timeless. It is a precious fundamental right that secures and protects, under a rule of law,
the life and liberty of a person from the oppression of power. A cherished fixture in our bill of rights, its
encompassing guarantee will not be diminished by advances in science and technology. I fail to perceive
it to be otherwise.

In the petition, albeit entitled an administrative matter, the only issue raised is whether the cases of a
former President pending before the Sandiganbayan can be covered by live television and radio
broadcast. The matter now being sought to be addressed by my esteemed colleagues is not even an
issue. If it has to be considered at all, the rule must be of general application and promulgated after a
thorough study and deliberation, certainly far more than what have been said and done in this case.
Hearings, where expert opinion is sought and given, should prove to be helpful and of value.
WHEREFORE, I concur but only in the denial with finality of the motion for reconsideration.
||| (Perez v. Estrada, A.M. No. 01-4-03-SC (Resolution), September 13, 2001)
THE UNITED STATES, plaintiff-appellee, vs. LAZARO JAVIER ET AL.,
defendants-appellants.

Precisely, in its 29th June 2001 decision, the Court did not consider it propitious to allow live television
and radio coverage of the trial in order to help ensure a just and fair trial. The Court felt it judicious to
insulate not only the Sandiganbayan but also the trial participants, the lawyers and witnesses, from being
unduly influenced by possible adverse effects that such a coverage could bring. Petitioner filed a motion
for reconsideration of the above ruling and countered that, if one must be pitted against the other, the
right to public information of grave national interest should be held more paramount than the right of
the accused to a "fair and public trial," the former being appurtenant to the sovereign and the latter
being merely a privilege bestowed to an individual.
I am not ready to accept such a notion. I see it as being an implicit retreat, unwisely, from an age-old
struggle of the individual against the tyranny of the sovereign. 1 The right of the public to information, in
any event, is not here really being sacrificed. The right to know can very well be achieved via other media
coverage; the windows of information through which the public might observe and learn are not closed.
IATHaS
In addressing the present motion for reconsideration, colleagues on the Court opine that there should be
an audio-visual recording of the proceedings for documentary purposes because, first, the hearings are
of historic significance; second, the Estrada cases involve matters of vital concern to our people who
have a fundamental right to know how their government works; third, the audio-visual presentation is
essential for education and civic training of the people; and fourth, such recording can be used by
appellate courts in the event that the review of the proceedings, ruling, or decisions of the
Sandiganbayan is sought or becomes necessary. 2
The proposition has novel features; regrettably, I still find it hard to believe that the presence of the
cameras inside the courtroom will not have an untoward impact on the court proceedings. No empirical
data has been shown to suggest otherwise. To the contrary, experience attests to the intimidating effect
of cameras and electronic devices in courtrooms on the litigants, witnesses and jurors. 3 In addition, the
natural reticence of witnesses at the stand can even easily be exacerbated by placing them on camera in
contravention of normal experience. 4 The demeanor of the witnesses can also have an abstruse effect
on the ability of the judge to accurately assess the credibility of such witnesses. 5 The presence of
cameras, for whatever reason, may not adequately address the dangers mentioned in the Court's
decision of 29 June 2001. There are just too many imponderables.

Modesto Castillo, Eusebio Lopez and G.N. Trinidad for appellants.

Acting Attorney-General Paredes for appellee.
SYLLABUS

1. THEFT OF LARGE CATTLE; PROOF. A carabao, seen in the possession of the

accused and later found tied in front of a house, was identified as the carabao, which had been
taken from the corral of Doroteo Natividad. Held: That the accused having offered no satisfactory
explanation for their possession of the carabao, they can properly be convicted of the crime of
theft.
2. CONSTITUTIONAL LAW; CONFRONTATION OF WITNESSES. There are two
principal reasons for the provision of the Philippine Bill of Rights which says: "That in all criminal
prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face." The first
reason is the right of cross-examination, and the second is that the tribunal may have before it
the department and appearance of the witness while testifying.
3. ID.; ID. Exhibit B of the prosecution is the sworn statement before the justice
of the peace of the municipality of Santo Tomas, Province of Batangas, of the sergeant, now
deceased, who was the leader of the patrol of the Constabulary which encountered the accused,
and whose signature was identified. Held: That Exhibit B was improperly received in evidence in
the lower court.
DECISION

MALCOLM, J p:
Most importantly, it does not seem right to single out and make a spectacle of the cases against Mr.
Estrada. Dignity is a precious part of personality innate in every human being, and there can be no

We find the proven facts as brought out in the trial of this case to be as follows.
Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao
valued at P150 in his corral situated in the barrio of Trapiche, municipality of Tananuan, Province
of Batangas. On the following morning when he went to look after the animal, he found the gate
to the corral open and that the carabao had disappeared. He reported the matter to the
Constabulary, and a patrol of the Constabulary under the leadership of sergeant Presa, now
deceased, on the 20th of November following, encountered the accused Lazaro Javier, Apolinario
Mendoza, and Placido de Chavez leading a carabao. When the ladrones saw the Constabulary,
they scattered in all directions. On the following day, the Constabulary found this carabao tied in
front of the house of one Pedro Monterola in the barrio of Santa Clara, municipality of San Pablo.
The carabao was identified by Doroteo Natividad as the one which had been taken from his corral
on the night of October 22, 1915, and by the Constabulary as the one seen in the possession of
the accused.
As corroborative of such evidence, we have the well-known legal principle, which
as applied to cases of this character is that, although the persons who unlawfully took a certain
carabao are not recognized at the time, and their identify remains entirely unknown,
nevertheless, if the stolen animal is found in the possession of the accused shortly after the
commission of the crime and they make no satisfactory explanation of such possession they may
be properly convicted of the crime. (See U.S. vs. Divino [1911], 18 Phil. 425.) In the present
instance, the attempt of the accused to insinuate that one of the Constabulary soldiers testified
against them falsely because of enmity is hardly believable.
The foregoing statement of the facts and the law disposes of all but one
assignment of error, namely, that the lower court erred in admitting Exhibit B of the prosecution
as evidence. Exhibit B is the sworn statement of sergeant Presca, now deceased, whose signature
was identified, before the justice of the peace of the municipality of Santo Tomas, Province of
Batangas. Appellant's argument is predicated on the provision of the Philippine Bill of Rights
which says, "That in all criminal prosecutions the accused shall enjoy the right . . . to meet the
witnesses face to face," and the provision of the Code of Criminal Procedure, section 15 (5),
which say that "In all criminal prosecutions the defendant shall be entitled: . . . to be confronted
at the trial by and to cross-examine the witnesses against him." With reference to the clause of
the Bill of Rights, which we have quoted, Justice Day said in a case of Philippine origin (Dowdell vs.
U.S. [1911], 221 U.S. 325) that it "intends to secure the accused in the right to be tried, so far as
facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the
trial, who give their testimony in his presence, and give to the accused an opportunity of crossexamination. It was intended to prevent the conviction of the accused upon depositions or ex
parte affidavits, and particularly to preserve the right of the accused to test the recollection of
the witness in the exercise of the right of cross-examination." In other words, confrontation is
essential because cross-examination is essential. A second reason for the prohibition is that a
tribunal may have before it the deportment and appearance of the witness while testifying. (U.S.
vs. Anastasio [1906], 6 Phil., 413.) The Supreme Court of the Philippine Islands has applied this
constitutional provision on behalf of accused persons in a number of cases. (See for example U.S.
vs. Tanjuanco [1902], 1 Phil., 374; U.S. vs. Bello [1908, 12 Phil. 87.) It is for us now to determine
whether the present facts entitle the accused to the protection of the Bill of Rights or whether
the facts fall under some exception thereto.
The sworn statement of Presa was not made by question and answer under
circumstances which gave the defense an opportunity to cross-examine the witness. The proviso
of the Code of Criminal Procedure as to confrontation is therefore inapplicable. Presa's statement
again is not the testimony of a witness deceased, given in a former action between the same
relating to the same matter. Consequently, the exception provided by section 298. No. 8, of the

Code of Civil Procedure and relied upon by the prosecution in the lower court is also inapplicable.
Nor is the statement of Presca a dying declaration or a deposition in a former trial or shown to be
a part of the preliminary examination. Under these circumstances, not to burden the opinion with
an extensive citation of authorities, we can rely on the old and historic case of R. vs. Paine (1 Salk.,
281 [King's Bench Div]) occurring in the year 1696. It Bristol under oath, but not in P's presence,
was offered. It was objected that B, being dead, the defendant had lost all opportunity of crossexamining him. The King's Bench consulted with the Common Pleas, and "it was the opinion of
both courts that these depositions should not be given in evidence, the defendant not being
present when they were taken before the Mayor and so had lost the benefit of a crossexamination." Although we are faced with the alternative of being unable to utilize the
statements of the witness now deceased, yet if there has been no opportunity for crossexamination and the case is not one coming within one of the exceptions, the mere necessity
alone of accepting the statement will not suffice. In fine, Exhibit B was improperly received in
evidence in the lower court.
With such a resolution of this question, we could, as has been done in other cases,
further find this to be versible error and remand the case for a new trial. We are convinced,
however, that this would gain the accused nothing except delay for the testimony of the owner of
the carabao and of the two Constabulary soldiers, rebutted by no reasonable evidence on behalf
of the accused, is deemed sufficient to prove guilt beyond a reasonable doubt.
The facts come under article 518, No. 3, connection with article 520, as amended,
of the Penal Code. Accordingly the defendants and appellants are each sentenced to four years,
two months, and one day of presidio correccional, with the accessory penalties provided by law,
and to pay one-third part of the costs of both instances; the carabao shall be returned to Doroteo
Natividad, if this has not already been done. So ordered.
||| (United States v. Javier, G.R. No. L-12990, January 21, 1918)
AGUSTIN V. TALINO, petitioner, vs. THE SANDIGANBAYAN and THE PEOPLE OF
THE PHILIPPINES, respondents.

DECISION

CRUZ, J p:
It is settled that if a separate trial is allowed to one of two or more defendants, his testimony therein
imputing guilt to any of the co-accused is not admissible against the latter who was not able to crossexamine him. 1 The issue in this case is whether or not such testimony was considered by the
respondent court against the petitioner, who claims that it was in fact the sole basis of his conviction.
prLL
The petitioner, along with several others, were charged in four separate informations with estafa
through falsification of public documents for having allegedly conspired to defraud the government in
the total amount of P26,523.00, representing the cost of repairs claimed to have been undertaken, but
actually not needed and never made, on four government vehicles, through falsification of the
supporting papers to authorize the illegal payments 2 Docketed as CC Nos. 6681, 6682, 6683 and 6684,

these cases were tried jointly for all the accused until after the prosecution had rested, when Genaro
Basilio, Alejandro Macadangdang and petitioner Talino asked for separate trials, which were allowed. 3
They then presented their evidence at such trials, while the other accused continued defending
themselves in the original proceedings, at which one of them, Pio Ulat, gave damaging testimony against
the petitioner, relating in detail his participation in the questioned transactions. 4 In due time, the
Sandiganbayan rendered its decision in all the four cases finding Talino, Basilio, Macadangdang, Ulat and
Renato Valdez guilty beyond reasonable doubt of the crimes charged while absolving the other
defendants for insufficient evidence. This decision is now challenged by the petitioner on the ground that
it violates his right of confrontation as guaranteed by the Constitution.
In its decision, the respondent court ** makes the following remarks about the separate trial:
"The peculiarity of the trial of these cases is the fact that We allowed,
upon their petition, separate trials for the accused Basilio and Talino
and Macadangdang. This being the case, We can only consider, in
deciding these cases as against them, the evidence for the prosecution
as well as their own evidence. Evidence offered by the other accused
can not be taken up.
"It would really have been simpler had there been no separate trial
because the accused Pio B. Ulat said so many incriminatory things
against the other accused when he took the stand in his own defense.
But because Basilio, Talino and Macadangdang were granted separate
trials and they did not cross examine Ulat because, as a matter of fact,
they were not even required to be present when the other accused
were presenting their defenses, the latter's testimonies can not now be
considered against said three accused.
"We cannot understand why, after it had heard the long and sordid
story related by Ulat on the stand, the prosecution did not endeavor to
call Ulat and put him on the stand as part of its rebuttal evidence. Had
this been done, there would have been no impediment to the
consideration of Ulat's testimony against all the accused." 5
The grant of a separate trial rests in the sound discretion of the court and is not a matter of right to the
accused, especially where, as in this case, it is sought after the presentation of the evidence of the
prosecution. 6 While it is true that Rule 119, Section 8, of the Rules of Court does not specify when the
motion for such a trial should be filed, we have held in several cases that this should be done before the
prosecution commences presenting its evidence, although, as an exception, the motion may be granted
later, even after the prosecution shall have rested, where there appears to be an antagonism in the
respective defenses of the accused. 7 In such an event, the evidence in chief of the prosecution shall
remain on record against all the accused, with right of rebuttal on the part of the fiscal in the separate
trial of the other accused. 8
The rule in every case is that the trial court should exercise the utmost circumspection in granting a
motion for separate trial, allowing the same only after a thorough study of the claimed justification
therefor, if only to avoid the serious difficulties that may arise, such as the one encountered and
regretted by the respondent court, in according the accused the right of confrontation.
The right of confrontation is one of the fundamental rights guaranteed by the Constitution 9 to the
person facing criminal prosecution who should know, in fairness, who his accusers are and must be given
a chance to cross-examine them on their charges. No accusation is permitted to be made against his back

or in his absence nor is any derogatory information accepted if it is made anonymously, as in poison pen
letters sent by persons who cannot stand by their libels and must shroud their spite in secrecy. That is
also the reason why ex parte affidavits are not permitted unless the affiant is presented in court 10 and
hearsay is barred save only in the cases allowed by the Rules of Court, like the dying declaration. 11
In United States v. Javier, 12 this Court emphasized:
". . . With reference to the clause of the Bill of Rights, which we have
quoted, Justice Day said in a case of Philippine origin (Dowdell v. U.S.
[1911], 221 U.S. 325) that it `intends to secure the accused in the right
to be tried, so far as facts provable by witnesses are concerned, by only
such witnesses as meet him face to face at the trial who give their
testimony in his presence, and give to the accused an opportunity of
cross-examination. It was intended to prevent the conviction of the
accused upon depositions or ex parte affidavits, and particularly to
preserve the right of the accused to test the recollection of the witness
in the exercise of the right of cross-examination.' In other words,
confrontation is essential because cross-examination is essential. A
second reason for the prohibition is that a tribunal may have before it
the deportment and appearance of the witness while testifying. (U.S. v.
Anastacio [1906], 6 Phil. 413.) The Supreme Court of the Philippine
Islands has applied this constitutional provision on behalf of accused
persons in a number of cases. (See for example U.S. v. Tanjuanco [1902],
1 Phil., 374; U.S. v. Bello [1908], 11 Phil., 526; U.S. v. De la Cruz [1908],
12 Phil. 87.) . . . ."
We have carefully studied the decision under challenge and find that the respondent court did not
consider the testimony given by Ulat in convicting the petitioner. The part of that decision finding Talino
guilty made no mention of Ulat at all but confined itself to the petitioner's own acts in approving the
questioned vouchers as proof of his complicity in the plot to swindle the government. Thus: LexLib
"If, as claimed, by Macadangdang, he had no knowledge nor
participation in the conspiracy to defraud, he would have questioned
this obvious irregularity. He would have asked whoever was following
up the vouchers why two biddings were conducted, why the awards to
`D'Alfenor' were cancelled, when the latter were cancelled, and when
the new bidding was made.
"The very same case is true as regards the accused Agustin Talino.
While his duty to initial or sign the vouchers as regards the adequacy of
funds may have been ministerial, his failure to observe the obvious
irregularity is clear evidence of his complicity in the conspiracy.
"Talino declared that in the morning of May 23, 1980, four vouchers
(including three made out in favor of `D'Alfenor Repair Shop') were
brought to him for his certificate as regards the availability of funds. He
had signed all the four vouchers. In the afternoon of the same day,
three other vouchers were also presented to him for certification as to
funds these three were in substitution of Exhibits `A', `B' and `C' which
he had earlier signed but which, according to Talino, were disallowed
and cancelled. Talino claims that he had examined the supporting
documents of the last three vouchers the RIV, the bids signed by the

repair shops and the abstract of bids. If what Talino says is true, at least
the abstract of bids submitted in the morning, where `D'Alfenor Motor
Shop' appears to be the lowest bidder, must have been different from
the ones submitted together with vouchers in the afternoon. This
would have raised his suspicions as to why these last three abstracts
could be dated as they were (May 18, May 15 and May 11, respectively)
when it was only that morning that the abstracts containing the name
of `D'Alfenor Motor Shop' were submitted. The fact that he readily
approved the substitute vouchers with the substitute winning bidders is
a clear indication that he knew he was facilitating an irregular
transaction.
"It is our view that the evidence on record has established beyond
doubt the participation of both Agustin Talino and Alejandro
Macadangdang in all the four felonies charged in the informations." 13
The petitioner makes much of the statement in the Comment that the petitioner's guilt could be
deduced "from the evidence for the prosecution and from the testimony of Pio Ulat," 14 but that was
not the respondent court speaking. That was the Solicitor General's analysis. As far as the Sandiganbayan
was concerned, the said testimony was inadmissible against the petitioner because he "did not cross
examine Ulat," and was not even required to be present when the latter was testifying. In fact, the
respondent court even expressed the wish that Ulat had been presented as rebuttal witness in the
separate trial of the petitioner as there would then have been "no impediment to the use of his
testimony against the other accused." As this was not done, the trial court could not and did not consider
Ulat's testimony in determining the petitioner' s part in the offenses.

committed in the house of the offended party, and that therefore the maximum penalty of the
law of six years of prision correccional and the costs should be imposed.
2. ID.; ADMISSIBILITY OF EVIDENCE; RIGHT OF ACCUSED. At the time of the
arrest of the defendant he was apparently suffering from some private disorder. A portion of the
substance was taken and scientifically examined, with the result that such substance showed that
he was actually suffering from the venereal disease known as gonorrhea. The result of the
scientific examination was offered in evidence, during the trial of the cause. The defendant
objected to the admissibility of such evidence upon the ground that it was requiring him to give
testimony against himself. The objection was overruled upon the ground that "the accused was
not compelled to make any admission or answer any questions, and the mere fact that an object
found upon his person was examined seems no more to infringe the rule invoked, than would the
introduction of stolen property taken from the person of a thief." The substance was taken from
the body of the defendant without his objection. The examination of the substance was made by
competent medical authority and the result showed that the defendant was suffering from said
disease. Such evidence was clearly admissible. The prohibition against compelling a man in a
criminal cause to be a witness against himself is a prohibition against physical or moral
compulsion to extort communications from him, and not an exclusion of his body as evidence,
when it may be material. The prohibition contained in the Philippine Bill (sec. 5) chat a person
shall not be compelled to be a witness against himself, is simply a prohibition against legal
process to extract from the defendant's own lips, against his will, an admission of his guilt.
DECISION

JOHNSON, J p:
The factual findings of the respondent court being supported by substantial evidence other than Ulat's
testimony, we see no reason to disturb them. It is futile for the petitioner to invoke his constitutional
presumption of innocence because his guilt has in the view of the trial court been established beyond
reasonable doubt, and we agree.
WHEREFORE, the judgment appealed from is AFFIRMED, with costs against the petitioner.
||| (Talino v. Sandiganbayan, G.R. Nos. L-75511-14, March 16, 1987)
THE UNITED STATES, plaintiff-appellee, vs. TAN TENG, defendantappellant.

This defendant was charged with the crime of rape. The complaint alleged:
"That on or about September 15, 1910, and before the
filing of this complaint, in the city of Manila, Philippine Islands, the said
Tan Teng did willfully, unlawfully and criminally, and employing force,
lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7
years of age."
After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the
defendant guilty of the offense of abusos deshonestos, as defined and punished under article 439
of the Penal Code, and sentenced him to be imprisoned for a period of 4 years 6 months and 11
days of prison correccional, and to pay the costs.
From that sentence the defendant appealed and made the following assignments
of error in this court:

Chas. A. McDonough for appellant.

SYLLABUS

"I. The lower court erred in admitting the testimony of

the physicians about having taken a certain substance from the body of
the accused while he was confined in jail and regarding the chemical
analysis made of the substance to demonstrate the physical condition
of the accused with reference to a venereal disease.

1. RAPE; "ABUSOS DESHONESTOS." Held: Under the facts stated in the opinion,
that the defendant is guilty of the crime of "abusos deshonestos" and that the crime was

"II. The lower court erred in holding that the

complainant was suffering from a venereal disease produced by contact

Solicitor-General Harvey for appellee.

with a sick man.

"III. The court erred in holding that the accused was
suffering from a venereal disease.
"IV. The court erred in finding the accused guilty from
the evidence."
From an examination of the record it appears that the offended party, Oliva
Pacomio, a girl seven years of age, was, on the 15th day of September, 1910, staying in the house
of her sister, located on Ilang-Ilang Street, in the city of Manila; that on said day a number of
Chinamen were gambling in or near the said house; that some of said Chinamen had been in the
habit of visiting the house of the sister of the offended party; that Oliva Pacomio, on the day in
question, after having taken a bath, returned to her room; that the defendant followed her into
her room and asked her for some face powder, which she gave him; that after using some of the
face powder upon his private parts, he threw the said Oliva upon the floor, placing his private
parts upon hers, and remained in the position for some little time. Several days later, perhaps a
week or two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal
disease known as gonorrhea. It was at the time of this discovery that Oliva related to her sister
what had happened upon the morning of the 15th of September. The sister at once put on foot
an investigation to find the Chinaman. A number of Chinamen were collected together. Oliva was
called upon to identify the one who had abused her. The defendant was not present at first. Later
he arrived and Oliva identified him at once as the one who had attempted to violate her.
Upon this information the defendant was arrested and taken to the police station
and stripped of his clothing and examined. The policeman who examined the defendant swore
that his body bore every sign of the fact that he was suffering from the venereal disease known
as gonorrhea. The policeman took a portion of the substance emitting from the body of the
defendant and turned it over to the Bureau of Science for the purpose of having a scientific
analysis made of the same. The result of the examination showed that the defendant was
suffering from gonorrhea.
During the trial the defendant objected strongly to the admissibility of the
testimony of Oliva, on the ground that because of her tender years her testimony should not be
given credit. The lower court, after carefully examining her with reference to her ability to
understand the nature of an oath, held that she had sufficient intelligence and discernment to
justify the court in accepting her testimony with full faith and credit. With the conclusion of the
lower court, after reading her declaration, we fully concur.
The defense in the lower court attempted to show that the venereal disease of
gonorrhea might be communicated in ways other than by contact such as is described in the
present case, and called medical witnesses for the purpose of supporting that contention. Judge
Lobingier, in discussing that question said:
"We shall not pursue the refinement of speculation as to
whether or not this disease might, in exceptional cases, arise from
other than carnal contact. The medical experts, as well as the books,
agree that in ordinary cases it arises from that cause, and if this was an
exceptional one, we think it was incumbent upon the defense to bring it
within the exception."
The offended party testified that the defendant had rested his private parts upon
hers for some moments. The defendant was found to be suffering from gonorrhea. The medical
experts who testified agreed that this disease could have been communicated from him to her by
the contact described. Believing as we do the story told by Oliva, we are forced to the conclusion

that the disease with which Oliva was suffering was the result of the illegal and brutal conduct of
the defendant. Proof, however, that Oliva contracted said obnoxious disease from the defendant
is not necessary to show that he is guilty of the crime. It is only corroborative of the truth of
Oliva's declaration.
The defendant attempted to prove in the lower court that the prosecution was
brought for the purpose of compelling him to pay to the sister of Oliva a certain sum of money.
The defendant testified and brought other Chinamen to support his declaration,
that the sister of Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It
seems impossible to believe that the sister, after having become convinced that Oliva had been
outraged in the manner described above, would consider for a moment a settlement for the
paltry sum of P60. Honest women do not consent to the violation of their bodies nor those of
their near relatives, for the filthy consideration of mere money.
In the court below the defendant contended that the result of the scientific
examination made by the Bureau of Science of the substance taken from his body, at or about the
time he was arrested, was not admissible in evidence as proof of the fact that he was suffering
from gonorrhea. That to admit such evidence was to compel the defendant to testify against
himself. Judge Lobingier, in discussing that question in his sentence, said:
"The accused was not compelled to make any admissions
or answer any questions, and the mere fact that an object found on his
person was examined; seems no more to infringe the rule invoked, than
would the introduction in evidence of stolen property taken from the
person of a thief."
The substance was taken from the body of the defendant without his objection,
the examination was made by competent medical authority and the result showed that the
defendant was suffering from said disease. As was suggested by Judge Lobingier, had the
defendant been found with stolen property upon his person, there certainly could have been no
question had the stolen property been taken for the purpose of using the same as evidence
against him. So also if the clothing which he wore, by reason of blood stains or otherwise, had
furnished evidence of the commission of a crime, there certainly could have been no objection to
taking such for the purpose of using the same as proof. No one would think of even suggesting
that stolen property and the clothing in the case indicated, taken from the defendant, could not
be used against him as evidence, without violating the rule that a person shall not be required to
give testimony against himself.
The question presented by the defendant below and repeated in his first
assignment of error is not a new question, either to the courts or authors. In the case of Holt vs.
U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this question, said:

"But the prohibition of compelling a man in a criminal

court to be a witness against himself, is a prohibition of the use of
physical or moral compulsion, to extort communications from him, not
an exclusion of his body as evidence, when it may be material. The
objection, in principle, would forbid a jury (court) to look at a person
and compare his features with a photograph in proof. Moreover we are
not considering how far a court would go in compelling a man to exhibit
himself, for when he is exhibited, whether voluntarily or by order, even
if the order goes too far, the evidence if material, is competent."

The question which we are discussing was also discussed by the supreme court of
the State of New Jersey, in the case of State vs. Miller (71 N. J) Law Reports, 527). In that case the
court said, speaking through its chancellor:
"It was not erroneous to permit the physician of the jail
in which the accused was confined, to testify to wounds observed by
him on the back of the hands of the accused, although he also testified
that he had the accused removed to a room in another part of the jail
and divested of his clothing. The observation made by the witness of
the wounds on the hands and testified to by him, was in no sense a
compelling of the accused to be a witness against himself. If the
removal of the clothes had been forcible and the wounds had been thus
exposed, it seems that the evidence of their character and appearance
would not have been objectionable."
In that case also (State vs. Miller) the defendant was required to place his hand
upon the wall of the house where the crime was committed, for the purpose of ascertaining
whether or not his hand would have produced the bloody print. The court said, in discussing that
question:
"It was not erroneous to permit evidence of the
coincidence between the hand of the accused and the bloody prints of
a hand upon the wall of the house where the crime was committed, the
hand of the accused having been placed thereon at the request of
persons who were with him in the house."
It may be added that a section of the wall containing the blood prints was
produced before the jury and the testimony of such comparison was like that held to be proper in
another case decided by the supreme court of New Jersey in the case of Johnson vs. State (30
Vroom, N. J., Law Reports, 271). The defendant caused the prints of the shoes to be made in the
sand before the jury, and witnesses who had observed shoe prints in the sand at the place of the
commission of the crime were permitted to compare them with what they had observed at that
place.
In that case also the clothing of the defendant was used as evidence against him.
To admit the doctrine contended for by the appellant might exclude the testimony
of a physician or a medical expert who had been appointed to make observations of a person
who plead insanity as a defense, where such medical testimony was against the contention of the
defendant. The medical expert must necessarily use the person of the defendant for the purpose
of making such examination. (People vs. Austin, 199 N. Y., 446.) The doctrine contended for by
the appellant would also prevent the courts from making an examination of the body of the
defendant where serious personal injuries were alleged to have been received by him. The right
of the courts in such cases to require an exhibit of the injured parts of the body has been
established by a long line of decisions.
The prohibition contained in section 5 of the Philippine Bill that a person shall not
be compelled to be a witness against himself, is simply a prohibition against legal process to
extract from the defendant's own lips, against his will, an admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the question before
us, said:
"If, in other words, it (the rule) created inviolability not
only for his [physical control of his] own vocal utterances, but also for

his physical control in whatever form exercised, then it would be

possible for a guilty person to shut himself up in his house, with all the
tools and indicia of his crime, and defy the authority of the law to
employ in evidence anything that might be obtained by forcibly
overthrowing his possession and compelling the surrender of the
evidential articles a clear reductio ad absurdum. In other words, it is
not merely compulsion that is the kernel of the privilege, . . . but
testimonial compulsion." (4 Wigmore, sec. 2263.)
The main purpose of the provision of the Philippine Bill is to prohibit compulsory
oral examination of prisoners before trial, or upon trial, for the purpose of extorting unwilling
confessions or declarations implicating them in the commission of a crime. (People vs. Gardner,
144 N. Y., 119.)
The doctrine contended for by the appellant would prohibit courts from looking at
the face of a defendant even, for the purpose of disclosing his identity. Such an application of the
prohibition under discussion certainly could not be permitted. Such an inspection of the bodily
features by the court or by witnesses, can not violate the privilege granted under the Philippine
Bill, because it does not call upon the accused as a witness it does not call upon the defendant
for his testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the
accused, is not testimony by his body but his body itself.
As was said by Judge Lobingier:
"The accused was not compelled to make any admission
or answer any questions, and the mere fact that an object found upon
his body was examined seems no more to infringe the rule invoked
than would the introduction of stolen property taken from the person
of a thief."
The doctrine contended for by the appellant would also prohibit the sanitary
department of the Government from examining the body of persons who are supposed to have
some contagious disease.
We believe that the evidence clearly shows that the defendant was suffering from
the venereal disease, as above stated, and that through his brutal conduct said disease was
communicated to Oliva Pacomio. In a case like the present it is always difficult to secure positive
and direct proof. Such crimes as the present are generally proved by circumstantial evidence. In
cases of rape the courts of law require corroborative proof, for the reason that such crimes are
generally committed in secret. In the present case, taking into account the number and credibility
of the witnesses, their interest and attitude on the witness stand, their manner of testifying and
the general circumstances surrounding the witnesses, including the fact that both parties were
found to be suffering from a common disease, we are of the opinion that the defendant did, on
or about the 15th of September, 1910, have such relations as above described with the said Oliva
Pacomio, which under the provisions of article 439 of the Penal Code makes him guilty of the
crime of "abusos deshonestos," and taking into consideration the fact that the crime which the
defendant committed was done in the house where Oliva Pacomio was living, we are of the
opinion that the maximum penalty of the law should be imposed. The maximum penalty provided
for by law is six years of prison correccional. Therefore let a judgment be entered modifying the
sentence of the lower court and sentencing the defendant to be imprisoned for a period of six
years of prision correccional, and to pay the costs. So ordered.
||| (US v. Tan Teng, G.R. No. 7081, September 07, 1912)

EMETERIA VILLAFLOR, petitioner, vs. RICARDO SUMMERS, sheriff of

the city of Manila, respondent.

9. ID.; ID.; ID.; ID.; ID. The rules announced are believed to be stare decisis in
this jurisdiction. (Holt vs. U. S. [1910], 218 U. S., 585; U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S.
vs. Ong Siu Hong [1917], 36 Phil., 735.) Even if not so, the Supreme Court of the Philippine Islands
would rather desire its decision to rest on the reason of the case than on blind adherence to
tradition.

Alfredo Calupitan and Gibbs, McDonough & Johnson for petitioner.

DECISION

Assistant City Fiscal Felix for respondent.

SYLLABUS
MALCOLM, J p:
1. CONSTITUTIONAL LAW; PHILIPPINE BILL OF RIGHTS; RIGHT OF ACCUSED
PERSON; GENERAL PRINCIPLES. The object of having criminal laws is to purge the community
of persons who violate the laws to the great prejudice of their fellow men. Criminal procedure,
the rules of evidence, and constitutional provisions are then provided, not to protect the guilty
but to protect the innocent. No rule is intended to be so rigid as to embarrass the administration
of justice in its endeavor to ascertain the truth.
2. ID.; ID.; ID.; ID.; With a losse extension of constitutional guaranties because of
a misconceived motion of the rights of accused persons, this court is not in accord.
3. ID.; ID.; ID.; SELF-INCRIMINATION; HISTORY OF THE GUARANTY. The maxim of
the common law, Nemo tenetur seipsum accusare, was recognized in England in early days is a
revolt against the thumbscrew and the rack. A legal shield was raised against odious inquisitional
methods of interrogating an accused person by which to extort unwilling confessions with the
ever present temptation to commit the crime of perjury. The principle was taken into the
American Constitutions, and from the United States was brought to the Philippine Islands, in
exactly as States was brought to the Philippine Islands, in exactly as wide but no wider a
scope as it existed in old English days.
4. ID.; ID.; ID.; ID.; POLICY OF THE LAW. Even superior to the complete immunity
of a person to be let alone as the interest which the public has in the orderly administration of
justice. Between a sacrifice of the ascertainment of truth to personal considerations, between a
disregard of the public welfare for refined notions of delicacy, law and justice cannot hesitate.
5. ID.; ID.; ID.; ID.; RULES. The constitutional guaranty, that no person shall be
compelled in any criminal case to be a witness against himself, is limited to a prohibition against
compulsory testimonial self-incrimination.
6. ID.; ID.; ID.; ID.; ID.; Torture force shall be avoided.
7. ID.; ID.; ID.; ID.; BODILY EXHIBITION. On a proper showing and under an order
of the trial court, an ocular inspection of the body of the accused is permissible.
8. ID.; ID.; ID.; ID.; ID. Upon petition of the assistant fiscal for the city of Manila,
the trial court ordered the defendant, a woman charged with the crime of adultery, to submit her
body to the examination of one or two competent doctors to determine whether she was
pregnant or not. Held: That while this order of the trial court is phrased in absolute terms, it
should, nevertheless, be understood as subject to the limitations herein mentioned, and thus as
not in violation of that portion of the Philippine Bill of rights and that portion of the Philippine
Code of Criminal Procedure which find their origin in the Constitution of the United States and
practically all State Constitutions, and in the common law rules of evidence, relating to selfincrimination.

The petitioner prays that a writ of habeas corpus issue to restore her to her liberty.
The facts are not in dispute. In a criminal case pending before the Court of First
Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco are charged with the
crime of adultery. On this case coming on for trial before the Hon. Pedro Concepcion, Judge of
First Instance, upon the petition of the assistant fiscal for the city of Manila, the court ordered the
defendant Emeteria Villaflor, now become the petitioner herein, to submit her body to the
examination of one or two competent doctors to determine if she was pregnant or not. The
accused refused to obey the order on the ground that such examination of her person was a
violation of the constitutional provision in contempt of court and was ordered to be committed
to Bilibid Prison until she should permit the medical examination required by the court.
The sole legal issue arising from the admitted facts is whether the compelling of a
woman to permit her body to be examined by physicians to determine if she is pregnant, violates
that portion of our Code of Criminal Procedure which find their origin in the Constitution of the
United States and practically all state constitutions and in the common law rules of evidence,
providing that no person shall be compelled in any criminal case to be a witness against himself .
(President's Instructions to the Philippine Commission; Act of Congress of July 1, 1902, section 5,
paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph 3; Code of Criminal
Procedure, section 15 [4]; United States Constitution, fifth amendment.) Counsel for petitioner
argues that such bodily exhibition is an infringement of the constitutional provision; the
representative of the city fiscal contends that it is not an infringement of the constitutional
provision. The trial judge in the instant case has held with the fiscal; while it is brought to our
notice that a judge of the same court has held on an identical question as contended for by the
attorney for the accused and petitioner.
The authorities are abundant but conflicting. What may be termed the
conservative courts emphasize greatly the humanitarianism of the constitutional provision and
are pleased to extend the privilege in order that its mantle may cover any fact by which the
accused is compelled to make evidence against himself. (Compare State vs. Jacobs [1858], 50 N.
C., 259 with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Nordstrom [1893], 7
Wash., 506; State vs. Height [1902], 117 Iowa, 650; Thornton vs. State [1903], 117 Wis., 338.) A
case concordant with this view and almost directly in point is People vs. McCoy relating to selfincrimination. Thereupon she was found ([1873], 45 How. Pr., 216). A woman was charged with
the crime of infanticide. The coroner directed two physicians to go to the jail and examine her
private parts to determine whether she had recently been delivered of a child. She objected to
the examination, but being threatened with force, yielded, and the examination was had. The
evidence of these physicians was offered at the trial and ruled out. The court said that the
proceeding was in violation of the spirit and meaning of the Constitution, which declares that "no

person shall be compelled in any criminal case to be a witness against himself." Continuing, the
court said: "They might as well have sworn the prisoner, and compelled her, by threats, to testify
that she had been pregnant, and had been delivered of a child, as to have compelled her, by
threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether
she had been pregnant and been delivered of a child. . . . Has this court the right to compel the
prisoner now to submit to an examination of her private parts and breasts, by physicians, and
then have them testify that from such examination they are of the opinion she is not a virgin, and
has had a child? It is not possible that this court has that right; and it is too clear to admit of
argument that evidence thus obtained would be inadmissible against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot refrain from
saying that, greatly impressed with the weight of these decisions, especially the one written by
Mr. Justice McClain, in State vs. Height, supra, the instant case was reported by the writer with
the tentative recommendation that the court should lay down the general rule that a defendant
can be compelled to disclose only those parts of the body which are not usually covered. But
having disabused our minds of a too sensitive appreciation of the rights of accused persons, and
having been able, as we think, to penetrate through the maze of law reports to the policy which
lies behind the constitutional guaranty and the common law principle, we have come finally to
take our stand with what we believe to be the reason of the case.
In contradistinction to the cases above-mentioned are others which seem to us
more progressive in nature. Among these can be prominently mentioned decisions of the United
States Supreme Court, and the Supreme Court of these Islands. Thus, the always forward looking
jurist, Mr. Justice Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., 245), in
resolving an objection based upon what he termed "an extravagant extension of the Fifth
Amendment," said: "The prohibition of compelling a man in a criminal court to be a witness
against himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may be material."
(See also, of same general tenor, decision of Mr. Justice Day in Adams vs. New York [1903], 192 U.
S., 585.) The Supreme Court of the Philippine Islands, in two decisions, has seemed to limit the
protection to a prohibition against compulsory testimonial self-incrimination. The constitutional
limitation was said to be "simply a prohibition against legal process to extract from the
defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil.,
145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle announced in 16
Corpus Juris, 567, 568, citing the United States Supreme Court and the Supreme Court of the
Philippine Islands as authority.)

Although we have stated a proposition previously announced by this court and by

the highest tribunal in the United States, we cannot unconcernedly leave the subject without
further consideration. Even in the opinion of Mr. Justice Holmes, to which we have alluded, there
was inserted the careful proviso that "we need not consider how far a court would go in
compelling a man to exhibit himself." Other courts have likewise avoided any attempt to
determine the exact location of the dividing line between what is proper and what is improper in
this very broad constitutional field. But here before us is presented what would seem to be the
most extreme case which could be imagined. While the United States Supreme Court could
nonchalantly decree that testimony that an accused person put on a blouse and it fitted him is
not a violation of the constitutional provision, while the Supreme Court of Nevada could go so far
as to require the defendant to roll up his sleeve in order to disclose tattoo marks, and while the
Supreme Court of the Philippine Islands could permit substances taken from the person of an
accused to be offered in evidence, none of these even approach in apparent harshness an order
to make a woman, possibly innocent, to disclose her body in all of its sanctity to the gaze of

strangers. We can only consistently consent to the retention of a principle which would permit of
such a result by adhering steadfastly to the proposition that the purpose of the constitutional
provision was and is merely to prohibit testimonial compulsion.
So much for the authorities. For the nonce we would prefer to forget them entirely,
and here in the Philippines, being in the agreeable state of breaking new ground, would rather
desire our decision to rest on a strong foundation of reason and justice than on a weak one of
blind adherence to tradition and precedent. Moreover, we believe that an unbiased
consideration of the history of the constitutional provision will disclose that our conclusion is in
exact accord with the causes which led to its adoption.
The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in
England in early days, but not in the other legal systems of the world, in a revolt against the
thumbscrew and the rack. A legal shield was raised against odious inquisitorial methods of
interrogating an accused person by which to extort unwilling confessions with the ever present
temptation to commit the crime of perjury. The kernel of the privilege as disclosed by the
textwriters was testimonial compulsion. As forcing a man to be a witness against himself was
deemed contrary to the fundamentals of republican government, the principle was taken into the
American Constitutions, and from the United States was brought to the Philippine Islands, in
exactly as wide but no wider a scope as it existed in old English days. The provision should
here be approached in no blindly worshipful spirit, but with a judicious and a judicial appreciation
of both its benefits and its abuses. (Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R.
[1891], p. 71, and 15 Harvard L. R., 1902, p. 610, found in 4 Wigmore on Evidence, pp. 3069 et
seq., and U. S. vs. Navarro [1904], 3 Phil., 143.)
Perhaps the best way to test the correctness of our position is to go back once
more to elementals and ponder on what is the prime purpose of a criminal trial. As we view it,
the object of having criminal laws is to purge the community of persons who violate the laws to
the great prejudice of their fellow men. Criminal procedure, the rules of evidence, and
constitutional provisions, are then provided, not to protect the guilty but to protect the innocent.
No rule is intended to be so rigid as to embarrass the administration of justice in its endeavor to
ascertain the truth. No accused person should be afraid of the use of any method which will tend
to establish the truth. For instance, under the facts before us, to use torture to make the
defendant admit her guilt might only result in inducing her to tell a falsehood. But no evidence of
physical facts can for any substantial reason be held to be detrimental to the accused except in so
far as the truth is to be avoided in order to account a guilty person.
Obviously a stirring plea can be made showing that under the due process of law
clause of the Constitution every person has a natural and inherent right to the possession and
control of his own body. It is extremely abhorrent to one's sense of decency and propriety to
have to decide that such inviolability of the person, particularly of a woman, can be invaded by
exposure to another's gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891],
141 U. S., 250) said, "To compel any one, and especially a woman, to lay bare the body, or to
submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a
trespass." Conceded, and yet, as well suggested by the same court, even superior to the complete
immunity of a person to be let alone is the interest which the public has in the orderly
administration of justice. Unfortunately, all too frequently the modesty of witnesses is shocked
by forcing them to answer, without any mental evasion, questions which are put to them; and
such a tendency to degrade the witness in public estimation does not exempt him from the duty
of disclosure. Between a sacrifice of the ascertainment of truth to personal considerations,
between a disregard of the public welfare for refined notions of delicacy, law and justice cannot
hesitate.
The protection of accused persons has been carried to such an unwarranted extent

that criminal trials have sometimes seemed to be like a game of shuttlecocks, with the judge as
referee, the lawyers as players, the criminal as guest of honor, and the public as fascinated
spectators. Against such a loose extension of constitutional guaranties we are here prepared to
voice our protest.
Fully conscious that we are resolving a most extreme case in a sense, which on first
impression is a shock to one's sensibilities, we must nevertheless enforce the constitutional
provision in this jurisdiction in accord with the policy and reason thereof, undeterred by merely
sentimental influences. Once' again we lay down the rule that the constitutional guaranty, that
no person shall be compelled in any criminal case to be a witness against himself, is limited to a
prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is
that, on a proper showing and under an order of the trial court, an ocular inspection of the body
of the accused is permissible. The proviso is that torture or force shall be avoided. Whether facts
fall within or without the rule with its corollary and proviso must, of course, be decided as cases
arise.
It is a reasonable presumption that in an examination by reputable and
disinterested physicians due care will be taken not to use violence and not to embarrass the
patient any more than is absolutely necessary. Indeed, no objection to the physical examination
being made by the family doctor of the accused or by doctor of the same sex can be seen.
Although the order of the trial judge, acceding to the request of the assistant fiscal
for an examination of the person of the defendant by physicians was phrased in absolute terms, it
should, nevertheless, be understood as subject to the limitations herein mentioned, and
therefore legal. The writ of habeas corpus prayed for is hereby denied. The costs shall be taxed
against the petitioner. So ordered.
||| (Villaflor v. Summers, G.R. No. 16444, September 08, 1920)
FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON, Judge of the
Second Judicial District, and FRANCISCO JOSE, Provincial Fiscal of
Isabela, respondents.

Gregorio P. Formoso and Vicente Formoso for petitioner.

The respondents in their own behalf.
SYLLABUS

1. CRIMINAL PROCEDURE; COMPULSORY APPEARANCE OF WITNESSES AT FISCAL'S

INVESTIGATIONS; REFUSAL OF WITNESS TO WRITE FROM DICTATION. The fiscal under section
1687 of the Administrative Code, and the competent judge, at the request of the fiscal, may
compel witnesses to be present at the investigation of any crime or misdemeanor. But this power
must be exercised without prejudice to the constitutional rights of persons cited to appear. The
petitioner, in refusing to write down what the fiscal had to dictate to him for the purpose of
verifying his handwriting and determining whether he had written certain documents alleged to
have been falsified, seeks protection his constitutional privilege.
2. ID.; RIGHTS OF DEFENDANT; TEXT OF CONSTITUTIONAL PROVISION. The right
was promulgated, both in the Organic Law of the Philippines of July 1, 1902 and in paragraph 3,

section 3 of the Jones Law, which provides (in Spanish); "Ni se le obligara (defendant) a declarar
en contra suya en ningun proceso criminal," and recognized in our Criminal Procedure (General
Orders, No. 58) in section 15 (No. 4) and section 56. The English text of the Jones Law reads as
follows; "Nor shall he be compelled in any criminal case to be a witness against himself," thus, the
prohibition is not restricted to not compelling him to testify, but extends to not compelling him to
be a witness.
3. ID.; ID.; SCOPE OF CONSTITUTIONAL PRIVILEGE. "The rights intended to be
protected by the constitutional provision that no man accused of crime shall be compelled to be a
witness against himself is so sacred, and the pressure toward their relaxation so great when the
suspicion of guilt is strong and the evidence obscure, that it is the duty of courts liberally to
construe the prohibition in favor of personal rights, and to refuse to permit any steps tending
toward their invasion. Hence, there is the well-established doctrine that the constitutional
inhibition is directed not merely to giving of oral testimony, but embraced as well the furnishing
of evidence by other means than by word of mouth, the divulging, in short, of any fact which the
accused has a right to hold secret." (28 R. C. L., par. 20, page 434, and notes.)
4. ID.; ID.; CASES INAPPLICABLE. There have been cases where it was lawful to
compel the accuse to write in open court while he was under cross-examination (Bradford vs.
People, 43 Pacific Reporter, 1013), and to make him write his name with his consent during the
trial of his case (Sprouse vs. Com., 81 Va., 374, 378); but in the first case, the defendant, in
testifying as witness in his own behalf waived his constitutional privilege not to be compelled to
act as witness; and in the second, he also waived said privilege because he acted voluntarily.
5. ID.; ID.; PREPARATION AND CREATION OF EVIDENCE BY TESTIMONIAL ACT.
This constitutional prohibition embraces the compulsory preparation and creation by a witness of
self-incriminatory evidence by means of a testimonial act. "For though the disclosure thus
sought" (the production of documents and chattels) "be not oral in form, and thought the
documents or chattels be already in existence and not desired to be first written and created by a
testimonial act or utterance of the person in response to the process, still no line can be drawn
short of any process which treats him as a witness; because in virtue of it he would be at any time
liable to make oath to the identity or authenticity or origin of the articles produced." (4 Wigmore
on Evidence, 864, 865, latest edition.) IN the case before us, writing is something more than
moving the body, or hand, or fingers; writing is not purely mechanical act; it requires the
application of intelligence and attention; writing means for the petitioner here to furnish, through
a testimonial act, evidence against himself.
6. ID.; ID.; PROSECUTION OF CRIMES; PRIVILEGE, REASON FOR EXISTENCE OF. It
cannot be contended in the present case that if permission to obtain a specimen of the
petitioner's handwriting is not granted, the crime would go unpunished. The petitioner is a
municipal treasurer, and it should not be difficult for the fiscal to obtain a genuine specimen of
his handwriting by some other means. But even supposing that it is impossible to secure such
specimen without resorting to the means herein complained of by the petitioner, that is no
reason for trampling upon a personal right guaranteed by the constitution. It might be true that
in some cases criminals may succeed in evading the hand of justice, but such cases are accidental
and do not constitute the raison d'etre of the privilege. This constitutional privilege exists for the
protection of innocent persons.
7. ID.; ID.; DISTINCTION BETWEEN VILLAFLOR-SUMMERS CASE AND CASE AT BAR.
The difference between this case and that of Villaflor vs. Summers (41. Phil., 620, is that in the
latter the object was to have the petitioner's body examined by physicians, without being
compelled to perform a positive act, but only an omission, that is, not to prevent the examination,
which could be, and was, interpreted by this court as being no compulsion of the petitioner to
furnish evidence by means of a testimonial act; all of which is entirely different from the case at

bar, where it is sought to make the petitioner perform a positive testimonial act, silent, indeed,
but effective, namely, to write and give a sample of his handwriting for comparison.
DECISION

ROMUALDEZ, J p:
This is a petition for a writ of prohibition, wherein the petitioner complains that
the respondent judge ordered him to appear before the provincial fiscal to take dictation in his
won handwriting from the latter.
The order was given upon petition of said fiscal for the purpose of comparing the
petitioner's handwriting and determining whether or not it is he who wrote certain documents
supposed to be falsified.
There is no question as to the facts alleged in the complaints filed in these
proceedings; but the respondents contend that the petitioner is not entitled to the remedy
applied for, inasmuch as the order prayed for by the provincial fiscal and later granted by the
court below, and against which the instance action was brought, is based on the provisions of
section 1687 of the Administrative Code and on the doctrine laid down in the cases of People vs.
Badilla (48 Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong
(36 Phil., 735), cited by counsel for the respondents, and in the case of Villaflor vs. Summers (41
Phil., 62) cited by the judge in the order in question.
Of course, the fiscal under section 1687 of the Administrative Code, and the
proper judge, upon motion of the fiscal, may compel witnesses to be present at the investigation
of any crime of misdemeanor. But this power must be exercised without prejudice to the
constitutional rights of persons cited to appear.
And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge
in the constitutional provision contained in the Jones Law and incorporated in General Orders, No.
58.
Therefore, the question raised is to be decided by examining whether the
constitutional provision invoked by the petitioner prohibits compulsion to execute what is
enjoined upon him by the order against which these proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which (in
Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun proceso criminal" and has
been incorporated in our Criminal Procedure (General Orders, No. 58) in section 15 (No. 4) and
section 56.
As to the extent of this privilege, it should be noted first of all, that the English text
of the Jones Law, which is the original one, reads as follows: "Nor shall he be compelled in any
criminal case to be a witness against himself."
This text is not limited to declaracion but says "to be a witness." Moreover, as we
are concerned with a principle contained both in the Federal constitution and in the constitutions
of several states of the United States, but expressed differently, we should take it that these
various phrasings have a common conception.

"In the interpretation of the principle, nothing turns

upon the variations of wordings in the constitutional clauses; this much
is conceded (ante, par. 2252). It is therefore immaterial that the witness
is protected by one Constitution from 'testifying,' or by another from
'furnishing evidence,' or by another from 'giving evidence,' or by still
another from 'being a witness.' These various phrasings have a common
conception, in respect to the form of the protected disclosure. What is
that conception?" (4 Wigmore on Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to testimony, but extends to
all giving or furnishing of evidence.
"The rights intended to be protected by the
constitutional provision that no man accused of crime shall be
compelled to be a witness against himself is so sacred, and the pressure
toward their relaxation so great when the suspicion of guilt is strong
and the evidence obscure, that it is the duty of courts liberally to
construe the prohibition in favor of personal rights, and to refuse to
permit any steps tending toward their invasion. Hence, there is the wellestablished doctrine that the constitutional inhibition is directed not
merely to giving of oral testimony, but embraces as well the furnishing
of evidence by other means than by word of mouth, the divulging, in
short, of any fact which the accused has a right to hold secret." (28 R. C.
L., paragraph 20, page 434 and notes.) (Italics ours.)

The question, then, is reduced to a determination of whether the writing from the
fiscal's dictation by the petitioner for the purpose of comparing the latter's handwriting and
determining whether he wrote certain documents supposed to be falsified, constitutes evidence
against himself within the scope and meaning of the constitutional provision under examination.
Whenever a defendant, at the trial of his case, testifying in his own behalf, denies
that a certain writing or signature is in his own hand, he may on cross-examination but compelled
to write in open court in order that the jury may be able to compare his handwriting with the one
in question. It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch
as the defendant, in offering himself as witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374, 378), where the
judge asked the defendant to write his name during the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before us. We are
not concerned here with a defendant, for it does not appear that any information was filed
against the petitioner for the supposed falsification, and still less is it a question of a defendant
on trial testifying and under cross-examination. This is only an investigation prior to the
information and with a view to filing it. And let it further be noted that in the case of Sprouse vs.
Com., the defendant performed the act voluntarily.
We have also come upon a case wherein the handwriting or the form of writing of
the defendant was obtained before the criminal action was instituted against him. We refer to
the case of People vs. Molineux (61 Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in the aforesaid
case of Sprouse vs. Com., the defendant voluntarily offered to write, to furnish a specimen of his
handwriting.

We cite this case particularly because the court there given prominence to the
defendant's right to decline to write, and to the fact that he voluntarily wrote. The following
appears in the body of said decision referred to (page 307 of the volume cited):
"The defendant had the legal right to refuse to write for
Kinsley. He preferred to accede to the latter's request, and we can
discover no ground upon which the writings thus produced can be
excluded from the case." (Italics ours.)
For this reason it was held in the case of First National Bank vs. Robert 941 Mich.,
709; 3 N. W., 199), that the defendant could not be compelled to write his name, the doctrine
being stated as follows:
"The defendant being sworn in his own behalf denied
the indorsement.
"He was then cross-examined and questioned in regard
to his having signed papers not in the case, and was asked in particular
whether he would not produce signatures made prior to the note in suit,
and whether he would not write his name there in court. The judge
excluded all these inquiries, on objection, and it is our these rulings that
complaint is made. The object of the questions was to bring into the
case extrinsic signatures, for the purpose of comparison by the jury,
and we think the judge was correct in ruling against it."
It is true that the eminent Professor Wigmore, in his work cited (volume 4, page
878), says:
"Measuring or photographing the party is not within the
privilege. Nor is the removal or replacement of his garments or shoes.
Nor is the requirement that the party move his body to enable the
foregoing things to be done. Requiring him to make specimens of
handwriting is no more than requiring him to move his body . . ." but he
cites no case in support of his last assertion on specimens of
handwriting. We noted that in the same paragraph 2265, where said
author treats of "Bodily Exhibition," and under proposition "1. A great
variety of concrete illustrations have been ruled upon," he cites many
cases, among them that of People vs. Molineux (61 N. E., 286) which, as
we have seen, has no application to the case at bar because there the
defendant voluntarily gave specimens of his handwriting, while here
the petitioner refuses to do so and has even instituted these prohibition
proceedings that he may not be compelled to do so.
Furthermore, in the case before us, writing is something more than moving the
body, or the hand, or the fingers; writing is not a purely mechanical and attention; and in the case
at bar writing means that the petitioner herein is to furnish a means to determine or not he is the
falsifier, as the petition of the respondent fiscal clearly states. Except that it is more serious, we
believe the present case is similar to that of producing documents of chattels in one's possession.
And as to such production of documents or chattels, which to our mind is not so serious as the
case now before us, the same eminent Professor Wigmore, in his work cited, says (volume 4,
page 864):
". . . 2264, Production or Inspection of Documents and
Chattels. 1. It follows that the production of documents or chattels
by a person (whether ordinary witness or party-witness) in response to

a subpoena, or to a motion to order production, or to other form of

process treating him as a witness (i. e. as a person appearing before the
tribunal to furnish testimony on his moral responsibility for truthtelling), may be refused under the protection of the privilege; and this is
universally conceded." (And he cites the case of People vs. Gardner, 144
N. Y., 119, 38 N. E., 1003.)
We say that, for the purposes of the constitutional privilege, there is a similarity
between one who is compelled to produce a document, and one who is compelled to furnish a
specimen of his handwriting, for in both cases, the witness is required to furnish evidence against
himself.
And we say that the present case is more serious than that of compelling the
production of documents or chattels, because here the witness is compelled to write and create,
by means of the act of writing, evidence which does not exist, and which may identify him as the
falsifier. And for this reason the same eminent author, Professor Wigmore, explaining the matter
of the production of documents and chattels, in the passage cited, adds:
"For though the disclosure thus sought be not oral in form, and though the
documents or chattels be already in existence and not desired to be first written and created by a
testimonial act or utterance of the person in response to the process, still no line can be drawn
short of any process which treats him as a witness; because in virtue of it he would be at any time
liable to make oath to the identity of authenticity or origin of the articles produced." (Ibid., pp.
864-865.) (Italics ours.)
It cannot be contended in the present case that if permission to obtain a specimen
of the petitioner's handwriting is not granted, the crime would go unpunished. Considering the
circumstance that the petitioner is a municipal treasurer, according to Exhibit A, it should not be a
difficult matter for the fiscal to obtain genuine specimens of his handwriting. But even supposing
it is impossible to obtain a specimen or specimens without resorting to the means complained of
herein, that is not reason for trampling upon a personal right guaranteed by the constitution. It
might be true that in some cases criminals may succeed in evading the hand of justice, but such
cases are accidental and do not constitute the raison d'etre of the privilege. This constitutional
privilege exists for the protection of innocent persons.
With respect to the judgments rendered by this court and cited on behalf of the
respondents, it should be remembered that in the case of People vs. Badilla (48 Phil., 718), it does
not appear that the defendants and other witnesses were questioned by the fiscal against their
will, and if they did not refuse to answer, they must be understood to have waived their
constitutional privilege, as they could certainly do.
"The privilege not to give self-incriminating evidence,
while absolute when claimed, may be waived by any one entitled to
invoke it." (28 R. C. L., paragraph 29, page 442, and cases noted.)
The same holds good in the case of United States vs. Tan Teng (23 Phil., 145),
where the defendant did not oppose the extraction from his body of the substance later used as
evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the
court preferred to rest its decision on the reason of the case rather than on blind adherence to
tradition. The said reason of the case there consisted in that it was a case of the examination of
the body by physicians, which could be and doubtless was interpreted by this court, as being no
compulsion of the petitioner therein to furnish evidence by means of a testimonial act. In reality
she was not compelled to execute any position act, much less a testimonial act; she was only

enjoined from something, preventing the examination; all of which is very different from what is
required of the petitioner in the present case, where it is sought to compel his to perform a
positive, testimonial act, to write and give a specimen of his handwriting for the purpose of
comparison. Beside, in the case of Villaflor vs. Summers, it was sought to exhibit something
already in existence, while in the case at bar, the question deals with something not yet in
existence, and it is precisely sought to compel the petitioner to make, prepare, or produce by
means, evidence not yet in existence; in short, to create this evidence which may seriously
incriminate him.
Similar considerations suggest themselves to us with regard to the case of United
States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was to compelled to perform any
testimonial act, but to take out of his mouth the morphine he had there. It was not compelling
him to testify or to be a witness or to furnish, much less make, prepare, or create through a
testimonial act, evidence for his own condemnation.

Wherefore, we find the present action well taken, and it is ordered that the
respondents and those under their orders desist and abstain absolutely and forever from
compelling the petitioner to take down dictation in his handwriting for the purpose of submitting
the latter for comparison.
Without express pronouncement as to costs. So ordered.
||| (Beltran v. Samson, G.R. No. 32025, September 23, 1929)
ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS,
THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL
OF MANILA, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PRIVILEGE AGAINST SELF- INCRIMINATION; BASIS THEREOF.
The privilege against self-incrimination is based on the constitutional injunction that: "No person shall
be compelled to be a witness against himself," fully echoed in Section 1, Rule 115, Rules of Court where,
in all criminal prosecutions, the defendant shall be entitled to be exempt from being a witness against
himself. While the admissions of confessions of the prisoner, when freely and voluntarily made, have
always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his
apparent connection with a crime under investigation, the ease with which the question put to him may
assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be
timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions which is so
painfully evident in many of the earlier state trials, made the system so odious as to give rise to a
demand for its total abolition. So deeply did the iniquities of the ancient system impress themselves
upon the minds of the American colonist that the states, with one accord, made a denial of the right to
question an accused person a part of their fundamental law, so that a maxim which in England was a
mere rule of evidence became clothed in this country with the impregnability of a constitutional
enactment.
2. ID.; ID.; ID.; ORIGIN, NATURE AND PURPOSE THEREOF. An old Philippine case speaks of this
constitutional injunction as "older than the Government of the United States"; as having "its origin in a

protest against the inquisitorial methods of interrogating the accused person"; and as having been
adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring
accused persons to submit to judicial examinations, and to give testimony regarding the offenses which
they were charged." So it is then that 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 of valuable and
substantive right; it is fundamental to our scheme of justice. The Supreme Court of the United States
thru Mr. Justice Harlan warned that "the constitutional privilege was intended to shield the guilty and
imprudent as well as the innocent and the foresighted." It is in this context that the constitutional
guarantee may not be treated with unconcern. Taada and Fernando take note of U.S. vs. Navarro,
which reaffirms the rule that the constitutional prescription was established on broad grounds of public
policy and humanity; of policy because it would place the witness against the strongest temptation to
commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress
every species and degree of which the law abhors. 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.
3. ID.; ID.; ID.; CONCEPT OF COMPULSION. Compulsion as it is understood 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."
4. ID.; ID.; ID.; ACCUSED DISTINGUISHED FROM ORDINARY WITNESS. An accused occupies a different
tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the
witness stand and claim the privilege as each question requiring an incriminating answer is shot at him,
an accused may altogether refuse to take the witness stand and refuse to answer any and all questions.
For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him.
The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person
"to furnish the missing evidence necessary for his conviction." This rule may apply even to a codefendant in a joint trial.
5. ID.; ID.; ID.; PRECEPT. The guide in the interpretation of the constitutional precept that the accused
shall not be compelled to furnish evidence against himself "is not the probability of the evidence but the
capability of abuse."
6. ID.; ID.; ID.; WAIVER OF THE PRIVILEGE AGAINST SELF-INCRIMINATION; MEANING; REQUIREMENTS OF
WAIVER. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably,
and willingly made; such waiver follows only where liberty of choice has been fully accorded. After a
claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence. A
waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.
7. ID.; ID.; ID.; VIOLATION OF CONSTITUTIONAL RIGHT TO BE REPRESENTED BY COUNSEL IS
JURISDICTIONAL BAR. A court's jurisdiction at the beginning of trial may be lost in the course of the
proceedings due to failure to complete the court as the Sixth Amendment requires by providing
Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this
constitutional guarantee, and whose life or liberty is at stake. If this requirement of the Sixth
Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of
conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may
obtain release by habeas corpus.

8. ID.; ID.; ID.; HABEAS CORPUS AS REMEDY WHERE THERE IS BREACH. Habeas Corpus is a high
prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty
is illegally restrained such as when the accused's constitutional rights are disregarded. Such defect
results in the absence or loss of jurisdiction and therefore invalidates the trial and consequent conviction
of the accused whose fundamental right was violated. That void judgment of conviction may be
challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even
if another remedy which is less effective may be availed of by the defendant. Thus, failure by the accused
to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may
be granted upon a judgment already final. The writ of habeas corpus as an extraordinary remedy must
be liberally given effect so as to protect well a person whose liberty is at stake.
CASTRO, J., Separate opinion:

SANCHEZ, J p:

The thrust of petitioner's case presented in his original and supplementary

petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed
from imprisonment upon the ground that in the trial which resulted in his conviction 1 he was
denied his constitutional right not to be compelled to testify against himself. There is his prayer,
too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down
the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of
mandamus to direct the said court to forward his appeal to this Court for the reason that he was
raising purely questions of law.

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST SELF-INCRIMINATION. In 1901, early in the
history of constitutional government in this country, this Court reversed the conviction of an accused
who, having pleaded "not guilty," was required by the judge to testify and answer the complaint. The
case was that of United States vs. Junio and even in the case of Cabal vs. Kapunan it was assumed as a
familiar learning that the accused in a criminal case cannot be required to give testimony and that if his
testimony is needed at all against his co-accused, he must first be discharged. If Cabal, the respondent in
an administrative case, was required by an investigating committee to testify, it was because it was
thought that proceedings for forfeiture of illegally acquired property under REPUBLIC ACT 1379 were civil
and not criminal in nature.

The indictment in the court below the third amended information upon which the judgment of
conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1)
Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its
accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo
Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis
Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.
2

2. ID.; ID.; ID.; TAKING THE WITNESS STAND IS WITHIN THE PRIVILEGE. It is not disputed that the
accused in a criminal case may refuse not only to answer incriminatory questions but also to take the
witness stand.

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon
City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the
owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described.

3. ID.; ID.; ID.; AIM OF THE PRIVILEGE AGAINST SELF-INCRIMINATION. The constitutional provision that
"No person shall be compelled to be a witness against himself" may, on occasion, save a guilty man from
his just desserts, but it is aimed against a more far-reaching evil - the recurrence of the inquisition and
the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more
importance than occurrence of the lesser evil. The Government must thus establish guilt by evidence
independently and freely secured; it cannot by coercion prove a charge against an accused out of his
own mouth.

Upon arraignment, all the accused, except the three Does who have not been identified nor
apprehended, pleaded not guilty.

4. ID.; ID.; ID.; MOTIVES IRRELEVANT IN THE PRESERVATION OF LIBERTIES. The motives of men are
often commendable. What we must remember, however, is that preservation of liberties does not
depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer
or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the
guarantees of liberty contained in our constitution. The battle over the Bill of Rights is a never ending
one.
5. ID.; HABEAS CORPUS; ITS OFFICE. The fact that the judgment of conviction became final with the
dismissal of the appeal to the Court of Appeals for failure of the petitioner's former counsel to file a brief
is of no moment. That judgment is void, and it is precisely the abiding concern of the writ of habeas
corpus to provide redress for unconstitutional and wrongful convictions. Vindication of due process is
precisely the historic office of the Great Writ.

On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of
Rizal in Quezon City.
The trial opened with the following dialogue, which for the great bearing it has on this case, is here
reproduced:
"COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the accused]:
ATTY. CARBON [Counsel for petitioner Chavez]:
I am quite taken by surprise, as counsel for the accused
Roger Chavez, with this move of the fiscal
in presenting him as his witness. I object.

DECISION
COURT:

On what ground, counsel?

client.

ATTY. CARBON:

I conferred with my client and he assured me that he will

not testify for the prosecution this
morning after I have explained to him the
consequences of what will transpire.

On the ground that I have to confer with my client.

It is really surprising that at this stage, without my being
notified by the Fiscal, my client is being
presented as witness for the prosecution.
I want to say in passing that it is only at
this very moment that I come to know
about this strategy of the prosecution.

COURT:
What he will testify to does not necessarily incriminate
him, counsel.
And there is the right of the prosecution to ask anybody
to act as witness on the witness-stand
including the accused.

COURT (To the Fiscal):

You are not withdrawing the information against the
accused Roger Chavez by making [him a]
state witness?.
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
ATTY. CARBON:
As a matter of right, because it will incriminate my client,
I object.

If there should be any question that is incriminating then

that is the time for counsel to interpose
his objection and the court will sustain
him if and when the court feels that the
answer of this witness to the question
would incriminate him.
Counsel has all the assurance that the court will not
require the witness to answer questions
which would incriminate him.
But surely, counsel could not object to have the accused
called on the witness stand.
ATTY. CARBON:

COURT:
The Court will give counsel for Roger Chavez fifteen
minutes within which to confer and
explain to his client about the giving of his
testimony.

I submit.
xxx xxx xxx
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]:

xxx xxx xxx

MAY IT PLEASE THE COURT:
COURT: [after the recess]
Are the parties ready?
FISCAL:
We are ready to call on our first witness, Roger Chavez.

This incident of the accused Roger Chavez being called to

testify for the prosecution is something so
sudden that has come to the knowledge
of this counsel.
This representation has been apprised of the witnesses
embraced in the information.

ATTY. CARBON:
As per understanding, the proceedings was suspended in
order to enable me to confer with my

For which reason I pray this court that I be given at least

some days to meet whatever testimony
this witness will bring about.

I therefore move for postponement of today's hearing.

COURT:

COURT:

That is premature, counsel. Neither the court nor

counsels for the accused know what the
prosecution wants to establish by calling
this witness to the witness-stand.

The court will give counsel time within which to prepare

his cross-examination of this witness.
ATTY. IBASCO:

ATTY. CRUZ:
I labored under the impression that the witnesses for the
prosecution in this criminal case are those
only listed in the information.
I did not know until this morning that one of the accused
will testify as witness for the prosecution.

I submit.
COURT:
The Fiscal may proceed." 3
And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia".

COURT:
That's the reason why the court will go along with
counsels for the accused and will give
them time within which to prepare for
their cross-examination of this witness.
The court will not defer the taking of the direct
examination of the witness.
Call the witness to the witness-stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell
merchant, presently detained at the
Manila Police Department headquarters,
after being duly sworn according to law,
declared as follows:

Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may
be briefly narrated as follows:
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird
car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for
such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address
with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop, informed him about the
Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told
Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City.
Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car
mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car.
Asistio however told the two that he had a better idea on how to raise the money. His plan was to
capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone
who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio
would then register it, sell it to a third person for a profit. Chavez, known to be a car agent, was included
in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird.

This witness, Roger Chavez is one of the accused in this

case No. Q-5311.

In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment.
Sometime in the afternoon, Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang
was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while.
After Sumilang and Lee agreed on the purchase price (P21,000.00), they went to Binondo to Johnson
Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyernotary public in Quezon City, known to Chavez, for the drafting of the deed of sale. After the deed of sale
was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver
and Johnson Lee the witnesses thereto.

The information alleges conspiracy. Under Rule 123,

Section 12, it states:

As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the
Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee.

'The act or declaration of a conspirator relating to the

conspiracy and during its existence, may
be given in evidence against the coconspirator after the conspiracy is shown
by evidence other than such act or
declaration.'

At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the
Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the
restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer. 4

ATTY. IBASCO [Counsel for defendant Luis Asistio]:

WITH THE LEAVE OF THE COURT:

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for
pictures with some fans and came back, again left never to return. So did Chavez, who disappeared after

he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They
went out to the place where the Thunderbird was parked, found that it was gone. They then immediately
reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio
Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to
Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the
14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and
three days later, in the name of Asistio in Caloocan.

From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed
as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed
him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and
P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de
los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court.
Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City
Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000.00-loan
backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as
there were not enough funds therefor. Baltazar and Cailles agreed to give the money the next day, as
long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00.
Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days
afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And
so, Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez asked Sumilang for another
P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate
him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the
authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang
was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another
P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the
balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by
a Chinese who would be the vendor.

the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as
witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the
registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car
with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at
Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio
offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends'
reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a
down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some
financing company. Before said balance could be paid, the car was impounded.
The trial court gave credence to Sumilang's averment, strengthened by Baltazar's and Cailles'
corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom
the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was
discounted.
As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses
alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by
Johnson Lee in court.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a
matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable
doubt." 5 The trial court branded him "a self-confessed culprit". 6 The court further continued:
"It is not improbable that true to the saying that misery loves company
Roger Chavez tried to drag his co-accused down with him by coloring
his story with fabrications which he expected would easily stick
together what with the newspaper notoriety of one and the
sensationalism caused by the other. But Roger Chavez's accusations of
Asistio's participation is utterly uncorroborated. And coming, as it does,
from a man who has had at least two convictions for acts not very
different from those charged in this information, the Court would be
too gullible if it were to give full credence to his words even if they
concerned a man no less notorious than himself." 7
The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no
one but Roger Chavez to blame.

At Eugene's, Chavez asked Sumilang for the balance, Sumilang accommodated. There, Sumilang also saw
a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the
proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that
Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a
receipt for Chavez to sign.

The sum of all these is that the trial court freed all the accused except Roger Chavez who was found
guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an
indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than
fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or
Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo
the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody
of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the
sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract
price for the car.

After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him

The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of

The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00
agent's commission the expense of the buyer. Sumilang told Lee that he already paid part of the price to
Chavez.

Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to
show cause within ten days from notice why Chavez' appeal should not be considered abandoned and
dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the
period for the filing thereof lapsed on January 27, 1968 without any brief having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she
were allowed to file appellant's brief she would go along with the factual findings of the court below but
will show however that its conclusion is erroneous. 8
On May 14, 1968, the Court of Appeals, despite the forgoing explanation, resolved to dismiss the appeal.
A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam
resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of
Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to the
turn him over to Muntinglupa Bilibid Prisons pending execution of the judgment below, and ordered
remand of the case to the Quezon City court for execution of judgment.
It was at this stage that the present proceedings were commenced in this Court.
Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips
with the main problem presented.
We concentrate attention on that phase of the issues which relates to petitioner's assertion that he was
compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we
need not reach the others; in which case, these should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right
constitutionally entrenched against self-incrimination. He asks that the hand of this Court be made to
bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the
constitutional injunction that: "No person shall be compelled to be a witness against himself," 9 fully
echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be
entitled: "(e) To be exempt from being a witness against himself."
It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a
republican government"; 10 that "[i]t may suit the purposes of despotic power but it can not abide the
pure atmosphere of political liberty and personal freedom." 11 Mr. Justice Abad Santos recounts the
historical background of this constitutional inhibition, thus: " 'The maxim Nemo tenetur seipsum accusare
had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating
accused persons, which has long obtained in the continental system, and, until the expulsion of the
Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the
people against the exercise of arbitrary power, was not uncommon even in England. While the
admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in
the scale of incriminating evidence, if an accused person be asked to explain his apparent connection
with a crime under investigation, the ease with which the questions put to him may assume an
inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or
reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully
evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the
Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The
change in the English criminal procedure in that particular seems to be founded upon no statute and no
judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But,
however, adopted, it has become firmly embedded in English, as well as in American jurisprudence. So

deeply did the iniquities of the ancient system impress themselves upon the minds of the American
colonists that the states, with one accord, made a denial of the right to question an accused person a
part of their fundamental law, so that a maxim which in England was a mere rule of evidence became
clothed in this country with the impregnability of a constitutional enactment.' (Brown vs. Walker, 161
U.S., 591, 597; 40 Law. ed., 819, 821.)." 12 Mr. Justice Malcolm, in expressive language, tells us that this
maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13
An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government
of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating
the accused person"; and as having been adopted in the Philippines "to wipe out such practices as
formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and
to give testimony regarding the offenses with which they were charged."

So it is then that 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; 15 it
is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States
(January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was
intended to shield the guilty and imprudent as well as the innocent and foresighted." 16
It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To
repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Taada and
Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) takes note of U.S. vs. Navarro,
supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of
public policy and humanity; of policy because it would place the witness against the strongest
temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a
kind of duress every species and degree of which the law abhors. 17
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.
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." 18
2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case.
He was called by the prosecution as the first witness in that case to testify for the People during the first
day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he
broadened by the clear-cut statement that he will not testify. But petitioner's protestations were met
with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as
witness on the witness-stand including the accused," and that defense counsel "could not object to have
the accused called on the witness stand." The cumulative impact of all these is that accused petitioner
had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing
situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an
ordinary witness may be compelled to take the witness stand and claim the privilege as each question
requiring an incriminating answer is shot at him, 19 an accused may altogether refuse to take the witness

stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a
witness for the People would be to incriminate him. 21 The rule positively intends to avoid and prohibit
the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for
his conviction." 22 This rule may apply even to a co-defendant in a joint trial. 23
And the guide in the interpretation of the constitutional precept that the accused shall not be compelled
to furnish evidence against himself "is not the probability of the evidence but it is the capability of
abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with
these words:
"What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as
witness on the witness-stand including the accused.
If there should be any question that is incriminating then that is the
time for counsel to interpose his objection and the court will sustain
him if and when the court feels that the answer of this witness to the
question would incriminate him.
Counsel has all the assurance that the court will not require the witness
to answer questions which would incriminate him.
But surely, counsel could not object to have the accused called on the
witness-stand."
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII
Wigmore, p. 355, 25 while a defendant's knowledge of the facts "remains concealed within his bosom,
he is safe; but draw it from thence, and he is exposed" to conviction.
The judge's words heretofore quoted "But surely, counsel could not object to have the accused called
on the witness-stand" wielded authority. By those words, petitioner was enveloped by a coercive
force; they deprived him of his will to resist; they foreclosed choice: the realities of human nature tell us
that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent
underlay submission to take the witness stand. Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his objections to be a witness for the People
is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to
affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this
statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive
the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court.
He identified the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly of the view that the case for the People was built
primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness
for the prosecution." Indeed, the damaging facts forged in the decision were drawn directly from the lips
of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the
unequivocal statements in the decision that "even accused Chavez" identified "the very same
Thunderbird that Johnson Lee had offered for sale"; that Chavez' "testimony as witness for the
prosecution establishes his guilt beyond reasonable doubt"; and that Chavez is "a self-confessed culprit."
4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate

himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has
waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself
as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless
answered the questions in spite of his fear of being accused of perjury or being put under contempt, this
circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case
of compelled submission. He was a cowed participant in proceedings before a judge who possessed the
power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The
court made it abundantly clear that his testimony at least on direct examination would be taken right
then and there on the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no
objections to questions propounded to him were made. Here involved is not a mere question of selfincrimination. It is a defendant's constitutional immunity from being called to testify against himself. And
the objection made at the beginning is a continuing one.
There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal,
and intelligently, understandably, and willingly made; such waiver follows only where liberty of choice
has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on
vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out
that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights
and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an
intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make
waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his
original claim remains valid. For the privilege, we say again, is a rampant that gives protection even to
the guilty. 30
5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is
traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained
such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or
loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused
whose fundamental right was violated. 34 35 This writ may issue even if another remedy which is less
effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before
the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a
judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an
extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at
stake. The propriety of the writ was given the nod in that case, involving a violation of another
constitutional right, in this wise:

"Since the Sixth Amendment constitutionally entitles one charged with

crime to the assistance of Counsel, compliance with this constitutional
mandate is an essential jurisdictional prerequisite to a Federal Court's
authority to deprive an accused of his life or liberty. When this right is
properly waived, the assistance of Counsel is no longer a necessary
element of the Court's jurisdiction to proceed to conviction and
sentence. If the accused, however, is not represented by Counsel and
has not competently and intelligently waived his constitutional right,
the Sixth Amendment stands as a jurisdictional bar to a valid conviction
and sentence depriving him of his life or liberty. A court's jurisdiction at

the beginning of trial may be lost 'in the course of the proceedings' due
to failure to complete the court as the Sixth Amendment requires
by providing Counsel for an accused who is unable to obtain Counsel,
who has not intelligently waived this constitutional guaranty, and
whose life or liberty is at stake. If this requirement of the Sixth
Amendment is not complied with, the court no longer has jurisdiction to
proceed. The judgment of conviction pronounced by a court without
jurisdiction is void, and one imprisoned thereunder may obtain release
by habeas corpus." 41
Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a
clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the
writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the rightful custody of any person is withheld
from the person entitled thereto."
Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in
legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless
in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts
performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be
responsible as trespassers . . ." 42
6. Respondent's return 43 shows that petitioner is still serving under a final and valid judgment of
conviction for another offense. We should guard against the improvident issuance of an order
discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled
to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of
Rizal, Quezon City Branch, under which he was prosecuted and convicted.
Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of
the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner
Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in
Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused,"
to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause
or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of
Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such
other cause or reason ceases to exist.

Bausa, Ampil & Suarez for intervenors-appellants.

SYLLABUS

1.CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT AGAINST SELF- INCRIMINATION;

APPLICABILITY THEREOF IN ADMINISTRATIVE PROCEEDINGS. Where petitioner was the respondent in
the malpractice charge filed against him with the Board of Medical Examiners, the said Board cannot
compel him to take the witness stand as a witness for the complainants. The principle against selfincrimination is equally applicable to a proceeding that could possibly result in the loss of the privilege to
practice the medical profession.
2.ID.; ID.; ID.; RIGHT INCLUDES RIGHT TO SILENCE. The constitutional guarantee against selfincrimination is not limited to that of allowing a witness to object to questions the answers to which
could lead to a penal liability being subsequently incurred. The constitutional guarantee protects as well
the right to silence.
3.ID.; ID.; ID.; ID.; REASON. Why the constitutional guarantee against self-incrimination protects as
well the right to silence 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.
4.ID.; ID.; ID.; SAID RIGHT IS IDENTIFIED WITH RIGHT TO PRIVACY. It is of interest to note that while
earlier decisions stressed the principle of humanity on which the right against self-incrimination 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.
DECISION

FERNANDO, J p:
No costs. So ordered.
||| (Chavez v. Court of Appeals, G.R. No. L-29169, August 19, 1968)
ARSENIO PASCUAL, JR., petitioner-appellee, vs. BOARD OF MEDICAL
EXAMINERS, respondent-appellant, SALVADOR GATBONTON and
ENRIQUETA GATBONTON, intervenors-appellants.

Conrado B. Enriquez for petitioner-appellee.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and Solicitor Pedro A.
Ramirez for respondent-appellant.

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, 3 decided 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, 5
where 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 case 7 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.

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
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 of 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 medical practitioner, for some an even greater deprivation.
To the argument that Cabal v. Kapunan could thus be 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 intervenorsappellants 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.

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." 12 Only last year, in Chavez v. Court of Appeals, 13 speaking through Justice
Sanchez, we reaffirmed the doctrine anew that is the right of a defendant "to forego testimony, to
remain silent, unless he chooses to take the witness standwith undiluted, unfettered exercise of his
own free genuine will."

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 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.

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

1.We affirm the lower court decision on appeal as it does manifest fealty to the principle announced by
us in Cabal 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, 9 the complainant requested the investigating committee that

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
||| (Pascual, Jr. v. Board of Medical Examiners, G.R. No. L-25018, May 26, 1969)
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO ESTOISTA,
defendant-appellant.

Ramon Diokno and Jose W. Diokno for appellant.

First Assistant Solicitor General Ruperto Kapunan Jr. and Acting Solicitor Antonio
Consing for appellee.
SYLLABUS

1. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS. It being established that

the defendant was alone when he walked to the plantation where he was to hunt with the rifle of
his father, in whose name the firearm was licensed, and that the son, away from his father's sight
and control, carried the gun for the only purpose of using it, as in fact he did with fatal
consequences, the evidence support the son's conviction for the offense of illegal possession of
firearm which was in accordance with law.
2. ID.; ID.; U. S. vs. SAMSON (16 Phil., 323), EXPLAINED. The implied holding in U.
S. vs. Samson (16 Phil., 323) that the intention to possess is an essential element of a violation of
the Firearms Law was not intended to imply title or right to the weapon to the exclusion of
everyone else. The court did not mean only intention to own but also intention to use. From the
very nature of the subject matter of the prohibition, control or dominion of the use of the
weapon by the holder regardless of ownership is, of necessity, the essential factor.
3. ID.; ID.; ID.; MEANING OF THE TERMS "CONTROL" AND "DOMINION." The
terms "control" and "dominion" are relative terms not susceptible of exact definition, and
opinions on the degree and character of control or dominion sufficient to constitute a violation
vary. The rule laid down by United States courts - rule which we here adopt - is that temporary,
incidental, casual or harmless possession or control of a firearm is not violation of a statute
prohibiting the possessing or carrying of this kind of weapon. A typical example of such
possession is where "a person picks up a weapon or hands it to another to examine or hold for a
moment, or to shoot at some object." (Sanderson vs. State, 5 S.W., 138; 68 C. J., 22.)
4. CONSTITUTIONAL LAW; CRUEL AND UNUSUAL PUNISHMENT; PENALTY

PROVIDED FOR IN Republic Act No. 4 DEEMED CONSTITUTIONAL. Without deciding whether
the prohibition of the Constitution against infliction of cruel and unusual punishment applies both
to the form of the penalty and the duration of imprisonment, confinement from 5 to 10 years for
possessing or carrying firearm is not cruel or unusual, having due regard to the prevalent
conditions which the law proposes to curb.
5. CRIMINAL LAW; PENALTIES; ILLEGAL POSSESSION OF FIREARM. As Republic
Act No. 4 provides a penalty of from 5 to 10 years imprisonment for illegal possession of a firearm,
the court can not but impose upon the offender the minimum at least of the penalty provided. In
this case, however, considering the degree of malice of the defendant, application of the law to
its full extent would be too harsh, and a recommendation is made to the President to reduce to
fix months the penalty imposed upon this defendant.
6. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; CONSTITUTIONAL LAW;
CRUEL AND UNUSUAL PUNISHMENT; FIVE YEARS' IMPRISONMENT, NOT CRUEL AND UNUSUAL.
To come under the constitutional ban against cruel and unusual punishment, the penalty
imposed must be "flagrantly and plainly oppressive," "wholly disproportionate to the nature of
the offense as to shock the moral sense of the community." (24 C. J. S., 1187-1188.) Five years'
confinement for possessing firearms can not be said to be cruel and unusual, barbarous, or
excessive to the extent of being shocking to public conscience.
7. ID.; ID.; CONFISCATION OF FIREARMS BELONGING TO A PERSON OTHER THAN
THE DEFENDANT. Section 1 of Republic Act No. 4 does not say that firearms unlawfully
possessed or carried are to be confiscated only if they belong to the defendant, nor is such
intention deducible from the language of the Act. Except perhaps where the lawful owner was
innocent of, or without fault in, the use of his property by another, confiscation accords with the
legislative intent. Ownership or possession of firearms is not a natural right protected by the
constitutional prohibition against depriving one of his property without due process of law.
Above the right to own property is the inherent attribute of sovereignty the police power of
the state to protect its citizens and to provide for the safety and good order of society. (16 C. J. S.,
539, 540.) Pursuant to the exercise of police power, the right to private property may be limited,
restricted, and impaired so as to promote the general welfare, public order and safety. (Id., 611).
The power of the legislature to prohibit the possession of deadly weapon carries with it the
power to provide for the confiscation or forfeiture of weapons unlawfully used or allowed by the
licensed owner to be used.
DECISION

TUASON, J p:
Prosecuted in the Court of First Instance of Lanao for homicide through
reckless imprudence and illegal possession of firearm under one information, the
appellant was acquitted of the first offense and found guilty of the second, for which
he was sentenced to one year imprisonment. This appeal is from that sentence raising
factual, legal and constitutional questions. The constitutional question, set up after
the submission of the briefs, has to do with the objection that the penalty from 5 to
10 years of imprisonment and fines provided by Republic Act No. 4 is cruel and
unusual.
As to the facts. The firearm with which the appellant was charged with

having in his possession was a rifle and belonged to his father, Bruno Estoista, who
held a legal permit for it. Father and son lived in the same house, a little distance
from a 27-hectare estate belonging to the family which was partly covered with
cogon grass, tall weeds and second growth trees. From a spot in the plantation 100 to
120 meters from the house, the defendant took a shot at a wild rooster and hit
Diragon Dima, a laborer of the family who was setting a trap for wild chickens and
whose presence was not perceived by the accused.

In United States vs. Samson (16 Phil., 323), cited by defense counsel, it
was held that carrying a gun by order of the owner does not constitute illegal
possession of firearm. The facts in that case were that a shotgun and nine cartridges
which belonged to one Pablo Padilla, who had a proper permit to possess them, were
seized by the police from Samson while walking in the town of Santa Rosa, Nueva
Ecija. Padilla was to use the shotgun in hunting that day and, as he was coming along
on horseback, sent Samson on ahead.

The evidence is somewhat conflicting on whether the owner of the

rifle was with the accused at the time of the accidental killing.

Republic Act No. 4, amending section 2692 of the Revised

Administrative Code, in its pertinent provision is directed against any person who
possesses any firearm, ammunition therefor, etc. A point to consider in this
connection is the meaning of the word "possesses. "It goes without saying that this
word was employed in its broad sense so as to include "carries" and "holds." This has
to be so if the manifest intent of the Act is to be effective. The same evils, the same
perils to public security, which the Act penalizes exist whether the unlicensed holder
of a prohibited weapon be its owner or a borrower. To accomplish the object of this
law the proprietary concept of the possession can have no bearing whatever.
"Ownership of the weapon is necessary only insofar as the ownership may tend to
establish the guilt or intention of the accused." It is remarkable that in the United
States, where the right to bear arms for defense is ensured by the federal and many
state constitutions, legislation has been very generally enacted severely restricting
the carrying of deadly weapons, and the power of state legislatures to do so has been
upheld.

Bruno Estoista testified that on the morning of the accident, February

10, 1949, his son told him that there were wild chickens on the plantation "scratching
palay and corn" plants and asked if he might shoot them; that Bruno told his son to
wait, got the rifle from the house or locker, handed it over to Alberto who is a "sharpshooter" and "shoots better," and walked about 20 meters behind the young man;
that Bruno was that far from Alberto when the latter fired and accidentally wounded
their servant.
The defendant's key testimony is: "When I heard wild rooster crowing I
told my father about the said wild rooster crowing near our house and he told me to
shoot the said wild rooster, so I went to shoot it."
Bruno's testimony at the trial is in direct contradiction to his and his
son's statements at the Constabulary headquarters on the same morning of the
shooting, and sworn to by them before the justice of the peace soon after.
Bruno related on that occasion that Alberto "went to hunt for wild
roosters;" that "later on my son Alberto came to inform me that he had accidentally
hit our laborer;" that thereupon he "went with my son to see what happened."
Queried "who was with Alberto when he went out hunting," Bruno replied, "He was
alone."
On his part, the defendant declared on the same occasion that Diragon
Dima, after being shot, requested to be taken to his (Dima's) house; that as the
accused was able to carry the wounded man on]y about 50 meters, Dima asked the
defendant to call Bruno "who was in the house" which Alberto did. To the question
who his companion was when he shot at a rooster, Alberto said, "I was alone."
There is not the slightest ground to believe that these affidavits
contained anything but the truth, especially that part regarding Bruno's whereabouts
when the defendant used the rifle. Both affiants are very intelligent, the affidavits
were executed immediately upon their arrival at the Constabulary headquarters,
there is no hint of any undue pressure brought to bear upon either of them, and,
above all, they stood to gain nothing from the statement that the accused was
unaccompanied. In contrast, Bruno's testimony in court was interested, given with his
son's acquittal in view. And especially is the father's veracity in court to be distrusted
because by Alberto's unsolicited admission, he had been in the habit of going out
hunting in other places and for target practices, and because by Bruno's unwitting
admission, his son, who had no gun of his own, is a sharpshooter and shoots better.
It being established that the defendant was alone when he walked to
the plantation with his father's gun, the next question that presents itself is: Does this
evidence support conviction as a matter of law?

In the light of these considerations, it is a mistake to point to United

States vs. Samson, supra, as authority for the appellant's plea for acquittal. The
implied holding in that case that the intention to possess is an essential element of a
violation of the Firearms Law was not intended to imply title or right to the weapon
to the exclusion of everyone else. The court did not mean only intention to own but
also intention to use. From the very nature of the subject matter of the prohibition
control or dominion of the use of the weapon by the holder regardless of ownership
is, of necessity, the essential factor.
The terms "control" and "dominion" themselves are relative terms not
susceptible of exact definition, and opinions on the degree and character of control
or dominion sufficient to constitute a violation vary. The rule laid down by United
States courts rule which we here adopt is that temporary, incidental, casual or
harmless possession or control of a firearm is not a violation of a statute prohibiting
the possessing or carrying of this kind of weapon. A typical example of such
possession is where "a person picks up a weapon or hands it to another to examine or
hold for a moment, or to shoot at some object." (Sanderson vs. State, 5 S.W., 138; 68
C.J., 22)
Appellant's case does not meet the above test. His holding or carrying
of his father's gun was not incidental, casual, temporary or harmless. Away from his
father's sight and control, he carried the gun for the only purpose of using it, as in fact
he did, with fatal consequences.
Incidentally, herein lies a fundamental difference between the case at
bar and the Samson case. Although Samson had physical control of his employer's
shotgun and cartridges, his possession thereof was undoubtedly harmless and
innocent, as evidenced by the fact that, apparently, he bore them in full view of the

people he met and of the authorities. Unlike the appellant herein, Samson carried the
gun solely in obedience to its owners order or request without any inferable intention
to use it as a weapon. It is of interest to note that even in the United States where, as
stated, the right to bear arms as a means of defense is guaranteed, possession such
as that by Samson is by the weight of authority considered a violation of similar
statutes.
Without deciding whether the prohibition of the Constitution against
infliction of cruel and unusual punishment applies both to the form of the penalty and
the duration of imprisonment, it is our opinion that confinement from 6 to 10 years
for possessing or carrying firearm is not cruel or unusual, having due regard to the
prevalent conditions which the law proposes to suppress or curb. The rampant
lawlessness against property, person, and even the very security of the Government,
directly traceable in large measure to promiscuous carrying and use of powerful
weapons, justify imprisonment which in normal circumstances might appear
excessive. If imprisonment from 5 to 10 years is out of proportion to the present case
in view of certain circumstances, the law is not to be declared unconstitutional for
this reason. The constitutionality of an act of the legislature is not to be judged in the
light of exceptional cases. Small transgressors for which the heavy net was not spread
are, like small fishes, bound to be caught, and it is to meet such a situation as this that
courts are advised to make a recommendation to the Chief Executive for clemency or
reduction of the penalty. (Art. 5, Revised Penal Code; People vs. De la Cruz, 92 Phil.
906.)
The sentence imposed by the lower court is much below the penalty
authorized by Republic Act No. 4. The judgment is therefore modified so as to
sentence the accused to imprisonment for five years. However, considering the
degree of malice of the defendant, application of the law to its full extent would be
too harsh and, accordingly, it is ordered that copy of this decision be furnished to the
President, thru the Secretary of Justice, with the recommendation that the
imprisonment herein imposed be reduced to six months. The appellant will pay the
costs of both instances.
Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista
Angelo and Labrador, JJ., concur.
RESOLUTION
December 3, 1953
TUASON, J.:
The constitutionality of Republic Act No. 4, with reference to the
penalty therein provided, was carefully considered. In branding imprisonment for five
years too harsh and out of proportion in this case, we had in mind that six months
was commensurate and just for the appellant's offense, taking into consideration his
intention and the degree of his malice, rather than that it infringes the constitutional
prohibition against the infliction of cruel and unusual punishment.
It takes more than merely being harsh, excessive, out of proportion, or
severe for a penalty to be obnoxious to the Constitution. "The fact that the
punishment authorized by the statute is severe does not make it cruel and unusual."
(24 C. J. S., 1187- 1188.) Expressed in other terms, it has been held that to come
under the ban, the punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of the

community."(Idem.) Having in mind the necessity for a radical measure and the public
interest at stake, we do not believe that five years' confinement for possessing
firearms, even as applied to appellant's and similar cases, can be said to be cruel and
unusual, barbarous, or excessive to the extent of being shocking to public conscience.
It is of interest to note that the validity on constitutional grounds of the Act in
question was contested neither at the trial nor in the elaborate printed brief for the
appellant; it was raised for the first time in the course of the oral argument in the
Court of Appeals. It is also noteworthy, as possible gauge of popular and judicial
reaction to the duration of the imprisonment stipulated in the statute, that some
members of the court at first expressed opposition to any recommendation for
executive clemency for the appellant, believing that he deserved imprisonment
within the prescribed range.
The sufficiency of the evidence for appellant's conviction under
Republic Act No. 4 likewise had received close attention and study. There is no need
on our part to add anything to what has been said, except to point out for
clarification that the references to defendant's previous uses of his father's gun and
the fatal consequences of his last use of it, were made simply to emphasize that his
possession of the prohibited weapon was not casual, incidental, or harmless. His
previous conduct was relevant in determining his motive and intention, and to
disprove the claim that his father followed his son so as not to lose control of the
firearm. It was far from the thought of the court to condemn the appellant for acts
with which he had not been charged or of which he had been pronounced innocent.
The confiscation of the gun is, in our opinion, in accordance with
section 1 of Republic Act No. 4, which reads:
"SECTION 1. Section twenty-six hundred and
ninety-two of the Revised Administrative Code, as amended
by Commonwealth Act Numbered fifty-six, is hereby further
amended to read as follows:
"SEC. 2692. Unlawful manufacture, dealing in,
acquisition, disposition, or possession of firearms, or
ammunition therefor, or instrument used or intended to be
used in the manufacture of firearms or ammunition. Any
person who manufactures, deals in, acquires, disposes, or
possesses, any firearm, parts of firearms, or ammunition
therefor, or instrument or implement used or intended to
be used in the manufacture of firearms or ammunition in
violation of any provision of sections eight hundred and
seventy-seven to nine hundred and six, inclusive, of this
Code, as amended, shall, upon conviction, be punished by
imprisonment for a period of not less than one year and one
day nor more than five years, or both such imprisonment
and a fine of not less than one thousand pesos nor more
than five thousand pesos, in the discretion of the court. If
the article illegally possessed is a rifle, carbine, grease gun,
bazooka, machine gun, submachine gun, hand grenade,
bomb, artillery of any kind or ammunition exclusively
intended for such weapons, such period of imprisonment
shall be not less than five years nor more than ten years. A
conviction under this section shall carry with it the forfeiture

of the prohibited article or articles to the Philippine

Government.
"The possession of any instrument or
implement which is directly useful in the manufacture of
firearms or ammunition on the part of any person whose
business or employment does not deal with such instrument
or implement shall be prima facie proof that such article is
intended to be used in the manufacture of firearms or
ammunition."
This provision does not say that firearms unlawfully possessed or
carried are to be confiscated only if they belong to the defendant, nor is such
intention deducible from the language of the act. We are inclined to, and do, believe
that, except perhaps where the lawful owner was innocent of, or without fault in, the
use of his property by another, confiscation accords with the legislative intent.
We can foresee the objection that such legislation deprives one of his
property without due process of law. The answer to this is that ownership or
possession of firearms is not a natural right protected by the Constitution. Above the
right to own property is the inherent attribute of sovereignty - the police power of
the state to protect its citizens and to provide for the safety and good order of society.
(16 C. J. S., 539, 540.) Pursuant to the exercise of police power, the right to private
property may be limited, restricted, and impaired so as to promote the general
welfare, public order and safety. (Id., 611.) The power of the legislature to prohibit
the possession of deadly weapon carries with it the power to provide for the
confiscation or forfeiture of weapons unlawfully used or allowed by the licensed
owner to be used.
||| (People v. Estoista, G.R. No. L-5793, August 27, 1953)
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSEFINA A.
ESPARAS and RODRIGO O. LIBED, accused-appellant.

Solicitor General for plaintiff-appellee.

Florencio V. Aghijvas for accused-appellants.
SYLLABUS

1. REMEDIAL LAW; SUPREME COURT; POWER TO REVIEW DECISION IMPOSING DEATH PENALTY, NOT
SUBJECT TO WAIVER. As the accused remains at large up to the present time, the Issue that confronts
the Court is whether or not it will proceed to automatically review her death sentence. The issue need
not befuddle us. In the 1910 ground-breaking case of U.S. vs. Laguna, et al., we already held thru Mr.
Justice Moreland, that the power of this Court to review a decision imposing the death penalty cannot be
waived either by the accused or by the courts. Our case law under the 1935 Constitution reiterated
Laguna ruling. Thus, in the 1953 case of People vs. Villanueva, we held that the withdrawal of an appeal
by a death convict does not deprive this Court of its jurisdiction to review his conviction. The 1971 case of
People vs. Cornelio, et al., involves the escape of a death convict. In no uncertain terms, we held that the
escape of a death convict does not relieve this Court of its duty of reviewing his conviction. Then came

the 1973 Constitution which likewise did not prohibit the death penalty. Section 9, Rule 122 continued to
provide the procedure for review of death penalty cases by this Court. Finally, we have the 1987
Constitution which prohibits the imposition of the death penalty unless for compelling reasons involving
heinous crimes Congress so provides. On December 13, 1993, Congress reimposed the death penalty in
cases involving the commission of heinous crimes. This revived the procedure by which this Court
reviews death penalty cases pursuant to the Rules of Court. It remains automatic and does not depend
on the whims of the death convict. It continues to be mandatory, and leaves this Court without any
option.
2. ID.; ACTIONS; APPEALS; RULE AUTHORIZING DISMISSAL OF APPEAL WHEN APPELLANT JUMPS BAIL,
NOT APPLIED WHERE DEATH PENALTY WAS IMPOSED. With due respect to the dissenting opinions of
our esteemed colleagues, Section 8 of Rule 124 of the Rules of Court which, inter alia, authorizes the
dismissal of an appeal when the appellant jumps bail, has no application to cases where the death
penalty has been imposed. In death penalty cases, automatic review is mandatory. This is the text and
tone of section 12, Rule 122, which is the more applicable rule. No litigant can repudiate this power
which is bestowed by the Constitution. The power is more of a sacred duty which we have to discharge to
assure the People that the innocence of a citizen is our concern not only in crimes that slight but even
more, in crimes that shock the conscience. This concern cannot be diluted.
FRANCISCO, J., separate opinion:
1. REMEDIAL LAW; ACTIONS; APPEAL; PRESUPPOSES JURISDICTION OVER THE PERSON OF THE
ACCUSED. An appeal is a statutory remedy for the correction of errors which might have been
committed. With the accused lies the power and option to avail of the remedy, and with the appellate
court belongs the power to affirm or reverse the accused's conviction. Appeal, however, presupposes
jurisdiction over the person of the accused.
2. ID.; ID., ESCAPE BY ACCUSED CONSIDERED WAIVER OF APPEAL. Since appeal is a mere statutory
privilege and is not a natural right nor part of the due process, it may only be exercised in the manner
and in acordance with the provisions of the law. Thus, an accused who escapes from prison or
confinement loses his standing in court and unless he surrenders or submits to the jurisdiction of the
court he is deemed to have waived any right to seek relief from the court (People v. Agbulos, 222 SCRA
196; People v. Mapalao, 197 SCRA 79). A contrary view would encourage the accused to trifle with the
administration of justice, and provide means for guilty parties to escape punishment (People v. Ang Gioc,
73 Phil 366). In this case, the accused escaped from confinement and heretofore refuses to surrender to
the proper authorities, thus she must be deemed to have abandoned the appeal (see People v. Quiritan,
197 SCRA 32; People v. Acol, 232 SCRA 406; People v. Codilla, 224 SCRA 104).
3. ID.; ID.; ID.; RULE APPLIES TO THREE (3) METHODS OF APPEAL TO THE SUPREME COURT IN CRIMINAL
CASES. In criminal cases, appeal may be taken to the Supreme Court via the following steps: by filing a
notice of appeal in those cases where the penalty of reclusion perpetua was imposed, by filing a petition
for review on certiorari under Rule 45 where the penalty imposed is not reclusion perpetua and the
appeal would involve only question of law (People v. Pagsanjan, 221 SCRA 735), and by automatic review
where the penalty imposed is death (R.A. NO. 7659, Sec. 22; Rule 122, Sec. 10, Revised Rules of Court).
An appeal has "for its object simply and solely the protection of the accused." Appeal by way of
automatic review is plainly another mode of appeal and has an objective similar to any other modes of
appeal, i.e., the protection of the accused. If the accused has escaped, then he refuses to avail of the
protection of the Court why then should the Court insist in protecting him. In the same vein, "the law
providing for automatic review of death sentence seeks to favor the [accused]." If the accused has
absconded or escaped from confinement then who is to be favored by the automatic review a fugitive
from justice? Hence, if the escape of the accused may be deemed waiver of the right to appeal in any
other mode of appeal, then the same must apply to an appeal by way of automatic review. I fail to see, in

this connection, any cogent reason why an automatic review should be given status different from the
other modes of appeal. I thus find, and with due respect to my esteemed colleague Mr. Justice Puno,
unacceptable the proposition that an appeal by way of automatic review is not subject to waiver. If the
constitutional rights of the accused enshrined under Artice III of the 1987 Constitution, such as right
against unreasonable searches and seizures, right against self-incrimination, right to remain silent,
among others, can be waived, then with more reason with the right to appeal which is merely of
statutory origin.
PANGANIBAN, J., separate opinion
REMEDIAL LAW; ACTIONS; APPEAL; ESCAPE OF ACCUSED CONSTITUTES ABANDONMENT OF APPEAL;
HIGH COURT WITH INESCAPABLE DUTY TO REVIEW DECISIONS UPON RE-ARREST OF THE ACCUSED.
Without repeating the legal arguments pro and con, as these were already eloquently presented by Mr.
Justice Puno, Mr. Justice Padilla and Mr. Justice Francisco, I hold that the judicial taking of life cannot be
left to mere legal logic. Life is too precious to be settled against legalism, however exalted. I believe that
this Court cannot abandon its sacred duty to God and country to see to it that a lower court judgment
that takes away life is ERROR FREE and can stand THE MOST SEARCHING SCRUTINY. At the same time,
this Court must not enable an escaped convict to make a mockery of the foundations of human justice.
Consequently, i believe we must combine the sacred with the human. After prayer, study, reflection and
discernment, I am thoroughly convinced that this Court has the inescapable duty to review this and
similar life-taking decisions, but only after the accused's is re-arrested and taken back into the custody of
law. In view of the foregoing, I vote to grant the accused's motion for extension to file brief and in view
of the delay in the disposition of such motion due to the lengthy court deliberation thereon, to give her a
new period of thirty (30) days from notice within which to file her Brief.
PADILLA, J., dissenting opinion:
1. REMEDIAL LAW; ACTIONS; ONE WHO SEEKS POSITIVE RELIEF FROM A COURT OF LAW SHOULD
SUBMIT TO ITS JURISDICTION. It is basic in procedural law that one who seeks positive relief from a
court of law should submit to its jurisdiction. In criminal law and procedure, it is likewise settled that the
trial court has to acquire jurisdiction over the person of the accused before it can proceed to try the case
and render judgment against him. Thus, in the present case, trial proceeded only as to the accused
Josefina A. Esparas, who earlier entered a plea of not guilty, while her co-accused Rodrigo O. Libed has
remained at large and has been arraigned or tried.
2. ID.; ID.; APPEAL; JURISDICTION OVER THE PERSON OF THE ACCUSED REQUIRED DURING PENDENCY
THEREOF; APPEAL MAY BE DISMISSED WHERE ACCUSED ESCAPES. Jurisdiction over the person of the
accused is also required by the Rules of Court during the pendency of an appeal from a judgment of
conviction in the trial court so that, in the event of an accused's escape from detention during his appeal,
the appeal may be dismissed outright by the appellate court. Section 8, Rule 124 of the Rules of Court
gives the appellate court the authority to dismiss an appeal when the appellant escapes from prison or
confinement or jumps bail or flees to a foreign country during the pendency of the appeal.
3. ID.; ID.; ID.; ID.; ID.; RULES WHERE ACCUSED IS A DEATH CONVICT. It is my considered view however
that a distinction should be made between a death convict, i.e., one sentenced to death by a trial court,
who remains in the custody of law, but who voluntarily withdraws his appeal and a death convict, i.e.,
one sentenced to death by the trial court but who escapes from the custody of the law during the
pendency of the appeal. It should be clear in the first case, that even if the death convict withdraws his
appeal from the trial court's judgment sentencing him to death, the appellate court may still and
nonetheless review the judgment of conviction for the convict-appellant has at least remained in the
custody of law to await final verdict of the case. In the second case, however, the accused no longer
recognizes and respects the authority of law and the duly-constituted authorities in general and this

Court in particular. Such superlicious conduct of an escapee cannot and should not be taken lightly by
the court. Respect for and recognition of the authority of the court are essential and implicit elements in
an effective and credible judicial system. No one, it should be stressed, should be allowed to make a
mockery of the justice system by, in one breadth, seeking its protection and even vindication via an
automatic review of death sentence and, in another breath, continuing to be a fugitive from justice and
repudiating the very authority of the system whose protection he seeks and invokes. "Mandatory
jurisdiction" of the Supreme Court to review death penalty cases and "automatic review" of death
penalty cases have to assume implicitly that the accused in his person is subject to the processes and
jurisdiction of the Supreme Court if it is to review his conviction to death by the trial court.

RESOLUTION

PUNO, J p:
Accused Josefina A. Esparas was charged, with violation of R.A. No. 6425 as amended by R.A. No. 759 for
importing into the country twenty (20) kilograms of "shabu" in Criminal Case No. 94-5897 before the RTC
of Pasay City, Br. 114.
After arraignment, the accused escaped from jail and was tried in absentia. On March 13, 1995, the trial
court found her guilty as charged and imposed on her the death penalty.
As the accused remains at large up to the present time, the issue that confronts the Court is whether or
not it will proceed to automatically review her death sentence. The issue need not befuddle us. In the
1910 ground-breaking case of U.S. vs. Laguna, et al., 1 we already held thru Mr. Justice Moreland, that
the power of this Court to review a decision imposing the death penalty cannot be waived either by the
accused or by the courts, viz.:
"xxx xxx xxx
"It is apparent from these provisions that the judgment of conviction
and sentence thereunder by the trial court does not, in reality, conclude
the trial of the accused. Such trial is not terminated until the Supreme
Court has reviewed the facts and the law as applied thereto by the
court below. The judgment of conviction entered on the trial is not final,
can not be executed, and is wholly without force or effect until the case
has been passed upon by the Supreme Court. In a sense the trial court
acts as a commissioner who takes the testimony and reports thereon to
the Supreme Court with his recommendation. While in practice he
enters a judgment of conviction and sentences the prisoner thereunder,
in reality, until passed upon by the Supreme Court, it has none of the
attributes of a final judgment and sentence. It is a mere
recommendation to the Supreme Court, based upon the facts on the
record which are presented with it. This is meant in no sense to detract
from the dignity and power of Courts of First Instance. It means simply
that the portion of Spanish procedure which related to cases where
capital punishment was imposed still survives.

"xxx xxx xxx

"The requirement that the Supreme Court pass on a case in which
capital punishment has been imposed by the sentence of the trial court
is one having for its object simply and solely the protection of the
accused. Having received the highest penalty which the law imposes, he
is entitled under the law to have the sentence and all the facts and
circumstances upon which it is founded placed before the highest
tribunal of the land to the end that its justice and legality may be clearly
and conclusively determined. Such procedure is merciful. It gives a
second chance for life. Neither the courts nor the accused can waive it.
It is a provision of the law that brooks no interference and tolerates no
evasions." (Emphasis supplied)

the judgment of conviction entered in the trial court is not final, and
cannot be executed and is wholly without force or effect until the case
has been passed upon by the Supreme Court en consulta; that although
a judgment of conviction is entered by the trial court, said decision has
none of the attributes of a final judgment and sentence; that until it has
been reviewed by the Supreme Court which finally passes upon it, the
same is not final and conclusive; and that this automatic review by the
Supreme Court of decisions imposing the death penalty is something
which neither the court nor the accused could waive or evade."
The 1971 case of People vs. Cornelio, et al., 6 involves the escape of a death convict. In no uncertain
terms, we held that the escape of a death convict does not relieve this Court of its duty of reviewing his
conviction. In the 1972 case of People vs. Daban, et al., 7 the ponencia of former Chief Justice Fernando
further stressed, to wit:

The Laguna case interpreted section 50 of General Orders No. 58 as amended, which provides:
"xxx xxx xxx"
"xxx xxx xxx
"It shall not be necessary to forward to the Supreme Court the record,
or any part thereof, of any case in which there shall have been an
acquittal, or in which the sentence imposed is not death, unless such
case shall have been duly appealed; but such sentence shall be
executed upon the order of the court in which the trial was had. The
records of all cases in which the death penalty shall have been imposed
by any Court of First Instance, whether the defendant shall have
appealed or not, and of all cases in which appeals shall have been taken
shall be forwarded to the Supreme Court for investigation and judgment
as law and justice shall dictate. The records of such cases shall be
forwarded to the clerk of the Supreme Court within twenty days, but
not earlier than fifteen days after the rendition of sentence."
The 1935 Constitution did not prohibit the imposition of the death penalty. Its section 2(4) of Article VIII
provided for review by this Court of death penalty cases. Both our Rules of Court of 1940 2 and 1964 3
require the transmission to this Court of the records of all cases in which the death penalty shall have
been imposed by the trial court, whether the defendant shall have appealed or not, for review and
judgment as the law and justice shall dictate. It will be noted that these rules were taken from the
second part of General Orders No. 58, as amended by Section 4, Act No. 194. 4
Necessarily, our case law under the 1935 Constitution reiterated the Laguna ruling. Thus, in the 1953
case of People vs. Villanueva, 5 we held that the withdrawal of an appeal by a death convict does not
deprive this Court of its jurisdiction to review his conviction, viz.:
"An accused appealing from a decision sentencing him to death may be
allowed to withdraw his appeal like any other appellant, in an ordinary
criminal case before the briefs are filed, but his withdrawal of the
appeal does not remove the case from the jurisdiction of this court
which under the law is authorized and called upon to review the
decision though unappealed. Consequently, the withdrawal of the
appeal in this case could not serve to render the decision of the
People's Court final. In fact, as was said by this court through Justice
Moreland in the case of U.S. vs. Laguna, 17 Phil. 532, speaking on the
matter of review by this court of a decision imposing the death penalty,

"Now, as to the law. It would appear that respondent Demaisip is

unaware of Section 9 of Rule 122. Thus: 'The records of all cases in
which the death penalty shall been imposed by any Court of First
Instance, whether the defendant shall have appealed or not, shall be
forwarded to the Supreme Court fore review and judgment as law and
justice shall dictate. The records of such cases shall be forwarded to the
clerk of the Supreme Court within twenty (20) days but not earlier than
fifteen (15) days, after rendition or promulgation of the sentence in the
form prescribed by section 11 of Rule 41. The transcript shall also be
forwarded as provided in section 12 of Rule 41 within five (5) days after
the filing thereof by the stenographer.' The penalty imposed on
appellant Daban y Ganzon in the judgment of November 21, 1969 being
one of death, the case was properly elevated to this Court. Moreover,
until after this Court has spoken, no finality could be attached to the
lower court decision. As explained in former Chief Justice Moran's
Comments on the Rules of Court: 'In this connection, it must be
emphasized that the judgment of conviction imposing the death
penalty entered in the trial court, is not final, and cannot be executed
and is wholly without force or effect until the case has been passed
upon by the Supreme Court en consulta; that although a judgment of
conviction is entered by the trial court, said decision has none of the
attributes of a final judgment and sentence; and that until is has been
reviewed by the Supreme Court which finally passes upon it, the same
is not final and conclusive; and this automatic review by the Supreme
Court is something which neither the court nor the accused could waive
or evade.' The mere fact of escape of appellant, therefore, could not be
relied upon by respondent Demaisip as sufficient cause for his failure to
file appellants brief."
Then came the 1973 Constitution which likewise did not prohibit the death penalty. 8 Section 9, Rule 122
continued to provide the procedure for review of death penalty cases by this Court. Section 10, Rule 122
of the 1985 Rules on Criminal Procedure even reenacted this procedure of review. Significantly, it
expressly used the term "automatic review and judgment" by this Court. Our case law continued its
fealty to the Laguna rule. Thus, in the 1976 case of People vs. Saliling, et al., 9 we held, thru former Chief
Justice Aquino, that this Court is not precluded from reviewing the death sentence of an accused who is

at large. In the 1984 case of People vs. Buynay, et al., 10 we reiterated the rule that the escape of a
death convict will not automatically result in the dismissal of his appeal.
Finally, we have the 1987 Constitution which prohibits the imposition of the death penalty unless for
compelling reasons involving heinous crimes Congress so provides. 11 On December 13, 1993, Congress
reimposed the death penalty in cases involving the commission of heinous crimes. This revived the
procedure by which this Court reviews death penalty cases pursuant to the Rules of Court. It remains
automatic and does not depend on the whims of the death convict. It continues to be mandatory, and
leaves this Court without any option. 12
With due respect to the dissenting opinions of our esteemed colleagues, section 8 of Rule 124 of the
Rules of Court which, inter alia, authorizes the dismissal of an appeal when the appellant jumps bail, has
no application to cases where the death penalty has been imposed. In death penalty cases, automatic
review is mandatory. This is the text and tone of section 10, Rule 122, which is the more applicable rule,
viz.:

"Section 10. Transmission of Records in Case of Death Penalty. In all

cases where the death penalty is imposed by he trial court, the records
shall be forwarded to the Supreme Court for automatic review and
judgment, within twenty (20) days but not earlier than (15) days after
promulgation of the judgment or notice of denial of any motion for new
trial or reconsideration. The transcript shall also be forwarded within
ten (10) days after the filing thereof by the stenographic reporter."
Similarly, the reliance in People vs. Codilla, 13 by our dissenting colleagues is misplaced. Codilla is not a
death penalty case. Only the penalty of reclusion perpetua was imposed on appellant. Consequently, we
ruled that the escape of the appellant or his refusal to surrender to the proper authorities justifies
dismissal of his appeal.
Our dissenting brethren also make a distinct cut between ". . . a death convict, i. e. one convicted to
death by a trial court who remains in the custody of the law, and who voluntarily withdraws his appeal
and a death convict, i.e., one convicted to death by the trial court but who escapes from the custody of
the law during the pendency of the appeal." They rationalize the distinction by holding:

authority of the system whose protection he seeks and invokes."

We hold, however, that there is more wisdom in our existing jurisprudence mandating our review of all
death penalty cases, regardless of the wish of the convict and regardless of the will of the court. Nothing
less than life is at stake and any court decision authorizing the State to take life must be as error-free as
possible. We must strive to realize this objective, however, elusive it may be, and our efforts must not
depend on whether appellant has withdrawn his appeal or has escaped. Indeed, an appellant may
withdraw his appeal not because he is guilty but because of his wrong perception of the law. Or because
he may want to avail of the more speedy remedy of pardon. Or because of his frustration and
misapprehension that he will not get justice from the authorities. Nor should the Court be influenced by
the seeming repudiation of its jurisdiction when a convict escapes. Ours is not only the power but the
duty to review all death penalty cases. No litigant can repudiate this power which is bestowed by the
Constitution. The power is more of a sacred duty which we have to discharge to assure the People that
the innocence of a citizen is our concern not only in crimes that slight but even more, in crimes that shock
the conscience. This concern cannot be diluted.
The Court is not espousing a "soft, bended, approach" to heinous crimes for as discussed above, we have
always reviewed the imposition of the death penalty regardless of the will of the convict. Our unyielding
stance is dictated by the policy that the State should not be given the license to kill without the final
determination of this Highest Tribunal whose collective wisdom is the last; effective hedge against an
erroneous judgment of a one-judge trial court. This enlightened policy ought to continue as our beacon
light for the taking of life ends all rights, a matter of societal concern that transcends the personal
interest of a convict. The importance of this societal value should not be blurred by the escape of a
convict which is a problem of law enforcement. Neither should this Court be moved alone by the outrage
of the public in the multiplication of heinous crimes for our decisions should not be directed by the
changing winds of the social weather. Let us not for a moment forget that an accused does not cease to
have rights just because of his conviction. This principle is implicit in our Constitution which recognizes
that an accused, even if he belongs to a minority of one has the right to be right, while the majority, even
if overwhelming, has no right to be wrong.
IN VIEW WHEREOF, the counsel for the accused is given a new period of thirty (30) days from notice
hereof within which to file the Brief of the accused Josefina A. Esparas.
SO ORDERED.
||| (People v. Esparas, G.R. No. 120034 (Resolution), August 20, 1996)

"It should be clear in the first case, that even if the death convict
withdraws his appeal from the trial court's judgment convicting him to
death, the appellate court may still and nonetheless review the
judgment of conviction for the convict-appellant has at least remained
in the custody of the law to await final verdict in his case. In the second
case, however, the accused no longer recognizes and respects the
authority of law and the duly-constituted authorities in general and this
Court in particular. Such supercilious conduct of an escapee cannot and
should not be taken lightly by the Court. Respect for and recognition of
the authority of the Court is an essential and implicit element in an
effective and credible judicial system.
"No, one, it should be stressed, should be allowed to make a mockery
of the justice system by, in one breath, seeking its protection and even
vindication via an automatic review of a death sentence and, in another
breath, continuing to be a fugitive from justice and repudiating the very

LEO ECHEGARAY y PILO, petitioner, vs. THE SECRETARY OF JUSTICE and

THE DIRECTOR OF THE BUREAU OF CORRECTIONS, THE EXECUTIVE
JUDGE OF THE REGIONAL TRIAL COURT OF QUEZON CITY AND THE
PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON CITY,
BRANCH 104, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROSCRIPTION AGAINST CRUEL, DEGRADING OR INHUMAN

PUNISHMENT; DEATH PER SE, NOT CRUEL, DEGRADING OR INHUMAN. The death penalty per se is not
a cruel, degrading or inhuman punishment. In the oft-cited case of Harden vs. Director of Prisons, this

Court held that "[p]unishments are cruel when they involve torture or a lingering death; but the
punishment of death is not cruel, within the meaning of that word as used in the constitution .It implies
there something inhuman and barbarous, something more than the mere extinguishment of life."
2. ID; ID; ID; DEATH BY LETHAL INJECTION, CONSTITUTIONAL; INFLICTION OF PAIN, MERELY INCIDENTAL.
Any infliction of pain in lethal injection is merely in carrying out the execution of the death penalty
and does not fall within the constitutional prescription against cruel, degrading or inhuman punishment.
"In a limited sense, anything is cruel which is calculated to give pain or distress, and since punishment
imports pain of suffering to the convict, it may be said that all punishment are cruel. But of course the
Constitution does not mean that crime, for this reason, is to go unpunished." The cruelty against which
the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the
necessary suffering involved in any method employed to extinguish life humanely.
3. ID.; ID.; REIMPOSITION OF DEATH PENALTY DOES NOT VIOLATE INTERNATIONAL TREATY OBLIGATIONS.
Petitioner assiduously argues that the reimposition of the death penalty law violates our international
obligations, in particular, the International Covenant on Civil and Political Rights, which was adopted by
the General Assembly of the United Nations on December 16, 1966, signed and ratified by the
Philippines on December 19, 1966 and October 23, 1986, respectively. Indisputably, Article 6 of the
Covenant enshrines the individual's right to life. Nevertheless, Article 6 (2) of the Covenant explicitly
recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation
that it be imposed for the "most serious crimes." On the other hand, the Second Optional Protocol to the
International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty was
adopted by the General Assembly on December 15, 1989. The Philippines neither signed nor ratified said
document. Evidently, petitioner's assertion of our obligation under Second Optional Protocol is misplaced.
4. POLITICAL LAW; SEPARATION OF POWERS; CONSTRUED. The separation of powers is a fundamental
principle in our system of government. It obtains not through express provision but by actual division in
the framing of our Constitution. each department of the government has exclusive cognizance of matters
placed within its jurisdiction, and is supreme within its own sphere. ACETSa
5. CONSTITUTIONAL LAW; NON-DELEGATION OF POWERS; EXCEPTIONS. Corollary to the doctrine of
separation of powers is the principle of non-delegation of powers. "The rule is that what has been
delegated, cannot be delegated or as expressed in Latin maxim: potestas delegata non delegari potest."
The recognized exceptions to the rule are as follows: (1) Delegation of tariff powers to the President
under Section 28 (2) of Article VI of the Constitution; (2) Delegation of emergency powers to the
President under Section 23 (2) of Article VI of the Constitution; (3) Delegation to the people at large; (4)
Delegation to local governments; and (5) Delegation of administrative bodies.

boundaries and specify the public agencies which will apply it. Thus, the Court finds that the existence of
an area for exercise of discretion by the Secretary of Justice and the Director of the Bureau of
Corrections under delegated legislative power is proper where standards are formulated for the
guidance and the exercise of limited discretion, which though general, are capable of reasonable
application. A careful reading of R.A. No. 8177 would show that there is no undue delegation of
legislative power from the Secretary of Justice to the Director of the Bureau of Corrections for the simple
reason that under the Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit
of the Department of Justice. Further, the Department of Justice is tasked, among others, to take charge
of the "administration of correctional system." Hence, the import of the phraseology of the law is that
the Secretary of Justice should supervise the Director of the Bureau of Corrections in promulgating the
Lethal Injection Manual, in consultation with the Department of Health. CaAIES
8. ID.; ID.; RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177, AN UNDUE DELEGATION OF POWER.
The Rules and Regulations to Implement Republic Act No. 8177 suffer serious flaws that could not be
overlooked. the Court finds in the first paragraph of Section 19 of the implementing rules a veritable
vacuum. The Secretary of Justice has practically abdicated the power to promulgate the manual on the
execution procedure to the Director of the Bureau of Corrections, by not providing for a mode of review
and approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of
Corrections could not promulgate a manual that would not bear the imprimatur of the administrative
superior, the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent
abdication of departmental responsibility renders the said paragraph invalid. As to the second paragraph
of Section 19, the Court finds the requirement of confidentiality of the contents of the manual even with
respect to the convict unduly suppressive. It sees no legal impediment for the convict, should he so
desire, to obtain, a copy of the manual. The contents of the manual are matters of public concern,
"which the public may want to know, either because these directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary citizen."
9. ID.; BILL OF RIGHTS; FREE ACCESS TO INFORMATION OF PUBLIC CONCERN; A RECOGNITION OF
ESSENTIALITY OF THE FREE FLOW OF IDEAS AND INFORMATION. The incorporation in the Constitution
of a guarantee of access to information of public concern is a recognition of the essentiality of the free
flow of ideas and information in a democracy. In the same way that free discussion enables members of
society to cope with the exigencies of their time, access to information of general interest aids the
people in democratic decision-making by giving them a better perspective of the vital issues confronting
the nation. caIDSH

6. ID.; DELEGATION OF POWERS; REQUISITES. Although Congress may delegate to another branch of
the Government the power to fill in the details in the execution, enforcement or administration of a law,
it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be
complete in itself it must set forth therein the policy to be executed, carried out or implemented by
the delegate and (b) fix a standard the limits of which are sufficiently determinate or determinable
to which the delegate must conform in the performance of his functions. aEHASI

10. ID.; DELEGATION OF POWER; RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177; SECTION 17
THEREOF ADDING A GROUND FOR SUSPENSION OF DEATH SENTENCE, DISCRIMINATORY. While Article
83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the
implementation of the death penalty while a woman is pregnant or within one (1) year after delivery,
Section 17 of the implementing rules omits the one (1) year period following delivery as an instance
when the death sentence is suspended, and adds a ground for suspension of sentence no longer found
under Article 83 of the Revised Penal Code as amended, which is the three-year reprieve after a woman
is sentenced. This addition is, in petitioner's review, tantamount to a gender-based discrimination sans
statutory basis, while the omission is an impermissible contravention of the applicable law.

7. ID.; ID.; R.A. 8177, VALID DELEGATION OF AUTHORITY TO SECRETARY OF JUSTICE. Empowering the
Secretary of Justice in conjunction with the Secretary of Health and the Director of the Bureau of
Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of delegation
of legislative authority to administrative bodies. Considering the scope and the definiteness of R.A. No.
8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently
describes what job must be done, who is to do it and what is the scope of his authority. R.A No. 8177
likewise provides the standards which define the legislative policy, marks its limits, map out its

11. ADMINISTRATIVE LAW; ADMINISTRATIVE RULES AND REGULATIONS; CANNOT SUPPLANT OR MODIFY
LAW; CASE AT BAR. Being merely an implementing rule, Section 17 aforecited must not override, but
instead remain consistent and in harmony with the law it seeks to apply and implement. Administrative
rules and regulations are intended to carry out, neither to supplant nor to modify, the law. An
administrative agency cannot amend an act of Congress. In case of discrepancy between a provision of
statute and a rule or regulation issued to implement said statute, the statutory provision prevails. Since
the cited clause in Section 17 which suspends the execution of a woman within the three years (3) next

following the date of sentence finds no support in Article 83 of the Revised Penal Code as amended,
perforce Section 17 must be declared invalid. ETAICc

directed the parties "to MAINTAIN the status quo prevailing at the time of the filing of this petition."
On March 10, 1998, the Court granted the Motion for Leave of Court to Amend and Supplement Petition,
and required respondents to COMMENT thereon within ten (10) days from notice.

DECISION

PER CURIAM p:
On June 25, 1996, this Court affirmed 1 the conviction of petitioner Leo Echegaray y Pilo for the crime of
rape of the 10 year-old daughter of his common-law spouse and the imposition upon him of the death
penalty for the said crime. LexLib
Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and on its heels, a
Supplemental Motion for Reconsideration raising for the first time the issue of the constitutionality of
Republic Act No. 7659 2 (the death penalty law) and the imposition of the death penalty for the crime of
rape.
On February 7, 1998, this Court denied 3 petitioner's Motion for Reconsideration and Supplemental
Motion for Reconsideration with a finding that Congress duly complied with the requirements for the
reimposition of the death penalty and therefore the death penalty law is not unconstitutional.
In the meantime, Congress had seen it fit to change the mode of execution of the death penalty from
electrocution to lethal injection, 4 and passed Republic Act No. 8177, AN ACT DESIGNATING DEATH BY
LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE
PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF Republic Act No.
7659. 5 Pursuant to the provisions of said law, the Secretary of Justice promulgated the Rules and
Regulations to Implement Republic Act No. 8177 ("implementing rules") 6 and directed the Director of
the Bureau of Corrections to prepare the Lethal Injection Manual. 7
On March 2, 1998, petitioner filed a Petition 8 for Prohibition, Injunction and/or Temporary Restraining
Order to enjoin respondents Secretary of Justice and Director of the Bureau of Prisons from carrying out
the execution by lethal injection of petitioner under R.A. No. 8177 and its implementing rules as these
are unconstitutional and void for being: (a) cruel, degrading and inhuman punishment per se as well as
by reason of its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of the
Philippines' obligations under international covenants, (d) an undue delegation of legislative power by
Congress, (e) an unlawful exercise by respondent Secretary of the power to legislate, and (f) an unlawful
delegation of delegated powers by the Secretary of Justice to respondent Director.
On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court 9 to Amend and
Supplement Petition with the Amended and Supplemental Petition 10 attached thereto, invoking the
additional ground of violation of equal protection, and impleading the Executive Judge of the Regional
Trial Court of Quezon City and the Presiding Judge of the Regional Trial Court, Branch 104, in order to
enjoin said public respondents from acting under the questioned rules by setting a date for petitioner's
execution.
On March 3, 1998, the Court resolved, without giving due course to the petition, to require the
respondents to COMMENT thereon within a non-extendible period of ten (10) days from notice, and

On March 16, 1998, petitioner filed a Very Urgent Motion (1) To Clarify Status Quo Order, and (2) For the
Issuance of a Temporary Restraining Order expressly enjoining public respondents from taking any action
to carry out petitioner's execution until the petition is resolved.
On March 16, 1998, the Office of the Solicitor General 11 filed a Comment (On the Petition and the
Amended Supplemental Petition) 12 stating that (1) this Court has already upheld the constitutionality of
the Death Penalty Law, and has repeatedly declared that the death penalty is not cruel, unjust, excessive
or unusual punishment; (2) execution by lethal injection, as authorized under R.A. No. 8177 and the
questioned rules, is constitutional, lethal injection being the most modern, more humane, more
economical, safer and easier to apply (than electrocution or the gas chamber); (3) the International
Covenant on Civil and Political Rights does not expressly or impliedly prohibit the imposition of the death
penalty; (4) R.A. No. 8177 properly delegated legislative power to respondent Director; and that (5) R.A.
No. 8177 confers the power to promulgate the implementing rules to the Secretary of Justice, Secretary
of Health and the Bureau of Corrections.
On March 17, 1998, the Court required the petitioner to file a REPLY thereto within a non-extendible
period of ten days from notice.
On March 25, 1998, the Commission on Human Rights 13 filed a Motion for Leave of Court to Intervene
and/or Appear as Amicus Curiae 14 with the attached Petition to Intervene and/or Appear as Amicus
Curiae 15 alleging that the death penalty imposed under R.A. NO. 7659 which is to be implemented by
R.A. No. 8177 is cruel, degrading and outside the limits of civil society standards, and further invoking (a)
Article II, Section 11 of the Constitution which provides: "The State values the dignity of every human
person and guarantees full respect for human rights."; (b) Article III of the Universal Declaration of
Human Rights which states that "Everyone has the right to life, liberty and security of person," and Article
V thereof, which states that "No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment."; (c) The International Covenant on Civil and Political Rights, in particular,
Article 6 thereof, and the Second Optional Protocol to the International Covenant on Civil and Political
Rights Aiming At The Abolition of The Death Penalty; (d) Amnesty International statistics showing that as
of October 1996, 58 countries have abolished the death penalty for all crimes, 15 countries have
abolished the death penalty for ordinary crimes, and 26 countries are abolitionists de facto, which means
that they have retained the death penalty for ordinary crimes but are considered abolitionists in practice
in that they have not executed anyone during the past ten (10) years or more, or in that they have made
an international commitment not to carry out executions, for a total of 99 countries which are total
abolitionists in law or practice, and 95 countries as retentionists; 16 and (e) Pope John Paul II's encyclical,
"Evangelium Vitae." In a Resolution dated April 3, 1998, the Court duly noted the motion.
On March 27, 1998, petitioner filed a Reply 17 stating that (1) this Court is not barred from exercising
judicial review over the death penalty per se, the death penalty for rape and lethal injection as a mode of
carrying out the death penalty; (2) capital punishment is a cruel, degrading and inhuman punishment; (3)
lethal injection is cruel, degrading and inhuman punishment, and that being the "most modern" does not
make it less cruel or more humane, and that the Solicitor General's "aesthetic" criteria is short-sighted,
and that lethal injection is not risk free nor is it easier to implement; and (4) the death penalty violates
the International Covenant on Civil and Political Rights considering that the Philippines participated in
the deliberations of and voted for the Second Optional Protocol.
After deliberating on the pleadings, the Court gave due course to the petition, which it now resolves on

the merits.
In the Amended and Supplemental Petition, petitioner assails the constitutionality of the mode of
carrying out his death sentence by lethal injection on the following grounds: 18
I.

Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do not pass constitutional
muster for: (a) violation of the constitutional proscription against cruel, degrading or inhuman
punishment, (b) violation of our international treaty obligations, (c) being an undue delegation of
legislative power, and (d) being discriminatory.
The Court shall now proceed to discuss these issues in seriatim.

DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A

CRUEL, DEGRADING AND INHUMAN PUNISHMENT.

I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT UNDER SECTION 19,
ARTICLE III OF THE 1987 Constitution

II.

The main challenge to R.A. No. 8177 and its implementing rules is anchored on Article III, Section 19 (1)
of the 1987 Constitution which proscribes the imposition of "cruel, degrading or inhuman" punishment.
"The prohibition in the Philippine Bill against cruel and unusual punishments is an Anglo-Saxon safeguard
against governmental oppression of the subject, which made its first appearance in the reign of William
and Mary of England in 'An Act declaring the rights and liberties of the subject, and settling the
succession of the crown,' passed in the year 1689. It has been incorporated into the Constitution of the
United States (of America) and into most constitutions of the various States in substantially the same
language as that used in the original statute. The exact language of the Constitution of the United States
is used in the Philippine Bill." 19 "The counterpart of Section 19 (1) in the 1935 Constitution reads:
'Excessive fines shall not be imposed, nor cruel and inhuman punishment inflicted.' . . . In the 1973
Constitution the phrase became 'cruel or unusual punishment.' The Bill of Rights Committee of the 1986
Constitutional Commission read the 1973 modification as prohibiting 'unusual' punishment even if not
'cruel.' It was thus seen as an obstacle to experimentation in penology. Consequently, the Committee
reported out the present text which prohibits 'cruel, degrading or inhuman punishment' as more
consonant with the meaning desired and with jurisprudence on the subject." 20

THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS, WHICH IS PART OF THE LAW OF THE
LAND.
III.
LETHAL INJECTION, AS AUTHORIZED UNDER Republic Act No. 8177 AND
THE QUESTIONED RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN
UNNECESSARY AND WANTON INFLICTION OF PAIN ON A PERSON AND
IS, THUS, A CRUEL, DEGRADING, AND INHUMAN PUNISHMENT.
IV.
Republic Act No. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO
RESPONDENT DIRECTOR.
V.
RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE
POWERS DELEGATED TO HIM UNDER Republic Act No. 8177 T O
RESPONDENT DIRECTOR.
VI.
RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO
HIM UNDER Republic Act No. 8177 AND UNLAWFULLY USURPED THE
POWER TO LEGISLATE IN PROMULGATING THE QUESTIONED RULES.
VII.
SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR
BEING DISCRIMINATORY AS WELL AS FOR BEING AN INVALID EXERCISE
BY RESPONDENT SECRETARY OF THE POWER TO LEGISLATE.
VIII.
INJUNCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND
INJURY TO PETITIONER'S RIGHTS BY REASON OF THE EXISTENCE,
OPERATION AND IMPLEMENTATION OF AN UNCONSTITUTIONAL
STATUTE AND EQUALLY INVALID IMPLEMENTING RULES.

Petitioner contends that death by lethal injection constitutes cruel, degrading and inhuman punishment
considering that (1) R.A. No. 8177 fails to provide for the drugs to be used in carrying out lethal injection,
the dosage for each drug to be administered, and the procedure in administering said drug/s into the
accused; (2) R.A. No. 8177 and its implementing rules are uncertain as to the date of execution, time of
notification, the court which will fix the date of execution, which uncertainties cause the greatest pain
and suffering for the convict; and (3) the possibility of "botched executions" or mistakes in administering
the drugs renders lethal injection inherently cruel.
Before the Court proceeds any further, a brief explanation of the process of administering lethal injection
is in order.
In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeled into the
execution room. A trained technician inserts a needle into a vein in the inmate's arm and begins an
intravenous flow of saline solution. At the warden's signal, a lethal combination of drugs is injected into
the intravenous line. The deadly concoction typically includes three drugs: (1) a nonlethal dose of sodium
thiopenthotal, a sleep inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that
paralyzes the muscles; and (3) potassium chloride, which stops the heart within seconds. The first two
drugs are commonly used during surgery to put the patient to sleep and relax muscles; the third is used
in heart bypass surgery. 21
Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman
punishment. 22 In the oft-cited case of Harden v. Director of Prisons, 23 this Court held that
"[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is
not cruel, within the meaning of that word as used in the constitution. It implies there something

inhuman and barbarous, something more than the mere extinguishment of life." Would the lack in
particularity then as to the details involved in the execution by lethal injection render said law "cruel,
degrading or inhuman"? The Court believes not. For reasons hereafter discussed, the implementing
details of R.A. No. 8177 are matters which are properly left to the competence and expertise of
administrative officials. 24
Petitioner contends that Sec. 16 25 of R.A. No. 8177 is uncertain as to which "court" will fix the time and
date of execution, and the date of execution and time of notification of the death convict. As petitioner
already knows, the "court" which designates the date of execution is the trial court which convicted the
accused, that is, after this Court has reviewed the entire records of the case 26 and has affirmed the
judgment of the lower court. Thereupon, the procedure is that the "judgment is entered fifteen (15) days
after its promulgation, and 10 days thereafter, the records are remanded to the court below including a
certified copy of the judgment for execution." 27 Neither is there any uncertainty as to the date of
execution nor the time of notification. As to the date of execution, Section 15 of the implementing rules
must be read in conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides that the
death sentence shall be carried out "not earlier than one (1) year nor later than eighteen (18) months
after the judgment has become final and executory, without prejudice to the exercise by the President of
his executive clemency powers at all times." Hence, the death convict is in effect assured of eighteen (18)
months from the time the judgment imposing the death penalty became final and executory 28 wherein
he can seek executive clemency 29 and attend to all his temporal and spiritual affairs. 30
Petitioner further contends that the infliction of "wanton pain" in case of possible complications in the
intravenous injection, considering and as petitioner claims, that respondent Director is an untrained and
untested person insofar as the choice and administration of lethal injection is concerned, renders lethal
injection a cruel, degrading and inhuman punishment. Such supposition is highly speculative and
unsubstantiated.
First. Petitioner has neither alleged nor presented evidence that lethal injection requires the expertise
only of phlebotomists and not trained personnel and that the drugs to be administered are unsafe or
ineffective. 31 Petitioner simply cites situations in the United States wherein execution by lethal injection
allegedly resulted in prolonged and agonizing death for the convict, 32 without any other evidence
whatsoever. cdrep
Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which requires that all
personnel involved in the execution proceedings should be trained prior to the performance of such task.
We must presume that the public officials entrusted with the implementation of the death penalty (by
lethal injection) will carefully avoid inflicting cruel punishment. 33
Third. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of the
death penalty and does not fall within the constitutional proscription against cruel, degrading or
inhuman punishment. "In a limited sense, anything is cruel which is calculated to give pain or distress,
and since punishment imports pain or suffering to the convict, it may be said that all punishments are
cruel. But of course the Constitution does not mean that crime, for this reason, is to go unpunished." 34
The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of
punishment, not the necessary suffering involved in any method employed to extinguish life humanely.
35 Numerous federal and state courts of the United States have been asked to review whether lethal
injections constitute cruel and unusual punishment. No court has found lethal injections to implicate
prisoners' Eighth Amendment rights. In fact, most courts that have addressed the issue state in one or
two sentences that lethal injection clearly is a constitutional form of execution. 36 A few jurisdictions,
however, have addressed the merits of the Eighth Amendment claims. Without exception, these courts
have found that lethal injection does not constitute cruel and unusual punishment. After reviewing
medical evidence that indicates that improper doses or improper administration of the drugs causes

severe pain and that prison officials tend to have little training in the administration of the drugs, the
courts have found that the few minutes of pain does not rise to a constitutional violation. 37
What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as public opinion
becomes enlightened by a humane justice" and "must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society." 38 Indeed, "[o]ther (U.S.) courts have focused on
'standards of decency' finding that the widespread use of lethal injections indicates that it comports with
contemporary norms." 39 The primary indicator of society's standard of decency with regard to capital
punishment is the response of the country's legislatures to the sanction. 40 Hence, for as long as the
death penalty remains in our statute books and meets the most stringent requirements provided by the
Constitution, we must confine our inquiry to the legality of R.A. No. 8177, whose constitutionality we
duly sustain in the face of petitioner's challenge. We find that the legislature's substitution of the mode
of carrying out the death penalty from electrocution to lethal injection infringes no constitutional rights
of petitioner herein.
II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE INTERNATIONAL TREATY
OBLIGATIONS
Petitioner assiduously argues that the reimposition of the death penalty law violates our international
obligations, in particular, the International Covenant on Civil And Political Rights, which was adopted by
the General Assembly of the United Nations on December 16, 1966, signed and ratified by the
Philippines on December 19, 1966 and October 23, 1986, 41 respectively.
Article 6 of the International Covenant on Civil and Political Rights provides:
"1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance
with the law in force at the time of the commission of the crime and
not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final
judgment rendered by a competent court." (emphasis supplied)
3. When deprivation of life constitutes the crime of genocide, it is
understood that nothing in this article shall authorize any State Party to
the present Covenant to derogate in any way from any obligation
assumed under the provisions of the Convention on the Prevention and
Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be carried out on
pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the
abolition of capital punishment by any State Party to the present

Covenant."
Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6 (2)
of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life,
subject to the limitation that it be imposed for the "most serious crimes". Pursuant to Article 28 of the
Covenant, a Human Rights Committee was established and under Article 40 of the Covenant, States
Parties to the Covenant are required to submit an initial report to the Committee on the measures they
have adopted which give effect to the rights recognized within the Covenant and on the progress made
on the enjoyment of those rights within one year of its entry into force for the State Party concerned and
thereafter, after five years. On July 27, 1982, the Human Rights Committee issued General Comment No.
6 interpreting Article 6 of the Covenant stating that "(while) it follows from Article 6 (2) to (6) that State
parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in
particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider
reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the
death penalty to the most serious crimes.' The article strongly suggests (pars. 2 (2) and (6)) that abolition
is desirable. . . . The Committee is of the opinion that the expression 'most serious crimes' must be read
restrictively to mean that the death penalty should be a quite exceptional measure." Further, The
Safeguards Guaranteeing Protection of Those Facing the Death Penalty 42 adopted by the Economic and
Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should not
go beyond intentional crimes, with lethal or other extremely grave consequences.

The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the
General Assembly of the United Nations on December 16, 1966, and signed and ratified by the
Philippines on December 19, 1966 and August 22 1989, 43 respectively. The Optional Protocol provides
that the Human Rights Committee shall receive and consider communications from individuals claiming
to be victims of violations of any of the rights set forth in the Covenant.
On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political
Rights, Aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December
15, 1989. The Philippines neither signed nor ratified said document. 44 Evidently, petitioner's assertion of
our obligation under the Second Optional Protocol is misplaced.
III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. No. 8177 TO THE
SECRETARY OF JUSTICE AND THE DIRECTOR OF BUREAU OF CORRECTIONS, BUT SECTION 19 OF
THE RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177 IS INVALID.
The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in the framing of our Constitution. Each department of the
government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within its
own sphere. 45 Corollary to the doctrine of separation of powers is the principle of non-delegation of
powers. "The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest." 46 The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;
(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 47
Empowering the Secretary of Justice in conjunction with the Secretary of Health and the Director of the
Bureau of Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of
delegation of legislative authority to administrative bodies.
The reason for delegation of authority to administrative agencies is the increasing complexity of the task
of government requiring expertise as well as the growing inability of the legislature to cope directly with
the myriad problems demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected to attend to by itself.
Specialization even in legislation has become necessary. On many problems involving day-to-day
undertakings, the legislature may not have the needed competence to provide the required direct and
efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates,
who are supposed to be experts in the particular fields assigned to them. 48
Although Congress may delegate to another branch of the Government the power to fill in the details in
the execution, enforcement or administration of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the
policy to be executed, carried out or implemented by the delegate 49 and (b) fix a standard the
limits of which are sufficiently determinate or determinable to which the delegate must conform in
the performance of his functions. 50
Considering the scope and the definiteness of R.A. No. 8177, which changed the mode of carrying out
the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do
it, and what is the scope of his authority. 51
R.A. No. 8177 likewise provides the standards which define the legislative policy, mark its limits, map out
its boundaries, and specify the public agencies which will apply it. It indicates the circumstances under
which the legislative purpose may be carried out. 52 R.A. No. 8177 specifically requires that "[t]he death
sentence shall be executed under the authority of the Director of the Bureau of Corrections, endeavoring
so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as
well as during the proceedings prior to the execution." 53 Further, "[t]he Director of the Bureau of
Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the
instantaneous death of the convict." 54 The legislature also mandated that "all personnel involved in the
administration of lethal injection shall be trained prior to the performance of such task." 55 The Court
cannot see that any useful purpose would be served by requiring greater detail. 56 The question raised is
not the definition of what constitutes a criminal offense, 57 but the mode of carrying out the penalty
already imposed by the Courts. In this sense, R.A. No. 8177 is sufficiently definite and the exercise of
discretion by the administrative officials concerned is, to use the words of Justice Benjamin Cardozo,
canalized within banks that keep it from overflowing.
Thus, the Court finds that the existence of an area for exercise of discretion by the Secretary of Justice
and the Director of the Bureau of Corrections under delegated legislative power is proper where
standards are formulated for the guidance and the exercise of limited discretion, which though general,
are capable of reasonable application. 58
It is also noteworthy that Article 81 of the Revised Penal Code which originally provided for the death
penalty by electrocution was not subjected to attack on the ground that it failed to provide for details
such as the kind of chair to be used, the amount of voltage, volume of amperage or place of attachment
of electrodes on the death convict. Hence, petitioner's analogous argument with respect to lethal

injection must fail.

A careful reading of R.A. No. 8177 would show that there is no undue delegation of legislative power
from the Secretary of Justice to the Director of the Bureau of Corrections for the simple reason that
under the Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit of the
Department of Justice. 59 Further, the Department of Justice is tasked, among others, to take charge of
the "administration of the correctional system." 60 Hence, the import of the phraseology of the law is
that the Secretary of Justice should supervise the Director of the Bureau of Corrections in promulgating
the Lethal Injection Manual, in consultation with the Department of Health. 61
However, the Rules and Regulations to Implement Republic Act No. No. 8177 suffer serious flaws that
could not be overlooked. To begin with, something basic appears missing in Section 19 of the
implementing rules which provides:
"SEC. 19. EXECUTION PROCEDURE. Details of the procedure prior to,
during and after administering the lethal injection shall be set forth in a
manual to be prepared by the Director. The manual shall contain details
of, among others, the sequence of events before and after execution;
procedures in setting up the intravenous line; the administration of the
lethal drugs; the pronouncement of death; and the removal of the
intravenous system.
Said manual shall be confidential and its distribution shall be limited to
authorized prison personnel."
Thus, the Court finds in the first paragraph of Section 19 of the implementing rules a veritable vacuum.
The Secretary of Justice has practically abdicated the power to promulgate the manual on the execution
procedure to the Director of the Bureau of Corrections, by not providing for a mode of review and
approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of Corrections
could not promulgate a manual that would not bear the imprimatur of the administrative superior, the
Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent abdication of
departmental responsibility renders the said paragraph invalid.
As to the second paragraph of section 19, the Court finds the requirement of confidentiality of the
contents of the manual even with respect to the convict unduly suppressive. It sees no legal impediment
for the convict, should he so desire, to obtain a copy of the manual. The contents of the manual are
matters of public concern "which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary citizen." 62 Section 7 of
Article III of the 1987 Constitution provides:
"SEC. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as a basis for
policy development, shall be afforded the citizen, subject to such
limitation as may be provided by law."
The incorporation in the Constitution of a guarantee of access to information of public concern is a
recognition of the essentiality of the free flow of ideas and information in a democracy. 63 In the same
way that free discussion enables members of society to cope with the exigencies of their time, 64 access
to information of general interest aids the people in democratic decision-making 65 by giving them a
better perspective of the vital issues confronting the nation. 66

D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177 IS INVALID FOR
BEING DISCRIMINATORY AND CONTRARY TO LAW.
Even more seriously flawed than Section 19 is Section 17 of the implementing rules which provides:

"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE.

Execution by lethal injection shall not be inflicted upon a woman within
the three years next following the date of the sentence or while she is
pregnant, nor upon any person over seventy (70) years of age. In this
latter case, the death penalty shall be commuted to the penalty of
reclusion perpetua with the accessory penalties provided in Article 40 of
the Revised Penal Code."
Petitioner contends that Section 17 is unconstitutional for being discriminatory as well as for being an
invalid exercise of the power to legislate by respondent Secretary. Petitioner insists that Section 17
amends the instances when lethal injection may be suspended, without an express amendment of Article
83 of the Revised Penal Code, as amended by section 25 of R.A. NO. 7659.
Article 83 of the Revised Penal Code, as amended by section 25 of R.A. NO. 7659 now reads as follows:
"ART. 83. Suspension of the execution of the death sentence. The
death sentence shall not be inflicted upon a woman while she is
pregnant or within one (1) year after delivery, nor upon any person
over seventy years of age. In this last case, the death sentence shall be
commuted to the penalty of reclusion perpetua with the accessory
penalty provided in Article 40. . .".
On this point, the Court finds petitioner's contention impressed with merit. While Article 83 of the
Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the implementation
of the death penalty while a woman is pregnant or within one (1) year after delivery, Section 17 of the
implementing rules omits the one (1) year period following delivery as an instance when the death
sentence is suspended, and adds a ground for suspension of sentence no longer found under Article 83
of the Revised Penal Code as amended, which is the three-year reprieve after a woman is sentenced. This
addition is, in petitioner's view, tantamount to a gender-based discrimination sans statutory basis, while
the omission is an impermissible contravention of the applicable law.
Being merely an implementing rule, Section 17 aforecited must not override, but instead remain
consistent and in harmony with the law it seeks to apply and implement. Administrative rules and
regulations are intended to carry out, neither to supplant nor to modify, the law." 67 An administrative
agency cannot amend an act of Congress. 68 In case of discrepancy between a provision of statute and a
rule or regulation issued to implement said statute, the statutory provision prevails. Since the cited
clause in Section 17 which suspends the execution of a woman within the three (3) years next following
the date of sentence finds no support in Article 83 of the Revised Penal Code as amended, perforce
Section 17 must be declared invalid.
One member of the Court voted to declare Republic Act No. 8177 as unconstitutional insofar as it
delegates the power to make rules over the same subject matter to two persons (the Secretary of Justice
and the Director of the Bureau of Corrections) and constitutes a violation of the international norm
towards the abolition of the death penalty. One member of the Court, consistent with his view in People
v. Echegaray, 267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act No. 7659) is itself

unconstitutional, believes that Republic Act No. 8177 which provides for the means of carrying out the
death sentence, is likewise unconstitutional. Two other members of the court concurred in the aforesaid
Separate Opinions in that the death penalty law (Republic Act No. 7659) together with the assailed
statute (Republic Act No. 8177) are unconstitutional. In sum, four members of the Court voted to declare
Republic Act No. 8177 as unconstitutional. These Separate Opinions are hereto annexed, infra.
WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic
Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and
Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID
because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of
Republic Act. No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection
Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable
to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from
enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules
and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or
corrected in accordance with this Decision.

pleaded to the charges; and (d) the defendant was acquitted, or convicted, or the case against him was
dismissed or otherwise terminated without his express consent.
4. ID.; ID.; WAIVER OF DOUBLE JEOPARDY; DISMISSAL WITH EXPRESS CONSENT OF DEFENDANT
CONSTITUTES WAIVER. When the case is dismissed with the express consent of the defendant, the
dismissal will not be a bar to another prosecution for the same offense because his action in having the
case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby
prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction
against him.
5. ID.; ID.; PROVISIONAL DISMISSAL WITH EXPRESS CONSENT OF DEFENDANT; SALICO CASE. Where a
criminal case is dismissed provisionally not only with the express consent of the accused but even upon
the urging of his counsel, there can be no double jeopardy under Section 9, Rule 113, if the indictment
against him is revived by the fiscal. This decision subscribes substantially to the doctrine on waiver
established in Salico.
6. ID.; ID.; ESTOPPEL; WHEN DEFENDANT ESTOPPED FROM PLEADING DOUBLE JEOPARDY. When the
trial court dismisses a case on a disclaimer of jurisdiction, upon the instigation of the accused, the latter
is estopped on appeal from asserting the jurisdiction of the lower court in support of his plea of second
jeopardy.

NO COSTS. Cdpr
SO ORDERED.
||| (Echegaray v. Secretary of Justice, G.R. No. 132601, October 12, 1998)
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. WILLY
OBSANIA, defendant-appellee.

Solicitor General for plaintiff-appellant.

Maximo V. Cuesta, Jr. for defendant-appellee.
SYLLABUS

1. REMEDIAL LAW; COMPLAINT OR INFORMATION; ALLEGATION OF LEWD DESIGN IN CRIME OF RAPE

NOT NECESSARY. In a complaint for rape, it is not necessary to allege "lewd design" or "unchaste
motive". To require such averment is to demand a patent superfluity. Lascivious intent inheres in rape
and the unchaste design is manifest in the very act itself - the carnal knowledge of a woman through
force or intimidation, or when the woman is deprived of reason or otherwise unconscious, or when the
woman is under twelve years of age.
2. ID.; ID.; SUFFICIENCY OF COMPLAINT OR INFORMATION IN THE CRIME OF RAPE. The complaint here
satisfies the requirements of legal sufficiency of an indictment for rape. It unmistakably alleges that the
accused had carnal knowledge of the complainant by means of violence and intimidation. The trial court
erred in dismissing the case on the proffered ground that the complaint was defective for failure to
allege "lewd design".
3. CONSTITUTIONAL LAW; DOUBLE JEOPARDY: REQUISITES. In order that the protection against
double jeopardy may inure in favor of an accused, the following requisites must have obtained in the
original prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had

7. ID.; ID.; ESTOPPEL AND WAIVER; SIMILARITIES. A dismissal, other than on the merits, sought by the
accused in a motion to dismiss, is deemed to be with his express consent and bars him from
subsequently interposing the defense of double jeopardy on appeal or in a new prosecution for the same
offense.
8. ID.; ID.; RULE ON ESTOPPEL SHOULD BE MAINTAINED; REASONS. This Court forthrightly stated that
the rule of estoppel applied in the Acierto case should be maintained because: (1) It is basically and
fundamentally sound and just; (2) It is in conformity with the principles of legal ethics, which demand
good faith of the highest order in the practice of law; (3) It is well settled that parties to a judicial
proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower
court; and (4) The operation of the principle of estoppel on the question of jurisdiction seemingly
depends upon whether the lower court actually had jurisdiction or not.
9. ID.; ID.; DOCTRINE ON WAIVER IN SALICO CASE NOT IMPLIEDLY ABANDONED. We cannot agree that
this Court in Bangalao impliedly abandoned the Salico doctrine on waiver. Bangalao was decided solely
on the question of jurisdiction. This Court, after holding that the lower tribunal had jurisdiction, decided
outright to repress the appeal by the Government on the ground of double jeopardy without considering
whether the appealed order of dismissal was issued with or without the express consent of the accused
because it was granted upon his instigation through a motion to dismiss.
10. ID.; ID.; ID.; SALICO DOCTRINE ON DISMISSAL OF CRIMINAL CASE ON DEFENDANT'S MOTION
REPUDIATED. But said ruling is not controlling, having been modified or abandoned in subsequent
cases wherein this Court sustained the theory of double jeopardy despite the fact that the dismissal was
secured upon motion of the accused.
11. ID.; ID.; INAPPLICABILITY OF WAIVER AND ESTOPPEL; DISMISSAL CONSIDERED AS ACQUITTAL. In
Diaz, Abao, Tacneng and Robles like in Cloribel, the dismissals therein, all sought by the defendant,
were considered acquittals because they were all predicated on the right of a defendant to a speedy trial
and on the failure of the Government to prosecute. Therefore, even if such dismissals were induced by
the accused, the doctrines of waiver and estoppel were obviously inapplicable for these doctrines
presuppose a dismissal not amounting to an acquittal.

12. ID.; ID.; CASE AT BAR COMPARED WITH CLORIBEL AND CASES CITED THEREIN. Here the
controverted dismissal was predicated on the erroneous contention of the accused that the complaint
was defective and such infirmity affected the jurisdiction of the court a quo and not on the right of the
accused to a speedy trial and failure of the government to prosecute. The appealed order of dismissal in
this case now under consideration did not terminate the action on the merits, whereas in Cloribel and in
other related cases the dismissal amounted to an acquittal because the failure to prosecute presupposed
that the Government did not have a case against the accused, who, in the first place, is presumed
innocent.
13. ID.; ID.; REQUIREMENTS OF WAIVER AND ESTOPPEL. Application of the two sister doctrines of
waiver and estoppel requires two sine qua non conditions: first, the dismissal must be sought or induced
by the defendant personally or through his counsel; and second, such dismissal must not be on the
merits and must not necessarily amount to an acquittal.
DECISION

CASTRO, J p:
Before us for review, on appeal by the People of the Philippines, is an order, dated January 8, 1965, of
the Court of First Instance of Pangasinan dismissing, upon motion of the defense, an indictment for rape
against Willy Obsania.
On November 22, 1964, barely a day after the occurrence of the alleged crime, Erlinda Dollente, the 14year old victim, and her parents, Ciriaco Dollente and Carmelita Lureta, filed in the municipal court of
Balungao, Pangasinan a complaint for rape with robbery, 1 alleging.
"That on or about 21st day of November 1964, at around 2:00 to 3:00 in
the afternoon, particularly in sitio Cawakalan, barrio of Capulaan
municipality of Balungao, Province of Pangasinan, Philippines and
within the jurisdiction of the Honorable Court, the said accused Willy
Obsania, armed with a dagger, by means of violence and intimidation,
willfully, unlawfully and feloniously did then and there have carnal
knowledge of the complainant Erlinda Dollente, against her will and on
the roadside in the ricefields at the abovementioned place while she
was alone on her way to barrio San Raymundo."
After the case was remanded to the Court of First Instance of Pangasinan for further proceedings, the
assistant provincial fiscal filed an information for rape against the accused, embodying the allegations of
the above complaint, with an additional averment that the offense was committed "with lewd designs".
The accused pleaded not guilty upon arraignment, and forthwith with his counsel moved for the
dismissal of the case contending that the complaint was fatally defective for failure to allege "lewd
designs" and that the subsequent information filed by the fiscal which averred "lewd designs" did not
cure the jurisdictional infirmity. The court a quo granted the motion and ordered dismissal of the action,
ruling that "the failure of the complaint filed by the offended party to allege that the acts committed by
the accused were with 'lewd designs' does not give this Court jurisdiction to try the case." From this
order, the fiscal brought the instant appeal.

Two issues are tendered for resolution, namely: first, are "lewd designs" an indispensable element which
should be alleged in the complaint? and, second, does the present appeal place the accused in double
jeopardy?
Both must be answered in the negative.
The accused, in his motion to dismiss, as well as the trial judge, in his order of dismissal, rely basically on
the ruling in People vs. Gilo (L-18202, April 30, 1964). In that case which involved a prosecution for acts
of lasciviousness, this Court, in passing, opined that "lewd design" is
". . . an indispensable element of all crimes against chastity, such as
abduction, seduction and rape, including acts of lasciviousness . . . an
element that characterizes all crimes against chastity, apart from the
felonious or criminal intent of the offender, and such element must be
always present in order that they may be considered in contemplation
of law."
Nothing in the foregoing statement can be reasonably interpreted as requiring an explicit allegation of
"lewd design" in a complaint for rape. We hold in no uncertain terms that in a complaint for rape it is not
necessary to allege "lewd design" or "unchaste motive," for to require such averment is to demand a
patent superfluity. Lascivious intent inheres in rape and the unchaste design is manifest in the very act
itself the carnal knowledge of a woman through force or intimidation, or when the woman is deprived
of reason or otherwise unconscious, or when the woman is under twelve years of age. 2

It is clear that the complaint here satisfies the requirements of legal sufficiency of an indictment for rape
as it unmistakably alleges that the accused had carnal knowledge of the complainant by means of
violence and intimidation. We therefore hold that the trial judge erred in dismissing the case on the
proffered grounds that the complaint was defective for failure to allege "lewd design" and, as a
consequence of such infirmity, that the court a quo did not acquire jurisdiction over the case. The error
of the trial judge was in confusing the concept of jurisdiction with that of insufficiency in substance of an
indictment.
We come now to the more important issue of double jeopardy. The accused maintains that "assuming,
arguendo, that the argument is right that the court a quo has jurisdiction, the appeal of the Government
constitutes double jeopardy.
An appeal by the prosecution in a criminal case is not available if the defendant would thereby be placed
in double jeopardy. 3 Correlatively, Section 9, Rule 117 of the Revised Rules of Court provides:
"When a defendant shall have been convicted or acquitted, or the case
against him dismissed or otherwise terminated without the express
consent of the defendant, by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge sufficient in form
and substance to sustain a conviction, and after the defendant had
pleaded to the charge, the conviction or acquittal of the defendant or
the dismissal of the case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or
information."

In order that the protection against double jeopardy may inure in favor of an accused, the following
requisites must have obtained in the original prosecution: (a) a valid complaint or information; (b) a
competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or
convicted, or the case against him was dismissed or otherwise terminated without his express consent.

The Salico doctrine was adhered to and affirmed in People vs. Marapao (85 Phil. 832, March 30, 1950),
Gandicela vs. Lutero (88 Phil. 299, March 5, 1951), People vs. Pinuela, et al. (91 Phil. 53, March 28, 1952),
Co Te Hue vs. Encarnacion (94 Phil. 258, January 26, 1954), and People vs. Desalisa (L-15516, December
17, 1966).

The complaint filed with the municipal court in the case at bar was valid; the court a quo was a
competent tribunal with jurisdiction to hear the case; the record shows that the accused pleaded not
guilty upon arraignment. Hence, the only remaining and decisive question is whether the dismissal of the
case was without the express consent of the accused.

In Marapao, the defendant was indicted for slight physical injuries in the municipal court of Sibonga,
Cebu. After the prosecution had rested its case, a continuance was had, and when trial was resumed, the
court, upon motion of the defense, ordered the case dismissed for failure of the prosecution to appear.
However, the court reconsidered this order upon representation of the fiscal who appeared moments
later, and ordered the defense to present its evidence. The accused moved to set aside the latter order
on the ground that it placed him on double jeopardy. Acceding to this motion, the court dismissed the
case. Subsequently, the accused was charged in the Court of First Instance of Cebu with the offense of
assault upon a person in authority, based on the same facts alleged in the former complaint for slight
physical injuries. Again, upon motion of the accused, the trial court dismissed the new indictment on the
ground of double jeopardy. From this order, the prosecution appealed. In upholding the appeal of the
Government, this Court observed that although the information for assault necessarily embraced the
crime of slight physical injuries for which the accused was indicted in the justice of the peace court.

The accused admits that the controverted dismissal was ordered by the trial judge upon his motion to
dismiss. However, he vehemently contends that under the prevailing jurisprudence, citing People vs.
Bangalao, et al. (94 Phil. 354, February 17, 1954), People vs. Labatete (L-12917, April 27, 1960), People vs.
Villarin (L-19795, July 31, 1964), People vs. Cloribel (L-20314, August 31, 1964), an erroneous dismissal of
a criminal action, even upon the instigation of the accused in a motion to quash or dismiss, does not bar
him from pleading the defense of double jeopardy in a subsequent appeal by the Government or in a
new prosecution for the same offense. The accused suggests that the above-enumerated cases have
abandoned the previous ruling of this Court to the effect that when a case is dismissed, other than on
the merits, upon motion of the accused personally or through counsel, such dismissal is to be regarded
as with the express consent of the accused and consequently he is deemed to have waived 4 his right to
plead double jeopardy and/or he is estopped 5 from claiming such defense on appeal by the
Government or in another indictment for the same offense.
This particular aspect of double jeopardy dismissal or termination of the original case without the
express consent of the defendant has evoked varied and apparently conflicting rulings from this Court.
We must untangle this jurisprudential maze and fashion out in bold relief a ruling not susceptible of
equivocation. Hence, a searching extended review of the pertinent cases is imperative.
The doctrine of waiver of double jeopardy was enunciated and formally labelled as such for the first time
in 1949 in People vs. Salico, supra, with three justices dissenting. 6 In that case, the provincial fiscal
appealed from the order of the trial court dismissing, upon motion of the defendant made immediately
after the prosecution had rested its case, an indictment for homicide, on the ground that the prosecution
had failed to prove that the crime was committed within the territorial jurisdiction of the trial court, or,
more specifically, that the municipality of Victorias in which the crime was allegedly committed was
comprised within the province of Negros Occidental. Rejecting the claim of the accused that the appeal
placed him in double jeopardy, this Court held that the dismissal was erroneous because the evidence on
record showed that the crime was committed in the town of Victorias and the trial judge should have
taken judicial notice that the said municipality was included within the province of Negros Occidental
and therefore the offense charged was committed within the jurisdiction of the court of first instance of
the said province. In ruling that the appeal by the Government did not put the accused in peril of a
second jeopardy, this Court stressed that with "the dismissal of the case by the court below upon motion
of the defendant, the latter has not been in jeopardy," and "assuming arguendo that the defendant had
been already in jeopardy in the court below and would be placed in double jeopardy by the appeal, the
defendant has waived his constitutional right not to be put in danger of being convicted twice for the
same offense." Mr. Justice Felicisimo Feria, speaking for the majority, reasoned that
". . . when the case is dismissed with the express consent of the
defendant, the dismissal will not be a bar to another prosecution for
the same offense; because, his action in having the case dismissed
constitutes a waiver of his constitutional right or privilege, for the
reason that he thereby prevents the court from proceeding to the trial
on the merits and rendering a judgment of conviction against him."

". . . it appears that the appellee was neither convicted nor acquitted of
the previous charge against him for slight physical injuries, for that case
was dismissed upon his own request before trial could be finished.
Having himself asked for such dismissal, before a judgment of
conviction or acquittal could have been rendered, the appellee is not
entitled to invoke the defense of double jeopardy . . ."
In Gandicela, this Court had occasion to reiterate the Salico ruling:
"But where a defendant expressly consents to, by moving for, the
dismissal of the case against him, as in the present case, 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 on the part of the fiscal
to file another information, the dismissal will not be a bar to a
subsequent prosecution of the defendant for the same offense. (People
vs. Ylagan, 58 Phil. 851; People vs. Salico, 84 Phil. 722)."
And in denying the motion for reconsideration filed by the accused in that case, this Court held:
"According to Section 9 of Rule 13, if a criminal case is dismissed
otherwise than upon the merits at any stage before judgment, without
the express consent of the defendant, by a court of competent
jurisdiction, upon a valid complaint or information, and after the
defendant has pleaded to the charge, the dismissal of the case shall be
definite or a bar to another prosecution for the same offense; but if it is
dismissed upon the petition or with the express consent of the
defendant, the dismissal will be without prejudice or not a bar to
another prosecution for the same offense, because, in the last case, the
defendant's action in having the case dismissed constitutes a waiver of
his constitutional right not to be prosecuted again for the same
offense."
In Pinuela, as in Salico, the prosecution had presented its evidence against the defendant, and the trial
court, upon motion of the accused, dismissed the criminal action for lack of evidence showing that the

crime charged was committed within its territorial jurisdiction. On appeal by the Government, this Court
found that the evidence showed otherwise and, like in Salico, the majority rejected the plea of double
jeopardy interposed by the accused on the ground that his virtual instigation of the erroneous dismissal
amounted to a waiver of his right against a second jeopardy.

dismissal, appellees here are not precluded from making such plea."
To paraphrase, had the dismissal been anchored on the motion to dismiss, the defendants would
not have been entitled to protection against double jeopardy.
Then in Desalisa, this Court, in a unanimous decision penned by Mr. Justice Jesus Barrera, held that

In Co Te Hue, it was the theory of the petitioner that the charge of estafa filed against him having been
dismissed, albeit provisionally, without his express consent, its revival constituted double jeopardy which
bars a subsequent prosecution for the same offense. This claim was traversed by the Solicitor General
who contended that considering what had transpired in the conference between the parties, the
provisional dismissal was no bar to the subsequent prosecution for the reason that the dismissal was
made with the defendant's express consent. This Court sustained the view of the Solicitor General, thus:
"We are inclined to uphold the view of the Solicitor General. From the
transcript of the notes taken at the hearing in connection with the
motion for dismissal, it appears that a conference was held between
petitioner and the offended party in the office of the fiscal concerning
the case and that as a result of that conference the offended party filed
the motion to dismiss. It also appears that as no action has been taken
on said motion, counsel for petitioner invited the attention of the court
to the matter who acted thereon only after certain explanation was
given by said counsel. And when the order came the court made it plain
that the dismissal was merely provisional in character. It can be plainly
seen that the dismissal was effected not only with the express consent
of the petitioner but even upon the urging of his counsel. This attitude
of petitioner, or his counsel, takes this case out of the operation of the
rule."
In essence, this Court held that where a criminal case is dismissed provisionally not only with the
express consent of the accused but even upon the urging of his counsel, there can be no double
jeopardy under Section 9, Rule 113, if the indictment against him is revived by the fiscal. This
decision subscribes substantially to the doctrine on waiver established in Salico.
The validity and currency of the Salico doctrine were intimated in the recent case of People vs. Fajardo
(L-18257, June 30, 1966), and six months later were reaffirmed in People vs. Desalisa, supra.
In Fajardo, this Court, through Mr. Justice Querube Makalintal, observed:
"The record does not reveal that appellees expressly agreed to the
dismissal of the information as ordered by the trial Judge or that they
performed any act which could be considered as express consent within
the meaning of the rule. While they did file a motion asking that the
case be quashed, or that a reinvestigation thereof be ordered, the court
granted neither alternative. What it did was to order the prosecution to
amend the complaint. This order was in effect a denial of the motion to
quash, and it was only after the prosecution failed to amend that the
court dismissed the case on that ground. Consequently, even under the
theory enunciated in some decisions of this Court (People vs. Salico,
etc.) that if a valid and sufficient information is erroneously dismissed
upon motion of the defendant he is deemed to have waived the plea of
double jeopardy in connection with an appeal from the order of

". . . The ruling in the case of Salico, that the act of the defendant in
moving for the dismissal of the case constitutes a waiver of the right to
avail of the defense of double jeopardy, insofar as it applies to
dismissals which do not amount to acquittal or dismissal of the case on
the merits, cannot be considered to have been abandoned by the
subsequent decisions on the matter." (Emphasis supplied)
xxx xxx xxx
". . . an appeal of the prosecution from the order of dismissal (of the
criminal complaint) by the trial court will not constitute double
jeopardy if (1) the dismissal is made upon motion, or with express
consent of the defendant, and (2) the dismissal is not an acquittal or
based upon consideration of the evidence or of the merits of the case;
and (3) the question to be passed upon by the appellate court is purely
legal; so that should the dismissal be found incorrect, the case would
have to be remanded to the court of origin for further proceedings, to
determine the guilt or innocence of the defendant." (Emphasis
supplied)
The doctrine of estoppel in relation to the plea of double jeopardy was first enunciated in Acierto which
held that when the trial court dismisses a case on a disclaimer of jurisdiction, upon the instigation of the
accused, the latter is estopped on appeal from asserting the jurisdiction of the lower court in support of
his plea of second jeopardy. The doctrine of estoppel is in quintessence the same as the doctrine of
waiver: the thrust of both is that a dismissal, other than on the merits, sought by the accused in a motion
to dismiss, is deemed to be with his express consent and bars him from subsequently interposing the
defense of double jeopardy on appeal or in a new prosecution for the same offense.
In Acierto, the defendant was charged before a United States court-martial with having defrauded the
Government of the United States, through falsification of documents, within a military base of the United
States in the Philippines. The challenge by the accused against the jurisdiction of the military tribunal was
brushed aside, and he was convicted. On review, the verdict was reversed by the Commanding General
who sustained Acierto's position on the ground of lack of jurisdiction. Subsequently, he was convicted of
estafa and falsification based on the same facts by the Court of First Instance of Rizal. On appeal to this
Court, he claimed former jeopardy in the court-martial proceedings, asserting that the military court
actually had jurisdiction. In a unanimous 7 decision, this Court, through Mr. Justice Pedro Tuason, ruled:
"This is the exact reverse of the position defendant took at the military
trial. As stated, he there attacked the court-martial's jurisdiction with
the same vigor that he now says the court-martial did have jurisdiction;
and thanks to his objections, so we incline to believe, the Commanding
General, upon consultation with, and the recommendation of, the
Judge Advocate General in Washington, disapproved the court-martial
proceedings.

xxx xxx xxx

"Irrespective of the correctness of the views of the Military authorities,
the defendant was estopped from demurring to the Philippine court's
jurisdiction and pleading double jeopardy on the strength of his trial by
the court-martial. A party will not be allowed to make a mockery of
justice by taking inconsistent positions which if allowed would result in
brazen deception. It is trifling with the courts, contrary to the
elementary principles of right dealing and good faith, for an accused to
tell one court that it lacks authority to try him and, after he has
succeeded in his effort, to tell the court to which he has been turned
over that the first has committed error in yielding to his plea."
(Emphasis supplied)
The Acierto ruling was reiterated in People vs. Amada Reyes, et al., (96 Phil. 927, April 30, 1955); People
vs. Reyes, et al., (98 Phil. 646, March 23, 1956); People vs. Casiano (L-15309, February 16, 1961), and
People vs. Archilla (L-15632, February 28, 1961).
The defendants in People vs. Amada Reyes, et al., were charged as accessories to the crime of theft
committed by their brother, Anselmo, the principal accused. The latter pleaded guilty to simple theft and
was sentenced accordingly. The former pleaded not guilty and subsequently filed a motion to quash on
the ground that being brothers and sisters of the principal accused, they were exempt from criminal
responsibility for the acts charged against them in the information. Thereupon, the prosecution moved
to amend the information so as to allege that the defendants profited from the effects of the crime. In
view of this development, counsel for the defendants moved to withdraw their motion to quash and
objected to the proposed amendment which sought to change materially the information after plea
without the consent of the accused. Without acting on the petition to withdraw the motion to quash, the
trial court denied the motion of the prosecution on the ground that the proposed amendment would
substantially affect the fundamental rights of the accused who were exempt from liability under the
information because of their relation to the principal culprit. Then the prosecution moved for the
dismissal of the case against the alleged accessories with reservation to file a new information. The court
ordered the dismissal without ruling on the reservation. Subsequently, a new information was filed
virtually reproducing the previous one except that now there was an added allegation to intent to gain.
The lower court quashed the new information upon motion of the accused on the ground of double
jeopardy. On appeal by the prosecution, this Court, thru Mr. Justice J.B.L. Reyes, held that the plea of
double jeopardy was erroneously sustained because
"In the first place, the accused-appellees herein filed a motion to quash
on the ground that they incurred no criminal liability under the facts
alleged in the information in the preceding case, No. Q-972, and the
trial court instead of allowing the withdrawal of the motion to quash,
virtually sustained the same when it denied the fiscal's motion to
amend, thereby forcing the latter to dismiss the case; hence, it can not
be held that the former case was terminated without the express
consent of the accused. Secondly, the defendants themselves showed
that the information in the previous case was insufficient to charge
them with any criminal offense, in view of their relationship with the
principal accused; and it is well established doctrine that for jeopardy to
attach, there must be an information sufficient in form and substance
to sustain a conviction. Lastly, the herein accused having successfully
contended that the information in the former case was insufficient to
sustain a conviction, they cannot turn around now and claim that such

information was after all, sufficient and did place them in danger of
jeopardy of being convicted thereunder. If, as they formerly contended,
no conviction could be had in the previous case, they are in estoppel to
contend now that the information in the second case places them in
jeopardy for the second time. Their case comes within the spirit of the
rule laid down in People vs. Acierto . . ."

Again, in People vs. Reyes, et al., supra, this Court, speaking thru Mr. Chief Justice Paras, reiterated the
Acierto ruling, thus:
"Where the complaint or information is in truth valid and sufficient, but
the case is dismissed upon the petition of the accused on the ground
that the complaint or information is invalid and insufficient, such
dismissal will not bar another prosecution for the same offense and the
defendant is estopped from alleging in the second information that the
former dismissal was wrong because the complaint or information was
valid."
In this particular case, upon motion of the defendants, the trial court dismissed the information
because it did not allege the use of violence, notwithstanding the fact that the offense charged
was coercion under Article 287 of the Revised Penal Code. On appeal, however, this Court ruled
that the dismissal was erroneous because "although the offense named in the information is
coercion, it does not necessarily follow that the applicable provision is the first paragraph, since
the second paragraph also speaks of 'coercions'. Inasmuch as the recitals in the information do
not include violence, the inevitable conclusion is that the coercion contemplated is that described
and penalized in the second paragraph."
We come now to the case of People vs. Casiano. In this case the accused was charged with estafa in a
complaint filed with the justice of the peace court of Rosales, Pangasinan. The accused waived her right
to preliminary investigation and the record was accordingly forwarded to the Court of First Instance of
Pangasinan where the provincial fiscal filed an information of "illegal possession and use of false treasury
or bank notes." Upon arraignment the defendant pleaded not guilty. Subsequently, the defense filed a
motion to dismiss on the thesis that there had been no preliminary investigation of the charge of illegal
possession and use of false treasury or bank notes, and that the absence of such preliminary
investigation affected the jurisdiction of the trial court. The motion was granted on the ground that the
waiver made by the defendant in the justice of the peace court did not deprive her of the right to a
preliminary investigation of an entirely different crime. On appeal to this Court, it was held that the
dismissal was erroneous because the allegations of the information filed in the Court of First Instance
were included in those of the complaint filed in the justice of the peace court where the defendant had
already waived her right to a preliminary investigation. On the question of whether the appeal placed
the defendant in double jeopardy, this Court, thru Mr. Chief Justice (then Associate Justice) Concepcion,
observed that the situation of Casiano was identical to that of the accused in Acierto
". . . were she to plead double jeopardy in this case, for such plea would
require the assertion of jurisdiction of the court of first instance to try
her and that the same erred in yielding to her plea therein for lack of
authority therefor. In the language of our decision in the Acierto case, it
is immaterial whether or not the court a quo had said authority. It,
likewise, makes no difference whether or not the issue raised by
defendant in the lower court affected its jurisdiction. The fact is that

she contested its jurisdiction and that, although such pretense was
erroneous, she led the court to believe that it was correct and to act in
accordance with such belief. The elementary principles of fair dealing
and good faith demand, accordingly, that she be estopped now from
taking the opposite stand in order to pave the way for a plea of double
jeopardy, unless the rule of estoppel laid down in the Acierto case is
revoked. As a matter of fact, said rule applies with greater force to the
case at bar than to the Acierto case, because the same involved two (2)
separate proceedings before courts deriving their authority from
different sovereignties, whereas the appeal in the case at bar is a
continuation of the proceedings in the lower court, which like this
Supreme Court, is a creature of the same sovereignty. In short, the
inconsistency and impropriety would be more patent and glaring in this
case than in that of Acierto, if appellant herein pleaded double jeopardy
in this instance."
This Court then forthrightly stated that "the rule of estoppel applied in the Acierto case should be
maintained, because
"1. It is basically and fundamentally sound and just.
"2. It is in conformity with the principles of legal ethics, which demand
good faith of the highest order in the practice of law.
"3. It is well settled that parties to a judicial proceeding may not, on
appeal, adopt a theory inconsistent with that which they sustained in
the lower court.
xxx xxx xxx
"4. The operation of the principle of estoppel on the question of
jurisdiction seemingly depends upon whether the lower court actually
had jurisdiction or not. If it had no jurisdiction, but the case was tried
and decided upon the theory that it had jurisdiction, the parties are not
barred on appeal, from assailing such jurisdiction, for the same 'must
exist as a matter of law, and may not be conferred by consent of the
parties or by estoppel' (5 C. J.S. 861-863). However, if the lower court
had jurisdiction, and the case was heard and decided upon a given
theory, such, for instance, as that the court had no jurisdiction, the
party who induced it to adopt such theory will not be permitted, on
appeal, to assume an inconsistent position that the lower court had
jurisdiction. Here, the principle of estoppel applies. The rule that
jurisdiction is conferred by law, and does not depend upon the will of
the parties, has no bearing thereon."
Twelve days after Casiano, this Court, in People vs. Archilla, supra, invoked anew the doctrine of estoppel.
In this case Alfreda Roberts, together with Jose Archilla, was charged with bigamy. After pleading not
guilty, Roberts, through her counsel, filed a motion praying that the complaint be quashed with regard to
her on the ground that the facts alleged therein did not constitute the offense charged for failure to aver
that "insofar as Alfreda Roberts is concerned, her marriage to Jose Luis Archilla was her second
marriage . . ." On appeal, the prosecution contended that the trial court erred in granting the motion to
quash, because the complaint was sufficient and at least charged the accused as an accomplice. The

defendant maintained that even if that were true, the quashing of the information amounted to her
acquittal which prevented the prosecution from taking the said appeal as it would place her in double
jeopardy. Mr. Justice Felix Bautista Angelo, writing for the majority, ruled that the trial court erred, and
proceeded to emphasize that the accused
". . . cannot now be allowed to invoke the plea of double jeopardy after
inducing the trial court to commit an error which otherwise it would
not have committed. In other words, appellee can not adopt a posture
of double dealing without running afoul with the doctrine of estoppel.
It is well-settled that the parties to a justiciable proceeding may not, on
appeal, adopt a theory inconsistent with that which they sustained in
the lower court (Williams vs. McMicking, 17 Phil. 408; Molina vs. Somes
etc.). Consequently, appellee is now estopped from invoking the plea of
double jeopardy upon the theory that she would still be convicted
under an information which she branded to be insufficient in the lower
court."
The accused in this case now before us nevertheless insists that the Salico doctrine and "necessarily
analogous doctrines" were abandoned by this Court in Bangalao, Labatete, Villarin and Cloribel.
In Bangalao, the complaint filed by the victim's mother alleged that the rape was committed "by means
of force and intimidation" while the information filed by the fiscal alleged that the offended party was a
"minor and demented girl" and that the defendants "successively had sexual intercourse with her by
means of force and against the will of Rosita Palban." After the accused had pleaded not guilty, the
defense counsel moved for the dismissal of the case on the ground that the trial court lacked jurisdiction
to try the offense of rape charged by the fiscal since it was distinct from the one alleged in the complaint
which did not aver that the victim was a "demented girl". The lower court sustained the motion and
dismissed the case for lack of jurisdiction. On appeal by the prosecution, this Court held that the trial
judge erred in dismissing the case for lack of jurisdiction, but ruled, however, that the appeal could not
prosper because it placed the accused in double jeopardy.
"As the court below had jurisdiction to try the case upon the filing of
the complaint by the mother of the offended party, the defendantsappellees would be placed in double jeopardy if the appeal is allowed."
After mature analysis, we cannot agree that this Court in Bangalao impliedly abandoned the Salico
doctrine on waiver, Bangalao was decided solely on the question of jurisdiction. This Court, after holding
that the lower tribunal had jurisdiction, decided outright to repress the appeal by the Government on
the ground of double jeopardy without considering whether the appealed order of dismissal was issued
with or without the express consent of the accused (this aspect of double jeopardy not being in issue).
Hence, the ruling in Salico that the dismissal was with the express consent of the accused because it
was granted upon his instigation thru a motion to dismiss was not passed upon in Bangalao.
A case of striking factual resemblance with Salico is People vs. Ferrer (100 Phil. 124, October 23, 1956). In
this case, after the prosecution had rested, the accused filed a motion to dismiss on the ground that the
territorial jurisdiction of the trial court had not been established. Acting on this motion, the lower court
dismissed the case. The prosecution appealed. This Court found that the evidence on record, contrary to
the finding of the trial court, amply proved the jurisdiction of the lower tribunal. However, without the
defendant interposing the plea of double jeopardy, this Court held that "the Government however
meritorious its case cannot appeal the order of dismissal without violating the right of the defendant not
to be placed in double jeopardy." Again, like in Bangalao, this Court did not consider the nature of the
dismissal whether it was with or without the express consent of the defendant.

The accused in the case at bar avers that the Salico doctrine was formally and expressly abandoned in
People vs. Labatete, supra. In the latter case, the trial court, upon motion of the defendant, dismissed
the original information for estafa on the ground that it did not allege facts constituting the offense
charged. The information recited that the accused had contracted a loan from the complainant, giving as
security the improvements and products of his property (a piece of land), without averring that the said
property, which was allegedly mortgaged by the accused to the Rehabilitation Finance Corporation,
formed part of the security. Consequently, the fiscal filed an amended complaint alleging that the
accused also gave as security the land in question, which the later mortgaged to the damage and
prejudice of the complaining creditor. This amended information was also dismissed upon motion of the
defendant on the ground of double jeopardy. This Court, in sustaining the appealed order of dismissal,
held:
"If the amended information were to be admitted, the accused will be
deprived of his defense of double jeopardy because by the amended
information he is sought to be made responsible for the same act of
borrowing on a mortgage for which he had already begun to be tried
and acquitted by the dismissal of the original information."
xxx xxx xxx
". . . the trial court found that the accused could not be found guilty of
any offense under the information. The judgment entered was not one
of dismissal but of acquittal, and whether the judgment is correct or
incorrect, the same constitutes a bar to the presentation of the
amended information sought to be introduced by the fiscal." (Emphasis
supplied)
In not applying the Salico doctrine, this Court, through Mr. Justice Alejo Labrador, expounded:
". . . The judgment of the trial court (in People vs. Salico) was in fact an
acquittal because of the failure on the part of the fiscal to prove that
the crime was committed within the jurisdiction of the court. The
judgment was in fact a final judgment of acquittal. The mere fact that
the accused asked for his acquittal after trial on the merits (after the
prosecution had rested its case) is no reason for saying that the case
was 'dismissed' with his express consent and he may again be subjected
to another prosecution."
From the above-quoted statement, it is clear that what in Salico was repudiated in Labatete was the
premise that the dismissal therein was not on the merits and not the conclusion that a dismissal, other
than on the merits, sought by the accused, is deemed to be with his express consent and therefore
constitutes a waiver of his right to plead double jeopardy in the event of an appeal by the prosecution or
a second indictment for the same offense. This Court, in Labatete, merely pointed out that the
controverted dismissal in Salico"was in fact an acquittal." Reasoning a contrario, had the dismissal not
amounted to acquittal, then the doctrine of waiver would have applied and prevailed. As a matter of fact
we believe with the majority in Salico that the dismissal therein was not on the merits and therefore did
not amount to an acquittal:
"If the prosecution fails to prove that the offense was committed within
the territorial jurisdiction of the court and the case is dismissed, the

dismissal is not an acquittal, inasmuch as if it were so the defendant

could not be again prosecuted for the same offense before a court of
competent jurisdiction; that it is elemental that in such case the
defendant may again be prosecuted for the same offense before a
court of competent jurisdiction."
Granting, however, that the Salico doctrine was abandoned in Labatete, it was resurrected in Desalisa.
Moreover, Labatete never mentioned the doctrine of estoppel enunciated in Acierto which had been
repeatedly reaffirmed.
To bolster his contention that the Salico doctrine has been dropped from the corpus of our jurisprudence,
the accused cites People vs. Villarin, supra. Here the accused appealed to the Court of First Instance his
conviction in the inferior court for acts of lasciviousness with consent. After conducting the preliminary
investigation, the fiscal charged the accused with corruption of minors. Villarin pleaded not guilty, and
before the case could be heard, his counsel filed a motion to dismiss on the ground that the information
did not allege facts constituting the crime charged. Acting on this motion, the trial court dismissed the
case. On appeal by the prosecution, this Court, thru Mr. Justice Felix Angelo Bautista, held that the
dismissal was erroneous, but that this error
". . . cannot now be remedied by setting aside the order of dismissal of
the court a quo and by remanding the case to it for further proceedings
as now suggested by the prosecution considering that the case was
dismissed without the express consent of the accused even if it was
upon the motion of his counsel, for to do so would place the accused in
double jeopardy. The only exception to the rule on the matter is when
the dismissal is with the consent of the accused, and here this consent
has not been obtained."(Emphasis supplied)
Villarin gives the impression, as gleaned from the above statement, that this Court therein sustained the
plea of double jeopardy on the ground that the dismissal was without the express consent of the
defendant as it was ordered "upon the motion of his counsel" and not upon motion of the defendant
himself. This conclusion is rather unfortunate and must be rectified, for the settled rule is that the acts of
counsel in a criminal prosecution bind his client. Thus, in People vs. Romero (89 Phil. 672, July 31, 1951),
this Court held categorically that
"The fact that the counsel for the defendant, and not the defendant
himself personally moved for the dismissal of the case against him, had
the same effect as if the defendant had personally moved for such
dismissal, inasmuch as the act of the counsel in the prosecution of the
defendants cases was the act of the defendant himself, for the only
case in which the defendant cannot be represented by his counsel is in
pleading guilty according to Section 3, Rule 114, of the Rules of Court."
(Emphasis supplied)
On this consideration alone, we cannot agree with the accused in the case at bar that this Court in
Villarin intended to abandon the Salico ruling. Had the motion to dismiss filed by Villarin's counsel been
considered as one made by the defendant himself, as should have been done, the Villarin case should
have been resolved consistent with the doctrine of waiver in Salico and/or that of estoppel in Acierto.
As a final citation in support of his theory, the accused in the case at bar invokes People vs. Cloribel,
supra, where this Court, in sustaining the plea of double jeopardy interposed by the defendants, stated
inter alia:

"In asserting that Criminal Case No. 45717 may still be reinstated, the
petitioner adopts the ruling once followed by this Court to the effect
that a dismissal upon the defendant's own motion is a dismissal
consented to by him and, consequently, will not be a bar to another
prosecution for the same offense, because, his action in having the case
dismissed constitutes a waiver of his constitutional right or privilege, for
the reason that he thereby prevents the court from proceeding to the
trial on the merits and rendering a judgment of conviction against him.
(People vs. Salico, 84 Phil. 722) But, this authority has long been
abandoned and the ruling therein expressly repudiated.
"Thus, in the case of People vs. Robles, G.R. No. L-12761, June 29, 1959,
citing People vs. Bangalao, L-5610, February 17, 1954; People vs. Diaz,
L-6518, March 30, 1954; People vs. Abao, L-7862, May 17, 1955; and
People vs. Ferrer, L-9072, October 23, 1956, We said:
'. . . In reaching the above conclusion, this
Court has not overlooked the ruling in People vs. Salico,
47 O.G. 4765, to the effect that a dismissal upon
defendant's motion will not be a bar to another
prosecution for the same offense as said dismissal was
not without the express consent of the defendant, which
ruling the prosecution now invokes in support of its
appeal; but said ruling is not now controlling, having
been modified or abandoned in subsequent cases
wherein this Court sustained the theory of double
jeopardy despite the fact that the dismissal was secured
upon motion of the accused. (Italics supplied.)
"Also, the rule that a dismissal upon defendant's motion will not be a
bar to another prosecution for the same offense as said dismissal is not
without the express consent of the defendant, has no application to a
case where the dismissal, as here, is predicated on the right of a
defendant to a speedy trial (People vs. Tacneng, et al., G.R. No. L-12082,
April 30, 1959.)" (emphasis supplied)
The above statements must be taken in the proper context and perspective. As previously explained,
Bangalao, Ferrer, and even Labatete, did not actually abandon the doctrine of waiver in Salico (and not
one of the said cases even implied the slightest departure from the doctrine of estoppel established in
Acierto). In Diaz, Abao, Tacneng and Robles which are cited above, like in Cloribel, the dismissals therein,
all sought by the defendants, were considered acquittals because they were all predicated on the right of
a defendant to a speedy trial and on the failure of the Government to prosecute. Therefore, even if such
dismissals were induced by the accused, the doctrines of waiver and estoppel were obviously
inapplicable for these doctrines presuppose a dismissal not amounting to an acquittal.
This Court, through Mr. Justice Marceliano Montemayor, held in People vs. Diaz (94 Phil. 714, March 30,
1954):
"Here the prosecution was not even present on the day of trial so as to
be in a position to proceed with the presentation of evidence to prove
the guilt of the accused. The case was set for hearing twice and the
prosecution without asking for postponement or giving any explanation,

just failed to appear. So the dismissal of the case, though at the

instance of defendant Diaz may, according to what we said in the
Gandicela case, be regarded as an acquittal" (italics supplied)

A similar result was reached by this Court, thru Mr. Justice Sabino Padilla, in People vs. Abao (97 Phil. 28,
May 27, 1955), in this wise:
"After a perusal of the documents attached to the petition for a writ of
certiorari, we fail to find an abuse of discretion committed by the
respondent judge. He took pains to inquire about the nature of the
ailment from which the complaining witness claimed she was suffering.
He continued the trial three times, to wit: on 27 May, 1 and 12 June.
The defendant ,was entitled to a speedy trial. When on 15 June, the last
day set for the resumption of the trial, the prosecution failed to secure
the continuance thereof and could not produce further evidence
because of the absence of the complaining witness, the respondent
judge was justified in dismissing the case upon motion of the
defense . . . The defendant was placed in jeopardy for the offense
charged in the information and the annulment or setting aside of the
order of dismissal would place him twice in jeopardy of punishment for
the same offense." (italics supplied)
Then in People vs. Tacneng (L-12082, April 30, 1959), Mr. Justice Pastor Endencia, speaking for a
unanimous Court; stressed that
". . . when criminal case No. 1793 was called for hearing for the third
time and the fiscal was not ready to enter into trial due to the absence
of his witnesses, the herein appellees had the right to object to any
further postponement and to ask for the dismissal of the case by reason
of their constitutional right to a speedy trial; and if pursuant to that
objection and petition for dismissal the case was dismissed, such
dismissal amounted to an acquittal of the herein appellees which can be
invoked, as they did, in a second prosecution for the same offense."
(emphasis supplied)
And this Court proceeded to distinguish the case from People vs. Salico, thus:
"We are fully aware that pursuant to our ruling in the case of People vs.
Salico, 45 O.G. No. 4, 1765-1776, and later reiterated in People vs.
Romero, L-4517-20, July 31, 1951, a dismissal upon defendant's motion
will not be a bar to another prosecution for the same offense as said
dismissal was not without the express consent of defendant. This ruling,
however, has no application to the instant case, since the dismissal in
those cases was not predicated, as in the case at bar, on the right of a
defendant to a speedy trial, but on different grounds. In the Salico case,
the dismissal was based on the ground that the evidence for the
prosecution did not show that the crime was committed within the
territorial jurisdiction of the court which, on appeal, we found that it
was, so the case was remanded for further proceedings; and in the
Romero case the dismissal was due to the non-production of other

important witnesses by the prosecution on a date fixed by the court

and under the understanding that no further postponement at the
instance of the government would be entertained. In both cases, the
right of a defendant to a speedy trial was never put in issue." (emphasis
supplied)
The gravamen of the foregoing decisions was reiterated in People vs. Robles (L-12761, June 29, 1959)
where the trial court, upon motion of the defendant, dismissed the case on the ground that the failure of
the prosecution to present its evidence despite several postponements granted at its instance, denied
the accused a speedy trial. In rejecting the appeal of the Government, this Court held:
"In the circumstances, we find no alternative than to hold that the
dismissal of Criminal Case No. 11065 is not provisional in character but
one which is tantamount to acquittal that would bar further
prosecution of the accused for the same offense."
In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when
the information was filed to August 15, 1962 when it was called for trial, after numerous postponements,
mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial,
and upon motion of the defendants, the case was dismissed. This Court held "that the dismissal here
complained of was not truly a 'dismissal' but an acquittal. For it was entered upon the defendants'
insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear
on the date of trial." (italics supplied.)
Considering the factual setting in the case at bar, it is clear that there is no parallelism between Cloribel
and the case cited therein, on the one hand, and the instant case, on the other. Here the controverted
dismissal was predicated on the erroneous contention of the accused that the complaint was defective
and such infirmity affected the jurisdiction of the court a quo, and not on the right of the accused to a
speedy trial and the failure of the Government to prosecute. The appealed order of dismissal in this case
now under consideration did not terminate the action on the merits, whereas in Cloribel and in the other
related cases the dismissal amounted to an acquittal because the failure to prosecute presupposed that
the Government did not have a case against the accused, who, in the first place, is presumed innocent.
The application of the sister doctrines of waiver and estoppel requires two sine qua non conditions: first,
the dismissal must be sought or induced by the defendant personally or through his counsel; and second,
such dismissal must not be on the merits and must not necessarily amount to an acquittal. Indubitably,
the case at bar falls squarely within the periphery of the said doctrines which have been preserved
unimpaired in the corpus of our jurisprudence.
ACCORDINGLY, the order appealed from is set aside. This case is hereby remanded to the court of origin
for further proceedings in accordance with law. No costs.
||| (People v. Obsania, G.R. No. L-24447, June 29, 1968)
RAMON S. PAULIN, ANGELA F. PAULIN and JOSE BACHO, petitioners,
vs. HON. CELSO M. GIMENEZ (In his capacity as Presiding Judge of RTC,
Cebu City, Branch 5), HON. MAMERTO Y. COLIFLORES (In his capacity
as Judge of the MTC of Talisay, Branch IX, Cebu); CASTRO BELME, and
The PEOPLE OF THE PHILIPPINES,respondents.

Mari V. Andres and Romarie G. Villonco for petitioners.

Garcia, Garcia, Ong, Vano & Associates for respondent Castro Belme Mabuyo.
SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; JURISDICTION; COURT OUSTED OF JURISDICTION IN CASE OF

VIOLATION OF BASIC CONSTITUTIONAL RIGHTS; CASE AT BAR. Where the prosecution is deprived of a
fair opportunity to prosecute and prove its case, its right to due process is thereby violated (People v.
Balisacan, G.R. No. L-26376, Aug. 31, 1966, 17 SCRA 1119; Uy v. Genato, G.R. No. L-37399, May 29, 1974,
57 SCRA 123). Where there is a violation of basic constitutional rights, courts are ousted of jurisdiction.
Hence, the violation of the State's right to due process raises a serious jurisdictional error (Gumabon v.
Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971, 37 SCRA 420) as the decision rendered
in disregard of the right is void for lack of jurisdiction." (Aducayen v. Flores, 51 SCRA 78 [1973], at p. 78.)
Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication,
the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]). In People v. Bocar (138 SCRA 166
[1985]), this Court found that the prosecution was denied due process as it never had the chance to offer
its evidence formally in accordance with the Rules of Court in view of the trial court's order of dismissal.
The trial court was thereby ousted from its jurisdiction when it violated the right of the prosecution to
due process by aborting its right to complete the presentation of its evidence and, therefore, the first
jeopardy had not been terminated. Hence, the remand of the case for further hearing or trial is merely a
continuation of the first jeopardy and does not expose the accused to a second jeopardy. In the
subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous ruling in
the Bocar case, holding that the trial court exceeded its jurisdiction and acted with grave abuse of
discretion, tantamount to lack of jurisdiction, when it pre-emptively dismissed the case and as a
consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby its
fundamental right to due process. With such violation, its orders are, therefore, null and void and cannot
constitute a proper basis for a claim of double jeopardy. In the more recent case of Saldana v. Court of
Appeals (190 SCRA 396 [1990]), the issue raised was as follows: "Where the trial court prematurely
terminated the presentation of the prosecution's evidence and forthwith dismissed the information for
insufficiency of evidence, may the case be remanded for further proceeding?" This Court, applying the
Bocar case, ruled that the order of the Court of Appeals reinstating the criminal case for further hearing
by the trial court does not violate the rule on double jeopardy inasmuch as the trial court was ousted
from its jurisdiction when it violated the right of the prosecution to due process. The municipal trial court
thus did not violate the rule on double jeopardy when it set aside the order of dismissal for the reception
of further evidence by the prosecution because it merely corrected its error when it prematurely
terminated and dismissed the case without giving the prosecution the right to complete the presentation
of its evidence. It follows then that the decision of respondent regional trial court sustaining that of the
court of origin cannot be said to be tainted with grave abuse of discretion.
2. ID.; ID.; DEMURRER TO EVIDENCE; MOTION INTERPOSED BEFORE PROSECUTION COMPLETES
PRESENTATION OF EVIDENCE PREMATURE. Demurrer to evidence due to its insufficiency presupposes
that the prosecution had already rested its case (Sec. 15, Rule 119, 1985 Rules on Criminal Procedure).
Hence, the motion is premature if interposed at a time when the prosecution is still in the process of
presenting its evidence (Aquino v. Sison, 179 SCRA 648 [1989]), as what happened in this case.
Petitioners, of course, maintain that all the prosecution's evidence was already on record since the
affidavits of complainant and his witnesses, in law, constituted their direct testimonies and that,
therefore, no other evidence could have been introduced by the prosecution. Submission of the
affidavits to the court does not warrant the inference that the prosecution had already finished
presenting its evidence because the affiants are still required to testify and affirm the contents thereof;

otherwise, these affidavits cannot serve as competent evidence for the prosecution.
3. ID.; ID.; DOUBLE JEOPARDY; REQUISITES. For double jeopardy to be validly invoked by petitioners,
the following requisites must have been obtained in the original prosecution: a) a valid complaint or
information; b) a competent court; c) the defendant had pleaded to the charge; and d) the defendant
was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his
express consent (People v. Obsania, 23 SCRA 1249 [1968]; Caes v. IAC, 179 SCRA 54 [1989]).
4. ID.; ID.; ID.; EXCEPTIONS THERETO; DOCTRINE OF WAIVER OF DOUBLE JEOPARDY. Jurisprudence on
double jeopardy as well as the exceptions thereto which finds application to the case at bar has been laid
down by this Court as follows: ". . . However, an appeal by the prosecution from the order of dismissal
(of the criminal case) by the trial court shall not constitute double jeopardy if (1) the dismissal is made
upon motion, or with the express consent of the defendant; (2) the dismissal is not an acquittal or based
upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon
by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have
to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the
defendant." (People v. Villalon, 192 SCRA 521 [1990], at p. 529.). For double jeopardy to attach, the
dismissal of the case must be without the express consent of the accused (People v. Gines, 197 SCRA 481
[1991]). Where the dismissal was ordered upon motion or with the express assent of the accused, he is
deemed to have waived his protection against double jeopardy. In the case at bar, the dismissal was
granted upon motion of petitioners. Double jeopardy thus did not attach. This doctrine of waiver of
double jeopardy was examined and formally introduced in People v. Salico (84 Phil. 722 [19491), where
Justice Felicisimo Feria stated: ". . . when the case is dismissed, with the express consent of the
defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his
action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the
reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a
judgment of conviction against him." (See also People v. Marapao (85 Phil. 832 [1950]); Gandicela v.
Lutero (88 Phil. 299 [1951]); People v. Desalisa (125 Phil. 27 [1966]); and, more recently, People v. Aquino
(199 SCRA 610 [1991]).
5. ID.; ID.; ID.; INSTANCES WHERE DOUBLE JEOPARDY ATTACHES ALTHOUGH DISMISSAL WAS MADE ON
MOTION OF ACCUSED; CASE AT BAR. Jurisprudence recognizes exceptional instances when the
dismissal may be held to be final, disposing of the case once and for all even if the dismissal was made on
motion of the accused himself, to wit: 1. Where the dismissal is based on a demurrer to evidence filed by
the accused after the prosecution has rested, which has the effect of a judgment on the merits and
operates as an acquittal. 2. Where the dismissal is made, also on motion of the accused, because of the
denial of his right to a speedy trial which is in effect a failure to prosecute. (Caes v. IAC, 179 SCRA 54
[1989] at pp. 60-61.) Petitioners' motion to dismiss premised on procedural grounds cannot be
considered a demurrer to evidence nor was the dismissal sought by them predicated on the denial of
their right to speedy trial. Hence, the exceptions mentioned find no application in the instant case,
especially so because when the municipal trial court dismissed the case upon petitioners' motion, the
prosecution still had to present several witnesses.
6. ID.; ID.; ACQUITTAL DISTINGUISHED FROM DISMISSAL; CASE AT BAR. In People v. Salico (supra),
distinctions between acquittal and dismissal were made, to wit: ". . . Acquittal is always based on the
merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is
beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is
not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent
jurisdiction, or the evidence does not show that the offense was committed within the territorial
jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance,
etc. . . . " The MTC decision dismissing the case is not an acquittal from the charge considering that no
finding was made as to the guilt or innocence of the petitioners. Under Section 14, Rule 110 of the 1985

Rules on Criminal Procedure, as amended, it is stated: "Sec. 14. Amendments. . . . If it appears at any
time before judgment that a mistake has been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Sec. 11 . . ." In Section 11 of the same Rule, it is provided: "When it becomes
manifest at any time before judgment, that a mistake has been made in charging the proper offense, and
the accused cannot be convicted of the offense charged, or of any other offense necessarily included
therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such
case, the court shall commit the accused to answer for the proper offense and dismiss the original case
upon the filing of the proper information." (Id., Sec. 11. Rule 119.) In the case at bar, the original case
was dismissed without the proper information having been filed, it appearing that the proper charge
should have been, "disturbance of public performance," punishable under Article 153 of the Revised
Penal Code instead of "grave threats," under Article 282 of the same penal code.

DECISION

MELO, J p:
The petition before us arose from a November 10, 1989 incident when the jeep ridden by private
respondent and Barangay Captain Castro Belme Mabuyo was overtaken by the Nissan Patrol ridden by
herein petitioners, the spouses Dr. Ramon and Angela Paulin, smothering the former with dust.
Irked by this incident, Mabuyo followed the Nissan Patrol until it entered the back gate of Rattan
Originals in Tanke, Talisay, Cebu. Inquiring from a nearby security guard as to who owns the Nissan Patrol,
he was informed that it belonged to and was driven by petitioner Dr. Ramon Paulin.
Later, while Mabuyo was investigating some problems of his constituents in Kilawan at Tanke, Cebu, Dr.
Ramon Paulin and his wife, Angie, allegedly pointed their guns at Mabuyo while Jose Bacho, a companion
of the spouses, acted as back-up. Mabuyo instructed one of the barangay tanods to call the police in
Talisay and the rest to block the exit of the spouses and their lone companion.
Sensing that they were outnumbered, the spouses put their guns down and upon the arrival of the police
officers, they were brought to the police station. On the same date, Station Commander P/Lt. Ariel
Palcuto filed a complaint for "grave threats," against the spouses Paulin and Bacho, herein petitioners,
which was later docketed as Criminal Case No. 5204. On November 20, 1989, the station commander
filed a complaint for, "grave threats and oral defamation," against private respondent Mabuyo, docketed
as Criminal Case No. 5213. LLjur
The cases were jointly tried and, on June 13, 1990, the Municipal Trial Court of Talisay, Cebu (Branch IX),
acting on a motion of the spouses Paulin and Jose Bacho, dismissed Criminal Case No. 5204. On July 2,
1990, Mabuyo filed a, "Motion for Reconsideration," of the said dismissal order which the court granted
in a resolution dated July 3, 1990.
At the hearing of Criminal Case No. 5213 on July 5, 1990, petitioners vigorously sought the setting aside
of the July 3, 1990 resolution in Criminal Case No. 5204, but the same was denied in another resolution.
Not satisfied with the resolution of respondent Judge Mamerto Y. Coliflores, petitioners filed on July 31,

1990 a petition for "certiorari, prohibition, damages, with relief for preliminary injunction and the
issuance of a temporary restraining order" with the Regional Trial Court of the Seventh Judicial Region,
which was thereafter docketed as Special Civil Action No. CEB-9207 and later re-raffled to Branch 5
stationed in Cebu City presided over by respondent Judge Celso M. Gimenez, who dismissed the petition
in a decision dated December 19, 1991, The decretal portion of the decision states:
"All the foregoing considered, for lack of merit and for being a
prohibited pleading under the Rule on Summary Procedure, as revised,
the instant petition is hereby dismissed. Public respondent is hereby
ordered to proceed with the trial of Crim. Case Nos. 5204 and 5213 and
to decide both cases on their merits within the period provided under
the Revised Rule on Summary Procedure. The preliminary injunction
heretofore issued dated May 9, 1991, is hereby lifted and set aside." (p.
118, Rollo)
Still not contented, petitioners have now resorted to the instant petition, arguing that (a) the decision of
the municipal trial court dated June 13, 1990 dismissing the case against them was a judgment of
acquittal, and may no longer be set aside without violating petitioners' right against double jeopardy:
and (b) the regional trial court, in dismissing the petition in CEB-9207 abused its discretion as it ignored
petitioners' right against double jeopardy.
The main issue to be resolved is whether or not the municipal trial court's dismissal of Criminal Case No.
5204 against petitioners precludes a subsequent reconsideration or reversal of such dismissal as the
same would violate petitioners' right against double jeopardy. The secondary issue dwells on the
applicability of the Rule on Summary Procedure prohibiting motions to dismiss and petitions for
certiorari. Cdpr
For double jeopardy to be validly invoked by petitioners, the following requisites must have been
obtained in the original prosecution:
a) a valid complaint or information;
b) a competent court;
c) the defendant had pleaded to the charge; and
d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise
terminated without his express consent (People v. Obsania, 23 SCRA 1249 [1968]; Caes v. IAC , 179 SCRA
54 [1989]).

521 [1990], at p. 529.)

For double jeopardy to attach, the dismissal of the case must be without the express consent of the
accused (People v. Gines, 197 SCRA 481 [1991]). Where the dismissal was ordered upon motion or with
the express assent of the accused, he is deemed to have waived his protection against double jeopardy.
In the case at bar, the dismissal was granted upon motion of petitioners. Double jeopardy thus did not
attach. This doctrine of waiver of double jeopardy was examined and formally introduced in People v.
Salico (84 Phil. 722 [19491), where Justice Felicisimo Feria stated:
". . . when the case is dismissed, with the express consent of the
defendant, the dismissal will not be a bar to another prosecution for
the same offense; because, his action in having the case dismissed
constitutes a waiver of his constitutional right or privilege, for the
reason that he thereby prevents the court from proceeding to the trial
on the merits and rendering a judgment of conviction against him."
(See also People v. Marapao (85 Phil. 832 [1950]); Gandicela v. Lutero
(88 Phil. 299 [1951]); People v. Desalisa (125 Phil. 27 [1966]); and, more
recently, People v. Aquino (199 SCRA 610 [1991]).
Petitioners insist that the June 13, 1990 decision of the Municipal Trial Court (MTC) is an acquittal since it
was issued after it had allegedly considered the merits of the prosecution's evidence.
In People v. Salico (supra), distinctions between acquittal and dismissal were made, to wit:
". . . Acquittal is always based on the merits, that is, the defendant is
acquitted because the evidence does not show that defendant's guilt is
beyond reasonable doubt; but dismissal does not decide the case on
the merits or that the defendant is not guilty. Dismissals terminate the
proceedings, either because the court is not a court of competent
jurisdiction, or the evidence does not show that the offense was
committed within the territorial jurisdiction of the court, or the
complaint or information is not valid or sufficient in form and substance,
etc. . . ." (at pp. 732-733.)
The MTC decision dismissing the case is not an acquittal from the charge considering that no finding was
made as to the guilt or innocence of the petitioners. cdll
Under Section 14, Rule 110 of the 1985 Rules on Criminal Procedure, as amended, it is stated:
"SECTION 14. Amendments. . . .

Jurisprudence on double jeopardy as well as the exceptions thereto which finds application to the case at
bar has been laid down by this Court as follows:
". . . However, an appeal by the prosecution from the order of dismissal
(of the criminal case) by the trial court shall not constitute double
jeopardy if (1) the dismissal is made upon motion, or with the express
consent of the defendant; (2) the dismissal is not an acquittal or based
upon consideration of the evidence or of the merits of the case; and (3)
the question to be passed upon by the appellate court is purely legal so
that should the dismissal be found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to determine
the guilt or innocence of the defendant." (People v. Villalon, 192 SCRA

If it appears at any time before judgment that a mistake has been made
in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the
proper offense in accordance with Rule 119, Sec. 11 . . ."
In Section 11 of the same Rule, it is provided:
"When it becomes manifest at any time before judgment, that a
mistake has been made in charging the proper offense, and the accused
cannot be convicted of the offense charged, or of any other offense
necessarily included therein, the accused shall not be discharged, if

there appears to be good cause to detain him. In such case, the court
shall commit the accused to answer for the proper offense and dismiss
the original case upon the filing of the proper information." (Id., Sec. 11.
Rule 119.)
In the case at bar, the original case was dismissed without the proper information having been filed, it
appearing that the proper charge should have been, "disturbance of public performance," punishable
under Article 153 of the Revised Penal Code instead of "grave threats," under Article 282 of the same
penal code.
Jurisprudence recognizes exceptional instances when the dismissal may be held to be final, disposing of
the case once and for all even if the dismissal was made on motion of the accused himself, to wit:
1. Where the dismissal is based on a demurrer to evidence filed by the
accused after the prosecution has rested, which has the effect of a
judgment on the merits and operates as an acquittal.
2. Where the dismissal is made, also on motion of the accused, because
of the denial of his right to a speedy trial which is in effect a failure to
prosecute. (Caes v. IAC, 179 SCRA 54 [1989] at pp. 60-61.)

ruling in the Bocar case, holding that the trial court exceeded its jurisdiction and acted with grave abuse
of discretion, tantamount to lack of jurisdiction, when it pre-emptively dismissed the case and as a
consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby its
fundamental right to due process. With such violation, its orders are, therefore, null and void and cannot
constitute a proper basis for a claim of double jeopardy.
In the more recent case of Saldana v. Court of Appeals (190 SCRA 396 [1990]), the issue raised was as
follows: "Where the trial court prematurely terminated the presentation of the prosecution's evidence
and forthwith dismissed the information for insufficiency of evidence, may the case be remanded for
further proceeding?" This Court, applying the Bocar case, ruled that the order of the Court of Appeals
reinstating the criminal case for further hearing by the trial court does not violate the rule on double
jeopardy inasmuch as the trial court was ousted from its jurisdiction when it violated the right of the
prosecution to due process.
The municipal trial court thus did not violate the rule on double jeopardy when it set aside the order of
dismissal for the reception of further evidence by the prosecution because it merely corrected its error
when it prematurely terminated and dismissed the case without giving the prosecution the right to
complete the presentation of its evidence. It follows then that the decision of respondent regional trial
court sustaining that of the court of origin cannot be said to be tainted with grave abuse of discretion.
The Rule on Summary Procedure was correctly applied by the public respondents in this case.

Petitioners' motion to dismiss premised on procedural grounds cannot be considered a demurrer to

evidence nor was the dismissal sought by them predicated on the denial of their right to speedy trial.
Hence, the exceptions mentioned find no application in the instant case, especially so because when the
municipal trial court dismissed the case upon petitioners' motion, the prosecution still had to present
several witnesses.
"Where the prosecution is deprived of a fair opportunity to prosecute
and prove its case, its right to due process is thereby violated (People v.
Balisacan, G.R. No. L-26376, Aug. 31, 1966, 17 SCRA 1119; Uy v. Genato,
G.R. No. L-37399, May 29, 1974, 57 SCRA 123). Where there is a
violation of basic constitutional rights, courts are ousted of jurisdiction.
Hence, the violation of the State's right to due process raises a serious
jurisdictional error (Gumabon v. Director of the Bureau of Prisons, G.R.
No. L-30026, Jan. 30, 1971, 37 SCRA 420) as the decision rendered in
disregard of the right is void for lack of jurisdiction." (Aducayen v. Flores,
51 SCRA 78 [1973], at p. 78.)

Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication,
the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]).
In People v. Bocar (138 SCRA 166 [1985]), this Court found that the prosecution was denied due process
as it never had the chance to offer its evidence formally in accordance with the Rules of Court in view of
the trial court's order of dismissal. The trial court was thereby ousted from its jurisdiction when it
violated the right of the prosecution to due process by aborting its right to complete the presentation of
its evidence and, therefore, the first jeopardy had not been terminated. Hence, the remand of the case
for further hearing or trial is merely a continuation of the first jeopardy and does not expose the accused
to a second jeopardy. cdll
In the subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous

Petitioners argue that public respondents gravely abused their discretion in applying the provision
prohibiting the filing of motions to dismiss and petitions for certiorari provided under the Rule on
Summary Procedure. They claim that the prohibition under Section 15 of the Rule on Summary
Procedure refers to motions to dismiss or to quash filed before the accused enters his plea. In any event,
petitioners insist that they filed a demurrer to evidence which is not a prohibited pleading under the Rule
on Summary Procedure.
Demurrer to evidence due to its insufficiency presupposes that the prosecution had already rested its
case (Sec. 15, Rule 119, 1985 Rules on Criminal Procedure). Hence, the motion is premature if interposed
at a time when the prosecution is still in the process of presenting its evidence (Aquino v. Sison, 179
SCRA 648 [1989]), as what happened in this case.
Petitioners, of course, maintain that all the prosecution's evidence was already on record since the
affidavits of complainant and his witnesses, in law, constituted their direct testimonies and that,
therefore, no other evidence could have been introduced by the prosecution. LexLib
Submission of the affidavits to the court does not warrant the inference that the prosecution had already
finished presenting its evidence because the affiants are still required to testify and affirm the contents
thereof; otherwise, these affidavits cannot serve as competent evidence for the prosecution. The Rule on
Summary Procedure states:
"SECTION 14. Procedure of Trial. Upon a plea of not guilty being
entered, the trial shall immediately proceed. The affidavits submitted
by the parties shall constitute the direct testimonies of the witnesses
who executed the same. Witnesses who testified may be subjected to
cross-examination. Should the affiant fail to testify, his affidavit shall
not be considered as competent evidence for the party presenting the
affidavit, but the adverse party may utilize the same for any admissible
purpose.

No witness shall be allowed to testify unless he had previously

submitted an affidavit to the court in accordance with Sections 9 and 10
hereof."
WHEREFORE, the petition is DISMISSED and the decision of the Regional Trial Court dated December 19,
1991 AFFIRMED.
SO ORDERED.
||| (Paulin v. Gimenez, G.R. No. 103323, January 21, 1993)
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. AURELIO
BALISACAN, defendant-appellee.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General I. C. Borromeo and T. M. Dilig, for plaintiffappellant.

court a quo rendered a decision acquitting the accused. As stated, the prosecution appealed therefrom.
This appeal was first taken to the Court of Appeals. Appellant filed its brief on September 9, 1965. No
appellee's brief was filed. After being submitted for decision without appellee's brief, the appeal was
certified to Us by the Court of Appeals on July 14, 1966, as involving questions purely of law (Sec. 17,
Republic Act 296) and on August 5, 1966, We ordered it docketed herein. The sole assignment of error is:
"THE TRIAL COURT ERRED IN ACQUITTING THE ACCUSED OF THE
OFFENSE CHARGED DESPITE THE LATTER'S PLEA OF GUILTY WHEN
ARRAIGNED."
Appellant's contention is meritorious. A plea of guilty is an unconditional admission of guilt with respect
to the offense charged. It forecloses the right to defend oneself from said charge and leaves the court
with no alternative but to impose the penalty fixed by law under the circumstances. (People vs. Ng Pek,
81 Phil. 563). In this case, the defendant was only allowed to testify in order to establish mitigating
circumstances, for the purpose of fixing the penalty. Said testimony, therefore, could not be taken as a
trial on the merits, to determine the guilt or innocence of the accused.
In view of the assertion of self-defense in the testimony of the accused, the proper course should have
been for the court a quo to take defendant's plea anew and then proceed with the trial of the case, in
the order set forth in Section 3 Rule 119 of the Rules of Court:

Rolando de la Cuesta for defendant-appellee.

DECISION

"SEC. 3. Order of trial. The plea of not guilty having been entered,
the trial must proceed in the following order:

BENGZON, J.P., J p:
This is an appeal by the prosecution from a decision of acquittal.
On February 1, 1965, Aurelio Balisacan was charged with homicide in the Court of First Instance of Ilocos
Norte. The information alleged:
"That on or about December 3, 1964, in the municipality of Nueva Era,
province of Ilocos Norte, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused, with intent to kill, did then and
there willfully, unlawfully and feloniously attack, assault and stab one
Leonicio Bulaoat, inflicting upon the latter wounds that immediately
caused his death.
"CONTRARY TO LAW."
To this charge the accused, upon being arraigned, entered a plea of guilty. In doing so he was assisted by
counsel. At his de oficio counsel's petition, however, he was allowed to present evidence to prove
mitigating circumstances.
Thereupon the accused testified to the effect that he stabbed the deceased in self-defense, because the
latter was strangling him. And he further stated that after the incident he surrendered himself voluntarily
to the police authorities.
Subsequently, on March 6, 1965, on the basis of the abovementioned testimony of the accused, the

"(a) The fiscal, on behalf of the People of the Philippines, must offer
evidence in support of the charges.
"(b) The defendant or his attorney may offer evidence in support of the
defense.
"(c) The parties may then respectively offer rebutting evidence only,
unless the court, in furtherance of justice, permit them to offer new
additional evidence bearing upon the main issue in question.
"(d) When the introduction of evidence shall have been concluded,
unless the case is submitted to the court without argument, the fiscal
must open the argument, the attorney for the defense must follow, and
the fiscal may conclude the same. The argument by either attorney may
be oral or written or partly written, but only the written arguments, or
such portions of the same as may be in writing, shall be preserved in
the record of the case."
In deciding the case upon the merits without the requisite trial, the court a quo not only erred in
procedure but deprived the prosecution of its day in court and right to be heard.
This Court now turns to Section 2, Rule 122 of the Rules of Court, which provides that: "The People of the
Philippines can not appeal if the defendant would be placed thereby in double jeopardy." The present
state of jurisprudence in this regard is that the above provision applies even if the accused fails to file a
brief and raise the question of double jeopardy (People vs. Ferrer, L-9072, October 23, 1956; People vs.
Bao, 106 Phil. 243; People vs. de Golez, 108 Phil. 855)

The next issue, therefore, is whether this appeal placed the accused in double jeopardy. It is settled that
the existence of a plea is an essential requisite to double jeopardy (People vs. Ylagan, 58 Phil. 851;
People vs. Quimsing, L-19860, December 23, 1964). In the present case, it is true, the accused had first
entered a plea of guilty. Subsequently, however, he testified, in the course of being allowed to prove
mitigating circumstances, that he acted in complete self-defense. Said testimony, therefore as the court
a quo recognized in its decision had the effect of vacating his plea of guilty and the court a quo should
have required him to plead anew on the charge, or at least direct that a new plea of not guilty be
entered for him. This was not done. It follows that in effect there having been no standing plea at the
time the court a quo rendered its judgment of acquittal, there can be no double jeopardy with respect to
the appeal herein. 1

fiscal moved for its revival. The motion was granted without opposition. Subsequently, however, the
accused filed a motion to dismiss on the ground of double jeopardy, which the court denied. Hence, this
petition.

Furthermore, as afore-stated, the court a quo decided the case upon the merits without giving the
prosecution any opportunity to present its evidence or even to rebut the testimony of the defendant. In
doing so, it clearly acted without due process of law. And for lack of this fundamental pre-requisite its
action is perforce null and void. The acquittal, therefore, being a nullity for want of due process, is no
acquittal at all, and thus can not constitute a proper basis for a claim of former jeopardy (People vs.
Cabero, 61 Phil. 121; 21 Am. Jur. 2d., 235; McCleary vs. Hudspeth, 124 Fed. 2d., 445)

SYLLABUS

It should be noted that in rendering the judgment of acquittal, the trial judge below already gave
credence to the testimony of the accused. In fairness to the prosecution, without in any way doubting
the integrity of said trial judge, We deem it proper to remand this case to the court a quo for further
proceedings under another judge of the same court, in one of the two other branches of the Court of
First Instance of Ilocos Norte sitting at Laoag.
WHEREFORE, the judgment appealed from is hereby set aside and this case is remanded to the court a
quo for further proceedings under another judge of said court, that is, for plea by the defendant, trial
with presentation of evidence for the prosecution and the defense, and judgment thereafter. No costs.
So ordered.
||| (People v. Balisacan, G.R. No. L-26376, August 31, 1966)
GENEROSO ESMEA and ALBERTO ALBA, petitioners, vs. JUDGE
JULIAN B. POGOY, City Court of Cebu City, Branch III, PEOPLE OF THE
PHILIPPINES and RICARDO B. TABANAO, as Special Counsel, Office of
the City Fiscal, Cebu City, respondents.

Rafael D. dela Victoria for petitioners.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Octavio R.
Ramirez and Solicitor Mariano M. Martinez for respondents.
SYNOPSIS

Petitioner and three others were charged with grave coercion in the city court. After three resettings of
the hearing at the instance of the prosecution, the fiscal moved for a fourth transfer of the scheduled
trial on the ground that the complainant was sick. The accused opposed the motion and, invoking their
constitutional right to a speedy trial, insisted on the hearing of the case, stating that otherwise, the case
should be dismissed. Respondent judge provisionally dismissed the case. Twenty seven days later, the

The Supreme Court held, that jeopardy attached to the provisional dismissal of the criminal case after
arraignment, whether the same was ordered at the court's own volition or upon motion of the accused,
because the fiscal was not ready for trial due to the absence of the complainant in court, and the
accused, invoking their right to a speedy trial, insisted on a trial.
Order denying motion to dismiss reversed and set aside.

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; RULE THEREON PROVIDED FOR IN
CONSTITUTION AND COMPLETED BY RULE 117 OF RULES OF COURT. The rule on double jeopardy (non
bis in idem or not twice for the same) is found in section 22, Article IV (Bill of Rights) of the Constitution
which provides that "no person be twice put in jeopardy of punishment for the same offense." This is
completed by section 9 Rule 117 of the Rules of Court which precludes a person's subsequent indictment
for the same offense where there has already been acquittal (autrefois acquit), previous conviction
(autrefois convict) or dismissal or termination of the case without his consent.
2. ID.; ID.; ID.; CONDITIONS FOR DOUBLE JEOPARDY TO EXIST; EFFECTS OF PRESENCE THEREOF. In
order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a
court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint
or information. When these three conditions are present, the acquittal or conviction of the accused or
the dismissal or termination of the case without his express consent constitutes res judicata and is a bar
to another prosecution for the offense charged, or for any offense which necessarily includes or its
included therein (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 240).
3. ID.; ID.; ID.; PROVISIONAL DISMISSAL IN CASE AT BAR PLACES PETITIONERS IN JEOPARDY SINCE FACT
OF ACCUSED'S CONSENT THERETO IS NOT CLEAR. On this case, the provisional dismissal of the
criminal case against petitioners has placed them in jeopardy, because it is not very clear that they
consented to such dismissal. The petitioners were insisting on a trial, They relied on their constitutional
right to have a speedy trial. The fiscal was not in court. Respondent judge on his own volition
provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the
provisional dismissal. Hence, the dismissal placed them in jeopardy.
4. ID.; ID.; ID.; PROVISIONAL DISMISSAL ALTHOUGH UPON MOTION OF ACCUSED PLACES THEM IN
JEOPARDY WHERE RIGHT TO SPEEDY TRIAL INVOKED. Even if the petitioners, after invoking their right
to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the provisional
dismissal would still place them in jeopardy. The use of the word "provisional" would not change the
legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299). "If
the defendant wants to exercise his constitutional right to a speedy trial, he should ask not for the
dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is
denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently,
fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such
dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980
Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714, 717).
DECISION

AQUINO, J p:
This case poses the issue of whether the revival of a grave coercion case, which was provisionally
dismissed (after the accused had been arraigned) because of complainant's failure to appear at the trial,
would place the accused in double jeopardy, considering their constitutional right to have a speedy trial.
Petitioners Generoso Esmea and Alberto Alba and their co-accused, Genaro Alipio, Vicente Encabo and
Bernardo Villamira were charged with grave coercion in the city court of Cebu City for having allegedly
forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to withdraw the sum of five
thousand pesos from the bank and to give that amount to the accused because the priest lost it in a
game of cards.
The case was calendared on October 4, 1978 presumably for arraignment and trial. Upon the telegraphic
request of Father Tibudan, the case was reset on December 13, 1978. Because Esmea and Alba were
not duly notified of that hearing, they were not able to appear.
The two pleaded not guilty at their arraignment on January 23, 1979. No trial was held after the
arraignment because complainant Father Tibudan requested the transfer of the hearing to another date.
In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979 was
cancelled at his instance. On that date, respondent judge issued an order setting the trial "for the last
time on August 16, 1979 at 8:30 o'clock in the morning" (p. 21, Rollo).
When the case was called on that date, the fiscal informed the court that the private prosecutor received
from complainant Father Tibudan a telegram stating that he was sick. The counsel for petitioners Esmea
and Alba opposed the cancellation of the hearing. They invoked the right of the accused to have a
speedy trial.

jeopardy. They pointed out that they did not consent to the provisional dismissal of the case. Hence, the
provisional dismissal amounted to an acquittal which placed them in jeopardy. Its revival would place
them in double jeopardy.
The fiscal opposed the motion. He called the court's attention to the fact that Father Tibudan had
appeared in court several times but the hearing was not held. The court denied the motion to dismiss.
That order denying the motion to dismiss is assailed in this special civil action of certiorari. The Solicitor
General agrees with the petitioners that the revival of the case would place the accused in double
jeopardy since the provisional dismissal of the case without their consent was in effect an acquittal.
The rule on double jeopardy (non bis in idem or not twice for the same) is found in section 22, Article IV
(Bill of Rights) of the Constitution which provides that "no person shall be twice put in jeopardy of
punishment for the same offense." This is complemented by Rule 117 of the Rules of Court which
provides as follows: prLL
"SEC. 9. Former conviction or acquittal or former jeopardy. When a
defendant shall have been convicted or acquitted, or the case against
him dismissed or otherwise terminated without the express consent of
the defendant, by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and
substance to sustain a conviction, and after the defendant had pleaded
to the charge, the conviction or acquittal of the defendant or the
dismissal of the case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.

Their counsel told the court: ". . . we are now invoking the constitutional right of the accused to a speedy
trial of the case. . . . We are insisting on our stand that the case be heard today; otherwise, it will (should)
be dismissed on the ground of invoking (sic) the constitutional right of the accused particularly accused
Alberto Alba and Generoso Esmea." (pp. 50 and 52, Rollo).

In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a
court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint
or information.

Respondent judge provisionally dismissed the case as to the four accused who were present because it
"has been dragging all along and the accused are ready for the hearing" but the fiscal was not ready with
his witness. The court noted that there was no medical certificate indicating that the complainant was
really sick. The case was continued as to the fifth accused who did not appear at the hearing. His arrest
was ordered (p. 23, Rollo).

When these three conditions are present, the acquittal or conviction of the accused or the dismissal or
termination of the case without his express consent constitutes res judicata and is a bar to another
prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is included therein (4 Moran's Comments on the Rules of Court,
1980 Ed., p. 240).

Twenty-seven days later, or on September 12, 1979, the fiscal filed a motion for the revival of the case.
He attached to his motion a medical certificate under oath attesting to the fact that Father Tibudan was
sick of influenza on August 16, 1979.

Previous acquittal (autrefois acquit), previous conviction (autrefois convict) or the dismissal or
termination of the case without his consent precludes his subsequent indictment for the same offense as
defined in section 9.

The fiscal cited the ruling that a provisional dismissal with the conformity of the accused lacks the
impress of finality and, therefore, the case could be revived without the filing of a new information
(Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA 175).

In the instant case, we hold that the petitioners were placed in jeopardy by the provisional dismissal of
the grave coercion case. That provisional dismissal would not have placed the petitioners in jeopardy if
respondent judge had taken the precaution of making sure that the dismissal was with their consent. In
this case, it is not very clear that the petitioners consented to the dismissal of the case.

The accused did not oppose the motion. Respondent judge granted it in his order of October 8, 1979 (p.
26, Rollo).
On October 24, 1979, Esmea and Alba filed a motion to dismiss the case on the ground of double

It is the practice of some judges before issuing an order of provisional dismissal in a case wherein the
accused had already been arraigned to require the accused and his counsel to sign the minutes of the
session or any available part of the record to show the conformity of the accused or his lack of objection

to the provisional dismissal.

The judge specifies in the order of provisional dismissal that the accused and his counsel signified their
assent thereto. That procedure leaves no room for doubt as to the consent of the accused and precludes
jeopardy from attaching to the dismissal. cdrep
The petitioners were insisting on a trial. They relied on their constitutional right to have a speedy trial.
The fiscal was not ready because his witness was not in court. Respondent judge on his own volition
provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the
provisional dismissal. Hence, the dismissal placed them in jeopardy.
Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and,
therefore, consented to it, the dismissal would still place them in jeopardy. The use of the word
"provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134;
Gandicela vs. Lutero, 88 Phil. 299).
"If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the
dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is
denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently,
fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such
dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980
Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714, 717).
The dismissal of a criminal case upon motion of the accused because the prosecution was not prepared
for trial since the complainant and his witnesses did not appear at the trial is a dismissal equivalent to an
acquittal that would bar further prosecution of the defendant for the same offense (Salcedo vs. Mendoza,
L-49375, February 28, 1979, 88 SCRA 811; Lagunilla vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing
People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016. See Taladua vs. Ochotorena, L25595, February 15, 1974, 55 SCRA 528; Acebedo vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA
247; Baesa vs. Provincial Fiscal of Camarines Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs.
Cloribel, 120 Phil. 775; People vs. Abao, 97 Phil. 28; People vs. Labatete, 107 Phil. 697).
WHEREFORE, the order of respondent judge dated October 8, 1979, reviving the criminal case against
the petitioners, and his order of December 14, 1979, denying petitioners' motion to dismiss, are reversed
and set aside. No costs.
SO ORDERED.
||| (Esme, G.R. No. L-54110, February 20, 1981) PEOPLE OF THE
PHILIPPINES, petitioner, vs. HON. GREGORIO G. PINEDA, Branch XXI,
Court of First Instance of Rizal, and CONSOLACION NAVAL,
respondents.

The Solicitor General for petitioner.

Salonga, Ordoez, Yap & Associates for private respondent.
SYLLABUS

1. CRIMINAL LAW; COMPLEX CRIME; FALSIFICATION IN 1971 AND ESTAFA IN 1973 NOT CONSTITUTIVE OF
ONE COMPLEX CRIME. It is virtually unacceptable to suppose that private respondent concocted the
sinister scheme of falsification in 1971 precisely to facilitate the commission of estafa in 1973 such that
both crimes emanated from a single criminal impulse. Otherwise, an unfounded verisimilitude of this
nature will run afoul with what this Court already observed in People vs. Penas (68 Phil. 533 [1939]; 1
Aquino, Revised Penal Code, 1976 Ed., p. 574) to the effect that the eleven estafas through falsification
which the same accused therein committed between November 24, 1936 and January 3, 1937 including
the falsification which he committed on January 8, 1937 were considered distinct offenses, not one
complex crime, because they were committed on different dates, not to mention the discrepancy in
places where they were accomplished. In the same breath, it necessarily follows that the suspended
hiatus, between 1971 and 1973 in the case at bar will not afford the occasion to buttress the
unwarranted submission the first is an integral part of or intimately interwoven with the second felony. A
simple perusal of the two informations will disclose, and this cannot be gainsaid, that the recitals thereof
radically differ with each other. The indictment for falsification allegedly perpetrated in 1971 was
levelled against private respondent because of the pretense in the application for registration of her
exclusive dominion over a parcel of land notwithstanding the previous sale of the same lot in 1969 to
Edilberto V. Ilano. By contrast, the inculpatory aspersions against private respondent in 1973 for estafa
have their roots in the overt act of disposing the same piece of lot in favor of other persons subsequent
to the conveyance in favor of Edilberto V. Ilano in 1969. Indeed, the intent to prevaricate on a piece of
document for the purpose of securing a favorable action for registration with Article 172 of the Revised
Penal Code is definitely distinct from the perceived double sale contemplated by the first paragraph
under Article 316 of the same code.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; INFORMATION FOR FALSIFICATION MAY NOT BE QUASHED
RELATIVE TO A SEPARATE CHARGE FOR ESTAFA; REASONS. A. OTHER GROUND FOR QUASHAL HAS
NOT BEEN RAISED IN A MOTION TO QUASH, OR HAS BEEN WAIVED. Assuming in gratia argumenti that
falsification was indeed necessary to commit estafa, which ordinarily constitutes a complex crime under
Article 48 of the Revised Penal Code and thus susceptible to challenge via a motion to quash under
Section 2 (e), Rule 117 vis-a-vis Section 12, Rule 110 (Moran, Rules of Court, Vol. 4, 1980 Ed., p. 42; 230),
still, it was serious error on the part of the magistrate below to have appreciated this discourse in favor
of private respondent since this matter was not specifically raised in the motion to quash filed on
October 28, 1975 (p. 16, Record). It was only in the motion for reconsideration where private respondent
pleaded this additional ground after her motion to quash was denied (p. 39, Record). The legal
proscription against entertaining another saving clause to abate the charge for falsification is very explicit
under Section 3, Rule 117 of the Revised Rules of Court: "Sec. 3. Motion to quash Form and contents
Failure to state objection Entry of record Failure to record. The motion to quash shall be in
writing signed by the defendant or his attorney. It shall specify distinctly the ground of objection relied
on and the court shall hear no objection other than that stated in the motion. It shall be entered or
record but a failure to so enter it shall not affect the validity of any proceeding in the case." . . . In effect,
therefore, respondent judge accommodated another basis for the quashal of the information albeit the
same was not so stated in the motion therefor. This should not have been tolerated because it is
anathema to the foregoing proviso (Moran, supra, at p. 283, citing Suy Sui vs. People, 49 O.G. 967). This
caveat is now amplified in Section 8 of Rule 117 as amended, thus: "SEC. 8. Failure to move to quash or
to allege any ground therefor. The failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion shall be deemed a waiver of the grounds of a motion to quash,
except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the
offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of Section 3 of this
Rule." B. OTHER GROUND FOR QUASHAL IS NOT AMONG THE GROUNDS FOR MOTION TO QUASH
ALLOWED TO BE FILED AFTER PLEA AND AT ANY TIME BEFORE JUDGMENT. The course of action
pursued by the trial court in this context may not even be justified under Section 10 of Rule 117 which
says that: "Sec. 10. Failure to move to quash Effect of Exceptions. If the defendant does not

move to quash the complaint or information before he pleads thereto he shall be taken to have waived
all objections which are grounds for a motion to quash except when the complaint or information does
not charge an offense, or the court is without jurisdiction of the same. If, however, the defendant learns
after he has pleaded or has moved to quash on some other ground that the offense for which he is now
charged is an offense for which he has been pardoned, or of which he has been convicted or acquitted or
been in jeopardy, the court may in its discretion entertain at any time before judgment a motion to quash
on the ground of such pardon, conviction, acquittal or jeopardy." for the simple reason that the theory of
a single crime advanced by private respondent in her belated, nay, "second" motion to quash couched as
motion for reconsideration is not synonymous with "pardon, conviction, acquittal or jeopardy". C. THERE
IS NO DOUBLE JEOPARDY. Withal, the mere filing of two informations charging the same offense is not
an appropriate basis for the invocation of double jeopardy since the first jeopardy has not yet set in by a
previous conviction, acquittal or termination of the case without the consent of the accused (People vs.
Miraflores, 115 SCRA 586 [1982]; Nierras vs. Dacuycuy, 181 SCRA 8 [1990]). . . . Moreover, it appears that
private respondent herein had not yet been arraigned in the previous case for estafa. Thus, there is that
other missing link, so to speak, in the case at bar which was precisely the same reason utilized by Justice
Davide, Jr. in Lamera vs. Court of Appeals (198 SCRA 186 [1991]) when he brushed aside the claim of
double jeopardy of the accused therein who was arraigned in the previous case only after the judgment
of conviction was promulgated in the other case.
3. ID.; ID.; REQUISITES OF DOUBLE JEOPARDY. It was similarly fallacious for the lower court to have
shared the notion that private respondent is in danger of being convicted twice for the same criminal act,
a circumstance recognized under Section 2(h) Rule 117 of the Old Rules as suggested in the motion to
quash, because this plea is understood to presuppose that the other case against private respondent has
been dismissed or otherwise terminated without her express consent, by a court of competent
jurisdiction, upon a valid complaint or information, and after the defendant had pleaded to the charge
(People of the Philippines versus Hon. Maximiano C. Asuncion, et al., G.R. Nos. 83837-42, April 22, 1992;
Section 7, Rule 117, 1985 Rules on Criminal Procedure, as amended).
4. ID.; ID.; ID.; CONVICTION, ACQUITTAL, OR TERMINATION OF PREVIOUS CASE A NECESSARY OF DOUBLE
JEOPARDY. The sentiments expressed in this regard by Our distinguished colleague which rest on the
ruling of this Court in People vs. City Court of Manila, Branch XI (121 SCRA 637 [1983], cited by Regalado,
Vide, at p. 339 to the effect that jeopardy would already attach when the accused enters his plea was
due to the obiter dictum of the ponente in that case, . . . where it was opined, thus: "Well-settled is the
rule that one who has been charged [implying that there is no need to show previous conviction,
acquittal, or dismissal of a similar or identical charge] with an offense cannot be charged again with the
same or identical offense though the latter be lesser or greater than the former." . . . It may be observed
that in City Court of Manila the accused therein pleaded on the first offense of which he was charged and
subsequently convicted, . . . In short, in order for the first jeopardy to attach, the plea of the accused to
the charge must be coupled with either conviction, acquittal, or termination of the previous case without
his express consent thereafter. (Tolentino vs. De la Costa, 66 Phil. 97 [1938]). . . . inasmuch as this Court
has spoken quite recently in people vs. Asuncion, (G.R. Nos. 83837-42, April 2, 1992), the ambiguity
stirred by the imprecise observation in People vs. City Court of Manila, a 1983 case, can now he
considered modified in that a prior conviction, or acquittal, or termination of the case without the
express acquiescence of the accused is still required before the first jeopardy can be pleaded to abate a
second prosecution.
REGALADO, J., concurring and dissenting:
1. CRIMINAL LAW; COMPLEX CRIME; CONCEPT. In this type of complex crime under Article 48 of the
Revised Penal Code known in Spanish law as a delito complejo, there must be a direct connection, both in
point of time and intention, that the first felony committed by the offender was deliberately adopted by
him as a necessary means to commit the other. That singularity of purpose, or unity of criminal intent, is

the basis for penalizing both offenses with a single penalty, albeit in the maximum period of that for the
graver offense, since this is the so called case of formal or ideal plurality of crimes which is generated by
a single criminal resolution.

2. ID.; ID.; ID.; APPLICATION IN CASE AT BAR. While the foregoing discussion may also apply to
plurality of complex crimes committed on different dates, the rationale is the same. As already
emphasized, there must be an evident nexus between the first and the second felonies, in that the first
was resorted to precisely to ensure the commission and in anticipation of the second. Here, it defies
sober analysis as to how the falsification in 1971 and the estafa in 1973 could be the component felonies
of a single complex crime. . . . The falsification charged in Criminal Case No 15796 was allegedly
committed on August 17, 1971 with an application for land registration containing false statements. No
private offended parties, other than Edilberto Ilano, were contemplated therein since no other sales of
the land or portions thereof were alleged to have been effected. On the other hand, the estafa charged
in Criminal Case No. 15795 was supposedly committed almost two (2) years later, on March 23, 1973,
allegedly by the filing of another application for registration of parts of the same parcel of land, portions
of which were thereafter sold to nine (9) other persons who would be the potential aggrieved parties. It
is hard to conceive of how a falsification committed in 1971 which, at that time, had no probable or
direct connection with the estafa committed in 1973, could be considered as the necessary means to
commit the latter such that both could be considered a single complex crime. . . . During the
deliberations in this case, I advanced the view that even under substantive law, specifically the provisions
of and the jurisprudence on Article 48 of the Revised Penal Code, the offenses of which private
respondent stands charged cannot be considered together as component offenses constitutive of a
single complex crime. I am gratified that in the revised ponencia, the majority now shares my position.
3. REMEDIAL LAW; CRIMINAL PROCEDURE; REQUISITES OF DOUBLE JEOPARDY; CONVICTION, ACQUITTAL,
OR TERMINATION OF PREVIOUS CASE NOT A NECESSARY REQUISITE OF DOUBLE JEOPARDY. Since our
basic rules on double jeopardy are admittedly of American judicial origin, the rulings in that jurisdiction
would be instructive. We find these annotations in Corpus Juris Secundum: "The general rule established
by the preponderance of judicial opinion and by the best considered cases is that, when a person has
been placed on trial on a valid indictment or information before a court of competent jurisdiction, has
been arraigned, and has pleaded, and a jury has been impaneled and sworn, he is in jeopardy, but that,
until these things have been done, jeopardy does not attach." (22 C.J.S., Criminal Law 637) . . . "If
jeopardy is considered to attach when the jury are sworn or when the first witness is heard, it is not
ordinary necessary that the prior trial shall have resulted in a valid judgment either of conviction or
acquittal: it is sufficient if the prisoner was actually placed in jeopardy in that he was in danger of having
a valid judgment pronounced as the result of the trial; it is not the verdict or judgment which places a
prisoner in jeopardy. . . . The doctrine above discussed to the effect that the accused is in legal jeopardy
from the moment he enters a valid plea to the indictment is not terra incognita in our jurisdiction. As
early as 1933, in applying Section 28 of the then Code of Criminal Procedure which was substantially
incorporated in Section 9, Rule 117 of the 1964 Rules of Court (now Section 7, Rule 117 of the 1985 Rules
of Criminal Procedure), this Court, with minor allowances for our procedural differences with criminal
proceedings in American jurisdiction, substantially reiterated the abovequoted doctrines as a basic
proposition of law. . . . This is reiterated and clarified by a recognized authority who explains that legal
jeopardy exists from the moment the accused has pleaded to the charge, and that the disposition of his
case thereafter is merely the consequence of the former as to constitute a bar to another
prosecution, . . . While in almost all cases decided by the Court double jeopardy was sustained because
of a previous conviction, acquittal or dismissal of the case without the consent of the accused, these
were so because the facts thereof really made out in each a case of autrefois aquit or autrefois convict. In
addition, with the specific provision of then Section 9 (now Section 7) of Rule 117 providing for the
requirements, and under the heading of "Former conviction or acquittal or former jeopardy" (now

rephrased as such epigraph reading "Former conviction or acquittal, double jeopardy."), the impression
created was that the doctrine of double jeopardy can be invoked only if there was prior conviction,
acquittal or dismissal of the case involving the same offense of which the accused is charged again. The
writer respectfully submits otherwise. It has long been my position that the issue of double jeopardy
arises in three different ways, that is, when: (a) the accused is charged with the same offense in two
separate pending cases, in one of which he has validly pleaded; (b) The accused is prosecuted anew for
the same offense after he has been previously convicted or acquitted thereof or the charge therefor had
been dismissed without his consent; or (c) the prosecution makes a legally unauthorized appeal from a
judgment in the same case. The first instance is contemplated in then Section 2 (now Section 3),
paragraph (h), Rule 117; the second is covered by Section 7 of the same Rule; and the third is governed
by Section 2, Rule 122. That the first and the third instances are rarely involved in cases or found in our
jurisprudential annals is to the credit of our prosecutorial agencies which, with respect to the first
instance, can seldom be faulted with simultaneously or successively charging the same person twice with
the same offense in separate cases and, regarding the third instance, of scrupulously avoiding the
proscribed appeals. Evidently, this is not to be construed to mean, however, that only the second
instance, or "former jeopardy," can be the basis of a motion to a quash. Section 3 of Rule 117 provides
the ground for a motion to quash and, just like the provisions of the 1964 Rules of Court, includes therein
as paragraph "(h) That the accused has been previously convicted or in jeopardy of being convicted or
acquitted of the offense charged." Indisputably, the first part of this paragraph regarding previous
conviction refers to the "former jeopardy" embraced in the present Section 7 of this Rule. Now, unless
we are prepared to treat the second part therein as faulty drafting or linguistic surplusage, that second
part referring to the accused as "in jeopardy of being convicted or acquitted of the offense charged"
necessarily presupposes that he has not yet been convicted or acquitted of an offense identical to that
with which he is again indicted . . . Spelled out to the point of elemental details, said paragraph (h)
actually provides for two modes constitutive of separate grounds for quashal of a second indictment for
the same offense. Recasting its provisions for greater clarity, the first mode allows quashal where the
accused has been previously convicted or acquitted of the same offense with which he is again presently
charged and in danger of a second conviction. This would correspond, in civil procedure, to res judicata a
ground for dismissal. The second mode stated in the same paragraph contemplates the situation where
the accused is only in jeopardy or danger of being convicted in the first case, since no judgment or final
order has yet been rendered therein, and he is now charged anew with the same offense. This is
equivalent, in civil cases, to litis pendentia or auter action pendant, likewise a ground for dismissal. Now,
in criminal procedure, these two variant grounds are provided for in a single paragraph but definitely not
as identical, but alternative and discrete, grounds although embraced in the same concept of double
jeopardy. . . . Coming back to my preceding disquisition on double jeopardy, I humbly submit that a view
contrary thereto could be productive of mischievous, if not preposterous, results. While, as earlier
observed, it is a little remote for the same authority to charge the same accused with two criminal suits
involving the same offense, this is not an absolute improbability, as witness politically-motivated
harassment prosecutions. It is also possible that duplicity of suits on identical offenses may be brought
about by acts of different authorities in separate local jurisdictions. Thus, to illustrate, . . . The majority
points out that it was obiter for the Court to rule in People vs. City Court of Manila, Branch XI that the
accused therein was in double jeopardy because he had already been charged for the same offense,
emphasizing that such imprecision of language would give the impression that one simply charged may
claim possible jeopardy in another case. This writer is aware that the ponente therein committed an
innocent oversight hence in my comment thereon, as quoted in the main decision, it was explained that
this would be so as long as the accused had entered his plea therein. Aware that such statement in that
case could further be, as it is now, blandly dismissed as obiter, I also made the qualification that my
comment was as the doctrine "would now appear" based on the holding in said case. Yet, as a statement
of a rule of procedure, I believe that, properly and completely expressed, the view of the ponente in that
case was in the right direction on that score. Also, we have held that while an obiter dictum is generally
not binding as authority or precedent within the stare decisis rule, it may be followed if sufficiently
persuasive. I make this observation since it may also be argued that the present discussion regarding the

bases of my dissent would be obiter if we hold that in the present case the issue of double jeopardy is
not really involved since the private respondent is not being charged with a complex crime, the
component felonies of which have been made the subject of separate suits, but of two distinct and
independent crimes.

4. ID.; ID.; ID.; EFFECT OF PLEA. Parenthetically, the overriding significance of a plea is underscored
when we recall that after a plea has been entered, there can be no amendment in substance of the
information or complaint, but only in form and this by leave and at the discretion of the court if it can be
done without prejudice to the accused. (Sec. 14, Rule 110, Rules of Court) And, of course, it is
fundamental that there can be no valid judgment without a valid standing plea to the charge. (People vs.
Balisacan, 17 SCRA 119 [1966]; People vs. Padernal, 21 SCRA 34 [1967])
DECISION

MELO, J p:
When Consolacion Naval, the herein private respondent, was separately accused of having committed
the crime of estafa in Criminal Case No. 15795 before Branch 19, and of falsification in Criminal Case No.
15796 before Branch 21, both of the then Court of First Instance of Rizal of the Seventh Judicial District
stationed at Pasig, Rizal, she sought the quashal of the latter charge on the supposition that she is in
danger of being convicted for the same felony (p. 16, Record). Her first attempt in this respect did not
spell success (p. 34, Record) but the Honorable Gregorio G. Pineda, Presiding Judge of Branch 21 was
persuaded to the contrary thereafter on the belief that the alleged falsification was a necessary means of
committing, along with the denial of the motion for re-evaluation therefrom (p. 66, Record) which the
People impugns via the special civil action for certiorari now before Us.
The indictment for estafa against Consolacion Naval and her co-accused Anacleto Santos, reads: llcd
"That on or about March 23, 1973 and soon thereafter, in the
municipality of Pasig, province of Rizal, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping and aiding
one another, by means of deceit and with intent to defraud, knowing
that their parcel of land among others, situated in Malaking Bundok,
Barrio Dolores, Taytay, Rizal, and more particularly described as follows,
to wit:
"OJA No. 5851
Isang lagay na lupa (bulubundukin) na
nasa lugar ng Malaking Bundok, Bo. Dolores, Taytay,
Rizal, na may lawak na 14,615.5 metrong parisukat na
may tasang P580.00 at may hangganang gaya ng
sumusunod: Hilagaan-Hermogenes Naval (now part of
Rev. Tax Dec. 9284; Silanganan-Nicolas del Rosario (now
Jaime del Rosario); Timugan-Eduvigis, Consolacion,

Apolinaria, Naval; Kanluran-Creek (sapang bato)".

was already sold and encumbered to one Edilberto V. Ilano as can be
gleaned from a document entitled "Kasulatan ng Bilihan Ng Lupa Na
May Pasubali O Condicion" sometime on August 12, 1969; and the
latter having paid the partial amount of P130,850.00 to the herein
accused and without informing said Edilberto V. Ilano, the herein
accused Consolacion Naval executed and filed an Application for
Registration over the same parcel of land among others, which
document is designated as LRC Case No. N-7485, Consolacion, Eduvigis
and Apolinaria, all surnamed Naval" of the Court of First Instance of
Rizal, Pasig, Rizal, as a result of which the Presiding Judge of Branch XIII
to which said case was assigned issued Original Certificate of Title No.
9332 in her name, which are was reduced to 10,075 sq. meters as
appearing in item No. 2 in said OCT and subsequently referred to in TCT
No. 370870 in favor of said accused Naval through Rodolfo Mendoza,
sold more than one-half (1/2) of said parcel of land in her name in favor
of Maria, Anacleto, Carmelo, Mariano, Cecilia and Teodorica, all
surnamed Santos and Iluminada Tambalo, Pacita Alvarez and Pedro
Valesteros which sales were registered and annotated with the Register
of Deeds of Rizal at Pasig, Rizal; and likewise a portion of which was
partitioned to herein accused Anacleto Santos; that despite repeated
demands the accused refused and still refuse to return said amount
and/or fulfill their obligations under said "Kasulatan Ng Bilihan Ng Lupa
Na May Pasubali O Condicion", to the damage and prejudice of said
Edilberto V. Ilano in the aforementioned amount of P130,850.00" (pp.
44-45, Rollo).
while the charge for falsification narrates: prcd
"That on or about the 17th day of August, 1971, in the municipality of
Pasig, province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being then private
individual did then and there willfully unlawfully and feloniously falsify
a public document by making untruthful statements in a narration of
facts, committed as follows: the said accused on August 17, 1971,
executed a document entitled "Application For Registration" for parcels
of land located at Taytay, Rizal, to the effect that "She is the exclusive
owner in fee simple of a parcel of land situated in Malaking Bundok,
Barrio Dolores, Taytay, Rizal with Psu-248206 and that she "does not
know of any mortgage or encumbrance of any kind whatsoever
affecting said land or that any person has estate or interest therein,
legal or equitable, in possession remainder, reversion or expectancy",
as a result of which the Court in its Decision of March 22, 1972 declared
the herein accused the true and absolute owner of said parcel of land
free from all liens and encumbrances of any nature, when in truth and
in fact the herein accused has already sold and encumbered to one
Edilberto V. Ilano said parcel of land referred to above as can be
gleaned from a document entitled "Kasulatan Ng Bilihan Ng Lupa Na
May Pasubali O Condicion" dated August 12, 1969 and said Edilberto V.
Ilano has already paid partial amount of P130,850.00 to the herein
accused.

"Contrary to law." (p. 2, Rollo)

The confluence of the foregoing assertions disclose that Consolacion Naval sold the subject realty on
August 12, 1969 to Edilberto Ilano who made a partial payment of P130,850.00. About two years later, or
on August 17, 1971, an application for registration under the Land Registration Act was submitted by
Consolacion wherein she stated that she owned the same lot and that it was unencumbered. For those
reasons, the corresponding title was issued in her name but she allegedly disposed of the half portion of
the property to nine other persons.
These antecedents spawned the simultaneous institution of the charges on September 17, 1975.
On October 28, 1975, private respondent Consolacion Naval moved to quash the information for
falsification, premised, among other things, on the apprehension that she is in danger of being
condemned for an identical offense. The following day, Naval pleaded not guilty to the charge levelled
against her for falsification (p. 22, Record) and on December 22, 1975, the court a quo denied her motion
to quash (p. 34, Record). LibLex
As earlier intimated, the magistrate below thereafter reconsidered his order of denial which gave rise to
the corresponding unsuccessful bid by the People for reinstatement of the information for falsification.
Hence the instant petition, which practically reiterates the same disquisition put forward in the
proceedings below (p. 7, Petition; p. 47, Rollo)
The issue of whether the court below correctly quashed the information for falsification must be
answered in the negative for the following reasons: .
1. Assuming in gratia argumenti that falsification was indeed necessary to commit estafa, which
ordinarily constitutes a complex crime under Article 48 of the Revised Penal Code and thus susceptible to
challenge via a motion to quash under Section 2 (e), Rule 117 vis-a-vis Section 12, Rule 110 (Moran, Rules
of Court, Vol. 4, 1980 Ed., p. 42; 230), still, it was serious error on the part of the magistrate below to
have appreciated this discourse in favor of private respondent since this matter was not specifically
raised in the motion to quash filed on October 28, 1975 (p. 16, Record). It was only in the motion for
reconsideration where private respondent pleaded this additional ground after her motion to quash was
denied (p. 39, Record). The legal proscription against entertaining another saving clause to abate the
charge for falsification is very explicit under Section 3, Rule 117 of the Revised Rules of Court:
"SECTION 3. Motion to quash Form and contents Failure to state
objection Entry of record Failure to record. The motion to quash
shall be in writing signed by the defendant or his attorney. It shall
specify distinctly the ground of objection relied on and the court shall
hear no objection other than that stated in the motion. It shall be
entered or record but a failure to so enter it shall not affect the validity
of any proceeding in the case." llcd
It must be observed that the denial of the motion to quash was re-examined not in the light of "res
judicata dressed in prison grey" but on the aspect of whether falsification was supposedly perpetrated to
commit estafa. The course of action pursued by the trial court in this context may not even be justified
under Section 10 of Rule 117 which says that:
"SECTION 10. Failure to move to quash Effect of Exceptions. If
the defendant does not move to quash the complaint or information
before he pleads thereto he shall be taken to have waived all objections

which are grounds for a motion to quash except when the complaint or
information does not charge an offense, or the court is without
jurisdiction of the same. If, however, the defendant learns after he has
pleaded or has moved to quash on some other ground that the offense
for which he is now charged is an offense for which he has been
pardoned, or of which he has been convicted or acquitted or been in
jeopardy, the court may in its discretion entertain at any time before
judgment a motion to quash on the ground of such pardon, conviction,
acquittal or jeopardy."
for the simple reason that the theory of a single crime advanced by private respondent in her
belated, nay, "second" motion to quash couched as motion for reconsideration is not
synonymous with "pardon, conviction, acquittal or jeopardy". In effect, therefore, respondent
judge accommodated another basis for the quashal of the information albeit the same was not so
stated in the motion therefor. This should not have been tolerated because it is anathema to the
foregoing proviso (Moran, supra, at p. 283, citing Suy Sui vs. People, 49 O.G. 967). This caveat is
now amplified in Section 8 of Rule 117 as amended, thus:

"SECTION 8. Failure to move to quash or to allege any ground therefor.

The failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because he did
not file a motion to quash or failed to allege the same in said motion
shall be deemed a waiver of the grounds of a motion to quash, except
the grounds of no offense charged, lack of jurisdiction over the offense
charged, extinction of the offense or penalty and jeopardy, as provided
for in paragraphs (a), (b), (f) and (h) of Section 3 of this Rule." LibLex
At any rate, it is virtually unacceptable to suppose that private respondent concocted the sinister scheme
of falsification in 1971 precisely to facilitate the commission of estafa in 1973 such that both crimes
emanated from a single criminal impulse. Otherwise, an unfounded verisimilitude of this nature will run
afoul with what this Court already observed in People vs. Penas (68 Phil. 533 [1939]; 1 Aquino, Revised
Penal Code, 1976 Ed., p. 574) to the effect that the eleven estafas through falsification which the same
accused therein committed between November 24, 1936 and January 3, 1937 including the falsification
which he committed on January 8, 1937 were considered distinct offenses, not one complex crime,
because they were committed on different dates, not to mention the discrepancy in places where they
were accomplished. In the same breath, it necessarily follows that the suspended hiatus, between 1971
and 1973 in the case at bar will not afford the occasion to buttress the unwarranted submission the first
is an integral part of or intimately interwoven with the second felony. A simple perusal of the two
informations will disclose, and this cannot be gainsaid, that the recitals thereof radically differ with each
other. The indictment for falsification allegedly perpetrated in 1971 was levelled against private
respondent because of the pretense in the application for registration of her exclusive dominion over a
parcel of land notwithstanding the previous sale of the same lot in 1969 to Edilberto V. Ilano. By contrast,
the inculpatory aspersions against private respondent in 1973 for estafa have their roots in the overt act
of disposing the same piece of lot in favor of other persons subsequent to the conveyance in favor of
Edilberto V. Ilano in 1969. Indeed, the intent to prevaricate on a piece of document for the purpose of
securing a favorable action for registration with Article 172 of the Revised Penal Code is definitely
distinct from the perceived double sale contemplated by the first paragraph under Article 316 of the
same code.
2. It was similarly fallacious for the lower court to have shared the notion that private respondent is in
danger of being convicted twice for the same criminal act, a circumstance recognized under Section 2(h)

Rule 117 of the Old Rules as suggested in the motion to quash, because this plea is understood to
presuppose that the other case against private respondent has been dismissed or otherwise terminated
without her express consent, by a court of competent jurisdiction, upon a valid complaint or information,
and after the defendant had pleaded to the charge (People of the Philippines versus Hon. Maximiano C.
Asuncion, et al., G.R. Nos. 83837-42, April 22, 1992; Section 7, Rule 117, 1985 Rules on Criminal
Procedure, as amended). In the Asuncion case, Justice Nocon said that:
" . . . according to a long line of cases, in order that a defendant may
successfully allege former jeopardy, it is necessary that he had
previously been (1) convicted or (2) acquitted, or (3) in jeopardy of
being convicted of the offense charged, that is, that the former case
against him for the same offense has been dismissed or otherwise
terminated without his express consent, by a court of competent
jurisdiction, upon a valid complaint or information, and after the
defendant had pleaded to the charge."
Withal, the mere filing of two informations charging the same offense is not an appropriate basis for the
invocation of double jeopardy since the first jeopardy has not yet set in by a previous conviction,
acquittal or termination of the case without the consent of the accused (People vs. Miraflores, 115 SCRA
586 [1982]; Nierras vs. Dacuycuy, 181 SCRA 8 [1990]).
In People vs. Miraflores (supra), the accused therein, after he had pleaded to the charge of multiple
frustrated murder in Criminal Case No. 88173 and subsequent to his arraignment on a separate charge of
Murder in Criminal Case No. 88174, invoked the plea of double jeopardy but Justice Barredo who spoke
for the Court was far from convinced: LLphil
"But the more untenable aspect of the position of appellant is that
when he invoked the defense of double jeopardy, what could have
been the first jeopardy had not yet been completed or even began. It is
settled jurisprudence in this Court that the mere filing of two
informations or complaints charging the same offense does not yet
afford the accused in those cases the occasion to complain that he is
being placed in jeopardy twice for the same offense, for the simple
reason that the primary basis of the defense of double jeopardy is that
the accused has already been convicted or acquitted in the first case or
that the same has been terminated without his consent. (Bulaong vs.
People, L-19344, July 27, 1966, 17 SCRA 746; Silvestre vs. Military
Commission No. 21, No. L-46366, March 8, 1978, Buscayno vs. Military
Commissions Nos. 1, 2, 6 and 25, No. L-58284, Nov. 19, 1981, 109 SCRA
273)."
Moreover, it appears that private respondent herein had not yet been arraigned in the previous case for
estafa. Thus, there is that other missing link, so to speak, in the case at bar which was precisely the same
reason utilized by Justice Davide, Jr. in Lamera vs. Court of Appeals (198 SCRA 186 [1991]) when he
brushed aside the claim of double jeopardy of the accused therein who was arraigned in the previous
case only after the judgment of conviction was promulgated in the other case. The ponente cited a
plethora of cases in support of the proposition that arraignment of the accused in the previous case is a
condition sine qua non for double jeopardy to attach (at page 193: People vs. Ylagan, 58 Phil. 851; People
vs. Consulta, 70 SCRA 277; Andres v. Cacdac, 113 SCRA 216; People vs. Bocar, et al., 132 SCRA 166;
Gaspar vs. Sandiganbayan, 144 SCRA 415) and echoed the requisites of legal jeopardy as announced in
People vs. Bocar thus:

"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." (at p. 193.)

"On November 17, 1972, the City Court of Manila, upon motion of
private respondent, issued an order dismissing the homicide thru
reckless imprudence case on the ground of double jeopardy."
where it was opined, thus:

To be sure, Chief Justice Moran said in his treatise on the subject under consideration that:
"Where there is no former conviction, acquittal, dismissal or
termination of a former case for the same offense, no jeopardy
attaches." (Comments on the Rules of Court, by Moran, Vol. 4, 1980 Ed.,
p. 281).
Of course, We are not unmindful of the erudite remarks of Mr. Justice Florenz D. Regalado, in his
Remedial Law Compendium that:
"It would now appear that prior conviction or acquittal in the first case,
as long as the accused had entered his plea therein is no longer
required in order that the accused may move to quash a second
prosecution for the same offense on the ground of double jeopardy."
(Volume 2, 1988 Edition, page 323; 339).
xxx xxx xxx
"Jeopardy attaches from the entry of his plea at the arraignment
(People vs. City Court of Manila, et al., L-3642, April 27, 1983)." (Vide
page 327).
The sentiments expressed in this regard by Our distinguished colleague which rest on the ruling of this
Court in People vs. City Court of Manila, Branch XI (121 SCRA 637 [1983], cited by Regalado, Vide, at p.
339 to the effect that jeopardy would already attach when the accused enters his plea was due to the
obiter dictum of the ponente in that case, based on the following factual backdrop: cdrep
"The question presented in this case is whether a person who has been
prosecuted for serious physical injuries thru reckless imprudence and
convicted thereof may be prosecuted subsequently for homicide thru
reckless imprudence if the offended party dies as a result of the same
injuries he had suffered."
xxx xxx xxx
"In the case at bar, the incident occurred on October 17, 1971. The
following day, October 18, an information for serious physical injuries
thru reckless imprudence was filed against private respondent driver of
the truck. On the same day, the victim Diolito de la Cruz died.
"On October 20, 1972, private respondent was arraigned on the charge
of serious physical injuries thru reckless imprudence. He pleaded guilty,
was sentenced to one (1) month and one (1) day of arresto mayor, and
commenced serving sentence.
"On October 24, 1972, an information for homicide thru reckless
imprudence was filed against private respondent.

"Well-settled is the rule that one who has been charged [implying that
there is no need to show previous conviction, acquittal, or dismissal of a
similar or identical charge] with an offense cannot be charged again
with the same or identical offense though the latter be lesser or greater
than the former." (Emphasis supplied.)
From the conclusion thus reached, it would appear that one simply "charged" may claim possible
jeopardy in another case. However, a closer study of the case adverted to reveals that the ponente may
have overlooked the fact that the accused therein was not only charged, but he actually admitted his
guilt to the charge of serious physical injuries through reckless imprudence and more importantly, he
was convicted of such crime and commenced serving sentence. Verily, there was no occasion in said case
to speak of jeopardy being properly invoked by a person simply charged with an offense if he is again
charged for the same or identical offense. It may be observed that in City Court of Manila the accused
therein pleaded on the first offense of which he was charged and subsequently convicted, unlike in the
scenario at bar where private respondent entered her plea to the second offense. But the variance on
this point is of no substantial worth because private respondent's plea to the second offense is, as
aforesaid, legally incomplete to sustain her assertion of jeopardy for probable conviction of the same
felony, absent as there is the previous conviction, acquittal, or termination without her express consent
of the previous case for estafa, and it being plain and obvious that the charges did not arise from the
same acts. In short, in order for the first jeopardy to attach, the plea of the accused to the charge must
be coupled with either conviction, acquittal, or termination of the previous case without his express
consent thereafter. (Tolentino vs. De la Costa, 66 Phil. 97 [1938]). Justice Oscar Herrera, in his book
"Remedial Law" enumerates the elements constitutive of first jeopardy, to wit: llcd

"1. Court of competent jurisdiction;

2. Valid complaint or information;
3. Arraignment and a
4. Valid plea (People vs. Ylagan, 58 Phil. 851; 853)
5. The defendant was acquitted or convicted or the case was dismissed
or otherwise terminated without the express consent of the accused
(People vs. Declaro, G.R. No. 64362, February 9, 1989, 170 SCRA 142;
See also People vs. Santiago, 174 SCRA 143; People vs. Gines, G.R. No.
83463, May 27, 1991, 197 SCRA 481; Que vs. Cosico, 177 SCRA 410
[1989]; Caes vs. Intermediate Appellate Court, 179 SCRA 54; Lamera vs.
Court of Appeals, 198 SCRA 186 [1991])." [Herrera, Remedial Law, 1992
Ed., Volume 4, p. 417).
Citing cases, both old and of recent vintage, Justice Herrera continues to submit the idea that:
"The first jeopardy is said to have validly terminated upon conviction,

acquittal or dismissal of the case or otherwise terminated without the

express consent of defendant (People vs. Garcia, 30 SCRA 150; People
vs. Ledesma, 73 SCRA 77; People vs. Pilpa, 79 SCRA 81; Buscayno vs.
Military Commission, 109 SCRA 273; People vs. Cuevo, 104 SCRA 319;
Galman, et al. vs. Sandiganbayan, G.R. No. 72670, September 12,
1987.)" (Vide, at page 423).

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Alicia V.
Sempio-Diy and Solicitor Amado D. Aquino for petitioners.
Fama & Jimenea for private respondent.
DECISION

In People vs. Ledesma (73 SCRA 77 [1976]), Justice Martin declared in no uncertain terms:
". . . In the case before Us, accused-appellee was charged with estafa in
Criminal Case No. 439 before a competent court under a valid
information and was duly convicted as charged. He was therefore
placed in legal jeopardy for the crime of estafa in Criminal Case No. 439
for having failed to turn over the proceeds of the sale of an Avegon
radio in the amount of P230.00 to the offended party. . . . " (at p. 81).
Cdpr
The same observation was made by then Justice, later Chief Justice Aquino in People vs. Pilpa 179 SCRA
81 [1977]):
"In synthesis, there is former jeopardy when in the first case there was
a valid complaint or information filed in a court of competent
jurisdiction, and after the defendant had pleaded to the charge, he was
acquitted or convicted or the case against him was terminated without
his express consent (People vs. Consulta L-41251, March 31, 1976, 70
SCRA 277; People vs. Ylagan, 58 Phil. 851, 853)." (86)
At any rate, and inasmuch as this Court has spoken quite recently in people vs. Asuncion, (G.R. Nos.
83837-42, April 2, 1992), the ambiguity stirred by the imprecise observation in People vs. City Court of
Manila, a 1983 case, can now he considered modified in that a prior conviction, or acquittal, or
termination of the case without the express acquiescence of the accused is still required before the first
jeopardy can be pleaded to abate a second prosecution.
While We are at a loss as to the status of the progress of the estafa case on account of private
respondent's apathy towards Our order for the parties herein to "MOVE IN THE PREMISES" (p. 125,
Rollo) which information could substantially affect the results of this case, from all indications it appears
that the estafa case has not yet been terminated.

BARREDO, J p:
Petition for certiorari to set aside the orders of respondent judge dated September 22, 1975 and October
14, 1975 dismissing Criminal Case No. 5241 of the Court of First Instance of Iloilo against private
respondent Margarito Fama, Jr., said dismissal being predicated on the ground of double jeopardy, in
view of the dismissal of a previous charge of slight physical injuries against the same respondent for the
same incident by the Municipal Court of January, Iloilo in Criminal Case No. 3335, notwithstanding that in
the information in the first-mentioned case, it was alleged that the injuries sustained by the offended
party, aside from possibly requiring medical attendance from 5 to 9 days "barring complications", as was
alleged in the information in Criminal Case No. 3335, had left "a permanent scar and deform(ed) the
right face of (said offended party) Miguel Viajar."
The first criminal complaint filed against respondent Fama Jr. on April 15, 1975 (Case No. 3335) was as
follows:
"That at about 5:30 o'clock in the afternoon of April 12, 1975, at Aquino
Nobleza St., Municipality of Janiuay, Province of Iloilo, Philippines, and
within the jurisdiction of this Honorable Court the above-named
accused, while armed with a piece of stone, did then and there willfully,
unlawfully and feloniously, assault, attack and use personal violence
upon one Miguel Viajar by then hurling the latter with a stone, hitting
said Miguel Viajar on the right cheek, thereby inflicting physical injuries
which would have required and will require medical attendance for a
period from 5 to 9 days barring complication as per medical certificate
of the physician hereto attached.
CONTRARY TO LAW." (Pp. 93-94, Record).

WHEREFORE, the petition is GRANTED and the Orders of respondent judge dated January 23, 1976
quashing the information for falsification, and March 23, 1976 denying the People's motion for
reconsideration therefrom are hereby REVERSED and SET ASIDE. Let the information for falsification be
reinstated and this case be remanded to the lower court for further proceedings and trial. No special
pronouncement is made as to costs.
SO ORDERED.
||| (People v. Pineda, G.R. No. L-44205, February 16, 1993)
PEOPLE OF THE PHILIPPINES, and ASST. PROV'L. FISCAL F. VISITACION,
JR., petitioners, vs. HONORABLE MIDPANTAO L. ADIL, Presiding Judge,
Court of First Instance of Iloilo, Branch II, and MARGARITO FAMA, JR.,
respondents.

Arraigned on July 7, 1975, the accused entered a plea of not guilty.

Meanwhile, on June 8, 1975, complainant Viajar filed a letter-complaint with the Provincial Fiscal of Iloilo
charging Atty. Alfredo Fama, Raul Fama and herein respondent Margarito Fama, Jr. with serious physical
injuries arising from the same incident alleged in above Criminal Case No. 3335. After conducting a
preliminary investigation, under date of July 28, 1975, the Fiscal filed in the Court of First Instance of
Iloilo an information, but only against respondent Fama Jr., (Case No. 5241) for serious physical injuries
as follows:
"That on or about April 12, 1975, in the Municipality of Janiuay,
Province of Iloilo, Philippines, and within the jurisdiction of this Court,
the said accused, with deliberate intent, and without any justifiable
motive, armed with pieces of stone did then and there willfully,

unlawfully and feloniously attack, assault and throw pieces of stone at

Miguel Viajar, hitting him on the lower right eye which would heal from
five (5) to nine (9) days barring complications but leaving a permanent
scar and deforming on the right face of said Miguel Viajar.
CONTRARY TO LAW." (Pp. 94-95, Record).
On August 1, 1975, Fama Jr. filed an urgent motion to defer proceedings in Criminal Case No. 5241,
claiming that since he was already charged and pleaded not guilty in Criminal Case No. 3335, he would
be in double jeopardy, if Case No. 5241 were to be prosecuted. This motion was opposed by the Fiscal
and the Court required both parties to file their respective memorandum on the issue of double jeopardy.
LexLib
In the meantime, the Fiscal after filing Case No. 5241, sought the dismissal of Case No. 3335, but the
Municipal Court did not act on said motion. Instead, the case was set for hearing, and in view of the
postponements asked by the Fiscal in order to await the resolution of the issue of double jeopardy in
Case No. 5241, on September 11, 1975, the following order was entered:
"Under our democratic and constituted system of government litigants
before our courts of justice, plaintiffs and defendants, complainants
and accused are entitled to the equal protection of our laws. More is an
accused, the trial of his case has been repeatedly postponed for several
times by this Court in the exercise of its sound discretion at the instance
of the prosecution. So, when this case was called for hearing on the
afternoon of September 1, 1975 the accused through counsel
vigorously objected to another postponement and moved for the
dismissal of the case against him. To grant another postponement as
sought by the Fiscal against the vehement, strong and vigorous
objection of the accused is to the mind of the Court, no longer an
exercise of sound discretion consistent with justice and fairness but a
clear and palpable abuse of discretion amounting to a serious denial to,
and a grave violation of, the right of the accused to a speedy trial to
which he is rightfully entitled to under Section 16 of Article IV, (Bill of
Rights) of the Philippine Constitution.
"IN VIEW OF THE FOREGOING, the above-entitled case is hereby
ordered dismissed. The Cash Bond posted by the accused is hereby
ordered cancelled and released." (Pp. 96-97, Record.).
Whereupon, on even date, Fama Jr. filed an addendum to his memorandum in Case No. 5241 inviting
attention to the above dismissal order and reiterating his theory of double jeopardy. On September 22,
1975, respondent court issued the impugned order sustaining the contention of double jeopardy and
dismissing Case No. 5241. The prosecution's motion for reconsideration was denied in the other assailed
order of October 14, 1975, respondent judge relying on the ruling laid down in Peo. vs. Silva, 4 SCRA 95.
llcd
In brief, what happened here was that when Case No. 3335 was filed in the inferior court of Janiuay, the
charge against Fama Jr. had to be for slight physical injuries only, because according to the certification
of the attending physician, the injuries suffered by the offended party Viajar, would require medical
attendance from 5 to 9 days only "baring complications." Indeed, when the complaint was filed on April
15, 1975, only three days had passed since the incident in which the injuries were sustained took place,
and there were yet no indications of a graver injury or consequence to be suffered by said offended

party. Evidently, it was only later, after Case No. 3335 had already been filed and the wound on the face
of Viajar had already healed, that the alleged deformity became apparent.
Now, expert evidence is not needed for anyone to understand that the scar or deformity that would be
left by a wound on the face of a person cannot be predetermined. On the other hand, whether or not
there is actually a deformity on the face of Viajar is a question of fact that has to be determined by the
trial court. The only issue We are to resolve here is whether or not the additional allegation of deformity
in the information in Case No. 5241 constitutes a supervening element which should take this case out of
the ruling in People vs. Silva cited by respondent court.
In Silva, mere was no question that the extent of the damage to property and physical injuries suffered
by the offended parties therein were already existing and known when the prior minor case was
prosecuted. What is controlling then in the instant case is Melo vs. People, 85 Phil. 766, in which it was
held:
"This rule of identity does not apply, however, when the second offense
was not in existence at the time of the first prosecution, for the simple
reason that in such case there is no possibility for the accused during
the first prosecution, to be convicted for an offense that was then
inexistent. Thus, where the accused was charged with physical injuries
and after conviction the injured dies, the charge of homicide against the
same accused does not put him twice in jeopardy."
So also is People vs. Yorac, 42 SCRA, 230, to the following effect:
"Stated differently, if after the first prosecution 'a new fact supervenes'
on which defendant may be held liable, resulting in altering the
character of the crime and giving rise to a new and distinct offense, 'the
accused cannot be said to be in second jeopardy if indicted for the new
offense.'"
In People vs. Buling, 107 Phil. 112, We explained how a deformity may be considered as a supervening
fact. Referring to the decision in People vs. Manolong, 85 Phil. 829, We held: LexLib
"No finding was made in the first examination that the injuries had
caused deformity and the loss of the use of the right hand. As nothing
was mentioned in the first medical certificate about the deformity and
the loss of the use of the right hand, we presumed that such fact was
not apparent or could have been discernible at the time the first
examination was made. The course (not the length) of the healing of an
injury may not be determined before hand; it can only be definitely
known after the period of healing has ended. That is the reason why
the court considered that there was a supervening fact occurring since
the filing of the original information."
In other words, in the peculiar circumstances of this case, the plea of double jeopardy of private
respondent Fama Jr., cannot hold. It was, therefore, a grave error correctible by certiorari for respondent
court to have dismissed Criminal Case No. 5241.
ACCORDINGLY, the orders of September 22, 1976 and October 14, 1975 herein complained of are hereby
set aside and respondent court is ordered to proceed with the trial and judgment thereof according to
law. Costs against private respondent Fama Jr.

||| (People v. Adil, G.R. No. L-41863, April 22, 1977)

PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE BENJAMIN RELOVA,
in his capacity as Presiding Judge of the Court of First Instance of Batangas,
Second Branch, and MANUEL OPULENCIA, respondents.

DECISION

FELICIANO, J p:
In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of
the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12
August 1976 and 8 November 1976, respectively, quashing an information for theft filed against private
respondent Manuel Opulencia on the ground of double jeopardy and denying the petitioner's motion for
reconsideration. LLpr
On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas
Electric Light System, equipped with a search warrant issued by a city judge of Batangas City, searched
and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by
the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and
contraptions had been installed, without the necessary authority from the city government, and
"architecturally concealed inside the walls of the building" 1 owned by the private respondent. These
electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower
or decrease the readings of electric current consumption in the electric meter of the said electric [ice and
cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a written
statement that he had caused the installation of the electrical devices "in order to lower or decrease the
readings of his electric meter." 3
On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas
City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas
City. A violation of this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos
(P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not exceed thirty (30) days, or both, at the
discretion of the court." 4 This information reads as follows:
"The undersigned, Assistant City Fiscal accuses Manuel Opulencia y Lat
of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II,
Title IV of ordinance No. 1, S. 1974, with damage to the City
Government of Batangas, and penalized by the said ordinance,
committed as follows:
That from November, 1974 to February, 1975 at Batangas City,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to defraud the City Government of
Batangas, without proper authorization from any lawful and or permit
from the proper authorities, did then and there wilfully, unlawfully and
feloniously make unauthorized installations of electric wirings and

devices to lower or decrease the consumption of electric fluid at the

Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a
result of such unathorized installations of electric wirings and devices
made by the accused, the City Government of Batangas was damaged
and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY
TWO PESOS AND SIXTEEN CENTAVOS (41,062.16) Philippine currency,
covering the period from November 1974 to February, 1975, to the
damage and prejudice of the City Government of Batangas in the
aforestated amount of P41,062.16, Philippine currency."
The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed
a motion to dismiss the information upon the grounds that the crime there charged had already
prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of the
Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted the motion
to dismiss on the ground of prescription, it appearing that the offense charged was a light felony which
prescribes two months from the time of discovery thereof, and it appearing further that the information
was filed by the fiscal more than nine months after discovery of the offense charged in February 1975.
cdrep
Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of
First Instance of Batangas, Branch II, another information against Manuel Opulencia, this time for theft of
electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This
information read as follows:
"The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of
the crime of theft, defined and penalized by Article 308, in relation to
Article 309, paragraph (1) of the Revised Penal Code, committed as
follows:
That on, during, and between the month of November, 1974, and the
21st day of February, 1975, at Kumintang, Ibaba, Batangas City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with intent of gain and without the knowledge
and consent of the Batangas Electric Light System, did then and there,
wilfully, unlawfully and feloniously take, steal and appropriate electric
current valued in the total amount of FORTY ONE THOUSAND, SIXTY
TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency,
to the damage and prejudice of the said Batangas Electric Light System,
owned and operated by the City Government of Batangas, in the
aforementioned sum of P41,062.16."
The above information was docketed as Criminal Case No. 266 before the Court of First Instance
of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to
Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged
in the second information and that the filing thereof was violative of his constitutional right
against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the
accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in
the following paragraphs:
"The only question here is whether the dismissal of the first case can be
properly pleaded by the accused in the motion to quash.

In the first paragraph of the earlier information, it alleges that the

prosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in
relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s.
1974, with damage to the City Government of Batangas, etc."
(emphasis supplied). The first case, as it appears, was not simply one of
illegal electrical connections. It also covered an amount of P41,062.16
which the accused, in effect, allegedly with intent to defraud, deprived
the city government of Batangas. If the charge had meant illegal electric
installations only, it could have alleged illegal connections which were
done at one instance on a particular date between November, 1974, to
February 21, 1975. But as the information states "that from November,
1974 to February 1975 at Batangas City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with
intent to defraud the City Government of Batangas, without proper
authorization from any lawful and/or permit from the proper
authorities, did then and there wilfully, unlawfully and feloniously make
unauthorized installations of electric wirings and devices, etc." (italics
supplied), it was meant to include the P41,062.16 which the accused
had, in effect, defrauded the city government. The information could
not have meant that from November 1974 to 21 February 1975, he had
daily committed unlawful installations.
When, therefore, he was arraigned and he faced the indictment before
the Civil Court, he had already been exposed or he felt he was exposed
to consequences of what allegedly happened between November 1974
to February 21, 1975 which had allegedly resulted in defrauding the City
of Batangas in the amount of P41,062.16." (Emphases and parentheses
in the original).
A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by
the respondent Judge in an Order dated 18 November 1976.
On 1 December 1976, the present Petition for Certiorari and Mandamus was filed in this Court by the
Acting City Fiscal of Batangas City on behalf of the People.
The basic premise of the petitioner's position is that the constitutional protection against double
jeopardy is protection against a second or later jeopardy of conviction for the same offense. The
petitioner stresses that the first information filed before the City Court of Batangas City was one for
unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of an
ordinance of the City Government of Batangas. Only two elements are needed to constitute an offense
under this City Ordinance: (1) that there was such an installation; and (2) no authority therefor had been
obtained from the Superintendent of the Batangas City Electrical System or the District Engineer. The
petitioner urges that the relevant terms of the City Ordinance which read as follows:.
"Section 3. Connection and Installation:
"a) . . . .
(b) The work and installation in the houses and building and their
connection with the Electrical System shall be done either by the
employee of the system duly authorized by its Superintendent or by
persons adept in the matter duly authorized by the District Engineer.

Applicants for electrical service permitting the works of installation or

connection with the system to be undertaken by the persons not duly
authorized therefor shall be considered guilty of violation of the
ordinance."
would show that:
"The principal purpose for (sic) such a provision is to ensure that
electrical installations on residences or buildings be done by persons
duly authorized or adept in the matter, to avoid fires and accidents due
to faulty electrical wirings. It is primarily a regulatory measure and not
intended to punish or curb theft of electric fluid which is already
covered by the Revised Penal Code." 5

The gist of the offense under the City Ordinance, the petitioner's argument continues, is the
installing of electric wiring and devices without authority from the proper officials of the city
government. To constitute an offense under the city ordinance, it is not essential to establish any
mens rea on the part of the offender generally speaking, nor, more specifically, an intent to
appropriate and steal electric fluid. cdrep
In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed
before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential
elements. These elements are:
"1. That personal property be taken;
2. That the personal property (taken) belongs to another;
3. That the taking be done with intent of gain;
4. That the taking be done without the consent of the owner; and
5. That the taking be accomplished without violence against or
intimidation of persons or force upon things." 6
The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without
illegal or unauthorized installations of any kind by, for instance, any of the following means:
"1. Turning back the dials of the electric meter;
2. Fixing the electric meter in such a manner that it will not register the
actual electrical consumption;
3. Under-reading of electrical consumption; and
4. By tightening the screw of the rotary blade to slow down the rotation
of the same." 7
The petitioner concludes that:

"The unauthorized installation punished by the ordinance [of Batangas

City] is not the same as theft of electricity [under the Revised Penal
Code]; that the second offense is not an attempt to commit the first or a
frustration thereof and that the second offense is not necessarily
included in the offense charged in the first information." 8
The above arguments made by the petitioner are of course correct. This is clear both from the express
terms of the constitutional provision involved - which reads as follows:
"No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for
the same act." (Emphasis supplied; Article IV (22),1973 Constitution) 9
and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it
must be examined, not under the terms of the first sentence of Article IV (22) of the 1973
Constitution, but rather under the second sentence of the same section. The first sentence of
Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is
not available where the second prosecution is for an offense that is different from the offense
charged in the first or prior prosecution, although both the first and second offenses may be
based upon the same act or set of acts. The second sentence of Article IV (22) embodies an
exception to the general proposition: the constitutional protection, against double jeopardy is
available although the prior offense charged under an ordinance be different from the offense
charged subsequently under a national statute such as the Revised Penal Code, provided that
both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap
vs. Lutero. 11
In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo
City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15,
Series of 1954, of the City of Iloilo. The information charged him with having "wilfully, unlawfully and
feloniously drive[n] and operate[d]" an automobile "recklessly and without reasonable caution
thereby endangering other vehicles and pedestrians passing in said street." Three months later, Yap was
again charged in Criminal Case No. 16443 of the same Municipal Court, this time with serious physical
injuries through reckless imprudence. The information charged him with violation of the Revised Motor
Vehicle Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operating an
automobile in a reckless and negligent manner and as a result thereof inflicting injuries upon an
unfortunate pedestrian. Yap moved to quash the second information upon the ground that it placed him
twice in jeopardy of punishment for the same act. This motion was denied by the respondent municipal
judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then
instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the
respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent
municipal judge and having directed him to desist from continuing with Criminal Case No. 16443, the
respondent Judge brought the case to the Supreme Court for review on appeal. In affirming the decision
appealed from and holding that the constitutional protection against double jeopardy was available to
petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote: prLL
"To begin with, the crime of damage to property through reckless
driving with which Diaz stood charged in the court of first instance is a violation of the Revised Penal Code (third paragraph of Article 365),
not the Automobile Law (Act No. 3992, as amended by Republic Act No.
587). Hence, Diaz was not twice accused of a violation of the same law.
Secondly, reckless driving and certain crimes committed through

reckless driving are punishable under different provisions of said

Automobile Law. Hence from the view point of Criminal Law, as
distinguished from political or Constitutional Law they constitute,
strictly, different offenses, although under certain conditions, one
offense may include the other, and, accordingly, once placed in
jeopardy for one, the plea of double jeopardy may be in order as
regards the other, as in the Diaz case. (Emphases in the original).
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy.
The first sentence of clause 20, section 1, Article III of the Constitution,
ordains that "no person shall be twice put in jeopardy of punishment
for the same offense." (Emphasis in the original) The second sentence
of said clause provides that "if an act is punishable by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act." Thus, the first sentence prohibits
double jeopardy of punishment for the same offense, whereas the
second contemplates double jeopardy of punishment for the same act.
Under the first sentence, one may be twice put in jeopardy of
punishment of the same act, provided that he is charged with different
offenses, or the offense charged in one case is not included in, or does
not include, the crime charged in the other case. The second sentence
applies, even if the offenses charged are not the same, owing to the fact
that one constitutes a violation of an ordinance and the other a
violation of a statute. If the two charges are based on one and the same
act conviction or acquittal under either the law or the ordinance shall
bar a prosecution under the other. 12 Incidentally, such conviction or
acquittal is not indispensable to sustain the plea of double jeopardy of
punishment for the same offense. So long as jeopardy has attached
under one of the informations charging said offense, the defense may
be availed of in the other case involving the same offense, even if there
has been neither conviction nor acquittal in either case.
The issue in the case at bar hinges, therefore, on whether or not, under
the information in case No. 16443, petitioner could if he failed to
plead double jeopardy be convicted of the same act charged in case
No. 16054, in which he has already been acquitted. The information in
case No. 16054 alleges, substantially, that on the date and in the price
therein stated, petitioner herein had wilfully, unlawfully and feloniously
driven and operated "recklessly and without reasonable caution" an
automobile described in said information. Upon the other hand, the
information in case No. 16443, similarly states that, on the same date
and in the same place, petitioner drove and operated the
aforementioned automobile in a "reckless and negligent manner at an
excessive rate of speed and in violation of the Revised Motor Vehicle
Law (Act No. 3992), as amended by Republic Act No. 587, and existing
city ordinances." Thus, if the theories mentioned in the second
information were not established by the evidence, petitioner could be
convicted in case No. 16443 of the very same violation of municipal
ordinance charged in case No. 16054, unless he pleaded double
jeopardy.
It is clear, therefore, that the lower court has not erred eventually

sustaining the theory of petitioner herein."

Put a little differently, where the offenses charged are penalized either by different sections of the same
statute or by different statutes, the important inquiry relates to the identity of offenses charged: the
constitutional protection against double jeopardy is available only where an identity is shown to exist
between the earlier and the subsequent offenses charged. In contrast, where one offense is charged
under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity
of the acts which the accused is said to have committed and which are alleged to have given rise to the
two offenses: the constitutional protection against double jeopardy is available so long as the acts which
constitute or have given rise to the first offense under a municipal ordinance are the same acts which
constitute or have given rise to the offense charged under a statute. LLjur
The question may be raised why one rule should exist where two offenses under two different sections
of the same statute or under different statutes are charged, and another rule for the situation where one
offense is charged under a municipal ordinance and another offense under a national statute. If the
second sentence of the double jeopardy provision had not been written into the Constitution, conviction
or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the
same act under a national statute. An offense penalized by municipal ordinance is, by definition,
different from an offense under a statute. The two offenses would never constitute the same offense
having been promulgated by different rule-making authorities though one be subordinate to the other
and the plea of double jeopardy would never be. The discussions during the 1934-1935 Constitutional
Convention show that the second sentence was inserted precisely for the purpose of extending the
constitutional protection against double jeopardy to a situation which would not otherwise be covered
by the first sentence. 13

The question of identity or lack of identity of offenses is addressed by examining the essential elements
of each of the two offenses charged, as such elements are set out in the respective legislative definitions
of the offenses involved. The question of identity of the acts which are claimed to have generated
liability both under a municipal ordinance and a national statute must be addressed, in the first instance,
by examining the location of such acts in time and space. When the acts of the accused as set out in the
two informations are so related to each other in time and space as to be reasonably regarded as having
taken place on the same occasion and where those acts have been moved by one and the same, or a
continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an
integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a
municipal ordinance and a national statute).
In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious
physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the
same act or sets of acts that is, the operation of an automobile in a reckless manner. The additional
technical element of serious physical injuries related to the physical consequences of the operation of
the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party.
Clearly, such consequence occurred in the same occasion that the accused operated the automobile
(recklessly). The moral element of negligence permeated the acts of the accused throughout that
occasion. LLpr
In the instant case, the relevant acts took place within the same time frame: from November 1974 to
February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation
of electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization
from the municipal authorities. The accused conceded that he effected or permitted such unauthorized
installation for the very purpose of reducing his electric power bill. This corrupt intent was thus present

from the very moment that such unauthorized installation began. The immediate physical effect of the
unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the
corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was
integral with the unauthorized installation of electric wiring and devices.
It is perhaps important to note that the rule limiting the constitutional protection against double
jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute
literalness. The identity of offenses that must be shown need not be absolute identity: the first and
second offenses may be regarded as the "same offense" where the second offense necessarily includes
the first offense or is necessarily included in such first offense or where the second offense is an attempt
to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be
available, not all the technical elements constituting the first offense need be present in the technical
definition of the second offense. The law here seeks to prevent harassment of an accused person by
multiple prosecutions for offenses which though different from one another are nonetheless each
constituted by a common set or overlapping sets of technical elements. As Associate Justice and later
Chief Justice Ricardo Paras cautioned in People vs. del Carmen, et al., 88 Phil. 51 (1951):
"While the rule against double jeopardy prohibits prosecution for the
same offense, it seems elementary that an accused should be shielded
against being prosecuted for several offenses made out from a single
act. Otherwise, an unlawful act or omission may give use to several
prosecutions depending upon the ability of the prosecuting officer to
imagine or concoct as many offenses as can be justified by said act or
omission by simply adding or subtracting essential elements. Under the
theory of appellant the crime of rape may be converted into a crime of
coercion, by merely alleging that by force and intimidation the accused
prevented the offended girl from remaining a virgin." (88 Phil. at 53;
emphases supplied).
By the same token, acts of a person which physically occur on the same occasion and are infused by a
common intent or design or negligence and therefore form a moral unity, should not be segmented and
sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or
statutes that an enterprising prosecutor can find.
It remains to point out that the dismissal by the Batangas City Court of the information for violation of
the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an
acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the
crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order
sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense.
15
It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case.
It is difficult to summon any empathy for a businessman who would make or enlarge his profit by
stealing from the community. Manuel Opulencia is able to escape criminal punishment because an
Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he
should have known had already prescribed. We are, however, compelled by the fundamental law to hold
the protection of the right against double jeopardy available even to the private respondent in this case.
cdphil
The civil liability aspects of this case are another matter. Because no reservation of the right to file a
separate civil action was made by the Batangas City electric light system, the civil action for recovery of
civil liability arising from the offense charged was impliedly instituted with the criminal action both

before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of
criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the
extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16
accused Manuel Opulencia freely admitted during the police investigation having stolen electric current
through the installation and use of unauthorized electrical connections or devices. While the accused
pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated electric
power. However, there is no evidence in the record as to the amount or value of the electric power
appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City
Court and by the Court of First Instance (from which dismissals the Batangas City electric light system
could not have appealed 17 ) before trial could begin. Accordingly, the related civil action which has not
been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City
for reception of evidence on the amount or value of the electric power appropriated and converted by
Manuel Opulencia and rendition of judgment conformably with such evidence.
WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil
liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated
above. No pronouncement as to costs.
SO ORDERED.
||| (People v. Relova, G.R. No. L-45129, March 06, 1987)