SECTION 12

(1) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOHN GABRIEL GAMBOA, defendant-appellant. [G.R. No. 91374 February 25, 1991] GANCAYCO, J.: Essential in the success of the prosecution of an offense is the proof of the identity of the offender. This is usually attained through the testimony of eyewitnesses during, before, or even after the commission of the offense. In the absence of such primary evidence the prosecution generally falls back on such other evidence as the ballistic examination of the murder weapon, a handwriting expert, the extrajudicial confession or similar resources. Otherwise, circumstantial evidence is resorted to which consists in the piercing together of tiny bits of evidence with a view towards ascertaining the accused as the person responsible for the commission of the offense. In the case now before this Court the defendant-appellant John Gabriel Gamboa was charged with the crime of murder together with Miguel Celdran in the Regional Trial Court of Cebu. After arraignment but during the trial, the case against Celdran was dismissed. Thereafter, a decision was rendered on August 30, 1989, finding Gamboa guilty of the crime of murder as penalized under Article 248 of the Revised Penal Code and imposing upon him the penalty of reclusion perpetua. He was also ordered to indemnify the heirs of the deceased in the amount of P30,000.00, with costs against him. The fatal weapon, a shotgun, was ordered forfeited in favor of the government. 1 The defendant-appellant interposed this appeal from said judgment alleging that the trial court committed the following errors: I THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES CRISTINA SOLEDAD, ENRICO ACRE AND MARIO GASCON. II THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANT HAD BEEN POSITIVELY IDENTIFIED AS THE ASSAILANT OF THE VICTIM RENE IMPAS. III THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANT HAD CONFESSED TO OR ADMITTED THE KILLING. IV THE TRIAL COURT ERRED IN NOT REJECTING THE ALLEGED MURDER WEAPON (EXHIBIT "A") AS INADMISSIBLE EVIDENCE. V THE TRIAL COURT ERRED IN HOLDING THAT EXHIBIT "A" WAS THE ACTUAL MURDER WEAPON. VI THE TRIAL COURT ERRED IN NOT REJECTING THE PARAFFIN TEST RESULTS AS INADMISSIBLE EVIDENCE. VII THE TRIAL COURT ERRED IN NOT ACQUIRING THE ACCUSED-APPELLANT. 2

At around 1:15 o'clock in the morning of August 21, 1988, Cristina Soledad, common-law wife of Rene Impas, was conversing with the latter inside a bedroom in Rene's house located at John Avenue, Cebu City. Suddenly someone kicked open the door and Soledad saw the appellant and Celdran. From a standing position the appellant fired his shotgun at Rene. Rene was hit on the right side of the chest so he slid slightly, his head leaning on the wall the appellant fired a second shot hitting the victim on the abdomen. The victim fell face upward on the bed and died immediately. Soledad shouted for help. Rico Acre, a tenant in the same house, responded. He entered the room as the appellant went out of the house. The former fired a third time. Acre noticed the victim having difficulty in breathing, so he ran out of the house and shouted for help. Mario Gascon, a neighbor, came and together with Acre they lifted the victim and loaded him in the car of the victim's father, police Major Impas, which was parked in front of the house. As Gascon stepped out of his house to extend assistance, he saw the appellant and another person running towards a yellow car. The appellant was still holding the shotgun then. Soledad, together with Acre, Gascon and Maj. Impas, who was living in the house nearest to the victim's house, boarded the latter's car and brought the victim to the Southern Island Hospital, Cebu City. The medico legal report of Dr. Jesus Cerna of the PC-INP, Cebu showed that the victim suffered the following gunshot wounds: Shotgun wounds: (1) ENTRANCE. ovaloid, 2.0 x 1.8 cm., with 5 stray pellets wounds of entrance around, in an area of the chest, right, 5.5 x 5.0 cm., edges inverted, chest right anterior aspect, 6.0 cm. from the anterior median line and 128.0 cm. above right heel; directed backward, downward and medially, involving skin and the underlying soft tissues, into thoracic cavity, lacerating extensively the lungs, upper and lower lobes right extensively and the ascending orta, and finally a plastic wad was embeded and recovered from the upper lobe of right lung and three (3) pellets were recovered from the soft tissue of the back, thoracic region, left, 5.0 cm. from the posterior median line and 127.0 cm. above left heel. (2) ENTRANCE, (pellets wounds) six in numbers, of varying sizes, ranging from 0.6 x 0.5 cm. to 0.5 x 0.4 cm., edges inverted, dispersed in an area of the abdomen, anterior aspect, right, 5.0 x 4.5 cm. 7.5 cm. from the anterior median line and 108.0 cm. above right heel, directed backward, upward and laterally involving skin and the underlying soft tissues, into a thoracic abdominal cavity, lacerating extensively portion of small and large intestine, liver, and finally 4 pellets wound were embeded and recovered from the soft tissues back, left thoracic abdominal region, 10.0 cm. from the posterior median line and 107.0 cm. above left heel, (one existed). (3) ENTRANCE. ovaloid, 9.0 x 3.0 cm. irregular in shape, edges inverted, hand, posterior aspect, right; directed forward, upward, thru and thru. Heart: auricular and venticular chambers, filled with dark-red liquid and clotted blood, with normal myocardium. Gastrointestinal tract and other visceral organs pale. Stomach, empty. Hemothorax, approximately 1500 cm. Hemoperitoneum, approximately 1000 cc. CAUSE OF DEATH: Shot wounds, chest, abdomen and hand, right. 3 Under the first assigned error, the appellant raises the issue relating to the credibility of the prosecution witnesses in that their testimonies are full of inconsistencies which elicit doubt as to their truthfulness.

In the case of Soledad, the latter allegedly testified that the appellant shot the victim twice, while the victim's father testified that he heard three successive shots. There is no inconsistency here. It was established that the appellant shot the victim twice while inside the house and fired the third shot when he was already outside the house. This accounts for the three shots heard by Major Impas. The appellant also stated that Soledad testified on direct examination that when the victim was hit by the first shot his body leaned on the wall but on cross examination, she said that the victim was lying flat on the bed after the first shot. Whether the victim was leaning on the wall or lying down after the first shot is of no material consequence. The fact remains that Soledad saw the appellant shoot the victim twice with a shotgun. Another alleged contradiction is that Soledad said she knew Acre to be a cousin of the victim but Acre himself denied such relationship. Again such inconsistency, if it is indeed an inconsistency at all, is on a minor matter. The appellant states that while Acre testified that at the time of the shooting he could clearly be seen from the victim's room, Soledad never mentioned having seen Acre at or near the door of the victim's room. It is also indicated that while Acre said that appellant made some remarks to him in a loud voice before the shooting, Soledad on the other hand testified that she did not hear any statement from the appellant before the shooting. Suffice it to state that at the time of the shooting, the appellant and Celdran were standing at the door, effectively blocking the view outside the room, hence Soledad did not see Acre. Moreover, at the time Soledad's attention at that moment was focused on her common-law husband who was shot twice and who fell on the bed. She was a witness to a startling occurrence. It is not improbable that because of shock she did not hear any remarks made by the appellant outside the room. The appellant makes much capital of the fact that Acre did not reveal the identity of the appellant to the victim's father when they were together in the car on the way to the hospital. This is understandable considering that Soledad had already revealed the appellant's identity to Major Impas when they boarded the car. There was no need for Acre to give the same information to the victim's father. In the case of Modesto Gascon, it is contended that he could not have seen the appellant running away from the scene of the shooting since even before Gascon went down from his house, the appellant was already running towards the get-away car and so it was allegedly impossible for Gascon to identify the appellant. On cross-examination, Gascon stated that after hearing gunshots he ran out of his house to ascertain where the shots came from. He ran to the corner or to the "second bend" outside the house of the victim's father and he saw the appellant at the "second bend." Gascon ran into the appellant while running to the house of the victim. He was only four to five arms-length away when he saw the appellant, thus his positive identification of the appellant. Another alleged discrepancy is between the version of Major Impas that the appellant and his companion were running towards the car and that of Gascon's testimony that the appellant was back-tracking towards the car. The record discloses that what Major Impas meant to convey was that he saw the appellant and his companion fleeing from the scene of the crime to their get-away car while the description of Gascon that the appellant was "back-tracking" towards the car was a description of how the appellant fled from the victim's house to the car, to make sure that they were not being followed. The alleged contradiction between Gascon's affidavit, 4 wherein he mentioned that he saw the appellant and another person running towards the car, and his testimony on cross-examination that he only saw the appellant, is of no material consequence considering that the appellant has been positively identified as the assailant. Moreover, as it is generally pointed out, an affidavit taken ex-parte almost always cannot be relied upon as oftentimes it is inaccurate. 5 By and large, the Court is not persuaded that the appellant's claim of contradictions and inconsistencies on the part of the prosecution witnesses puts into serious doubt their credibility, Different persons who witnessed an incident from different angles and situations could not be expected to give uniform details of what they saw and heard. Such minor discrepancies and inconsistencies are to be expected because of the human differences in perception. Such contradicting statements are on minor details, as hereinabove discussed, and rather than affect the credibility of the witnesses, the same are badges of candor. Nevertheless, under the second assigned error, the appellant alleges that his identification by the prosecution witnesses cannot be relied upon considering that they did not immediately inform the police investigators of the identity of the assailant upon their arrival. Although it may be true that the eyewitnesses did not immediately identify the appellant as the assailant to the responding policemen, it is also a matter of fact that Major Impas informed Cpl. Petallar while they were on the way to the Southern Islands Hospital, where the victim was brought, that the assailant is the appellant. 6 The second instance was when Soledad went to the mobile patrol division and revealed to Cpl. Petallar that the appellant was the one who shot her common-law husband. 7

It is quite understandable when the witnesses do not immediately report the identity of the offender after a startling occurrence more especially when they are related to the victim as they just had a traumatic experience. More so as in the case of Major Impas who is the victim's father and Soledad, his common-law wife. Nevertheless, a delay of about a few hours before the identification of the offender by the prosecution witnesses does not thereby affect their credibility. The inadmissibility of the alleged verbal confession of the appellant is raised on the ground that he was maltreated as a result of which he suffered twenty-seven injuries in the form of contusions, lacerations and abrasions. It does not appear, however, that the prosecution proposed to rely on this alleged confession of the appellant, or that the trial court considered the same at all in the resolution of the case. If it were to be considered at all, it would be worthless because of the undeniable fact that the appellant was not only arrested without a warrant and entry into his house was effected without a search warrant, but worse, he was maltreated since his arrest so much so that he suffered multiple injuries. The police investigators responsible for this manhandling should be investigated and held to account. Such involuntary confession cannot help the case of the prosecution. It is a stain in the record of the law enforcement agents who handled the case. Under the fifth assigned error, the appellant questions the admissibility of the shotgun as the alleged murder weapon. He says it was not found in his possession but his house was searched and the shotgun was confiscated without a search warrant. He also alleges that the three (3) empty shells that were submitted for the ballistics examination were not recovered from the scene of the crime and their production is a frameup by the police. Again, the Court observes that the police investigators confiscated the shotgun from the premises of the residence of the appellant without a search warrant. Such violation of the constitutional rights of a person should be investigated and inquired into. Nevertheless, the Court is not persuaded that the police investigators in this case would willingly allow themselves to be instruments to frame the appellant for so serious a crime as murder. It appears that the three empty shells were actually recovered from the vicinity of the scene of the crime. The ballistics examination shows that it was fired from the very shotgun of the appellant. This evidence corroborates the theory of the prosecution, very strongly, that the appellant was the assailant of the victim. Even if the Court disregards the shotgun as having been illegally secured as well as the results of its ballistic examination in relation to the empty shells, still there is adequate evidence in the record to justify a verdict of conviction. Indeed, the Court did not even consider it necessary to inquire into the motive of the appellant in the light of his positive identification by the prosecution witnesses. As to the paraffin test to which the appellant was subjected to he raises the question, under the sixth assigned error, that it was not conducted in the presence of his lawyer. This right is afforded to any person under investigation for the commission of an offense whose confession or admission may not be taken unless he is informed of his right to remain silent and to have competent and independent counsel of his own choice. 8 His right against self-incrimination is not violated by the taking of the paraffin test of his hands. This constitutional right extends only to testimonial compulsion and not when the body of the accused is proposed to be examined as in this case. 9 Indeed, the paraffin test proved positively that he just recently fired a gun. Again, this kind of evidence buttresses the case of the prosecution. WHEREFORE, the decision appealed from is AFFIRMED with the sole modification that the indemnity to the heirs of the offended party is increased to P50,000.00, with costs against the appellant. Let a copy of this decision be furnished the Chairman of the Philippine National Police for his information and appropriate action on the actuations of the law enforcement agents hereinabove discussed. SO ORDERED.

(2) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SEVERINO DUERO, Accused whose death sentence is under automatic review. [G.R. No. L-52016 May 13, 1981] AQUINO, J.: This is an automatic review of the decision of the Court of First Instance of Iloilo dated April 17, 1979, convicting Severino Duero of robbery with homicide, sentencing him to death and ordering him to pay the heirs of Fausta Duero an indemnity of fifteen thousand pesos and the sum of two thousand pesos which he took from her (Criminal Case No. 8860). The issue is whether the trial court erred in convicting the accused of robbery with homicide on the basis of his oral confession to the police station commander that he committed that offense but which confession was repudiated by him on the witness stand and which was taken during custodial interrogation when the accused was not informed of his rights to remain silent and to have counsel, as required by section 20, Article IV of the Constitution. There is no doubt as to the corpus delicti or the commission of robbery with homicide. In the evening of Sunday, October 24, 1976, Fausta Condino Vda. de Duero, an octogenarian housekeeper living alone, was feloniously killed in her house located at Barrio Banguit, Cabatuan, Iloilo (Exh. A). She sustained two gaping wounds on the right cheek, two gaping wounds on the neck, another gaping wound on the right shoulder and a bruise on the cheek. A piece of wire, which was used to strangle her was tied around her neck (Exh. A). A scythe was sticking in her neck (Letter "B" in Sketch, p. 4, Record). Regarded as fatal by the examining physician was the wound in the neck which pierced the jugular vein and which was connected with the other wound in the neck and the shoulder wound (14 tsn June 16, 1978). The gruesome crime was discovered in the afternoon of the following day, October 25, by Rodolfo Prevendido, the barangay captain. On noticing that the windows of the old woman's house had not been opened in the morning, he suspected that there was something amiss. He asked Doroteo Olmos, the grandson of the old woman, to peep through the bedroom window. When Olmos informed Prevendido that the old woman's things were scattered in the bedroom, he requested Olmos to inform his uncle, Salvador Duero, a son of the old woman, to come to the house (p. 8, Record). Salvador entered the house through the bedroom window and saw his mother's lifeless and bloodied body near the kitchen with a wire coiled around her neck and a scythe stuck in it. He found that money and pieces of jewelry were missing (p. 7, Record). A mallet was found on the floor near the victim's body. The police and the rural health physician were notified. Patrolmen Tranquilino 0. Tormon, Jr. and Cesar Moneva repaired to the scene of the crime. From the fact that cooked rice and viands were found on the stove, Tormon concluded that the crime was committed at supper time on the preceding night (p. 11, Record). No eyewitness testified as to the commission of the offense. The principal evidence of the prosecution is the testimony of Lieutenant Tomas C. Lujan, the chief of police of Cabatuan. Lujan declared that Severino voluntarily confessed to him that he (Severino) committed the robbery with homicide but Severino refused to sign a confession. Severino implicated Rufino Macaya of Lambunao, Iloilo. Lujan an and his men brought Severino to Macaya's house. Lujan an found that Macaya had nothing to do with the crime. Lujan further testified that Severino said that the money stolen from the old woman was in Severino's house at Sitio Rizal allowed Barrio Banguit. Lujan and his men went to Severino's house. They did not find the stolen money. Lujan was not the only police officer who heard Severino Duero's confession. Patrolman Rolando N. Alag, a member of the arresting team that picked up Duero and brought him at Lujan, stated in his sworn statement before the mayor that Duero admitted that he took

part in the robbery with homicide, that his companions were Macaya and a certain Junior (whose parents were Severino's godparents) and that it was he (Severino) who induced the commission of the crime (p. 9, Record). Alag further swore that after Macaya denied any participation in the commission of the crime, Severino Duero admitted sole responsibility for it and confessed that he took three thousand pesos after hitting Fausta Duero on the head with a mallet strangling her with a piece of wire and hacking her with a scythe (p. 9, Record). According to Alag Severino said that the robbery with homicide was committed on momentary impulse after Fausta Duero, who had plenty of money, refused to lend him fifty pesos (Back of page 9, Record). Alag confirmed his sworn statement at the preliminary examination when the municipal judge interrogated him. Alag said that Severino Duero made his confession in the course of their conversation on the way to the police station and not by reason of a formal investigation (p. 22, Record). Alag clarified that, according to Severino, he had to kill Fausta Duero because the old woman recognized him as the intruder (p. 22, Record). Patrolman Rufino Tormon. another member of the arresting team, corroborated in his swam statement Alag's declaration as to Severino Duero's confession. Tormon declared at the preliminary examination that Severino Duero knew that Fausta Duero had money because, according to Severino, Fausta's daughter Maurine repaid to Fausta the sum of one thousand one hundred pesos (which amount Fausta had not yet deposited in the bank), another person named Alag Duero paid to Fausta her debt and Fausta had ten sacks of palay (pp. 10 and 14, Record), Tormon said that Severino met Fausta at a store in the morning of October 23, 1976 (the day before the crime was committed). Fausta was willing to lend Severino one hundred fifty pesos (p. 14, Record). Buenaventura Hudieras, the barangay captain of Barrio Pamulogan, which adjoins Barrio Banguit where the old woman resided, declared in his sworn statement that in the evening of October 26 (two days after the commission of the crime) he was drinking liquor (biti-biti) with Severino Duero in the house of Valentino Pambo, Hudieras' brother-in-law. On that occasion, Severino told Hudieras that Fausta Duero was killed by clubbing her with a mallet choking her with a piece of wire and hacking her with a scythe (p. 6, Record). Hudieras stated that when he remarked that the best thing to do was to kill the killer of Fausta Duero, Severino behaved in an unnatural manner and said that Hudieras could testify that he saw daily Severino harvesting palay ("Si 'To boy nga dya, baryo kapitan dya, sarang makatestigos nga adlaw-adlaw doon takon nagapanggarab") (p. 6, Record). Hudieras confirmed his affidavit at the preliminary examination. He said that his suspicion was that Severino Duero killed Fausta Duero (p. 16, Record). The sworn statements of Alag, Tormon and Hudieras and others were the basis of the criminal complaint for robbery with homicide filed by Lieutenant Lujan an in the municipal court against Severino Duero. They did not testify at the trial most probably because Lujan himself, the station commander, took the witness stand to give evidence on the same oral confession allegedly made by Severino to the police. To reinforce and render credible Lujan's testimony on Duero's oral confession of guilt, Tranquilino Duero, a second cousin of the accused, testified that at about five o'clock in the afternoon of October 24, 1976, he met the accused in Barrio Tabucan which is about two kilometers away from the old woman's house in Barrio Banguit, In the course of their conversation, Severino allegedly revealed to Tranquilino that he (Severino) would rob his owaoor grandmother, Fausta Duero. Tranquilino said to Severino: "Are you an Idiot?" In answer, Severino explained that Fausta Duero would not even lend him ten pesos or a ganta of rice, a fact known to one Roman Sipaya. The next day when Tranquilino learned from Severino that the old woman was killed, it occurred to Tranquilino that Severino was responsible for the killing (2-3 tsn March 10, 1978). Another prosecution witness, Jose Montao, testified that about six o'clock in the evening of October 24, 1976, when he passed by the house of Fausta Duero, he saw Severino Duero near the stairs of the house.

Severino was calling the old woman. Montao was just about three meters away from Severino when Montao passed by him (6 tsn April 21, 1978). Montao's house was about one hundred meters away from Fausta's house. He was going to watch television in his uncle's house. Montao had known Severino Duero for about four years. He was on friendly terms with Severino. The latter used to gather mangoes for him. Montao was positive that Severino killed the old woman (6 tsn April 21, 1978). Another prosecution witness, Wilfredo Cenizal (Senesal), also a resident of Barrio Pamulogan, testified that at six-thirty in the morning of October 25, 1976 or about ten hours after the commission of the crime, Cenizal had a conversation with Severino Duero. Severino spontaneously revealed to Cenizal that he (Severino) helped his grandmother ( owao, the colloquial term for grandmother) who was "held up by the bandit" and that her money amounting to two thousand pesos was taken from her. Severino recounted to Cenizal that the old woman was struck in the head with a hammer and wounded with a scythe. Cenizal's testimony was a confirmation of his affidavit taken on October 30, 1976 by a policeman wherein he stated that, according to Severino, the old woman was killed by striking her with a mallet strangling her with a piece of wire and wounding her with a scythe and that the money taken from the old woman was in a purse ( buon-buon) placed in a bamboo basket (tabungos) (p. 5, Record). Cenizal confirmed his affidavit at the preliminary examination (p. 17, Record). The circumstantial evidence summarized above shows that the prosecution had a strong case against Severino Duero in spite of the absence of the testimony of an eyewitness. During the trial no objection was interposed by the defense to the evidence on Duero's oral confession. Indeed, the trial court on the basis of such evidence found Severino guilty of robbery with homicide beyond reasonable doubt. He did not appeal from the trial court's decision. But the trouble is that at the trial Severino repudiated his alleged oral confession and even claimed that he was maltreated by the police. Lujan in his rebuttal testimony denied the maltreatment.) Severino said that the victim was "the wife of my grandfather", meaning that "the husband of Fausta Duero (the victim) was the grandfather of Severino Duero" (28 and 37 tsn January 5, 1979). As alibi, Severino testified that he was in his house when the crime was perpetrated. His wife Salvacion, his neighbor Adriano Lopez and his friends, the spouses Rufino Macaya and Erlinda Macaya, confirmed his alibi. Severino Duero's counsel de oficio in this Court contends that the trial court erred in admitting the oral testimony on Severino Duero's oral confession, in giving credence to the testimonies of Lujan, Cenizal, Montao and Tranquilino Duero, in finding that robbery with homicide was committed and in not sustaining Severino's alibi. The Solicitor General agrees with the counsel de oficio's contention that Severino's oral confession is inadmissible in evidence by reason of Article IV of the Constitution which provides: 1wph1.t 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 admissible in evidence. All the foregoing provisions are new except the first sentence, regarding the right against self-incrimination (nemo tenetur seipsum accusare), which is the only provision found in section 18 of the Bill of Rights of the 1935 Constitution, now revised or expanded in section 20 (See article 125 of the Revised Penal Code and Republic Act No. 85-1 as to the right of the accused, who is in police custody, to confer and communicate at anytime with his counsel.) If this case were to be decided under the 1935 Constitution, the trial court's judgment of conviction could be affirmed. But we have to decide it under the rule in the 1973 Constitution as to a confession obtained while the confessant is under police custody. And that rule applies squarely to this case (Magtoto vs. Manguera, Simeon vs. Villaluz and People vs. Isnani L37201-02, L-37424 and L-38929, March 3, 1975, 63 SCRA 4.) Inasmuch as the prosecution in this case failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence.

After discarding Lujan's testimony on Duero's oral confession, the rest of the prosecution's circumstantial evidence against him is not adequate for his conviction. His acquittal follows as a matter of course. The new provisions in section 20, Article IV of the 1973 Constitution were adopted from the ruling in Miranda vs. Arizona, 384 U.S. 436, 16 L. Ed. 2nd 694 ("an earthquake in the world of law enforcement") which specifies the following procedural safeguards for incustody interrogation of accused persons: 1wph1.t Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. As restated by Chief Justice Warren in the Miranda case, the following procedure should be adhered to: At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. 1wph1.t For those unaware of the privilege the warning is needed simply to make them aware of it the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute pre-requisite in overcome the inherent pressures of the interrogation atmosphere. ... . Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it. ... . The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. ... . An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most. needs counsel. ... . If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. ... . In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if lie is indigent a lawyer will be appointed to represent him. ... .

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at anytime prior to or during questioning, that he wishes to remain silent, the interrogation must cease. ... . If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. ... . If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against selfincrimination and his right to retained or appointed counsel. ... . An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. ... . The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. In the Miranda case, the Federal Supreme Court made it clear that what is prohibited is the "incommunicado interrogation of individuals in a police dominated atmosphere, resulting in self- incriminating statements without full warnings of constitutional rights." The State's right to prosecute criminals may be a great right but, as Lord Chancellor Sankey observed, it is not permissible "to do a great right by doing a little wrong". The Miranda ruling does not mean that the police should stop a person who enters a police station and states that he wishes to confess to a crime. It does not affect volunteered statements of guilt by persons not in police custody. At the risk of repetitiousness we reproduce hereunder Chief Justice Warren's summary of the procedural safeguards for persons in police custody where the interrogation is regarded as the commencement already of the trial or adversarly system: 1wph1.t He (the accused) 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 these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. The above procedure was not followed by the police in this case. Hence, Severino Duero's oral confession is inadmissible in evidence. Without that confession, the prosecution's other evidence is not sufficient to establish Duero's guilt beyond reasonable doubt. WHEREFORE, the death penalty is set aside. The accused is acquitted. He should be released immediately unless he is being detained for another offense. Costs de oficio. SO ORDERED.

(3) PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. GUILLERMO LAYUSO, accused-appellant. [G.R. No. L-69210 July 5, 1989] GUTIERREZ, JR., J.: This is an automatic review of the decision of the Regional Trial Court of Pasig, Branch 153, convicting the accused, Guillermo Layuso of the crime of ROBBERY with HOMICIDE and imposing on him the supreme penalty of death. The information reads: that on or about the 14th day of October 1980, in the municipality of Pateros, Metro Manila, 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 owner thereof, that is by then and there entering the residence of one Cesar C. Avila, thru an opening not intended for egress or ingress, thru which he gained entrance, and once inside, did then and there wilfully, unlawfully and feloniously take, steal and carry away the following articles, to wit:
One (1) Radio Digital Alarm Clock valued One (1) JVC brand Portable Radio/Tape recorder cassette valued One Plated Unisex wrist watch value One (1) set of collector's silver coin (CBP) P2,310.00 1,500.00 500.00 500.00 P 4,810.00

all in the total amount of P 4,810.00 belonging to said Cesar C. Avila, to the damage and prejudice of the owner thereof in the aforementioned amount of P4,810.00. That on the said occasion, the above-named accused, did then and there wilfully, unlawfully and feloniously attack, assault and stab one Lucresia R. Dagsaan with bladed weapons (knives), thereby inflicting upon the latter stab wounds which directly caused her death. Contrary to law. (Rollo. P. 5) Upon arraignment on April 22, 1981, the accused assisted by a counsel-de-oficio, pleaded "NOT GUILTY." Trial on the merits ensued and a decision was subsequently rendered on September 12, 1984. The dispositive portion of the decision reads: WHEREFORE, premises considered and it appearing that the commission of the crime was attended by the aggravating circumstances of dwelling, lack of respect due the victim on account of her sex and that the accused took advantage of his superior strength, without having been off-set by any mitigating circumstance, the Court hereby sentences the accused Guillermo M. Layuso to suffer the penalty of Death, to indemnify the heirs of Lucresia Dagsaan in the sum of Twelve Thousand (P l2,000.00) Pesos; to return to Cesar C. Avila the things robbed and/or their value, as follows:
1. One (1) Radio Digital Alarm Clock worth 2. One (1) JVC Brand Portable Radio/Tape Recorder cassette worth 3. One (1) plated unisex wrist watch worth 4. One (1) set of collector's silver coin worth P2,310.00 1,500.00 500.00 500.00 P4,810.00

without subsidiary imprisonment in case of insolvency and to pay the costs.

Pursuant to the provisions of Section 9, Rule 122 of the Rules of Court, let the records of the above-entitled case be forwarded to the Supreme Court of the Philippines for review as law and justice shall dictate. (Rollo, P. 35) The facts of the case are summarized by the trial court as follows: From the evidence adduced by prosecution, it has been duly established that the accused Guillermo Layuso was one of the carpenters, who worked in the construction of Cesar C. Avila's house, located at Agujo St., Pateros, Metro Manila. After completion of the house, Cesar Avila used to hire Guillermo Layuso to do carpentry work in said house. The last work done by Guillermo Layuso was the construction of the garage. At about noontime of October 14, 1980, somebody entered into the house of Cesar Avila and killed his maid named Lucresia Dagsaan. The injuries sustained by Lucresia Dagsaan, who was pronounced dead on arrival by the doctors at the Rizal Provincial Hospital, were established thru the testimony of Dr. Ruben M. Angobung, who conducted the autopsy, post mortem examination. xxx xxx xxx In a follow-up investigation, the police found out that the culprit is Guillermo Layuso. Upon physical investigation and examination of the house by the police investigators accompanied by Cesar Avila, they found the following articles or things missing from the house: 'A digital alarm clock worth P2,310.00; a unisex watch worth P500.00; a radio tape recorder worth Pl,500.00, and silver coin collection of P500.00. They also found bloodstains in the sala; in the kitchen; in the master's bedroom, particularly on the carpets; on the handle of the door knob to the office on the ground floor of the house; and in the carpet inside the bedroom at the second floor. A kitchen knife was found in the sala and another was found in the kitchen. There were broken bottles in front of the bar and a broken bottle of catsup was also found in the kitchen. Sometime after the incident, Cesar Avila received a letter from the accused. This letter although previously marked as Exhibit "A, could not be found in the record of the case. Neither was the same turned over to the Minutes Clerk when the Prosecuting Fiscal made an oral offer of evidence on April 9, 1984. Through the testimony of tricyle drivers Lorenzo S. Bagang and Restituto Castillo, it has been established that the accused Guillermo Layuso, stripped of clothes from the waist up, with blood on the left shoulder and wound on the hand, boarded the tricycle, first of Lorenzo Bagang, at the place near the house of Cesar Avila at about noontime of October 14, 1980. He was bringing something in a plastic bag, the height of which was demonstrated to be about twenty four inches. The contents of the plastic bag were not seen by these witnesses because it was closed and the accused placed the same between his legs. The accused asked Lorenzo Bagang to take him to Rosario but the latter refused because he had to fetch a passenger from the Municipal Hall. The accused disembarked from the tricycle of Lorenzo Bagang at Morcilla Street. The accused, who was described by witness Restituto Castillo as 'sporting a long hair' with 'a high bridged nose' and 'bringing along a plastic bag', boarded the latter's (witness) tricycle at P. Herrera Street and alighted near a basketball court, near the river, in Buting. The plastic bag, according to this witness, has blood all over it. Both Lorenzo Bagang and Restituto Castillo categorically identified the accused in open court as the person who boarded their respective tricycles on October 14, 1980. (Rollo, pp. 74-78) The appellant admits he is guilty of homicide but assigns the following errors: 1. THAT THE LOWER COURT GRAVELY ERRED IN CONVICTING THE HEREIN APPELLANT FOR A SERIOUS CRIME OF ROBBERY WITH HOMICIDE. 2. THAT THE LOWER COURT ERRED IN NOT CONVICTING APPELLANT OF THE CRIME OF SIMPLE HOMICIDE. (Rollo, p. 103; Appellee's Brief, p. 5) The only issue raised in the case at bar is whether or not the appellant should be convicted of the crime of robbery with homicide instead of the crime of simple homicide.

The accused-appellant contends that the prosecution has failed to prove that the articles allegedly stolen were in fact in the house of Cesar Avila and it was the appellant who took them. He states that the finding was based on his extra-judicial statement which he claims was extracted through the use of force and intimidation. The appellant admits that the confession was taken in the presence of counsel, a certain Atty. Casiano Atuel, Jr. However, he states that the counsel was not present during the custodial interrogation which preceded the taking down of his statement. He also questions the sufficiency of the lawyer's representation. He states in his appeal that the lawyer should have participated by also asking him questions. The alleged coercion and maltreatment are not sustained by the records. There was a lawyer present while the statement was being taken. The appellant did not complain to the Fiscal before whom the oath was administered. In fact, the allegations are in the form of general conclusions. There is no specific statement as to what constituted the coercion and maltreatment. (People v. Canete, 129 SCRA 451 [1984]; People v. Villanueva, 128 SCRA 488 [1984]; and People v. Dejaresco, 129 SCRA 576 [1984]). We rule that the constitutional requirement on assistance of counsel was fulfilled. There is no claim or showing that the accused asked for a lawyer from the moment he was apprehended or that he was not informed of his right to counsel from the time that the warning or information should have been given to him or that the alleged earlier questioning was already part of his confession. The appeal is hazy on these points. What is established was the presence of counsel during the taking of the confession. The attempt to now discredit him has no merit. If the lawyer decided against advising the accused not to admit the crime, he was only complying with his oath as a lawyer to abide by the truth and with the expressed desire of the accused to unburden his conscience of the load it was carrying. This Court denounces in the strongest terms possible the widespread misconception that the presence of a lawyer under the "right to counsel" provision of the Constitution is intended to stop an accused from saying anything which might incriminate him. The right to counsel is intended to preclude the slightest coercion as would lead the accused to admit something false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth. Whether it is an extra-judicial statement or testimony in open court, the purpose is always the ascertainment of truth. Moreover, the judgment of conviction was not made solely on the basis of the disputed extra-judicial confession. Layuso admits the killing. The physical evidence such as the ten stab wounds and three lacerated wounds; the bloodied plastic bag and the testimonies of Cesar Avila and two other disinterested persons, namely Lorenzo Bagang and Restituto Castillo are all consistent with robbery with homicide. In fact, even if an extrajudicial confession is disregarded, the accused may still be convicted if there is enough evidence aside from the confession itself. (People v. Nillos, 127 SCRA 207 [1984]). The narration of the appellant as to how he appropriated for himself the items mentioned as well as the sequence of the struggle could not have been supplied by any of those interviewed by police investigators and neither by the police themselves because it is replete with details known only to the appellant. As held in People v. Ribadajo (142 SCRA 637 [1986]), confessions replete with details only the appellants could have known are presumably voluntary. In the accused-appellant's extrajudicial confession, he admitted taking the things from Cesar Avila's house. Avila, in turn, identified these as the items which were lost. Avila's testimony closely interlocks with the appellant's statement on how he took the missing items. In his court testimony, the appellant denied taking anything. This inconsistency cannot be given credence on account of the uncontradicted testimonies of the two tricycle drivers who saw him bringing a bloodied plastic bag containing items inside. (tsn., July 20,1981, p. 23). There is no evidence on record which would show that Lorenzo Bagang and Restituto Castillo were actuated by improper motives. Their testimonies should, therefore, be entitled to full faith and credit (People v. Patog, 144 SCRA 429 [1986]; People v. Adones, 144 SCRA 364 [1986]). Their testimonies were also corroborated by the testimony of Cesar Avila and by Layuso himself. The credibility of the appellant suffers when taken against the testimonies of the other witnesses. The appellant merely resorts to denial as to the robbery and a claim of self-defense as to the killing. The fact that no one saw the accused take the items is of no consequence. There is credible testimony regarding the loss. It is established that there were such articles of value. He ran away and boarded two tricycles carrying a plastic bag with items inside it. The extra-judicial confession of the accused discloses that he took the missing items. The appellant's contention of self-defense must fail. His narration of the sequence of events is clearly illogical and unconvincing primarily on account of its inconsistency. The testimony of the accused cited by the trial judge in eleven (11) pages of his decision

(Rollo, pp. 325-336) clearly shows its lack of credibility. In his testimony in court, Layuso claims that he and the victim were sweethearts and that after telling her he was going abroad to work, she got mad, tore his shirt, and the struggle ensued. On the other hand, he likewise claims in his extrajudicial confession that when he was on his way down, he met the victim who must have suspected that he had stolen something and that when he went near her to bid her goodbye, she suddenly stabbed him. Assuming that they were sweethearts, the victim's alleged violent objections to his trip to Saudi Arabia was correctly held unbelievable. Under the same circumstances, a sweetheart would normally have welcomed the idea for the sake of a better future for both of them. Granting that the victim objected, the objection could not have taken such a violent form as to move the victim to resort to stabbing the appellant to prevent him from leaving. It is likewise unbelievable that the victim would suddenly stab him when he came near her only to say goodbye. And it is even more inexplicable why he would inflict so many multiple wounds on various parts of her body under the circumstances that he alleges. In the case of People v. Pineda and Garcia (157 SCRA 71, January 15, 1988), this Court once more recognized the necessity of resorting to circumstantial evidence. We quote: Crimes are usually committed in secret and under conditions where concealment is highly probable. To require direct testimony in all cases would result in the acquittal of guilty parties leaving them free to once more wreak havoc on society. We find the circumstantial evidence attending this case sufficient to warrant a conviction. Rule 134, Sec. 5 of the Rules of Court states that there is sufficiency in circumstantial evidence when: 1) there is more than one circumstance; 2) the facts from which the inferences are derived are proven; 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The requirements are satisfied in this case. The record further shows that not only dwelling aggravated the commission of the crime, but there was also a very patent display of lack of respect due the victim on account of her sex and the viciousness of the wounds inflicted upon her. WHEREFORE, the appealed judgment is hereby AFFIRMED with the MODIFICATION that the penalty of death is commuted to reclusion perpetua in accordance with the Constitution, Section 19, Article III. The indemnity to the heirs of Lucresia Dagsaan is also increased to THIRTY THOUSAND PESOS (P30,000.00) in consonance with the latest rulings of this Court. SO ORDERED.

(4) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAVID LOVERIA y SANTOS, defendant-appellant. [G.R. No. 79138 July 2, 1990] CORTES, J.: The accused-appellant David S. Loveria was charged before the Regional Trial Court, Branch CLIX (159) with the crime of Robbery with Homicide and Frustrated Homicide under the following information: That on or about the 21st day of February, 1985, in the Municipality of Marikina, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with three (3) John Does whose true name, identities and present whereabouts are still unknown and mutually helping and aiding one another, armed with a knife, with intent of gain and by means of force, violence and intimidation, did, then and there willfully, unlawfully and feloniously, hold-up a passenger jeepney with Plate No. NXG-150-Pil. '84, one of the passengers, Richard Bales y Andres of his Seiko Wrist Watch worth P300.00 and a colored brown wallet containing P50.00, to the damage and prejudice of the latter in the aforementioned amount of P350.00; that on the occasion of said robbery, said accused, with intent to kill, did, then and there willfully, unlawfully and feloniously attack, assault and stab with the said knife one Ricardo Yamson y Malanon, thereby inflicting upon him stab wounds which directly caused his death, and one Cerilo Manzanero y Nacion the driver of the said passenger jeepney, on the vital parts of his body, thereby inflicting upon him stab wounds which ordinarily would have caused his death, thus performing all the acts of execution which should have produced the crime of homicide as a consequence, but nevertheless did not produce it by reason of cause independent of the will of the accused, that is, due to the timely and able medical attendance rendered to the said Cerilo Manzanero y Nacion which prevented his death. Contrary to law. (Rollo, p. 3). Upon being arraigned on July 3, 1985, the appellant entered a plea of not guilty (Record, p. 18.) The facts as found by the trial court are as follows: On February 25, 1985, at around 7:00 in the evening, Cerilo Manzanero was driving a jeepney fully loaded with passengers en-route from Cubao, Quezon City to Cogeo, Marikina, Metro-Manila. While crossing the bridge of Barangay Baranca, Marcos Highway, Marikina, Metro Manila, accused shouted "hold-up" and Manzanero stopped his jeep. Accused who was seated right behind Manzanero, poked a knife on the latter's right side of his nape and then pulled him off his seat with the assistance of another companion into the inner rear portion of the jeep; at the same time, stabbing Manzanero with knives at the front and back of his body. Accused had three (3) other companions. One was seated on the right side of the jeep, opposite accused; the two others were seated opposite each other at the rear side of the jeep. Accused and his three other companions divested the passengers of their jewelries, watches, rings and necklaces. Manzanero had a companion-conductor by the name of Richard Bales who was seated in front of the jeep at the right side. He was likewise stabbed by the other companion of accused who he identified as Martin Castaneda but he sustained only slight injury on his finger. His Seiko watch was taken from him. Passenger Ricardo Yamson was likewise seated on the front part of the jeepney in between driver Manzanero and conductor Bales. He was stabbed by one of the holduppers and died that same night. Testimonies of victim driver Cerilo Manzanero; passenger Betty S. Apolinario; conductor and victim Richard Bales; Patrolmen Jaime Agueda and Bill Ayun (TSN, Hearings of August 14 and 21, 1985; October 9, 1985; November 13, 1985; May 5, 1986; June 23, 1986; July 15, 1986; December 8 and 23, 1986; January 6, 1987; Exhibits B and I, C and O) Cerilo Manzanero was brought to Sto. Nio Hospital at Marcos Highway and then transferred to Quezon City Medical Center where he was treated by Dr. Antonio P. Ligot who issued a Medico-Legal Certificate with the following diagnosis: Multiple stab wound antero-posterior chest wall, Bilateral, Penetrating, Bilateral Hemothoax Bilateral Thoracostomy

(Exhs. A and A-1). Dr. Ligot testified that these injuries would have caused the death of Manzanero were he not treated medically. (TSN, hearing of October 21, 1986). Mrs. Amada Yaco, mother-in-law of Manzanero presented receipts for medicine expenses in the amount of P2,051.80 (Exhs. J, J-1 to J-19; M-4 to M-6) doctor's fee of P3,000.00 (Exh. K); payments for the blood in the amount of P470.00 (Exhs. L and M); and P2,700.00 for the hospital bills (Exhs. M-1 to M-3) or a grand total of P8,221.80. Victim Ricardo Yamson was brought to the Quirino Memorial Hospital at 8:30 in the evening of February 21, 1985 where he died of profuse hemmorrhage, secondary to stab wound at 9:20 in the same evening (Exhs. F, G and H; Testimony of Mrs. Carmelita Yamson, Hearing of February 3, 1986). itc-asl Carmelita Yamson, victim's mother, testified that for the funeral parlor services, they spent P5,300.00; for cemetery expenses, P1,700.00; for transportation expenses, P750.00; for interment, P12,000.00; for 40 days prayer period, P4,500.00; for expenses incurred during the preliminary investigation on the Fiscal's office in Marikina, Metro Manila, P1,500.00; or a total expenses of P28,750.00 which witness rounded off to P29,000.00 (TSN, Hearing of February 3, 1986). (Trial Court Decision, pp. 2-3.) The defense offered by the appellant is summarized by his counsel as follows: The accused David Loveria, 25 years old, formerly residing at Sitio Maagay, Antipolo, Rizal and a volunteer worker of the Share and Care for Poor Settlers Pastoral (SCAP for short) declared that on February 18, 1985, he was attending a live-in seminar at the Communication for Asia in Old Sta. Mesa, Manila. The duration of the seminar was from February 18 to February 22, 1989. Between 8:00 and 8:30 o'clock in the evening of February 21, 1985, upon permission from their training officer, he went to the Farmers Market in Cubao to ask money from his mother for transportation fare for the following day. When he failed to meet his mother, he decided to go back to the Communication Foundation for Asia. Fortunately, at the loading zone for passenger vehicles bound for Sta. Mesa, he met his father who gave him money. After that, he went back to the Communication Foundation for Asia and stayed there the whole evening. (TSN, pp. 6-13, January 5, 1987) (Appellants Brief, p. 6.) After trial, the trial court found the appellant guilty as charged. The dispositive portion of the decision dated May 26, 1987 reads:
IN VIEW OF ALL THE FOREGOING, the prosecution having established the guilt of (the) accused beyond reasonable doubt, the Court hereby finds accused David Loveria GUILTY of the complex crime of Robbery with Homicide and Frustrated Homicide under Article 294(1) of the Revised Penal Code with the aggravating circumstance of having been committed in band, without any mitigating circumstance; and, in relation to Article III, Section 19(1) of the 1987 Constitution of the Republic of the Philippines, hereby imposes upon him to suffer life imprisonment or reclusion perpetua; and orders said accused: (1) to pay the compulsory heirs of deceased victim Ricardo Yamson, represented by his mother Conchita Yamson, the amount of THIRTY THOUSAND PESOS (P30,000.00) as an indemnity for Ricardo Yamson's death; TEN THOUSAND PESOS (P10,000.00) as and for actual damages; TEN THOUSAND PESOS (P10,000.00) as and for moral damages; TEN THOUSAND PESOS (P10,000.00) as and for exemplary damages: (2) to pay victim Cerilo Manzanero the amount of EIGHT THOUSAND TWO HUNDRED TWENTY ONE PESOS & 80/100 (P8,221.80) as indemnity for actual damages; P5,000.00 as and for moral damages; and P5,000.00 as and for exemplary damages; and (3) to indemnify Richard Bales the amount of THREE HUNDRED PESOS (P300.00) for the unrecovered watch.

[Trial Court Decision, p. 7] From this judgment of conviction, the appellant filed the present appeal. The first issue raised by the appellant pertains to the credibility of the prosecution witnesses. To prove the culpability of the appellant, the prosecution presented the following witnesses: Cirilo Manzanero, the driver of the jeepney: Richard Bales, the companion/conductor of Manzanero; Betty Apolinario, a passenger of the jeepney; Dr. Antonio Ligot, the physician who examined Manzanero; Pat. Bill Ayun and Pat. Jaime Ganueda, of the Marikina Police Station who conducted an investigation of the incident. The following witnesses were also presented to prove the civil liability arising from the crime: (1) Carmelita Yamson, the mother of the victim Ricardo Yamson; and (2) Amada Yaco, the mother-in-law of Manzanero.

The appellant specifically assails the credibility of Cerilo Manzanero, Betty Apolinario and Richard Bales, all of whom positively identified the appellant as one of the perpetrators of the crime. According to Manzanero, while he was driving his fully loaded passenger jeepney on the evening of February 21, 1985 from Cubao to Cogeo, Marikina, he heard a person from the back announce a hold-up, which made him pull the jeepney to a sudden stop. Whereupon, the passenger immediately behind him, or on the extreme left side of the jeepney, poked a bladed weapon on the right side of his neck (TSN, August 14, 1985, p. 5). Manzanero was able to identify the person who poked the knife at him as the appellant David Loveria because the former managed to turn his face towards the latter (TSN, August 21, 1985, p. 13). Manzanero was then taken by the appellant and three other men inside the jeepney, at the back portion thereof, and was stabbed several times (TSN, August 14, 1985, p. 6). After the stabbing, Manzanero's wristwatch and earnings were taken from him (TSN, August 21, 1985, p. 17). Injured, Manzanero rolled down from the jeepney but was able to flee (TSN, August 14, 1985, p. 11). Richard Bales, the companion/conductor of Manzanero, who was seated on the front seat corroborated the testimony of Manzanero on almost all its material points. He testified that he saw the appellant stab Manzanero (TSN, June 23, 1986, pp. 3-4 & 16). However, Bales added that after the four men were finished with Manzanero, they turned to him and Ricardo Yamson, a passenger who was also seated on the front seat beside Bales (Id, pp. 6-7).itc-asl One of the robbers, whom Bales identified as a certain Martin Castaeda, stabbed him, injuring his finger, and took his watch ( Id.). The other robbers chased Yamson, who attempted to flee, and stabbed him on the neck (Id., pp. 16-17). Yamson was taken to the Quirino Memorial General Hospital but died that same night. [Exh. "F" (Medico-Legal Certificate) and Exh. "G" (Autopsy Report)]. Betty S. Apolinario, a passenger who was seated on the left side of the jeepney testified that the four hold-up men boarded the jeepney in Cubao (TSN, October 9, 1985, p. 5) and seated themselves on the four corners of the jeepney ( Id, p. 6). Apolinario stated that she saw the appellant David Loveria poke a knife at the driver, pull the latter from the driver's seat, and stab him after taking him to the inner back portion of the jeepney (Id., pp. 4-5). She was able to remember the appellant because she was the third passenger from the driver's back. In other words, there was only one person between her and the appellant ( Id., p. 4). Apolinario also testified that the hold-up men forcibly took valuable from the passengers ( Id., p. 8). The appellant contends that the trial court erred in giving credence to the testimony of Cerilo Manzanero, the driver because of its improbability. The appellant argues that "(i)f indeed the purpose was to stab the jeepney driver, then there was no need to bring him to the rear portion of the jeepney to accomplish the purpose. He could be stabbed while seated at the driver's seat." (Appellant's Brief, p. 7). The contention is without merit. It is true that Manzanero could have been stabbed by the appellant while the former was at the driver's seat. But neither was it improbable for appellant to have stabbed Manzanero in the manner described by the latter and corroborated by witnesses Apolinario and Bales. The motive which impelled the appellant and his companions in pulling Manzanero out of the driver's seat and stabbing him at the inner rear portion of the jeepney is known only to them. The Court will not speculate as to why the appellant and his companions executed the crime in the manner that they did. Crimes are known to have been executed in odd and unusual ways. But in the instant case, the Court is of the considered view that there was nothing strange nor improbable in tile testimony of Manzanero. Apolinario and Bales that after the jeepney stopped, the appellant poked a knife at Manzanero, pulled the latter out of the driver's seat, and together with his companions took him to the rear portion of the jeepney where Manzanero was eventually stabbed and robbed of his wristwatch and earnings. The appellant next turns to witness Betty S. Apolinario, contending that she failed to positively identify the appellant because when asked to identify any of the holdup men who may be present in court, she stated the following in reference to the appellant:, "I think he is the one wearing a white T-shirt" [TSN, October 9, 1985, p. 7 ]. However, Apolinario's use of the expression "I think" does not necessarily indicate her uncertainty as to the identity of the appellant. In fact, when the defense tried to exploit, during the crossexamination of Apolinario, the seemingly tentative statement just quoted, it became apparent that she was sure and positive about the identity of the appellant. The pertinent portion of the cross-examination is quoted as follows:
Q Mrs. Witness you also testified last time in answer to the question of the private prosecutor, I quote, "This person who stabbed the driver if you will see him, will you be able to identify him?" and you said "Yes, sir". The next question, "Will you please tell us whether this person is present in this courtroom?" and you said "I think he is the one wearing a white Tshirt." What do you mean by "I think he is the one wearing a white T-shirt"? A What I have in mind he is the one there that is why I am pointing to him. (Witness pointing to the accused David Loveria.) Q Are you positive about the identification of the accused David Loveria or could it be also another person? A No, I am not wrong.

(TSN, November 13, 1985, pp. 18-19.)

To impugn further the credibility of the prosecution witnesses, the appellant cites alleged inconsistencies between the sworn statements given separately by Manzanero and Bales to the police on the one hand, and their testimonies in open court, on the other hand. The appellant claims that Manzanero did not mention in his affidavit (Exh. "I") that the hold-up men took his money and valuables but on cross-examination, he declared that the holdup men took his wristwatch and the boundary for the day. The appellant further claims that Richard Bales did not implicate him in his affidavit but pointed to him on the witness stand. Affidavits, taken ex parte, are generally considered to be inferior to the testimony y given in open court [People v. Pacola, G.R. No. L-26647, August 14, 1974, 58 SCRA 370]. The Court has consistently held that an affidavit, taken ex parte, is almost always incomplete and inaccurate, sometimes from partial suggestions, sometimes from want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestions of his memory and for his accurate recollection of all that belongs to the subject. (People v. Tan, 89 Phil. 337 (1951); People v. Gonzales, G.R. No. L-40727, September 11, 1980, 99 SCRA 697; People v. Avanzado, Jr., G.R. No. 73116, February 29, 1988, 158 SCRA 427). It has likewise been held that inconsistencies between the testimonies given during the investigation stage and during the court proceedings may be disregarded without impairing the credibility of the witnesses, considering such factors as illiteracy [People v. Sato, G.R. No. L-47911, July 27, 1988, 163 SCRA 602] or inability of the witness to read the language in which the ex parte affidavit was written [People v. Capinpin, Jr., G.R. No. 67785, October 4, 1988, 166 SCRA 233]. In the instant case, Manzanero explained his failure to state in the affidavit that certain things were taken from him, by the fact that at the time of the execution of the affidavit, he had just checked out from the hospital and was still under medication (TSN, August 21, 1985. p. 17). As a final assault on the credibility of the prosecution witnesses, the appellant notes the delay by the former in reporting the incident. The crime was committed on February 21, 1985. Manzanero reported the matter to the police on March 14, 1985 (Exh. "B"). However, Manzanero was confined at the Quezon City Medical Center from February 21 up to March 2, 1985 [Exh. "A"]. Hence, it is evident that the lapse of time between the commission of the crime and the filing by Manzanero of a complaint with the police, was due to the fact that he was still recuperating from the wounds inflicted on him. Although Richard Bales executed his affidavit only on May 7, 1985 [Exh. "O"], while Betty Apolinario remained silent until she was presented in court to testify, these circumstances alone should not destroy their credibility. The rule is well-established that the failure to reveal or disclose at once the identity of the accused does not necessarily affect much less impair, the credibility of the witness [People v. Valdez, G.R. No. 75390, March 25, 1988, 159 SCRA 152]. The initial reluctance of witnesses to volunteer information about a criminal case and their unwillingness to be involved in criminal investigations due to fear of reprisal is common and has been judicially declared not to affect credibility (People v. Rosario, G.R. No. L-46161, February 25, 1985,134 SCRA 497). In fine, the Court, after a thorough examination of the entire record of the case, especially the transcript of stenographic notes, finds the trial court's reliance on the credibility of the prosecution witnesses to convict the appellant, to be well-founded. The claims made by the appellant have not impaired the credibility of the prosecution witnesses who positively identified him as one of the perpetrators of the crime. Finally, the appellant assails the manner in which he was identified by Manzanero at the headquarters of the 225th Philippine Constabulary (PC) in Cogeo, Antipolo, Rizal, claiming violation of his constitutional right to counsel. Sec. 20, Art. IV of the 1973 Constitution, which was in force at the time the events under review occurred reads: Sec. 20. No person shall be compelled to be 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 the evidence. Sec. 12(1), Art. III of the 1987 Constitution provides similar guarantees by stating: Sec. 12(1). Any person under investigation for the commission of an offense shall have the 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. The court must emphasize that the so-called Miranda rights contained in the abovequoted constitutional provisions may be invoked by a person only while he is under custodial investigation [People v. Duero, G.R. No. 52016, May 13, 1981, 104 SCRA 379]. which has

been defined as the "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" [People v. Caguioa, G.R. No. L-38975, January 17, 1980, 95 SCRA 2, 9 citing Miranda v. Arizona, 384 U.S. 436]. Hence, for instance, these constitutional rights may no longer be claimed by a defendant in a criminal case already pending in court [People v. Ayson, G.R. No. 85215, July 7, 1989] because he is no longer under custodial investigation. The ruling enunciated in Gamboa v. Cruz, [G.R. No. 56291, June 27, 1988, 162 SCRA 642], concerning the right to counsel of a person under custodial investigation finds application in the instant case. In that case, the accused was arrested for vagrancy and taken to the police station. The following day he was placed on a line-up and a female complainant pointed to him as one of the persons who robbed her. While on trial, the accused filed a motion to acquit or demurrer to evidence on the ground, among others, that he was deprived of his constitutional right to counsel at the time the complainant was in the process of accusing or identifying him for allegedly committing a crime. The motion having been denied by the trial court, the accused filed a petition for certiorari and prohibition with the Supreme Court, which ruled that the right to counsel of a person under custodial investigation cannot be invoked until such time that the police investigators start questioning, interrogating or exacting a confession from the person under investigation. The Court held that in the police line-up conducted in that particular case, it was the complainant who was being investigated and who gave a statement to the police while the accused was not questioned at all. Thus, the Court concluded that the latter could not, during the line-up, invoke his right to counsel because he was not under custodial interrogation. In the case at bar, Manzanero, upon learning that certain hold-up men were being detained at the 225th PC Company, Cogeo, Antipolo, Rizal in connection with another robbery, went there to check. Having identified the appellant among the detainees, he reported the matter to the Marikina police [See Exh. "B"]. Thereafter, Pat. Bill Ayun accompanied Manzanero back to the PC headquarters in Antipolo where Manzanero identified to Pat. Ayun the appellant as one of the persons involved in the incident. Pat. Ayun then took the sworn statement of Manzanero which was presented in court as Exh. "B" [TSN, December 8, 1986, p. 3.] Since, as in the Gamboa case, the appellant was not investigated when Manzanero was in the process of identifying him, he cannot claim that his right to counsel was violated because at that stage, he was not entitled to the constitutional guarantee invoked. But even assuming that the process of identification of the appellant by Manzanero at the PC headquarters was attended by constitutional infirmities, only Manzanero's sworn statement (Exh. "B") where he identified appellant and which was taken by Pat. Ayun, would be excluded for being inadmissible in evidence. The testimony of Manzanero made in open court positively identifying the appellant, as well as those of Richard Bales and Betty Apolinario, would not be affected. These testimonies, taken together with the other evidence on record, would be sufficient to sustain the trial court's judgment of conviction. The defense of alibi put up by the appellant has not helped him any for it has not destroyed the damaging effects of the evidence for the prosecution. Courts look upon the defense of alibi with suspicion and always receive it with caution, not only because it is inherently weak but also because of its easy fabrication [People v. Badilla, 48 Phil. 718 (1926); People v. Lumantas, G.R. No. 16383, May 30, 1962, 5 SCRA 157; People v. Genoguin, G.R. No. 23019, March 28, 1974, 56 SCRA 181; People v. Gaddi, G.R. No. 74065, February 27, 1989, 129 SCRA 649: People v. Salcedo, G.R. No. 78774, April 12, 1989; People v. Somera, G.R. No. 65589, May 31, 1989]. For alibi to succeed, it must be shown not only that the accused was at some other place but that it was physically impossible for him to have been at the site of the crime at the time of its commission. (U.S. v. Oxiles, 29 Phil. 587 (1915): People v. Alcantara, G.R. No. 26807, June 30, 1970, 33 SCRA 812; People v. Pigon, G.R. No. 76048, May 29, 1989).itc-asl In People v. Lumantas (G.R. No. L-28355, July 17, 1969, 28 SCRA 764), where the accused claimed that at the time of the killing he was in another barangay two kilometers away from the scene of the crime, the Court held that it was not impossible for him to have been at the place where the crime was committed at the time of its commission. In the case at bar, the appellant admitted his presence in Cubao on the night the crime was committed (TSN, January 6, 1987, p. 14). itc-asl The Court notes the fact that the four men who committed the crime boarded the jeepney in Cubao (TSN, October 9, 1985, p. 5). And although according to the appellant, he was in Cubao at 8:30 p.m. while the crime was committed between 7:00 p.m. to 8:00 p.m. in Marikina, the Court rules that the required physical impossibility of being at the scene of the crime has not been proved for alibi as a sufficient defense to become available to the appellant. Moreover, the defense of alibi cannot prevail over the positive and credible testimony of the prosecution witnesses that the accused committed the crime (People v. Chavez, G.R. No. L-38603, September 30, 1982, 117 SCRA 221; People v. Torres, G.R. No. 76711, September 26, 1988, 165 SCRA 702; People v. Sabado, G.R. No. 76952, December 22, 1988, 168 SCRA 681.) WHEREFORE, in view of the foregoing, the decision appealed from is hereby AFFIRMED. SO ORDERED.

(5) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO TAYLARAN alias "Goring" defendantappellant. [G.R. No. L-49149 October 23, 1981] DE CASTRO, * J.: Charged with murder ill the Court of First Instance of Bohol, appellant was convicted and sentenced to life imprisonment and to indemnify the heirs of the deceased in the sum of P 12,000 and to pay costs. Appealing to this Court, appellant insists on his defense of accidental, not deliberate killing. We quote hereunder from the appealed decision the versions of both the prosecution and the defense, as set forth therein: EVIDENCE FOR THE PROSECUTION At about 10:00 P.M. of November 5, 1976 accused called at the house of deceased Ofremia Atup y Sarabosing located in barrio Binliw, Ubay, Bohol for the purpose of submitting himself to the latter for treatment of his snakebite located at this left foot. His announced purpose being good, the deceased opened the door for him. Once inside, the deceased took her medicine paraphernalia (she being a local quack doctor) and started treating the accused. Then all of a sudden the accused drew his small bolo (Exhibit A) and stabbed the deceased several times causing her to fall on the floor dead. After killing the deceased, accused proceeded to the house of the son of the deceased for the purpose of killing him and his wife but accused did not accomplish his purpose because the deceased's son refused to left him enter his house. After that the accused surrendered himself with his bolo to policeman Demetrio Basilad who was then on guard at the municipal hall of Ubay. When asked why he killed the deceased who was also his grandmother-in-law, accused answered, 'because she promised to kill me with a 'barang', hence killed her first. (Testimonies of Salvador Atup, policeman Demetrio Basilad and Juanita Busalla) EVIDENCE FOR THE DEFENSE At about 9:00 P.M. on November 5, 1976 accused went to tend to his carabao. On the way, he was bitten by a snake at the smallest toe of his left foot. Hence, he proceeded to the house of his grandmother-in-law, Ofremia Sarabosing which was located in barrio Binliw Ubay, Bohol for treatment of snake-bite. Ofremia Sarabosing was a quack doctor known to cure snake-bites. He arrived at deceased's house at about 10:00 P.M. The deceased opened the door to let him enter. Once inside he and the deceased stood on the floor facing each other. Then the deceased instructed accused to open his snake-bite with a bolo (Exhibit A) so that the venom can be drained out. While he was opening his snake-bite with a bolo, he accidentally put out the light of the kerosene lamp which was placed on the floor, This prompted the deceased to re-light said lamp. She banded her body down with her two hands extended towards the floor to light said lamp. At the very time that deceased was bending her body downward, accused lifted his right hand which was holding the bolo upward, so that the point of the bolo accidentally hit deceased's right chest penetrating the nipple and resulting in her death. Upon realizing that the deceased was fatally wounded, accused asked for her forgiveness and after that he ran away. (Testimonies of accused himself and Elpidio Mendez). 1 As the trial court prefaced its decision, which version is correct? That the deceased died from wounds inflicted by the appellant is not disputed. As gleaned from the opposing versions set forth above, the conflict is in how the wounds were inflicted whether with deliberate intent, or purely by accident. It is extremely difficult to accept the accident version of appellant which he purveyed without corroboration. More than one wound was found sustained by the deceased, on different parts of the body. One single stroke could not have inflicted all of them. The first wound could possibly have been accidentally inflicted, but the other, wounds could not have been similarly inflicted if, as just pointed out, they did not result from the first blow. Their locations preclude that a single blow produced all the wounds. This fact robs the accident theory of appellant of any plausibility. The explanation of appellant as to how the wounds other than that located on the right chest was inflicted simply cannot inspire belief. In trying to succor the old woman when she fell upon being hit accidentally with the point of the bolo, as appellant alleged, he could not have kept on holding the bolo. He would have dropped it instantly, as instinct would have made him do so. The infliction of more wounds after the first was therefore deliberate and not by mere accident. It is, likewise, hard to believe that a mere accidental hitting

with the point of the small bolo, and therefore not with so much force, would inflict a wound that is so fatal as that sustained on the chest. That the wounding was with intent to kill is reflected by appellant's statement that he killed the old woman because she had allegedly promised to kill him by "barang" or by witchcraft, which he gave upon surrendering to Pat. Demetrio Basilad at the Municipal Building. It was just natural for appellant to explain to the police why he was surrendering. For Pat. Basilad to testify on what appellant said on this score is thus perfectly proper, and full credence must be accorded to him, being obviously an impartial witness. It is not a matter of whether the statement is a part of the res gestae to be admissible. Appellant of course denies having made the admission, but in the light of the other evidence of the prosecution, his denial is not convincing. As demonstrated earlier, his accident theory of the killing merits not much credibility from the mere fact that more than one wound was inflicted which could not have resulted from just one blow. Repeated blows easily negates any claim of wounding by mere accident. The fact that he was not allowed to enter the house of Juanita Busalla, daughter of the deceased, when he went there directly from the old woman's house, would show that he appeared, by his behavior or words, that he was dangerously in an angry mood, which is indicative of being a deliberate killer rather than a sorrowful and harmless penitent for a killing he has committed only by accident. As Juanita also testified, when appellant was already in jail, he told her that he killed her mother because of witchcraft, corroborating Pat. Basilad's testimony. It would, therefore, be of no avail for appellant to contend that the court a quo erred in admitting appellant's statement he made upon surrendering that he killed the deceased because the latter intended to kill him by witchcraft as part of the res gestae. The testimony of both Pat. Basilad and Juanita Busalla on the inculpatory statement of appellant is legally admissible not because the statement is part of the res gestae, but for said witnesses having heard appellant made the statement on their own perception. It is hard to see why the aforementioned witnesses testified on the admission of appellant the way they did unless they were prompted only by the truth. If appellant had surrendered with an admission of killing the old woman by accident, as he must have tried to impress upon the authorities if such was the truth, Pat. Basilad had no reason to give the killing the graver character than what it really was. As far as he is concerned, he had no more problem relative to the solution of the crime, which is the usual cause for police twisting the truth or other form of excesses when conducting investigations the desire to solve a crime by all means. That Dr. Silverio Gaviola who issued the post-mortem examination report failed to testify thereon because he died before he could be called to the stand, so unduly stressed to show the quality of his report as hearsay, does not affect the sufficiency of the evidence against appellant to entitle him to the acceptance of his claim of accident to exempt him from criminal liability. As already shown, such evidence is more than adequate to make the mind rest at ease on appellant's guilt as charged. The autopsy report, if not admitted as such, is part of the testimony of Pat. Sarabosing. He testified on the number and location of the wounds, and his testimony, being that of a peace officer with basic knowledge in medico-legal medicine, having taken a course therein (p. 26, tsn, May 21, 1978) may well serve the purpose of the autopsy report, if the report is not itself admissible as independent evidence, as appellant would insist. Appellant has also invoked the provision of Article IV, Section 20 of the Constitution in trying to block the admission of his declaration to Pat. Basilad that he killed Ofremia Atup because of her alleged vow to kill him by witchcraft, contending that the safeguards therefor have not been made available to him. The cited provision reads: Section 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 himself. Any confession obtained in violation of this section shall be inadmissible in evidence. The applicability of the foregoing provision does not seem to contemplate cases like the print where no written confession was sought to be presented in evidence as a result of formal custodial investigation. What was testified to is only what appellant told the police why he is surrendering to them. It is but natural for one who surrenders to the police to give reason or explanation for his act of surrendering. It can hardly be said that under such circumstance, the surrendered is already "under investigation within the meaning of the constitutional provision. As the Solicitor General correctly observes on the circumstances of this case: "If however, he voluntarily admits the killing and it was precisely because he surrendered to admit the killing, the constitutional safeguards to be informed of his rights to silence and to counsel may not be invoked." In any case, as previously pointed out, another witness, Juanita Busalla, who is not a policeman also testified to appellant telling her when he was already in jail, that he killed Ofremia Atup because of her promise to kill him by means of witchcraft, the same declaration he supposedly made to Pat. Basilad, upon surrendering after the killing. The constitutional safeguard invoked can have no application to Juanita's testimony on what appellant told her not in the course of a police investigation.

At any rate, even without the admission, the accident version of appellant is inherently incredible. As already stated, that he was not allowed by Ofremia's daughter and husband to enter their house when he went there direct from the old woman's house is a strong proof that he did not exhibit the harmless mood of a repentant killer as he should visibly appear to them if the killing was only accidental. On the contrary, he must have appeared so angry, displaying unmistakable intent to kill then after killing their mother, as the daughter Juanita Busalla, so testified. (pp. 30-39, tsn, Feb. 1, 1978). Verily, the issue is one of credibility. The lower court gave more of it to the testimony of the prosecution witnesses. We find no reason to disturb the lower court's appreciation of the relative credibility of the opposing witnesses. 2Moreover, appellant having admitted the killing, the burden of proving the exempting circumstance he has invoked in his defense calls for clear and convincing evidence, as is required of similar defenses as that of self-defense. 3 This, he failed dismally to fulfill. WHEREFORE, the appealed decision is affirmed, with costs. SO ORDERED.

(6) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDINO DOMANTAY, @ JUNIOR OTOT, accusedappellant. [G.R. No. 130612. May 11, 1999] MENDOZA, J.: This case is here on appeal from the decision[1] of the Regional Trial Court of Dagupan City (Branch 57), finding accusedappellant guilty of rape with homicide and sentencing him to death, and to indemnify the heirs of the victim in the amount of P480,000.00, and to pay the costs. The facts hark back to the afternoon of October 17, 1996, at around 4 oclock, when the body of six -year old Jennifer Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui, Pangasinan. The childs body bore several stab wounds. Jennifer had been missing since lunch time. The medical examination conducted the following day by Dr. Ma. Fe Leticia Macaranas, the rural health physician of Malasiqui, showed that Jennifer died of multiple organ failure and hypovolemic shock secondary to 38 stab wounds at the back. Dr. Macaranas found no lacerations or signs of inflammation of the outer and inner labia and the vaginal walls of the victims genitalia, a lthough the vaginal canal easily admitted the little finger with minimal resistance. Noting possible commission of acts of lasciviousness, Dr. Macaranas recommended an autopsy by a medico-legal expert of the NBI.[2] The investigation by the Malasiqui police pointed to accused-appellant Bernardino Domantay, a cousin of the victims grandfather, as the lone suspect in the gruesome crime. At around 6:30 in the evening of that day, police officers Montemayor, de la Cruz, and de Guzman of the Malasiqui Philippine National Police (PNP) picked up accused-appellant at the Malasiqui public market and took him to the police station where accused-appellant, upon questioning by SPO1 Antonio Espinoza, confessed to killing Jennifer Domantay. He likewise disclosed that at around 3:30 that afternoon, he had given the fatal weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and uncle respectively, in Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996, SPO1 Espinoza and another policeman took accused-appellant to Bayambang and recovered the bayonet from a tricycle belonging to the Casingal spouses. The police officers executed a receipt to evidence the confiscation of the weapon. [3] On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo, the Philippine National Police chief investigator at Malasiqui, filed, on October 21, 1996, a criminal complaint for murder against accused-appellant before the Municipal Trial Court (MTC) of Malasiqui. On October 25, 1996, Dr. Ronald Bandonill, medico-legal expert of the NBI, performed an autopsy on the embalmed body of Jennifer. The result of his examination of the victims genitalia indicated that the childs hymen had been completely lacerated on the right side. Based on this finding, SPO4 Carpizo amended the criminal complaint against accused-appellant to rape with homicide. Subsequently, the following information was filed:[4] That on or about the 17th day of October, 1996, in the afternoon, in barangay Guilig, Municipality of Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and armed with a bayonnete, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with Jennifer Domantay, a minor of 6 years old against her will and consent, and on the same occasion, the said accused with intent to kill, then and there, wilfully, unlawfully and feloniously stab with the use of a bayonnete, the said Jennifer Domantay, inflicting upon her multiple stab wounds, which resulted to her death, to the damage and prejudice of her heirs. At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl, Lorenzo, all surnamed Domantay, Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to establish its charge that accused-appellant had raped and killed Jennifer Domantay. Edward Domantay testified that in the morning of October 17, 1996, accused-appellant and his two brothers-in-law, Jaime Caballero and Daudencio Macasaeb, had a round of drinks in front of the latters house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that he was in front of Macasaebs house, tending to some pigeons in his yard. [5] After the group had consumed several bottles of San Miguel gin, accused-appellant gave money to Edward Domantay and asked him to buy two bottles of gin and a bottle of Sprite.[6] Edward said he joined the group and sat between Daudencio Macasaeb and accused-appellant.[7]Edward said that accusedappellant, who, apparently had one too many then, rolled up his shirt and said: No diad Antipolo tan L[i]pa et walay massacre, diad Guilig wala, walay massacren kod dia, walay onakis-akis (In Antipolo and Lipa, there were massacres; here in Guilig, there will also be a massacre. I will massacre somebody here, and they will cry and cry). Edward Domantay saw that tucked in the left side of accused-appellants waistline was a bayonet without a cover handle.[8] It was not the first time that Edward had seen accused-appellant with the knife as the latter usually carried it with him. [9] Jiezl Domantay, 10, likewise testified. She said that, at about 2 oclock in the afternoon on October 17, 1996, she and four other children were playing in front of their house in Guilig, Malasiqui, Pangasinan. Jiezl saw accused-appellant and Jennifer Domantay walking towards the bamboo grove of Amparo Domantay where Jennifers body was later found. Accused -appellant was about two meters ahead of Jennifer. The bamboo grove was about 8 to 10 meters from the house of Jiezl Domantay. [10]

Lorenzo Domantay, a relative of the victim, corroborated Jiezls testimony that accused -appellant had gone to Amparo Domantays bamboo grove in the afternoon of October 17, 1996. Lorenzo said that that afternoon, on his way to his farm, he saw accused-appellant about 30 meters away, standing at the spot in the bamboo grove where Jennifers body was later found. Accusedappellant appeared restless and worried as he kept looking around. However, as Lorenzo was in a hurry, he did not try to find out why accused-appellant appeared to be nervous.[11] Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of October 17, 1996, he was about to take his lunch at home in Alacan, a neighboring barangay about half a kilometer from Guilig, when accused-appellant implored Mejia to take him to Malasiqui at once. Mejia told accused-appellant that he was going to take his lunch first, but the latter pleaded with him, saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that accused-appellant was nervous and afraid. Accusedappellant later changed his mind. Instead of going to the town proper, he alighted near the Mormons church, outside Malasiqui. [12] In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who testified that, on separate occasions, accused-appellant had confessed to the brutal killing of Jennifer Domantay. SPO1 Espinoza testified that he investigated accused-appellant after the latter had been brought to the Malasiqui police station in the evening of October 17, 1996. Before he commenced his questioning, he apprised accused-appellant of his constitutional right to remain silent and to have competent and independent counsel, in English, which was later translated into Pangasinense.[13] According to SPO1 Espinoza, accused-appellant agreed to answer the questions of the investigator even in the absence of counsel and admitted killing the victim. Accused-appellant also disclosed the location of the bayonet he used in killing the victim. [14] On cross-examination, Espinoza admitted that at no time during the course of his questioning was accused-appellant assisted by counsel. Neither was accused-appellants confession reduced in writing.[15] Espinozas testimony was admitted by the trial court over the objection of the defense. Celso Manuel, for his part, testified that he is a radio reporter of station DWPR, an AM station based in Dagupan City. He covers the third district of Pangasinan, including Malasiqui. Sometime in October 1996, an uncle of the victim came to Dagupan City and informed the station about Jennifer Domantays case. [16] On October 23, 1996, Manuel went to Malasiqui to interview accusedappellant who was then detained in the municipal jail. He described what transpired during the interview thus:[17] PROS. QUINIT: Q A Q A Q A Q A .... PROS. QUINIT: Q A Q A You mentioned about accused admitting to you on the commi[ssion] of the crime, how did you ask him that? I asked him very politely. More or less what have you asked him on that particular matter? I asked Junior Otot, Bernardino Domantay, Kung pinagsisisihan mo ba ang iyong ginawa? Opo sabi niya, Ibig mo bang sabihin Jun, ikaw ang pumatay kay Jennifer?, Ako nga po. The [l]ast part of my interview, Kung nakikinig ang mga magulang ni Jennifer, ano ang gusto mong iparating?, kung gusto nilang makamtan ang hustisya ay tatanggapin ko. That is what he said, and I also asked Junior Otot, what was his purpose, and he said, it was about the boundary dispute, and he used that little girl in his revenge. Did you introduce yourself as a media practitioner? Yes, sir. How did you introduce yourself to the accused? I showed to Bernardino Domantay alias Junior Otot my I.D. card and I presented myself as a media practitioner with my tape recorder [in] my hand, sir. What was his reaction to your request for an interview? He was willing to state what had happened, sir. What are those matters which you brought out in that interview with the accused Bernardino Domantay alias Junior Otot? I asked him what was his purpose for human interests sake as a reporter, why did he commit that alleged crime. And I asked also if he committed the crime and he answered yes. Thats it.

On cross-examination, Manuel explained that the interview was conducted in the jail, about two to three meters away from the police station. An uncle of the victim was with him and the nearest policemen present were about two to three meters from him, including those who were in the radio room.[18] There was no lawyer present. Before interviewing accused-appellant, Manuel said he talked to the chief of police and asked permission to interview accused-appellant.[19] On questioning by the court, Manuel said that it was the first time he had been called to testify regarding an interview he had conducted.[20] As in the case of the testimony of SPO1 Espinoza, the defense objected to the admission of Manuels testimony, but the lower co urt allowed it. Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on October 25, 1996, testified that Jennifer Domantay died as a result of the numerous stab wounds she sustained on her back, [21] the average depth of which was six inches.[22] He opined that the wounds were probably caused by a pointed sharp-edged instrument.[23] He also noted contusions on the

forehead, neck, and breast bone of the victim. [24] As for the results of the genital examination of the victim, Dr. Bandonill said he found that the laceration on the right side of the hymen was caused within 24 hours of her death. He added that the genital area showed signs of inflammation.[25] Pacifico Bulatao, the photographer who took the pictures of the scene of the crime and of the victim after t he latters body was brought to her parents house, identified and authenticated the five pictures (Exhibits A, B, C, D, and E) offered by the pro secution. The defense then presented accused-appellant as its lone witness. Accused-appellant denied the allegations against him. He testified he is an uncle of Jennifer Domantay (he and her grandfather are cousins) and that he worked as a janitor at the Malasiqui Municipal Hall. He said that at around 1 oclock in the afternoon of October 17, 1996, he was bathing his pigs outside the house of his brother-in-law Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed that Daudencio was then having drinks in front of his (Macasaebs) house. Accused -appellant claimed, however, that he did not join in the drinking and that it was Edward Domantay, whom the prosecution had presented as witness, and a certain Jaime Caballero who joined the party. He also claimed that it was he whom Macasaeb had requested to buy some more liquor, for which reason he gave money to Edward Domantay so that the latter could get two bottles of gin, a bottle of Sprite, and a pack of cigarettes. [26] He denied Edward Domantays claim that he (accused-appellant) had raised his shirt to show a bayonet tucked in his waistline and that he had said he would massacre someone in Guilig.[27] Accused-appellant also confirmed that, at about 2 oclock in the afternoon, he went to Alacan passing on the trail beside the bamboo grove of Amparo Domantay. But he said he did not know that Jennifer Domantay was following him. He further confirmed that in Alacan, he took a tricycle to Malasiqui. The tricycle was driven by Joselito Mejia. He said he alighted near the Mormon church, just outside of the town proper of Malasiqui to meet his brother. As his brother did not come, accused-appellant proceeded to town and reported for work. That night, while he was in the Malasiqui public market, he was picked up by three policemen and brought to the Malasiqui police station where he was interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He denied having owned to the killing of Jennifer Domantay to SPO1 Espinoza. He denied he had a grudge against the victims parents because of a boundary dispute.[28] With respect to his extrajudicial confession to Celso Manuel, he admitted that he had been interviewed by the latter, but he denied that he ever admitted anything to the former. [29] As already stated, the trial court found accused-appellant guilty as charged. The dispositive portion of its decision reads: [30] WHEREFORE, in light of all the foregoing, the Court hereby finds the accused, Bernardino Domantay @ Junior Otot guilty beyond reasonable doubt with the crime of Rape with Homicide defined and penalized under Article 335 of the Revised Penal Code in relation and as amended by Republic Act No. 7659 and accordingly, the Court hereby sentences him to suffer the penalty of death by lethal injection, and to indemnify the heirs of the victim in the total amount of Four Hundred Eighty Thousand Pesos (P480,000.00), [31] and to pay the costs. SO ORDERED. In this appeal, accused-appellant alleges that:[32] I. THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL CONFESSION[S] MADE BY THE ACCUSEDAPPELLANT. II. THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. First. Accused-appellant contends that his alleged confessions to SPO1 Antonio Espinoza and Celso Manuel are inadmissible in evidence because they had been obtained in violation of Art. III, 12(1) of the Constitution and that, with these vital pieces of evidence excluded, the remaining proof of his alleged guilt, consisting of circumstantial evidence, is inadequate to establish his guilt beyond reasonable doubt.[33] Art. III, 12 of the Constitution in part provides: (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. .... (3) Any confession or admission obtained in violation of this section or section 17 hereof shall be inadmissible in evidence.

This provision applies to the stage of custodial investigation, that is, when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect.[34] R.A. No. 7438 has extended the constitutional guarantee to situations in which an individual has not been formally arrested but has merely been invited for questioning.[35] Decisions[36] of this Court hold that for an extrajudicial confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. In the case at bar, when accused-appellant was brought to the Malasiqui police station in the evening of October 17, 1996, [37] he was already a suspect, in fact the only one, in the brutal slaying of Jennifer Domantay. He was, therefore, already under custodial investigation and the rights guaranteed in Art. III, 12(1) of the Constitution applied to him. SPO1 Espinoza narrated what transpired during accused-appellants interrogation:[38] [I] interrogated Bernardino Domantay, prior to the interrogation conducted to him, I informed him of his constitutional right as follows; that he has the right to remain silent; that he has the right to a competent lawyer of his own choice and if he can not afford [a counsel] then he will be provided with one, and further informed [him] that all he will say will be reduced into writing and will be used the same in the proceedings of the case, but he told me that he will cooperate even in the absence of his counsel; that he admitted to me that he killed Jennifer Domantay, and he revealed also the weapon used [and] where he gave [it] to. But though he waived the assistance of counsel, the waiver was neither put in writing nor made in the presence of counsel. For this reason, the waiver is invalid and his confession is inadmissible. SPO1 Espinozas testimony on the alleged confessi on of accusedappellant should have been excluded by the trial court. So is the bayonet inadmissible in evidence, being, as it were, the fruit of the poisonous tree. As explained in People v. Alicando:[39] . . . 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 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 illegal obtained evidence taints all evidence subsequently obtained. We agree with the Solicitor General, however, that accused-appellants confession to the radio reporter, Celso Manuel, is admissible. In People v. Andan,[40]the accused in a rape with homicide case confessed to the crime during interviews with the media. In holding the confession admissible, despite the fact that the accused gave his answers without the assistance of counsel, this Court said:[41] [A]ppellants [oral] confessions to the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution. The Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. Accused-appellant claims, however, that the atmosphere in the jail when he was interviewed was tense and intimidating and was similar to that which prevails in a custodial investigation. [42] We are not persuaded. Accused-appellant was interviewed while he was inside his cell. The interviewer stayed outside the cell and the only person besides him was an uncle of the victim. Accusedappellant could have refused to be interviewed, but instead, he agreed. He answered questions freely and spontaneously. According to Celso Manuel, he said he was willing to accept the consequences of his act. Celso Manuel admitted that there were indeed some police officers around because about two to three meters from the jail were the police station and the radio room.[43] We do not think the presence of the police officers exerted any undue pressure or influence on accused-appellant and coerced him into giving his confession. Accused-appellant contends that it is . . . not altogether improbable for the police investigators to ask the police reporter (Manuel) to try to elicit some incriminating information from the accused. [44] This is pure conjecture. Although he testified that he had interviewed inmates before, there is no evidence to show that Celso was a police beat reporter. Even assuming that he was, it has not been shown that, in conducting the interview in question, his purpose was to elicit incriminating information from accusedappellant. To the contrary, the media are known to take an opposite stance against the government by exposing official wrongdoings. Indeed, there is no showing that the radio reporter was acting for the police or that the interview was conducted under circumstances where it is apparent that accused-appellant confessed to the killing out of fear. As already stated, the interview was conducted on October 23, 1996, 6 days after accused-appellant had already confessed to the killing to the police. Accused-appellants extrajudicial confession is corroborated by evidence of corpus delicti, namely, the fact of death of Jennifer Domantay. In addition, the circumstantial evidence furnished by the other prosecution witnesses dovetails in material points with his

confession. He was seen walking toward the bamboo grove, followed by the victim. Later, he was seen standing near the bamboo grove where the childs body was found. Rule 133 of the Revised Rules on Evidence provides: 3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. 4. Evidence necessary in treason cases. No person charged with treason shall be convicted unless on the testimony of two witnesses to the same overt act, or on confession in open court. Accused-appellant argues that it was improbable for a brutal killing to have been committed without the children who were playing about eight to ten meters from Amparo Domantays grove, where the crime took place, having heard any commotion. [45] The contention has no merit. Accused-appellant could have covered the young childs mouth to prevent her from making any sound. In fact, Dr. Bandonill noted a five by two inch (5 x 2) contusion on the left side of the victims forehead, which he said could have been caused by a hard blunt instrument or by impact as her head hit the ground. [46] The blow could have rendered her unconscious, thus precluding her from shouting or crying. Accused-appellant also contends that the testimony of Jiezl Domantay contradicts that of Lorenzo Domantay because while Jiezl said she had seen accused-appellant walking towards the bamboo grove, followed by the victim, at around 2 oclock in the afternoon on October 17, 1996, Lorenzo said he saw accused-appellant standing near the bamboo grove at about the same time. These witnesses, however, did not testify concerning what they saw at exactly the same time. What they told the court was what they had seen at around 2 oclock in the afternoon. There could have been a difference in time, however little it was, between the time Jiezl saw accused-appellant and the victim walking and the time Lorenzo saw accused-appellant near the place where the victims body was later found. Far from contradicting each other, these witnesses confirmed what each had said each one saw. What is striking about their testimonies is that while Jiezl said she saw accused-appellant going toward the bamboo grove followed by the victim at around 2 oclock in the afternoon on October 17, 1996, Lorenzo said he had seen accused -appellant near the bamboo grove at around that time. He described accused-appellant as nervous and worried. There is no reason to doubt the claim of these witnesses. Lorenzo is a relative of accused-appellant. There is no reason he would testify falsely against the latter. Jiezl, on the other hand, is also surnamed Domantay and could also be related to accused-appellant and has not been shown to have any reason to testify falsely against accused-appellant. At the time of the incident, she was only 10 years old. For the foregoing reasons, the Court is convinced of accused-appellants guilt with respect to the killing of the child. It is clear that the prosecution has proven beyond reasonable doubt that accused-appellant is guilty of homicide. Art. 249 of the Revised Penal Code provides: Any person who, not falling within the provisions of Article 246 [parricide] shall kill another without the attendance of any of the circumstances enumerated in the next preceding article [murder], shall be deemed guilty of homicide and be punished by reclusion temporal. The killing was committed with the generic aggravating circumstance of abuse of superior strength. The record shows that the victim, Jennifer Domantay, was six years old at the time of the killing. She was a child of small build, 46 in height.[47] It is clear then that she could not have put up much of a defense against accused-appellants assault, the latter being a fully grown man of 29 years. Indeed, the physical evidence supports a finding of abuse of superior strength: accused-appellant had a weapon, while the victim was not shown to have had any; there were 38 stab wounds; and all the knife wounds are located at the back of Jennifer s body. But we think the lower court erred in finding that the killing was committed with cruelty. [48] The trial court appears to have been led to this conclusion by the number of wounds inflicted on the victim. But the number of wounds is not a test for determining whether there was cruelty as an aggravating circumstance. [49] The test . . . is whether the accused deliberately and sadistically augmented the victims suffering thus . . . there must be proof that the victim was made to agonize before the [the accused] rendered the blow which snuffed out [her] life.[50] In this case, there is no such proof of cruelty. Dr. Bandonill testified that any of the major wounds on the victims back could have caused her death as they penetrated her heart, lungs and liver, kidney and in testines.[51] Second. There is, however, no sufficient evidence to hold accused-appellant guilty of raping Jennifer Domantay. Art. 335 of the Revised Penal Code, as amended, in part provides: ART. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented. As the victim here was six years old, only carnal knowledge had to be proved to establish rape. Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections with a woman. [52] For this purpose, it is enough if there was even the slightest contact of the male sex organ with the labia of the victims genitalia.[53] However, there must be proof, by direct or indirect evidence, of such contact. Dr. Ronald Bandonills report on the genital examination he had performed on the deceased reads:[54] GENITAL EXAMINATION; showed a complete laceration of the right side of the hymen. The surrounding genital area shows signs of inflamation. .... REMARKS: 1) Findings at the genital area indicate the probability of penetration of that area by a hard, rigid instrument. Hymenal laceration is not necessary to prove rape;[55] neither does its presence prove its commission. As held in People v. Ulili, a medical certificate or the testimony of the physician is presented not to prove that the victim was raped but to show that the latter had lost her virginity. Consequently, standing alone, a physicians finding that the hymen of the alleged victim was lacerated does not prove rape. It is only when this is corroborated by other evidence proving carnal knowledge that rape may be deemed to have been established.[57]
[56]

This conclusion is based on the medically accepted fact that a hymenal tear may be caused by objects other than the male sex organ[58] or may arise from other causes.[59] Dr. Bandonill himself admitted this. He testified that the right side of the victims hymen had been completely lacerated while the surrounding genital area showed signs of inflammation.[60] He opined that the laceration had been inflicted within 24 hours of the victims death and that the inflammation was due to a trauma in that area.[61] When asked by the private prosecutor whether the lacerations of the hymen could have been caused by the insertion of a male organ he said this was possible. But he also said when questioned by the defense that the lacerations could have been caused by something blunt other than the male organ. Thus, he testified:[62] PROS. F. QUINIT:
Q A Q A .... Now, what might have caused the complete laceration of the right side of the hymen, doctor? Well, sir, if you look at my report there is a remark and it says there; findings at the genital area indicated the probability of penetration of that area by a hard rigid instrument. Could it have been caused by a human organ? If the human male organ is erect, fully erect and hard then it is possible, sir.

ATTY. VALDEZ:
Q A Q A Q A Q A Q A .... In your remarks; finding at the genital area indicates the probability of penetration of that area by a hard rigid instrument, this may have also been caused by a dagger used in the killing of Jennifer Domantay is that correct? Well, sir when I say hard rigid instrument it should not be sharp pointed and sharp rigid, it should be a hard bl[u]nt instrument. Do you consider a bolo a bl[u]nt instrument, or a dagger? The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir. This Genital Examination showed a complete laceration of the right side of the hymen, this may have been possibly caused by a dagger, is it not? No, sir. I wont say that this would have been caused by a dagger, because a dagger would have made at its in cision . . . not a laceration, sir. But this laceration may also have been caused by other factors other the human male organ, is that correct? A hard bl[u]nt instrument, sir could show. My question is other than the human male organ? Possible, sir.

COURT:
Q A Q A Q A You mentioned that the hymen was lacerated on the right side? Yes, your Honor. And if there is a complete erection by a human organ is this possible that the laceration can only be on the right side of the hymen? Yes, your Honor, its possible. How about if the penetration was done by a finger, was it the same as the human organ? Well, it depends on the size of the finger that penetrat[es] the organ, if the finger is small it could the superficial laceration, and if the finger is large then it is possible your honor.

Q A

How about two fingers? Possible, sir.

To be sure, this Court has sustained a number of convictions for rape with homicide based on purely circumstantial evidence. In those instances, however, the prosecution was able to present other tell-tale signs of rape such as the location and description of the victims clothings, especially her undergarments, the position of the body when found and the like. [63] In People v. Macalino,[64] for instance, the Court affirmed a conviction for the rape of a two year-old child on the basis of circumstantial evidence:[65] The Court notes that the testimony or medical opinion of Dr. Gajardo that the fresh laceration had been produced by sexual intercourse is corroborated by the testimony given by complainant Elizabeth that when she rushed upstairs upon hearing her daughter suddenly cry out, she found appellant Macalino beside the child buttoning his own pants and that she found some sticky fluid on the childs buttocks and some blood on her private part. (Emphasis in the original) In contrast, in the case at bar, there is no circumstantial evidence from which to infer that accused-appellant sexually abused the victim. The only circumstance from which such inference might be made is that accused-appellant was seen with the victim walking toward the place where the girls body was found. Maybe he raped the girl. Maybe he did not. Maybe he simply inserted a blunt object into her organ, thus causing the lacerations in the hymen. Otherwise, there is no circumstance from which it might reasonably be inferred that he abused her, e.g., that he was zipping up his pants, that there was spermatozoa in the girl s vaginal canal. Indeed, the very autopsy report of Dr. Bandonill militates against the finding of rape. In describing the stab wounds on the body of the victim, he testified:[66] [A]fter examining the body I took note that there were several stab wounds . . . these were all found at the back area sir . . . extending from the back shoulder down to the lower back area from the left to the right. Considering the relative physical positions of the accused and the victim in crimes of rape, the usual location of the external bodily injuries of the victim is on the face,[67] neck,[68] and anterior portion[69] of her body. Although it is not unnatural to find contusions on the posterior side, these are usually caused by the downward pressure on the victims body during the sexual assault. [70] It is unquestionably different when, as in this case, all the stab wounds (except for a minor cut in the lower left leg) had their entry points at the back running from the upper left shoulder to the lower right buttocks. It is noteworthy that the deceased was fully clothed in blue shorts and white shirt when her body was brought to her parents house immediately after it was found.[71] Furthermore, there is a huge bloodstain in the back portion of her shorts. [72] This must be because she was wearing this piece of clothing when the stab wounds were inflicted or immediately thereafter, thus allowing the blood to seep into her shorts to such an extent. As accused-appellant would naturally have to pull down the girls lower garments in order to consummate the rape, then, he must have, regardless of when the stab wo unds were inflicted, pulled up the victims shorts and undergarments after the alleged rape, otherwise, the victims shorts would not have been stained so extensively. Again, this is contrary to ordinary human experience. Even assuming that Jennifer had been raped, there is no sufficient proof that it was accused-appellant who had raped her. He did not confess to having raped the victim. From the foregoing, we cannot find that accused-appellant also committed rape. In the special complex crime of rape with homicide, both the rape and the homicide must be established beyond reasonable doubt. [73] Third. The trial court ordered accused-appellant to pay the heirs of Jennifer Domantay the amount of P30,000.00 as actual damages. However, the list of expenses produced by the victims father, Jaime Domantay, only totaled P28,430.00. Of this amount, only P12,000.00 was supported by a receipt. Art. 2199 of the Civil Code provides that a party may recover actual or compensatory damages only for such loss as he has duly proved. Therefore, the award of actual damages should be reduced to P12,000.00. In addition, the heirs of Jennifer Domantay are entitled to recover exemplary damages in view of the presence of the aggravating circumstance of abuse of superior strength. Art. 2230 of the Civil Code provides for the payment of exemplary damages when the crime is committed with one or more aggravating circumstance. An amount of P25,000.00 is deemed appropriate.[74] In accordance with our rulings in People v. Robles[75] and People v. Mengote,[76] the indemnity should be fixed at P50,000.00 and the moral damages atP50,000.00.[77] WHEREFORE, the judgment of the trial court is SET ASIDE and another one is rendered FINDING accused-appellant guilty of homicide with the aggravating circumstance of abuse of superior strength and sentencing him to a prison term of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and ORDERING him to pay the heirs of Jennifer Domantay the amounts of P50,000.00, as indemnity, P50,000.00, as moral damages,P25,000.00, as exemplary damages, and P12,000.00, as actual damages, and the costs. SO ORDERED.

(7) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON TAN y VERZO, accused-appellant. [G.R. No. 117321. February 11, 1998] ROMERO, J.: May the confession of an accused, given before a police investigator upon invitation and without the benefit of counsel, be admissible in evidence against him? Accused-appellant Herson Tan, along with Lito Amido, were charged with the crime of highway robbery with murder before the Regional Trial Court, Branch 62, of Gumaca, Quezon Province, under an information [1] dated February 8, 1989, which reads as follows: That on or about the 5th day of December 1988, along the Maharlika Highway at Barangay Tinandog, Municipality of Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping each other, armed with bladed and pointed weapons, with intent to gain, by means of force, violence, threats and intimidation, did then and there wilfully, unlawfully and feloniously take, steal and carry away from one Freddie Saavedra, a Honda TMX motorcycle with a sidecar bearing Plate No. DW 9961 valued at THIRTY THOUSAND PESOS (P30,000.00) Philippine currency, belonging to the said Freddie Saavedra, to the damage and prejudice of the latter in the aforesaid amount; and that on the occasion of said robbery and by reason thereof, the said accused, with intent to kill, with evident premeditation and treachery, and taking advantage of their superior strength and in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously attack, assault and stab with the said weapon said Freddie Saavedra, thereby inflicting upon the latter multiple stab wounds on the different parts of his body, which directly caused his death. Contrary to law. On arraignment, the accused pleaded not guilty to the charge. The relevant facts established by the prosecution are as follows: On December 5, 1988, at about 7:00 oclock p.m., tricycle driver Freddie Saavedra went to see his wife, Delfa, at Our Lady of Angels Academy in Atimonan, Quezon, where the latter is a third year high school student, to inform her that he will drive both accused to Barangay Maligaya. It was the last time, however, that Freddie was seen alive. When the latter failed to return that evening, Delfa, as early as 4:30 oclock a.m. of December 6, 1988 inquired on his whereabouts from relatives and friends. In the course of such inquiry, a certain Arnel Villarama revealed that the lifeless body of her husband was discovered on the diversion road at Barangay Malinao in Atimonan. Forthwith, they proceeded to the said place and found him sprawled on the ground with fourteen stab wounds in different parts of his body. Meanwhile, relying on the information that an abandoned sidecar of a tricycle was sighted at Barangay Malinao, Lucena Philippine National Police (PNP) led by Lt. Carlos Santos proceeded to the scene of the crime and recovered a blue sidecar which they brought back with them to their headquarters. Subsequently, Lt. Santos, Cpl. Numeriano Aguilar and Pat. Rolando Alandy invited appellant in connection with the instant case and with respect to two other robbery cases reported in Lucena City. During their conversation, appellant allegedly gave an explicit account of what actually transpired in the case at bar. He narrated that he and coaccused Amido were responsible for the loss of the motorcycle and the consequent death of Saavedra. Moreover, he averred that they sold the motorcycle to a certain Danny Teves of Barrio Summit, Muntinlupa for a sum of P4,000.00. With the help of appellant as a guide, the Lucena PNP immediately dispatched a team to retrieve the same. After admitting that it was purchased from both the accused and upon failure to present any document evidencing the purported sale, Teves voluntarily surrendered it to the police who turned it over, together with the sidecar, to the Atimonan Police Station for safekeeping. Lt. Carlos, on cross-examination, testified that when he invited appellant to their headquarters, he had no warrant for his arrest. In the course thereof, he informed the latter that he was a suspect, not only in the instant case, but also in two other robbery cases allegedly committed in Lucena City. In the belief that they were merely conversing inside the police station, he admitted that he did not inform appellant of his constitutional rights to remain silent and to the assistance of counsel; nor did he reduce the supposed confession to writing.[2] Appellant, on the other hand, alleged that he had no participation in the offense charged and contended that his only involvement in the matter was the referral of accused Amido to Teves. He recounted that sometime in December 1988, Amido sought him at his house and told him that the motorcycle he was riding on was being offered for sale. Upon proof shown that it was indeed registered under Amidos name, he accompanied the latter to Manila on board the said motorcycl e and they approached Antonio

Carandang. The latter, thereafter, brought them to a certain Perlita Aguilar and Danilo Teves with whom the sale was finally consummated. He allegedly received P150.00 as his commission. Amido presented alibi as his defense. He alleged that although a tricycle driver by occupation, he was at Barangay Malusak, Atimonan on the day in question, some seven kilometers from the town, busy assisting in the renovation of his mothers house. He narrated that the victim was his friend and, therefore, he could not have participated in the gruesome death of the latter. In a decision dated April 21, 1994, the trial court convicted appellant, the dispositive portion of which reads: WHEREFORE, premised in the foregoing considerations, this Court finds Herson Tan GUILTY beyond reasonable doubt of the crime of Highway Robbery with Murder and hereby sentences him to suffer an imprisonment of RECLUSION PERPETUA. He is further ordered to indemnify the family of the deceased in the amount of Thirty Thousand Pesos (P30,000.00). Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of the charges against him and the Provincial Warden of Quezon, Provincial Jail, Lucena City, is hereby ordered to release from custody the person of said Lito Amido, unless he is being detained thereat for some other lawful cause. SO ORDERED.[3] Appellant assails the finding of conviction despite failure of the prosecution to positively identify him as the culprit of the crime and to present clear and convincing circumstantial evidence that would overcome his innocence. In light of the above facts and circumstances, the appealed decision is set aside and appellant acquitted on the ground that his constitutional rights were violated. It is well-settled that the Constitution abhors an uncounselled confession or admission and whatever information is derived therefrom shall be regarded as inadmissible in evidence against the confessant. Article III, Section 12, paragraphs (1) and (3) of the Constitution provides: x x x 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 b e inadmissible against him. Republic Act No. 7438 (R.A. No. 7438),[4] approved on May 15, 1992, reenforced the constitutional mandate protecting the rights of persons under custodial investigation, a pertinent provision[5] of which reads: As used in this Act, custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed , without prejudice to the liability of the inviting officer for any violation of law. Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. The rules on custodial investigation begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to focus a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that tends itself to eliciting incriminating statements that the rule begins to operate.[6] Furthermore, not only does the fundamental law impose, as a requisite function of the investigating officer, the duty to explain those rights to the accused but also that there must correspondingly be a meaningful communication to and understanding thereof by the accused. A mere perfunctory reading by the constable of such rights to the accused would thus not suffice. [7] Under the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.[8] While the Constitution sanctions the waiver of the right to counsel, it must, however , be voluntary, knowing and intelligent, and must be made in the presence and with the assistance of counsel. [9] To reiterate, in People v. Javar,[10] it was ruled therein that any

statement obtained in violation of the constitution, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. The records of this case do not indicate that appellant was assisted by counsel when he made such waiver, a finding evident from the testimony of Lt. Santos on cross-examination, thus: Q A Q A Q A Q A Q A Q A Q A Now, when you brought Herson Tan to the Headquarters, did you tell him that he is one of the suspects in the robbery slain (sic) that took place in Atimonan on December 5, 1988? Yes, sir, and he was also suspect to the robbery case which was investigated at Lucena Police Station. There were two (2) cases which were investigated on Herson Tan. Now, so in addition to the Atimonan case, you also took Herson Tan to your custody in connection with another case that happened in Lucena? Yes, sir. And you happened to have Herson Tan in your list as suspect in both cases because Herson was previously incarcerated at Lucena City Jail in connection with a certain case, is it not? Yes, sir. Just for curiosity sake, you invited him in your headquarters, is that what happened in this case? Yes, sir. And it just happened that without applying third degree to him he gave you that information? Yes, sir. Did you notify him of his constitutional right to counsel before you propounded questions to him? No, sir, because we are asking question only to him. Before propounding question or information you sought to elicit from him, did you inform him of his constitutional right not to testify against himself because he is a suspect in these two (2) cases? No, sir, because we were just conversing.[11] (Underscoring supplied)

The evidence for the prosecution shows that when appellant was invited for questioning at the police headquarters, he allegedly admitted his participation in the crime. This will not suffice to convict him, however, of said crime. The constitutional rights of appellant, particularly the right to remain silent and to counsel, are impregnable from the moment he is investigated in connection with an offense he is suspected to have committed, even if the same be initiated by mere invitation. This Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of government.[12] What remains of the evidence for the prosecution is inadequate to warrant a conviction. Considering the circumstances attendant in the conduct of appellants investigation which fell short of compliance with constitutional safeguards, we are constrained to acquit the appellant. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Gumaca, Quezon (Branch 62) is REVERSED and SET ASIDE. Appellant HERSON TAN y VERZO is hereby ACQUITTED of the crime charged and his immediate release from confinement is hereby ordered, unless there is any other lawful cause for continued detention. Costs de oficio. SO ORDERED.

(8) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RANILLO PONCE HERMOSO alias ALLAN,accusedappellant. [G.R. No. 130590. October 18, 2000] Per Curiam: For review is the decision[1] of the Regional Trial Court, Branch 19, Pagadian City, finding accused-appellant Ranillo Ponce Hermoso, alias Allan, guilty of rape with homicide and sentencing him to suffer the penalty of death with all the accessory penalties prescribed by law and to indemnify the heirs of the victim, Glery P. Geoca, in the amount of P500,000.00 as actual damages, P750,000.00 as moral damages, andP500,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency. The amended information[2] against accused-appellant alleged That on June 2, 1996 at about 9:30 oclock in the evening at Barangay Little Baguio, Municipality of Imelda, Province of Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Glery Geoca, a minor, seven (7) years of age, against the latters will and on said occasion and by reason of the rape, the said Glery Geoca died as a re sult of personal violence inflicted upon her by the accused. Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659. On September 11, 1996, accused-appellant, assisted by counsel, was arraigned during which the information was read to him in the Cebuano dialect which he confirmed to have understood. He then entered a plea of not guilty. He was informed by the trial court of the names of the five prosecution witnesses and their respective addresses. Then the case was tried. The prosecution presented six witnesses, namely, Josephine Gonzales, Naciansino Hermoso, Sonny Boy Altamera, Joveniano Pansacala, Ireneo Geoca, father of the victim, and Dr. Atilano A. Ocampos, Chief of Hospital I of the Alicia District Hospital in Alicia, Zamboanga del Sur. The prosecution also offered the following object and documentary evidence, to wit: the wallet (Exh. A) of accused-appellant containing his personal identification, such as Social Security System I.D. Card No. 0462677-7 (Exh. B), a photocopy of his SSS personal record (Exh. D), and his Community Tax Certificate No. 18046043 (Exh. E); five sweepstakes tickets bearing No. 236458 with April 21, 1996 as draw date (Exh. C); a picture of Miss Limpac (Exh. F), niece of Naciansino Hermoso, with a dedication at the back of the picture reading Love, take care, good health, good luck, God Bless You; a small picture (Exh. G); another picture (Exh. H); a picture of accused-appellants younger sister (Exh. I) a picture of his younger brother named Benjie (Exh. J); a group pictur e (Exh. K); and two coins (Exh. L) - a P1.00 coin and a P0.10 coin; the birth certificate of the victim Glery P. Geoca (Exh. M, with submarkings) showing her date of birth as September 12, 1988; and a Certification issued by Dr. Atilano A. Ocampos (Exh. N and its sub-markings) on the postmortem examination conducted on the victim. The prosecution evidence shows the following: At about 6:00 p.m. of June 2, 1996, Ireneo Geoca, father of the victim Glery P. Geoca, became worried as his daughter had not come home from the Little Baguio Elementary School in Imelda, Zamboanga del Sur where she was in Grade II. Ireneo Geoca sent his other daughter Girlie Geoca to look for the victim. When the victim failed to be home at 7:00 p.m., Ireneo Geoca sought the help of the barangay officials and his neighbors.[3] In response, Barangay Captain Sonny Boy Altamera organized a search team composed of barangay tanods and other civilians.On their way to look for Glery, Altamera and his party met Josephine Gonzales who told them that she saw the victim in the company of accused-appellant at about 5:30 p.m. of that day as they passed by her house. The two were walking toward the house of one Helen Dabasol, according to the witness. Altamera was likewise informed by Lilia Bartido, who owned a nearby store, that she saw accused-appellant handing some candies to the victim at about 6:00 p.m. of that day. [4] Altamera and his party, therefore, proceeded to the house of accused-appellant where he met Federico Hermoso, father of the accused-appellant. Altamera informed the elder Hermoso that Glery was missing and that she was last seen with his son. Altamera was allowed inside the house but he did not find accused-appellant. He later found accused-appellant under a tree, about 10 meters away from the house. Accused-appellant denied knowledge of the whereabouts of the missing girl. At about 9:30 a.m., with the consent of his family, accused-appellant was taken by Altamera to his house. Accused-appellant was accompanied by Federico Hermoso, Ernesto Pardillo, Jave Tamac, and some neighbors.[5] At about 12:30 a.m. of June 3, 1996, Naciansino Hermoso and his group went to the house of Altamera bringing with them a mans wallet, which Naciansino said he found on a grassy area in Barangay Little Baguio. The wallet contained, among other things, accused-appellants SSS identification card, a photocopy of his SSS personal record, his Community Tax Certificate No. 18046043, five sweepstakes tickets, pictures of accused-appellants younger brother and sister, and two coins.[6] Naciansino turned over the

wallet and its contents to Barangay Captain Altamera. Upon seeing his wallet, accused-appellant admitted raping and killing Glery P. Geoca and pointed out the place where the body of the victim could be found, which is about 200 meters away from where the wallet was discovered. A team led by Joveniano Pansacala found the body of the victim at about 1:00 a.m. of that day. The body showed signs that Glery had been subjected to violence and raped. Accused-appellant was thereafter turned over to the police. In the meantime, upon instructions of the mayor, the body of the victim was examined.[7] Per her Certificate of Death,[8] the cause of Glery P. Geocas death was card io-respiratory failure, the antecedent cause was rape and the underlying cause was asphyxia by strangulation. Dr. Atilano A. Ocampos, who conducted an autopsy on the body on June 3, 1996, found the following:
= Multiple punctuate hematoma temporal right, abrasions inner canthi, bilateral; hematoma 8 inches in length, 1 inch in width, semi-circular, temporofrontal area, face left, extending to the zygomztic area; multiple abrasions of buccal mucosa upper and lower lips = Multiple abrasions 1x1 in diameter, average, neck = Circular hematoma 2x3 in diameter, bilateral, mammary glands = Massive hematoma 3x3 in diameter, circular, lateral arm left; linear abrasions multiple, forearm right = Abrasion 1 centimeter diameter 5th finger, left, dorsum = Multiple abrasion lateral and medial aspect upper extending right = Hematoma massive vulva and mons pubis = Hematoma moderate 2 in number anterior thigh, right = Hematoma 1x 1 in diameter middle anterior shin, left = Linear abrasion 1 inch postero-lateral, level of the 10th posterior rib = Linear abrasion 6 inches in length running oblique lumbo-sacral area, posterior =Massive hematoma 4 inches in diameter level of the 10th thoracic vertebrae =Hematoma labia minora right upper quadrant = Laceration, entroitus, ruptured hymen = Hematoma cervix left, laceration vaginal canal right[9]

Dr. Ocampos testified that the body was in a state of rigor mortis when he examined it. The victim sustained contusions and multiple hematoma and was thereafter choked to death. He opined that the hymenal laceration could have been caused by pressure or trauma such as sexual intercourse.[10] After the prosecution had offered its testimonial and documentary evidence, accused-appellant filed a demurrer to which the prosecution filed a reply. On January 9, 1997, the trial court denied accused-appellants demurrer to evidence for lack of merit. On March 17, 1997, the defense manifested in open court that accused-appellant was changing his plea from not guilty to guilty. Defense counsel Atty. Pablito Pielago, Jr. informed the trial court that he had prepared for trial but accused-appellant insisted on changing his plea even after being told of the consequences of pleading guilty to the charge, including the probability that he would be sentenced to death should he be found guilty. Accordingly, the trial court issued an order on the same day stating: When the above-entitled case was called for continuation of trial for the purpose of presenting evidence of accused Ranillo Ponce Hermoso alias Allan, Prosecutor Edilberto Absin appeared for the state in collaboration with private prosecutor Atty. Marcial Empleo, while Atty. Pablito Pielago, Jr., appeared as counsel de oficio for the accused. In open court, Atty. Pablito Pielago, Jr., Manifested that the accused has intimated to him on his desire to change his plea of Not Guilty to one of GUILTY. When asked by the Court whether he has explained to the accused of the seriousness of the crime he is charged, Atty. Pablito Pielago, Jr., confirmed to the Court that he has explained in detail to the accused on the seriousness of the charge he is facing, but he still insisted on his desire to admit his guilt. In fact, according to Atty. Pielago, he went to the extent of telling the accused that it is possible that the Court may render the penalty of death, but accused insisted on his desire to change his plea of Not Guilty to one of Guilty. With such manifestation of Atty. Pielago, the Court called on the accused and asked him through the interpreter in Cebuano d ialect, which he confirmed to have known and understood, on his desire to change his plea of Not Guilty to one of Guilty, and in open court, in the presence of his counsel, the public prosecutor and the private prosecutor, accused voluntarily admitted his guilt of the charge filed against him in this case. WHEREFORE, with such desire of the accused to change his plea from Not Guilty to one of Guilty, let him be arraigned anew. SO ORDERED.[11] The defense then informed the court that it was not presenting any evidence, for which reason the case was considered submitted for decision. On June 10, 1997, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, this Court hereby finds accused RANILO PONCE HERMOSO alias Allan guilty beyond reasonable doubt of the crime of RAPE WITH HOMICIDE, and sentences him to the ultimate penalty of DEATH, with all the accessory penalties prescribed

by law, and orders him to pay the heirs of Glery Geoca the sum of P500,000.00 as actual damages, P750,000.00 as moral damages and P500,000.00 as exemplary damages without subsidiary imprisonment in case of insolvency. No pronouncement as to costs. SO ORDERED.[12] Pursuant to Rule 122, section 10 of the Rules on Criminal Procedure, the case was elevated to this Court for automatic review in view of the imposition of the death penalty on accused-appellant. Accused-appellant maintains that, based on the evidence of the prosecution, his guilt has not been shown beyond reasonable doubt.Reiterating the grounds for his demurrer to the evidence, he contends that while Josephine Gonzales said she saw the victim and accused-appellant and other children pass by her house as they went towards the house of her neighbor Helen Rabasol, there was no testimony showing that he was the perpetrator of the crime. Accused-appellant also denies the testimony of Naciansino Hermoso who claimed to have found the wallet belonging to accused-appellant while looking for Glery P. Geoca. Accused-appellant avers that the wallet does not constitute direct evidence to link him to the crime. Naciansino Hermoso and accused-appellants father are brothers. Accused-appellant claims that Naciansino had a grudge against accused-appellants father because the latter had been occupying and cultivating the agricultural land of their parents to the exclusion of Naciansino. Accused-appellant alleges that Naciansino sought revenge towards accused-appellants father by testifying against accused-appellant. Accused-appellant alleges that the testimonies of Joveniano Pansacala, Dr. Atilano A. Ocampos, and Ireneo Geoca are hearsay evidence and do not prove his guilt. He argues that his confession is inadmissible in evidence because it was given without counsel while he was under custodial investigation by Barangay Captain Sonny Boy Altamera. These contentions are without merit. To be sure, a perusal of the records show that the trial court accepted accused-appellants plea of guilty to a capital offense without making a searching inquiry to determine whether he understood the consequences of his plea. This is contrary to Rule 116, section 3 of the Rules on Criminal Procedure which makes it the duty of the court, when an accused pleads guilty to a capital offense, to undertake the following: (1) conduct a searching inquiry into the voluntariness of the plea and the accuseds comprehensio n of the consequences thereof; (2) require the prosecution to prove the guilt of the accused and the precise degree of his culpability; and (3) ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires. [13] To constitute a searching inquiry, the questioning must focus on (1) the voluntariness of the plea, and (2) whether the accused understood fully the consequences of his plea.[14] The judge must be convinced that in pleading guilty, the accused is truly guilty by requiring the accused to narrate the events leading to the crime, making him re-enact it, or asking him to supply missing details. In the present case, the records show that the trial court did not observe these safeguards to ensure that the plea of guilty is not improvidently made. There was no affidavit presented nor statement made in court to show why accused-appellant changed his plea from Not guilty to guilty.The records merely contain an order, dated March 17, 1997, [15] allowing accused-appellant to be arraigned anew, the Certificate of Arraignment, dated March 17, 1997, [16] and the order, likewise dated March 17, 1997, making accused-appellants plea of guilt of record. This last order states: Accused Ranillo Ponce Hermoso alias Allan having manifested in court duly assisted by his counsel to change his plea of Not Guilty to one of Guilty, the Court arraigned him anew by reading the Information in Cebuano dialect, and in open court, duly assisted by Atty. Pablito Pielago, Jr., his counsel de oficio, accused entered the plea of Guilty, changing in effect his original plea of Not Guilty. WHEREFORE, in view of the foregoing, and the Court hav ing been satisfied on the voluntariness of the change of plea of Guilty from one of Not Guilty by accused Ranillo Ponce Hermoso, consider the above-entitled case as deemed submitted for decision. SO ORDERED.[17] In the case of People vs. Nadera,[18] we explained the importance of the trial court conducting a searching inquiry, thus: The warnings given by the trial court in this case fall short of the requirement that it must make a searching inquiry to de termine whether accused-appellant understood fully the import of his guilty plea. As has been said, a mere warning that the accused faces the supreme penalty of death is insufficient. (People v. Estomaca, 326 Phil. 429 (1996)). For more often than not, an accused pleads guilty upon bad advice or because he hopes for a lenient treatment or a lighter penalty.The trial judge must erase such mistaken impressions. (People v. Bello, G.R. Nos. 130411-14, October 13, 1999) He must be completely convinced that the guilty plea made by the accused was not made under duress or promise of reward. The judge must ask the accused the manner the latter was arrested or detained, and whether he was assisted by counsel during the custodial and preliminary investigations. In addition, the defense counsel should also be asked whether he conferred with the accused and completely explained to him the meaning and the consequences of a plea of guilt. Furthermore, since the age, educational attainment and socio-economic status of the accused may reveal insights for a

proper verdict in the case, the trial court must ask questions concerning them. (People v. Estomaca, supra)In this case, absent any showing that these questions were put to accused-appellant, a searching inquiry cannot be said to have been undertaken by the trial court. However, although accused-appellants plea of guilty was improvidently made, there is no need to remand the case to the lower court for the reception of evidence in view of the fact that there exists other evidence on which accused-appellants conviction may be based. Independently of his plea, there is sufficient evidence showing that accused-appellant indeed committed the crime with which is charged. First. In the absence of eyewitnesses to the crime, a case of rape with homicide poses difficulty of proving by direct evidence the culpability of the accused because the victim can no longer testify. In such a case, the evidence necessarily must be circumstantial.[19] Under Rule 133, section 4 of the Rules on Evidence, circumstantial evidence is sufficient to sustain a conviction 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 circumstances is such as to produce conviction beyond reasonable doubt. [20] As has been said, facts and circumstances consistent with guilt and inconsistent with innocence constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.[21] In this case, there is circumstantial evidence pointing to accused-appellant as the author of the crime of rape with homicide, to wit: 1. Accused-appellant was seen with the victim Glery P. Geoca by Josephine Gonzales and Lilia Bartido between 5:30 to 6:00 p.m. of June 2, 1996; 2. A wallet belonging to accused-appellant and containing the latters identification cards and other personal effects was found near the scene of the crime; 3. The body of the victim was found at about 1:00 a.m. of June 3, 1996 at the exact location pointed by accused-appellant; 4. The grass in the place where the accused-appellants wallet was found had been trampled upon as if there was a fight of pigs (maora ug gibugno-an ug baboy), suggesting that a struggle took place between the accused -appellant and the victim, as a result of which accused-appellant dropped his wallet; 5. The postmortem examination conducted by Dr. Atilano A. Ocampos at 6:30 p.m. of June 3, 1996 showed hematoma and abrasions on different parts of the victims body indicating that she had been strangled and lacerations on her hymen indicat ing that she had been sexually abused. Second. Accused-appellant confessed to Barangay Captain Sonny Boy Altamera that he had raped and killed the victim. Accused-appellant contends, however, that his confession before Barangay Captain Altamera is inadmissible. Article III, section 12 of the Constitution provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to rema in 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 th e 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 Section 17 shall be inadmissible in evidence against him. The question in this case is whether the confession given to the barangay captain was made while accused-appellant was under custodial interrogation. It will be recalled that accused-appellant had been pointed to by Josephine Gonzales and Lilia Bartido as the person Glery P. Geoca was with shortly before the latter disappeared. Accordingly, the barangay captain and his men looked for him in his house and, when they did not find him there, they continued their search until they found him under a tree. When they finally found him, they interrogated him in his house and, failing to get anything from him, took him to the barangay captains house where they continued questioning him. There, Naciansino produced a mans wallet containing the personal effe cts of accused-appellant. At that point, accused-appellant broke down and confessed to the crime. The investigation had thus ceased to be a general exploratory investigation of an unsolved crime. It had begun to focus on the guilt of accused-appellant so much so that he was no longer allowed to leave. This case therefore comes within the purview of Article III, section 12, paragraph (1). It is distinguishable from cases in which we found the confession to have been given under circumstances not constituting custodial interrogation. In People vs. Andan,[22] the confession of the accused which he gave to the municipal mayor was held to be admissible in evidence because it was shown that the mayor was a confidant of the accused and he did not act as a law enforcement officer when he heard the confession of the accused. We held that constitutional procedures on custodial investigation do not apply to a spontaneous

statement not elicited through questioning by the authorities but given in an ordinary manner whereby the accused orally admit having committed the crime. In another case, People vs. Marra,[23] the accused, a security guard of the Lindas Ihaw-Ihaw restaurant, was charged with murder. A policeman, who received a report of a shooting incident, proceeded to the scene of the crime together with three other officers. They found the accused in a restaurant. When they asked whether he was the security guard of the restaurant, he answered in the affirmative. After answering several questions, he told the policemen that he was the security guard pointed to by a witness; that his tour of duty was from 7:00 p.m. of the preceding day to 6:00 a.m. of the following day; that he was on duty at around 2:30 a.m. of March 7, 1992 when the victim was shot; and that the firearm issued to him was in his house. Upon the request of the policemen to see the firearm, he took them to his house and showed them a .38 caliber revolver which he took from inside an aparador. The revolver had five bullets and one spent shell. The policemen smelled gunpowder from the barrel of the gun. They asked accused when he last fired the gun but the latter denied he ever did so. Then a police investigator asked him point-blank why he shot the victim. At first the accused denied the accusation, but when told that someone saw him shoot the victim, he admitted having done so although he claimed he had acted in self-defense. In that case, we ruled that the confession made by the accused was admissible because the inquiry had not yet reached a stage wherein the police considered the accused as a particular suspect. The police were just looking into a number of possibilities, having been merely informed that the suspect was wearing what could be a security guards uniform. The case at bar is a far cry from these cases. As accused-appellants confession was made without the assistance of counsel, we hold that it is inadmissible in evidence under Article III, section 12, paragraphs (1) and (3) of the Constitution. However, it appears that the defense failed to object, as required by Rule 132, section 36, immediately when Altamera was presented as a witness for the prosecution or when specific questions concerning the confession were asked. Having failed to do so, accused-appellant is deemed to have waived his right to object to the inadmissibility of Altameras testimony. It is noteworthy that accused-appellants confession is corroborated by the corpus delicti. He in fact was even the one who informed the search team of the exact location where the body of the victim could be found. It is not necessary that an eyewitness should testify on having seen the accused committing the crime or seeing him under circumstances indicating that he committed the crime in order to hold the accused liable under his own confession. [24] Third. Nor was it shown that the prosecution witnesses, particularly Barangay Captain Altamera and his men, had any ill motive to testify falsely against accused-appellant. In fact, the father of accused-appellant was the kumpadre of Altamera.[25] Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.[26] The trial judges evaluation of the testimony of witnesses is generally accorded not only the highest degree of respect but also finality, unless some circumstances of weight and substance, which could change the result of the case, have been ignored or misunderstood. As the trial judge had the opportunity to observe the witness on the stand, he was in a vantage position to assess his demeanor and determine whether or not he was telling the truth. [27] Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides that, when by reason or on the occasion of the rape of a woman under 12 years of age, a homicide is committed, the penalty shall be death. Being a single indivisible penalty an the only penalty prescribed by law for the crime of rape with homicide, the Court is constrained to apply the same regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime in accordance with Article 63 of the Revised Penal Code. Four (4) Members of the Court, although maintaining their adherence to the separate opinions in People vs. Echegaray[28] that R.A. No. 7659, insofar as it prescribed the penalty of death, is unconstitutional, nevertheless submit to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed. With respect to the civil liability of accused-appellant, the trial court awarded the heirs of the victim P500,000.00 as actual damages, P750,000.00 as moral damages, and P500,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency. These awards are excessive. In accordance with our current rulings,[29] the indemnity for the death of the victim Glery P. Geoca should be P100,000.00. On the other hand, the award of P750,000.00 as moral damages must be reduced to P50,000.00, also in line with recent cases.[30] Moral damages are awarded to the heirs of the victim in a criminal proceeding by reason of the death of the victim as a consequence of the rape without the need for pleading or proving the basis thereof. The purpose of the award is not to enrich the heirs of the victim but to compensate them for the injuries to their feelings. Finally, the award of P500,000.00 for exemplary damages must be disallowed, there being no aggravating circumstances which attended the commission of the crime.[31] WHEREFORE, the decision of the Regional Trial Court, Branch 19, Pagadian City finding accused-appellant Ranillo Ponce Hermoso, alias Allan, guilty of rape with homicide and sentencing him to suffer the penalty of death is AFFIRMED with the MODIFICATION that accused-appellant is ordered to indemnify the heirs of the victim Glery P. Geoca in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages. In accordance with Section 25 of R.A. No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED.

(9) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HENRY JUNGCO y SANTIAGO, EDUARDO PALENCIA y GALLO, ORLANDO ORTEGA y MALINIA, RAFAEL ZARAGOZA y DE IA CRUZ, and ROLANDO AGUILAR y SOMBRA, defendants, RAFAEL ZARAGOSA y DE LA CRUZ and EDUARDO PALENCIA y GALLO, defendantsappellants. [G.R. No. 78531 June 22, 1990] PADILLA, J.: This is an appeal interposed by the accused Rafael Zaragosa y De la Cruz and Eduardo Palencia y Gallo from the judgment * rendered in Criminal Case No. 17280 of the Regional Trial Court of Caloocan City, finding them and their co-accused Henry Jungco y Santiago, Orlando Ortega y Malinia, and Rolando Aguilar y Sombra, 1 guilty of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of reclusion perpetua, with the accessory penalties provided for by law, to indemnify the heirs of the deceased Dr. Lutgarda Rivera, jointly and severally, in the amounts of P30,000.00, as death indemnity, P30,000.00 as actual damages, and P50,000.00, by way of lost earnings, without subsidiary imprisonment in case of insolvency, and to pay the costs. The incriminatory facts of the case, according to the Solicitor General, are as follows: On December 20, 1981, at about 3:00 o'clock in the afternoon, Patrolman Eddie Regalado of the Northern Police District was in Women's Club Street, Malabon, Metro Manila conducting a surveillance on the group of accused Rafael Zaragoza, Henry Jungco, Orlando Ortega, Rolando Aguilar and Eduardo Palencia, as part of his assignment to monitor the drug pushing activities of the bystanders in the said area (pp. 6-9, 7-9, tsn, Aug. 23, 1983). At that time all the accused were at the store drinking beer near the drugstore owned by Dr. Lutgarda Rivera (pp. 8-9, tsn, Ibid). One of them was holding a wrapped newspaper more or less twelve (12) inches long and one (1) inch in diameter (p. 9, Ibid). All the while that Regalado was watching the accused, he was standing in front of the drugstore of Dr. Rivera (p. 7, Ibid). Later, at around 4:35 o'clock in the afternoon, the accused finished their beer and then proceeded to the drugstore of Dr. Rivera which is located at the Women's Club Street, Malabon. When they reached the drugstore, Rolando Aguilar was left in front of the drugstore standing, while the four accused were inside the drugstore (p. 12, Ibid). Regalado then left the place and went to the nearby police outpost to take a rest (p. 11,Ibid). In a short while a person came to him (Regalado) and told him that there was a killing committed in the drugstore of Dr. Rivera (p. 11, Ibid). He hurriedly went to the scene and found the dead body of Dr. Rivera prostrate on the floor (ibid). Immediately, he asked the sidewalk vendors that gathered around the drugstore if they have seen persons that came out from the store of Dr. Rivera (p. 11, Ibid). One of the sidewalk vendors said that he saw five male persons hurriedly left the drugstore of the deceased (p. 35, Ibid). Patrolman Eddie Regalado then relayed the information he gathered from the sidewalk vendor to Sgt. Dante Buenaventura who arrived at the scene together with Patrolman Leopoldo Simangan (p. 13, Ibid; p. 6, tsn, Sept. 6, 1983). Thereupon, they (Pat. Regalado, Sgt. Dante Buenaventura and members of the Anti-Organized Task Force) proceeded to arrest Henry Jungco and Orlando Ortega in their residence at Tambak, Navotas, Malabon (pp. 6-7, 11, tsn, Sept. 6, 1983; p. 14, tsn, Aug. 23, 1983). On the other hand, accused Rafael Zaragosa and Eduardo Palencia were apprehended inside Hulo Market, while Rolando Aguilar was arrested the following day by members of the other elements of the Malabon Police Force (pp- 11-12, tsn, Sept. 6, 1983). At the Malabon Police Station, Patrolman Leopoldo Simangan conducted the investigation of the five accused. In said investigation, after the accused were duly apprised of their constitutional rights by Pat. Simangan, they executed and signed their respective sworn statements (Exhibits I, J, K and L, pp. 8-17, records; pp. 12-19, tsn, Sept. 6, 1983), except Henry Jungco who invoked his right to remain silent (p. 13, tsn, Ibid). Ortega and Palencia admitted having stabbed the victim several times on the body with the use of an icepick and having ransacked the cash register of the drugstore and that they thereafter fled away (Exhibits I, L, pp. 8-10, 15, 17, record). After their statements were taken down they (Rafael Zaragosa, Henry Jungco, Eduardo Palencia, Rolando Aguilar and Orlando Ortega) were brought to Assistant Fiscal Eduardo Manalaysay where they swore to the truthfulness of their confessions (Exhibits 1, J, K and L, Ibid; pp. 1219, tsn, Ibid). On December 23, 1981, the police investigators conducted a reenactment of the crime at the place of the incident (pp-20-21, tsn, Ibid). Present at time were the Mayor of Malabon Maynardo Espiritu, Station Commander Alfredo Cruz, Deputy Station Commander Julio Duenas, Lt. Daniel B. Cruz and a People's Journal Reporter Bernie Razon and hundreds of other people surrounding the vicinity (p. 21, tsn, Ibid). Before Regalado started the re-enactment, he informed again the accused of their constitutional rights, but nonetheless all the accused willingly participated in the re-enactment (p. 24, tsn, Ibid). Pictures of the re-enactment then were taken (Exhibits N to N24, pp. 22-30, tsn, Ibid). As depicted in the pictures of the re-enactment, accused Henry Jungco, Eduardo Palencia and Orlando

Ortega Went to the drugstore of the victim Dr. Lutgarda Rivera to buy cough syrup (Exhibit N, p. 26, tsn, Ibid). The victim, however, refused to sell them Ornacol cough syrup (p. 26, tsn, Ibid). A heated argument then ensued between Ortega and the victim (pp. 26-27, Ibid). In the course of the argument, Ortega pulled out an improvised dagger and stabbed the victim hitting her on the body (Exh. N-1 2, p. 27, tsn, Ibid). Palencia then entered the store and likewise stabbed the victim with an icepick (Exh. N-13, Ibid). Seeing what happened, Jungco grabbed the icepick and dagger from the hands of Palencia and Ortega and without any hesitation stabbed the victim three times with the use of an icepick (Exhs. N-14 to N-17, p. 28, Ibid). Then Jungco and Ortega pulled down the body of the victim (Exh. N-19, p. 29,Ibid), while Palencia proceeded to ransack the cash register of the victim and take the money found therein (Exh. N-23, p. 30, Ibid). On December 21, 1981, Dr. Alberto M. Reyes, NBI Supervising Medico-Legal Officer, performed the post mortem examination on the cadaver of Dr. Lutgarda Rivera (Exhibit E, pp. 6-7, 13- 20, tsn, July 12, 1983). According to his findings, the victim sustained eleven (11) stabbed wounds caused by a sharp pointed instrument such as an icepick; that the wounds on the aorta and upper and lower lobes of the left lung were fatal; that the wounds sustained at the anterior chest wall of the victim indicate that the assailant was in front of the victim when the said wounds were inflicted on her body (pp. 13-16, tsn, Ibid). Atty. Roberto Rivera, the son of the victim, testified that before 6:00 o'clock in the afternoon of December 20, 1981, the son of the owner of the adjoining establishment adjacent to the drugstore of her mother came to their house and informed him that something bad happened to his mother; that immediately he went hurriedly to their drugstore together with his father; that upon reaching the place, he saw hundreds of people around the door of the drugstore; that he saw the dead body of his mother covered with a white blanket being carried by persons working with the International Funeral Homes; that inside the drugstore, he noticed that the shelves were forced opened, many bottles of medicines and boxes were scattered on the floor; that the store lost cash money in the sum of P2,000.00; that they spent P5,000-00 for the wake and P10,000.00 for the funeral expenses; that his mother was earning Pl,000.00 per month as a professor in the College of Medicine of the University of Santo Tomas; that their drugstore had an average net income of P300.00 a day (pp. 5-13, tsn, Sept. 13, 1983). 2 The appellants denied having committed the crime charged. According to the appellant Rafael Zaragoza, he was in the Hulo Market in Malabon on 20 December 1981. He arrived at the said market at about 6:00 o'clock in the morning of the said day after selling fish, and stayed thereat with his co-accused, drinking until about 10:00 o'clock of the same morning, when he went home to Tangos, Navotas. Then, on the following day, 21 December 1981, while he was inside the said market eating "mami", policemen came and arrested him in connection with the death of Dr. Rivera. According to appellant Zaragosa, he was brought to a salt bed ("asinan") at Tonsuya where he was maltreated by the policemen and made to affix his thumbprint on a document the contents of which he did not know. He was also laid on a wooden bed with his head hanging and his feet tied to the bed an distilled water (for dry batteries) was poured over his mouth. He latter complained to the National Police Commission, 3 but he does not know what happened to his complaint. He admitted that he had also executed a statement 4 wherein he stated that he was not maltreated by the policemen. He explained that he made such statement because he was given money by Atty. Rivera, the son of the deceased, through Pat. Gungon. 5 The appellant, Eduardo Palencia, for his part, declared that he arrived at the Hulo Market at about 1:00 o'clock in the afternoon of 20 December 1981, and spent his time playing the jukebox, until 2:30 o'clock of the same afternoon when he went to the Chinese restaurant at the back of the factory of Rufina Patis and drank beer with his co-accused. After about thirty (30) minutes, they went back to the market place where they read "komiks" at a store in the corner of said market until 3:30 o'clock when they parted. We went home to Tanza, Malabon, while the others went to Cubao, Quezon City. 6 Then, in the morning of the following day, he and Zaragoza were picked up by the police. He was brought inside a bodega in Niugan, Malabon, where he was maltreated and made to sign a document the contents of which he did not know. He also complained but he does not know what happened to his complaint. 7 In finding the appellants guilty of the crime with which they were charged, the trial court relied principally upon the extrajudicial confessions executed by them on 21 December 1981, 8 and the pictures taken during the re-enactment of the crime. 9 Counsel for the appellants, in this appeal, contends that the said extra-judicial confessions are inadmissible in evidence because they were extracted from the appellants during custodial investigation without the assistance of counsel and after the appellants had been subjected to different forms of maltreatment, threats, and intimidation. Counsel further asserts that the pictures of the re-enactment were taken in a manner contrary to law and are, therefore, inadmissible. After going over the record of the case, we are convinced that the extra-judicial confessions in question are inadmissible in evidence, the same having been executed by the appellants during custodial investigation without the assistance of counsel, particularly, when

the confessants manifested the waiver of their right to counsel. The prevailing rule is still that laid down in People vs. Galit 10 as follows: 10. This Court, in the case of Morales vs. Ponce Enrile, laid down the correct procedure for peace officers to follow when making an arrest and in conducting a custodial investigation, and which We reiterate: 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, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means--by telephone if possibleor 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, or by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver 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. We also find that the pictures taken during the re-enactment of the crime, are inadmissible in evidence since the re-enactment was based upon the defendants' inadmissible extra-judicial confessions. Pictures re-enacting a crime which are based on an inadmissible confession are themselves inadmissible. 11 However, in a sworn statement executed on 14 July 1982, 12 the appellant Rafael Zaragoza admitted that he and his co-accused were responsible for the robbery and the death of Dr. Lutgarda Rivera. His sworn statement reads, in part, as follows:
23. T: Ano ang inamin mo? S: Inamin ko na kasama ako sa pagnanakaw at pagpatay kay Dra. Rivera. 24. T: Sabihin mo sa akin ngayon kung tutoo ngang kasama ka sa pagnanakaw at pagpatay. S: Iyon nga po ang pagkakamali ko dahil nasa labas lang po ako ng botika. Hindi pumasok sa loob. 25. T: Isalaysay mo nga sa akin ang tunay na pangyayari? S: Ganito po iyon, magka kasama po kami nina Butch (referring to HENRY JUNGCO), si Lando (Referring to Orlando Ortega), si Labo (referring to Rolando Aguilar), at Eding Hula (referring to Eduardo Palencia), sa may harapan ng botika ni Dra. Rivera. Bumibili po kami ng Corex D pero ayaw kaming pagbilhan. Ang ginawa namin ay nagpunta kami sa palengke, tapos nagbigay ako ng katorse pesos kay LANDO pambili ng Corex D, si Lando na po ang bahala doon sa kulang. Naghanap siya ng mabilhan. Tapos, dumating na si Lando at may dala siyang dalawang boteng siento bente bawat isa nang Corex. Naghati-hati na kami. tapos, nagkuwentuhan kami sa palengke, tapos naisipan naming balikan si doktora. May dalang kutsilyo si Lando, si Butch naman po ay ice pick ang dala. Ang dating may dala ng ice pick noong nasa may botika na kami ay Eding Hula, pero nakita kong kinuha iyon ni Butch bago sila pumasok sa loob ng botika. Ako ppo ay nagbantay nalang sa labas, dalawa kami, akot at si Labo. Nang lumabas na iyong tatlo na tumatakbo, umalis na rin ako. Hindi na ako sumunod sa kanila sa palengke. Tapos nga noon, nahuli na kaming lahat.

Rafael Zaragosa, during the trial, confirmed his execution of the said sworn statement. He claims, however, that he was paid for it by Atty. Rivera, the son of the victim, who gave him the money through Pat. Gungon, 13 but this was denied by Atty. Rivera and Pat. Gungon. 14 The trial court, therefore, did not commit an error in finding the appellants guilty of the crime with which they were charged. Zaragosa's admission is supported by the physical facts of the case and the testimonies of Pat. Eddie Regalado that he saw the appellants and their co-accused enter the drug store of Dr. Lutgarda Rivera and later leave the place hurriedly, at about the time the crime was committed, and of Atty. Roberto Rivera that upon his arrival at the drug store, he saw the dead body of his mother and that the shelves of the drug store were forcibly opened and bottles and boxes containing medicine scattered on the floor. Zaragosa's admission is further supported by the testimonies of the appellant Eduardo Palencia and co-accused Orlando Ortega, and Rolando Aguilar that they were together in the afternoon of 20 December 1981. 15 While admittedly no prosecution witness testified to have actually seen the appellants and their co-accused in the act or robbing the drug store and killing the owner thereof, the circumstantial evidence is consistent with each other, such that the appellants and their co-accused, and no other, were the culprits and are guilty therefor. Besides, the acceptance by co-accused Henry Jungco, Orlando Ortega and Rolando Aguilar of their sentence proves, not only their guilt but also that of their companions, the herein appellants Rafael Zaragosa and Eduardo Palencia. 16 WHEREFORE, the judgment appealed from is hereby AFFIRMED, with proportionate costs. SO ORDERED.

(10) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANACLETO Q. OLVIS, Acquitted, ROMULO VILLAROJO, LEONARDO CADEMAS and DOMINADOR SORELA,accused-appellants. [G.R. No. 71092 September 30, 1987] SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court to Zamboanga Del Norte sitting in Dipolog City. 1The case was certified to this Court on January 19, 1985 following the death sentences imposed on each of the three accused-appellants, Romulo Villarojo, Leonardo Cademas, and Dominador Sorela (the accused first-named, Anacleto Olvis, was acquitted), over which, under the Constitution then in force, 2 we exercised exclusive appellate jurisdiction. 3 With the promulgation of the 1987 Charter, abolishing the death penalty and commuting death penalties already imposed to reclusion perpetua 4 we, on May 14, 1987, issued a death penalty abolition resolution requiring the three accused-appellants to file a statement, personally signed by them with the assistance of counsel, stating whether or not they wished to continue with the case as an appealed case. 5 We have since observed this procedure with respect to all pending capital cases. In compliance with our resolution, the three accused-appellants, on May 28, 1987, filed a statement informing us that they desire to continue with this case as an appealed case. 6 This appeal stemmed from an information dated November 11, 1976 charging all four accused with the murder of Discredit Bagon. The same reads as follows: xxx xxx xxx The undersigned First Assistant Provincial Fiscal accuses ANACLETO Q. OLVIS, as principal by inducement, ROMULO VILLAROJO, LEONARDO CADEMAS and DOMINADOR SORELA, as principals by direct participation, of the crime of murder, committed as follows: That in the evening on or about the 7th day of September 1975, in title Municipality of Polanco, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the above-named accused, consprising and confederating with one another and acting upon the direction and instruction of ANACLETO Q. OLVIS who mastermind the bizarre plot and directly induced ROMULO VILLAROJO, LEONARDO CADEMAS and DOMINADOR SORELA to execute the conspiracy and who, armed with boloes and a hunting knife, with intent to kill by means of treachery and evident premeditation, and for a consideration of a price or reward, did, then and there willfully, unlawfully and feloniously attack, assault, hack and stab one DISCREDIT BAGON, thereby inflicting upon him multiple inc. (hack) and stab wounds which caused his instantaneous death. CONTRARY TO LAW, with the qualifying circumstances of treachery and evident premeditation and the generic aggravating circumstances of superior strength, nighttime and in consideration of a price or reward. 7 xxx xxx xxx The four accused entered Identical "not guilty" pleas. After trial, the court a quo rendered the decision under appeal, the dispositive portion whereof reads as follows: FOREGOING CONSIDERED, and on the part of accused ANACLETO Q. OLVIS, SR., there being no evidence, direct or indirect, whether testimonial, documentary or physical evidence, that tend to establish his complicity in this case, said accused has to be, as he hereby is, ACQUITTED. On the part of the three (3) remaining accused ROMULO VILLAROJO, LEONARDO CADEMAS, and DOMINADOR SORELA, the degree of moral, certainty establishing their authorship of the crime is irreversibly positive. The three (3) accused conspired and confederated with one another to successfully achieve their ghastly, evil ends. Their guilt has been proved beyond reasonable doubt. Treachery and evident premeditation are qualifying circumstances in this case of MURDER. But said offense was attended by the aggravating circumstances of superior strength and nighttime. No mitigating circumstance has been shown to offset the two (2) aggravating circumstances, as a consequence of which, the Court hereby renders

judgment sentencing the accused ROMULO VILLAROJO, LEONARDO CADEMAS, and DOMINADOR SORELA, to suffer the maximum penalty of DEATH. SO ORDERED. 8 We come to the facts. On September 9, 1975, Alfredo and Estrella Bagon, brother and sister, arrived at the local Integrated National Police station of Barrio Polanco, in Zamboanga del Norte, to report their brother, Deosdedit Bagon, missing. The station commander, Captain Ruperto Encabo, received their report. Bagon had been in fact missing since two days before. He was last seen by his wife in the afternoon of September 7, 1975, on his way home to Sitio Sebaca where they resided. She did three probable places, but her efforts were in vain. It was Captain Encabo himself who led a search party to mount an inquiry. As a matter of police procedure, the team headed off to Sitio Sebaca to question possible witnesses. There, Captain Encabo's men chanced upon an unnamed volunteer, who informed them that Deosdedit Bagon was last seen together with Dominador Sorela, one of the accused herein. Encabo then instructed one of his patrolmen to pick up Sorela. Sorela bore several scratches on his face, neck and arms when the police found him. According to him, he sustained those wounds while clearing his ricefield. Apparently unconvinced. Captain Encabo had Sorela take them to the ricefield where he sustained his injuries. But half way there, Sorela illegally broke down, and, in what would apparently crack the case for the police, admitted having participated in the killing of the missing Bagon. By then, the police of Polanco knew that they had a murder case in their hands. Sorela allegedly confessed having been with Deosdedit Bagon, a friend of his, in the evening of September 7, 1976 in Sitio Sebaca after some marketing. They were met by Romulo Villarojo and Leonardo Cademas, Sorela's co-accused herein and likewise friends of the deceased, who led them to a secluded place in the ricefields. It does not appear from the records how the three were able to have the deceased join them. It was then that Villarojo allegedly attacked Bagon with a bolo, hacking him at several parts of the body until he, Bagon, was dead. Moments later, Sorela fled, running into thick cogon grasses where he suffered facial and bodily scratches. The police soon picked up Villarojo and Cademas. Together with Sorela, they were turned over to the custody of Captain Encabo. The police thereafter made the three re-enact the crime. Patrolman Dionisio Capito directed Sorela to lead them to the grounds where Discredit Bagon was supposed to have been buried. But it was Villarojo who escorted them to a watery spot somewhere in the ricefields, where the sack-covered, decomposing cadaver of Bagon lay in a shallow grave. The actual exhumation of the body of the victim was witnessed by Polanco policemen and Civilian Home Defense Forces volunteers, numbering about thirty. The body was transported to the Polanco municipal hand the following day, September 10, 1975. It was displayed, morbidly, in front of the building where Mrs. Catalina Bagon, widow of the deceased, and her four children viewed it. The exhumation, as well as the transfer of Bagon's cadaver, were captured by the lens of a photographer. (Exhibits "I", "J", "K", its "L", "M", and "N"). The "ceremonies" continued in the parish church of the Polanco, where the body of the victim was transferred. It was laid on the altar, in full public view. Again the proceedings were recorded by the camera of a photographer. (Exhibits "R", "S".) But it was only later on that the body itself was uncovered from the sack that had concealed it. (Exhibits "T", "U", "VIP.) Thereupon, it was readied for autopsy. The necropsy report prepared by the provincial health officer disclosed that the deceased suffered twelve stab and hack wounds, six of which were determined to be fatal. In the re-enactment, the suspects, the three accused herein, demonstrated how the victim was boloed to death. Exhibit "Y," a photograph, shows the appellant Villarojo in the posture of raising a bolo as if to strike another, while Solero and Cademas look on. Exhibit "X", another photograph, portrays Villarojo in the act of concealing the murder weapon behind a banana tree, apparently after having done the victim in.

The investigation yielded several effects of the offense: a twenty-inch long bolo, the shovel used to inter the victim's remains, a nylon rope with which the dead body was tied, and the sack itself. Initial findings of investigators disclosed that the threesome of Solero, Villarojo, and Cademas executed Discredit Bagon on orders of Anacleto Olvis, then Polanco municipal mayor, for a reward of P3,000.00 each. While in custody, the three executed five separate written confessions each. The first confessions were taken on September 9, 1975 in the local Philippine Constabulary headquarters. The second were made before the Polanco police. On September 18, 1975, the three accused reiterated the same confessions before the National Bureau of Investigation Dipolog City sub-office. On September 21, 1975 and September 25, 1975, they executed two confessions more, again before the Philippine Constabulary and the police of Polanco. In their confessions of September 9, 1975, September 14, 1975, September 21, 1975, and September 25, 1975, the said accused a gain pointed to the then accused Anacleto Olvis as principal by inducement, who allegedly promised them a reward of P3,000.00 each. In their confessions of September 18, 1975, sworn before agents of the National Bureau of Investigation, however, they categorically denied Olvis' involvement in the knowing. We note that the three were transported to the Dipolog City NBI sub-office following a request on September 10, 1975 by Mrs. Diolinda O. Adaro daughter of Olvis, and upon complaint by her of harassment against her father by his supposed political enemies. Based on these subsequent statements, the court a quo rendered separate verdicts on the three accused on the one hand, and Anacleto Olvis on the other. As earlier stated Olvis was acquitted, while the three were all sentenced to die for the crime of murder. In acquitting Olvis, the trial court rejected the three accused's earlier confessions pointing to him as the mastermind, and denied the admissibility thereof insofar as far as he was concerned. It rejected claims of witnesses that the three accused-appellants would carry out Olvis' alleged order to kill Bagon upon an offer of a reward when in fact no money changed hands. It likewise noted that Olvis had, two days after the murder, been in Cebu City, and who, upon arriving in Dipolog City, was in fact informed by the Philippine Constabulary that he was a "wanted" man, "to which said accused (Olvis) meekly complied" 9 (that is, he assented, ambiguously, to the remark). According to the court, this was inconsistent with a guilty mind. The court repudiated claims that Olvis had motives to do away with the deceased arising from alleged attempts on his (Olvis') part to eject the deceased from his landholding (the deceased having been a tenant of his), the case in fact having reached the then Ministry of Agrarian Reform. It dismissed insinuations that his children had a score to settle with the victim, who had earlier brought a physical injuries suit against the former, that case having been dismissed. It observed, furthermore, that he was not questioned by the police after the killing, notwithstanding efforts by the three herein accused-appellants to implicate him. It relied, finally, on the retraction of the accused themselves, absolving Olvis of any liability. It was satisfied, overall, that he had a "clean bill of health" 10 in connection with the murder case. With the acquittal of Olvis, we are left with the murder cases against the three accused-appellants. The accused-appellants subsequently repudiated their alleged confessions in open court alleging threats by the Polanco investigators of physical harm if they refused to "cooperate" in the solution of the case. They likewise alleged that they were instructed by the Polanco police investigators to implicate Anacieto Olvis in the case. They insisted on their innocence. The acused Romulo Villarojo averred, specifically, that it was the deceased who had sought to kill him, for which he acted in self-defense. The murder of Deosdedit Bagon was witnessed by no other person. The police of Polanco had but the three accused-appellants' statements to support its claiming. The fundamental issue then is whether or not these statements, as any extrajudicial confession confronting us, can stand up in court. We hold that, based on the recorded evidence, the three accused-appellants' extrajudicial confessions are inadmissible in evidence. It was on May 7, 1987 that we promulgated People v. Decierdo.11 In that decision, we laid down the rule with respect to extrajudicial confessions: xxx xxx xxx ... Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant, may waive effectuation of indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone

and indicates in any manner that he does not wish to be interrogated, the police may not question him The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has converted with an attorney and thereafter consent to be questioned. xxx xxx xxx In People v. Duero, we added: xxx xxx xxx
At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute pre-requisite in overcoming the inherent pressures of the interrogation atmosphere Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it . . . The warning of the right to remain silent must be accompanied by the explanation that anything said can and WW be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it . . . An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs Counsel If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney . . . In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that ff. he is indigent a lawyer will be appointed to represent him . . . Once warnings have been given, the subsequent procedure is clear, If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation impose cease. . . If the individual cannot obtain an attorney and he indicates that he wants one before speaking to policy, they must respect his decision to remain silent . . . If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incriminate tion and his right to retained or appointed counsel ... 12

xxx xxx xxx Like the Decierdo confessions, the confessions in the case at bar suffer from a Constitutional infirmity. In their supposed statements dated September 9, 14, and 21, 1975, the accused-appellants were not assisted by counsel when they "waived" their rights to counsel. As we said in Decierdo, the lack of counsel "makes [those] statement[s], in contemplation of law, 'involuntary,' even if it were otherwise voluntary, technically." 13 With reset to the confessions of September 18, 197 5, while it is stated therein that this Office had just requested the services of Atty. NARVARO VELAR NAVARRO of the Citizens Legal Assistance Office, Department of Justice, Dipolog District Office, are you wining to accept the legal assistance of Atty. NAVARRO to handle your case, 14 the same nonetheless call for a similar rejection. There is nothing there that would show that Atty. Navarro was the accused-appellants' counsel of choice (specifically, the appellant Romulo Villarojo who admitted therein having been the bolo-wielder). On the contrary, it is clear therefrom that Atty. Navarro was summoned by the NBI. He cannot therefore be said to have been acting on behalf of the accused-appellants when he lent his presence at the confession proceedings. What we said in People v. Galit, 15 applies with like force here:

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 dead 16 trainee himself or by anyone on his behalf. 16 We cast aside, for the same reason, the confessions of September 25, 1975. But the accused-appellants were denied their right to counsel not once, but twice. We refer to the forced re-enactment of the crime the three accused were made to perform shortly after their apprehension. Forced re-enactments, like uncounselled and coerced confessions come within the ban against self- incrimination. The 1973 Constitution, the Charter prevailing at the time of the proceedings below, says: No person shall be compelled to be a witness against himself. 17 This constitutional privilege has been defined as a protection against testimonial compulsion, 18 but this has since been extended to any evidence "communicative in nature" 19 acquired under circumstances of duress. Essentially, the right is meant to "avoid and prohibit positively the repetition and recurrence of the certainly inhuman procedure of competing a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction." 20 This was the lesson learned from the ancient days of the inquisition in which accusation was equivalent to guilt. 21 Thus, an act, whether testimonial or passive, that would amount to disclosure of incriminatory facts is covered by the inhibition of the Constitution. This should be distinguished, parenthetically, from mechanical acts the accused is made to execute not meant to unearth undisclosed facts but to ascertain physical attributes determinable by simple observation. This includes requiring the accused to submit to a test to extract virus from his body, 22 or compelling him to expectorate morphine from his mouth 23 or making her submit to a pregnancy test 24 or a footprinting test, 25 or requiring him to take part in a police lineup in certain cases." In each case, the accused does not speak his guilt. It is not a prerequisite therefore that he be provided with the guiding hand of counsel. But a forced re-enactment is quite another thing. Here, the accused is not merely required to exhibit some physical characteristics; by and large, he is made to admit criminal responsibility against his will. It is a police procedure just as condemnable as an uncounselled confession. Accordingly, we hold that all evidence based on such a re-enactment to be in violation of the Constitution and hence, incompetent evidence. It should be furthermore observed that the three accused-appellants were in police custody when they took part in the re-enactment in question. It is under such circumstances that the Constitution holds a strict application. As for the accused Dominador Sorela, we cannot accept the trial judge's finding that he acted "with unexpected spontaneity" 27 when he allegedly "spilled the beans 28 before the law enforcers on September 9, 1975. What is to be borne in mind is that Sorela was himself under custody. Any statement he might have made thereafter is therefore subject to the Constitutional guaranty. By custodial interrogation, we mean 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. 29 We indeed doubt whether Sorela's admissions, under the circumstances, were truly his voluntary statements Chavez v. Court of Appeals 30 tells us: 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. 31 In such a case, he should have been provided with counsel. Indeed, the three accused-appellants had languished in jail for one year and two months before the information was filed, and only after they had gone to court on an application for habeas corpus. For if the authorities truly had a case in their hands, we are puzzled why they, the accused, had to be made to suffer preventive imprisonment for quite an enormous length of time.

What is more, there are striking aspects in the case that we find distressing. For one, there was no trace of grief upon the faces of the deceased's bereaved relatives, more so his widow and children, upon witnessing his cadaver-wrapped in a sack and all although it was supposedly the first time that they saw his remains after two days of frantic search. 32 Exhibits "K", "L", "M", "N", and "R", for another, depict the deceased's relatives in fixed poses, while the deceased's corpse lay in the foreground. 33 Moreover, the victim was transferred to the municipal hand building and then subsequently, to the parish church, again, for a photographing session unusual procedure when the perfunctory police procedure should have been to bring the corpse to the health officer for autopsy. It was in fact only on September 10, 1975 that Discredit Bagon's remains were unwrapped, at the parish church at that, as if pursuant to a script or as part of some eerie ceremony. To the mind of, this Court, the disposition of the case was characterized by unusual grandstanding, for reasons as yet unclear to us. It leaves us with an uncomfortable impression that each scene was an act in some contrived tragedy. We likewise find the authorities' haste in securing the accused Anacleto Olvis' acquittal, at the expense of the present three accused, quite disconcerting. It should be noted that the three appellants had initially implicated Olvis as the mastermind. Yet, Olvis was never invited for the usual questioning. To us, there is more to Exhibit "20," the request to transfer Olvis' case to the jurisdiction of the National Bureau of Investigation for reinvestigation, than meets the eye. As it happened, happily for Olvis, the three accused-appellants while under NBI custody, retracted their earlier statements indicting him as a co-conspirator. Why the NBI should intervene in the case when the Polanco police had apparently "solved" it, is, in the first place, suspicious enough, but why the three appellants should, in an instant, make a turn-about there leaves us even more disturbed. While we do not challenge the verdict by acquittal rendered in favor of Olvis, for it is not within our power to overturn acquittals, 34 what is our concern is the apparent design to use three ill-lettered peasants, 35 the three herein accused, as fall guys in an evident network of political intrigue. Still, we are not prepared to hand down a judgment of acquittal upon all the three accused-appellants. In his counter-affidavit, 36 marked as Exhibit "44-A" for the defense, the accused Romulo Villarojo admitted hacking the victim to death with a bolo. He stressed, however, that he did so in self- defense. He pulled out a hunting knife in order to stab me and in order also to defend my body, I hack[ed] him." 37 He completely absolved his co-accused Dominador Sorela and Leonardo Cademas from any liability. Villarojo's admission inflicting the fatal wounds upon the deceased is binding on him. defense can stand scrutiny.
38

But it is still our business to see whether his

The records will disclose that the deceased suffered twelve assorted wounds caused by a sharp instrument. The assault severed his right hand and left his head almost separated from his body. This indicates a serious intent to kill, rather than self-defense. 39 In finding that Villarojo did take the life of the victim, we cannot, however, appreciate superior strength or nocturnity. These qualifying circumstances were considered by the court a quo on the basis of the extrajudicial statements executed by the accused, statements we reject for the reasons earlier discussed. In the absence of any other proof, the severity and number of wounds sustained by the deceased are not, by themselves, sufficient proof to warrant the appreciation of the generic aggravating circumstance of abuse of superior strength. Hence, Villarojo should be liable for plain homicide. WHEREFORE, judgment is hereby rendered modifying the Decision dated November 30, 1984. The accused-appellants Leonardo Cademas and Dominador Sorela are ACQUITTED on the ground of reasonable doubt. The accused-appellant Romulo Villarojo is found guilty of homicide, and is sentenced to suffer an indeterminate penalty of eight years and one day of prision mayor as minimum, to fourteen years, eight months, and one day ofreclusion temporal, as maximum. He is furthermore ordered to indemnify the heirs of Discredit Bagon in the sum of P30,000.00. No special pronouncement as to costs.

(11) CRISTOPHER GAMBOA, petitioner, vs. HON. ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br. XXIX, respondent. [G.R. No. L-56291 June 27, 1988] PADILLA, J.: 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. 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. 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 We find no merit in the contentions of petitioner. 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, 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. 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: When petitioner was Identified by the complainant at the police line-up, 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 fellows: 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 outof-court Identification procedures conducted in the absence of counsel did not apply to pre-indictment 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 post-indictment 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 Stewart, 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, 93 ALR 2d 733; White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Messiah v. United States, 377 US 201, 12 L Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 2d 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. 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. 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. 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:
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.

(12) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PACITO ORDOO Y NEGRANZA alias ASING and APOLONIO MEDINA Y NOSUELO alias POLING, accused-appellants. [G.R. No. 132154. June 29, 2000] DECISION PER CURIAM: COURTS are confronted, repeatedly, with the difficult task of scrutinizing the sufficiency of extrajudicial confessions as basis for convicting the accused. The drive to apprehend the culprits at any cost, particularly in crimes characterized by brutality and savagery, not too infrequently tempts law enforcement agencies to take unwarranted shortcuts and disregard constitutional and legal constraints that are intended to ensure that only the guilty are punished. In the delicate process of establishing guilt beyond reasonable doubt, courts play a crucial role in assuring that the evidence gathered by government agents scrupulously meets the exacting constitutional standards which if not met impose a strict exclusionary rule, i.e., "any confession or admission obtained in violation of Art. II, Sec. 12 (1), shall be inadmissible in evidence." This case is on automatic review of the 11 December 1997 Decision of the Regional Trial Court, Br. 34, Balaoan, La Union, in Crim. Case No. 2415 finding both accused Pacito Ordoo y Negranza alias Asing and Apolonio Medina y Nosuelo alias Poling guilty beyond reasonable doubt of rape with homicide and imposing upon each of them two (2) separate death penalties. The records show that on 5 August 1994 the decomposing body of a young girl was found among the bushes near a bridge in Barangay Poblacion, Santol, La Union. The girl was later identified as Shirley Victore, fifteen (15) years old, a resident of Barangay Guesset, Poblacion, Santol, La Union, who three (3) days before was reported missing. Post-mortem examination conducted by Dr. Arturo Llavore, a medico-legal officer of the NBI, revealed that the victim was raped and strangled to death. Unidentified sources pointed to Pacito Ordoo and Apolonio Medina as the authors of the crime. Acting on this lead, the police thereupon invited the two (2) suspects and brought them to the police station for questioning. However, for lack of evidence then directly linking them to the crime, they were allowed to go home. On 10 August 1994 the accused Pacito Ordoo and Apolonio Medina returned to the police station one after another and acknowledged that they had indeed committed the crime. Acting on their admission, the police immediately conducted an investigation and put their confessions in writing. The investigators however could not at once get the services of a lawyer to assist the two (2) accused in the course of the investigation because there were no practicing lawyers in the Municipality of Santol, a remote town of the Province of La Union. Be that as it may, the statements of the two (2) accused where nevertheless taken. But before doing so, both accused were apprised in their own dialect of their constitutional right to remain silent and to be assisted by a competent counsel of their choice. Upon their acquiescence and assurance that they understood their rights and did not require the services of counsel, the investigation was conducted with the Parish Priest, the Municipal Mayor, the Chief of Police and other police officers of Santol, La Union, in attendance to listen to and witness the giving of the voluntary statements of the two (2) suspects who admitted their participation in the crime. The first to confess was Apolonio Medina who in addition to the Parish Priest, the Mayor, the Chief of Police and the other police officers was also accompanied by his wife and mother. Apolonio Medina narrated that in the morning of 2 August 1994 while he was walking towards the house of Pacito Ordoo in Sitio Buacao, Poblacion, Santol, La Union, he noticed a young woman walking towards the school at the Poblacion. Upon reaching Sitio Buacao, he saw Pacito Ordoo standing along the road. When the woman reached him he suddenly grabbed her, held her tightly and covered her mouth with his right hand. As Medina neared them, Ordoo turned to him and said, "Come and help me, I am feeling uneasy." Although Medina claimed he was surprised at the request, he nonetheless went to Ordoo, helped him hold the legs of the young woman including her bag and umbrella and together they carried her to the bushes where they laid her down. Medina held her legs as requested while Ordoo continued to cover her mouth with his hand and boxing her many times on the head. When she was already weak and weary Ordoo knelt near her, raised her skirt and lowered her panty down to her knees. Medina continued to remove her panty as Ordoo removed his short pants, then his briefs. Ordoo then raped her, boxed her head continuously, with Medina continuously pinning her legs down and boxing those legs every time she struggled. After Ordoo had satiated himself Medina took his turn in raping the same victim with Ordoo holding her legs. After they were through, Medina left to watch out for intruders while Ordoo tied a vine around the girl's neck, hanged her on a tree that ended her life. Then, they went back to the road and parted ways.

After Medina said his piece, his wife and mother suddenly burst into tears. He then affixed his signature on his statement and so did his wife, followed by all the other witnesses who listened to his confession. Pacito Ordoo narrated his story in the afternoon. According to him, in the morning of 2 August 1994 he was on his way to Sitio Guesset, Barangay Manggaan, Santol, La Union, when he saw a girl followed by Apolonio Medina. When the girl was near him he immediately grabbed her and covered her mouth. Medina drew near, held her two legs, bag and umbrella and together they carried her into the thicket. After laying her down Ordoo boxed her breasts and face while Medina boxed her legs. When she became weak Ordoo raised her skirt and lowered her panty while Medina completely, removed it. Ordoo then removed his pants and walker briefs, went on top of Shirley and as Medina spread her legs Ordoo immediately inserted his penis into her vagina. After ejaculating Ordoo turned to Medina for him to take his turn in raping the girl. Ordoo was now holding her legs. At the end of his narration Ordoo affixed his thumbmark on his statement in lieu of his signature as he did not know how to write. Thereafter, Apolonio Medina and Pacito Ordoo were detained at the Santol police station. News about the apprehension and detention of the culprits of the rape-slay of Shirley Victore soon spread that Roland Almoite, leading radio announcer of radio station DZNL, visited and interviewed them. In the interview which was duly tape-recorded both accused admitted again their complicity in the crime and narrated individually the events surrounding their commission thereof. According to Medina, his remorse in having committed the crime was so great but his repentance came too late. [1] He and Ordoo hoped that the parents of Shirley Victore would forgive them.[2] Upon conclusion of the interview, Roland Almoite immediately went to radio station DZNL and played the taped interview on the air. The same interview was played again on the air the following morning and was heard by thousands of listeners. A couple of days later, the police brought the two (2) accused to the office of the PAO lawyer in Balaoan, La Union, for assistance and counseling. In a closed-door session, PAO lawyer Oscar B. Corpuz apprised each of the accused of his constitutional rights and, even though their confessions were already written in their dialect, explained to them each of the questions and answers taken during the investigation. He likewise advised them to ponder the consequences of their confessions, leading them to defer the affixing of their second signature/ thumbmark thereon. After a week or so, the two (2) separately went back to Atty. Corpuz and informed him of their willingness to affix their signatures and thumbmarks for the second time in their respective confessions. Once again Atty. Corpuz apprised the two (2) accused of their constitutional rights, explained the contents of their respective statements, and finally, accompanied them to Judge Fabian M. Bautista, MTC judge of Balaoan, La Union, who further apprised the two (2) accused of their constitutional rights and asked them if they had been coerced into signing their confessions. They assured Judge Bautista that their statements had been given freely and voluntarily. Upon such assurance that they had not been coerced into giving and signing their confessions, Judge Bautista finally asked the accused Pacito Ordoo and Apolonio Medina to affix their signatures/ thumbmarks on their respective confessions, and to subscribe the same before him. Atty. Corpuz then signed their statements as their assisting counsel, followed by a few members of the MTC staff who witnessed the signing. On arraignment, in a complete turnabout, the two (2) accused pleaded not guilty. In his defense, Pacito Ordoo testified that on 5 August 1994, while he was cooking at home, the police arrived and invited him to the headquarters for questioning. The police asked him his whereabouts on 2 August 1994 and he answered that he worked in the farm of Barangay Captain Valentin Oriente. According to Ordoo, the questioning took one (1) hour with the police boxing him several times on his stomach and on his side. They even inserted the barrel of a gun into his mouth in an effort to draw out answers from him. This being fruitless, he was placed in jail and released only the following morning, 6 August 1994. Three (3) days later, or on 9 August 1994, the police once again invited him to the headquarters where he was told that he was responsible for the rape and death of Shirley Victore. Accused Pacito Ordoo insisted on his innocence and maintained that he was working with a certain barangay captain; nonetheless, he was detained. Later that night the police took him out from jail and brought him to the room of investigator SPO4 Alfredo A. Ominga where he was hit with the butt of an armalite and forced to admit to the rape and slay of Shirley Victore. On 10 August 1994 SPO4 Alfredo A. Ominga took a typewriter and asked questions from him for one (1) hour without a lawyer assisting him nor a priest witnessing the investigation. A barrel of a gun was placed inside his mouth forcing him to admit the commission of the crime and to affix his thumbmark on the document. He was also brought to the office of the PAO lawyer twice but did not affix his thumbmark on any document because he could not understand its contents. A radio announcer visited him inside his cell for an interview but he declined to answer his questions. He only answered the radio announcer during his fourth visit when SPO4 Alfredo A. Ominga threatened to hit him if he did not admit to the commission of the crime. As to Apolonio Medina, he heard from the police that he was also detained but maintained that he (Ordoo) did not know Apolonio. For his part, Apolonio Medina testified that on 5 August 1994 while he was pasturing his carabaos at Barangay Guesset, in Santol, La Union, the police came and invited him for questioning. They asked him where he was on 2 August 1994 and he replied that he was

carrying bananas for his aunt Resurreccion. The interrogation lasted for about an hour with neither a lawyer assisting him nor a relative being present, after which he was placed in jail. Later, he was brought out and taken to a hut near the headquarters where he was boxed, kicked and hit with a nightstick. He lost consciousness and recovered only after he was brought back to his cell. That same night he was returned to the hut outside the police headquarters where he was again boxed. On 8 August 1994, with his legs tied to the ceiling beam, he was hanged upside down. His breast was hit with the butt of a gun which was fired near his ear. A barrel of a gun was inserted into his mouth. He was threatened that he would be salvaged if he did not admit to killing the victim. He was forced to sign a statement but could not recall its date of execution. He was brought to the office of the PAO lawyer twice but he did not sign the document. The investigator warned him that if he did not sign he would be buried in the pit which he himself dug. On his third visit to the office of the PAO lawyer he signed the document. He could not remember having gone to the office of the MTC Judge of Balaoan; La Union. He was interviewed by a radio announcer and was instructed by the investigator to narrate those that were in his statement. He admitted he knew Pacito Ordoo. He showed his bruises to his mother when the latter visited him in jail, prompting the latter to request medical treatment for her son but the request was denied. On 11 December 1997 the trial court adjudged accused Pacito Ordoo and Apolonio Medina guilty of the crime of rape with homicide attended with conspiracy, and imposed upon each of them two (2) death penalties on the basis of their extrajudicial confessions. The accused are now before us assailing their conviction on the ground that constitutional infirmities attended the execution of their extrajudicial confessions, i.e., mainly the lack of counsel to assist them during custodial investigation thereby making their confessions inadmissible in evidence. Under the Constitution[3] and the rules laid down pursuant to law[4] and jurisprudence,[5] a confession to be admissible in evidence must satisfy four (4) fundamental requirements: (a) the confession must be voluntary; (b) the confession must be made with the assistance of competent and independent counsel; (c) the confession must be express; and, (d) the confession must be in writing.[6] Among all these requirements none is accorded the greatest respect than an accused's right to counsel to adequately protect him in his ignorance and shield him from the otherwise condemning nature of a custodial investigation. 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 the offense. [7] Hence, if there is no counsel at the start of the custodial investigation any statement elicited from the accused is inadmissible in evidence against him. This exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent. [8] In the instant case, custodial investigation began when the accused Ordoo and Medina voluntarily went to the Santol Police Station to confess and the investigating officer started asking questions to elicit information and/or confession from them. At such point, the right of the accused to counsel automatically attached to them. Concededly, after informing the accused of their rights the police sought to provide them with counsel. However, none could be furnished them due to the non-availability of practicing lawyers in Santol, La Union, and the remoteness of the town to the next adjoining town of Balaoan, La Union, where practicing lawyers could be found. At that stage, the police should have already desisted from continuing with the interrogation but they persisted and gained the consent of the accused to proceed with the investigation. To the credit of the police, they requested the presence of the Parish Priest and the Municipal Mayor of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation. In providing that during the taking of an extrajudicial confession the accused's parents, older brothers and sisters, his spouse, the municipal mayor, municipal judge, district school supervisor, or priest or minister of the gospel as chosen by the accused may be present, RA 7438 does not propose that they appear in the alternative or as a substitute for counsel without any condition or clause. It is explicitly stated therein that before the above-mentioned persons can appear two (2) conditions must be met: (a) counsel of the accused must be absent, and, (b) a valid waiver must be executed. RA 7438 does not therefore unconditionally and unreservedly eliminate the necessity of counsel but underscores its importance by requiring that a substitution of counsel with the above-mentioned persons be made with caution and with the essential safeguards. Hence, in the absence of such valid waiver, the Parish Priest of Santol, the Municipal Mayor, the relatives of the accused, the Chief of Police and other police officers of the municipality could not stand in lieu of counsel's presence. The apparent consent of the two (2) accused in continuing with the investigation was of no moment as a waiver to be effective must be made in writing and with the assistance of counsel.[9] Consequently, any admission obtained from the two (2) accused emanating from such uncounselled interrogation would be inadmissible in evidence in any proceeding. Securing the assistance of the PAO lawyer five (5) to eight (8) days later does not remedy this omission either. Although there was a showing that the PAO lawyer made a thorough explanation of the rights of the accused, enlightened them on the possible repercussions of their admissions, and even gave them time to deliberate upon them, this aid and valuable advice given by counsel still

came several days too late. It could have no palliative effect. It could not cure the absence of counsel during the custodial investigation when the extrajudicial statements were being taken.[10] The second affixation of the signatures/ thumbmarks of the accused on their confessions a few days after their closed-door meeting with the PAO lawyer, in the presence and with the signing of the MTC judge, the PAO lawyer and other witnesses, likewise did not make their admissions an informed one. Admissions obtained during custodial investigation without the benefit of counsel although reduced into writing and later signed in the presence of counsel are still flawed under the Constitution. [11] If the lawyer's role is diminished to being that of a mere witness to the signing of a prepared document albeit an indication therein that there was compliance with the constitutional rights of the accused, the requisite standards guaranteed by Art. III, Sec. 12, par. (1), are not met. The standards utilized by police authorities to assure the constitutional rights of the accused in the instant case therefore fell short of the standards demanded by the Constitution and the law. It should further be recalled that the accused were not effectively informed of their constitutional rights when they were arrested, so that when they allegedly admitted authorship of the crime after questioning, their admissions were obtained in violation of their constitutional rights against self-incrimination under Sec. 20, Art. IV, of the Bill of Rights. As testified to, the police informed the accused of their rights to remain silent and to counsel in a dialect understood by them, but despite the accused's apparent showing of comprehension, it is doubtful if they were able to grasp the significance of the information being conveyed. Pertinent portions of the extrajudicial confessions of Pacito Ordoo and Apolonio Medina, translated into English, read PRELIMINARY Mr. Pacito Ordoo, I am informing you that you are being investigated of an offense but before we continue, I tell you that you have the right to remain silent under the new Constitution of the Philippines. And you are also herein reminded that all statements you give may be used for or against you in any Philippine court as evidence and it is herein likewise reminded that you have the right to secure the services of a lawyer of your own choice to represent you in this investigation, do you understand all these? A:....Yes, sir because all that I will state will only be the truth. Q:....Do you want that we will continue with this investigation after having been appraised of all your rights? A:....Yes, sir. Q:....And, do you want that we continue wit the investigation even without a lawyer of your own choice to represent you? A:....Yes, sir. Q:....Are you now prepared to give your voluntary statement consisting only the truth, without any lies whatsoever? A:....Yes, sir x x x x PRELIMINARY Mr. Apolonio Medina, I inform you that you are being investigated of an offense but before we proceed with this investigation, I am informing you that you have the right to remain silent to all questions asked of you, according to the new Philippine Constitution. And you are likewise reminded that all statements you give may be used for or against you in any Philippine court and you have a right to have a lawyer of your own choice to represent you in this investigation, do you understand this? ANSWER - Yes, sir. Q:....After having known all your rights, do you want that we continue with the investigation? A:....Yes, sir. Q:....Do you want that we continue with this investigation even without a lawyer to represent you? A:....Yes, sir because all that I will state are the truth. Q:....Are you now prepared to give your voluntary statement consisting only the truth, nothing but the truth? A....Yes, sir. The advice proffered by the investigating officer to Ordoo starkly resembles that given to Medina, thus leading us to conclude that the advice was given perfunctorily and belonged to the stereotyped class - a long question by the investigator informing the appellant of his right followed by a monosyllabic answer - which this Court has condemned for being unsatisfactory.[12] The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer gives an advice in a cursory manner as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If advice is given casually and tritely as to be useless, understanding on the part of the accused is sacrificed and the unconstrained giving up of a right becomes impaired.

To be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." It is not enough for the interrogator to merely enumerate to the person under investigation his rights as provided in Sec. 12, Art. III, of the Constitution; the interrogator must also explain the effect of such provision in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands.[13] With the extrajudicial confession of the accused rendered inadmissible in evidence, we are left with the interview taken by DZNL radio announcer Roland Almoite as evidence. The taped interview was offered to form part of the testimony of witness Roland Almoite to whom the admissions were made and to prove through electronic device the voluntary admissions by the two (2) accused that they raped and killed Shirley Victore. The defense objected to its acceptance on the ground that its integrity had not been preserved as the tape could easily have been spliced and tampered with. [14] However, as Roland Almoite testified, it was the original copy of the taped interview; it was not altered; the voices therein were the voices of the two (2) accused; and, the defense never submitted evidence to prove otherwise. Under the circumstances, we are inclined, as was the lower court, to admit the authenticity of the taped interview. A review of the contents of the tape as included in Roland Almoite's testimony reveals that the interview was conducted free from any influence or intimidation from police officers and was done willingly by the accused. Despite allegations to the contrary, no police authority ordered or forced the accused to talk to the radio announcer. While it may be expected that police officers were around since the interview was held in the police station, there was no showing that they were within hearing distance nor within the vicinity where the interview was being conducted. At most, the participation of the police authorities was only to allow Roland Almoite to conduct an interview. The taped interview likewise revealed that the accused voluntarily admitted to the rape-slay and even expressed remorse for having perpetrated the crime. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.[15] By analogy, statements made by herein accused to a radio announcer should likewise be held admissible. The interview was not in the nature of an investigation as the response of the accused was made in answer to questions asked by the radio reporter, not by the police or any other investigating officer. When the accused talked to the radio announcer, they did not talk to him as a law enforcement officer, as in fact he was not, hence their uncounselled confession to him did not violate their constitutional rights. Sections 12, pars. (1) and (3), Art. III, of the Constitution do not cover the verbal confessions of the two (2) accused to the radio announcer. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights enumerated under Sec. 12, Art. III, are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. [16] The Bill of Rights does not concern itself with the relation between a private individual and another individual. [17] It governs the relationship between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. They confirm that certain rights of the individual exist without need of any governmental grant, rights that may not be taken away by government, rights that government has the duty to protect. [18] Governmental power is not unlimited and the Bill of Rights lays down these limitations to protect the individual against aggression and unwarranted interference by any department of government and its agencies. The admissions of the accused before the radio announcer and duly tape-recorded are further bolstered and substantiated by the findings of the NBI Medico-Legal Officer as reflected in the Autopsy Report/Post Mortem Findings. The narration of the accused Apolonio Medina that Asing boxed the victim, who was struggling as she was being raped, [19] was proved by the Autopsy Report stating that the victim suffered contusions on the leg, right, lateral aspect, middle third, etc.; [20] that accused Pacito Ordoo boxed the face of the victim to make her weak[21] was proved by the testimony of the NBI Medico-Legal Officer that there was blackening on the face of the victim due to hematoma caused by violence or boxing on her face;[22] and, that accused Pacito Ordoo hanged the victim on a tree by tying a vine around her neck, [23] was proved by the finding of a depressed mark involving the anterior and lateral portions of the neck.[24] As to the assertion of the accused that they were tortured and subjected to inhuman treatment, we find such allegations baseless. The accused were given several opportunities to decry the maltreatment they allegedly suffered in the hands of the police but at no time did they complain about it. First, they could have told the radio announcer outright of the abuses they were subjected to before signing their confessions. Second, when they were brought before the PAO lawyer they likewise did not make any such claims but instead chose to ponder over the lawyer's advice and deferred the signing of their confessions. Lastly, they had the chance to tell the MTC judge about the fatal defect of their confessions, if there was any, when the latter asked them whether they voluntarily signed the same and whether coercion was used in extracting their confessions; however, they answered in the negative. The accused cannot therefore

on a later date make assertions that they were maltreated when at no time - during their detention and when they were in the presence of persons who could have helped them - did they make such complaints. The doctor who physically examined them further disproved their assertions when she testified thus FISCAL TECAN: Q:....Now, you said that you talked with the prisoners, Pacito Ordoo and Apolonio Medina, what did you actually tell them? A:....I said, "What do you feel on your body?" and I also said, "What part of your body are (sic) painful?" Q:....What did they answer? A:....They did not answer me, sir. Q:....More or less, how many questions did you ask? A:....Only that, sir. Q:....After you have observed the prisoners, did you notice any injury? A:....None, sir x x x x Q:....x x x x You noticed any injury on their bodies? A:....None, sir, that is why I looked to see what was really painful. [25] Considering that the doctor was a witness for the defense, it was surprising that she never mentioned about any maltreatment. She saw not a single scratch on the bodies of the accused. She even inquired into their physical well-being but they did not tell her of any pain or injury. They could have easily asked the doctor for immediate treatment if indeed they were physically harmed, but they did not. This puts their claim of maltreatment into serious doubt. With this, the testimony of the mother of the accused Apolonio Medina alleging that the police refused treatment for her son despite his critical condition becomes a fabrication, a mere figment of the imagination. As found by the lower court, her tale of buying an antibiotic for her son, all on her own, without the prescription of a doctor, is hard to believe since she is already an elderly woman, seventy-three (73) years of age, unschooled and illiterate. [26] To further exculpate themselves, the accused invoked alibi. Ordoo testified that at the time of the incident he was at work in the place of Barangay Captain Valentin Oriente,[27] while Medina claimed that he went to carry bananas for a certain aunt Resurreccion.[28] However, such allegations deserve no credit as alibi becomes worthless when it is established mainly by the accused themselves.[29] The defense of alibi is always considered with suspicion and received with caution, not only because it is inherently weak and unreliable, but also because it can easily be fabricated. [30] Quite interestingly, Bgy. Capt. Valentin Oriente was presented as a witness for the prosecution, not for the defense, while "aunt Resurreccion" was not presented at all. Bgy. Capt. Oriente testified that Pacito Ordoo did not work with him on 2 August 1994; on the contrary, he saw him on the bridge at Sitio Guesset. [31] Other than their lame assertions that they were with the above-mentioned persons, the accused failed to substantiate their defense and to give details on what transpired that fateful day, especially since they were in the same town where the crime happened. For alibi to Prosper, it must be convincing, enough to preclude any doubt about the physical impossibility of the presence of the accused at the locuscriminis or its immediate vicinity at the time of the incident.[32] Since the accused failed to convince the Court otherwise, their defense must fall. The lack of prior design or plan to rape and kill the victim prior to the commission of the crime does not negate conspiracy. For conspiracy to exist, proof of an actual planning of the perpetration of the crime is not a condition precedent. It is sufficient that at the time of the commission of the offense the accused had the same purpose and were united in its execution. From the foregoing, it is evident that the accused helped each other in carrying out their beastly acts. The taped interview as played in open court clearly revealed thus (STATEMENT OF ACCUSED APOLONIO MEDINA) INTERPRETER: When I was walking there already about to be near him, he was already holding the woman and said, come and help me because I was (sic) not feeling well. Well, I was shocked of what I saw, sir. But later on, as usual I regained my composure and so I finally went to help him, sir. FISCAL TECAN: We will continue, Your Honor.

INTERPRETER: And then we laid her down among the bushes then Asing boxed her because she was struggling, Your Honor. And Asing did what he wanted, sir. And then he asked me to take my turn and then I went outside to look and see if there are (sic) people and then Asing went to get a vine, sir. And when I arrived at their place, he was already tieing (sic). After that, we left for home, sir.[33] xxx (STATEMENT OF ACCUSED PACITO ORDOO) Q:....But Apolonio Medina was already there as your companion? A:....He was there already, sir. He was the one who held her legs, sir. Q:....Who was the first one to rape or use her? A:....Me, sir. And after that, Apolonio Medina, sir. Q:....And after you were through, what did you do, was she still conscious? A:....She was practically unconscious, sir. Q:....What did you do then? A:....We tied her neck and hanged her on a tree, sir. [34] The modifying circumstance of conspiracy being present, each of the accused shall be liable for the other's acts as well. Article 335 of the Revised Penal Code provides that "when by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death." In 1971, in People v. Jose[35] this Court convicted the four (4) accused with forcible abduction with rape, and three (3) counts of simple rape, and imposed upon each of the accused four (4) death penalties in view of the existence of conspiracy. In 1981, in People v. Yutila[36] this Court affirmed the judgment of the court a quo declaring each of the three (3) accused guilty of the special complex crime of rape with homicide and sentenced each of them to suffer a single penalty of death. However, Justice Barredo in his separate opinion interposed that in accordance with the doctrine laid down in the Jayme Jose case, three (3) death penalties should have been imposed on each of the accused. In People v. Vizcarra[37] where the four (4) accused were charged with rape with homicide, the Court held that only one of them should be held liable for the crime of rape with homicide and all the rest for simple rape. But since four (4) successive offenses were charged and proved, each of the accused was imposed four (4) death sentences for four (4) separate and distinct crimes of rape. The existence of conspiracy among them, the overwhelming evidence as to the nature and the number of crimes committed, as well as the attendance of the aggravating circumstances, fully justified the imposition of four (4) death penalties. In 1988, in People v. Dio[38] where the three (3) accused took turns in ravishing the victim and thereafter killed her, the Court declared each of them guilty of three (3) crimes of rape with homicide and sentenced each of them to three (3) penalties of reclusion perpetua. The penalty in fact should have been death but with its proscription in the 1987 Constitution the penalty imposed was reduced to reclusion perpetua. In 1991, in People v. Flores[39] a registered nurse was successively raped by four (4) men and then killed. The trial court convicted each of them with the special complex,crime of multiple rape with homicide on four (4) counts and as a consequence thereof sentenced each of them to four (4) death penalties. This Court affirmed the decision of the lower court with the modification that the accused should instead suffer four (4) penalties of reclusion perpetua by reason of the constitutional proscription on the imposition of the death penalty. The four (4) death penalties for each of the appellants were explained to be ordained by the fact that conspiracy had been established beyond reasonable doubt. In 1996, in People v. Laray[40] this Court convicted two (2) of the accused charged therein with multiple rape and sentenced each of them to suffer two (2) counts of reclusion perpetua because of the existence of conspiracy. Accordingly, herein accused Pacito Ordoo and Apolonio Medina should be held liable for the special complex crime of rape with homicide on two (2) counts as defined and penalized in Art. 335 of the Revised Penal Code as amended by RA 7659. We have held that the indemnification of the victim shall be in the amount of P100,000.00 if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws.[41] In

addition, this Court has likewise ruled that in crimes of rape the amount of P50,000.00 as moral damages must be awarded to the victim without need of proof nor even pleading the basis thereof. [42] Four (4) Justices of the Court however continue to maintain the unconstitutionality of RA 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. WHEREFORE, the 11 December 1997 Judgment rendered by the Regional Trial Court-Branch 34, Balaoan, La Union, is AFFIRMED with the MODIFICATION that the two (2) accused PACITO ORDONO y NEGRANZA alias ASING and APOLONIO MEDINA y NOSUELO alias POLING are held guilty beyond reasonable doubt of the special complex crime of rape with homicide on two (2) counts and are sentenced each to two (2) DEATH PENALTIES. Each of the accused is further ordered to indemnify the heirs of Shirley Victore in the amount of P200,000.00 as civil indemnity and P100,000.00 for moral damages for both counts of rape. Costs against both accused. In consonance with Sec. 25 of RA 7659 amending Art. 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of his pardoning power. SO ORDERED.

(13) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TITO ZUELA y MORANDARTE, MAXIMO VELARDE y DE LOS REYES, and NELSON GARCIA y TEMPORAS, accused-appellants. [G.R. No. 112177. January 28, 2000] PARDO, J.: The case is an appeal of accused Maximo Velarde y de los Reyes, Nelson Garcia y Temporas and Tito Zuela y Morandarte from the decision[1] of the Regional Trial Court, Camarines Sur, Libmanan, Branch 24, finding them guilty beyond reasonable doubt of robbery with homicide and sentencing each of them to reclusion perpetua, and to pay jointly and severally the amount of one hundred thousand (P100,000.00) pesos to the heirs of Maria Abendao and John Abendao, and fifty thousand (P50,000.00) pesos to the heirs of Hegino Hernandez, without subsidiary imprisonment in case of insolvency, and to pay the costs. [2] On July 29, 1985, Assistant Provincial Fiscal Julian C. Ocampo III filed with the Regional Trial Court, Libmanan, Camarines Sur an information charging accused Maximo Velarde y de los Reyes, Nelson Garcia y Temporas and Tito Zuela y Morandarte with "robbery with triple homicide" committed as follows: "That in the evening of April 27, 1985 in Camagong, Cabusao, Camarines Sur, Philippines, the above-named accused, conspiring and confederating together and mutually aiding each other, with intent to gain, did then and there, willfully, unlawfully, and feloniously, with violence and intimidation gainst [sic] persons, that is by shooting and stabbing one Hegino Hernandez, Sr., Maria S. Abendao and John-John Abendao, thereby inflicting upon them mortal injuries that caused their instantaneous death, take, rob and carry away the following personal properties belonging to the said Maria Abendao, to wit: Sj cj (1) Cash money. . . . . . . . . . . . . . . . . . . . .P21,000.00 (2) one gold ring. . . . . . . . . . . . . . . . . . . . . .P 750.00 (3) one Seiko wrist watch. . . . . . . . . . . . . P 1,250.00 .--------------................................... P23,000.00 "That as a consequence of the felonious act of the accused, the heirs of the deceased suffered damages in the amount of P25,000.00 each, representing indemnity for death, loss of earning capacity and moral damages. "CONTRARY TO LAW."[3] On June 1, 1985, Maximo Velarde was arrested at Magallanes, Sorsogon, while accused Nelson Garcia and Tito Zuela were arrested at Cabusao, Camarines Sur on June 4, 1985 and June 9, 1985, respectively. On March 26, 1987, all three accused, were arraigned with the assistance of their counsel, and pleaded not guilty to the charge. Trial ensued. The evidence established the following facts: Maria Abendao was engaged in business. She had a store, operated a passenger jeepney and engaged in the buy and sale of palay. Her house cum store was beside that of her sister Romualda Algarins house, by the roadside in Barcelonita, Cabusao, Camarines Sur. Romualda also had a store. Accused Nelson Garcia was Marias store helper. Accused Tito Zuela alias "Anting" helped Romualda in he r store during palay season. The other accused Maximo Velarde was known to Romualda because she met him at a birthday party held at Marias house on April 19, 1985. The three accused were friends. On April 27, 1985, Maria made three (3) deliveries of palay on board her jeepney, driven by Hegino Hernandez, Jr., to the ricemill of Gerardo Benitez in San Juan, Libmanan, Camarines Sur. Every delivery costs seven thousand (P7,000.00) pesos. The three deliveries were made at 9:00 in the morning, 2:00 in the afternoon and 7:30 in the evening.[4] Sc jj

Between 6:30 and 7:00 in the evening of that day, from a distance of five (5) arms length, Romualda saw the three (3) accused board the jeepney of Maria, bound for San Juan, Libmanan, Camarines Sur. Because the jeepney was filled with palay, they merely held on the railing of the jeepney.[5] There were other passengers namely, Pablo Abendao and Roberto Echiaca. [6] Gerardo Atienza, the buyer of palay, saw Maximo inside the jeepney during the second and third delivery of palay to his ricemill.[7] For each delivery, Gerardo paid Maria the amount of seven thousand (P7,000.00) pesos. The following morning, the bodies of Hegino Hernandez, Maria and John-John Abendao were found in rigor mortis condition at New Poblacion, Cabusao, Camarines Sur.[8] Dr. Restituto Sampilo, municipal health officer of Cabusao, found Maria in a reclining position on the front seat of the jeepney. John was in a semi-kneeling position, facing his mother with both hands clasping her left hand. Hegino was at the steering wheel with his body, from the abdomen up, resting on the side of the vehicle and his head outside of it. [9] A bullet that exited from Heginos left eyebrow caused the wound near his right ear.[10] Maria had a horizontal stab wound at the front part of her neck just above the xyphoid process. [11] Her seven (7) year old son, John, had a three (3) inch slashed horizontal wound at the front base of the neck, a two (2) inch wound on the left upper arm and two (2) stab wounds on the lateral side of the neck at the junction of the right shoulder.[12] Hegino had a small wound with slightly depressed edges, about an inch from the highest tip of the right ear, a wound with everted and lacerated edges above the middle part of the left eyebrow, and seven (7) stab wounds at the back. [13] Though there were no eyewitnesses, the prosecution established how the crime was committed with the testimony of Romualda Algarin, which was in turn based on the extrajudicial admission given by Maximo Velarde to Romualda when she visited the latter at the Camaligan municipal jail on June 6, 1985. Maximo, Tito and Nelson conceived the plan to hold-up Maria while drinking in front of Romualdas store because Maximo needed money for his fare to Manila. When the palay-laden jeepney of Maria left for Libmanan, Camarines Sur Maximo, Tito and Nelson boarded it. They alighted at sitio Cagumpis, Camagong, Cabusao, Camarines Sur to attend a wedding. [14] Maximo was supposed to board the jeepney on its way back to Barcelonita, while the other two (2) accused, Tito and Nelson would wait along the road at the crossing of New Poblacion and Camagong, Camarines Sur to board the jeepney and hold-up Maria. Everything went according to plan. Nelson and Tito hailed the jeepney at the crossing of Cabusao, Camarines Sur. Upon reaching an uninhabited place, Tito alias "Anting" told Velarde: " Oragui na ngaya ang driver."[15] Maximo poked a gun at the driver and shot him. He also shot Maria at the neck when the latter shouted.[16] Esmmis Nelson and Tito alighted from the jeepney. Nelson went to the left front side of the jeepney, while Tito approached the right front side of the jeepney, in the process stepping on the sleeping John-John who was then awakened. The boy stood up and said, "You will see I will tell my father that you killed my mother." [17] To avoid being identified by the boy, Tito told Maximo " Oragui na ini."[18] Maximo took hold of the boys hair and slashed his neck. Tito took Marias money and divided it, each accused receiving about seven thousand (P7,000.00) pesos from the loot. Tito and Nelson went back to Barcelonita, Cabusao, Camarines Sur. Maximo proceeded to Manila. On June 1, 1985, Lt. Ernesto J. Idian, Station Commander, Cabusao Police Station, Cabusao, Camarines Sur assisted by two (2) other policemen, arrested Maximo in Magallanes, Sorsogon. Though no warrant of arrest had been issued, Maximo was immediately brought to the Camaligan police station in Camaligan, Camarines Sur where he was investigated and asked to give a written statement in the presence of Atty. Jose Ocampo from the Citizens Legal Assistance Office (CLAO), Naga City. [19] On June 4, and 9, 1985, Tito and Nelson were taken into police custody without a warrant. They underwent custodial investigation without the assistance of counsel because no lawyer could be found in Cabusao, Camarines Sur. On the last page of each accuseds confession appeared a statement, in their own handwriting, to the effect that they volunta rily gave their statements and that no one coerced or promised them anything to admit responsibility for the crime.

Maximo, Nelson and Tito signed their individual statements before Judge Lore R. Valencia Bagalacsa, Municipal Circuit Trial Court, Libmanan, Camarines Sur on three (3) different dates. [20] She followed the same procedure and line of questioning, using the local dialect, in ascertaining the voluntariness of the three (3) accuseds confessions. She ordered Lt. Idian and his comp anions to leave her and the accused inside the chamber.[21] Satisfied that they were properly apprised of their rights and that they voluntarily executed their statements, she had them sign their individual extrajudicial statements. Antonio Abendao, the husband of Maria, was working at Saudi Arabia when his family was killed. He came to know about the tragic death of his wife and son through an overseas call from his brother Renato Abendao. When he learned about it, he became unconscious. He arrived in the Philippines five (5) days after. [22]He knew Nelson Garcia because he was the son of his cousin. He was also familiar with Tito Zuela, but he did not know Maximo Velarde. He spent twenty thousand (P20,000.00) pesos for the funeral of his wife and son. He gave one thousand (P1,000.00) pesos financial assistance to the family of their driver, Hegino.[23] Es-mso On the other hand, Maximo, Tito and Nelson interposed common defenses: (1) denial and (2) that they were tortured and forced to make a confession. In addition, Tito and Nelson claimed they were not assisted by counsel when their confessions were taken, while Maximo alleged the defense of alibi saying that he did not leave Magallanes, Sorsogon anytime in 1985. On June 1, 1985, five (5) persons, led by Lt. Idian, went to the house of Maximo Velarde in Magallanes, Sorsogon to fetch him because his parents wanted him at Cabusao, Camarines Sur as his brother Benito Velarde died. He was shown the picture of the cadaver of his brother. Maximo went with the group of Lt. Idian on board a red car and traveled to Naga City, arriving there between 7:00 and 8:00 in the evening. In a dark place before reaching Naga City, the driver stopped the vehicle to urinate. Before the driver could return, Maximo felt a hard object hit his head and he passed out. When he regained consciousness, he was already handcuffed. Pointing a gun at him, Lt. Idian told him that he had two choices, either to die or sign the statement they prepared because his brother had wronged them. He was warned not to tell anyone that he was mauled. Thereafter, they proceeded to the Camaligan municipal jail. Two days later or on June 3, 1985, Maximo was brought out of the jail and ushered into a small room where he saw three persons, namely Lt. Idian, Atty. Jose Ocampo from CLAO, Naga City and Pat. Gonsalo Refe, a police investigator from Cabusao, Camarines Sur. Atty. Ocampo read to him the contents of a prepared statement, which in substance mentioned that some people died and that he was responsible for their death. Maximo refused to sign. Atty. Ocampo stepped out of the room, followed by Lt. Idian and he overheard that he would be made to sign the statement in Atty. Ocampos office in Naga City. Atty. Ocampo then left and Lt . Idian returned to the room. Upon Lt. Idians return to the smaller room, he kicked Maximo in the stomach and poked a gun at him. Consumed by fear, Maximo promised that he would sign the prepared statement. He was then handed a piece of paper and ordered to copy its contents on the prepared statement. Found on page 5 of his extrajudicial confession was this statement, in his own handwriting: Ms-esm "Opo binasa ko po ang apedabeth na ito na may 5# pahina na pawang totoo at sasareling kagustohan at walang nantakot o nangako."[24] On June 4, 1985, Maximo again signed the statement before Judge Lore R. Valencia Bagalacsa, Municipal Circuit Trial Court, Libmanan, Camarines Sur. From the time accused Maximo was arrested, he was never released. Maximo denied that he saw and talked to Romualda on June 6, 1985 at the Camaligan municipal jail because he had been detained at the Libmanan municipal jail since June 4, 1985. For his part, Nelson Garcia denied any knowledge of the crime. On June 4, 1985, the group of Pat. Gonsalo Refe went to his house and invited him to the office of Lt. Idian. He was brought to the Camaligan Police Station. Upon their arrival, Lt. Idian talked to him and tried to convince him to confess to the killing of the Abendaos. Because Nelson refused, Lt. Idian brought him upstairs and mauled him. He was transferred to Naga City jail, where he was detained for two (2) hours. Thereafter, he was brought to the Cabusao Police Station where Pat. Rodolfo O. Cario subjected him to another investigation. Because of his continued refusal to confess, he was mauled again, this time by Pat. Cario. To avoid further injury to his person, on June 5, 1985, Nelson Garcia was forced to sign the prepared statement. He was neither informed of its contents nor assisted by counsel. He was handed a piece of paper, the contents of which he was ordered to copy, in his own handwriting, and in substance was similar to what Maximo was ordered to copy as his own extrajudicial statement. He was brought to the office of Judge Bagalacsa that same afternoon so that he could sign his extrajudicial statement.

From the time he was invited to the office of Lt. Idian, Nelson was never released from police custody. He was first detained at the Libmanan municipal jail, and later on transferred to the Tinangis Penal Farm in Pili, Camarines Sur. Though he suffered physically from the beatings he got from the policemen, he was never permitted to see a doctor. His relatives were not able to visit or talk to him because the policemen prohibited visitors.[25] Like Nelson, Tito alias "Anting," denied participation in the crime. On July 9, 1985, Pat. Refe invited him to the office of Lt. Idian in Cabusao, Camarines Sur. Upon arrival at the police station, he was investigated about his knowledge of the crime. Failing to elicit any information from him, he was brought to Libmanan jail where he spent the night. E-xsm The following day, Tito was again brought to Cabusao Police Station and presented to Lt. Idian. In Lt. Idians office, he was investigated about his involvement in the crime. When he could not provide any answer, he was made to board the police jeep, to be brought back to the Libmanan jail. Along the way, the police jeep stopped and Pat. Cabrera got off and kicked Tito who fell to the ground. He heard a gunshot and was shown the piece of paper that he was ordered to sign before Judge Bagalacsa. He was threatened with death should he refuse to sign the prepared statement. Out of fear for his life, Tito promised to sign. Thereafter, they boarded the police jeep and proceeded to the office of Judge Bagalacsa in Libmanan, Camarines Sur. Upon arrival at the office of Judge Bagalacsa, he was ordered to sign the statement without the assistance of counsel and without being informed of its contents. Thereafter, he was brought to Libmanan municipal jail and later to Tinangis Penal Farm. Like his coaccused, he was never released from police custody from the time of arrest. On August 26, 1993, the trial court promulgated its decision convicting the three (3) accused of robbery with homicide, the dispositive portion of which reads: "WHEREFORE, after a careful and serious evaluation of the evidence presented by the prosecution and the defense, the Court is morally convinced beyond reasonable doubt, that the three (3) accused Maximo Velarde, Tito Zuela and Nelson Garcia had committed the crime of Robbery with Homicide and, therefore, sentences them to suffer the penalty of imprisonment of reclusion perpetua and to pay jointly and severally an indemnity in the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS for the Heirs of Maria Abendao and John Abendao and FIFTY THOUSAND (P50,000.00) PESOS for the Heirs of Hegino Hernandez, without imprisonment in case of insolvency, and to pay the costs. "SO ORDERED. "GIVEN this 26th day of July, 1993 at Libmanan, Camarines Sur, Philippines. "(Sgd.) .."Presiding Judge"[26] SALVADOR G. CAJOT

On the same day, all three (3) accused filed a notice of appeal with the trial court. In their appeal, accused-appellants claim that the trial court erred in: (1) relying on Maximo Velardes extra-judicial confession notwithstanding the violation of his constitutional rights; Ky-le (2) giving full faith and credit to Romualda Algarins testimony; an d (3) finding all three (3) accused guilty as charged despite the prosecutions failure to prove their guilt beyond reasonable doubt. Considering that there were no eyewitnesses to the commission of the crime, the extra-judicial confessions of the three (3) accused play a pivotal role in the determination of their culpability. The Court is duty-bound, therefore, to resolve the issue of whether or not the extra-judicial confessions were executed in accordance with the provisions of the 1973 Constitution, in light of the fact that the crime took place in 1985.

The pertinent provision of the 1973 Constitution provides: "Article IV, Section 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." [27] The right to counsel attaches the moment an investigating officer starts to ask questions to elicit information on the crime from the suspected offender. It is at this point that the law requires the assistance of counsel to avoid the pernicious practice of extorting forced or coerced admissions or confessions from the person undergoing interrogation. In other words, "the moment there is a move or even 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." [28] Lt. Idians team apprehended appellant Maximo in Magallanes, So rsogon on June 1, 1985 when no warrant had been issued for his arrest. Immediately thereafter, the arresting peace officers investigated appellant Maximo. His statement was reduced in writing when they were in Camaligan, Camarines Sur. It was in Camaligan that CLAO lawyer Ocampo was summoned to assist appellant Maximo in the execution of his written confession. Atty. Ocampo was not present during the entire duration that accused Maximo was subjected to custodial investigation as could be inferred from the testimony of Pat. Rodolfo Cario, to wit: "Q: And after taking the statement of Velarde, what did you do with the statement of Velarde? Ky-calr A: It was presented to Atty. Ocampo. Q: Do you want to tell me that inspite of the fact that he was present when the confession was made you still present the statement to Atty. Ocampo? A: In order to let him sign the statement. Q: And where did Atty. Ocampo sign the confession of Velarde? A: It was sign [sic] at Naga because he went ahead. Q: Do you mean to tell me now that after the confession was made, the confession was left to you and after the confession was brought to his office at the CLAO Office in Naga, is that what you want to tell this court. A: We went to Naga with Lt. Idian and Velarde. Q: But it remains a fact that Atty. Ocampo was already at Naga when the statement of Velarde was presented to him for signature, is that correct? A: Yes he went ahead to Naga."[29] There was no evidence that Maximo executed a waiver of his right to counsel. In light of these facts, we are constrained to rule that Maximo Velardes extra-judicial statement is inadmissible in evidence.[30] "An uncounselled extra-judicial confession without a valid waiver of the right to counsel - that is, in writing and in the presence of counsel - is inadmissible in evidence."[31] The respective sworn statements of appellants Tito and Nelson were likewise inadmissible in evidence because they were executed without the assistance of counsel. Despite the fact that the reason for the absence of lawyer during the custodial investigation was the scarcity of lawyers in the area, the Court could not be lenient in this case. The absence or scarcity of lawyers in any given place is not a valid reason for defying the constitutional mandate on counseled confessions. Contrary to the ruling of the trial court, the defect in the confessions of Tito and Nelson was not cured by their signing the extrajudicial statements before Judge Bagalacsa. Calr-ky Nevertheless, the infirmity of accused-appellants sworn statements did not leave a void in the prosecutions case. Accused -appellant Maximo repeated the contents of his sworn statement to Romualda Algarin who, in turn, related these in court. Such declaration to a

private person is admissible in evidence against accused-appellant Maximo pursuant to Rule 130, Section 26 of the Rules of Court stating that the "act, declaration or omission of a party as to a relevant fact may be given in evidence against him." The trial court, therefore, correctly gave evidentiary value to Romualdas testimony. In People vs. Maqueda,[32] we held: "However, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa stand on a different footing. These are not governed by the exclusionary rules under the Bill of Rights. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in connection with Maq uedas plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect; or restrictions on the power of the government found not in particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited. They are the fundamental safeguards against aggressions of arbitrary power, or state tyranny and abuse of authority. In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. "Accordingly, Maquedas admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former under Section 26, Rule 130 of the Rules of Court. In Aballe vs. People (183 SCRA 196 [1990]), this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admission." (Underscoring supplied.)[33] Me-sm And in the recent case of People vs. Andan[34] the Court reiterated the doctrine enunciated in the Maqueda case. In Andan, the Court said that "when the accused talked with the mayor as confidant and not as a law enforcement officer, his uncounselled confession did not violate his constitutional rights. Constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime." Of course, accused-appellant Maximo attempted to discredit Romualda's credibility as a witness when he swore that he could not have been in Camaligan on June 6, 1985 because since June 4, 1985 until some three weeks later, he was detained at the Libmanan jail.[35]The trial court correctly disregarded this self-serving uncorroborated assertion. The defense failed to attribute any ill-motive on the part of Romualda for testifying on accused-appellant Maximos admission and therefore the presumption that in so testifying, she was impelled by no other reason than to tell the truth, stands. The fact that she is related to two of the victims did not render her testimony incredible. Relationship per se is not proof of prejudice.[36] She might have been mistaken as to the date when she talked with accused-appellant Maximo while he was detained considering the more than threeyear gap between June 1985 and September to October 1988 when Romualda testified. However, it is not necessary that the witness should be able to fix accurately the date of the conversation in which the admission was made. What is important is that the witness is able to state the substance of the conversation or declaration. [37] S-l-x Romualdas testimony on accused-appellant Maximos admission sealed not only the latters fate but also that of appellants Tito and Nelson. The rule that an extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused because the latter has no opportunity to cross-examine the confessant and therefore, as against him, the confession is hearsay, [38] is not applicable here. What is involved here is an admission, not a confession. Wharton distinguished these terms as follows: "A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction and which tends only to establish the ultimate fact of guilt." [39] Appellants Tito and Nelson were afforded the opportunity to cross-examine witness Romualda on accused-appellant Maximos declaration. They could have questioned its veracity by presenting evidence in support of their defenses of denial and alibi so they could put to test Romualdas credibility. Having failed to do so, Romualdas testimony, which the trial court correctly considered as credible, stands unscathed. Romualdas testimony on the substance of accused-appellant Maximos admission standing alone, may not be the basis for conviction of the appellants. However, such testimony, taken with circumstances duly established by the prosecution, point unerringly to accused-appellants culpability. These circumstances are: (1) accused -appellants and the victims were all residents of Barcelonita,

Cabusao, Camarines Sur, a small barangay where everyone knew everybody; (2) accused-appellants Tito and Nelson helped in the stores of the sisters Maria and Romualda a week before the incident; (3) Romualda saw the three accused-appellants as they boarded Marias jeepney during its last palay delivery to Libmanan; (4) Gerardo Atienza saw accused-appellant Maximo with Marias group during the jeepneys second delivery of palay; (5) Atienza saw accused-appellant Maximo riding in Marias jeepney after the last delivery; (6) after the commission of the crime, accused-appellants Tito and Nelson no longer went to the store of Romualda; (7) accused-appellants never attended the wake of the victims, and (8) accused-appellant Maximo fled to Manila. Sc-slx These circumstances form an unbroken chain, which, by themselves, lead to a fair and reasonable conclusion that accused-appellants were the culprits in the robbery with homicide. [40] Under the law, circumstantial evidence is sufficient basis for conviction as long as: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proved, and (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt.[41] These requisites were present in this case. Accused-appellants diverse courses of action after the commission of t he crime, with accused-appellant Maximo going to Manila and accused-appellants Tito and Nelson staying in Barcelonita, do not negate their guilt. As regards accused-appellant Maximo, his flight to Manila and to Magallanes, Sorsogon with no plausible explanation therefor is a clear indication of guilt.[42] With respect to accusedappellants Tito and Nelson, their decision to stay in Barcelonita did not mean that they were not equally guilty as accused-appellant Maximo. As this Court once said: "Accused-appellant argues that had he participated in the crime, his natural reaction would have been to flee. We do not agree. Each culprit behaves differently in externalizing and manifesting his guilt. Others may escape or flee which circumstance is strongly indicative of guilt, while others may remain in the same vicinity so as to create a semblance of normalcy, careful not to arouse suspicion in the community." [43] Conspiracy may be inferred from the acts of accused-appellants before, during and after the commission of the crime, which indicate a joint purpose, concerted action and concurrence of sentiments.[44] Whenever homicide is committed as a consequence or on the occasion of the robbery, all those who took part as principals in the conspiracy are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the killing, unless there is proof that they tried to prevent the crime.[45] There is no evidence that any of the accused-appellants desisted from the malevolent intent of the others to kill the victims during the robbery. As such, they shall equally bear the responsibility for the resulting crime. Treachery was not alleged in the information but the suddenness of the assault upon Hegino and Maria from behind was proven beyond reasonable doubt. As such, treachery may be appreciated as a generic aggravating circumstance.[46] As regards seven-year-old John, even if the manner by which he was attacked was not shown, treachery may be deemed to have attended his killing. Treachery exists when an adult person illegally attacks a child of tender years and causes his death. [47]Spped The crime committed is the special complex crime of robbery with homicide defined and penalized in Article 294 of the Revised Penal Code. The trial court correctly considered the crime as robbery with homicide and not "robbery with triple homicide" as charged in the information. The term "homicide" in Article 294(1) is used in its generic sense, embracing not only the act which results in death but also all other acts producing anything short of death. [48] Neither is the nature of the offense altered by the number of killings in connection with the robbery.[49] The multiplicity of victims slain on the occasion of the robbery is only appreciated as an aggravating circumstance. This would preclude an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be treated in the same way that robbery with multiple killings would be.[50] Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable by reclusion perpetua to death. By the presence of two aggravating circumstances, namely, treachery and multiplicity of slain victims, the proper penalty should be death in view of Article 63 (1) of the same Code. [51] However, considering that when this case happened, the imposition of the death penalty was proscribed, the proper imposable penalty was reclusion perpetua. The heinousness of the crime they committed notwithstanding, accused-appellants may not be deprived of such favorable factor in their case. The Solicitor Generals plea for modification of the penalty in accordance with Republic Act No. 7659 which "has already expr essly converted reclusion perpetuainto a divisible penalty" and on account of the decision in People vs. Lucas,[52] is untenable. It must be stressed that the Lucas ruling has been reconsidered and, accordingly, the Court has held: "After deliberating on the motion and re-examining the legislative history of R.A. No. 7659, the Court concludes that although Section 17 of the R.A. No. 7659 has fixed the duration of reclusion perpetua from twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible penalty. It shall then remain as an indivisible penalty." [53]

The trial court failed to award the heirs of Maria Abendao the amount of twenty three thousand (P23,000.00) pesos in reimbursement of the stolen cash, ring and wristwatch and the expenses amounting to twenty thousand (P20,000.00) pesos for her wake and that of her son, which were duly proved.[54] The heirs are entitled to those amounts as reparation of the damage caused by accused-appellants. They shall also be liable for exemplary damages in view of the presence of two aggravating circumstances in the commission of the crime.[55] Josp-ped WHEREFORE, the Court AFFIRMS with MODIFICATION the decision of the trial court. The Court renders judgment finding accused-appellants Tito Zuela y Morandarte, Maximo Velarde y de los Reyes, and Nelson Garcia y Temporas guilty beyond reasonable doubt of robbery with homicide, defined and penalized under Article 294 (1) of the Revised Penal Code, and sentences each of them to reclusion perpetua with all its accessory penalties and to pay civil indemnity of one hundred thousand (P100,000.00) pesos to the heirs of Maria Abendao and John Abendao and fifty thousand (P50,000.00) pesos to the heirs of Hegino Hernandez, Jr. In addition, the Court sentences each of the accused-appellants solidarily to pay the additional amounts of forty three thousand (P43,000.00) pesos as reimbursement of damages to the heirs of Maria Abendao, and fifty thousand (P50,000.00) pesos as exemplary damages to the heirs of each of the three (3) victims. With costs. SO ORDERED.

(14) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAMUEL MARRA y ZARATE, ALLAN TAN, alias "Allan Yao," PETER DOE, PAUL DOE and TOM DOE, accused. SAMUEL MARRA y ZARATE, accused-appellant. [G.R. No. 108494 September 20, 1994] REGALADO, J.: In an information filed before the Regional Trial Court, Branch 43, Dagupan City, Samuel Marra y Zarate, John Doe, Peter Doe, Paul Doe and Tom Doe were charged with the crime of murder for the fatal shooting of one Nelson Tandoc on March 7, 1992. 1 On June 4, 1992, an amended information was filed wherein Allan Tan, alias "Allan Yao," was indicated as an accused instead of John Doe. 2 A warrant of arrest was thereafter issued against Allan Tan 3 but the same was returned unserved, 4 hence trial proceeded with regard to herein accused-appellant Samuel Marra alone. Duly assisted by counsel, appellant pleaded not guilty upon arraignment on May 15, 1992. 5 After trial on the merits, judgment was rendered by the court below on October 8, 1992 finding appellant guilty beyond reasonable doubt of the crime charged, attended by the aggravating circumstance of nighttime, and sentencing him to suffer the penalty of reclusion perpetua. He was further ordered to pay the heirs of Nelson Tandoc the sums of P50,000.00 as death indemnity, P50,000.00 as actual damages, P100,000.00 as moral damages, and the costs. 6 The prosecution's eyewitness, Jimmy Din, positively identified appellant as the triggerman in the killing of Nelson Tandoc. Din recounted that at around 2:00 A.M. on March 7, 1992, he and his friend, Nelson Tandoc, were conversing with each other in front of Lucky Hotel located at M.H. del Pilar Street, Dagupan City, which was owned by the witness' father and of which he was the administrator. He noticed a man pass by on the opposite side of the street. The man made a dirty sign with his finger and Din informed Tandoc thereof. The man repeated his offensive act and called them by waving his hands. Infuriated, they followed the man until the latter stopped in front of the Dunkin' Donuts store at the corner of Arellano and Fernandez streets. They demanded an explanation from the man but they were not given any. 7 At that instant, two men arrived and one of them inquired what was going on. Tandoc informed him that they were just demanding an explanation from the man. Din was surprised when Tandoc unexpectedly slapped one of the two men. A brawl ensued, with Tandoc clashing with the two men while Din exchanged blows with the man who made the dirty finger sign. After the fisticuffs, their three opponents ran away in a westward direction. 8 Tandoc and Din then decided to walk back to the hotel. When they were about to enter the place, they noticed that the men with whom they just had a fight were running towards them. Sensing danger, they ran inside the annex building of the hotel and immediately secured the lock of the sliding outer door. They entered a room and waited until they felt that the situation had normalized. After ten to fifteen minutes, thinking that the men were no longer in the vicinity, they left the room. Having decided to go home, Tandoc opened the sliding door. All of a sudden, Din saw Appellant, who at that time was wearing a security guard's uniform, shoot Tandoc with a revolver. There was a fluorescent bulb installed at the front of the hotel which enabled Din to identify the assailant. Tandoc was shot in the middle of the chest and he fell down. Then, Din saw four to five men scamper away from the scene. 9 Aware of his injury, Tandoc told Din, "Tol, I was shot." The latter tried to chase appellant and his companions but he failed to catch up with them. Din and his wife then brought Tandoc to the Villaflor Hospital. The victim was taken to the emergency room but he expired an hour later. 10 At about 3:45 A.M. of March 7, 1992, SPO3 Reynaldo de Vera of the Dagupan City Police Station received a report about a shooting incident at the annex building of the Lucky Hotel. He proceeded to the crime scene along with SPO4 Orlando Garcia, SPO3 Mauricio Flores and SPO3 Noli de Castro. Upon their arrival about five minutes later, they were informed by the wife of Jimmy Din that the victim had been brought to the Villaflor Hospital. They proceeded to the hospital where Din informed them that he could recognize the man who killed Tandoc and that the killer was, at that time, wearing the polo shirt of a security guard's uniform. 11 They decided to proceed to an eatery called "Linda's Ihaw-Ihaw." Seeing the security guard of a nearby bus company, they inquired from him if he knew of any unusual incident that happened in the vicinity. The guard said that he saw the guard of "Linda's IhawIhaw," together with some companions, chasing two persons running towards M. H. del Pilar Street. He further added that the man was wearing a polo shirt of a security guard's uniform. Asked where that particular guard might be, he pointed to a man eating inside the eatery nearby. The man eating was not in a security guard's uniform. 12 They approached the man and inquired whether he was the security guard of "Linda's Ihaw-Ihaw," which the latter answered in the affirmative. After a series of questions, they learned that he was Samuel Marra, that his tour of duty was from 7:00 P.M. of a

preceding day to 6:00 A.M. the following day, that he was still on duty at around 2:30 in the morning of March 7, 1992, and that the firearm issued to him was in his house. Upon their request to see the firearm, they proceeded to Marra's residence at Interior Nueva Street. 13 When they arrived, Marra took a .38 caliber revolver from inside an aparador and handed it to De Vera. De Vera also found five live bullets and one spent shell. Smelling gunpowder from the barrel of the gun, De Vera asked Marra when he last fired the gun but the latter denied ever having done so. Abruptly, De Vera asked him point-blank why he shot Tandoc. Marra at first denied the accusation but when informed that someone saw him do it, he said that he did so in self-defense, firing at the victim only once. Tandoc allegedly had a samurai sword with him at the time of the incident. However, persistent efforts on the part of the policemen to thereafter locate said bladed weapon proved futile. Marra also admitted that prior to the incident, he chased the victim and Din. The officers then took Marra to the police station where he was detained. 14 Meanwhile, De Vera went to Villaflor Hospital from where he fetched Din and brought him to the police station. There, Din definitely identified Marra as the assailant. During the investigation, De Vera also found out that Marra had not firearm license. 15 Dr. Tomas G. Cornel, Assistant City Health Officer of Dagupan City, testified that he conducted an autopsy on a certain Nelson Tandoc. He found a gunshot wound on the victim with the point of entry of the left side of the anterior chest wall and the point of exit at the lower left portion of the right shoulder. 16 Prosecutor Gregorio Gaerlan, stepfather of the victim, testified on the funeral, burial and other expenses incurred by the family. He declared that they paid Funeraria Quiogue P25,000.00 for its services; Villaflor Hospital, P2,875.00 for the confinement of Tandoc; St. John Memorial Cathedral, P350.00; Eternal Garden, P3,000.00 for the interment fee and P150.00 for the rent of the tent during the burial; and that they spent P2,300.00 for the video tape expenses and P11,800.00 for food and drinks during the wake. 17 Understandably, appellant gave a different version of the incident. Marra declared in court that he used to work as a security guard at "Linda's Ihaw-Ihaw" from seven o'clock in the evening to six o'clock in the morning of the following day. On March 6, 1992, he reported for duty at seven o'clock that evening as was his usual practice. At around four o'clock down of the following day, he went home to change his clothes. He proceeded to the Five Star Bus Terminal which was adjacent to "Linda's Ihaw-Ihaw." He saw Neneng, the cashier of said eatery, and together they ordered arroz caldo. Later, at about 5:00 A.M., he was approached by four policemen who inquired if he was a security guard. He answered in the affirmative. He was also asked about his sidearm. When he answered that it was at his residence, they all went to his house to look for it. After he handed over the firearm to the policemen, he was brought to the city hall where he was detained. 18 Under cross-examination, he insisted that when he handed the gun to the policeman, there were five live bullets, and not four live bullets and one empty shell as claimed by the prosecution. Prior to the incident, he had never met Jimmy Din nor does he know of any cause why Din would harbor any ill feelings against him. 19 After a careful scrutiny of the records and an objective evaluation of the evidence, the Court is not disposed to reverse the judgment of the lower court, the decision of the latter being amply supported by the established facts and fully sustained by the applicable law. In assailing the decision of the court below, the defense argues that "Jimmy Din . . . was not able to identify the assailant in a definite and believable manner." It goes on to state further that " Jimmy Din was inside the hotel when Nelson Tandoc was shot and his vision was o(b)structed by the door. Jimmy Din was also not familiar with the accused. Under the circumstances by which he allegedly witnessed the shooting, how could be identify clearly an assailant at the distance of 45 meters?" 20 Appellant's counsel is only partly correct, having conveniently failed to mention other vital parts of Din's testimony. An impartial review of said testimony readily reveals that Din was indeed in a position to know the identity of the assailant. Firstly, Din knew for a fact that the persons he and Tandoc fought with near the Dunkin' Donuts store were the same men who chased them while they were on their way back to the hotel because he was able to take a good look at them. During the chase, he naturally turned around to look at the men who were running after them and who were at that time in front of the Balingit Trading store which was well-lighted. 21 It logically follows that they were the same persons who were waiting for them when they later came out of the hotel, and he was familiar with their identities because of their previous encounter. Secondly, we do not agree with appellant that the door blocked the view of Din. Said door, partly made of plywood, had a spring hinge which makes it possible for the door to close by itself. However, at that time the spring hinge had been weakened by long and constant use such that it would take some time for it to close the door, thereby allowing Din sufficient opportunity to have an unobstructed view of the scene outside. 22

Thirdly, Din was quite near the victim and appellant, which proximity, enabled him to clearly see what really happened. He thus readily perceived the actual shooting at the time when Tandoc pushed the door open. At that precise moment, Din was at the left side of Tandoc and about four to five meters away from the assailant. 23 Lastly, the place was brightly illuminated by a 20-watt fluorescent bulb installed on the outside wall in front of the hotel. Marra was only about three meters away therefrom. Such physical conditions would undeniably afford a clear view from inside the hotel of the immediate area outside and in front of the same where the incident took place. The prosecution presented another vital witness in the person of Sgt. Reynaldo de Vera, whose testimony we shall repeat here for easy reference. In capsulized form, De Vera narrated the sequence of events that happened after he and his companions went to the crime scene to conduct an investigation. Having received information that a man in a security guard's uniform was involved in the incident, they sought information from a security guard of a nearby bus terminal. Said security guard pointed them to Marra, who at that time was eating in a carinderianearby. Informed by Marra that his gun was at his residence, they all went to Marra's residence to get the same. After receiving said firearm, De Vera asked appellant why he killed Tandoc but Marra initially denied any participation in the killing. Nevertheless, when confronted with the fact that somebody saw him do it, Marra admitted the act although he alleged it was done in self-defense. This testimony of De Vera as to the confession of Marra is of significant weight, but the admissibility thereof shall also be passed upon. Section 12(1), Article III of the 1987 Constitution provides that "(a)ny 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. . . . ." The critical inquiry then is whether or not Marra was under custodial investigation when he admitted the killing but invoked self-defense. We believe that he was not so situated. Custodial investigation involves 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 . It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. 24 In the case at bar, appellant was not under custodial investigation when he made the admission. There was no coercion whatsoever to compel him to make such a statement. Indeed, he could have refused to answer questions from the very start when the policemen requested that they all go to his residence. The police inquiry had not yet reached a level wherein they considered him as a particular suspect. They were just probing into a number of possibilities, having been merely informed that the suspect was wearing what could be a security guard's uniform. As we held in People vs. Dy: 25 "What was told by the accused to Pat. Padilla was a spontaneous statement not elicited through questioning, but given in an ordinary manner. No written confession was sought to be presented in evidence as a result of formal custodial investigation. 26 The trial Court, therefore, cannot be held to have erred in holding that compliance with the constitutional procedure on custodial investigation is not applicable in the instant case, . . . ." Accordingly, the testimony of Sgt. de Vera assumes a dominant dimension because it totally destroys the defense of denial cum alibi subsequently raised by appellant. In his answers to Sgt. De Vera, appellant expressly admitted that he shot Tandoc, albeit with an exculpatory explanation. This admission of Marra is in complete contrast to the statements he later made in open court. In addition, the law provides that the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein may be given in evidence against him and, in certain circumstances, this admission may be considered as part of the res gestae. In a similar situation involved in the aforecited case ofPeople vs. Dy, this Court held: . . . the oral confession made by the accused to Pat. Padilla that "he had shot a tourist" and that the gun he had used in shooting the victim was in his bar which he wanted surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9) is competent evidence against him. The declaration of an accused acknowledging his guilt of the offense charged may be given in evidence against him (Sec. 29 [now Sec. 33], Rule 130). It may in a sense be also regarded as part of the res gestae. The rule is that, any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such a case it must be given in substance. (23 C.J.S. 196, cited in People vs. Tawat, G.R. No. 62871, May 25, 1985, 129 SCRA 431). (Italics supplied.) In any event, even without his admission, the case against appellant has been duly established by the other evidence of the prosecution, as earlier discussed. However, persistently arguing for an acquittal, the defense points out that when the police officers saw Marra, he was not in a blue uniform whereas Din testified that the person who shot Tandoc was wearing the polo shirt of a security guard's uniform. This is a puerile argument since appellant himself removed any lingering doubts on this point. He said that on ending his tour of duty at 4:00 A.M. of March 7, 1992, he decided to go home to change clothes, after which he went to "Linda's

Ihaw-Ihaw" to eat. This explains why, at the time the police officers saw him, he was already in civilian clothes. The shooting had taken place earlier at around 2:00 A.M. At that time, Marra was still in his security guard's uniform, being then on duty. However, while we agree that the crime committed by appellant was murder qualified by treachery, we reject the finding that the same was aggravated by nighttime. No evidence was presented by the prosecution to show that nocturnity was specially sought by appellant or taken advantage of by him to facilitate the commission of the crime or to ensure his immunity from capture. 27 At any rate, whether or not such aggravating circumstance should be appreciated, the penalty to be imposed on appellant would not be affected considering the proscription against the imposition of the death penalty at the time when the offense in the instant case was committed. WHEREFORE, the judgment of the court a quo finding accused-appellant Samuel Marra y Zarate guilty of the crime of murder and imposing upon him the penalty and civil liabilities therein stated is hereby AFFIRMED. SO ORDERED.

(15) SALVADOR SEBASTIAN, SR., petitioner, vs. HON. FRANCIS E. GARCHITORENA, HON. JOSE S. BALAJADIA, and HON. NARCISO T. ATIENZA (SANDIGANBAYAN-First Division), respondents. [G.R. No. 114028. October 18, 2000] DE LEON, JR., J.: Before us is a petition for certiorari under Rule 65[1] in conjunction with Rule XIX of the Revised Rules of the Sandiganbayan, seeking to annul the Resolution[2] dated August 24, 1993 of the Sandiganbayan, First Division which admitted the sworn statements of petitioner Salvador Sebastian, Sr. and his co-accused in Criminal Case No. 17904 as evidence for the prosecution, and the Resolution dated September 27, 1993 which denied the motion for reconsideration of the said Resolution. On July 28, 1992, Special Prosecution Officer III Teresita Diaz-Baldoz filed with the Sandiganbayan an Information for the crime of Malversation of Public Funds[3], as defined and penalized under Article 217 of the Revised Penal Code, against Rosita C. Pada, Teresita B. Rodriquez, Rachel V. Torres, Lourdes A. Enriquez and Salvador C. Sebastian. It reads: That on or about the period comprised between January 1989 and June 21, 1990, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, ROSITA C. PADA, being then the Regional Postage Stamps Custodian, and as such is accountable for the custody of the postage stamps received and issued by her by reason of the duties of her office, TERESITA B. RODRIGUEZ, being then the Senior Clerk in the Postage Stamps Section, RACHEL V. TORRES, being then a Utility Man in the Postage Stamps Section, LOURDES A. ENRIQUEZ, being then a Senior Clerk in the Mail Delivery Section and SALVADOR C. SEBASTIAN, being then a Letter Carrier, all of the Postal Services Office, Region IX, Zamboanga City, while in the performance of their official functions, taking advantage of their position, committing the offense in relation to their office, and conspiring and confederating with one another, did then and there wilfully, unlawfully, feloniously and with grave abuse of confidence, misappropriate, misapply, and embezzle and convert to their personal use and benefit the amount of SIX HUNDRED FORTY NINE THOUSAND TWO HUNDRED NINETY and 05/100 PESOS (P649,290.05), Philippine Currency, out of the postage stamps in the custody of accused Rosita C. Pada, to the damage and prejudice of the Government in the aforesaid sum. Contrary to law. Rosita C. Pada, Rachel V. Torres, and Salvador C. Sebastian entered separate pleas of "Not Guilty" on October 13, 1992.[4] On April 22, 1993, the marking of the documents to be testified on by the lone prosecution witness, Auditor Lilibeth Rugayan of the Commission on Audit, who conducted the audit examination, took place before the Deputy Clerk of Court of the First Division of the Sandiganbayan. The marking of the exhibits was with the conformity of all of the accused and their respective counsel. Upon the completion of the testimony of Auditor Rugayan, the prosecution rested its case [5]and formally offered its evidence on July 6, 1993.[6] Among those offered as evidence were the sworn statements made by all the accused, including that of petitioner, and previously marked as exhibits "Q", "R", "S", "T", "U", and "U-1" for the prosecution. Said exhibits were offered as part of the testimony of Auditor Rugayan. On August 19, 1993, all the accused (including petitioner) filed their "Joint Objections to Formal Offer of Evidence" on the principal ground that the sworn statements were "hearsay" evidence.[7] The Sandiganbayan in its Minute Resolution[8] dated August 24, 1993, admitted said evidence, thus: Acting upon the "FORMAL OFFER OF EVIDENCE" dated July 5, 1993, of the Prosecution and considering the "JOINT OBJECTIONS TO FORMAL OFFER OF EVIDENCE" dated August 19, 1993, of accused, the Court RESOLVES the same as follows: Exhibits A, B, and C are admitted, they being certified true copies of official documents; Exhibits D up to U and U-1 inclusive of submarkings are admitted as part of the testimony of Lilibeth Rugayan as examining auditor under the State Auditing Code (P.D. No. 1445). Dissatisfied, the three accused, on September 13, 1993, jointly filed a Motion for Reconsideration, but the same was denied by the respondent court in its Resolution[9] dated September 27, 1993. It ruled that: Considering that under the Order of this Court dated April 22, 1993 (p. 85) the exhibits "off-court" was admitted by the accused through counsel, among which were exhibits "A", "B" and "C", the Motion for Reconsideration filed by the accused Pada, Torres and Sebastian with regard to the admission of said exhibits dated September 10, 1993 is denied.

Hence, this petition. The only issue to be resolved in the present petition is whether or not the sworn statements of petitioner and his co-accused are admissible in evidence "as part of the testimony of the prosecution witness". Petitioner argues that the said issue should be resolved in the negative on the ground that the subject sworn statements are hearsay evidence. Petitioner contends that he and his co-accused were never presented as witnesses, thus, they were not given the opportunity to identify and authenticate their respective sworn statements and that Auditor Rugayan had no personal knowledge of the contents thereof. We disagree. As a general rule, hearsay evidence is inadmissible. Thus, the rule explicitly provides that a witness can testify only on those facts which he knows of his personal knowledge, that is, which are derived from his own perceptions.[10] However, while the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement.[11] In the present case, the sworn statements executed by the petitioner and co-accused were offered not to prove the truth or falsity of the facts stated therein but only to prove that such written statements were actually made and executed. As stated in the Resolution dated August 24, 1993 of the respondent court, Exhibits "D" up to "U" and "U-1" were admitted only as part of the testimony of Lilibeth Rugayan as Examining Auditor.Title II, Chapter I, Section 55 of P.D. 1445, otherwise known as the Government Auditing Code provides that "the auditor shall obtain through inspections, observation, inquiries, confirmation and other techniques, sufficient competent evidential matter to afford himself a reasonable basis for his opinions, judgments, conclusions and recommendations". It is also the contention of petitioner that he never admitted the said sworn statements during the pre-trial conference; that he agreed merely to the "marking" of the said sworn statements as exhibits of the prosecution; and that "marking" is different from "admission". The main purpose of a pre-trial is to expedite the trial. Thus, the respondent court in its Order dated April 22, 1993 ruled that: By agreement of the parties, the sub-marking of the documents to be testified to by Auditor Lilibeth Rugayan has been completed and only the other sub-markings will take place during the proceedings. Additionally, the parties have informally agreed that all the documents marked today are deemed authenticated except for the alleged responses of the various postmasters as to the request for confirmation which the accused dispute both as to their authenticity as well as to their accuracy assuming that they are authentic. In view of this, subject to confirmation this afternoon, the direct examination will be waived and the cross-examination by the accused will take place primarily to dispute the statement above-mentioned. This Order of the Sandiganbayan reciting the actions taken, the facts stipulated, and evidence marked, binds the parties and limits the trial to matters not disposed of and shall control the course of the action during the trial, unless modified by the court to prevent manifest injustice.[12]The record does not show that petitioner and his co-accused objected to the above-mentioned Order. In any event, any evidence presented during the pre-trial conference cannot be considered by the court if not formally offered. It has been held that any evidence which a party desiring to submit for the consideration of the court must be formally offered by him. [13] Such a formal offer is necessary because it is the duty of the judge to rest his findings of facts and his judgment only upon the evidence offered by the parties at the trial. Petitioner in his supplemental pleading claims to have been deprived of his constitutional rights under Sections 12 and 17, Article III of the 1987 Constitution. Petitioner alleges that nothing in his sworn statement shows compliance with the constitutional provisions on the right to counsel, the right to remain silent and the right to waive these rights in the presence of counsel. Entrenched is the rule that the rights provided in Section 12, Article III of the Constitution may be invoked only when a person is under "custodial investigation" or is "in custody investigation." Custodial investigation has been 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.[14] The fact-finding investigation relative to the missing postage stamps at the Postage Stock Section of Zamboanga City conducted by a Enrique G. Saavedra, Chief Postal Service Officer, is not a custodial investigation. It is merely an administrative investigation. While an investigation conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such a body to furnish the person being investigated with counsel.[15] It has been held in the case of Lumiqued v. Exevea [16] that the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service.

Petitioner, likewise contends that the Ombudsman acted with grave abuse of discretion in filing the Information for malversation against him.He argues that in its first Resolution dated March 18, 1992 of the Office of the Ombudsman, Graft Investigation Officer Rodolfo Rojas, Jr. recommended the filing of an Information for Malversation of Public Funds against Rosita C. Pada only. However, in its subsequent resolution dated July 28, 1992, Special Prosecution Officer Teresita Daiz-Baldos recommended the prosecution of the four other accused, including petitioner, stating that: Thus, for purposes of prosecution, it would be more expedient to indict all the respondents for Malversation and let them explain in court the actual extent of their individual accountability. x x x x x x WHEREFORE, premises considered, the undersigned respectfully recommends the prosecution of Rosita Pada, Teresita Rodriguez, Rachel Torres, Lourdes Enriquez and Salvador Sebastian, for Malversation of Public Funds, and the exclusion for liability of Florecita Doromal." Hence, petitioner now questions the disposition of the Ombudsman as merely engaging in a fishing expedition in this case. This Court has consistently refrained from interfering with the exercise by the Ombudsman of his constitutionally mandated investigatory and prosecutory power. Otherwise stated, it is not for this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before his Office. Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service. [17] Lastly, the Court noted that the petition, as described therein, is one filed under Rule 45 of the Rules of Court. However, under Rule 45, a petition for review on certiorari is a mode of appeal from judgments or final orders or resolutions and limited to questions of law. Petitioner's choice of remedy therefore is clearly an error. The resolutions of the Sandiganbayan herein sought to be reviewed or set aside are not in any sense judgments or final orders or resolutions; they are interlocutory in nature and from which no appeal lies. WHEREFORE, the petition is hereby DISMISSED for lack of merit. SO ORDERED.

(16) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PANFILO CABILES alias "NONOY", accused-appellant. [G.R. No. 112035 January 16, 1998] MELO, J.: Accused-appellant, Panfilo Cabiles, alias Nonoy, seeks the reversal of the decision of the Regional Trial Court of the National Capital Judicial Region (Branch 124, Kalookan City), finding him guilty of the crime of Robbery with Rape, as follows: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds the accused Panfilo Cabiles aliasNonoy guilty beyond reasonable doubt of Robbery with Rape as charged and hereby sentences him to suffer imprisonment of Reclusion Perpetua in accordance with Paragraph 2 of Art. 294 of the Revised Penal Code; to indemnify the victim Luzviminda Aquino in the amount of P30,000.00 as consequential damages. Said accused is also ordered to return to Marites Nas Atienza the stolen Seiko Wrist watch worth P1,500.00 and one gold ring worth P500.00 and if unable to do so, to pay said victim the corresponding prices of these articles as shown above; to reimburse Marites Nas Atienza the amount of P1,000.00 in cash and to pay the costs. The accused shall be entitled to the full period of his preventive imprisonment, pursuant to Art. 29 of the Revised Penal Code provided with the conditions enumerated thereon have been complied with. SO ORDERED. (pp. 86-87, Rollo.) Through an Amended Information, accused-appellant, together with the additional accused, was charged as follows: That on or about the 5th day of November 1989, in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused by means of force and violence, with intent of gain, conspiring together and mutually helping one another, did then and there willfully, unlawfully and feloniously take, rob, and carry away one (1) gold ring worth P500.00, one (1) ladies seiko watch worth P1,500.00, cash money worth P1,000.00, one (1) bracelet worth P500.00 and wristwatch (Channel) worth P800.00 belonging to one Marites Nas Atienza, to the latter's damage and prejudice, and by reason or on occasion of said robbery, with the use of a deadly weapon, and lewd designs, had carnal knowledge of one LUZVIMINDA AQUINO Y AREVALO, and then attacked, assaulted and stabbed one ARNEL CERICOS Y MICIANO with the same weapon, thereby inflicting upon the latter serious physical injuries. (p. 7, Rollo.) Accused-appellant's co-accused, Jaime Mabingnay, was neither apprehended nor arraigned, whereas accused-appellant was arraigned on both original and amended informations. After trial, following the entry of a not guilty plea, the above-quoted verdict was rendered. Hence, the instant appeal. As deduced from the prosecution's evidence which came primarily from the testimony of Marites Nas Atienza and Luzviminda Aquino, the inculpatory facts are as follows: Marites Nas Atienza, a housewife whose husband was abroad, was residing at No. 224 Malambing St., Amparo Subdivision, Kalookan City. On the eve of November 5, 1989, she was asleep with her 1 1/2-year old daughter, Erica Dianne Atienza, inside her room at her house. Approximately two steps away from her bed, Luzviminda Aquino, Marites' housemaid, was sleeping on a sofa. The house has an area of about 29 square meters. The main door is located at the kitchen. In the kitchen, there is a stairway leading to a store. To the left of the house is the bedroom where the three were asleep. The place was illuminated by the light coming from a 25watt electrical bulb which was outside the room's window (tsn, March 5, 1990, p. 6; tsn, April 5, 1990, pp. 20-24, 28; tsn, April 26, 1990, pp. 4, 6, 8, 10, 17). At around 1:15 o'clock on the morning of November 5, 1989, a man suddenly barged into the house of Marites by destroying the kitchen door and removing the lawanit wall thereof, thus enabling him to reach the lock inside. The man suddenly poked a 6-inch kitchen knife on the right side of Marites' neck. This awakened her. She was told not to shout, otherwise she would be killed. Then the man placed masking tape on her mouth and ordered her to bring out her money and jewelry. At the point of the knife, Marites, while carrying her baby, went to the cabinet outside the room, took cash amounting to P1,000.00, a Seiko watch worth P1,500.00, a lady's

wristwatch with the trademark "Chanel" (also referred to in the records as "Channel") worth P850.00, a bracelet worth P500.00, and a ring worth P500.00, and gave them to the man. Afterwards, they went back inside the bedroom and Marites sat on her bed, still cuddling her baby (tsn, March 5, 1990, pp. 7-8, 11-12, 40; tsn, April 5, 1990, pp. 19, 30, 31). Marites later identified the man as accused-appellant. Meanwhile, Luzviminda was awakened by the crying of Marites' baby. When she was about to shout, the man poked the knife on her left side, causing her an injury. The man then told her, "Huwag kang sisigaw kundi papatayin kita." Meanwhile, Marites sat on the bed, trembling with fear, as she cuddled her baby. The man also placed masking tape on Luzviminda's mouth. Thereafter, he forcibly held both of her arms in front of her. Notwithstanding her struggle to hide her hands at her back, accused-appellant succeeded in tying her hands at the front with the use of a piece of shoestring (tsn, March 5, 1990, pp. 9-10, 16; tsn, April 5, 1990, pp. 34-35; tsn, April 26, 1990, pp. 6-9, 27, 34, 44). Luzviminda likewise later identified the man as accused-appellant. The man then went to the store which was only about 4 to 5 steps away from Marites' bed. He ransacked the same in search for more valuables. Thereafter, he took a bottle of beer from the refrigerator and began drinking. Afterwards, he returned to the room and sat beside Luzviminda (tsn, March 5, 1990, p. 10; tsn, April 5, 1990, p. 25). While the man continued to hold the knife, he tapped Luzviminda's thigh. When he was about to consume the beer, he started removing Luzviminda's pants and underwear while still holding the knife with his right hand. The man then rolled down his short pants to his thighs. He poked the knife on Luzviminda's right side and despite the latter's resistance, he succeeded in inserting his sexual organ into Luzviminda's private parts after forcibly lying on top of her. Luzviminda struggled and kicked, accidentally hitting with her right foot the knife thus causing her injury. All the while, Marites was still cuddling her daughter, as she sat on her bed in extreme fear. She was witnessing Luzviminda being raped by the man. While on top of Luzviminda and continuously doing the sexual act, the man uttered: "Isusunod ko ang Ate mo pagkatapos ko sa iyo." Upon hearing those words, Marites tried to escape by asking permission to prepare milk for her baby (tsn, March 5, 1990, pp. 11-14, 16-17; tsn, April 5, 1990, pp. 36, 38, 40, 42; tsn, April 26, 1990, pp. 10-11, 13-14, 27). While carrying her child, Marites was able to run to the house of her neighbor, Arnel Cericos, from whom she asked for help. Ceriro's house was approximately twelve steps away from Marites' house. Marites decided to hide at Ceriro's house. When Cericos entered the room, the man was still on top of Luzviminda. However, upon seeing Cericos, the man stood up right away and stabbed Cericos four times. Afterwards, they chased each other outside the house. Meanwhile Luzviminda put on her pants and ran toward Cericos' house (tsn, March 5, 1990, pp. 18-19; tsn, April 26, 1990, pp. 15, 18). When Marites learned that Cericos was injured, she rushed back to her house to administer first aid to him. Cericos sustained a stab wound on his chest, two stab wounds on his left arm, and a stab wound on his right arm. Cericos then complained of difficulty in breathing. Consequently, Marites brought him to a physician, one Col. Javier, for treatment. When Cerico's complaints continued, Marites decided to bring him to the V. Luna Hospital in Quezon City at about 4 o'clock that morning (tsn, March 5, 1990, pp. 19-22). Attending physician Dr. Emmanuel Quedding noted that Cericos sustained four stab wounds of different sizes, the most serious of which was the lacerated wound on the interior chest which required Cericos to be placed under observation for 8 to 12 hours. Dr. Quedding found that the wounds, if deep enough, could result in the laceration of the lung, heart, and some arteries and consequently, the victim's death. After advising Cericos not to work for about one week or more, he was permitted to leave the hospital at about 1 o'clock that afternoon (tsn, April 5, 1990, pp. 4-5, 10, 12). For her part, Luzviminda, at 9 o'clock that morning, went to the Kalookan Police Department and reported what happened to her. On November 6, 1989, upon referral by the chief of the Northern Police District, Kalookan City, Luzviminda subjected herself to a physical examination conducted by Dr. Carmelita Belgica, a medico-legal officer. Resultantly, Dr. Belgica found on Luzviminda's right foot "a laceration, healing, measuring 3.5 cm. with scab formation and peripheral edema at the medine melcolus, right side . . ." Her genital examination results showed an old healed laceration indicative of sexual intercourse possibly occurring three months before the date of examination. Dr. Belgica expounded that although the physical examination results manifested that the occurrence of sexual intercourse three months before could have caused the laceration, she did not discount the possibility that sexual intercourse also took place on November 5, 1989 without any injury at the genital area, as it "cannot be consulted medically because the opening is wide enough" (tsn, January 10, 1990, pp. 3-6, 8-10). Later, on November 8, 1989, at about 1:40 o'clock in the afternoon, Corporal Luciano Caeda and Pcf. Manuel Rodriguez of the Kalookan City Police Station, along with Romeo Nas, brother of Marites, went to a sash factory warehouse at the Marivic Compound, Kalookan City. Outside the factory edifice, they saw accused-appellant sleeping on a bench. Romeo Nas saw that accused-appellant was wearing a bracelet which the former recognized as the bracelet taken from Marites. Upon being awakened, accused-appellant, told the three men that the other things he took from Marites were inside a plastic bag at the factory building. Consequently, Pcf.

Rodriguez went inside the building to get the plastic bag and it was found to contain a woman's undershirt, a light blue shirt, and a wristwatch with the brand name "Chanel" which was the one taken from Marites (tsn, April 10, 1990, pp. 4-5, 7-8, 11, 14, 16, 25). The following day, November 9, 1989, at about 3:30 o'clock in the afternoon, Marites saw accused-appellant at the Kalookan City Police Station. The latter admitted his guilt and pointed to Jaime Mabingnay, Marites' brother-in-law, as the one who asked him to commit the crime. Marites further recalled that she saw accused-appellant at Mabingnay's house on November 5, 1989, before the crime took place (tsn, March 5, 1990, p. 30; tsn, April 10, 1990, pp. 33-36). Accused-appellant, on the other hand, relied and banked on denial and alibi. Accused-appellant denied even having gone to Amparo Village, Kalookan City. He denied having raped Luzviminda Aquino. He said that the first time he ever saw Marites was at the Kalookan City Police Station on November 9, 1989. He said the same thing about Luzviminda (tsn, August 23, 1990, pp. 4-6). Regarding the day of the incidence, accused-appellant testified that on November 5, 1989, at 1:30 o'clock in the morning, he was at Marivic Subdivision, sleeping with his wife. He had been residing at the Marivic compound starting October 30, 1989 as he was designated by the owner of the place to watch over the premises (tsn, August 23, 1990, p. 4). As to accused-appellant's arrest which took place on November 8, 1989 at around 1 o'clock in the afternoon, he testified that he was lying on a bench at the Marivic Compound when three men in civilian clothes arrived. He did not know the reason for his arrest. He, however, admitted that a "Chanel" lady's watch was recovered from him at the time of the arrest but insisted that he owns the watch, the same having been pledged to him by his cousin Elizabeth Abantao when he was still at Wright, Samar, and which was later sold to him. He denied that a plastic bag with stolen contents was recovered from him by his captors. He said he only saw the contents of the bag when he was under detention at the Kalookan City Jail. As regards his sworn statement containing a confession to the commission of the crime, he said he was forced by the policemen at the station to execute the same. He did not read it and was just forced to sign it. He was not assisted by counsel during that time (tsn, August 23, 1990, pp. 6-9). Accused-appellant's version of the event was corroborated by: (a) his wife Soledad Cabiles who testified that she slept with accusedappellant at Marivic Subdivision in the evening of November 4, 1989; (b) Conrado Bacoy, Sr., owner of the woodcarving factory watched over by accused-appellant, who testified that accused-appellant and his wife were allowed to sleep within the factory premises; and (c) Melchor Mabini who aside from supporting accused-appellant's alibi, also said that accused-appellant's captors did not have a warrant when they made the arrest. The trial court found no merit in accused-appellant's defense. It found that his identity was well established, based on the testimony of Marites and Luzviminda who were adjudged as credible witnesses. From the testimony of said witnesses, the trial court likewise observed that: (1) at the time of accused-appellant's arrest, he was wearing a bracelet which was said to be owned by Marites; (2) that a shoestring was found inside the plastic bag which accused-appellant stated as his own when he led the arresting officers to the factory compound at Marivic, Baesa, Kalookan City; and (3) that said shoestring was the one used by accused-appellant in tying Luzviminda's hands before she was raped. The trial court likewise noted accused-appellant's confession before Marites and in the presence of Amy Maliwanag, a council woman of Amparo Subdivision and Linda Pilahan, that accused-appellant's robbed and raped Luzviminda, and that Jaime Mabingnay instructed him to do so, to cause the blindness of Marites, and to kill her. Mabingnay was said to have promised to help accused-appellant to get a job abroad and to help the latter financially. However, accused-appellant took pity on Marites' child. As regards the crime of serious physical injuries, which, as charged in the Amended Information, was allegedly committed by reason or on occasion of the robbery, the trial court found that the evidence is insufficient to prove the commission of the same or any of the physical injuries penalized in Subdivision 1 of Art. 263 of the Revised Penal Code. We affirm the trial court's decision. Accused-appellant argues as his sole assignment of error that the trial court erred in finding him guilty beyond reasonable doubt of the crime charged. He stresses the following arguments, to wit: (1) that the medico-legal officer said several times that the sexual intercourse occurred three months before the incident complained of; (2) that verbal admissions are inadmissible against the accused; (3) that the bracelet and the "Chanel" watch and even the "improbable" shoestring were the products of a poisonous tree, not having been the fruits of a lawful warrantless arrest; and (4) that his identification based on his built and voice is not an effective one. We shall first discuss the procedural matters and circumstances surrounding the charge.

Accused-appellant, corroborated by defense witness Melchor Mabini, contends that his arrest was an alleged warrantless one. However, such irregularity was only raised during trial. In regard to this delay, this Court has consistently ruled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived (People v. Lopez, Jr., 245 SCRA 95 [1995]; People vs. Rivera, 245 SCRA 421 [1995]). Verily, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error; such arrest does not negate the validity of the conviction of the accused (People vs. Manzano, 248 SCRA 239 [1995]). And it is much too late in the day to complain about the warrantless arrest after a valid information had been filed and the accused arraigned and trial commenced and completed and a judgment of conviction rendered against him (People vs. Llanaresas, 248 SCRA 629 [1995]). As regards the evidentiary weight of accused-appellant's sworn statement wherein he confessed to the crime charged, and his verbal confession made before robbery victim, Marites Nas Atienza, we rule against the validity of the written confession but uphold the admissibility of the verbal confession. In People vs. Deniega, 251 SCRA 626 [1995], we laid down the four fundamental requirements needed for admissibility of a confession, to wit: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing. Accused-appellant testified that he was forced to execute the sworn statement containing his confession (tsn, August 23, 1990, p. 9). Although this assertion is uncorroborated, accused-appellant's free will and volition in signing his confession will not cure the defect that it was made without assistance of counsel. An admission made without the assistance of counsel during custodial investigation is inadmissible in evidence. (People vs. Cascalla, 240 SCRA 482 [1995]). Even if the confession of an accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given (People vs. Agustin, 240 SCRA 541 [1995]). An uncounselled extrajudicial confession without a valid waiver of the right to counsel that is, in writing and in the presence of counsel is inadmissible in evidence (People vs. Cabintoy, 241 SCRA 442 [1995]). In contrast, accused-appellant's verbal confession before Marites Nas Atienza is, however, admissible in evidence. The case in point is People vs. Andan (G.R. No. 116437, March 3, 1997) where we ruled that the accused's verbal confession made in a private meeting with the municipal mayor, spontaneously, fully and voluntarily done, is admissible in evidence since it is not covered by the requirements of Section 12(1) and (3) of Article III of the Constitution. When said accused talked with the mayor as a confidant and not as a law enforcement officer, his uncounselled confession did not violate his constitutional rights. Constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admitted having committed the crime as in the case at bar. In any event, we agree with the prosecution's contention that accused-appellant's conviction was deduced not on the basis of his admission of guilt, but on the trial court's assessment of the evidence presented before it. We find no reason to disturb the trial court's finding as to the credibility of prosecution witnesses Marites Nas Atienza and Luzviminda Aquino, the victims of robbery and rape, respectively. The time-tested jurisprudence is that the findings and conclusions of the trial court on the credibility of witnesses enjoy a badge of respect for the reason that trial courts have the advantage of observing the demeanor of witnesses as they testify (People vs. Gamiao, 240 SCRA 254 [1995]; People vs. Ramos, 240 SCRA 191 [1995]; People vs. Cajambab, 240 SCRA 643 [1995]; People vs. Moran, 241 SCRA 709 [1995]). A perusal of the testimony of both witnesses convinces us even more that there is no strong and cogent reason to disregard the trial court's findings. We agree that the identity of accused-appellant was sufficiently established through the following circumstances: 1. The room where the crime was committed covered a very small area of 29 square meters (tsn, April 5, 1990, p. 24). It was illuminated by a lighted electric bulb outside the jalousie window of said room (tsn, April 26, 1990, p. 17). The victims could have easily noticed the physical features of their assailant, who was later identified as accused-appellant. 2. Two witnesses (Marites Nas Atienza and Corporal Luciano Caeda) testified that at the time of accused-appellant's arrest, he was wearing a bracelet (Exh. "F") which Marites recognized as the one she surrendered to accused-appellant during the robbery on November 5, 1989 (tsn, March 5, 1990, p. 35). In this light, we are swayed by Marites' spontaneous and straightforward testimony on how she recognized the culprit, to wit:

Q Now, what was your basis in saying that it was the accused who was the one who poked a kitchen knife on you? A His height, his built, especially his voice, were my basis, sir, in saying that he was the person who poked the knife on me. Q What is so particular in his voice that you know that it was the voice of the accused in this case? ATTY. CHAVEZ: The question has already been answered, your Honor, his height, his built and his voice are the basis for her knowing accused Panfilo Cabiles. COURT: Witness may answer. WITNESS: A. Because I have seen him once and I heard his voice when he went to the house of my brother-in-law, Jaime Mabingnay, on the last week of October, 1989. FISCAL SISON: Q When you said Jaime Mabingnay, he is one of the accused in this case? A Yes, sir. Q Now, tell us how far is that house of Jaime Mabingnay to your house? A. About six (6) steps away from our house, sir. Q. And when you heard the voice of Panfilo Cabiles, what were they doing then inside the house of Jaime Mabingnay? A They were having a drinking spree in the sala of the house of Jaime Mabingnay which is just in front of the door of my house, sir. Q When you saw them drinking, what time was that? A Around 8:00 o'clock in the evening, sir. Q And up to what time did you see him inside the house of Jaime Mabingnay? A I saw him there for about an hour and I don't know whether or not he slept there. Q Before last week of October, have you seen him? ATTY. CHAVEZ: We object to the question on the basis of, first, there is no basis; second, the Fiscal interpreting in Tagalog gives an advance sign for an answer to the witness, your Honor. FISCAL SISON: Q So that at the time in October, that was the first time you saw the accused in this case, I am referring to Panfilo Cabiles? A Yes, sir. Q Have you heard what he said? A No, sir. But I heard his voice when he greeted my sister Imelda Nas. Q When he greeted your sister Imelda Nas, where was he? A He was there sitting at the sala while he was drinking with Jaime Mabingnay. Q Where was your sister at that time? A. She was standing at the door of Jaime's house and I was behind her. Marites' identification of accused-appellant is corroborated by Luzviminda's identification of accused-appellant as her rapist, as follows: Q. Aside from that admission, what other basis have you to say that the accused was that person if there is still any? ATTY. ILAGAN: I object, your Honor, because there is no basis and after the witness answered that the only sign she knows of the accused is when at the police headquarters he admitted before De Leon to have allegedly sexually played on her, so I object. FISCAL SISON: If she has other basis, your Honor, aside from that admission he made. COURT: Witness may answer. WITNESS (A): His voice and his built, sir.

FISCAL SISON (Q): You mentioned about his built, when he had sexual intercourse with you that was you said at about 1:15 in the morning, how come you were able to see the built of the accused at that time? A: Because the light coming inside thru the jalousie window illuminates the inside of the room, sir. (tsn, April 26, 1990, pp. 16-17) Q: What awakened you? A: Because the baby of Ate Tes was crying and that awakened me, sir, and when I opened my eyes I saw that there was somebody standing. Q: And that person that you saw standing was facing his back to you, correct? A: No, sir. He was facing my direction. Q: So this person you said was facing in your direction was between you and your Ate Marites, is that what you want us to understand? A: Yes, sir. (tsn, April 26, 1990, p. 34.) 3. Aside from the bracelet, the arresting officers found a "Chanel" lady's wristwatch (Exh. "G") which Marites likewise recognized as another of the objects taken by accused-appellant during the robbery. Accused-appellant's assertion that said watch is his own is not persuasive. Aside from the fact that his testimony is not corroborated, we likewise make the practical observation that "Chanel" is not an ordinary watch brand. It would be too much of a coincidence that a watch of the same not very ordinary brand as that involved in the robbery subject hereof was pledged to accused-appellant. The trial court correctly cited the evidentiary presumption that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act (Sec. 3[7], Rule 131, Revised Rules of Evidence). In People vs. Newman (163 SCRA 496 [1988]), we ruled that where the accused offers no satisfactory explanation as to the fact of his possession of stolen properties, such evidence would abundantly incriminate him and proves that he took them with animus lucrandi. In the case at bench, all that accused-appellant could offer as defense was denial which is a weak defense. The defense of denial, if uncorroborated by clear and convincing proof, is considered self-serving evidence undeserving of any weight in law (People vs. Macario, 240 SCRA 531 [1995]). Accused-appellant strongly relies on the finding of NBI Medico-Legal Officer, Carmelita Belgica, that upon physical examination of the rape victim, it was found that the hymenal lacerations took place three months before the date of examination, to rule out his commission of the crime of rape. We are not persuaded. Any prior sexual intercourse which could have resulted in hymenal laceration is irrelevant in rape cases for virginity is not an element of rape (People vs. Delovino, 247 SCRA 519 [1995]). Hence, it is of no moment that there is a finding that sexual intercourse occurred three months earlier than November 5, 1989. Too, the rape could have been so slight as to leave no traces upon examination, for complete penetration of the female organ is not necessary to constitute rape (People vs. Soan, 243 SCRA 622). The mere penetration of the penis by entry thereof into the labia majora of the female organ suffices to warrant a conviction for rape (People vs. Sanchez, 250 SCRA 14 [1995]). The following circumstances are significant: 1. Luzviminda testified that she was raped by accused-appellant. No young Filipina would publicly admit that she had been criminally abused and ravished unless that is the truth, as it is her natural instinct to protect her honor. (People vs. Delovino, supra; People vs. Namayon, 246 SCRA 646 [1995]; People vs. Rivera, 242 SCRA 26 [1995]). 2. Luzviminda's testimony is corroborated by that of Marites who herself witnessed the rape (tsn, March 5, 1990, p. 16). 3. The shoestring that was found inside the plastic bag is also an indication of accused-appellant's commission of the crime of rape. Luzviminda identified said shoestring as that which was used on her to effect the crime of rape. Lastly, accused-appellant's defense of denial and alibi must fail considering that he was positively identified by Marites and Luzviminda as the author of the crime. We have consistently ruled that alibi, like denial, is inherently weak and easily fabricated. In order to justify an acquittal based on this defense, the accused must establish by clear and convincing evidence that it was physically

impossible for him to have been at the crime scene during its commission (People vs. Pontilar, G.R. No. 104865, July 11, 1997; People vs. Sumbillo, et. al., G.R. No. 105292, April 18, 1997; People vs. Gamiao, supra). In the case at bench, accused-appellant admitted being at Marivic Compound at Baesa, Quezon City, during the night of the incident. He was allegedly with his wife (tsn, August 23, 1990, p. 4). Defense witness Melchor Mabini even attested that the couple spent the night at the compound on the eve of November 5, 1989. But did Mabini watch over the couple the whole night? It is not impossible for accused-appellant to sleep at the Marivic Compound on the night of November 4, 1989 and surreptitiously leave the premises at midnight to get to Kalookan City. The distance between Quezon City and Kalookan City is not significant. Anent the award of consequential damages, we increase the indemnity in favor of rape victim Luzviminda Aquino from P30,000.00 to P50,000.00 in line with recent jurisprudence. We affirm the awards concerning the amounts corresponding to the value of the items stolen, the same having been established through the testimony of Marites Nas Atienza, including the P1,000.00 awarded for costs. WHEREFORE, finding the conviction of accused-appellant justified by the evidence on record, the assailed decision is hereby AFFIRMED with the modification above-stated. SO ORDERED.

(17) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWARD ENDINO (at large) and GERRY GALGARIN aliasTOTO, accused. GERRY GALGARIN alias TOTO, accused-appellant. [G.R. No. 133026. February 20, 2001] BELLOSILLO, J.: YIELDING to mans brutish instinct for revenge, Edward Endino, with the aid of Gerry Galgarin alias Toto, slew Dennis Aquino in the presence of a lady whose love they once shared. On a busy street in Puerto Princesa City in the evening of 16 October 1991, an emboldened Gerry Galgarin, uncle of accused Edward Endino, suddenly and without warning lunged at Dennis and stabbed him repeatedly on the chest. Dennis girlfriend Clara Agagas who was with him, stunned by the unexpected attack, pleaded to Galgarin to stop. Dennis struggled and succeeded momentarily to free himself from his attacker. Dennis dashed towards the nearby Midtown Sales but his escape was foiled when from out of nowhere Edward Endino appeared and fired at Dennis. As Dennis staggered for safety, the two (2) assailants fled in the direction of the airport. Meanwhile, Dennis, wounded and bleeding, sought refuge inside the Elohim Store where he collapsed on the floor. He was grasping for breath and near death. Clara with the help of some onlookers took him to the hospital but Dennis expired even before he could receive medical attention. According to the autopsy report of Dr. Josephine Goh-Cruz, cause of death was "cardio-respiratory arrest secondary to hypovolemic shock secondary to a stab wound which penetrated the heart." [1] On 18 October 1991, an Information for the murder of Dennis Aquino was filed against Edward Endino and accused-appellant Gerry Galgarin and warrants were issued for their arrest. However, as both accused remained at large, the trial court issued on 26 December 1991 an order putting the case in the archives without prejudice to its reinstatement upon their apprehension. On 19 November 1992, Gerry Galgarin was arrested through the combined efforts of the Antipolo and Palawan police forces at a house in Sitio Sto. Nio, Antipolo, Rizal. He was immediately taken into temporary custody by the Antipolo Police. Early in the evening of the following day, he was fetched from the Antipolo Police Station by PO3 Gaudencio Manlavi and PO3 Edwin Magbanua of the Palawan police force to be taken to Palawan and be tried accordingly. On their way to the airport, they stopped at the ABS-CBN television station where accused Galgarin was interviewed by reporters. Video footages of the interview were taken showing Galgarin admitting his guilt while pointing to his nephew Edward Endino as the gunman. According to Galgarin, after attacking Aquino, they left for Roxas, Palawan, where his sister Langging who is Edward's mother, was waiting. Langging gave them money for their fare for Manila. They took the boat for Batangas, where they stayed for a few days, and proceeded to Manila where they separated, with him heading for Antipolo. Galgarin appealed for Edward to give himself up to the authorities. His interview was shown over the ABS-CBN evening news program TV Patrol. The case against accused-appellant Gerry Galgarin was established through the testimony of Clara Agagas who said that she was with the victim Dennis Aquino standing outside the Soundlab Recording Studio, a barhouse owned by him, when Galgarin suddenly approached them and without any prior warning stabbed Dennis. Dennis tried to run away, but Edward, a spurned lover who harbored ill-feelings towards her and Dennis, shot Dennis. She recognized Edward and Gerry because the street was sufficiently lighted. [2] The testimony of Clara Agagas was corroborated by Anita Leong, next-door neighbor of Dennis, who testified that a little past six oclock in the evening of 16 October 1991 Gerry Galgarin together with a companion went to her house looking for Dennis. She instructed them to proceed to the Soundlab Recording Studioas Dennis might still be there. But a few minutes later she heard a Instinctively, she instructed her two (2) young daughters to duck for cover while she anxiously waited for her seven (7)-year old daughter Josephine who was out of the house for an errand for her. Soon enough she heard Josephine knocking at their door. She was crying because she said her Kuya Dennis had been shot and stabbed.[3] Josephine confirmed her mothers testimony and even said that she had seen Gerry Galgarin stab her Kuya Dennis and she could remember Gerry very well because of the mole below his nose. [4] For his part, accused-appellant Gerry Galgarin disclaimed having taking part in the slaying of Dennis. Gerry asserted that on 14 October 1991 he was in Antipolo to help his common-law wife Maria Marasigan give birth to their first born. He stayed with her until the 16th of October when she was discharged from the Pedragoza Maternity Clinic. [5] Clarita Florentino Pedragoza, the midwife who delivered his son, supported the alibi of accused-appellant. However, she admitted that when she registered the childs birth on 13 December 1993 or more than two (2) years after the delivery, she in formed the civil registrar that the childs father was " unknown."[6] His story was also confirmed by Dolores Arciaga and Maria Tomenio, his co-workers at the Kainan sa Kubo Sing Along Restaurant, who testified that accused-appellant was fetched by a neighbor from the restaurant in the early afternoon of 14 October with the news that his wife was having labor pains. [7]

Accused-appellant disowned the confession which he made over TV Patrol and claimed that it was induced by the threats of the arresting police officers. He asserted that the videotaped confession was constitutionally infirmed and inadmissible under the exclusionary rule provided in Sec.12, Art. III, of the Constitution. [8] The trial court however admitted the video footages on the strength of the testimony of the police officers that no force or compulsion was exerted on accused-appellant and upon a finding that his confession was made before a group of newsmen that could have dissipated any semblance of hostility towards him. The court gave credence to the arresting officers assertion that it was even accused-appellant who pleaded with them that he be allowed to air his appeal on national television for Edward to surrender. The alibi of Galgarin was likewise rejected since there was no convincing evidence to support his allegation that he was not at the locus criminis on the evening of 16 October 1991. Accordingly, accused-appellant Gerry Galgarin was convicted of murder qualified by treachery[9] and sentenced to reclusion perpetua. Additionally, he was ordered to indemnify the heirs of Dennis Aquino P50,000.00 as compensatory damages and P72,725.35 as actual damages. The case against his nephew and co-accused Edward Endino remained in the archives without prejudice to its reinstatement as soon as he could be arrested. [10] In his Appellants Brief, Gerry Galgarin assails the trial court for rejec ting his alibi and admitting his videotaped confession as evidence against him. The argument that accused-appellant could not be at the scene of the crime on 16 October 1991 as he was in Antipolo assisting his wife who was giving birth on the 14th of that month, is not persuasive. Alibi is a weak defense. The testimony of Cornelio Tejero Jr.,[11] Philippine Airlines Load Controller of the Puerto Princesa City, that the name of "Gerry Galgarin" did not appear on their passenger manifest for the 16 October 1991 Manila-Puerto Princesa flight, could not be relied upon inasmuch as he himself admitted that they could not be sure of their passengers real identities. The testimonies of accused-appellants co-workers that he was in Antipolo on 14 October 1991 did not fortify his defense either since these witnesses did not categorically state that they saw him in Antipolo in the evening of 16 October 1991. With accused-appellant having been positively identified by the prosecution witnesses as the one who stabbed Dennis, his bare denial proves futile and unavailing. Josephine Leongs identification of accused-appellant was given in a very categorical and spontaneous manner. Her confidence as to the attackers identity was clearly shown by her vivid recollection of him having a mole below his nose, which is correct. Moreover, it is inconceivable for Josephine and Anita to implicate accused-appellant, a complete stranger to them, if there was no truth to their assertion. As for Clara, her naming of accused-appellant as her boyfriends assailant was not done out of spite, but was impelled by her desire to seek justice for Dennis. Corroborating further accused-appellants guilt, probably with intense incriminating effect, were his immediate flight after the slaying, and his attempt at jailbreak[12] revealing a guilty conscience, hence, his persistent effort to evade the clutches of the law. Apropos the court a quos admission of accused-appellants videotaped confession, we find such admission proper. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. Besides, if he had indeed been forced into confessing, he could have easily sought succor from the newsmen who, in all likelihood, would have been symphatetic with him. As the trial court stated in its Decision[13]Furthermore, accused, in his TV interview (Exh. H), freely admitted that he had stabbed Dennis Aquino, and that Edward Endino had shot him (Aquino). There is no showing that the interview of accused was coerced or against his will. Hence, there is basis to accept the truth of his statements therein. We agree. However, because of the inherent danger in the use of television as a medium for admitting ones guilt, and the recurrence of this phenomenon in several cases,[14] it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. A word of counsel then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and determination in separating polluted confessions from untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution.

With all the evidence tightly ringed around accused-appellant, the question that next presents itself is whether the trial court correctly denominated the crime as murder qualified by treachery. Doubtless, the crime committed is one of murder considering that the victim was stabbed while he was simply standing on the pavement with his girlfriend waiting for a ride, blissfully oblivious of the accused's criminal design. The suddenness of the assault on an unsuspecting victim, without the slightest provocation from him who had no opportunity to parry the attack, certainly qualifies the killing to murder. [15] WHEREFORE, the Decision of the court a quo finding accused-appellant GERRY GALGARIN alias Toto guilty of Murder qualified by Treachery, sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Dennis Aquino in the amount of P50,000.00 as compensatory damages andP72,725.35 as actual damages, is AFFIRMED with the MODIFICATION that accused-appellant is further ordered to compensate the decedents heirs P50,000.00 as moral damages for their emotional and mental anguish. Costs against accused-appellant. SO ORDERED.

(18) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO GALIT, defendant-appellant. [G.R. No. L-51770 March 20, 1985] CONCEPCION, JR., J: 1. The prisoner was arrested for killing the victim oil the occasion of a robbery. He had been detained and interrogated almost continuously for five days, to no avail. He consistently maintained his innocence. There was no evidence to link him to the crime. Obviously, something drastic had to be done. A confession was absolutely necessary. So the investigating officers began to maul him and to torture him physically. Still the prisoner insisted on his innocence. His will had to be broken. A confession must be obtained. So they continued to maltreat and beat him. 'They covered his face with a rag and pushed his face into a toilet bowl full of human waste. The prisoner could not take any more. His body could no longer endure the pain inflicted on him and the indignities he had to suffer. His will had been broken. He admitted what the investigating officers wanted him to admit and he signed the confession they prepared. Later, against his will, he posed for pictures as directed by his investigators, purporting it to be a reenactment. 2. This incident could have happened in a Russian gulag or in Hitler's Germany. But no it did not. It happened in the Philippines. In this case before Us. 3. The Revised Penal Code punishes the maltreatment of prisoners as follows:
ART. 235. Maltreatment of prisoners. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, in addition to his liability for the physical injuries or damage caused, shall be imposed upon any public officer or employee who shall over do himself in the correction or handling of a prisoner or detention prisoner under his charge, by the imposition of punishments in a cruel and humiliating manner. If the purpose of the maltreatment is to extort a confession, or to obtain some information from the prisoner, the offender shall be punished by prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos, in addition to his liability for the physical injuries or damage caused.

4. This Court in a long line of decisions over the years, the latest being the case of People vs. Cabrera, 1 has consistently and strongly condemned the practice of maltreating prisoners to extort confessions from them as a grave and unforgivable violation of human rights. But the practice persists. Fortunately, such instances constitute the exception rather than the general rule. 5. Before Us for mandatory review is the death sentence imposed upon the accused Francisco Galit by the Circuit Criminal Court of Pasig, Rizal, in Crim. Case No. CCC-VII-2589 of said court. 6. The record shows that in the morning of August 23, 1977, Mrs. Natividad Fernando, a widow, was found dead in the bedroom of her house located at Barrio Geronimo, Montalban, Rizal, as a result of seven (7) wounds inflicted upon different parts of her body by a blunt instrument. 2 More than two weeks thereafter, police authorities of Montalban picked up the herein accused, Francisco Galit, an ordinary construction worker (pion) living in Marikina, Rizal, on suspicion of the murder. On the following day, however, September 8, 1977, the case was referred to the National Bureau of Investigation (NBI) for further investigation in view of the alleged limited facilities of the Montalban police station. Accordingly, the herein accused was brought to the NBI where he was investigated by a team headed by NBI Agent Carlos Flores. 3 NBI Agent Flores conducted a preliminary interview of the suspect who allegedly gave evasive answers to his questions. 4 But the following day, September 9, 1977, Francisco Galit voluntarily executed a Salaysay admitting participation in the commission of the crime. He implicated Juling Dulay and Pabling Dulay as his companions in the crime. 5 As a result, he was charged with the crime of Robbery with Homicide, in an information filed before the Circuit Criminal Court of Pasig, Rizal, committed as follows: That on or about the 23rd day of August 1977 in the municipality of Montalban, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with Juling Doe and Pabling Doe, whose true Identities and present whereabouts are still unknown and three of them mutually helping and aiding one another, with intent of gain and by means of force, intimidation and violence upon the person of one Natividad Fernando while in her dwelling, did, then and there wilfully, unlawfully, and feloniously take, steal and carry away from the person of said Natividad Fernando, cash money of an undetermined amount, belonging to said Natividad Fernando, thereby causing damage and prejudice to the latter in an undetermined amount; that by reason or on the occasion of said robbery, and for purpose of enabling them (accused) to take, steal and carry away the said cash money in pursuance of their conspiracy and for the purpose of insuring the success of their criminal act, with intent to kill, did, then and there wilfully, unlawfully, and feloniously attack, assault and stab with a dagger said Natividad Fernando on the different parts of her body, thereby inflicting multiple injuries on the head and extremities, which directly caused her death, and the total amount of the loss is P10,000.00 including valuables and cash.

Trial was held, and on August 11, 1978, immediately after the accused had terminated the presentation of his evidence, the trial judge dictated his decision on the case in open court, finding the accused guilty as charged and sentencing him to suffer the death penalty; to indemnify the heirs of the victim in the sum of P110,000.00, and to pay the costs. Hence, the present recourse. 7. The incriminatory facts of the case, as found by the trial court, are as follows: From the evidence adduced in this case, it was gathered that in the early morning of August 23, 1977, a 70-year old woman named Natividad Fernando, widow, in the twilight of her life, was robbed and then hacked to death by the accused and two others in her (victim's) own residence at Montalban, Rizal. Prosecution witness Florentino Valentino testified that he heard accused Francisco Galit and his wife having an argument in connection with the robbery and killing of the victim, Natividad Fernando. It appears that on August 18, 1977, accused Galit and two others, namely, Juling Dulay and a certain "Pabling" accidentally met each other at Marikina, Rizal, and in their conversation, the three agreed to rob Natividad Fernando; that it was further agreed among them to enter the premises of the victim's house at the back yard by climbing over the fence; that once inside the premises, they will search every room, especially the aparador and filing cabinets, with the sole aim of looking for cash money and other valuables. Witness Valentino further testified that on August 22, 1977, at around 6:00 o'clock in the afternoon, accused Francisco Galit and his two companions, Juling Dulay and Pabling, as per their previous agreement, met at the place where they formerly saw each other in Mariquina, Rizal; that the three conspirators took a jeepney for Montalban and upon passing the Montalban Municipal Building, they stopped and they waited at the side of the road until the hour of midnight; that at about 12:00 o'clock that night, the three repaired to the premises of the victim, Natividad Fernando; that they entered the said premises through the back wall of the house; that while entering the premises of said house, Juling Dulay saw a bolo, lying near the piggery compound, which he picked up and used it to destroy the back portion of the wall of the house; that it was Juling Dulay who first entered the house through the hole that they made, followed by the accused Galit and next to him was "Pabling", that it was already early dawn of August 23, 1977 when the three were able to gain entrance into the house of the victim; as the three could not find anything valuable inside the first room that they entered, Juling Dulay destroyed the screen of the door of the victim, Natividad Fernando; that upon entering the room of the victim, the three accused decided to kill first the victim, Natividad Fernando, before searching the room for valuables; that Juling Dulay, who was then holding the bolo, began hacking the victim, who was then sleeping, and accused Galit heard a moaning sound from the victim; that after the victim was killed, the three accused began searching the room for valuables; that they helped each other in opening the iron cabinet inside the room of the victim, where they found some money; that when the three accused left the room of the victim, they brought with them some papers and pictures which they threw outside; that after killing and robbing the victim, the three accused went out of the premises of the house, using the same way by which they gained entrance, which was through the back portion of the wall; that the three accused walked towards the river bank where they divided the loot that they got from the room of the victim; that their respective shares amount to P70.00 for each of them; and that after receiving their shares of the loot, the three accused left and went home. When witness Florentino Valentino was in his room, which was adjoining that of accused Francisco Galit, he overheard accused Galit and his wife quarreling about the intention of accused Galit to leave their residence immediately; that he further stated that he overheard accused Galit saying that he and his other two companions robbed and killed Natividad Fernando. As a result of the killing, the victim, Natividad Fernando, suffered no less than seven stab wounds. There was massive cerebral hemorrhage and the cause of death was due to shock and hemorrhage, as evidenced by the MedicoLegal Necropsy Report (Exhs. 'C' and 'C-2'), and the pictures taken of the deceased victim (Exhs. 'E', 'E-1' and 'E-2'). 8. The accused, upon the other hand, denied participation in the commission of the crime. He claimed that he was in his house in Marikina, Rizal, when the crime was committed in Montalban, Rizal. He also assailed the admissibility of the extra-judicial confession extracted from him through torture, force and intimidation as described earlier, and without the benefit of counsel. 9. After a review of the records, We find that the evidence presented by the prosecution does not support a conviction. In fact, the findings of the trial court relative to the acts attributed to the accused are not supported by competent evidence. The principal prosecution witness, Florentino Valentino merely testified that he and the accused were living together in one house in Marikina, Rizal, on August 23, 1977, because the mother of his wife is the wife of the accused; that when he returned home at about 4:00 o'clock in the morning from the police station of Marikina, Rizal, the accused and his wife were quarreling ( nagtatalo); that he heard that the

accused was leaving the house because he and his companions had robbed "Aling Nene", the owner of a poultry farm and piggery in Montalban, Rizal; that the wife of the accused was imploring him not to leave, but the latter was insistent; that he saw the accused carrying a bag containing about two handfuls ( dakot) of coins which he had taken from Aling Nene; that upon learning of what the accused had done, he went to the Montalban police the next day and reported to the police chief about what he had heard; and that a week later, Montalban policemen went to their house and arrested the accused. 6 10. This Court, in the case of Morales vs. Ponce Enrile, 7 laid down the correct procedure for peace officers to follow when making an arrest and in conducting a custodial investigation, and which We reiterate: 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, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. 11. There were no eyewitnesses, no property recovered from the accused, no state witnesses, and not even fingerprints of the accused at the scene of the crime. The only evidence against the accused is his alleged confession. It behooves Us therefore to give it a close scrutiny. The statement begins as follows:
I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mga karapatan sa ilalim ng SaligangBatas ng Pilipinas na kung inyong nanaisin ay maaaring hindi kayo magbigay ng isang salaysay, na hindi rin kayo maaaring pilitin o saktan at pangakuan upang magbigay ng naturang salaysay, na anuman ang inyong sasabihin sa pagsisiyasat na ito ay maaaring laban sa inyo sa anumang usapin na maaaring ilahad sa anumang hukuman o tribunal dito sa Pilipinas, na sa pagsisiyasat na ito ay maaaring katulungin mo ang isang manananggol at kung sakaling hindi mo kayang bayaran ang isang manananggol ay maaaring bigyan ka ng isa ng NBI. Ngayon at alam mo na ang mga ito nakahanda ka bang magbigay ng isang kusang-loob na salaysay sa pagtatanong na ito? SAGOT: Opo.

12. Such a long question followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights under the Constitution and our laws. Instead there should be several short and clear questions and every right explained in simple words in a dialect or language known to the person under investigation. Accused is from Samar and there is no showing that he understands Tagalog. Moreover, at the time of his arrest, accused was not permitted to communicate with his lawyer, a relative, or a friend. In fact, his sisters and other relatives did not know that he had been brought to the NBI for investigation and it was only about two weeks after he had executed the salaysay that his relatives were allowed to visit him. His statement does not even contain any waiver of right to counsel and yet during the investigation he was not assisted by one. At the supposed reenactment, again accused was not assisted by counsel of his choice. These constitute gross violations of his rights. 13. The alleged confession and the pictures of the supposed re-enactment are inadmissible as evidence because they were obtained in a manner contrary to law. 14. Trial courts are cautioned to look carefully into the circumstances surrounding the taking of any confession, especially where the prisoner claims having been maltreated into giving one. Where there is any doubt as to its voluntariness, the same must be rejected in toto. 15. Let a copy of this decision be furnished the Minister of Justice for whatever action he may deem proper to take against the investigating officers. 16. WHEREFORE, the judgment appealed from should be, as it is hereby, SET ASIDE, and another one entered ACQUITTING the accused Francisco Galit of the crime charged. Let him be released from custody immediately unless held on other charges. With costs de oficio. 17. SO ORDERED.

(19) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO BAGANO Y SALI-EN, accused appellant. [G.R. No. 77777 February 5, 1990] BIDIN, J.: Before Us on appeal is a decision * of the Regional Trial Court of Baguio, Br. IV, in Criminal Case No. 2472-R, convicting the accused/appellant of violation of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act, the decretal portion of which reads: WHEREFORE, the court finds the accused, Domingo Bagano y Sali-en, guilty beyond reasonable doubt of the crime charged, and hereby imposes on him the penalty of life imprisonment, as well as a fine of Twenty Thousand Pesos (P20,000.00). The ten (10) kilos of marijuana are ordered forfeited in favor of the government which shall be transmitted to the Dangerous Drugs Board, through NBI Sub-office Baguio, as custodian, for proper disposition. SO ORDERED. The facts, as presented by the Solicitor General, are as follows: On August 1, 1985, Atty. Lolito Utitco of the National Bureau of Investigation (NBI) in Baguio City and Steven F. Bostick, a special agent of the U.S. Air Force at Clark Air Base, arranged a "buy-bust" operation against appellant who was a suspected narcotics dealer. The plan was for Bostick to pose as buyer. A civilian informer named Clayton Emateo was to aid Bostick by introducing him to appellant. At around 2:45 in the afternoon of the same day, Bostick and Emateo proceeded to the residence of the latter in Baguio City to meet appellant who was there waiting. They were followed by an NBI surveillance team. Upon reaching their destination, Emateo introduced appellant and an unnamed friend to Bostick. Shortly thereafter, negotiations for the purchase of ten (10) kilos of marijuana began between Bostick and appellant, with Emateo acting as interpreter. Bostick and appellant finally agreed on P800.00 as the price per kilo of the marijuana. The group then proceeded to appellant's house at Irisan, Benguet, where he kept the marijuana. They were all the time being trailed by the NBI team. At Irisan appellant left Bostick and Emateo in the car. He went back to them after about fifteen minutes, carrying a large white nylon sack (Exhibit "B"). Bostick opened the trunk of the car and appellant placed the sack inside. Bostick opened the sack and saw several packages containing marijuana. Bostick told appellant that he will pay for the marijuana after it has been weighed in his hotel. Appellant agreed. On the way back to his hotel in Baguio City, Bostick activated the beeper which signalled the NBI team following them that the transaction had taken place. The NBI team then blocked Bostick's car and arrested appellant and Emateo. Based on the foregoing, an information for violation of RA 6425, otherwise known as the Dangerous Drugs Act, was filed against appellant alleging: xxx xxx xxx That on or about the lst day of August, 1985, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there willfully, unlawfully and feloniously attempt to sell to another ten (10) kilos, more or less, of dried marijuana leaves, a dangerous drug, for P800.00 per kilo, in violation of the afore-cited provision of law. Upon arraignment, appellant pleaded not guilty. His earlier motion to admit bail was deferred and later denied. Thereafter, trial on the merits ensued. On August 9, 1986, the trial judge rendered the assailed decision ( Rollo, pp. 19-36) sentencing appellant, among others, to reclusion perpetua. Hence, this appeal. Appellant denies any knowledge anent the ownership and sale of marijuana to Bostick and in support thereof, he declared that: (H)e farms at Irisan, Baguio City; on August 1, 1985, at around 3:00 o'clock in the afternoon, he went to the house of Clayton Emateo, located along Bonifacio St., to collect the amount of P4,000.00 which the latter borrowed from him on July 1, 1985; on this latter date Clayton went to him and pleaded for the loan, saying that he needed it to replace the money he took from his wife which he lost in gambling; Clayton was at his residence when he saw him on August 1, 1985; Clayton told him to wait for his visitor from whom he would get the money to pay his debt ; the

American visitor arrived, and he was introduced to him in English, as Steven; after the introduction, they rode in the car of the American and he was told by Clayton that they were proceeding to Irisan to get the bag which Clayton would give to the American as a gift; Clayton sent him to get the bag because he did not want to get wet , he went to get the bag and placed it in the car of the American ; Clayton asked him to ride with them again; while they were maneuvering the car towards Baguio, two cars stopped and one of the passengers (NBI agent) came out, brought out his gun and pointed it at him; (Decision, p. 11; Rollo, p. 29; Emphasis supplied). In this appeal, appellant contends that the lower court erred: 1. IN FINDING THAT THE APPELLANT AGREED TO SELL TEN (10) KILOS OF MARIJUANA TO STEVEN BOSTICK WHEN IN FACT, THE APPELLANT HAS NO KNOWLEDGE OR DOES NOT KNOW ANYTHING ABOUT THE ALLEGED MARIJUANA SALE; 2. IN NOT HOLDING AS HEARSAY THE ALLEGED CONVERSATION BETWEEN BOSTICK AND APPELLANT WHEN IN FACT, CLAYTON EMATEO, THE CIVILIAN INFORMANT WHO INTERPRETED THEIR CONVERSATION WAS NEVER PRESENTED TO TESTIFY; 3. IN APPRECIATING THE "BAG" AND NOT SACK AGAINST APPELLANT THAT WHICH CLAYTON OWNED AND DEPOSITED IN THE QUARTER OF THE APPELLANT AT IRISAN THAT 10:00 A.M. OF AUGUST 1, 1985 WHEN IN FACT, EVEN BOSTICK LIKE WISE REFERRED TO THE SACK AS "BAG" MANY TIMES IN HIS TESTIMONY; 4. IN NOT APPRECIATING THE DEFENSE OF THE APPELLANT THAT IT WAS CLAYTON, THE CIVILIAN INFORMER, WHO OWNS THE MARIJUANA IN QUESTION. (Appellant's Brief, pp. 12; Rollo, pp. 49-50) It is the contention of the prosecution that appellant was apprehended as a result of a "buy-bust" operation which was conducted on the strength of an information supplied by a certain Clayton Emateo. It is alleged that according to the informer, appellant would only sell to a foreigner, preferably an American. Immediately, Atty. Utitco, the NBI Chief of Baguio City, sought assistance from the Clark Air Base which in turn sent Steven Bostick for the purpose. The "buy-bust" operation involved Bostick and Emateo to proceed to the latter's residence and therein meet with the suspect for the purchase of marijuana. Acting as the "poseur" buyer, Bostick testified that he was provided counterfeit money by the NBI which was combined with his own US $200.00 converted to pesos because appellant only accepts payment in local currency (TSN, November 7, 1985, p. 16). Upon arrival at Emateo's residence, Bostick was introduced by Emateo to appellant and a certain Arman Perez. As to how the "buybust" transaction was initiated may be gleaned from the following testimony of Bostick: FISCAL CARBONELL: Q: What was the plan then? A: The plan that I was to go with the informer to the informant's residence and meet with the suepct (suspect) who is supposedly waiting there for us and I was to try and arrange for the purchase of marijuana. xxx xxx xxx Q: Who started the conversation? A: I started through the informant translating what I was saying to Domingo . Q: What did you say to your informant which was translated to Domingo? A: Due to the prior arrangement or agreement that we had, I told him that I wanted to purchase ten (10) kilos of marijuana. Q: And this statement of yours to the effect that you wanted to buy ten (10) kilos of marijuana, to whom was it directed? A: It was directed to Mr. Domingo. Q: But you said Clayton participated. What was the participation of Clayton? A: He was speaking for me because I wasn't sure Domingo understood what I was saying because of the language. Q: Is it your testimony that your statement was translated into the dialect by Clayton to Domingo ? A: Yes, sir. COURT: Q: What dialect was that: Do you know?

A: No, I have no knowledge. xxx xxx xxx FISCAL CARBONELL: Q: Now, when your statement was translated by Clayton to Mr. Domingo to the effect that you wanted to purchase marijuana, do you know if Domingo made any answer? A: I was told by the informant that there will be no problem. The ten kilos was ready. ATTY. WAGANG: I object to that. That would be hearsay. xxx xxx xxx FISCAL CARBONELL: Q: What again was that answer which Domingo said or uttered? A: I was told by Clayton that ten (10) kilos would be no problem . Q: And who said that? A: It was told to me by Clayton because I don't understand the language on which they talked. xxx xxx xxx Q: Now, who quoted the price? A: I was told it will cost one thousand (P1,000.00) pesos per kilo , which I didn't agree. COURT: Q: Did they speak in English or in another dialect? A: They spoke in the dialect. Q: So, it was again interpreted to you by Clayton. A: Yes, sir. (TSN, November 7,1985, pp. 17-20; Italics supplied) Evident from the foregoing is the fact that Bostick's testimonies, as principal witness for the prosecution, are mere translations and/or interpretations of what the appellant supposedly said in the dialect to and interpreted by informant Emateo. As such, they are pure hearsay. With the exception of that portion of Bostick's testimony that he saw the accused-appellant carry the sackful of marijuana, Bostick testified not on his personal knowledge regarding the alleged ownership thereof and the appellant's purported offer to sell the same. Bostick never understood the Kankanai dialect spoken by appellant and Emateo and is therefore not qualified to testify against appellant in the imputation of the crime charged. Thus, "where a witness is offered testify to the statements of another person, spoken in a language not understood by him, but translated for him by an interpreter, such witness is not qualified, because he does not speak from personal knowledge. All that he can know as to the testimony which is in fact given in such a case is from the interpretation thereof which is given by another person." (F. Wharton Evidence in Criminal Cases 697-698 [11th ed., ed., 1935]) Indeed, a confession cannot be received in evidence by the testimony of a witness who, although present when it was made, learned its purport through an interpreter (US v. Chu Chio, 8 Phil. 269 [1907]). The impropriety of introducing the testimony of Bostick is plainly evident. What the prosecution should have done was to present Emateo himself to testify on what actually transpired between appellant and Bostick and thereafter be cross-examined. Yet, the court a quo chose to ignore appellant's constitutional right to meet the witnesses face to face (Constitution, Art. III, Sec. 14 [21). In an attempt to circumvent said right, prosecution witness Atty. Utitco reasoned: FISCAL CARBONELL: Q: Now, Atty. Utitco, is there any possibility for you to bring before this court this Clayton who was your informer? A: I do not think that is possible for the following reasons; First, we do not usually expose our informants in public, second, we do not know where he is staying and third, we do not keep in constant contact with this informer. He only comes to the office when there is work to do. As a

matter of fact since this operation was accomplished, I have never seen him again. (TSN, December 4, 1985, p. 10) Atty. Utitco's revelation that he knew nothing of his supposed informant's background is rather disturbing. Appellant's limb and liberty at stake, Utitco discarded all what a prudent and thinking man would have taken in order to establish the veracity of a story of one virtually unknown to him. Appellant should have been, at the least, placed under surveillance (See People v. Perodica, Jr., et al., G.R. No. 73006, September 29, 1989). The Court is not unaware of the policy behind non-disclosure of an informant's identity and would generally uphold the exercise of such privilege as the circumstances may warrant. In the instant case, however, said privilege cannot be invoked given the factual setting that led to the incarceration of accused-appellant. For one thing, the identity and even the address of the supposed informant are already known to appellant. More, he was an active participant of the crime charged and is in fact the person whom appellant insists is the owner of the prohibited merchandise. In point of fact, the informer (Emateo) was arrested together with appellant by the NBI team after the latter had blocked Bostick's car. If indeed Emateo is an informer and not the owner of the prohibited drug, why was he arrested? Nonetheless, whatever reason the prosecution may have had in shielding the informant vanished and ceased to exist by the time his identity was made public in the course of the trial by the prosecution witnesses themselves. As pointed out by the appellant, the informant's failure to take the witness stand to confirm the correctness of his interpretations not only rendered the testimonies of Bostick as hearsay and therefore, inadmissible in evidence, but also deprived appellant of his right to cross-examine him (Appellant's Brief, pp. 11-12; Rollo, pp. 59- 60). The right of cross-examination is a substantial right, the preservation of which is essential to a proper administration of justice, and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. (Crosby v. State 82 S.E. 2d 38 [1954]; citing News Publishing Co. v. Butler, 22 S.E. 282 [1985]; Richards v. Harpe 155 S.E. 85 [1930]) Emateo's testimony is not merely corroborative and cumulative and hence, may be dispensed with (People v. Extra, 72 SCRA 199 (1976]; People v. Cerelegia, 147 SCRA 538 [1987]; People v. Capulong, 160 SCRA 533 [1988]; People v. Asio, G.R. No. 84960, September 1, 1989), but is direct and material to the defense of appellant who claims innocence of the offense imputed against him and is entitled to have the former take the witness stand (Appellant's Brief, pp. 11-12; Rollo, p. 60; TSN, November 8, 1985, p. 22), considering appellant's disclaimer of ownership of the prohibited drug. In People v. Rojo (G.R. No. 82737, July 5, 1989), the Court, in acquitting the accused-appellant, stamped a note of disapproval on the prosecution's refusal to present the supposed informant whose identity has already been known, to wit: Thus, the identity of the informant was known to the appellant all the time and when immediately thereafter the appellant was apprehended and arrested by the police officers and the informant was not similarly taken into custody, the only logical conclusion is that the appellant right then and there found out that he was the victim of an entrapment and that the informant was in collusion with the police authorities. There is, therefore, no reason why the prosecution could not and did not present the informant as a prosecution witness. He is the best witness to establish the charge against the appellant who denies the charge (citing Pp. v. Ale, 145 SCRA 50, [1986] where the accused was likewise acquitted). (Emphasis supplied) In an earlier case of People v. Caboverde (160 SCRA 550 [1988]) where the prosecution refused to identify the informer, the Court stated: The witnesses for the prosecution refused to divulge the identity of said informer, who could have been a very vital corroborating witness to their testimonies and thus strenghthen the position of the prosecution. Prosecution maintained that to expose the identity and to bring this informer to court as witness would pose grave danger to the life of such informer. What danger did the prosecution fear, when the identity of said informer and his involvement in the entrapment of appellant was already made known to the appellant during the alleged exchange of the marijuana stuff and money. (Emphasis supplied) Non-presentation of an informer is a privilege that has its own inherent limitation that of fairness in the administration of criminal justice. Thus, where the disclosure of an informer's Identity is relevant and helpful to the defense of the accused, or is essential to a proper disposition of the case, the privilege must give way (Wilson v. United States, 59 F. 2d 390 [1932]).

Trial courts must always bear in mind that the right to meet the accuser and to have him examined is a fundamental right. The constitution (Section 14 [2], Art. III) so mandates and they cannot do otherwise, especially so in instances where the party sought to be presented and examined possesses vital information essential to the defense in vindicating the accused's plea of innocence. Such violation of appellant's fundamental right calls for the reversal of his conviction. Thus: Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations, the trial court may require disclosure and, if the Government withholds the information, dismiss the action (Roviaro v. United States, 353 US 53, 1 L ed 2d 639 [1957]). In the case at bar, while the identity of the informer is disclosed, nevertheless, the prosecution failed to present him as a witness on the dubious assertion that his whereabouts are unknown. As no subpoena appears to have been issued by the prosecution to the said informer, the presumption that evidence willfully suppressed would be adverse if produced (Section 5 [e], Rule 131) arises. Emateo's non-production as a witness could have been excused had he merely played the part of a true informer. An informer is one who communicates knowledge of someone having committed or about to commit a crime to the proper authorities who by themselves, acting independently, may obtain the evidence necessary for the prosecution of the offender. On the contrary, he did more than that. He played a substantial part in the act complained of and is in fact claimed by the appellant as the real owner of the subject marijuana. The case of Sorrentino v. U.S. (163 F. 2d 627 [19471), provides the distinction between one who played the part of a mere informer and a decoy. There, the defendant was charged for an illegal sale of opium in favor of a person, the identity of whom the US Government claims to be confidential. Objections as regards questions seeking to ascertain his identity were sustained by the trial court on the ground that it will violate the privilege of withholding the identity of informers. In reversing the trial court, it was held that: If the person whom Grady called an informer had been an informer and nothing more, appellant would not have been entitled to have his identity disclosed but the person whom Grady called an informer was something more. He was the person to whom appellant was said to have sold and dispensed the opium described in the indictment. Information as to this person's identity was therefore material to appellant's defense. . . . The Solicitor General, however, contends that appellant's disclaimer of having no knowledge about the sale of marijuana is not worthy of credence. According to him, the best proof is the fact that appellant delivered a sackful of marijuana to Bostick and that the sale by appellant of marijuana to Bostick is shown by evidence independent of Clayton Emateo's testimony. (Appellee's Brief, p. 7; Rollo, p. 125). We disagree. Appellant's denial of the ownership of marijuana and his testimony that he took the sack the contents of which turned out to be marijuana from the place where Emateo previously deposited it because he was only requested by Emateo to do so (TSN, March 20, 1986, pp. 7-8; March 31, 1986, pp. 8 & 14), was never contradicted by the prosecution. Thus: ATTY. WAGANG: Q: You made mention of a gift of bag which Clayton will give as a gift to that American; where did this bag come from? A: He, Clayton Emateo brought that bag earlier that morning of the same day . xxx xxx xxx Q: And what happened when you reached Irisan? A: When we reached Irisan it was raining. Q: And were you able to get that bag left? A: Clayton sent me to get the bag because that time it was raining and they did not want to be wet . Q: Where did you bring that bag'? A: I went to get the bag and loaded the bag on the car of that American. (TSN, pp. 7-8, March 20,1986) On cross-examination: FISCAL CARBONELL:

Q: Is it your testimony that in the morning of August 1, 1985 Clayton Imateo came to your residence driving his taxicab and brought the bag to your residence? A: Yes, sir. xxx xxx xxx Q: Is it your testimony that when Clayton Imateo came (to) your residence at Irisan in the morning of August 1, 1985 he just deposited the bag at your residence without conversing to you? A: He told me that he has no money at that time by(u)t he had to wait for his visitor whom he will give that bag and from whom he will get money to pay me. (TSN, pp. 8-9, March 31, 1986) xxx xxx xxx Q: Now, immediately after the American parked his vehicle, you alighted from the vehicle, is that correct? A: Yes, I was sent by Clayton to go to our quarters to get the bag because it was raining . Q: Now, is it your testimony Mr. Witness that Clayton just sent you to fetch the bag from a place which is about ten minutes walk from the place where the vehicle was parked when in fact he was the one who has a debt of gratitude to you because of the P4,000.00 you lent him? A: Yes, sir. Q: You readily acceeded to that order for you to go and get the bag from your quarters? A: Yes, because when I saw him (h)e was well-dressed and he was wearing leather shoes. (TSN, pp. 14-15, March 31, 1986; Emphasis supplied) The prosecution witnesses' bare assertions, including that of Bostick's, anent appellant's delivery of the sack/bag of marijuana cannot, by itself, indicate ownership nor even illegal possession as contemplated by law under the circumstances in the absence of any other evidence. Neither is there any reason for us to believe, as advanced by the Solicitor General, that appellant even acknowledged ownership of the seized marijuana by identifying them and affixing his signature on the back and on each and every parcel inside it ( sic) (Appellee's Brief, p. 8; Rollo, p. 126). Appellant testified that he affixed his signature because he was asked and forced to do so (TSN, March 20, 1986, p. 11; March 31, 1986, pp. 18 & 22). Nowhere in the cited testimony of Atty. Aurellado relied upon by the prosecution (Appellee's Brief, p. 8; Rollo, p. 126; TSN, November 8, 1985, pp. 9-15) was there any indication that appellant did acknowledge ownership of the prohibited merchandise. Appellant's signature appearing on the sack and individual bundles containing marijuana do not signify, much less evidence, guilt for they are mere procedural steps normally undertaken after effecting arrest (People v. Sariol, G.R. No. 83809, June 22, 1989). Furthermore, it appearing that appellant was not informed of his right to counsel at the time he affixed his signature, the same has been obtained in violation of his right as a person under custodial investigation for the commission of an offense and is therefore inadmissible (Constitution, Art. III, Sec. 12 [1], [3]). And there is the question of money involved. While the prosecution took time to prepare counterfeit money to the extent that Bostick even shelled out his own, the same turned out to be not really necessary it appearing that appellant never even got hold of it, much less saw the same. It defies credulity that in a carefully orchestrated "buy-bust" operation such as in the case at bar, no money changed hands between the alleged buyer and seller. It may then be asked, was there really an attempt to sell on the part of appellant of a merchandise he does not even own? It is a cardinal rule in this jurisdiction that in order to merit conviction, the prosecution must rely on the strength of its own evidence and not on the weakness of evidence presented by the defense. An accused must always be deemed innocent until the contrary is proved beyond reasonable doubt. In the instant case, the prosecution failed to so establish the guilt of herein appellant. WHEREFORE, the challenged judgment is REVERSED and appellant is hereby ACQUITTED on the ground of reasonable doubt. SO ORDERED.

(20) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLITO LINSANGAN y DIAZ, accused-appellant. [G.R. No. 88589 April 16, 1991] GRIO-AQUINO, J.: This is an appeal from the decision dated April 26, 1988, of the Regional Trial Court, Branch XLIX, Manila, in Criminal Case No. 8758968-SCC, finding the accused guilty of the crime of Violation of Section 4 of Article II in relation to Section 21, Art. IV of Republic Act 6425 (The Dangerous Drugs Law), as amended, sentencing him to suffer the penalty of reclusion perpetua with all the accessory penalties of the law, and to pay a fine of P20,000 plus costs. The information dated November 13, 1987, charged: That on or about November 13, 1987 in the City of Manila, Philippines, the said accused, not being authorized by law to sell, deliver, give away to another or distribute any prohibited drug, did then and there wilfully and unlawfully sell, deliver or give away to another ten (10) handrolled sticks of marijuana cigarettes, which is a prohibited drug. (p. 15, Rollo.) Upon arraignment on November 27, 1987, the appellant, assisted by counsel de parte, pleaded not guilty to the charge. It was established during the trial that in early November, 1987, police operatives of the Drug Enforcement Unit, Police Station No. 3 of the Western Police District were informed that there was rampant drug using and pushing on Dinalupihan Street, Tondo, Manila. The pusher was described to them as a boy of about 20 years, 5'5" in height, and of ordinary build. He allegedly sold marijuana to anybody, regardless of age ("walang gulang"). In light of these reports, Police Lieutenant Manuel Caeg and the other members of the unit organized a "buy-bust" operation on November 13, 1987 at Dinalupihan St., Tondo, Manila, to effect the arrest of the notorious drug pusher. Patrolman Roberto Ruiz, a member of the WPD since October 1, 1978 and assigned to the Drug Enforcement Unit since October, 1987, doing surveillance and arrest operations, was designated as the team leader, Pfc. Eleazar Lahom, Patrolmen Tomasito Corpuz and Jesus Saulog were designated as team members (pp. 1-19, t.s.n., December 16, 1987). Five (5) days before the appointed date, the police operatives conducted a "test-buy" operation on Rizal Avenue, Sta. Cruz, Manila. They arrested a person for violation of Section 8 of Republic Act 6425, as amended (Possession or Use of Prohibited Drug). Under questioning by the police operatives, the person informed them that he bought marijuana at Dinalupihan Street in Tondo. On November 13, 1987 at 10 o'clock in the morning, before the group left the office for the area of operation, two (2) ten-peso bills were given to Pat. Corpuz who had marked them with his initials "T.C." He gave one of the marked bills to the informer. Then, they proceeded to Dinalupihan, using an owner-type jeep driver by Pat. Lahom. They were all in civilian clothes. Pat. Corpuz wore a pair of maong shorts and a white t-shirt placed over his shoulders. They parked the jeep on Dinalupihan Street near Pampanga Street in Tondo. After briefing by the teamleader, Pat. Corpuz and the confidential informant approached the appellant. Pat. Lahom and Saulog remained in the jeep while Pat. Ruiz stood beside the jeep to watch the transaction. As Patrolman Corpuz and the confidential informant walked together, they conversed about the suspect. Pat. Corpuz asked the informant where the suspect was and the informer pointed to the appellant, who was seated by the gutter about six (6) meters away from them, seemingly waiting for someone. He was wearing blue-and-green shorts and a sando (undershirt). The informer raised his hand as a signal to the appellant, who rose and walked toward them. They walked toward a wooden house with a wooden fence and a store on the left side. The informer told the appellant: "Kukuha ako." The informer asked? "Magkano?" The informer told the accused that he would buy P10 worth of marijuana while his "compadre" (referring to Patrolman Tomasito Corpuz), would also get P10 worth. P20 would fetch ten (10) cigarette sticks of hand-rolled marijuana at P2.00 per stick. The policeman and the informer impressed upon the accused that they were in dire need of marijuana. The accused took the P20 from Pat. Corpuz and tucked it in his front waist. The accused went inside the wooden house, while Pat. Corpuz and the informer waited outside. The accused emerged shortly and handed over to Pat. Corpuz ten (10) cigarette sticks of handrolled marijuana. Pat. Corpuz took them with his right hand and at the same time he grabbed the accused with his other hand, saying: "Pulis ito, h'wag kang pumalag!" Pat. Ruiz saw the signal and rushed over to them. The accused tried to resist but was overpowered. The informer took to his heels (pp. 1-35, t.s.n., Jan. 13, 1988). Pat. Ruiz frisked Linsangan and retrieved the marked ten-peso bills (Exhs. A-1 and A-2) tucked in his waist. He asked the appellant to sign his name on the two P10 bills. They boarded the jeep and returned to the police station. Pat. Ruiz prepared a letter-request to the NBI for the laboratory examination of the ten suspected marijuana sticks. The appellant also put his initials "C.L." on each stick (December 18, 1987, t.s.n.).

Before Pat. Ruiz investigated the appellant, he prepared the booking sheet and arrest report, the affidavit of arrest, crime report, and referral letter to the Fiscal's Office. Just when the appellant was being apprised of his constitutional rights, his uncle, a neighbor, and the barangay chairman arrived. According to Pat. Ruiz, Linsangan's uncle offered P500 to Pat. Corpuz in the presence of Pat. Lahom, to let the accused go. He was requested by the barangay chairman, who is allegedly a compadre of Major Yangquiling, commander of the arresting officers, not to proceed with the case. The ten (10) handrolled cigarette sticks were referred to the NBI's forensic chemist, Carina Javier, for examination. She found them positive for marijuana. As soon as Pat. Ruiz received the NBI report on the examination, he booked the appellant for violation of the Dangerous Drugs Law and filed the case with the fiscal's office. Linsangan denied the charge. He alleged that at around 10:30 in the morning of November 13, 1987, he was in the vendor's stand of his neighbor Emeterio Balboa, alias Rey Galunggong, on Dinalupihan Street to buy his breakfast, for he had just awakened. He lived with his widowed mother, Erlinda, on the ground floor of a two-storey house on the alley at 1284 Dinalupihan Street, Tondo, Manila. The upper floor was occupied by his mother's brother, Geosito Diaz, who is engaged in the second-hand tire business. Although once in a while, his uncle helped them financially, he earned his living by driving a tricycle on a 5 p.m. to 12:00 p.m. shift. He admitted that he had witnessed some men in Dinalupihan engaged in drinking sprees and smoking marijuana. The appellant alleged that the police officers fabricated the charge against him for in the last week of September, 1987, Patrolmen Corpuz and Ruiz tried to board his tricycle, which he was driving that night, to arrest someone, but he did not allow them to board his tricycle, for fear of being involved in the case. Appellant's neighbor Emeterio Balboa testified that at around 10:30 a.m. on November 13, 1987, two persons alighted from an ownertype jeep parked near his store. They asked the appellant, who was standing about one-and-a-half-arms-length away if he was Carlito Linsangan, and when the appellant said "yes," they introduced themselves as policemen, frisked him and took him away. The appellant presented a Certification from his Barangay Chairman, Crisanto Guansing of Brgy. 206, Zone 19, attesting to his good moral character. Nevertheless, the trial court found him guilty of the charge of drug pushing. The dispositive part of its decision reads: WHEREFORE, judgment is hereby rendered finding the Accused CARLITO LINSANGAN Y DIAZ guilty beyond reasonable doubt for the crime of violation of Section 4 of Republic Act 6425, as amended and hereby sentences him to the penalty of RECLUSION PERPETUA, with all the accessory penalties of the law, and to pay a fine of P20,000, without subsidiary imprisonment in case of insolvency, and to pay the costs. The ten (10) cigarette sticks of handrolled marijuana ( Exhibits "F-2" to "F-11") subject matter of this case are hereby confiscated in favor of the government. The Accused shall be entitled to the full period of his detention at the City Jail provided that he agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail. (pp. 32-33, Rollo.) The accused appealed to this Court alleging that the lower court erred: 1. in not finding that the prosecution witnesses, Pfc. Ruiz and Corpuz, were motivated by ill-feelings against the appellant, and that their testimonies were fraught with contradictions and inconsistencies; 2. in not finding that it was the informer and not the accused, who handed ten sticks of hand-rolled marijuana cigarettes to Pat. Corpuz; 3. in not holding that the marked money was planted evidence; and 4. in not holding that when the policemen required him to initial the P10-bills, they violated his constitutional right to counsel, to remain silent, and not to incriminate himself while under custodial investigation. The appeal has no merit. The court's assessment of the credibility of the prosecution's witnesses is entitled to great respect unless and until they are clearly shown to be arbitrary, which the defense failed to do (People vs. Caldito, 182 SCRA 554). Although some inconsistencies were noted by the appellant in the affidavit of arrest prepared by Pat. Corpuz, they involve minor details which do not affect the over-all picture of the case.

The alleged motive of the policemen for fabricating the charge against him and planting marked money on his person is not credible. The Court is unable to imagine that a lowly tricycle driver would have the temerity to defy a pair of armed policemen by refusing to give them a ride in his tricycle to pursue a law violator. The appellant was not denied due process during the custodial investigation. Although he was not assisted by counsel when he initialed the P10-bills that the police found tucked in his waist, his right against self-incrimination was not violated for his possession of the marked bills did not constitute a crime; the subject of the prosecution was his act of selling marijuana a cigarettes (People vs. Layuso, 175 SCRA 47; People vs. Macuto, 176 SCRA 762; Mejia vs. Pamaran, 160 SCRA 457). His conviction was not based on the presence of his initials on the P10-bills, but on the fact that the trial court believed the testimony of the policemen that they arrested him while he was actually engaged in selling marijuana cigarettes to a member of the arresting party. The trial court gave more credence to their categorical declarations than to the appellant's denials (People vs. Tan, 145 SCRA 614). That is as it should be for as law enforcers, they are presumed to have performed their official duties in a regular manner (People vs. de Jesus, 145 SCRA 521; People vs. Ale, 145 SCRA 50). Their task of apprehending persons engaged in the deadly drug trade is difficult enough without legal and procedural technicalities to make it doubly so. WHEREFORE, the appeal is dismissed for lack of merit. The judgment of the trial court in Criminal Case No. 87-58968-SCC is hereby affirmed except the penalty imposed on the accused, Carlito Linsangan y Diaz, which shall be life imprisonment and a fine of P20,000.00 with costs de oficio. SO ORDERED.

(21) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY Y AMPARADO, accused-appellant. [G.R. No. 122485. February 1, 1999] PER CURIAM: A violation of the dignity, purity and privacy of a child who is still innocent and unexposed to the ways of worldly pleasures is a harrowing experience that destroys not only her future but of the youth population as well, who in the teachings of our national hero, are considered the hope of the fatherland. Once again, the Court is confronted by another tragic desecration of human dignity, committed no less upon a child, who at the salad age of a few days past 12 years, has yet to knock on the portals of womanhood, and met her untimely death as a result of the "intrinsically evil act" of non-consensual sex called rape. Burdened with the supreme penalty of death, rape is an ignominious crime for which necessity is neither an excuse nor does there exist any other rational justification other than lust. But those who lust ought not to lust. The Court quotes with approval from the People's Brief, the facts narrating the horrible experience and the tragic demise of a young and innocent child in the bloody hands of appellant, as such facts are ably supported by evidence on record: [1] * "Appellant Larry Mahinay started working as houseboy with Maria Isip on November 20, 1993. His task was to take care of Isip's house which was under construction adjacent to her old residence situated inside a compound at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela , Metro Manila. But he stayed and slept in an apartment also owned by Isip, located 10 meters away from the unfinished house (TSN, September 6, 1995, pp. 5-10). "The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian Street. She used to pass by Isip's house on her way to school and play inside the compound yard, catching maya birds together with other children. While they were playing, appellant was always around washing his clothes. Inside the compound yard was a septic tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp. 17; 20-22). "On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking spree. Around 10 o'clock in the morning, appellant, who was already drunk, left Gregorio Rivera and asked permission from Isip to go out with his friends (TSN, September 6, 1995, pp. 9-11). "Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the compound, saw Ma. Victoria on that same day three to four times catching birds inside Isip's unfinished house around 4 o'clock in the afternoon. The unfinished house was about 8 meters away from Rivera's store (TSN, September 18, 1995, pp.9-11). "On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his in-law's house between 6 to 7 o'clock p.m. to call his office regarding changes on the trip of President Fidel V. Ramos. The house of his in-laws was near the house of Isip. On his way to his in-law's house, Sgt. Suni met appellant along Dian Street. That same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria standing in front of the gate of the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17). "Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to buy lugaw. Norgina Rivera informed appellant that there was none left of it. She notice that appellant appeared to be uneasy and in deep thought. His hair was disarrayed; he was drunk and was walking in a dazed manner. She asked why he looked so worried but he did not answer. Then he left and walked back to the compound (TSN, September 18, 1995, pp. 4-8; 12-14). "Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She last saw her daughter wearing a pair of white shorts, brown belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white lady sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33). "Isip testified that appellant failed to show up for supper that night. On the following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger jeepney driven by Fernando Trinidad at the talipapa. Appellant alighted at the top of the bridge of the North Expressway and had thereafter disappeared (TSN, September 20, 1995, pp. 4-9; September 27, 1995; pp. 14-17). "That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria inside the septic tank. Boy immediately reported what he saw to the victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13). "With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was retrieved from the septic tank. She was wearing a printed blouse without underwear. Her face bore bruises. Results of the autopsy revealed the following findings:

Cyanosis, lips and nailbeds, Contusions, supra pubic area, 6.0 x 3.0 cm., thigh right, Anterior aspect, middle third, 4.5 x 3.0 cm. Contused-abrasions on the forehead, 5.0 x 5.0 cm, angle of the left eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm. elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd , 5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 x 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm. Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm. Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural petechial hemorrhages. Hemorrhage, subdural, left fronto-parietal area. Tracheo-bronchial tree, congested. Other visceral organs, congested. Stomach, contain 1/4 rice and other food particles. CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head Injury, Contributory. REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o'clock position corresponding to the face of a watch edges congested with blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126) "Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were informed by Isip that her houseboy, appellant Larry Mahinay, was missing. According to her, it was unlikely for appellant to just disappear from the apartment since whenever he would go out, he would normally return on the same day or early morning of the following day (TSN, September 6, 1995, pp. 6-11-27). "SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant was working in a pancit factory at Barangay Reparo, Caloocan City. They proceeded to said place. The owner of the factory confirmed to them that appellant used to work at the factory but she did not know his present whereabouts. Appellant's townmate, on the other hand, informed them that appellant could possibly be found on 8th Street, Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9). "The policemen returned to the scene of the crime. At the second floor of the house under construction, they retrieved from one of the rooms a pair of dirty white short pants, a brown belt and a yellow hair ribbon which was identified by Elvira Chan to belong to her daughter, Ma. Victoria. They also found inside another room a pair of blue slippers which Isip identified as that of Appellant. Also found in the yard, three armslength away from the septic tank were an underwear, a leather wallet, a pair of dirty long pants and a pliers positively identified by Isip as appellant's belongings. These items were brought to the police station (TSN, August 14, 1995, pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25). "A police report was subsequently prepared including a referral slip addressed to the office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved the victim's underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17). "After a series of follow-up operations, appellant was finally arrested in Barangay Obario Matala, Ibaan, Batangas. He was brought to Valenzuela Police Station. On July 7, 1995, with the assistance of Atty. Restituto Viernes, appellant executed an extra-judicial confession wherein he narrated in detail how he raped and killed the victim. Also, when appellant came face to face with the victim's mother and aunt, he confided to them that he was not alone in raping and killing the victim. He pointed to Zaldy and Boyet as his coconspirators (TSN, August 14, 1995, pp. 13-21)." Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information which reads: [2] "That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court the above-named accused, by means of force and intimidation employed upon the person of MARIA VICTORIA CHAN y CABALLERO, age 12 years old, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with said MARIA VICTORIA CHAN y CABALLERO against her will and without her consent; that on the occasion of said sexual assault, the above-named accused, choke and strangle said MARIA VICTORIA CHAN y CABALLERO as a result of which, said victim died. "Contrary to law."[3]

to which he pleaded not guilty. After trial, the lower court rendered a decision convicting appellant of the crime charged, sentenced him to suffer the penalty of death and to pay a total of P73,000.00 to the victim's heirs. The dispositive portion of the trial court's decision states: "WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond reasonable doubt of the crime charged, he is hereby sentenced to death by electricution (sic). He is likewise condemned to indemnify the heirs of the victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further sum of P23,000.00 for the funeral, burial and wake of the victim. "Let the complete records of the case be immediately forwarded to the Honorable Supreme Court for the automatic review in accordance to Article 47 of the Revised Penal Code as amended by Section 22 of Republic Act No. 7659. "SO ORDERED."[4] Upon automatic review by the court en banc pursuant to Article 47 of the Revised Penal Code (RPC), as amended, [5] appellant insists that the circumstantial evidence presented by the prosecution against him is insufficient to prove his guilt beyond reasonable doubt. In his testimony summarized by the trial court, appellant offered his version of what transpired as follows: (T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. d e Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a drinking spree. Gregorio Rivera is the brother of Maria Isip, appellants employer. After consuming three cases of red horse beer, he was summoned by Isip to clean the jee pney. He finished cleaning the jeepney at 12 oclock noon. Then he had lunch and took a bath. Later, he asked permission from Isip to go out with his friends to see a movie. He also asked for a cash advance of P300.00 (TSN, October 16, 1995, pp. 4-5). At 2 oclock in the afternoon, appellant, instead of going out with his friend, opted to rejoin Gregorio Rivera and Totoy for an other drinking session. They consumed one case of red horse beer. Around 6 oclock p.m., Zaldy, a co -worker, fetched him at Gregorio Riveras house. They went to Zaldys house and bought a bottle of gin. They finished drinking gin around 8 oclock p.m. After consuming the bottle of gin, they went out and bought another bottle of gin from a nearby store. It was already 9 oclock in the evening. While they were at the store, appellant and Zaldy met Boyet. After giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16, 1995, pp. 6-7). On his way home, appellant passed by Norgina Riveras store to buy lugaw. Norgina Rivera informed him that there was none left of it. He left the store and proceeded to Isips apartment. But because it was already closed, he decided to sleep at the second floor of Isips unfinished house. Around 10 oclock p.m., Zaldy and Boyet arrived ca rrying a cadaver. The two placed the body inside the room where appellant was sleeping. As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape the dead body of the child or they would kill him. He, However, refused to follow. Then, he was asked by Zaldy and Boyet to assist them in bringing the dead body downstairs. He obliged and helped dump the body into the septic tank. Thereupon, Zaldy and Boyet warned him that should they ever see him again, they would kill him. At 4 o clock the following morning, he left the compound and proceeded first to Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13). Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas. The police officers allegedly bro ught him to a big house somewhere in Manila. There, appellant heard the police officers plan to salvage him if he would not admit that he was the one who raped and killed the victim. Scared, he executed an extra-judicial confession. He claimed that he was assisted by Atty. Restituto Viernes only when he was forced to sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11).[6] This being a death penalty case, the Court exercises the greatest circumspection in the review thereof since there can be no stake higher and no penalty more severe x x x than the termination of a human life. [7] For life, once taken is like virginity, which once defiled can never be restored. In order therefore, that appellants guilty mind be satisfied, the Court states the reasons wh y, as the records are not shy, for him to verify. The proven circumstances of this case when juxtaposed with appellants proffered excuse are sufficient to sustain his conviction beyond reasonable doubt, notwithstanding the absence of any direct evidence relative to the commission of the crime for which he was prosecuted. Absence of direct proof does not necessarily absolve him from any liability because under the Rules on evidence [8] and pursuant to settled jurisprudence,[9] conviction may be had on circumstantial evidence provided that the following requisites concur: 1. there is more than one circumstance; 2. the facts from which the inferences are derived are proven; and 3. the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Simply put, for circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt. [10]Facts and circumstances consistent with guilt and inconsistent with innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.[11] In the case at bench, the trial court gave credence to several circumstantial evidence, which upon thorough review of the Court is more than enough to prove appellants guilt beyond the shadow of reasonable doubt. These circumstantial evidence are as follows: FIRST Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of the unfinished big house where the crime happened and the septic tank where the body of Maria Victoria Chan was found in the morning of June 26, 1995 is located, categorically testified that at about 9:00 in the evening on June 25, 1995, accused Larry Mahinay was in her store located in front portion of the compound of her sister-in-law Maria Isip where the unfinished big house is situated buying rice noodle (lugaw). That she noticed the accuseds hair was disarranged, drunk and walking in sigsaging manner. That the accused appeared uneasy and s eems to be thinking deeply. That the accused did not reply to her queries why he looked worried but went inside the compound. SECOND Prosecution witness Sgt. Roberto G. Suni, categorically, testified that on June 25, 1995 between 6:00 and 7:00 in the evening, on his way to his in-laws house, he met accused Larry Mahinay walking on the road leading to his in-laws residence which is about 50 to 75 meters away to the unfinished big house of Maria Isip. That he also saw victim Maria Victoria Chan standing at the gate of the unfinished big house of Maria Isip between 8:00 and 9:00 in the same evening. THIRD Prosecution witness Maria Isip, owner of the unfinished big house where victims body was found inside the septic tank, testified that accused Larry Mahinay is her houseboy since November 20, 1993. That in the morning of June 25, 1995, a Sunday, Larry Mahinay asked permission from her to leave. That after finishing some work she asked him to do accused Larry Mahinay left. That it is customary on the part of Larry Mahinay to return in the afternoon of the same day or sometimes in the next morning. That accused Larry Mahinay did not return until he was arrested in Batangas on July 7, 1995. FOURTH Prosecution witness Fernando Trinidad, a passenger jeepney driver plying the route Karuhatan-Ugong and vice versa which include Diam St., Gen. T. de Leon, Valenzuela, Metro Manila, pinpointed the accused Larry Mahinay as one of the passengers who boarded his passenger jeepney on June 26, 1995 at 2:00 early morning and alighted on top of the overpass of the North Expressway. FIFTH Personal belongings of the victim was found in the unfinished big house of Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a clear indication that the victim was raped and killed in the said premises. There is no showing that the testimonies of the prosecution witnesses (sic) fabricated or there was any reason for them to t estify falsely against the accused. The absence of any evidence as to the existence of improper motive sustain the conclusion that no such improper motive exists and that the testimonies of the witnesses, therefore, should be given full faith and credit. (People vs. Retubado, 58585 January 20, 1988 162 SCRA 276, 284; People vs. Ali L-18512 October 30, 1969, 29 SCRA 756). SIXTH Accused Larry Mahinay during the custodial investigation and after having been informed of his constitutional rights with the assistance of Atty. Restituto Viernes of the Public Attorneys Office voluntarily gave his statement admitting th e commission of the crime. Said confession of accused Larry Mahinay given with the assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily given. That accused did not complain to the proper authorities of any maltreatment on his person (People vs. delos Santos L-3398 May 29, 1984; 150 SCRA 311). He did not even informed the Inquest Prosecutor when he sworn to the truth of his statement on July 8, 1995 that he was forced, coersed or was promised of reward or leniency. That his confession abound with details know only to him. The Court noted that a lawyer from the Public Attorneys Office Atty. Restituto Viernes and as testified by said Atty. Viernes he informed and explained to the accused his constitutional rights and was present all throughout the giving of the testimony. That he signed the statement given by the accused. Lawyer from the Public Attorneys Office is expected to be watchful and vigilant to notice any irregularity in the manner of the investigation and the physical conditions of the accused. The post mortem findings shows that the cause of death Asphyxia by manual strangulation; Traumatic Head injury Contributory substantiate. Consistent with the testimony of the accused that he pushed the victim and the latters head hit the table and the victim lost consciousness. Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko siya, tapos tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya tapos ni-rape ko na siya. There is no clear proof of maltreatment and/or tortured in giving the statement. There were no medical certificate submitted by the accused to sustain his claim that he was mauled by the police officers.

There being no evidence presented to show that said confession were obtained as a result of violence, torture, maltreatment, intimidation, threat or promise of reward or leniency nor that the investigating officer could have been motivated to concoct the facts narrated in said affidavit; the confession of the accused is held to be true, correct and freely or voluntarily given. (People v. Tuazon 6 SCRA 249; People v. Tiongson 6 SCRA 431, People v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA 73.) SEVENTH Accused Larry Mahinay testified in open Court that he was not able to enter the apartment where he is sleeping because it was already closed and he proceeded to the second floor of the unfinished house and slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it inside his room. That at the point of a knife, the two ordered him to have sex with the dead body but he refused. That the two asked him to assist them in dumping the dead body of the victim in the septic tank downstairs. (Tsn pp8-9 October 16, 1995). This is unbelievable and unnatural. Accused Larry Mahinay is staying in the apartment and not in the unfinished house. That he slept in the said unfinished house only that night of June 25, 1995 because the apartment where he was staying was already closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry Mahinay) was in the second floor of the unfinished house. Furthermore, if the child is already dead when brought by Zaldy and Boyet in the room at the second floor of the unfinished house where accused Larry Mahinay was sleeping, why will Boyet and Zaldy still brought the cadaver upstairs only to be disposed/dumped later in the septic tank located in the ground floor. Boyet and Zaldy can easily disposed and dumped the body in the septic tank by themselves. It is likewise strange that the dead body of the child was taken to the room where accused Larry Mahinay was sleeping only to force the latter to have sex with the dead body of the child. We have no test to the truth of human testimony except its conformity to aver k nowledge observation and experience. Whatever is repugnant to these belongs to the miraculous. (People vs. Santos L-385 Nov. 16, 1979) EIGHT If the accused did not commit the crime and was only forced to disposed/dumpted the body of the victim in the septic tank, he could have apprise Col. Maganto, a high ranking police officer or the lady reporter who interviewed him. His failure and omission to reveal the same is unnatural. An innocent person will at once naturally and emphatically repel an accusation of crime as a matter of preservation and self-defense and as a precaution against prejudicing himself. A persons silence therefore, particularly when it is persistent will justify an inference that he is not innocent. (People vs. Pilones, L-32754-5 July 21, 1978). NINTH The circumstance of flight of the accused strongly indicate his consciousness of guilt. He left the crime scene on the early morning after the incident and did not return until he was arrested in Batangas on July 7, 1995. [12] Guided by the three principles in the review of rape cases, to wit: [13] 1). An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; 2). In view of the intrinsic nature of the crime of rape, where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and 3). The evidence of the prosecution stands or falls on its own merits and cannot be allowed to draw strength from the weakness of the defense. the foregoing circumstantial evidence clearly establishes the felony of rape with homicide defined and penalized under Section 335 of the Revised Penal Code, as amended by Section 11, R.A. 7659, which provides: When and how rape is committed Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1.) By using force or intimidation; 2.) When the woman is deprived of reason or otherwise unconscious; and 3.) When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. 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. 2.) When the victim is under the custody of the police or military authorities. 3.) When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4.) When the victim is a religious or a child below seven (7) years old. 5.) When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6.) When committed by any member of the Armed Forces of the Philippines or Philippine National Police or any law enforcement agency. 7.) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.[14] At the time of the commission of this heinous act, rape was still considered a crime against chastity, [15] although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape has since been re-classified as a crime against persons under Articles 266-A and 266-B, and thus, may be prosecuted even without a complaint filed by the offended party. The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman by force and without consent.[16] (Under the new law, rape may be committed even by a woman and the victim may even be a man.) [17] If the woman is under 12 years of age, proof of force and consent becomes immaterial [18] not only because force is not an element of statutory rape,[19] but the absence of a free consent is presumed when the woman is below such age. Conviction will therefore lie, provided sexual intercourse is be proven. But if the woman is 12 years of age or over at the time she was violated, as in this case, not only the first element of sexual intercourse must be proven but also the other element that the perpetrators evil acts with the offended party was done through force, violence, intimidation or threat needs to be established. Both elements are present in this case. Based on the evidence on record, sexual intercourse with the victim was adequately proven. This is shown from the testimony of the medical doctor who conducted post mortem examination on the childs body: Q: And after that what other parts of the victim did you examine? A: Then I examined the genitalia of the victim. Q: And what did you find out after you examined the genitalia of the victim? A: The hymen was tall-thick with complete laceration at 4:00 oclock and 8:00 oclock position and that the edges were conges ted. Q: Now, what might have caused the laceration? A: Under normal circumstances this might have (sic) caused by a penetration of an organ. Q: So, the laceration was caused by the penetration of a male organ? A: Adult male organ, sir. Q: You are very sure of that, Mr. Witness? A: I am very sure of that.[20] Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted that he had sexual congress with the unconscious child. 15. T: Ano ang nangyari ng mga sandali o oras na iyon? S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na ginagawa, tapos dumating yung batang babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos ni rape ko na siya. 16. T: Ano ang suot nung batang babae na sinasabi mo? S: Itong short na ito, (pointing to a dirty white short placed atop this inves tigators table. Subject evidence were part of evidences recovered at the crime scene). 17. T: Bakit mo naman ni rape yung batang babae? S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko. 18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing? S: Red Horse po at saka GIN. 19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung batang babae? S: Sa kuwarto ko po sa itaas. 20. T: Kailan ito at anong oras nangyari?

S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na matandaan kung anong petsa, basta araw ng Linggo. 21. T: Saan lugar ito nangyari? S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M. 22. T: Alam mo na ba ang pangalan ng batang babae na ni rape mo? S: Hindi ko po alam. 23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN? Matatandaan mo ba ito? S: Oho. 24. T: Nung ma-rape mo, nakaraos ka ba? S: Naka-isa po. 25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng NAKARAOS, maaar i bang ipaliwanag mo ito? S: Nilabasan po ako ng tamod. 26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung iyong ari? S: Nakapasok po doon sa ari nung babae. 27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong ginawa? S: Natulak ko siya sa terrace. 28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace? S: Inilagay ko po sa poso-negra. 29. T: Saan makikita yung poso-negra na sinasabi mo? S: Doon din sa malaking bahay ni ATE MARIA. 30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-negra? S: Doon ko lang po inilagay. 31. T: Bakit nga doon mo inilagay siya? S: Natatakot po ako. 32. T: Kanino ka natatakot? S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis. 33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra? S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa poso-negra. 34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama? S: Nag-iisa lang po ako. 35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay pa ba siya o patay na? S: Buhay pa po. 36. T: Papaano mo siya pinatay? S: Tinulak ko nga po siya sa terrace.[21] In proving sexual intercourse, it is not full or deep penetration of the victims vagina; rather the slightest penetration of the male organ into the female sex organ is enough to consummate the sexual intercourse. [22] The mere touching by the males organ or instrument of sex of the labia of the pudendum of the womans private parts is sufficient to consummate rape. From the wounds, contusions and abrasions suffered by the victim, force was indeed employed upon her to satisfy carnal lust. Moreover, from appellants own account, he pushed the victim causing the latter to hit her head on the table and fell unconsc ious. It was at that instance that he ravished her and satisfied his salacious and prurient desires. Considering that the victim, at the time of her penile invasion, was unconscious, it could safely be concluded that she had not given free and voluntary consent to her defilement, whether before or during the sexual act. Another thing that militates against appellant is his extrajudicial confession, which he, however, claims was executed in violation of his constitutional right to counsel. But his contention is belied by the records as well as the testimony of the lawyer who assisted, warned and explained to him his constitutionally guaranteed pre-interrogatory and custodial rights. As testified to by the assisting lawyer: Q Will you please inform the Court what was that call about? A We went to the station, police investigation together with Atty. Froilan Zapanta and we were told by Police Officer Alabastro that one Larry Mahinay would like to confess of the crime of, I think, rape with homicide. Q And upon reaching the investigation room of Valenzuela PNP who were the other person present? A Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside the investigation room and the parents of the child who was allegedly raped. Q- And when you reached the investigation room do you notice whether the accused already there? A The accused was already there. Q Was he alone? A he was alone, sir. Q So, when you were already infront of SPO1 Arnold Alabastro and the other PNP Officers, what did they tell you, if any? A They told us together with Atty. Zapanta that this Larry Mahinay would like to confess of the crime charged, sir.

Q By the way, who was that Atty. Zapanta? A Our immediate Superior of the Public Attorneys Office. Q Was he also present at the start of the question and answer period to the accused? A No more, sir, he already went to our office. I was left alone. Q But he saw the accused, Larry Mahinay? A Yes, sir. Q Now, when Atty. Zapanta left at what time did the question and answer period start? A If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir. Q And when this question and answer period started, what was the first thing that you did as assisting lawyer to the accused? A First, I tried to explain to him his right, sir, under the constitution. Q What are those right? A That he has the right to remain silent. That he has the right of a counsel of his own choice and that if he has no counsel a lawyer will be appointed to him and that he has the right to refuse to answer any question that would incriminate him. Q Now, after enumerating these constitutional rights of accused Larry Mahinay, do you recall whether this constitutional right enumerated by you were reduced in writing? A Yes, sir, and it was also explained to him one by one by Police Officer Alabastro. Q I show to you this constitutional right which you said were reduced into writing, will you be able to recognize the same? A Yes, sir. Q Will you please go over this and tell the Court whether that is the same document you mentioned? A Yes, sir, these were the said rights reduced into writing. ATTY. PRINCIPE: May we request, Your Honor, that this document be marked as our Exhibit A proper. Q Do you recall after reducing into writing this constitutional right of the accused whether you asked him to sign to acknowledge or to conform? A I was the one who asked him, sir. It was Police Officer Alabastro. Q But you were present? A I was then present when he signed. Q There is a signature in this constitutional right after the enumeration, before and after there are two (2) signatures, will you please recognize the two (2) signatures? A These were the same signatures signed in my presence, sir. Q The signature of whom? A The signature of Larry Mahinay, sir. ATTY. PRINCIPE: May we request, Your Honor, that the two (2) signatures identified by my compaero be encircled and marked as Exhibit A-1 and A-2. Q After you said that you apprised the accused of his constitutional right explaining to him in Filipino, in local dialect, what was the respond of the accused? A- Larry Mahinay said that we will proceed with his statement. Q What was the reply? A He said Opo. Q Did you ask him of his educational attainment? A It was the Police Officer who asked him. Q In your presence? A In my presence, sir. Q And when he said or when he replied Opo so the question started? A Yes, sir. Q I noticed in this Exhibit A that there is also a waiver of rights, were you present also when he signed this waiver? A Yes, sir, I was also present. Q Did you explain to him the meaning of this waiver? A I had also explained to him, sir. Q In Filipino? A In Tagalog, sir. Q And there is also a signature after the waiver in Filipino over the typewritten name Larry Mahinay, Nagsasalaysay, whose signature is that? A This is also signed in my presence. Q Why are you sure that this is his signature? A He signed in my presence, sir. Q And below immediately are the two (2) signatures. The first one is when Larry Mahinay subscribed and sworn to, there is a signature here, do you recognize this signature? A This is my signature, sir.

Q And immediately after your first signature is a Certification that you have personally examined the accused Larry Mahinay and testified that he voluntary executed the Extra Judicial Confession, do you recognize the signature? A This is also my signature, sir.[23] (emphasis supplied). Appellants defense that two other persons brought to him the dead body of the victim and forced him to rape the cadaver is t oo unbelievable. In the words of Vice-Chancellor Van Fleet of New Jersey,[24] Evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself - such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance. Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is the rule that the findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses department on the stand while testifying, which opportunity is denied t o the appellate courts.[25] In this case, the trial courts findings, conclusions and evaluation of the testimony of witnesses is received on appeal with the highest respect,[26] the same being supported by substantial evidence on record. There was no showing that the court a quo had overlooked or disregarded relevant facts and circumstances which when considered would have affected the outcome of this case[27] or justify a departure from the assessments and findings of the court below. The absence of any improper or ill-motive on the part of the principal witnesses for the prosecution all the more strengthens the conclusion that no such motive exists. [28] Neither was any wrong motive attributed to the police officers who testified against appellant. Coming now to the penalty, the sentence imposed by the trial court is correct. Under Article 335 of the Revised Penal Code (RPC), as amended by R.A. 7659 when by reason or on occasion of the rape, a homicide is committed, the penalty shall be death. This special complex crime is treated by law in the same degree as qualified rape -- that is, when any of the 7 (now 10) attendant circumstances enumerated in the law is alleged and proven, in which instances, the penalty is death. In cases where any of those circumstances is proven though not alleged, the penalty cannot be death except if the circumstance proven can be properly appreciated as an aggravating circumstance under Articles 14 and 15 of the RPC which will affect the imposition of the proper penalty in accordance with Article 63 of the RPC. However, if any of those circumstances proven but not alleged cannot be considered as an aggravating circumstance under Articles 14 and 15, the same cannot affect the imposition of the penalty because Articles 63 of the RPC in mentioning aggravating circumstances refers to those defined in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances is alleged in the information/complaint, it may be treated as a qualifying circumstance. But if it is not so alleged, it may be considered as an aggravating circumstance, in which case the only penalty is death subject to the usual proof of such circumstance in either case. Death being a single indivisible penalty and the only penalty prescribed by law for the crime of rape with homicide, the co urt has no option but to apply the same regardless of any mitigating or aggravating circumstance that may have attende d the commission of the crime[29] in accordance with Article 63 of the RPC, as amended. [30] This case of rape with homicide carries with it penalty of death which is mandatorily imposed by law within the import of Article 47 of the RPC, as amended, which provides: The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which cases the penalty shall be reclusion perpetua. (emphasis supplied). In an apparent but futile attempt to escape the imposition of the death penalty, appellant tried to alter his date of birth to show that he was only 17 years and a few months old at the time he committed the rape and thus, covered by the proscription on the imposition of death if the guilty person is below eighteen (18) years at the time of the commission of the crime.[31] Again, the record rebuffs appellant on this point considering that he was proven to be already more than 20 years of age when he did the heinous act. Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by present amended law, the civil indemnity for the victim shall be not less than seventy-five thousand pesos (P75,000.00).[32] In addition to such indemnity, she can also recover moral damages pursuant to Article 2219 of the Civil Code [33] in such amount as the court deems just, without the necessity for pleading or proof of the basis thereof.[34] Civil Indemnity is different from the award of moral and exemplary damages.[35] The requirement of proof of mental and physical suffering provided in Article 2217 of the Civil Code is dispensed with because it is recognized that the victims injury is inherently concomitant with and necessarily resulting from the odious crime of rape to warrant per se the award of moral damages.[36] Thus, it was held that a conviction for rape carries with it the award of moral damages to the victim without need for pleading or proof of the basis thereof. [37] Exemplary damages can also be awarded if the commission of the crime was attended by one or more aggravating circumstances pursuant to Article 2230 of the Civil Code[38] after proof that the offended party is entitled to moral, temperate and compensatory

damages.[39] Under the circumstances of this case, appellant is liable to the victims heirs for the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages. Lastly, considering the heavy penalty of death and in order to ensure that the evidence against and accused were obtained through lawful means, the Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation[40] in accordance with the Constitution, jurisprudence and Republic Act No. 7438:[41] It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments: 1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf; 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means telephone, radio, letter or messenger with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun; 10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.

11.

Four members of the Court although maintaining their adherence to the separate opinions expressed in People v. Echegaray[42] that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional nevertheless submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed. WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of civil indemnity for the heinous rape which is INCREASED toP75,000.00, PLUS P50,000.00 moral damages. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. SO ORDERED.

(22) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EFREN JEREZ, accused-appellant. [G.R. No. 114385. January 29, 1998] ROMERO, J.: Appellant Efren Jerez, along with Joselito Quijan, Zaldy Victa and Efren Bola (at large), were charged with the crime of robbery with double homicide in Criminal Case No. 6755 before the Regional Trial Court [1] of Daet, Camarines Norte, Branch 38, under an information[2] dated October 15, which reads as follows: That on or about 1:00 oclock in the afternoon of May 23, 1990 within the Basit Compound at b arangay Sta. Rosa, municipality of Jose Panganiban, province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named (accused) armed with revolvers and bladed weapons conspiring, confederating together and mutually helping with one another, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of violence take from REYNALDO OCHOA and JOSELITO BALBASTRO the following personal properties, to wit: cash money amounting to P45,000.00, two (2) gold plated Seiko 5 wristwatch(es), one (1) golden Horseshoe type ring and one (1) gold plated Ray-ban with the total value of P52,000.00, Philippine Currency, belonging to said Reynaldo Ochoa and Joselito Balbastro; that on the occasion of said robbery and for the purpose of enabling the said accused to take, steal and carry away the aforesaid articles, the herein accused in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with deliberate intent to kill, with treachery, evident premeditation and taking advantage of their superior number and strength, assault, attack and stab said Reynaldo Ochoa and Joselito Balbastro, thereby inflicting upon them multiple mortal wounds on the different parts of their bodies, and as a result thereof, the said Reynaldo Ochoa and Joselito Balbastro died instantly, to the damage and prejudice of the heirs of the victims. CONTRARY TO LAW. Upon arraignment, the accused entered a plea of not guilty. A concise narration of the factual circumstances that led to appellants conviction follows: On May 23, 1990, while waiting for passengers near Josies Restaurant in the Municipality of Labo, Camarines Norte, tricycle driver Gil Villafranca was approached by a person, later identified as appellant, informing him that he was looking for a carabao buyer.[3] Subsequently, Villafranca accompanied the latter to the house of one Reynaldo Ochoa. When apprised of the purpose of the visit, Julian, the son of Reynaldo, sought his father near Kathleen Pawnshop and advised him about the four carabaos allegedly for sale at Barangay Teddy, Jose Panganiban, Camarines Norte.[4] Appellant, together with Reynaldo and another carabao buyer, Joselito Balbastro, boarded a motorcycle and proceeded to Barangay Teddy to check the condition of the carabaos. It was the last time, however, that the two were seen alive. When the latter failed to return the following day, a search, led by Julian, was conducted. In the course of their inquiry, it was learned that the motorcycle owned by Reynaldo was in the custody of the barangay captain of Teddy, Jose Panganiban who told them that it was recovered from the Basit Compound. Forthwith, they proceeded to the said compound and found Reynaldo and Joselito lifeless, having sustained several mortally-inflicted stab wounds in different parts of their bodies. The victims were divested of their watches, rayban glasses, and a sum of money amounting to P37,000.00. Police Major Roberto Rosales of the Camarines Norte Integrated National Police testified that upon appellants arrest, the la tter was apprised of his constitutional rights. On June 25, 1990, in the presence of Atty. Augusto Schneider, an investigation conducted by the police ensued and statements therein were reduced to writing, signed and sworn to before Jose Panganiban Municipal Mayor Arnie Arenal, who likewise inquired whether or not appellant understood the consequences of his confession. [5] Appellant, on the other hand, proffered alibi as his defense and that the extra-judicial confession was allegedly obtained through the use of physical violence, coercion and intimidation. He contended that on the day the incident in question occurred, he was with his common law wife, Mercedes Sarical, at the house of a certain Felix Rellolosa from 9:00 oclock a.m. to 4:00 oclock p.m. drinking liquor with some friends. [6] He further tried to buttress his alibi by declaring that no one saw him as a participant in the slaying nor was any property of the victims recovered from him. In a decision dated April 19, 1993, the trial court convicted appellant, the dispositive portion of which reads:

WHEREFORE, premises considered and finding accused EFREN JEREZ guilty beyond reasonable doubt of the crime of robbery with double homicide, he is hereby sentenced to suffer the penalty of reclusion perpetua and to indemnify and/or reimburse the heirs of the following:
To the Heirs of Reynaldo Ochoa 1. P 50,000.00 damage for death 2. 100,000.00 loss of earning capacity (estimated income x life span) 3. 25,000.00 articles/money lost (P20,000.00, watch, others) 4. 50,000.00 burial and other expenses ---------------P225,000.00 To the Heirs of Joselito Balbastro 1. P 50,000.00 damage for death 2. 100,000.00 loss of earning capacity (estimated income x life span) 3. 27,000.00 articles/money lost (P17,000.00, watch, Ray-Ban) 4. 50,000.00 burial and other expenses ---------------P227,000.00

But for insufficiency of evidence, Joselito Quijan and Zaldy Victa are hereby acquitted. SO ORDERED.[7] Appellant assails the lower court for giving weight and credence to the extra-judicial statement, stating that at the time of the taking thereof, he was assisted by an ineffectual counsel who could not safeguard his constitutional rights and interests. We affirm appellants conviction. It is well-settled in this jurisdiction that for a confession to be admissible, it must satisfy all four fundamental requirements: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing.[8] Appellant argued that the first and second requirements were not complied with. The records of the case, however, reveal otherwise. It must be borne in mind that when appellant executed the extrajudicial confession, it was done in the presence of his counsel, Atty. Schneider, and sworn to before Mayor Arenal. If indeed his confession were obtained as a result of coercion and intimidation by policemen at the police station, he could have informed the Mayor of the maltreatment he suffered. Having failed to convince the authorities, the extra-judicial confession voluntarily made by Jerez is admissible in evidence. The presumption, therefore, of spontaneity and voluntariness stands unless the defense proves otherwise. [9] Appellant argued that the trial court erred when it denied his right to have an independent counsel of his own choice. The records show that at the time the extrajudicial confession was executed, appellant disclosed to the police officers that his counsel of choice was Atty. Freddie Venida but that the latter would not be available as he is due to depart for Manila on the same day. Subsequently, Major Rosales suggested that Atty. Schneider, supposedly the only lawyer available in Jose Panganiban, appear as the counsel of appellant during investigation and the latter answered in the affirmative, as shown from the excerpts of his extrajudicial confession, thus: PASUBALI:- Ginoong Jerez, ikaw ay kukunan namin ng malayang salaysay tungkol sa isang usapin na aming sinisiyasat. Subalit, bago ang lahat, nais naming malaman mo na ikaw ay may mga karapatan susog sa ating Saligang Batas. Ito ay ang mga sumusunod: Una: Ikaw ay may karapatang tumangging magbigay ng salaysay o kaya ay magbigay ng salaysay, sapagkat ang anumang sasabihin mo sa pagtatanong na ito ay maaaring gamitin laban sa iyo sa harap ng hukuman. Nauunawaan mo ito? Sagot: Opo.

Ikalawa: Ikaw ay may karapatang ding kumuha ng isang manananggol na sarili mong pili upang siyang maging gabay mo sa pagtatanong na ito. Nauunawaan mo ito? Sagot: Opo. Nais mo bang maging gabay mong manananggol ang ating kaharap na manananggol na si Atty. Augusto B. Schneider? Sagot: Opo.

Pangatlo: Nais din naming malaman mo at ng lahat na ikaw ay hindi namin pinangangakuan, sinasaktan o tinatakot upang magbigay ng iyong sariling salaysay, kundi, ito ay pawang katotohanang kusang loob mong sasabihin at isasalaysay. Nauunawaan mo ito? Sagot: Opo. Tanong: Kung nauunawaan mong lahat itong mga pasubaling ito, ikaw ba ay nakahanda ng magbigay ng iyong sariling malayang salaysay? Sagot: Opo.[10] While the initial choice of the lawyer in cases where a person under custodial investigation cannot afford the services of a lawyer or (where the preferred lawyer is unavailable as in the case at bar) is naturally lodged in the police investigators, the accused has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the formers appointment during the course of the investig ation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. [11] Thus, once the prosecution has shown that there was compliance with the constitutional requirement on pre-interrogation advisories, a confession is presumed to be voluntary and the declarant bears the burden of proving that his confession is involuntary and untrue. The burden is on the accused to destroy this presumption. A confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. [12] Although appellant thereafter claimed that the confession he gave was made under duress, there is, however, no evidence on record to support the same. In People v. Villanueva, this Court declared that voluntariness of a confession may be inferred from its language such that if upon its face the confession exhibits no sign of suspicious circumstances tending to cast doubt upon its integrity, it being replete with details, which could possibly be supplied only by the accused, reflecting spontaniety and coherence which psychologically cannot be associated with a mind to which violence and torture have been applied, it may be considered voluntary.[13] A scrutiny of the sworn statement discloses in detail relevant facts surrounding the commission of the offense charged which the accused himself could only have known. The Court, therefore, finds that appellants constitutional right to counsel was not breached when he agreed to be represente d by Atty. Schneider. Appellant likewise argued that the trial court should have admitted his defense of alibi considering that he was not properly identified and physical evidence like properties, money, fingerprints were not discovered by the arresting officers. [14] This contention is simply unavailing in the case at bar. It is settled in this jurisdiction that for alibi to prosper, it is not enough that the accused prove that he was somewhere else when the crime was committed. He must demonstrate that he could not have been physically present at the place of the crime or in its immediate vicinity at the time of its commission. [15] Appellant testified that on the day in question, he was engaged in a drinking spree with his friends at the house of Felix Rellolosa at Talobatib, Labo, Camarines Norte and he went home at 4:00 oclock p.m. staying thereat for the rest of the night. Unfortunately, this version of the appellant was contradicted by prosecution witnesses, Julian Ochoa and Gil Villafranca, who positively identified him in court as the person scouting for carabao buyers in the Municipality of Labo, Camarines Norte at a round 9:00 oclock a.m. on May 23, 1990. Needless to say, where an accuseds alibi is established only by himself, his relatives and friends, his denial of culpability should be accorded the strictest scrutiny. They are necessarily suspect and cannot prevail over the testimonies of the more credible witnesses for the prosecution.[16] The Court is, therefore, convinced that appellants culpability of the offense charged was proved beyond reasonable doubt. The computation, however, of the damages awarded by the trial court for loss of earning capacity fixing the same at P100,000.00 for each victim is erroneous. The formula consistently used by the Supreme Court in determining life expectancy is (2/3 x [80 age of the victim at the time of death]).[17] Thus, the award for loss of earning capacity for each victim shall be as follows:
Joselito Balbastro P36,000.00 Multiply: 30 P1,080,000.00 Reynaldo Ochoa P36,000.00 Multiply: 21 P756,000.00 gross annual income (P3,000.00 x 12 mos.) life expectancy (2/3 x 45 [80 - 35 age at time of death]) total loss of earning capacity gross annual income (P3,000.00 x 12 mos.) life expectancy (2/3 x 31 [80 - 49 age at time of death]) total loss of earning capacity

WHEREFORE, in view of the foregoing, the appeal is DISMISSED and the decision of the trial court finding accusedappellant EFREN JEREZ guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED with the MODIFICATION that appellant shall indemnify Joselito Balbastro and Reynaldo Ochoa in the amount of P1,080,000.00 and P756,000.00, respectively, for losses of their respective earning capacity. Costs against appellant. SO ORDERED.

(23) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO G. TALIMAN, BASILIO M. BAYBAYAN, AMADO B. BELANO, DANILO OBENIA and RUFINO VALERA, JR., accused, PEDRO G. TALIMAN, BASILIO M. BAYBAYAN and AMADO B. BELANO, accused-appellants. [G. R. No. 109143. October 11, 2000] PARDO, J.: The case is an appeal from the decision of the Regional Trial Court, Camarines Norte, Branch 40, Daet [1] finding accused Pedro Taliman, Basilio Baybayan and Amado Belano guilty beyond reasonable doubt of murder, sentencing each of them to reclusion perpetua and ordering them to pay the heirs of the victim, Renato Cuano, indemnity of fifty thousand pesos (P50,000.00), funeral expenses of ten thousand pesos (P10,000.00) and actual damages for unrealized income in the amount of one million forty six thousand pesos (P1,046,000.00). The trial court also ordered that alias warrants of arrest be issued against accused Danilo Obenia and Rufino Valera, Jr. who are at large.[2] We state the facts. The victim was Renato Cuano (hereinafter referred to as Renato). Prosecution witness Ernesto Lacson (hereinafter referred to as Lacson) was the uncle and employer of Renato, who was the caretaker of his gravel and sand truck. [3] On July 21, 1990, Renato came to see Lacson and informed him that armed and hooded persons [4] were asking for money amounting to six thousand pesos (P6,000.00). The amount was reduced to six hundred pesos (P600.00) and finally to two hundred pesos (P200.00).[5] On July 22, 1990, Lacson arrived home from church. His wife handed him a letter delivered to her by a child. In the letter, purportedly members of the N.P.A. demanded eight thousand pesos (P8,000.00) from him. [6] We quote the letter:[7] Sayo TaTay Erning Rebolusyonaryong pagbati sa yo/ sa inyo layunin ng sulat kong ito upang ipahiwatig sa yo na ang pakikibaka pang kalawakang pakikibaka ay humihingi ng tulong sa iyo Tay Erning Siguro alam mo na amg aming pakay lalo na sa aming pangangailangan pinansyal upang magamit sa kilusan bigyan mo po kami ng halagang 8,000.00 at ito po ang aming inaasahan okey inaasahan ko po at maghihintay kami doon sa kabilang ilog papuntang nalisbitan dalhin mo ang jeep mo iyan ang aming palatandaan alas 4:00 p.m. July 22,90 inaasahan po namin ang iyong pakikipakaupira at inaasahan po namin na walang ibang makakaalam. Okey salamat sigi po maghihintay kami alas 4:00 mamaya. MELCO GROUP KA BONG MABUHAY ANG N.P.A. On the same day, at around eight oclock in the morning (8:00 a. m.), Lacson instructed Renato to take his passenger jeep and to proceed to his gold field in Nalisbitan to get his collectibles from the field. This was the last time Lacson saw Renato alive.[8] Also on the same day, Lacson told his employee,[9] prosecution witness Elizer Obregon (hereinafter referred to as Elizer), to go to the crossing of Nalisbitan,[10] the place mentioned in the letter to investigate who the persons demanding money were. [11] Elizer complied and reached the place at around five oclock in the afternoon (5:00 p.m.) of the sa me day. Upon reaching the place, Elizer saw Renato and spoke with him. In the vicinity, Elizer saw accused Basilio Baybayan, Pedro Taliman and Amado Belano. At that time, accused Sgt. Pedro Taliman and C1C Basilio M. Baybayan were members of the Camarines Norte Constabulary/Integrated National Police Command.[12] Elizer saw two other civilians in their company.[13] Elizer then saw accused Pedro Taliman and Basilio Baybayan take Renato [14] to a hilltop, where he was guarded by accused who were armed. Elizer heard one of the accused say that Renato must be taken as he must be acting as a lookout (for Lacson). [15] Elizer then proceeded to Bagong Silang and reported to Lacson that Renato was taken by accused Pedro Taliman, Basilio Baybayan and Amado Belano.

A custodial investigation was conducted. On July 23, 1990, Attorney Nicolas V. Pardo was mayor of Labo, Camarines Norte. He went to the police station upon invitation of police corporal Cereno to assist accused during their custodial investigation. [16] Accused executed extra-judicial statements, confessing to the commission of the crime. It was during this custodial investigation that accused Basilio Baybayin confessed to prosecution witness Sgt. Bonifacio Argarin that he participated in the killing of Renato because Renato did not give them the money they were demanding. This confession was given without the assistance of counsel and was not reduced to writing. [17] On July 23, 1990, police authorities, accompanied by accused Basilio Baybayan went to the place indicated in a sketch prepared by accused Pedro Taliman.[18] It was in the place indicated that they found the cadaver of Renato.[19] This was the same place or hilltop where prosecution witness Elizer saw Renato being guarded. [20] On July 24, 1990, a medical officer of Labo, Camarines Norte issued a certificate of death of Renato Lacson Cuao, stating as cause of death, the following:[21] Immediate cause : a. Irreversible shock due to massive hemorrhages Antecedent cause : b. Internal and External secondary to Underlying cause : c. Gunshot wound and multiple stab wounds. On December 18, 1990, Provincial Prosecutor Pascualita Duran-Cereno filed with the Regional Trial Court, Camarines Norte an information for murder against accused Pedro Taliman, Basilio Baybayan, Amado Belano, Danilo Obenia and Rufino Valera, Jr. alleging: That on or about 5:00 oclock in the afternoon of July 22, 1990, at Crossing of sitio Malisbitan, Brgy. Exiben, municipality of Labo, province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously, with deliberate intent to kill, with treachery, evident premeditation and taking advantage of superior strength, assault, attack, stab and shoot one RENATO CUAO alias LAPOY, thereby inflicting upon the latter gunshot wound and multiple stab wounds on the different parts of his body, and which injuries were the proximate cause of the death of said Renato Cuano alias Lapoy, to the damage and prejudice of the heirs of the victim. CONTRARY TO LAW. [22] On February 26, 1991, accused Pedro G. Taliman, Basilio M. Baybayan and Amado B. Belano were arraigned. They pleaded not guilty.[23]Accused Danilo Obenia[24] and Rufino Valero, Jr. were not arraigned because they remained at large. On March 21, 1991, accused waived the pre-trial conference[25] and trial ensued.[26] On May 29, 1992, the trial court declared the case submitted for decision. [27] On September 24, 1992, the trial court rendered a decision, the decretal portion of which provides: WHEREFORE, in view of the foregoing, the accused Pedro Taliman, Basilio Baybayan and Amado Delano are all found guilty beyond reasonable doubt of the crime of Murder as charged, and are hereby each sentence ( sic) to suffer the penalty of reclusion perpetua (or life imprisonment) (sic). The accused are furthermore jointly and severally ordered to pay the heirs of the victim for his death the amount of fifty thousand pesos (P50,000.00) and for funeral expenses the amount of ten thousand (P10,000.00) pesos, and considering that the deceased victim was only 27 years old when killed and applying the formula (2/3 x [80-27] - life expectancy of the American Table of Mortality, said deceased victim has still 44 years more to live were he not killed by the accused. Therefore, since he was employed and receiving monthly salary of P2,000.00 his unrealized income for the 44 more years of his life is P1,046,000.00 for which the accused likewise are jointly and severally ordered to pay. Considering that accused Danilo Obenis and Rufino Valera, Jr., are still at large, let an alias Warrant of Arrest be issued against them. In the meantime, let the records of the case be archived and reinstated as soon as they are apprehended. SO ORDERED.[28]

On October 28, 1992, the decision was promulgated. [29] However, accused Basilio M. Baybayan was not present,[30] despite due notice.[31] On October 30, 1992, the trial court issued a warrant for the arrest of accused Basilio M. Baybayan. [32] The warrant of arrest was returned unserved as he could not be found.[33] On November 11, 1992, accused Pedro G. Taliman filed a notice of appeal with the trial court.[34] On May 26, 1993, we resolved to accept the appeal. [35] We state at the onset that while counsel for accused represents all five accused in this appeal, the benefit of this appeal is only accorded accused-appellants Pedro G. Taliman, Basilio M. Baybayan[36] and Amado B. Belano. The other two accused Danilo Obenia and Rufino Valera, Jr., were not arraigned.[37] Thus, the trial court did not acquire jurisdiction over their persons. The rule on trial in absentia cannot apply to Danilo Obenia and Rufino Valera, Jr. In People v. Salas,[38] the Court declared that one of the requisites for trial to proceed in absentia is that the accused had been arraigned. Now, the merits. Accused-appellants submit that the extra-judicial confessions on which the trial court relied were inadmissible in evidence because they were obtained in violation of their constitutional rights. [39] We agree with accused-appellants on this point. The extrajudicial statements alone cannot be a basis for conviction. Article III, Section 12 (1) of the Constitution provides: Any person under custodial investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent andindependent 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 waivedexcept in writing and in the presence of counsel (underscoring ours). Mayor Pardo cannot be considered as an independent counsel for accused during their custodial investigation. In People v. Culala,[40] we held that the extra-judicial confession of the accused-appellant was inadmissible as he was assisted by the incumbent municipal attorney. In People vs. Bandula,[41] we held that a municipal attorney could not be an independent counsel as required by the Constitution. We reasoned that as legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order. It is therefore seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Besides, lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are suspects. In many areas, even less obvious than that obtaining in the present case, the relationship between lawyers and law enforcement authorities can be symbiotic.[42] If in the aforecited cases, we disregarded the extra-judicial statements of the accused, how much more must we do so now, given that it was the mayor himself, and not just the provincial attorney, that assisted accused-appellants? Even assuming that the right to counsel was orally waived during custodial investigation, [43] still the defect was not cured. The Constitution expressly provides that the waiver must be in writing and in the presence of counsel. [44] This, accused-appellants did not do. However, while we agree that the extra-judicial statements of the accused are inadmissible in evidence, we find that there is still sufficient evidence to convict. While no one saw the actual killing of Renato, circumstantial evidence proved its commission. Resort to circumstantial evidence is essential, when to insist on direct testimony would set felons free. [45] Rule 133, Section 4 of the 1989 Revised Rules on Evidence provides:[46] SEC. 4. Circumstantial evidence, when sufficient - Circumstantial evidence is sufficient for conviction 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 conviction beyond reasonable doubt.

In the present case, we find the following circumstances attendant: First, Renato was last seen alive in the company of accused-appellants. This was the substance of Elizers testimony. The trial court did not find reason not to believe him. Neither do we. It is the trial court and not this Court that had the opportunity to observe Elizers manner of testifying, his furtive glances, his calmness, sighs or the scant or full realization of his oath. [47] The trial courts assessment of the credibility of witnesses is entitled to respect.[48] Second, accused-appellants, two other civilians, Renato and Elizer were the only persons present at the Nalisbitan crossing, on July 22, 1990, at five oclock in the afternoon. The place and the time are significant. This was the very place, the very date and more or less the time of day indicated in the letter of demand that Lacson received.[49] While Renatos and Elizers presence in the area was explained, the presence of accused-appellants in that area and during that crucial time can be only explained by the fact that accusedappellants were the very ones demanding money from Lacson. Facts or circumstances which are not only consistent with the guilt of the accused but also inconsistent with his innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court. [50] Third, motive is apparent. Renato was first approached by accused-appellants with an oral demand. Renato relayed the demand to Lacson.[51] The oral demand was followed up with a written demand. [52] When Renato passed through the Nalisbitan crossing, he was driving Lacsons jeepney. This was the very jeepney indicated in the letter. The letter instructed Lacson to bring money and to drive a specific jeepney to Nalisbitan. Yet, when accused-appellants confronted Renato, he did not have the money they demanded. The fact that Renato was the driver of the jeepney indicated in the letter can explain accused-appellants reason for killing him. This conclusion is supported by Elizers testimony. We quote the pertinent portions:[53] q. Now, you said you were requested by Mr. Lacson to proceed to that crossing of Nalisbitan for you to see the person who was demanding money and identified themselves as members of NPA. Were you able to go to that place? a. Yes, sir. q. What time was that? a. I reached the place more or less 5:00 oclock in the afternoon of that same date July 22, 1990, sir. q. What did you do when you reached that Nalisbitan Crossing? a. Upon reaching the place at the crossing of Nalisbitan I have talked with Renato Cuao who asked where I was going. I have not confided to him that I was doing surveillance work on the person demanding money from Ernesto Lacson and so I proceeded. I walked and upon reaching a point I have seen Basilio Naybayan in the company of two (2) civilians and I continued with my walk and ahead of them I saw Mr. Taliman with Belano and I did not notice that I was followed by Mr. Renato Cuao. xxx a. I saw, sir, Renato Cuao was taken by Mr. Taliman and Belano, sir. xxx q. Now, when you go back taking the same route what did you see if any? a. When I was on my way back taking the same route my way was blocked by Belano and Taliman accompanied by civilian and inquired from me whether I was the driver of the jeep. q. What was your answer if any? a. I denied being the driver of the jeep, sir. q. Why did you deny being the driver of the jeep? a. I denied being the driver of the jeep because I saw already Renato Cuao on top of the hill on a cut guarded by Baybayan with a ccivilian in their company, sir. xxx q. The question of this Court is why did you say that this Renato Cuao is being guarded?

a. They are guarding Renato Cuao, sir, because that is the person they have conferred with to whom they have relayed the demand of money and he is the driver of the jeep. He is the one who pretended to be the driver of the jeep. xxx q. Now, when Amado Belano asked you whether you know Renato Cuao and you denied it, what more did Amado Belano ask you if any? a. Amado Belano further made a statement that it is better for them to take along that man, referring to Renato Cuao, because Renato Cuao might be acting as a lookout. The letter[54] provided that no one else should know[55] about the demand. Thus, Renatos presence would naturally alarm accused-appellants. Motive is a key element when establishing guilt through circumstantial evidence. [56] Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction.[57] Fourth, Renatos corpse was discovered in the same place where he was held and guarded by accused -appellants.[58] Fifth is the facts of death of Renato, which is the corpus delicti of the crime. However, while Renatos death in the hands of accused -appellants was proven, we find that the manner of killing was not so evidenced.There was no showing of treachery. Treachery exists when the accused employs means, methods, and forms which directly and specially ensure its execution, without risk to himself arising from the defense which the offended party might make. [59] Treachery, like the crime itself, must be proved beyond reasonable doubt.[60] In the absence of proof as to how the killing was perpetrated, the crime committed was homicide. [61] The imposable penalty for homicide is reclusion temporal. In the absence of any mitigating or aggravating circumstances, the penalty is imposed in its medium period.[62] The Indeterminate Sentence Law applies. The trial court awarded the heirs of Renato Cuao one million forty six thousand pesos (P1,046,000.00) as actual damages for unrealized income. We delete this award as it is not supported by receipts. The testimony of Renatos father as to how much Renato was earning at the time of his death is self-serving and hearsay. The trial courts award of actual damages for funeral expenses in the amount of ten thousand ( P10,000.00) pesos is likewise deleted. The claim is not supported by any receipt. The rule is that every pecuniary loss must be established by credible evidence before it may be awarded.[63] An award of moral damages in the amount of fifty thousand pesos (P50,000.00) is proper.[64] Renatos father testified that because of his sons death, he felt great pain and his wife suffered some sleepless nights and cried for several days. [65] The trial courts award of fifty thousand pesos ( P50,000.00) as civil indemnity for wrongful death is affirmed. This can be awarded without need of proof other than the death of the victim. [66] WHEREFORE, the decision of the Regional Trial Court, Camarines Norte, Branch 40, Daet, dated September 24, 1992 is AFFIRMED with MODIFICATION. Accused-appellants Pedro G. Taliman, Basilio M. Baybayab and Amado B. Belano are found guilty beyond reasonable doubt of HOMICIDE, defined and penalized under Article 249 of the Revised Penal Code, and in the absence of any modifying circumstance, are sentenced to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. Accused-appellants are jointly and severally ordered to pay the heirs of Renato Cuao, moral damages in the amount of fifty thousand pesos (P50,000.00) and civil indemnity in the amount of fifty thousand pesos (P50,000.00). The award of actual damages for funeral expenses and unrealized income is DELETED. The case is archived as to accused Danilo Obenis and Rufino Valera, Jr., until their arrest and submission to the jurisdiction of the trial court. Costs against accused-appellants. SO ORDERED.

(24) ARSENIO P. LUMIQUED (deceased), Regional Director, DAR CAR, Represented by his Heirs, Francisca A. Lumiqued, May A. Lumiqued, Arlene A. Lumiqued and Richard A. Lumiqued, petitioners, vs. Honorable APOLINIO G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX T. CABADING, ALL Members of Investigating Committee, created by DOJ Order No. 145 on May 30, 1992; HON. FRANKLIN M. DRILON, SECRETARY OF JUSTICE, HON. ANTONIO T. CARPIO, CHIEF Presidential Legal Adviser/Counsel; and HON. LEONARDO A. QUISIMBING, Senior Deputy Executive Secretary of the Office of the President, and JEANNETTE OBAR-ZAMUDIO, Private Respondent, respondents. [G.R. No. 117565. November 18, 1997] ROMERO, J.: Does the due process clause encompass the right to be assisted by counsel during an administrative inquiry? Arsenio P. Lumiqued was the Regional Director of the Department of Agrarian Reform Cordillera Autonomous Region (DARCAR) until President Fidel V. Ramos dismissed him from that position pursuant to Administrative Order No. 52 dated May 12, 1993. In view of Lumiqueds death on May 19, 1994, his heirs instituted this petition for certiorari and mandamus, questioning such order. The dismissal was the aftermath of three complaints filed by DAR-CAR Regional Cashier and private respondent Jeannette ObarZamudio with the Board of Discipline of the DAR. The first affidavit-complaint dated November 16, 1989,[1] charged Lumiqued with malversation through falsification of official documents. From May to September 1989, Lumiqued allegedly committed at least 93 counts of falsification by padding gasoline receipts. He even submitted a vulcanizing shop receipt worth P550.00 for gasoline bought from the shop, and another receipt for P660.00 for a single vulcanizing job. With the use of falsified receipts, Lumiqued claimed and was reimbursed the sum of P44,172.46. Private respondent added that Lumiqued seldom made field trips and preferred to stay in the office, making it impossible for him to consume the nearly 120 liters of gasoline he claimed everyday. In her second affidavit-complaint dated November 22, 1989,[2] private respondent accused Lumiqued with violation of Commission on Audit (COA) rules and regulations, alleging that during the months of April, May, July, August, September and October, 1989, he made unliquidated cash advances in the total amount ofP116,000.00. Lumiqued purportedly defrauded the government by deliberately concealing his unliquidated cash advances through the falsification of accounting entries in order not to reflect on `Cash advances of other officials under code 8 -70-600 of accounting rules. The third affidavit-complaint dated December 15, 1989,[3] charged Lumiqued with oppression and harassment. According to private respondent, her two previous complaints prompted Lumiqued to retaliate by relieving her from her post as Regional Cashier without just cause. The three affidavit-complaints were referred in due course to the Department of Justice (DOJ) for appropriate action. On May 20, 1992, Acting Justice Secretary Eduardo G. Montenegro issued Department Order No. 145 creating a committee to investigate the complaints against Lumiqued. The order appointed Regional State Prosecutor Apolinario Exevea as committee chairman with City Prosecutor Erdolfo Balajadia and Provincial Prosecutor Felix Cabading as members. They were mandated to conduct an investigation within thirty days from receipt of the order, and to submit their report and recommendation within fifteen days from its conclusion. The investigating committee accordingly issued a subpoena directing Lumiqued to submit his counter-affidavit on or before June 17, 1992. Lumiqued, however, filed instead an urgent motion to defer submission of his counter-affidavit pending actual receipt of two of private respondents complaints. The committee granted the motion and gave him a five -day extension. In his counter-affidavit dated June 23, 1992,[4] Lumiqued alleged, inter alia, that the cases were filed against him to extort money from innocent public servants like him, and were initiated by private respondent in connivance with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He claimed that the apparent weakness of the charge was bolstered by private respondents execu tion of an affidavit of desistance.[5] Lumiqued admitted that his average daily gasoline consumption was 108.45 liters. He submitted, however, that such consumption was warranted as it was the aggregate consumption of the five service vehicles issued under his name and intended for the use of the Office of the Regional Director of the DAR. He added that the receipts which were issued beyond his region were made in the course of his travels to Ifugao Province, the DAR Central Office in Diliman, Quezon City, and Laguna, where he attended a seminar. Because these receipts were merely turned over to him by drivers for reimbursement, it was not his obligation but that of auditors and accountants to determine whether they were falsified. He affixed his signature on the receipts only to signify that the same were validly issued by the establishments concerned in order that official transactions of the DAR-CAR could be carried out. Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said that he and his companions were cruising along Santa Fe, Nueva Vizcaya on their way to Ifugao when their service vehicle ran out of gas. Since it was almost midnight, they sought the help of the owner of a vulcanizing shop who readily furnished them with the gasoline they needed. The vulcanizing shop issued its own receipt so that they could reimburse the cost of the gasoline. Domingo Lucero, the owner of said vulcanizing shop, corroborated this explanation in an affidavit dated June 25, 1990.[6] With respect to the accusation that he sought reimbursement in the amount of P660.00 for one vulcanizing job, Lumiqued submitted that the amount was actually only P6.60. Any error committed in posting the amount in the books of the Regional Office was not his personal error or accountability.

To refute private respondents allegation that he violated COA rules and regulations in incurring u nliquidated cash advances in the amount of P116,000.00, Lumiqued presented a certification[7] of DAR-CAR Administrative Officer Deogracias F. Almora that he had no outstanding cash advances on record as of December 31, 1989. In disputing the charges of oppression and harassment against him, Lumiqued contended that private respondent was not terminated from the service but was merely relieved of her duties due to her prolonged absences. While admitting that private respondent filed the required applications for leave of absence, Lumiqued claimed that the exigency of the service necessitated disapproval of her application for leave of absence. He allegedly rejected her second application for leave of absence in view of her failure to file the same immediately with the head office or upon her return to work. He also asserted that no medical certificate supported her application for leave of absence. In the same counter-affidavit, Lumiqued also claimed that private respondent was corrupt and dishonest because a COA examination revealed that her cash accountabilities from June 22 to November 23, 1989, were short by P30,406.87. Although private respondent immediately returned the amount on January 18, 1990, the day following the completion of the cash examination, Lumiqued claimed that she should be relieved from her duties and assigned to jobs that would not require handling of cash and money matters. Committee hearings on the complaints were conducted on July 3 and 10, 1992, but Lumiqued was not assisted by counsel. On the second hearing date, he moved for its resetting to July 17, 1992, to enable him to employ the services of counsel. The committee granted the motion, but neither Lumiqued nor his counsel appeared on the date he himself had chosen, so the committee deemed the case submitted for resolution. On August 12, 1992, Lumiqued filed an urgent motion for additional hearing, [8] alleging that he suffered a stroke on July 10, 1992. The motion was forwarded to the Office of the State Prosecutor apparently because the investigation had already been terminated. In an order dated September 7, 1992,[9] State Prosecutor Zoila C. Montero denied the motion, viz: The medical certificate given show(s) that respondent was discharged from the Sacre d Heart Hospital on July 17, 1992, the date of the hearing, which date was upon the request of respondent (Lumiqued). The records do not disclose that respondent advised the Investigating committee of his confinement and inability to attend despite his discharge, either by himself or thru counsel. The records likewise do not show that efforts were exerted to notify the Committee of respondents condition on any reasonable da te after July 17, 1992. It is herein noted that as early as June 23, 1992, respondent was already being assisted by counsel. Moreover an evaluation of the counter-affidavit submitted reveal(s) the sufficiency, completeness and thoroughness of the counter-affidavit together with the documentary evidence annexed thereto, such that a judicious determination of the case based on the pleadings submitted is already possible. Moreover, considering that the complaint-affidavit was filed as far back as November 16, 1989 yet, justice can not be delayed much longer. Following the conclusion of the hearings, the investigating committee rendered a report dated July 31, 1992, [10] finding Lumiqued liable for all the charges against him. It made the following findings: After a thorough evaluation of the evidences (sic) submitted by the parties, this committee finds the evidence submitted by the complainant sufficient to establish the guilt of the respondent for Gross Dishonesty and Grave Misconduct. That most of the gasoline receipts used by the respondent in claiming for the reimbursement of his gasoline expenses were falsified is clearly established by the 15 Certified Xerox Copies of the duplicate receipts (Annexes G-1 to G-15) and the certifications issued by the different gasoline stations where the respondent purchased gasoline. Annexes `G-1 to `G-15 show that the actual average purchase made by the respondent is about 8.46 liters only at a purchase price of P50.00, in contrast to the receipts used by the respondent which reflects an average of 108.45 liters at a purchase price of P550.00. Here, the greed of the respondent is made manifest by his act of claiming reimbursements of more than 10 times the value of what he actually spends. While only 15 of the gasoline receipts were ascertained to have been falsified, the motive, the pattern and the scheme employed by the respondent in defrauding the government has, nevertheless, been established. That the gasoline receipts have been falsified was not rebutted by the respondent. In fact, he had in effect admitted that he had been claiming for the payment of an average consumption of 108.45 liters/day by justifying that this was being used by the 4 vehicles issued to his office. Besides he also admitted having signed the receipts. Respondents act in defrauding the government of a considerable sum of money by falsifying receipts constitutes not only Dishonesty of a high degree but also a criminal offense for Malversation through Falsification of Official Documents.

This committee likewise finds that the respondent have (sic) unliquidated cash advances in the year 1989 which is in violation of established office and auditing rules. His cash advances totalling to about P116,000.00 were properly documented. The requests for obligation of allotments and the vouchers covering the amounts were all signed by him. The mere certification issued by the Administrative Officer of the DAR-CAR cannot therefore rebut these concrete evidences (sic). On the third complaint, this committee likewise believes that the respondents act in relieving the complainant of her functions as a Regional Cashier on December 1, 1989 was an act of harassment. It is noted that this was done barely two weeks after the complainant filed charges against her (sic). The recommendation of Jose G. Medina of the Commission on Audit came only on May 11, 1990 or almost six months after the respondents order relieving the complainant was issued. His act in harassing a subordinate employee in retaliation to a complaint she filed constitute(s) Gross Misconduct on the part of the respondent who is a head of office. The affidavits of Joseph In-uyay and Josefina Guting are of no help to the respondent. In fact, this only show(s) that he is capable of giving bribes if only to have the cases against him dismissed. He could not have given a certain Benigno Aquino III the sum of P10,000.00 for any other purpose. Accordingly, the investigating committee recommended Lumiqueds dismissal or removal from office, without prejud ice to the filing of the appropriate criminal charges against him. Acting on the report and recommendation, former Justice Secretary Franklin M. Drilon adopted the same in his Memorandum to President Fidel V. Ramos dated October 22, 1992. He added that the filing of the affidavit of desistance[11] would not prevent the issuance of a resolution on the matter considering that what was at stake was not only the violation of complainants (herein private respondents) personal rights but also the competence and fitness of the respondent (Lumiqued) to remain in public office. He opined that, in fact, the evidence on record could call for a punitive action against the respondent on the initiative of the DAR. On December 17, 1992, Lumiqued filed a motion for reconsideration of the findings of the Committee with the DOJ.[12] Undersecretary Ramon S. Esguerra indorsed the motion to the investigating committee. [13] In a letter dated April 1, 1993, the three-member investigating committee informed Undersecretary Esguerra that the committee had no more authority to act on the same (motion for reconsideration) considering that the matter has already been forwarded to the Office of the President and that their authority under Department Order No. 145 ceased when they transmitted their report to the DOJ. [14] Concurring with this view, Undersecretary Esguerra informed Lumiqued that the investigating committee could no longer act on his motion for reconsideration. He added that the motion was also prematurely filed because the Office of the President (OP) had yet to act on Secretary Drilons recommendation.[15] On May 12, 1993, President Fidel V. Ramos himself issued Administrative Order No. 52 (A.O. No. 52), [16] finding Lumiqued administratively liable for dishonesty in the alteration of fifteen gasoline receipts, and dismissing him from the service, with forfeiture of his retirement and other benefits. Thus: That the receipts were merely turned over to him by his drive rs and that the auditor and accountant of the DAR-CAR should be the ones to be held liable is untenable. The receipts in question were signed by respondent for the purpose of attesting that those receipts were validly issued by the commercial establishments and were properly disbursed and used in the official business for which it was intended. This Office is not about to shift the blame for all these to the drivers employed by the DAR-CAR as respondent would want us to do. The OP, however, found that the charges of oppression and harassment, as well as that of incurring unliquidated cash advances, were not satisfactorily established. In a petition for appeal[17] addressed to President Ramos, Lumiqued prayed that A.O. No. 52 be reconsidered and that he be reinstated to his former position with all the benefits accorded to him by law and existing rules and regulations. This pet ition was basically premised on the affidavit dated May 27, 1993, of a certain Dwight L. Lumiqued, a former driver of the DAR-CAR, who confessed to having authored the falsification of gasoline receipts and attested to petitioner Lumiqueds being an honest man who had no premonition that the receipts he (Dwight) turned over to him were altered. [18] Treating the petition for appeal as a motion for the reconsideration of A.O. No. 52, the OP, thro ugh Senior Deputy Executive Secretary Leonardo A. Quisumbing, denied the same on August 31, 1993. Undaunted, Lumiqued filed a second motion for reconsideration, alleging, among other things, that he was denied the constitutional right to counsel during the hearing.[19] On May 19, 1994,[20] however, before his motion could be resolved, Lumiqued died. On September 28, 1994,[21] Secretary Quisumbing denied the second motion for reconsideration for lack of merit.

Hence, the instant petition for certiorari and mandamus praying for the reversal of the Report and Recommendation of the Investigating Committee, the October 22, 1992, Memorandum of then Justice Secretary Drilon, A.O. No. 52 issued by President Ramos, and the orders of Secretary Quisumbing. In a nutshell, it prays for the payment of retirement benefits and other benefits accorded to deceased Arsenio Lumiqued by law, payable to his heirs; and the backwages from the period he was dismissed from service up to the time of his death on May 19, 1994.[22] Petitioners fault the investigating committee for its failure to inform Lumiqued of his right to counsel during the hearing. They maintain that his right to counsel could not be waived unless the waiver was in writing and in the presence of counsel. They assert that the committee should have suspended the hearing and granted Lumiqued a reasonable time within which to secure a counsel of his own. If suspension was not possible, the committee should have appointed a counsel de oficio to assist him. These arguments are untenable and misplaced. The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation. [23] It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the proceedings below. The investigation conducted by the committee created by Department Order No. 145 was for the purpose of determining if he could be held administratively liable under the law for the complaints filed against him. The order issued by Acting Secretary of Justice Montenegro states thus: In the interest of the public service and pursuant to the provisions of existing laws, a Committee to conduct the formal investigation of the administrative complaint for oppression, dishonesty, disgraceful and immoral conduct, being notoriously undesirable and conduct prejudicial to the best interest of the service against Mr. ARSENIO P. LUMIQUED, Regional Director, Department of Agrarian Reform, Cordillera Autonomous Region, is hereby created x x x.[24] As such, the hearing conducted by the investigating committee was not part of a criminal prosecution. This was even made more pronounced when, after finding Lumiqued administratively liable, it hinted at the filing of criminal case for malversation through falsification of public documents in its report and recommendation. Petitioners misconception on the nature of the investigation [25] conducted against Lumiqued appears to have been engendered by the fact that the DOJ conducted it. While it is true that under the Administrative Code of 1987, t he DOJ shall administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system,[26] conducting criminal investigations is not its sole function. By its power to perform such other functions as may be provided by law, [27] prosecutors may be called upon to conduct administrative investigations. Accordingly, the investigating committee created by Department Order No. 145 was duty-bound to conduct the administrative investigation in accordance with the rules therefor. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondents capacity to represent himself and no duty rests on such a body to furnish the person being investigated w ith counsel.[28] In an administrative proceeding such as the one that transpired below, a respondent (such as Lumiqued) has the option of engaging the services of counsel or not. This is clear from the provisions of Section 32, Article VII of Republic Act No. 2260[29] (otherwise known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive Order No. 292[30] (otherwise known as the Administrative Code of 1987). Excerpts from the transcript of stenographic notes of the hearings attended by Lumiqued[31] clearly show that he was confident of his capacity and so opted to represent himself. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. Furthermore, petitioners reliance on Resolution No. 94-0521 of the Civil Service Commission on the Uniform Procedure in the Conduct of Administrative Investigation stating that a respondent in an administrative complaint must be informed of his rig ht to the assistance of a counsel of his choice,[32] is inappropriate. In the first place, this resolution is applicable only to cases brought before the Civil Service Commission.[33] Secondly, said resolution, which is dated January 25, 1994, took effect fifteen days following its publication in a newspaper of general circulation,[34] much later than the July 1992 hearings of the investigating committee created by Department Order No. 145. Thirdly, the same committee was not remiss in the matter of reminding Lumiqued of his right to counsel. Thus at the July 3, 1992, hearing, Lumiqued was repeatedly appraised of his option to secure services of counsel: RSP EXEVEA: This is an administrative case against Director Lumiqued. Director Lumiqued is present. The complainant is present, Janet Obar-Zamudio. Complainant has just been furnished with a copy of the counter-affidavit of the respondent. Do you have a counsel, Director? DIR. LUMIQUED:

I did not bring anybody, Sir, because when I went to see him, he told me, Sir, that he has already set a hearing, morning and afternoon today. RSP EXEVEA: So, we will proceed with the hearing even without your counsel? You are willing to proceed with the hearing even without your counsel? DIR. LUMIQUED: Yes, I am confident . . . CP BALAJADIA: You are confident that you will be able to represent yourself? DIR. LUMIQUED: That is my concern.[35] (Underscoring supplied) In the course of private respondents damaging testimony, the investigating committee once again reminded Lumiqued of his need for a counsel. Thus: CP BALAJADIA: Q. (To Director Lumiqued) You really wish to go through with this even without your counsel? DIRECTOR LUMIQUED: A. I think so, Sir. CP BALAJADIA: Let us make it of record that we have been warning you to proceed with the assistance of counsel but you said that you can take care of yourself so we have no other alternative but to proceed. [36] (Underscoring supplied) Thereafter, the following colloquies transpired: CP BALAJADIA: We will suspend in the meantime that we are waiting for the supplemental affidavit you are going to present to us. Do you have any request from the panel of investigators, Director Lumiqued? DIRECTOR LUMIQUED: I was not able to bring a lawyer since the lawyer I requested to assist me and was the one who prepared my counter-affidavit is already engaged for a hearing and according to him he is engaged for the whole month of July. RSP EXEVEA: We cannot wait . . . CP BALAJADIA: Why dont you engage the services of another counsel. The charges against you are quite serious. We are no t saying you are guilty already. We are just apprehensive that you will go through this investigation without a counsel. We would like you to be protected legally in the course of this investigation. Why dont you get the services of another counsel. There are plenty here in Baguio... DIRECTOR LUMIQUED: I will try to see, Sir . . . CP BALAJADIA: Please select your date now, we are only given one month to finish the investigation, Director Lumiqued. RSP EXEVEA: We will not entertain any postponement. With or without counsel, we will proceed.

CP BALAJADIA: Madam Witness, will you please submit the document which we asked for and Director Lumiqued, if you have other witnesses, please bring them but reduce their testimonies in affidavit form so that we can expedite with the proceedings.[37] At the hearing scheduled for July 10, 1992, Lumiqued still did not avail of the services of counsel. Pertinent excerpts from said hearing follow: FISCAL BALAJADIA: I notice also Mr. Chairman that the respondent is not being represented by a counsel. The last time he was asked to invite his lawyer in this investigation. May we know if he has a lawyer to represent him in this investigation? DIR. LUMIQUED: There is none Sir because when I went to my lawyer, he told me that he had set a case also at 9:30 in the other court and he told me if there is a possibility of having this case postponed anytime next week, probably Wednesday so we will have good time (sic) of presenting the affidavit. FISCAL BALAJADIA: Are you moving for a postponement Director? May I throw this to the panel. The charges in this case are quite serious and he should be given a chance to the assistance of a counsel/lawyer. RSP EXEVEA: And is (sic) appearing that the supplemental-affidavit has been furnished him only now and this has several documents attached to it so I think we could grant him one last postponement considering that he has already asked for an extension. DIR. LUMIQUED: Furthermore Sir, I am now being bothered by my heart ailment. [38] The hearing was reset to July 17, 1992, the date when Lumiqued was released from the hospital. Prior to said date, however, Lumiqued did not inform the committee of his confinement. Consequently, because the hearing could not push through on said date, and Lumiqued had already submitted his counter-affidavit, the committee decided to wind up the proceedings. This did not mean, however, that Lumiqued was short-changed in his right to due process. Lumiqued, a Regional Director of a major department in the executive branch of the government, graduated from the University of the Philippines (Los Baos) with the degree of Bachelor of Science major in Agriculture, was a recipient of various scholarships and grants, and underwent training seminars both here and abroad. [39] Hence, he could have defended himself if need be, without the help of counsel, if truth were on his side. This, apparently, was the thought he entertained during the hearings he was able to attend. In his statement, That is my concern, one could detect that it had been uttered testily, if not exasperatedly, because of the doubt or skepticism implicit in the question, You are confident that you will be able to represent yourself? despite his having positively asserted earlier, Yes, I am confident. He was obviously convinced that he could ably represent himself. Beyond repeatedly reminding him that he could avail himself of counsel and as often receiving the reply that he is confident of his ability to defend himself, the investigating committee could not do more. One can lead a horse to water but cannot make him drink. The right to counsel is not indispensable to due process unless required by the Constitution or the law. In Nera v. Auditor General,[40] the Court said: x x x. There is nothing in the Constitution that says that a party in a non -criminal proceeding is entitled to be represented by counsel and that, without such representation, he shall not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side. In administrative proceedings, the essence of due process is simply the opportunity to explain ones side. O ne may be heard, not solely by verbal presentation but also, and perhaps even much more creditably as it is more practicable than oral arguments, through pleadings.[41] An actual hearing is not always an indispensable aspect of due process. [42] As long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. [43] Moreover, this constitutional mandate is deemed

satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of. [44] Lumiqueds appeal and his subsequent filing of motions for reconsideration cured whatever irregularity attended the proceedings conducted by the committee.[45] The constitutional provision on due process safeguards life, liberty and property. [46] In the early case of Cornejo v. Gabriel and Provincial Board of Rizal [47] the Court held that a public office is not property within the sense of the constitutional guarantee of due process of law for it is a public trust or agency. This jurisprudential pronoucement has been enshrined in the 1987 Constitution under Article XI, Section 1 on accountability of public officers, as follows: Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, se rve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. When the dispute concerns ones constitutional right to security of tenure, however, public office is deemed analogous to property in a limited sense; hence, the right to due process could rightfully be invoked. Nonetheless, the right to security of tenure is not absolute. Of equal weight is the countervailing mandate of the Constitution that all public officers and employees must serve with responsibility, integrity, loyalty and efficiency. [48] In this case, it has been clearly shown that Lumiqued did not live up to this constitutional precept. The committees findings pinning culpability for the charges of dishonesty and grave misconduct upon Lumiqued were not, as shown above, fraught with procedural mischief. Its conclusions were founded on the evidence presented and evaluated as facts. Well-settled in our jurisdiction is the doctrine that findings of fact of administrative agencies must be respected as long as they are supported by substantial evidence, even if such evidence is not overwhelming or preponderant.[49] The quantum of proof necessary for a finding of guilt in administrative cases is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[50] Consequently, the adoption by Secretary Drilon and the OP of the committees recommendation of dismissal may not in any way be deemed tainted with arbitrariness amounting to grave abuse of discretion. Government officials are presumed to perform their functions with regularity. Strong evidence is not necessary to rebut that presumption, [51] which petitioners have not successfully disputed in the instant case. Dishonesty is a grave offense penalized by dismissal under Section 23 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987. Under Section 9 of the same Rule, the penalty of dismissal carries with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification f or reemployment in the government service. The instant petition, which is aimed primarily at the payment of retirement benefits and other benefits plus backwages from the time of Lumiqueds dismissal until his demise, must, therefore, fail. WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED and Administrative Order No. 52 of the Office of the President is AFFIRMED. Costs against petitioners. SO ORDERED.

(25) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCOS P. JIMENEZ and ROBERT JIMENEZ, accusedappellants [G.R. No. 82604 December 10, 1991] NARVASA, J.: The failure of the police authorities to observe the constitutional safeguards governing custodial interrogation impels rejection of the extrajudicial confession ascribed to one of the appellants and consequent reversal of the Trial Court's verdict of conviction chiefly based thereon. On August 13, 1985 the pohce officers at the Ginatilan, Cebu station received a report that one Pelagio Jimenez had been found dead at barangay Guiwanon, "below the cliff near the balite tree." Without much loss of time, Pat. Reynaldo Cinco and other policemen went to the scene to conduct an investigation. The Municipal Circuit Judge of Ginatilan, Hon. Palmacio Calderon, accompanied them, as did Dr. Trifina M. Ferraren. They came upon the lifeless body of Pelagio Jimenez at the place indicated, with stab and lacerated wounds on the head and leg; and apparently the corpse was beginning to decompose since there were maggots crawling over the face, arms, hands and feet. The police investigators learned that the deceased Pelagio Jimenez had been living separately from his family; that in the early morning of August 12, 1985, Marcos Jimenez, who was wont to spend the night at his father's house, told his mother that Pelagio Jimenez had not come home the previous night; that inquiries were immediately made about Pelagio and a search for him undertaken by his relatives and friends; that although the search lasted the whole day and proceeded well into the night of the 12th, it proved unsuccessful, and it was not until the morning of the following day, August 13, 1985, that Pelagio Jimenez was finally found, murdered, the searchers having been led to the place where he lay by the foul already being exuded by his corpse. The investigators also learned from the persons that interviewed of other circumstances that drew their suspicion to the sons of Pelagio Jimenez, Marcos and Robert, viz.: that was a trail of drops of dried blood leading from the porch (pantawan) of the dead person's residence to the cliff by balite tree where he was ultimately found; that at some the point the trail of blood was interrupted by a patch of freshly plowed soil, and Robert Jimenez said that it was he who had plowed that part of the field and before doing so, had indeed noticed some blood on the ground but had attached no significance to it; that midway between Pelagio's house and the cliff, there we signs as of a body having been dragged through some bushes; that the brothers, Marcos and Robert Jimenez, were seen by neighbors bathing at the artesian well in that place at midnight, "as if washing away stains of blood;" and that Pelagio Jimenez often had violent quarrels with his children, and had been known to complain that there were even occasions when he had been boxed and hit by his children, particularly Marcos and Robert, who had been accused of surreptitiously selling copra belonging to their father's brother, a Dr. Mario Jimenez. On the 16th of September, 1985, the police invited Pelagio's widow, Albina Jimenez, and her sons, Marcos and Robert Jimenez, for questioning about their father's killing. The circumstances attendant upon and subsequent to the questioning Marcos Jimenez are succinctly narrated in the People's brief as follows: ... At first, ... (Marcos) denied any participation on the of his father. However, after Lt. Bancog confronted Marcos Jimenez of his observations during the ocular inspection ( id. [TSN, May 26, 1986], p. 23) the latter admitted that it was his brother Roberto who hacked their father on the right leg. Thereafter, they (Marcos and Roberto) carried their father near the balite tree by the cliff and left him there ( id., p. 30). Initially, Lt. Bancog took down appellant's confession in a piece of paper (Exh."C") ( id., p. 24; Tsn, December 19, 1985, p. 7). Thereafter, Lt. Bancog gave the draft (Exh. "C") to Pat. Cavalida to enable the latter to type the same ( id., p. 47). Pat. Cavalida continued the investigation conducted by Lt. Bancog (Tsn, March 6, 1986, p. 8) in the presence of ExJudge Jabagat who acted as counsel for appellant Marcos Jimenez ( id., pp. 10-11; Tsn, May 26, 1986, p. 22). He typed appellant's confession (Exh. "B") which was contained in the draft (Exh. "C") prepared by Lt. Bancog while at the same time, injecting some questions of his own ( ibid., pp. 4-5). Appellant was unable to sign his confession (Exh. "B") since Judge Calderon, before whom the confession was supposed to be sworn to and signed, had earlier left (id., p. 6). Hence, appellant agreed to come back the next day to sign his statement (Exh. "B") ( id., p. 7). The next day, appellant Marcos Jimenez failed to come back as promised, and the authorities were unsuccessful in fetching him since they were informed that appellant had left for Cebu City ( id., p. 7). Marcos Jimenez returned thereafter, but refused to sign his statement (Exh. "B") ( id., p. 8).

At about 6:00 o'clock in the evening of August 16, 1985 (Tsn, March 7, 1987, p. 4) Manolita Castaares, a relative of appellants, overheard a conversation between appellant Marcos Jimenez and his mother Albina, while they were on their way toward the house of Dr. Jimenez ( ibid). She heard Albina tell Marcos that the way he answered the questions during the examination before the authorities were wrong. Marcos replied. "It is just the same because if I don't admit, you will be the one pressured" (id., pp. 4-5). Albina remarked, "You should have denied about the circumstances why it happened like that"(id., p. 5). Marcos answered, "(I)t is just the same. Had somebody seen the one mentioned in the affidavit when I admitted?" ( id.). Lt. Bancog asked a policeman to invite ex-Judge Jabagat so that, to use her own words, she could "assist the accused whose confession has been taken before the Office of the Chief of Police." According to Judge Jabagat, when she arrived at the station. what happened was, again in her own language, Marcos Jimenez ... was asked about the written confession, and it was read to him. He was (also) apprise (sic.) of his Constitutional right, and I ask him about the contains (sic) of his written confession, I said to him "are these true?" and he said, Yes, alright I said, you sign. I am here to assist you, but if you think you are hesitant to sign it, you think it over and ask me (for) time, (saying) I would like to confer with my uncle Engineer Marcos Jimenez and that we summon (sic) his uncle who was just around, and after that, he told me he was not going to sign the confession and I ask (sic) him, if you will not sign, you have the privilege not to sign, if you don't like to sign its' (sic) just OK. Subsequently, an information dated October 22, 1985 was filed by the Provincial Fiscal of Cebu with the Regional Trial Court accusing Pelagio's widow, Albina Jimenez, and her son by Pelagio, Marcos, Robert, and Wilkins, of the felony of parricide in that . . . on or about August 11, 1985 at around 8'clock P.M. a barangay Guiwanon, Ginatilan, Cebu, ... said accused, confederating together and helping one another, with intent to kill and during night time, and without just cause, did then and there wilfully, unlawfully and feloniously attack, assault and hack Pelagio Jimenez ... with bolo, inflicting upon the said Pelagio Jimenez mortal injuries on varoius parts of his body, that soon caused his death thereafter. All the accused entered a plea of innocent when arraigned. At the trial, the prosecution presented eight (8) witnesses whose evidence established substantially the facts above summarized. The four defendants took the witness stand and gave evidence in their behalf. They all maintained their innocence of the crime. Marcos Jimenez' testimony, substantially corroborated by his brother, Robert, is outlined by the Trial Court as follows: ... that on August 11, 1985, he was at the house of his uncle, Dr Marcos Jimenez. His mother (Albina) and his two brothers, (Robert & Wilkins) were also there. He claims that they were overseeing the house of their uncle. At about 6. P.M. of that day, his father came an asked for dry coconut leaves to light his way in going home. At past P.M., he went home while the rest stayed behind. When he arrived home, he did not see his father. He slept until the following morning. When he still did not see his father the following morning, he went back to his uncle's house to inform his mother and brothers that their father did not arrive home that night. So, they agreed to look for him. They looked for him in the bushes and towards the sea the whole day and the following day until the body was found near the cliff. It was then that he went to the poblacion to notify the authorities about the death of his father. Continuing, ... (Marcos) admitted having been investigated by Lt. Bancog on August 16. They were only two in the room. He likewise admitted that Judge Jabagat arrived but only after his statement has been typed by Pat. Cavalida. He admitted that Lt. Bancog wrote down what he stated, and this handwritten statement was handed to Pat. Cavalida. ... (He also) admitted the existence of blood near the house and plenty of it in the bushes ... ; the existence of blood in the plowed area ... (and) it was he and Robert who plowed the same. In the matter of his confession (Exh. "B"), he claims that what is stated there is in accordance with what his uncle, Marcos Jimenez, wanted him to tell; that he was pressured to admit the crime under threat of punishment. The defense rested its case on July 21, 1986, at which time the Trial Court gave the parties thirty (30) days "from receipt of the stenographic notes within which to submit simultaneous memoranda." The Court, declaring that it was "cognizant of the fact that the accused had been incarcerated and detained for almost one year"' also issued the following Order absolving, for lack of proof, Albina Jimenez and her son, Wilkins, from liability under the indictment, viz.: The court after appreciating all the facts and the law in this case, finds no evidence whether direct or circumstantial that may tend to establish the guilt of two of the accused in this case, namely: Albina Jimenez and Wilkins Jimenez. Considering the rule that judgment of conviction should be imposed only after the guilt of the accused has been proven beyond reasonable doubt, the said two accused should be acquitted.

Wherefore, without prejudice to an extended decision, the Court finds the said two (2) accused: Albina Jimenez and Wilkins Jimenez NOT GUILTY of the charge against them. Accordingly, they are hereby ordered released from custody unless there are other causes which would warrant their further detention. This Order serves as a partial decision in this case. The Court, aware of the long detention suffered by the said accused, hereby orders the promulgation of this judgment upon the two accused immediately in open Court. Then on December 19, 1986, the Trial Court promulgated its Decision (dated November 21, 1986) finding "the defendants Marcos Jimenez and Robert Jimenez guilty beyond reasonable doubt of the crime of parricide as defined and penalized under Article 246 of the Revised Penal Code," and condemning "the said defendants to suffer the penalty of reclusion perpetua." The Trial Court stressed that "the revelations ... in the confession all tally with the evidences adduced during the trial, viz.: the hacking by Robert of his father with a bolo is confirmed by the doctor who examined the cadaver; the carrying of the body from the house to the cliff is confirmed by the evidences of the bloodstains found along the way from the house to the cliff and of the signs of a body being dragged along the bushes." The Court then made the following legal pronouncements: The Court agrees with the ... prosecution that a confession, although unsigned and/or involuntarily given, is admissible an evidence if in consequence of such confession facts are discovered which confirm it. As correctly pointed out, jurisprudence sustains the admission of such an involuntary confession (People v. Fontanilla [CA] O.G. 1313), and where details as described in such confession is corroborated by evidence aliunde which dovetails with the essential fact contained in the confession (People v. Elizaga, 23 SCRA 449). The evidence, likewise, show conspiracy on the part of both accused, Marcos and Robert. While an extra-judicial confession is under certain conditions, admissible only as against the person made it and not as against his codefendants, it becomes admissible as corroborative evidence of other facts that stand to establish the guilt his codefendants (People v. Simbajon, et al., L-18073-75, Sept. 20, 1965). From this judgment the defendants have taken an appeal this Court and here ascribe the following errors to the Trial Court, to wit:
1) not giving credit to the claim of accused Marcos Jimenez that what he stated in the alleged confession is in accordance with what his uncle, Marcos Jimenez, wanted him to tell and that he was pressured to admit the crime under threat of punishment; 2) not giving credence to the testimony of accused Robert Jimenez to the effect that he had nothing to do with the death of his father ...; 3) holding that Pelagio Jimenez was found in the house near the cliff on August 13, 1985; 4) giving credence to the testimony of ex-Judge Pacita Jabagat to the effect that she was in the office of the Station Commander of Ginatilan, Cebu, in the afternoon of August 16, 1985 and she was then the counsel of accused Marcos Jimenez for the purpose of the confession and that she read the confession to him and when asked whether he admitted to be true all the allegations as stated in the confession, confirmed that everything is true; 5) holding that the evidence shows conspiracy on the part of both accused ... ; and 6) finding and holding both accused ... guilty beyond reasonable doubt of the crime of parricide by mere circumstantial evidence, there being no eyewitness available.

The Constitution explicitly declares that a person being investigated by the police as a suspect in an offense has the right, among others, "to have competent and independent counsel preferably of his own choice" and if he "cannot afford the services of counsel, he must be provided with one;" and that said right "cannot be waived except in writing and in the presence of counsel. 1 The lawyer who assists the suspect under custodial investigation should be of the latter's own choice, not one foisted on him by the police investigators or other parties. In this case, former Judge Jabagat was evidently not of Marcos Jimenez' own choice; she was the police officers' choice; she did not ask Marcos if he was willing to have her represent him; she just told him: "I am here because I was summon(ed) to assist you and I am going to assist you." This is not the mode of solicitation of legal assistance contemplated by the Constitution. In one case, the confession of an accused was rejected there being no showing that the lawyer of the Citizens' Legal Assistance Office (CLAO) called by the National Bureau of Investigation to assist the accused was his counsel of choice. 2 In another case, the confession given during custodial investigation was invalidated where it appeared that the lawyers called to be present at the interrogation were members of the police organization investigating the suspects and did not actively assist and advise them, being there merely to give a semblance of legality to the proceedings. 3 In still another case, the confession of the defendant was disregarded upon a showing that he had been assisted by an assistant fiscal (public prosecutor), who "cannot exercise the function of defense counsel even during custodial investigation," and to allow such a practice "would render illusory the protection given to the accused." 4 Furthermore, the evidence discloses that Judge Jabagat was not present at the critical time that interrogation of Marcos Jimenez by the police was actually taking place. She came only after the questioning had been completed, and the handwritten record of Marcos Jimenez' answers already typewritten; and all she did was to show the typewritten document to Marcos and ask him if he had voluntarily given the statements therein contained. This is far from being even substantial compliance with the constitutional duty of

police investigators during custodial interrogation, supra. It follows that neither the handwritten summary of Marcos Jimenez' answers made by two investigating officers nor the typewritten statement based thereon is admissible. The typewritten confession is, in any event, unsigned, as are the handwritten notes from which the former was derived. The confession was in fact expressly rejected by Marcos Jimenez as riot reflective of his own perceptions and recollection, but as containing only what his uncle, Marcos Jimenez, had instructed him to tell the police "under threat of punishment." Hence. the supposed waiver made therein of his constitutional right to counsel of his own choice is void. The interrogation of Marcos Jimenez having been conducted without the assistance of counsel, and no valid waiver of said right to Counsel having been made, not only the confession but also any admission obtained in the course thereof are inadmissible against Marcos Jimenez. This, too, is the explicit mandate of the Constitution: any confession or admission obtained in violation among others of the rights guaranteed in custodial investigations shall be inadmissible in evidence against the person making the confession or admission. This is so even if it be shown that the statements attributed to the accused were voluntarily made, or are afterwards confirmed to be true by external circumstances. Equally obvious is that any confession or admission ascribed to Marcos Jimenez in the premises is inadmissible against his brother, his co-accused, Robert Jimenez, not only because obtained in violation of the Constitution and therefore void, but also because of the familiar principle of res inter alios acta. 5 "The rights of a party cannot be prejudiced by an act, declaration, or omission of another; " 6 the confession of an accused is admissible only against him, but not against his co-defendants. 7 Now, without the confession or the admissions imputed to Marcos Jimenez, the rest of the evidence of the prosecution is inadequate to overcome the presumption of innocence raised by the fundamental law in favor of both the accused. For instance, proof of the presence of the appellants at or near the place of the commission of the crime is innocuous. They were after all children of the deceased, one of whom usually slept in the same house as the latter. And the fact that there might have been some animosity and quarrels between the deceased, on the one hand, and his wife and children, on the other, would indicate at the most that the latter might have reason to wish him ill, but would not be proof that they actually attacked and killed him. Furthermore, the witnesses who gave evidence of said quarrels were close relatives of the deceased, i.e., his brothers, a sister-in-law, his cousins, who were not themselves on good terms with at least one of the appellants. Eng. Marcos Jimenez, brother of the victim, was the one who requested Lt. Bancog, the Police Chief of another town, to investigate close members of the victim's family on the basis, according to him of "rumors" and "gossips" 8 circulating in the barrio. Another brother of the victim, Dr. Mario Jimenez, who together with Eng. Jimenez, testified as to previous quarrels between the deceased and appellant, had a previous misunderstanding with appellants concerning the latter's unauthorized sale of the former's copra. Jacinta Jimenez who testified to a recent quarrel between the victim and his wife and sons Marcos and Robert, is the wife of Eng. Marcos Jimenez. Another relative of the deceased, Manolita Castaares, testified to having heard a conversation between the victim's wife Albina and the latter's son Marcos wherein the mother chided her son for giving wrong answers during the investigation. The information gathered by the police to the effect that Marcos and Robert Jimenez had been seen by neighbors bathing at the artesian well at midnight of the day of the crime, ostensibly washing away blood from their bodies and clothing, is patently speculative and arrant hearsay. Not one of the persons who had supposedly seen the appellants washing themselves ever took the witness stand to affirm this. It is not correct to say, as the Trial Court does in its judgment under review, that the appellants had tried to cover up the commission of the crime by not reporting it immediately to the authorities and by attempting, during the search for the deceased, to prevent others from going to the precise spot where the slain man was eventually found. That the appellants did not immediately notify the authorities that Pelagio Jimenez was missing cannot be taken as an inculpatory circumstance against them. The truth is that the victim's family and neighbors first looked everywhere for him, and when he was finally found after a day's search, Marcos Jimenez forthwith reported his father's death to the police. The truth is, too, that as disclosed by the evidence, Robert Jimenez had indeed conducted a search for his father in the vicinity of the cliff near the balite tree where his father's body was found the following day. Marcos Jimenez knew this, and this is why he afterwards told other persons involved in the search not to proceed to that place any more. It bears stressing that the area covered by the search has been described as a "vast" area, and there were many large boulders and thick bushes about the balite tree. This might explain why the corpse could not be immediately located. In fact, were it not for the foul odor emanating from the direction of the balite tree, the searchers would not have proceeded thereto as the place was so secluded. In fine, all the evidence considered, it appears that the prosecution has failed to demonstrate the guilt of the appellants the crime with which they are charged beyond reasonable doubt. WHEREFORE, the decision of the Trial Court dated November 21, 1986 is REVERSED, and the appellants, Marcos P. Jimenez and Robert Jimenez, are ACQUITTED, with costs de oficio. SO ORDERED.

(26) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO LUCERO y CORTEL, accused-appellant. [G.R. No. 97936 May 29, 1995] PUNO, J.: If the Constitution has any value, it is because it stands up for those who cannot stand up for themselves. Thus, it protected those under custodial investigation with the all-important right to counsel. We hold that the right to counsel cannot be diluted without tampering the scales of justice. For denial of his right to counsel, we acquit accused-appellant. Alejandro Lucero, Bienvenido Echavez, Balbino Echavez, Peter Doe, Richard Doe and John Doe were charged with the crime of robbery with homicide. The Information against them reads: That on or about the 7th day of May, 1988, 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 , did then and there, wilfully, unlawfully and feloniously rob one DR. DEMETRIO Z. MADRID, in the manner as follows: on the date and in the place aforementioned, the said accused, one armed with handgun, pursuant to their conspiracy blocked the way of the said complainant who was on board a Mercedez Benz crusing along Road 14 near (the) corner (of) Mindanao Avenue, Pag-asa, this City, and did then and there, by means of violence and intimidation against persons, take, rob and carry away his cash money amounting to P6,600.00; one gold necklace with cross pendant, 7 karat, worth P45,000.00; one (1) gold Rolex watch worth P155,000.00; one (1) 3 karat gold ring worth P80,000.00; one 2 karat gold ring, domino style, worth P27,000.00; one (1) solid gold bracelet worth 363,600.00, Philippine Currency, belonging to said DR. DEMETRIO Z. MADRID, to the damage and prejudice of the said offended party in the total amount aforementioned; that on the occasion of the robbery and pursuant to their conspiracy, the above-named accused, with intent to kill, and taking advantage the(ir) superior strength, with the use of handgun, shot LORENZO BERNALES y ALERIA, a driver of the said offended party, thus inflicting upon him serious and mortal wounds which resulted to the insta(n)taneous death of the said LORENZO BERNALES y ALERIA, to the damage and prejudice of the heirs of said LORENZO BERNALEZ y ALERIA in such amount as may be awarded to them under the provisions of the Civil Code. Contrary to law. 1 Only the accused Echavez brothers and Alejandro Lucero were apprehended. The others remained at large. Trial proceeded only as against the three. The evidence on record shows that on May 6, 1988, private complainant DR. DEMETRIO Z. MADRID spent the night at his boarding house, located at #35 Ilocos Norte Street, Bago-Bantay, Quezon City. He wanted to return that night to his residence at Project 6, Quezon City. However, his driver, Lorenzo Bernales, advised him not to leave that night for Bernales overheard that the group of Balbino and Bienvenido Echavez would rob him on his way home. He heeded the advice. It was around 7:00 a.m., the next day, that Dr. Madrid again asked his driver to bring him to his main residence in Project 6, Quezon City. While traversing Road 14, a gray-reddish car overtook the Mercedes Benz he was riding and blocked their way. Three (3) men swiftly alighted from the car blocking them and barged into his Benz. The first grabbed the driver's seat and pushed his driver to the other side of the seat. The second occupied the right side of his driver. The third sat beside Dr. Madrid at the back sent and punched him. Simultaneously, the man at the right side of his driver pulled out his gun and announced a hold-up. 2 The man beside Dr. Madrid divested him of the following: a gold Rolex watch, studded with diamonds, worth P155,000.00, a three (3) carat diamond ring worth P80,000.00, another two (2) carat domino-style ring, surrounded with diamonds worth P27,000.00, a necklace worth P27,000.00, a bracelet worth P50,000.00, and his wallet containing P6,600.00. 3 After driving them around the area for a couple of hours, the malefactors stopped his car and alighted. The worst came. The man at the right side of his driver shot the latter at the chest before fleeing. Dr. Madrid and his driver were rushed by concerned citizens to the Veterans Memorial Hospital. Two hours later, his driver died of hemorrhage as a result of the gunshot wound he sustained. 4 Dr. Madrid survived. 5 He reported the incident to the Quezon City police. When no action was taken on his case, he filed his complaint with the Special Operations Group of the Central Intelligence Service (CIS). 6

Two months later, the CIS efforts paid-off. On July 23, 1988, the Special Operations Group headed by Capt. Raul Boac, after a surveillance of the suspects, interrogated Bienvenido Echavez in Camp Crame. Two days later, they apprehended Balbino Echavez and Alejandro Lucero. They turned them over to the Investigation Department of the CIS. 7 Pfc. Alberto Pursal was assigned to conduct the investigation of the suspects. He declared that even before the investigation started, Lucero verbally admitted his participation in the crime and that he was the one who shot Bernales, the driver of Dr. Madrid. 8 In any event, Pfc. Pursal went thru the motions of investigation. He informed Lucero of his constitutional rights to remain silent and to counsel. When Lucero told him that he had no lawyer, Pursal informed that CIS Legal Department about Lucero's need for a lawyer. 9 In due time, Atty. Diosdado Peralta appeared at the investigator's office at around 9:00 p.m. He identified himself as the lawyer who was requested to assist Lucero and inquired about the latter's whereabouts. He was then directed to where Lucero was. Atty. Peralta conferred with Lucero. He also apprised Lucero of his constitutional rights. He explained to Lucero that he has the right to remain silent, that he is not obliged to give any statement to the investigators, and that even if he has already given a statement, he may refuse to sign it. He observed no reaction from Lucero. Nonetheless, Atty. Peralta gathered the impression that Lucero understood his advice. Thereafter, the CIS investigator began taking down Lucero's statement. When the investigator started asking the preliminary questions, Atty. Peralta left to attend the wake of his friend, Capt. Emilio Dacanay, at Fort Bonifacio . He gave word that in case of need, he could be reached at his residence. The next morning, Lucero was accompanied by two (2) CIS agents to Atty. Peralta's house. The extrajudicial statement of Lucero (Exhibit "C"), was presented to Atty. Peralta. It was already signed by Lucero. In the presence of the two (2) CIS agents , Atty. Peralta examined Exhibit "C" and explained to Lucero its Legal implications. He asked Lucero whether he gave the statements voluntarily. Lucero replied in the affirmative. Atty. Peralta then signed Exhibit "C". 10 The three (3) accused denied complicity in the in the crime charged. Appellant Lucero's defense is alibi. He testified that on May 7, 1988, he was at his house in Caloocan City. He woke up at 6:30 a.m., stayed at his house the whole day repairing the upholstery of a customer's chair. He was then with his cousin Marcelino Seneta and his wife Mylen Lucero. He worked until 5 p.m. that day. Lucero was apprehended on July 25, 1988, more than two (2) months after the commission of the crime. He said he was surprised when several unidentified men accosted him while he was walking towards his house. They chased him, handcuffed and blindfolded him and pushed him into a jeep. He was He was blindfolded the whole night and did not know where he was taken. The men turned out to be police officers. Later, he identified one of the men to be Capt. Boak, head of the CIS Special Operations Group. The next day, he learned he was in Camp Crame. He claimed that he was tortured. He was not informed of the offense for which he was being investigated. Neither did they reveal the identity of the complainant. A couple of days lapsed and a CIS agent brought him to a clinic inside Camp Crame. The doctor saw the contusions on his body. He advised that he be treated. The CIS agent refused and they left the clinic. Lucero denied knowing Dr. Madrid, the Echavez brothers and the other accused in this case. He said he only met Dr. Madrid at the CIS Office during the police line-up. He was made to line-up four (4) times before Dr. Madrid finally identified him on the fourth time. Lucero also claimed he signed the extrajudicial confession (Exhibit "C") 11 under duress. He denied engaging the services of Atty. Peralta. He likewise confirmed that Atty. Peralta was not present during his actual custodial interrogation. 12 After trial, the court a quo acquitted the Echavez brothers for insufficient evidence. The trial court, however, convicted accused Lucero. The dispositive portion of the Decision 13 reads: ACCORDINGLY, judgment is hereby rendered as follows: 1. The accused brothers BIENVENIDO ECHAVEZ y VALIDA and BALBINO ECHAVEZ y VALIDA are hereby ACQUITTED for insufficiency of evidence; and

2. Accused ALEJANDRO LUCERO y CORTEL is hereby found GUILTY beyond reasonable doubt as principal by direct participation of Robbery with Homicide. Alejandro Lucero is hereby sentenced to suffer an imprisonment term of RECLUSION PERPETUA. On the civil aspect, Alejandro Lucero is hereby ordered a) to pay the heirs of the deceased victim Lorenzo Bernales y Aleria the sum of P30,000.00 as actual damages and P50,000.00 as moral damages for the mental anguish suffered by his family; and b) to pay Dr. Demetrio Z. Madrid the sum of P363,600.00 representing the cash money, and money value of the jewelries and wristwatch he lost due to the robbery at bar. SO ORDERED. 14 Hence this appeal by Lucero, raising the following assignments of error: 1. THE LOWER COURT ERRED IN GIVING MORE WEIGHT TO THE EVIDENCES ( SIC) OF THE PROSECUTION WHICH WERE INCONSISTENT, NOT CREDIBLE, UNRELIABLE, DOUBTFUL AND INSUFFICIENT TO SUPPORT ACCUSED-APPELLANT'S CONVICTION BEYOND REASONABLE DOUBT. 2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT OF THE ALLEGED CRIME OF ROBBERY WITH HOMICIDE INSPITE OF THE FACT THAT CONSPIRACY WAS NOT PROVEN IN THIS CASE. 3. THAT THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED ON THE BASIS OF HIS ALLEGED EXTRAJUDICIAL CONFESSION (MADE IN CUSTODIAL INVESTIGATION) WHICH WAS OBTAINED THRU FORCE, VIOLENCE AND WITHOUT THE PRESENCE OF COUNSEL OF HIS OWN CHOICE OR ENGAGED BY ANY PERSON ON HIS BEHALF OR APPOINTED BY THE LOWER COURT AND THEREFORE SUFFERED CONSTITUTIONAL INFIRMITIES. 4 THAT THE LOWER ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED INSPITE OF THE FACT THAT THE ACCUSED-APPELLANT WAS NOT POSITIVELY IDENTIFIED WITH CERTITUDE BY THE PROSECUTION. 5. THAT THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED PRIMARILY ON THE BASIS OF THE WEAKNESS OF HIS DEFENSE OF ALIBI AND NOT ON THE STRENGTH OF THE PROSECUTION EVIDENCE; AND INSPITE OF THE LACK OF POSITIVE IDENTIFICATION OF ACCUSED-APPELLANT. 6. THAT THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT AND NOT ACQUITTING HIM LIKE HIS CO-ACCUSED AND ALLEGED CO-CONSPIRATORS [THE ECHAVEZ BROTHERS] OF THE CRIME CHARGED. We find the appeal meritorious. The conviction of appellant rests on two (2) facts: (a) his positive identification by the complainant, and (b) his extra-judicial confession admitting his participation in the crime. We find that the evidence proving these facts cannot stand scrutiny. Firstly, the credibility of the main prosecution eyewitness, Dr. Demetrio Madrid who identified appellant, is seriously open to doubt. It stands unrebutted on the record that appellant had to participate at the police line-up four (4) times before he was finally identified by Dr. Madrid. There is no reason for the ambivalence. The robbery took place in broad daylight and the three malefactors wore no mask. They drove them around for three (3) hours. Considering these circumstances, there is no reason for Dr. Madrid's failure to immediately identify appellant. We are also disconcerted by the vacillating testimony of Dr. Madrid during the trial. Initially, Dr. Madrid claimed that he could identify only one of the robbers who staged the hold-up. 15 At another point, Dr. Madrid said he could identify two of the malefactors. 16 In his affidavit, Dr. Madrid presented he could identify all three. 17 Appellant's conviction cannot be made to rest on this nebulous identification by Dr. Madrid. Secondly, appellant's conviction cannot be based on his extra-judicial confession.

The 1987 Constitution 18 requires that a person under investigation for the commission of a crime should be provided with counsel. We have constitutionalized the right to counsel because of our hostility against the use of duress and other undue influence in extracting confessions from a suspect. Force and fraud tarnish confessions and render them inadmissible. 19We take pride in constitutionalizing this right to counsel even while other countries have desisted from elevating this right to a higher pedestal. We have sustained the inviolability of this precious right with vigor and without any apology. The trial court did not display the required sensitivity to appellant's right to counsel. Indeed, it did not impose a rigorous respect for the right. It was satisfied that there was "substantial" compliance with the requirements of right to counsel. This is far from the intent of the Constitution. The records show that Atty. Peralta's, who was not the counsel of choice of appellant, arrived at the CIS Office an the second night of appellant's detention. More exactly, he arrived at the CIS Office at around 9:00 p.m. and talked with appellant about his rights. Atty. Peralta himself admitted he received no reaction from appellant although his impression was that appellant understood him. 20Worse, Atty. Peralta left appellant in the custody of the CIS agents when his real interrogation started . He said he had to attend the wake of a friend. His attitude did not speak well of the importance he gave to his role as counsel to a person under custodial interrogation for the commission of a very serious offense. It was during his absence that appellant gave an uncounselled confession. They tried to cure his uncounselled confession for the next day, appellant was brought by two (2) CIS agents to Atty. Peralta's house. In the presence of these agents, Atty. Peralta asked appellant if he understood the statements he gave and if he signed it voluntarily. Appellant, of course, affirmed the voluntariness of the execution of the confession. Atty. Peralta was satisfied and the trial court ruled that appellant's right to counsel was not infringed. We disagree. We hold that when the Constitution requires the right to counsel, it did not mean any kind of counsel but effective and vigilant counsel. The circumstances in the case at bench clearly demonstrate that appellant received no effective counseling from Atty. Peralta. In People v. De Guzman, 21 we held that in custodial investigation, the right to counsel attaches from the moment the investigation starts, i.e., when the investigating officer starts to ask questions to elicit information and confessions or admissions from the accused. In this case, at the crucial point when the interrogation was just starting, Atty. Peralta left appellant to attend the wake of a friend . At that critical stage, appellant gave his uncounselled extra-judicial a confession. Surely, such a confession where appellant was unprotected from mischief cannot convict. Neither can the trial court convict appellant on the ground that alibi is inherently a weak defense. Chiseled in our jurisprudence is the rule that the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. Given the uncertainty of appellant's identification and the inadmissibility of his uncounselled confession, there is no thread of evidence to criminally inculpate appellant. IN VIEW WHEREOF, the Decision in Criminal Case No. Q-88-201 of the Regional Trial Court of Quezon City , Branch CIII, convicting appellant Alejandro Lucero y Cortel of robbery with homicide is hereby REVERSED AND SET ASIDE. SO ORDERED.

(27) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE TAMPUS Y PONCE, accused whose death sentence is under review. [G.R. No. L-44690 March 28, 1980] AQUINO, J.: This is an automatic review of the judgment of the Court of First Instance of Rizal, Makati Branch 36, convicting Jose Tampus of murder, sentencing him to death and ordering him to pay the heirs of the victim Celso Saminado, an indemnity of twelve thousand pesos (Criminal Case No. 18510). In the same decision, Rodolfo Avila, the co-accused of Tampus, was convicted of the same offense and was sentenced to suffer imprisonment of fourteen years and eight months of reclusion temporal as minimum to twenty years of reclusion temporal as maximum and to pay the same indemnity. Avila did not appeal. (He was sentenced to death, together with Frankisio Aro and Pedro Lasala, in another case. Criminal Case No. 1187. The death sentence is under review in L-38141). The evidence shows that at around ten o'clock in the morning of January 14, 1976, Celso Saminado, 37, a prisoner in the national penitentiary at Muntinlupa, Rizal and a patient in the emergency ward of the prison hospital, went to the toilet to answer a call of nature and to fetch water. The accused, Tampus, 27, and Avila, 28, prisoners in the same penal institution, who were tubercular patients in the hospital, followed Saminado to the toilet and, by means of their bladed weapons, assaulted him. Tampus inflicted eight incised wounds on Saminado while Avila stabbed him nine times. Saminado died upon arrival at eleven o'clock on that same morning in the prison hospital. After emerging from the toilet, Tampus and Avila surrendered to a prison guard with their knives (Exh. B and D). They told the guard: "Surrender po kami, sir. Gumanti lang po kami." The motive of the killing was revenge. Tampus and Avila, both members of the Oxo gang, avenged the stabbing of Eduardo Rosales in December, 1975 by a member of the Batang Mindanao gang, a group hostile to the Oxo gang. Saminado was a member of the Batang Mindanao gang. Rosales was a member of the Oxo gang. The officer of the day investigated the incident right away. In his written report submitted on the same day when the tragic occurrence transpired, he stated that, according to his on-the-spot investigation, Avila stabbed Saminado when the latter was armed in the comfort room and his back was turned to Avila, while Tampus stabbed the victim on the chest and neck (Exh. J dated January 14, 1976). Two days after the killing, or on January 16, another prison guard investigated Tampus and Avila and obtained their extrajudicial confessions wherein they admitted that they assaulted Saminado (Exh. A and C). There is no question that the guilt of Tampus was established beyond reasonable doubt. He and Avila, with the assistance of counsel de oficio, pleaded guilty to the charge of murder aggravated by treachery, evident premeditation and quasi recidivist At the arraigmment or after they had pleaded guilty, the trial court called their attention to the gravity of the charge and informed them that the death penalty might be imposed upon them. They reiterated their plea of guilty. The trial court required the fiscal to present the prosecution's evidence. Tampus and Avila took the witness stand, affirmed their confessions and testified as to the manner in which they repeatedly wounded Saminado. In this review of the death sentence, the counsel de oficio, assigned to present the side of defendant Tampus, contends that he was denied his right to a public trial because the arraignment and hearing were held at the state penitentiary. The New Bilibid Prison was the venue of the arraignment and hearing, and not the trial court's session hall at Makati, Rizal because this Court in its resolution of July 20, 1976 in L-38141, where Rodolfo Avila was one of the accused-appellants, refused, for ty reasons, to allow him to be brought to Makati. So, this Court directed that the arraignment and trial in the instant case, where Avila was a co-accused of Tampus, be held at the national penitentiary in Muntinlupa. The record does not show that the public was actually excluded from the place where the trial was held or that the accused was prejudiced by the holding of the trial in the national penitentiary.

There is a ruling that the fact that for the convenience of the witnesses a case is tried in Bilibid Prison without any objection on the part of the accused is not a ground for reversal of the judgment of conviction (U.S. vs. Mercado, 4 Phil. 304). The accused may waive his right to have a public trial as shown in the rule that the trial court may motu propioexclude the public from the courtroom when the evidence to be offered is offensive to decency or public morals. The court may also, upon request of the defendant, exclude from the trial every person except the officers of the court and the attorneys for the prosecution and defense. (Sec. 14, Rule 119, Rules of Court. See 21 Am Jur 2d 305, sec. 270). The other contention of counsel de oficio is that the confession of Tampus was taken in violation of Article IV of the Con constitution which provides: SEC. 20. No person shall be compelled to be a witness at himself. Any person under investigation for the commission of an offense shall have the right to remain anent and to court and to be informed of such right. No force, violence, threat, intimidation, or any other m which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. As the confession in this case was obtained after the Constitution took effect, section 20 applies thereto (People vs. Dumdum, L35279, July 30, 1979). There is no doubt that the confession was voluntarily made. The investigator in taking it endeavored, according to his understanding, to comply with section 20, as shown in the following parts of the confession. Ang may salaysay matapos maipabatid sa kanya ang kanyang mga karapatan tungkol sa pagbibigay ng malayang salaysay sa ngayon sa ipinag-uutos ng panibagong Saligang Batas ay kusang loob na nagsasabi ng mga sumusunod bilang sagot sa mga tanong ng tagasiyasat: xxx xxx xxx 6. Katulad sa mga bagay-bagay na ipinaliwanag ko saiyo kanina ay uulitin ko sa iyo na ikaw ay aking tinawagan dito sa aming tanggapan dahil sa ibig kitang maimbistiga tungkol sa pagkakapatay sa isang bilanggo rin na nagngangalan ng Celso Saminado noong petsa 14 ng buwan ding ito ngunit bago tayo magpatuloy ay uulitin ko rin saiyo na sa imbistigasyon naito, ikaw ay hindi ko maaaring pilitin, takutin o gamitan ng puwersa para makapagbigay ng salaysay o statement. Na sa imbistigasyon naito ikaw ay may karapatan na magkaruon ng isang abogado na magtatanggol saiyo. Na ikaw ay may karapatan na manahimik o tumanggi na paimbistiga. Ngayon at maulit ko saiyo ang mga karapatan mong ito, ikaw bay magpapatuloy pa sa pagbibigay ng salaysay bilang sagot sa alin mang itatanong ko saiyo Sagot Opo, sir. (Exh. A). However, counsel de oficio points out that before the confession was taken by investigator Buenaventura de la Cuesta on January 16, 1976, Tampus was interrogated two days before, or on the day of the killing, by the officer of the day, Vivencio C. Lahoz, and that at that alleged custodial interrogation, Tampus was not informed as to his rights to have counsel and to remain silent. The truth is that, even before Lahoz investigated the killing, Tampus and Avila had already admitted it when, after coming out of the toilet, the scene of the crime, they surrendered to Reynaldo S. Eustaquio, the first guard whom thuy encountered, and they revealed to him that they had committed an act of revenge. That spontaneous statement, elicited without any interrogation, was part of the res gestae and at the same time was a voluntary confession of guilt. Not only that. The two accused, by means of that statement given freely on the spur of the moment without any urging or suggestion, waived their right to remain silent and to have the right to counsel. That admission was confirmed by their extrajudicial confession, plea of guilty and testimony in court. They did not appeal from the judgment of conviction. Under the circumstances, it is not appropriate for counsel de oficio to rely on the rulings in Escobedo vs. Illinois,378 U.S. 478,12 L. ed. 2nd 977 and Miranda vs. Arizona, 384 U.S. 436, 16 L. ed. 2nd 694, regarding the rights of the accused to be assisted by counsel and to remain silent during custodial interrogation.

It should be stressed that, even without taking into account Tampus' admission of guilt, confession, plea of guilty and testimony, the crime was proven beyond reasonable doubt by the evidence of the prosecution. It is further contended that after the fiscal had presented the prosecution's evidence and when counsel de oficio called upon Tampus to testify, the trial court should have advised him of his constitutional right to remain silent. That contention is not well-taken considering that Tampus pleaded guilty and had executed an extrajudicial confession (U.S. vs. Binayoh, 35 Phil. 23). The court during the trial is not duty-bound to apprise the accused that he has the right to remain silent. It is his counsel who should claim that right for him. If he does not claim it and he calls the accused to the witness stand, then he waives that right (U.S. vs. Rota, 9 Phil. 426; U.S. vs. Grant, 18 Phil. 122; 4 Moran's Comments on the Rules of Court, 1970 Ed., p. 196). The crime was correctly characterized by the prosecutor and the trial court as murder. The two accused, Tampus and Avila, as coconspirators, made a deliberate and sudden attack upon the unarmed victim, while he was inside the toilet, three meters wide and three meters long. The accused resorted to a mode of assault which insured the consummation of the killing without any risk to themselves arising from any defense which the victim could have made. Indeed, because of the unexpected attack, he was not able to make any defense at all (61 tsn). Hence,alevosia qualifies the killing as murder. Evident premeditation is also aggravating. The evidence shows beyond peradventure of doubt that Tampus and Avila planned the killing by providing themselves with bladed weapons and waiting for an opportunity to kill Saminado and thus satisfy their desire for revenge. As alleged in the information and as shown in his prison record, Exhibit H, Tampus was a quasi-recidivist. At the time of the assault, he was serving sentences for homicide and evasion of service of sentence. Because of the special aggravating circumstance of quasi recidivist the penalty for murder, which is reclusion temporal to death, should be imposed in its maximum period and that is death (Art. 160, Revised Penal Code). The mitigating circumstances of plea of guilty and voluntary surrender to the authorities, which can be appreciated in favor of Tampus, cannot offset quasi-recidivism nor reduce the penalty. When death is prescribed as a single indivisible penalty, it shall be applied regardless of any generic mitigating circumstances (Art. 63, Revised Penal Code). However, for lack of the requisite ten votes, the death penalty cannot be affirmed. Hence, it should be commuted to reclusion perpetua. WHEREFORE, the lower court's judgment as to Jose Tampus is modified. He is sentenced to reclusion perpetua.The lower court's judgment as to his civil liability is affirmed. Costs de officio SO ORDERED.

(28) THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. MOISES MARCOS Y DE LA ROSA, accused. [G.R. No. L-65048 January 9, 1987] ALAMPAY, J.: In Criminal Case No. CCC-2873 of the defunct Circuit Criminal Court at Pasig, Metro Manila, appellant MOISES MARCOS, together with Danilo Castro, Jun alias "John Doe" and "Peter Doe," were charged with the crime of kidnapping, said to have been committed as follows: That on or about the 20th day of February, 1979 in Caloocan City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the private individuals, conspiring and confederating together and mutually helping and aiding one another, for the purpose of extorting ransom from Benito Gonzales, father of Benedict Gonzales @ "Cocoy" did then and there wilfully, unlawfully and feloniously kidnap and carry away in a motor vehicle and detain the latter in an isolated hut for two (2) nights and one (1) day. That accused Moises Marcos y de la Rosa, cooperated in the execution of the offense by previous simultaneous acts, that is, by pointing to Benedict Gonzales @ "Cocoy" to his co-accused and writing a ransom note demanding the amount of P200,000.00 from the father of the victim, Benito Gonzales but were able to get only the amount of P20,000.00 as ransom. CONTRARY TO LAW. Appellant's co-accused, Danilo Castro, Jun alias "John Doe" and "Peter Doe" escaped arrest and for this reason only appellant Moises Marcos was arraigned and tried. Thereafter, the court rendered its decision, dated July 24, 1979, with the dispositive portion thereof reading as follows: WHEREFORE, in view of the foregoing, the Court finds the accused MOISES MARCOS, GUILTY, beyond reasonable doubt of the crime of kidnapping, as charged in the Information, and hereby sentences him with the penalty of Death: to indemnify the offended party in the amount of P25,000 and another P25,000.00 as moral damages and exemplary damages. The evidence for the prosecution as summarized in the appellee's brief tend to establish that; At about 5:00 o'clock in the afternoon of February 20, 1979, Benedict Gonzales, a 9 year old pupil of the St. Martin de Porres Catholic School in Paombong, Bulacan, while on his way home from school was approached by three (3) men on board an owner-type jeep. On the pretext that the boy's father, Benito Gonzales met an accident, the men asked Benedict to go with them to the hospital (TSN., July 24, 1979, pp. 51-11). The unsuspecting Benedict went with the three (3) men who brought him to an isolated hut situated at Baesa, Caloocan City, about one (1) kilometer from the North Diversion Road. At said hut, Benedict was detained for two nights and one day, guarded during the day by two of the men (TSN., July 24, 1979, pp. 13-18; p. 19). At about 8:00 o'clock p.m of the same day, Benedict's brother found a note (Exhibit A) at the gate of their residence. The note in full, reads as follows: Feb. 20, '79 MR. BEN: Our mission in Paombong, is to get you Mang Ben. But don't worry about your son, just give us P200,000.00 cash tomorrow night, if you dislike, you will not see him anymore. INSTRUCTION

Let your driver alone to bring the money. Tell him to travel the Highway going to N. Ecija see our car with red flag, stop on the rear, go down, (sic), on the car with hands up and with lights on inside the car. Mr. Ben don't tell this to the authority or to anybody, if you want to see your son alive. P200,000.00 or your own son? That same night, Benito Gonzales, Benedict's father, sought the help of appellant. Appellant is Benito's first cousin and resides just across the street from the Gonzales' residence (TSN., July 23, 1979, p. 4). The next morning, February 21, 1979, appellant and Benito went to the house of Engr. Cesar Gonzales (Benito's brother) who referred them to Atty. Santiago Toledo, a former NBI agent, who in turn advised them to report the kidnapping to the National Bureau of Investigation (TSN., July 23, 1979, p. 5). At the NBI, Benito was briefed by NBI Supervising Agents Nestor Gonzales and Emeterio Manalo as to what course of action to take with the advice that Benito should in the meantime vie for time by negotiating with the kidnappers to reduce the ransom money (TSN., July 23, 1979, p. 5). From the NBI, appellant Benito proceeded to the office of Engr. Cesar Gonzales at Ayala Avenue, Makati where appellant advised Benito to disregard the NBI original plan. He volunteered to talk with the kidnappers to reduce the ransom money to P20,000.00 and proposed the raise the amount through a loan from a friend. Benito fearful for the life of his son and having no ready cash at the time, readily agreed to appellant's proposal (TSN July 23, 1979, pp. 56). From there, appellant and Benito proceeded to the store of Romeo Castro (appellant's friend) in Caloocan City, purportedly to secure a loan of P20,000.00. Appellant alone talked to Castro inside The latter's store and, about three (3) minutes later, invited Benito. After the usual introductions, Benito believing that appellant was able to secure a loan from Castro, proceed to pay the same within the week (TSN., July 23, 1979, p. 6). Thereafter, at about 7:00 o'clock p.m. of the same day, February 21, 1979, appellant and Benito went home to Paombong, Bulacan. As planned, appellant left purportedly to meet with the kidnappers at the highway going to Nueva Ecija (TSN., July 23, 1979, pp. 6-7). At about 2:45 o'clock in the early morning of February 22, 1979, appellant together with Benedict, arrived at the Gonzales' residence. Amidst the tearful reunion, appellant, when questioned how he was able to get back Benedict, related that on his way to Nueva Ecija, he was signalled to stop with a red flag by persons on board a red car; with guns aimed at appellant, the persons asked him for the money; appellant allegedly handed them the P20,000.00 with an apology that said amount was the only money that the family of Benedict could afford, afterwards, they proceeded to Novaliches, Quezon City where Benedict was detained (TSN., July 23, 1979, pp. 78). On March 5, 1979, Benito Gonzales reported the above developments to the NBI Noting some suspicious circumstances in appellant's story, the NBI conducted further investigation - The NBI agents questioned not only Benito and Benedict Gonzales but also appellant and Romeo Castro, appellant's friend, who allegedy loaned the amount of P20,000.00 ransom money. Appellant also pointed to the NBI agents the isolated hut in Baesa, Caloocan City where Benedict was detained, and reenacted the incident. In his sworn statement (Exhibit E) dated July 10, 1979 voluntarily given before NBI Agent Esteban Libit appellant admitted that he, together with Danilo Castro, "Jun" and alias "Peter Doe," planned and executed the kidnapping of Benedict. After the investigation, the NBI indorsed the case to the Office of the Provincial Fiscal of Pasig, Metro Manila for the filing of the appropriate information against appellant Danilo Castro, "Jun" and "Peter Doe" (Exhibit G). (Appellee's Brief, Rollo, pp. 76-81). On the other hand, appellant offers as his version of the same incident the following. Appellant Marcos, 49 years old, married, government pensionado and residing at Sto. Nino Paombong, Bulacan, testified as follows:

That the father of the victim is his first cousin. (TSN., Hearing of July 24, 1979, p. 54). That he wrote the ransom letter (Exhibit A) because he was instructed at the town plaza of Paombong, Bulacan by Danilo Castro to write said letter and after Danilo Castro and his companions have taken the boy (Benito Gonzales) he was instructed to write the ransom letter, (TSN., Hearing of July 24, 1979, pp. 56-57).lwphl@it That Danilo Castro is his friend while the "John Doe" and "Peter Doe" were the companions of Danilo Castro whom he does not know. (TSN., Hearing of July 24, 1979, pp, 57-58). That he was forced or intimidated to write the ransom note because if he will not do so, they (Danilo Castro and companions) will get his children who are studying in Manila (TSN., hearing of July 24, 1979, pp. 58-59). That he was told by Danilo Castro that if he will not make the ransom note, his two children will be "madisgracia." (TSN., Hearing of July 24, 1979, p. 64), That Danilo Castro gave him the pen to write the ransom note and -although instructed to give the ransom, note to his cousin, he placed the ransom note in the gate of his cousin's house. (TSN., Hearing of July 24, 1979, pp- 67-68). That he did not report the latter to the authorities because he thinks that he can get his grandson (TSN., July 24, 1979, p. 70). (Appellant's Brief, pp. 10-11). In seeking the reversal of the decision rendered against him, appellant herein attributes to the trial court its commission of the following assigned errors: I THE CIRCUIT CRIMINAL COURT OF PASIG METRO MANILA ERRED IN FINDING APPELLANT MARCOS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF KIDNAPPING WITH RANSOM, CONSIDERING THAT: a) SAID COURT ERRED IN ADMITTING THE EXTRA-JUDICIAL CONFESSION OF APPELLANT MARCOS (EXHIBIT E) WHICH WAS OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND THE STATEMENT OF ROMEO CASTRO (EXHIBIT C) WHO WAS NOT PRESENTED AS A WITNESS; b) THERE WAS NO EVIDENCE TO PROVE BEYOND REASONABLE DOUBT CONSPIRACY OR THAT APPELLANT MARCOS WAS GUILTY AS CO-PRINCIPAL AND/OR MASTERMIND; and c) SAID COURT BASED ITS DECISION ON FACTS AND MATTERS NOT SUPPORTED BY THE RECORDS. II ASSUMING ARGUENDO THAT APPELLANT MARCOS PARTICIPATED IN THE CRIME OF KIDNAPPING WITH RANSOM THE CIRCUIT CRIMINAL COURT ERRED IN IMPOSING THE PENALTY OF DEATH, CONSIDERING THAT: a) THE PARTICIPATION OF APPELLANT MARCOS WAS MERELY THAT OF AN ACCOMPLICE; b) UNDER THE THIRD PARAGRAPH OF ARTICLE 268 OF THE REVISED PENAL CODE, THE PENALTY IMPOSABLE SHOULD ONLY BE PRISION MAYOR IN ITS MINIMUM AND MEDIUM PERIODS AND A FINE NOT EXCEEDING SEVEN HUNDRED PESOS; c) UNDER THE DOCTRINE OF THE CASE OF PEOPLE VS. ACOSTA AND BRAVO 107 PHIL. 361, APPELLANT MARCOS DOES NOT BELONG To THAT TYPE OF KIDNAPPERS

WHO DESERVE THE S UPREME PENALTY OF DEATH CONSIDERING THE SMALL AMOUNT INVOLVED AND THE CIRCUMSTANCES UNDER WHICH IT (KIDNAPPING) WAS COMMITTED; and d) THE DEATH PENALTY CONSTITUTES A CRUEL OR UNUSUAL PUNISHMENT PRESCRIBED BY SECTION 21, ARTICLE IV OF THE 1973 CONSTITUTION. Appellant maintains that his extrajudicial confession is inadmissible as evidence against him because the same was obtained from him without the assistance of a counsel. He avers that although he waived his right to counsel, this waiver is without legal effect as such was made without the assistance of a lawyer, a requisite which should have been complied with as was stressed in the case of Morales vs. Enrile, 121 SCRA 538 and reiterated inPeople vs. Galit, 135 SCRA 465. The Court in this regard, finds that appellant's protestations do not warrant reversal of the appealed judgment. When appellant gave his sworn statement before the NBI agent Esteban Libit on July 10, 1979 he was not then under police custody. He was merely invited for questioning so he can shed light on the kidnapping of Benedict. He was even allowed to go home after the investigation. Appellant who is a retired First Lieutenant in the Philippine Constabulary and who had studied up to third year in mechanical engineering, admitted having voluntarily given his sworn statement, Exh. E, to the NBI. It is significant to consider that appellant Moises Marcos was duly informed of his right to remain silent. He was warned that any statement he make may be used against him and that he is entitled to be assisted by a lawyer of his choice. From the case records, are reflected the following: 1.QUESTION This investigation concerns the alleged kid napping of a certain BENEDICT GONZALES y SANTOS, an 8- year-old son of MR. BENITO GONZALES of Paombong, Bulacan. Before we proceed, however, we are now making it clear to you that it is your right to give or not give any statement or to answer or not to answer the questions to be propounded to you in this investigation. In other words, you have a perfect right to remain silent. You are also entitled to be informed here, as we are informing you, now, that whatever you may say here may be used as evidence against you in any criminal or civil proceedings, You are also entitled to be assisted by a lawyer of your own choice and should you not be able to engage the services of a lawyer, the government will appoint one for you. Is this clear to you? ANSWER: Yes, sir. 2. Q Would you like to be assisted by a lawyer now? A No more, sir. 3. Q In that case, are you willing to give a statement without a lawyer helping you? A Yes, sir. 4. Q Would you, therefore, sign a waiver of signifying that you have been informed of your constitutional rights and that you are waiving your rights under the same? A Yes, sir. In the sworn statement of appellant Moises Marcos, dated July 10, 1979, marked as Exhibit E, his waiver of his right to counsel is clearly expressed: WAIVER This is to certify that I have been informed of my constitutional rights to remain silent and to be assisted by a lawyer in this investigation. I am, however, waiving my rights to remain silent and I am also waiving my rights to be assisted by a lawyer in narrating to the NBI investigators what I know about the kidnapping of BENEDICT GONZALES.

Manila, July 10, 1979. SGD. MOISES R. MARCOS. Testifying before the trial court, appellant expressly acknowledged that he voluntarily signed his sworn statement, which was marked as Exhibit "E." In this regard, his testimony is as follows: xxx xxx xxx Q By the way, there are some signatures in this document (referring to Exhibit E is this your signature? A Yes, your Honor. Q You were not coerced by the NBI agents to sign your signature here? A No, your Honor. Q You gave this voluntarily? A Yes, your Honor ... (TSN., July 24, 1979, pp. 65-66). Considering all the foregoing circumstances, the Court is of the view that appellant's admissions, voluntarily made, and confirmed by him in open court during his trial, render worthless the challenge now interposed by him to the admissibility of appellant's sworn statement, Exhibit E. The facts and circumstances attendant in this instance, excludes the case at bar from the scope and application of the pronouncements made in the case of People vs. Galit, 135 SCRA 465 and Morales, Jr. vs. Enrile, 121 SCRA 538, which appellant invoked. The findings and conclusions of the trial court receive fullest support from the evidence adduced by the prosecution aside , from appellant's admissions made before the trial court. We find no reason to set aside and reject the evidence which the court below had properly appreciated. Consequently, this Court should extend faith and credit to the factual findings of the court below that appellant Moises Marcos was an active participant and was even the one who had inspired the commission of the kidnapping of the son of his first cousin. Apart from the extrajudicial statements of the accused, the other evidence submitted by the prosecution include the testimony of Benedict Gonzales, a nine-year old kidnap victim who attested to and confirmed the fact that it was the accused Moises Marcos, as his "lolo Nito" who had taken him from the place of detention in Barrio Baesa and brought him back home to his parents, The declarations of Benito Gonzales, father of the kidnapped child indicate the role played by appellant Moises Marcos in obtaining the amount of P20,000.00 supposedly to re-pay the purported loan secured from one Romy Castro and which was to be utilized to pay for the ransom of the kidnapped boy. All the above mentioned evidence, separate and independent from the extrajudicial statement Exhibit E, executed by the appellant, are likewise proof establishing beyond reasonable doubt the appellant's guilt. Appellant submits that he was an unwilling participant in the crime and that he was forced to write the ransom note because of his fear that his children in Manila will be hurt by his co-accused. Appellant claims that his cooperation was not given voluntarily and therefore he should not be regarded as a principal for even assuming that he participated in the commission of the crime, his participation was merely that of an accomplice. We cannot give credence to the claim of the appellant that he was coerced into writing the ransom note. There is no averment nor is there even mention of any such alleged coercion exerted on him when appellant executed his sworn statement, Exhibit E, wherein it described the role he played in the kidnapping of Benedict Gonzales. What appears is that appellant wrote the ransom note while in his residence and without any of his co-accused being present. In his extrajudicial statement, Exhibit E, appellant stated: 19. Q What did you do then in your house?

A I wrote a letter, a ransom letter, addressed to Mr. Ben and telling him to prepare P200,000.00 in cash which must be delivered the following night to us as a ransom for his son. I remember that I instructed him in that ransom note to ask his driver to drive his car towards the highway going to Nueva Ecija at about midnight. The driver must bring with him the ransom money and we will intercept him, I mean the money. I also mentioned in that ransom note that along the highway, at about midnight he will see a car with a red flag and upon seeing that car he must stop and go down hands up and he must light the inside of the car. To mitigate somehow his criminal liability, appellant submits that he merely acted as a "go-between" between kidnappers and the victim's father and where there is doubt as to whether one participated as a principal or as an accomplice, the milder form of criminal liability should be favored. Appellant asks that he be given the benefit of doubt and that he be regarded, almost only as an accomplice (Appellant's Brief, pp. 19-20). The Court agrees with the conclusion arrived at by the trial court that appellant's participation in the said felony was as a principal. It was appellant who informed his co-accused Danilo Castro and the other persons named only as; "John Doe" and "Peter Doe," that Benito Gonzales, father of the kidnapped victim, is among the richest residents of Paombong, Bulacan. It was no less appellant Moises Marcos who pointed out Benedict Gonzales to his other co-accused who later duped said boy into going along with them on the pretext that the boy's father was then in a hospital. It was appellant who wrote the ransom note and he himself placed said note at the gate of the house of the father of the kidnapped child. Appellant made it appear that he borrowed money in the amount of P20,000.00 from one Romeo Castro which was to be used in paying the ransom and although appellant did not actually obtain that loan, he nevertheless caused the boy's father to agree to re-pay that alleged loan and this the latter did afterwards. Appellant, by himself, went to Baesa, Caloocan City, where the kidnapped boy was detained. He then brought back the latter to his parents in Paombong, Bulacan. It is undisputed that appellant received from Benito Gonzales the amount of P 20,000.00 which was intended to serve as reimbursement for the money alleged borrowed and which Benito Gonzales was made to believe was paid for the release of his kidnapped son. The narration of the kidnapping incident by the herein appellant is replete with details which could not possibly be known by anyone else other than those actually and principally involved in the kidnapping and in the execution thereof. Finally, appellant contends that the death penalty should not have been imposed on him because the amount of the ransom money involved is small. He maintains that the death penalty constitutes a cruel and unusual punishment, disallowed by Section 21, Article IV of the 1973 Constitution. The crime committed by appellant and his co-accused is defined and penalized in Article 267 of the Revised Penal Code, as amended by Republic Act Nos. 18 and 1084, which provides: Art. 267 Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death. xxxxxxxxx 4. If the person kidnapped or detained shall be a minor, female, or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other persons, even if none of the circumstances above mentioned were present in the commission of the offense. There is no question at all that Benedict, the victim, was then a minor and that he was kidnapped for the purpose of extorting ransom. Appellant's argument that death is a cruel and unusual punishment does not deserve consideration. In People vs. Camano, 115 SCRA 688, We already held that the death penalty, as such is not excessive, unjust or cruel, within the meaning of that word in the Constitution. In said case, this Court stated, citing Harden vs. Director of Prisons, 81 Phil. 741 The penalty complained of neither cruel, unjust or excessive. In Ex Parte Kemmler, 136 U.S. 436, the United States Supreme Court said that punishments are cruel when they involved torture or lingering death but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there somethig inhuman and barbarous, something more than the mere extinguishment of life.

What can be gleaned from a review of the evidence on record is that apparently there was an abrupt and increasing remorse or contrition on the part of the herein appellant after the kidnapping was an accomplished fact but there no longer was any way, of turning back from his assigned role. Appellant's change of heart could have been brought about by appellant's realization of the anxiety and suffering inflicted on the parents of the child those father is the first cousin of the appellant. The vacciliation of appellant is understandable because, as submitted by appellant's counsel in this case, ". . . appellant is not a professional wrong doer (he has not been guilty of any other previous offense)." (Appellant's Brief, p. 23). In our assessment of the facts of this case and upon considering the conduct and actuations of the herein appellant, We are inclined to agree with the observations of the appellant's counsel de oficio, who went to the National Penitentiary to interview the accused. The Court's impression is that when appellant Moises Marcos began to realize the extent of the grief and torment being undergone by the family of Benedict Gonzales (the kidnapped child), he must have even at that time, already regretted his felonious act and thus he voluntarily returned the kidnapped boy to his parents although full payment of the P200,000.00 being demanded in the ransom note was not given by the boy's family. It is indicated that when his other co-accused were later grumbling about the small sum of P20,000.00 received by them (herein appellant had no share in the ransom paid), appellant then sold his car for P5,000.00 and gave this money to his co-conspirators to appease them (Q. 65-67, Sworn Statement of Appellant, Exh. E). Considering the foregoing circumstances, the Court is disposed to accept the urging of appellant's counsel de oficio, that if appellant's conviction is sustained, the appropriate penalty that he should suffer must not be the extreme penalty of death. Appellant has already been detained for almost eight years now and is presently confined at the National Penitentiary awaiting the outcome of our review of the judgment rendered by the trial court. The facts of this case tend to show that the crime in this case was not the result of any deliberate and well formed nefarious conspiracy of a criminal group. It was rather a crime clumsily conceived on the spur of the moment. Appellant obviously did not fully realize the gravity of the crime he and his companions were embarking upon. Thus, We find the extreme penalty of death imposed on appellant, Moises Marcos, to be inappropriate, In the view of the Court, under the given circumstances in this case, the penalty that should be imposed should be reduced to life imprisonment. Furthermore, if the record of appellant's behavior while under detention in the National Penitentiary during the years he has been imprisoned is satisfactory and indicative of his worthiness to rejoin the society of law-abiding citizens, then the proper recommendation in his behalf should be made by the prison officials concerned for the further commutation of his prison term. The Court also notes that only P20,000.00 was paid by the father of the kidnapped child for ransom but the amount of P25,000.00 was decreed in the decision of the court below. It should be therefore reduced to P20,000.00. WHEREFORE, the appealed decision, being in accordance with the evidence is AFFIRMED but with modification, as to the penalty of death imposed on the accused-appellant Moises Marcos which is hereby reduced to Reclusion Perpetua. The indemnity to be paid to the offended party is also reduced to P20,000.00. In all other respects, the said judgment of the trial court is affirmed. SO ORDERED.

(29) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JIMMY ALBERCA, accused-appellant. [G.R. No. 117106. June 26, 1996] PER CURIAM: This case is here on appeal from the judgment dated August 11, 1994 [1] of Branch 104 of the Regional Trial Court of Quezon City, finding accused-appellant Jimmy Alberca guilty beyond reasonable doubt of the crime of Robbery with Homicide and Physical Injuries[2] and sentencing him to death. Accused-appellant was in addition ordered to indemnify the heirs of Felipe Climaco in the amount of P50,000.00 and to pay the Triad Security and Allied Services, Inc. the amount of P10,000.00 for the value of one (1) .38 cal. Revolver, which had been taken from the victim by one of the malefactors, and the costs. The information against accused-appellant alleged"That on or about the 11th day of April 1994, in Quezon City, Philippines, the above-named accused, conspiring, confederating and mutually helping with several others whose true names and real identities have not as yet been ascertained, did then and there, willfully unlawfully and feloniously entered the compound of Rebecca Saycon located at No. 99 Tandang Sora Avenue, this City, with intent to kill and with the use of bladed weapons stabbed FELIPE CLIMACO, a security guard on his body several times and JOEY RODRIGUEZ, a house boy thereat on his chest, respectively, thus inflicting upon FELIPE CLIMACO serious and mortal wounds which were the direct and immediate cause of his death and injuries to JOEY RODRIGUEZ and thereafter said accused with intent to gain, by means of such violence and intimidation against persons, did then and there, wilfully, and unlawfully and feloniously take, rob and carry away the service firearm of FELIPE CLIMACO, 1.38 caliber revolver with Serial No. 31897 with six (6) rounds of ammunitions of still undetermined value, belonging to Triad Security & Allied Services, Incorporated, to the damage and prejudice of the heirs of Felipe Climaco, Joey Rodriguez of the injuries sustained [sic] and Triad Security & Allied Services, Incorporated. "Contrary to law." The crime took place in the first hour of April 11, 1994, at the compound of Pastor and Rebecca Gaskell-Saycon at No. 99 Tandang Sora Avenue, Quezon City. At that time, only Rebecca, her two sons and their "yaya" (nursemaid), security guard Felipe "Philip" Climaco and houseboy Joey Rodriguez were in the house. [3] According to Joey's testimony,[4] he was sleeping in the servant's quarters when he was awakened around midnight by the footsteps of Climaco. He asked Climaco what the matter was ("Ano po yon?") but the latter did not answer as he proceeded to the closet to get a gun. Joey saw Climaco running towards the swimming pool. After a while, he heard a gunshot. He got up and followed Climaco to the swimming pool where Joey heard shouts. Intending to ask help from neighbors, Joey opened the gate when he was suddenly attacked by a person whom he identified as accused-appellant.[5] He fought back but he was stabbed. He ran towards the house. Along the way he met another person with a gun in one hand and a knife in the other, and inside the house he saw Climaco lying on the floor, wounded. Climaco was in pain and asked to be taken to the hospital. Climaco said his gun[6] had been taken by a person whom he described was "fatter," "taller," and heavier than Joey and who wore his hair long. Thereafter, several persons, arrived, including Danilo Saycon, Arnold Agustin, and Joey's twin brother Jonathan Rodriguez, and the police. Found dead in the garden by the police was one of the intruders, who was later identified as Diego Aruta. [7] Climaco was taken to the Lanting General Hospital but he was dead on arrival. [8] The autopsy report[9] showed that he suffered several wounds in various parts of the body, to wit: "Fairly developed, fairly nourished male cadaver, in rigor mortis with postmortem lividity over the dependent portions of the body. Conjunctivae, lips and nailbeds were pale. "EXTERNAL INJURIES: TRUNK AND UPPER EXTREMITIES: "(1) Stab wound, anterior left upper thorax, 130 cms. from heel, 11 cms. from anterior midline, measuring 7 x 2.5 x 6 cms. depth, directed upwards, slightly backwards, towards midline, thru the muscle tissue. "(2) Stab wound, anterior right thorax, 121 cms. from heel, 9.5 cms. from anterior midline, measuring 5 x 1.5 x 13 cms. depth, directed slightly upwards, backwards, slightly towards lateral, fracturing the 5th right thoracic rib along the midclavicular line, piercing the middle and lower lobes of the right lung. "(3) Stab wound, anterior right lumbar region, 107 cms. from the heel, 11 cms. from anterior midline, measuring 4 x 2 x 12 cms. depth, directed upwards, backwards, towards rnidline, fracturing the 9th right thoracic rib along the midclavicular line, piercing the loops and mesenteries of small intestines and portal vein. "(4) Stab wound, right scapular region, 126 cms. from the heel, 12 cms. from posterior midline, measuring 5 x 1.5 x 12 cms. depth, directed upwards, slightly forwards, towards midline, thru the muscle tissue. "(5) Incised wound, anterior proximal 3rd left arm, measuring 8 x 2 cms., 4 cms. from anterior midline.

"(6) Linear abrasion, anterior left lumbar region, measuring 6 x 0.1 cm., 11 cms. from anterior midline. "(7) Abrasion, anterior left lumbar region, measuring 0.6 x 0.3 cm., 15 cms. anterior midline. "(8) Linear abrasion, anterior left lumbar region, measuring 7 x 0.1 cm., 4 cms. from anterior midline. "(9) Linear abrasion, anterior proximal 3rd right forearm, measuring 5 x 0.2 cm., 4 cms. from anterior midline. "(10) Stabwound, posterior middle 3rd right arm, measuring 2.8 x 1.2 cms. x 10 cms. depth, directed upwards, forwards, towards lateral, thru the muscle tissue. "(11) Stab wound, posterior proximal 3rd right forearm, 4 cms. from posterior midline, measuring 2.5 x 0.8 x 5 cms. depth, directed slightly downwards, towards lateral. "(12) Stab wound, posterior proximal 3rd right forearm, 4 cms. from posterior midline, measuring 3.5 x 1 x 5 cms. depth, directed upwards, backwards, towards midline, thru the muscle tissue. "(13) Incised wound, dorsum of the right hand, measuring 1.7 x 0.3 cms., 6 cms. from posterior midline. "INTERNAL FINDINGS: "(1) Recovered from the right thorax and abdominal cavity about 1,000 cc and 500 cc of blood and blood clots, respectively. "(2) Recovered from the stomach 1 glass of partially digested food particles consisting mostly of rice. "CONCLUSION: "Cause of death is stab wounds, body." On the other hand, Joey was taken to the Quezon City General Hospital. The medico-legal certificate of the attending physician stated that Joey suffered a "stab wound, 4 cm., 5th ICS, Ant. axillary line, chest (R)" which would require medical attendance for seven days under normal condition.[10] The wound would not have caused his death even if Joey had not been given immediate medical attendance as it did not penetrate his lungs.[11] Accused-appellant, a "taho" vendor, was arrested by NBI agents on April 17, 1994 in San Miguel, Bulacan, in the house of his aunt, Priscilla Dagandang Mabuhay. He was taken to the NBI Headquarters on Taft Avenue in Manila where he gave an extrajudicial confession in the presence of his wife Noemi and of an assigned counsel, Atty. Erlando A. Abrenica. [12] In his confession, given on April 19, 1994, accused-appellant said that the plan to rob the Saycons had been conceived by Diego Aruta and Darius Caenghog and that he had been told of it on the night of Saturday, April 9, 1994. According to accused-appellant, the following night, April 10, 1994, at around 7:00, Jhonny "Almar" Alcober, Oscar "Lucas" Clariza and Bengie "Benny" Demson arrived in his house. (Accused-appellant and his family lived in a house which was just outside the Saycon compound in Tandang Sora, Quezon City.) Diego and Darius arrived at about 10:00 in the evening. The accused-appellant and the group drank two bottles of gin. All the while, they were looking over the wall which separated accused-appellant's house from the Saycon compound ("Sinisilip nila sa pader ang bahay ni Mr. Saycon"). At around midnight, the group went into action. Diego climbed over the wall, followed by Darius and accused-appellant and then by the three, Almar, Lucas and Benny. But they were noticed by the security guard who shot Diego Aruta. Diego charged ("sinugod"), embraced the security guard and then stabbed him. Diego was Joined by Darius who also stabbed the guard at the front and by accused-appellant who stabbed the guard at the back. The security guard staggered into the house. Accused-appellant then noticed a little man coming from a small room near the gate. He followed the man and stabbed him. The man, though stricken, was able to run inside the house. Accused-appellant then escaped by going over the wall, while Darius, who took the security guard's gun, escaped through the gate. Greatly weakened by his wound, Diego was left behind, eventually to die from his gunshot wound. After the incident, the group dispersed. Accused-appellant stayed in his house until 4:00 in the morning and then left for Pasay City. On April 13, 1994 he proceeded to Barrio Tibagan, San Miguel, Bulacan, where NBI agents eventually found him. Accused-appellant claimed that he signed the confession (Exhibits "B-1" to "B-3") because he had been "threatened" with harm if he did not[13] and that Atty. Abrenica, who assisted him in the execution of the confession, was not his counsel of choice but had merely been provided him by NBI Special Investigator Ramon Yap. [14] Accused-appellant claimed that he could not have committed the crime because at that time he was in San Miguel, Bulacan, having gone there on April 10, 1994 to visit an aunt. [15] The trial court dismissed accused-appellant's alibi. It held that even without the extrajudicial confession, the prosecution's other evidence established beyond reasonable doubt accused-appellants guilt. Hence this appeal based on the following assignment of errors: I THE COURT A QUO ERRED IN NOT DECLARING AS INADMISSIBLE IN EVIDENCE THE EXTRA-JUDICIAL CONFESSION EXECUTED BY ACCUSED-APPELLANT. II

THE COURT A QUO ERRED IN GIVING FULL FAITH AND CREDENCE TO THE UNRELIABLE, IMPLAUSIBLE AND UNPERSUASIVE TESTIMONY OF THE PROSECUTION WITNESSES AND IN DISREGARDING THE EVIDENCE PROFERRED BY THE DEFENSE. III THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED AND IN IMPOSING THE SUPREME PENALTY OF DEATH DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT. 1. Art. III (Bill of Rights) of the Constitution provides in part: "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,incommunicado, or other similar forms of detention are prohibited. "(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. xxx xxx xxx

Accused-appellant signed a document, marked Exhibit "B", which consists of two parts. The first part, marked Exhibit "B-4," shows that accused-appellant was informed that he had a right to remain silent and not to give any statement; that any statement he gave could be used against him in court; that he had a right to retain counsel of his choice and that if he could not afford to hire the services of counsel he would be given a competent and independent one. After being thus informed, he said he was nonetheless willing to give a statement and tell the truth. Thus, written in Filipino, the first part of the document reads: "0.1 TANONG: Bago and lahat, nais kong ipaalam sa iyo Ginoong JIMMY ALBERCA Y MABUHAY na ikaw ay aming iniimbistigahan sa kasong Robbery with Homicide na nangyari noong madaling araw ng Abril 11, 1994 sa tahanan ni MR. PASTOR SAYCON sa #99 Tandang Sora Avenue, Quezon City, naiintindihan mo ba ito? SAGOT : Opo, sir. "02. T: Nais ko rin na ipaalam sa iyo ang iyong mga karapatan sa ilalim ng ating saligang batas, na ikaw ay may karapatan na manahimik at huwag magbigay ng anumang pahayag sa pagsisiyasat na ito at anumang pahayag na iyong sasabihin ay maaaring gamitin laban sa iyo sa harap ng ating husgado, nauunawaan mo ba ito? S: Opo, sir. Nauunawaan ko po at nais ko pong magbigay ng aking salaysay. 0 3. T: Ibig ko rin ipaalam sa iyo na ikaw ay may karapatang magkaroon o kumuha ng iyong sariling abogado na pili mo at kung ikaw naman ay wala at hindi mo kayang magbayad ng isang abogado upang tumulong sa pagsisiyasat na ito, ikaw ay bibigyan namin ng isang abogado na may sapat na kakayahan para pangalagaan ang iyong karapatan, ito ba ay naiintindihan mo? S: Opo, sir. Naiintindihan ko. Naririto po ngayon si Atty. ERLANDO ABRENICA at ang aking asawa na si NOEMI ALBERCA na siyang aalalay sa akin sa pagbibigay ko ng aking salaysay na ito. "04. T: Pagkatapos mong malaman ang iyong mga karapatan sa ilalim ng ating Saligang Batas, at matapos na ikaw ay paliwanagan ng iyong abogado na si Atty. ERLANDO A. ABRENICA kaharap ang iyong asawa na si NOEMI ALBERCA Y JATULAN, nais mo pa rin bang magbigay ng iyong pahayag sa pagsisiyasat na ito at magbigay o magsabi ng katotohanan at pawang katotohanan lamang? S: Opo, sir. Pagkatapos kong marinig at maintindihan ang aking mga karapatan sa ilalim ng ating Saligang Batas, ako po ay kusang loob na magbibigay ng aking salaysay at magsasabi ng katotohanan at pawang katotohanan lamang sa pagsisiyasat na ito. "05. T: Kung gayon, ikaw ba ay nakahanda na lumagda sa kasulatang pagpapaubaya sa mga karapatang mong ito? S: Opo, sir. "PAGPAPAUBAYA "Ako ay pinagpayuhan ng aking mga karapatan na manahimik at magkaroon ng sariling abogado. Lubos ko itong naiintindihan at nais kong ipaubaya ang mga karapatan kong ito kaharap ang aking abogado na si Atty. ERLANDO ABRENICA at ang aking asawa na si NOEMI J. ALBERCA. Nais kong magbigay ng aking kusang loob na salaysay at alam ko rin na anumang aking sasabihin sa pagsisiyasat na ito ay maaaring gamitin laban o pabor sa akin.

"Nauunawaan ko ang aking mga karapatan at nakahanda akong sumagot sa anumang mga katanungan. Hindi ako tinakot, pinilit o pinangakuan ng anumang bagay o may ginawa laban sa akin na makakagambala sa aking malayang pagpapaubaya. "(SGD) JIMMY ALBERCA Y MABUHAY "Nilagdaan sa harap ni: "(SGD) NOEMI ALBERCA Y JATULAN "CERTIFICATION "THIS IS TO CERTIFY that Affiant JIMMY ALBERCA Y MABUHAY voluntarily waived all his right under the law after the same were satisfactory explained to him including whatever consequences his statements may do. (SGD) Atty. ERLANDO A. ABRENICA #5 Goldhill Tower, Annapolis St., Greenhills, San Juan, Metro Manila" Accused-appellant claims that, contrary to what is recited in the document, the rights were not read to him and that Atty. Erlando A. Abrenica, who assisted him in waiving the constitutional rights, was not his counsel of choice. But his part of Exhibit "B" was signed and thumbmarked by accused-appellant, apart from the second part, which is his confession. He did so in the presence of his counsel, Atty. Erlando A. Abrenica, and of his wife Noemi Jatulan Alberca. Accused-appellant makes much of the fact that Atty. Erlando A. Abrenica was not presented by the prosecution. He is joined in this regard by a dissenting member of the Court who contends that Atty. Abrenica should have been presented in order to testify on the extent of services he had rendered to accused-appellant. But beyond seeing to it that the suspect in custodial investigations had been informed of his constitutional rights and that he understood these rights before he waived them-and thus insure that the waiver was knowing, voluntary and intelligent - the assigned counsel does hot have anything more to do. In this case accused-appellant does not claim he did not understand what the document states. What he claims is that the constitutional rights stated in the document were not read to him because he was merely forced to sign that document. This is improbable, given the fact that as already stated, this document was signed not only by him but also by his wife. Additionally, accused-appellant affirmed the document before the Assistant City Prosecutor. In People v. Llenaresas,[16] it was also alleged by the defense that accused-appellant's extrajudicial confession should have been excluded from evidence because the counsel, who assisted him in executing his confession, did not testify in court. Rejecting this contention, we held: "It is true that the prosecution did not present Atty. Meliton Angeles as a witness to confirm his presence during the custodial investigation of Jabil and Llenaresas. Such failure is not, however, fatal to the case of the Prosecution since the testimonies of the police officers and of Prosecutor Pedro S. Nantes, in conjunction with the statements found in the extrajudicial confession itself, were quite adequate to sustain the conclusion reached by the trial court." Indeed, what is noteworthy is not the prosecution's failure to present Atty. Abrenica but accused-appellant's failure to call on his wife to corroborate his allegation of coercion, After all, accused-appellant does not claim that she, too, was made to sign under duress. Another member of the Court also dissents, arguing that in any event it does not appear from the document signed by accusedappellant that he was informed that it was his right to have a competent and independent counsel of his own, that he had been asked whether he had one, and that he had been given time to look for one. Question No. 3 (quoted above) shows that accused-appellant was told that it was his right to have counsel chosen by him and that if he could not afford to hire one, he would be given a competent counsel in order to protect his rights. ("[I]kaw ay may karapatang magkaroon o kumuha ng iyong sariling abogado na pili mo at kung ikaw naman ay wala at hindi mo kayang magbayad ng isang abogado upang tumulong sa pagsisiyasat na ito, ikaw ay bibigyan namin ng isang abogado na may sapat na kakayahan para pangalagaan ang iyong karapatan.") It was unnecessary to tell accused-appellant that he had a right to have a counsel of his choice who was competent and independent since he was told he could choose his own counsel. What was necessary was to assure him that if he could not afford to hire the services of counsel he would be provided by the investigator with a lawyer who was competent and independent, which was

what was done in this case. Nor was it necessary to ask him whether he had counsel or give him an opportunity to look for counsel since he had waived the right to counsel and pointed to Atty. Abrenica as the counsel he wanted to assist him in making the waiver. There is therefore no basis for the plea of accused-appellant that his extrajudicial confession should have been excluded from the evidence because it was obtained in violation of his rights under Section 12 of Art. III. Accused-appellant also claims that he signed the extrajudicial confession because he had been "threatened" with harm if he did not. He made this claim twice in his testimony in the trial court, once during his direct examination [17] and again in his crossexamination.[18] If true, this would render his confession inadmissible under paragraphs (2) and (3) of Section 12. However, apart from saying that he was "threatened," he did not elaborate as would naturally be his wont had he really been coerced to sign his confession. He did not say he was beaten up or subjected to third degree methods. He did not even say what he was told would be done to him if he refused to sign the confession. Neither did he say who allegedly made the threat. On the contrary, the following circumstances belie his claim that he had been coerced into signing the confession: (a) Accused-appellant signed the confession (Exhibits "B-1" to "B-3") in the presence of his wife Noemi Jatulan Alberca and counsel, Atty. Erlando A. Abrenica, who signed the confession as witnesses thereto. The confession comprises the second part of the document marked Exhibit "B". Like the first part, which is the waiver of constitutional rights, the second part was also signed by him, with his wife by his side. The presence of Noemi could only have worked to prevent accused-appellant's will from being overborne by pressure, let alone intimidation. However, Noemi was never presented to corroborate accused-appellant's claim that he had been threatened into signing the confession. (b) As already noted, before answering the questions of the investigator, accused-appellant was informed in Filipino of his constitutional rights to remain silent and to have competent and independent counsel of his choice and warned that any statement he gave could be used against him. Nonetheless he willingly gave a statement in order, according to him, to tell the truth. (c) The NBI investigator Ramon Yap testified on the due execution of the extrajudicial confession and on the fact that accused-appellant was informed of his constitutional rights but he waived his rights and decided to proceed with the investigation, which lasted morning and afternoon of April 19, 1994. [19] He denied that the confession had been prepared beforehand and that accused-appellant was simply made to sign it. (d) On April 22, 1994, accused-appellant was taken to the Assistant City Prosecutor of Quezon City, before whom accused-appellant affirmed his confession. Although accused-appellant claims that he told the prosecutor that the content of the extrajudicial confession was not true, he does not claim that he complained of any threat, intimidation or force used against him to make him sign the confession and waiver of rights.[20] Indeed to disregard the foregoing circumstances and give credence instead to the accused-appellant's claim that he was forced to sign his confession would be to suggest that accused-appellant's wife, Noemi, the assigned counsel, Atty. Abrenica, the investigator Ramon Yap and the Assistant City Prosecutor conspired to railroad him to conviction. The confession of accused-appellant in the case at bar is replete with details, which makes it improbable that it was not voluntarily given. This is evident in the following portion of the confession: "09. T: Kung gayon, maaari mo bang sabihin sa akin sa pagsisiyasat na ito ang iyong mga nalalaman na may tungkol sa nangyari sa bahay ni Mr. PASTOR SAYCON doon sa #99 Tandang Sora Avenue, Quezon City, noong ika-11 ng Abril 1994? S: Ang nasabi pong bahay ay aming pinasok, at nilooban at ninakawan, noong mga bandang alas dose ng madaling araw ng Abril 11, 1994, araw po ng Lunes. "10. T: Maaari mo bang isalaysay ng maigi ang mga pangyayari? S: Noon pong araw ng Sabado, petsa 9, 1994, bandana alas dose ng tanghali ay nagplano sina DIEGO ARUTA at DARIUS CAENGHOG sa aking tinitirhan sa 101 Tandang Sora Avenue, Quezon City na papasukin at pagnanakawan ang bahay ni Mr. SAYCON na nasa kabila lamang ng pader ng aking tirahan. Sinabi nila ito sa akin bandang alas 7:00 ng gabi noon ding po Sabadong iyon. Kinabukasan araw ng linggo, petsa Abril 10, 1994, bandang alas 7: 00 ng gabi ay dumating sina JHONNY ALCOBER @ "Almar," OSCAR CLARIZA @ "Lucas," at BENGIE DEMSON @ "Benny." Sila po ay nagtuloy sa aking tinitirhan at doon pa po sila naghapunan. Bandang alas 10:00 ng gabi ay dumating na rin sina DIEGO at DARIUS sa aking bahay. Kami po tatlo nila DIEGO at DARIUS ay uminom ng dalawang boteng Ginebra habang sina ALMAR, LUCAS at BENNY ay nagpapahinga sa itaas ng bahay ko. Habang kami ay nag-iinuman ay panay ang labas nila DIEGO at DARIUS at sinisilip nila sa pader ang bahay ni Mr. Saycon. Ang plano ni DIEGO ay pasukin namin ang bahay ni Mr. Saycon ng bandang ala-una petsa Abril 11, 1994 pero nainip po sina DARIUS at ALMAR at sinabi nila na pasukin namin ang nasabing bahay ng bandang alas dose."

Accused-appellant claims that this portion of his confession was supplied by Ramon Yap, the NBI investigator. Yap would not know who the members of the group were if accused-appellant did not give their names. Accused-appellant does not deny that he knows these persons. In fact it would seem that Alcober, Clariza and Demson were accused-appellant's townmates because it was to Barogo, Leyte, where according to the confession, the three fled after the crime. On the other hand, Caenghog was from Carigara, also in Leyte, according to the confession. 2. Accused-appellant's defense is alibi. He claims that at the time of the commission of the crime on April 11, 1994 he was in San Miguel, Bulacan. He claims that he went to San Miguel, Bulacan in the morning of April 10 and stayed there until he was picked up by NBI agents on April 17.[21] Accused-appellant would have called on his relatives Priscilla Dagandang Mabuhay and Antonio Dagandang, as well as Isa Joson, a neighbor in Bulacan, to testify, except that the prosecution agreed that if presented their testimonies would corroborate accused-appellant's alibi.[22] Now the rule is settled that the defense of alibi cannot prevail over the positive identification of the accused. [23] In this case, positive identification of accused-appellant was made by Joey Rodriguez. Joey was a houseboy of the Saycons. He engaged accusedappellant in a fight and was stabbed by the latter.[24] He did not know accused-appellant personally but neither was the latter a "total stranger" to him. For the fact was that accused-appellant's house was just outside the Saycon compound. [25] The premises were sufficiently illuminated by light coming from the terrace of the house and from the MERALCO street light which made identification of the accused-appellant possible.[26] Joey could not, therefore, have been mistaken as to the identity of accused-appellant. Furthermore, the claim that accused-appellant was in San Miguel, Bulacan at the time of the crime was contradicted by prosecution witness Joselito Aborque.[27] Aborque was also a "taho" vendor. He was a neighbor of accused-appellant. Aborque testified that he saw accused-appellant in the latter's house with three male visitors at around 7:00 p.m. of April 10, 1994 [28] as he (Aborque) and his wife went out for a stroll. The defense tried to discredit him by imputing to him a desire to eliminate a competitor since they were both "taho" vendors and by pointing out that Aborque had given his statement to the NBI five days after the crime.[29] Aborque denied he and accused-appellant were business rivals.[30] Even if they were, this would not be enough for him to testify falsely against accused-appellant. As for the contention that it was only on April 16, 1994 that he gave his statement to the NBI, it is sufficient to say that the reluctance of some people to be involved in criminal trials is a matter of judicial notice. Failure to volunteer what one knows to law enforcement officials does not necessarily impair a witness' credibility. [31] In any event the trial court, which had the opportunity to observe this witness' demeanor, found his testimony to be truthful and we find no reason to disregard its finding on this matter. For the defense of alibi to prosper, accused-appellant must establish by clear and convincing evidence not only that he was not present at the scene of the crime but also that it was physically impossible for him to have been present there at the time of its commission.[32] This accused-appellant failed to do. According to him, the distance between San Miguel, Bulacan and Tandang Sora, Quezon City, where the Saycon compound is, can be negotiated in two and a half hours, and even an hour less if traffic is not heavy.[33] Hence, even assuming that accused-appellant really went to Bulacan in the morning of April 10, 1994, he could have easily returned to Tandang Sora later the same day. It is true that none of the witnesses for the prosecution testified having seen accused-appellant stab Felipe Climaco, a point on which the defense harps.[34] There was conspiracy in this case, however, as shown by the concerted manner in which accusedappellant and his companions entered the Saycon compound and later withdrew from it and the way they attacked the security guard and the houseboy. Regardless of the part of accused-appellant in the stabbing of the guard and the wounding of the houseboy, he is liable because of the rule in conspiracy that the act of one is the act of all. [35] Moreover, what the prosecution lacked by way of an eyewitness was made up by the circumstantial evidence in the record of this case.[36]As provided in Sec. 4 of Rule 133 of the Revised Rules on Evidence, circumstantial evidence is sufficient for conviction 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. In this case it is established that (1) accused-appellant was present at the scene of the crime; (2) he had a bladed weapon in his possession and displayed a readiness to use the same when he stabbed Joey Rodriguez; (3) Climaco died due to multiple stab wounds; (4) bloodstains were found on the wall separating the Saycon compound from the house of accused-appellant;[37]and (5) accused-appellant fled to Bulacan thereafter. His flight is evidence of his guilt.[38] It is logical to infer from all these circumstances that accused-appellant was among those who inflicted fatal wounds on Climaco. As noted in People v. Abitona,[39] facts or circumstances which are not only consistent with the guilt of the accused but also inconsistent with his innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court. 3. Upon the facts thus established the Court is convinced that accused-appellant is guilty of robbery with homicide. While accused-appellant and his companions failed to rob the Saycons, the fact is that they took the gun of the security guard for the purpose of gain. Since the group in addition killed the guard, the crime committed is the complex one of robbery with homicide. It is not necessary that the person robbed be the same person whom the malefactors originally intended to rob. In People v. Ga,[40] the accused planned to rob a house at Forbes Park in Makati. They killed the house owner, Don Julio Gonzaga, and his wife and houseboy and seriously wounded his daughter and, as help was coming, they fled without being able to take anything from the house. Instead they took a wristwatch and transistor radio belonging to a houseboy. It was held that the crime was robbery with homicide.

In People v. Balanag,[41] the accused entered the house of Dr. Guillermo Lopez, Sr. and then killed him for having filed a case against one of the accused. They fled after taking with them a shoulder bag of Dr. Lopez's daughter, Genoveva. This was also held to be robbery with homicide. Nor is it necessary to show that the sole purpose was robbery and by reason thereof homicide was committed. Article 294 of the Revised Penal Code provides that there is robbery with homicide not only when "by reason of the robbery" homicide is committed but also when "on the occasion" thereof homicide is committed. If robbery and homicide are committed on the same occasion, the special complex crime is deemed committed. Thus, in People v. Pamintuan,[42] the accused, who were detention prisoners, escaped from jail, killing jail guards and taking firearms from the armory. They were found guilty of robbery with homicide. In People v. Tolentino,[43] three individuals were creating trouble in a store. When a policeman across the street was summoned for help by the storeowner, the three turned to him and ganged up on him. The accused took the service revolver of the policeman and shot him and then fled with the gun. It was contended that the taking of the gun was a mere afterthought and that to prove robbery with homicide the prosecution must show that the robbery preceded the killing. In rejecting this contention, we held: "The contentions of the accused-appellant are untenable. The testimony of Lourdes Santos clearly shows that there was an intent to rob the victim of his gun. The gun was first taken from the victim before he was killed. The gun was then taken away and hidden. Nevertheless, whether or not the taking was before or after the death of the victim is of no moment in this case. It is immaterial that homicide preceded the robbery where robbery was the real motive of the culprits. (People v. Gapasin 145 SCRA 178). In the case at bar, the accused intended both to take the gun and kill the victim." In another case, People v. Hasiron,[44] three individuals, one of whom was the accused, went to the house of the victim and, when told that he was asleep, left with the advice that they would return. An hour later they returned. They talked with the victim outside his house and after awhile one of the trio shot the victim, another one went inside his house and took his M-16 Armalite, while the accused took the victim's service pistol which was tucked in his waist. It was contended that robbery was not the primary motive because if this had been their intention, they would have robbed the victim of his guns the first time they came. Indeed, the trial court said that the groups' purpose in looking for the victim was to "confront [him] about something." But the contention was dismissed. Finding the accused guilty of robbery with homicide, this Court said: "[T]here is no reasonable doubt that a principal (though not necessarily the only) objective of the malefactors was to take away the firearms in the possession of the deceased policeman. They evidently knew that Abdulmonim had a firearm in his house, apart from the handgun tucked in his waist; Jerry Hayudini promptly and unerringly went inside the Aspi house and secured the M-16 armalite, while appellant pulled out the handgun from Abdulmonim's waist." 4. Now as to the penalty. Republic Act No. 7659, which took effect December 31, 1993, amended Article 294 of the Revised Penal Code as follows: "Sec. 9. Article 294 of the same Code is hereby amended to read as follows: 'Article 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: '1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson."' It provides in Section 23: "SEC. 23. Article 62 of the same Code, as amended, is hereby amended to read as follows: 'Art. 62. Effects of the attendance of mitigating or aggravating circumstances and of habitual delinquency .- Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules: '1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty.

'1(a). When the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances. 'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. 'An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime. x x x"' On the basis of these provisions, the trial court imposed on accused-appellant the death penalty. We hold that the trial court erred in finding that accused-appellant and his companions constituted a syndicated or an organized crime group within the meaning of Article 62, as amended. While it is true they confederated and mutually helped one another for the purpose of gain, there is no proof that they were a group organized for the general purpose of committing crimes for gain, which is the essence of a syndicated or organized crime group. The following exchange between Senator Tolentino and Senator Guingona during the deliberation on what is now Art. 62, paragraph 1(a) of the Revised Penal Code is enlightening:[45] "Senator Guingona. May we know the difference between the offense committed by a syndicated crime group and one which is committed by conspiracy of two or more persons. "Senator Tolentino. Mr. President, the syndicated crime is something like an offense by a group actually for gain purposes. In case of conspiracy, that is not necessarily so. "Senator Guingona. So that, that is the only difference. "Senator Tolentino. The difference, of course, is that in the case of syndicated crime, the group is an organized group, while such organization is not required in the case of mere conspiracy. Two or more persons just agree to commit a crime, we have a conspiracy, while in the case of a syndicate there is a group that is actually organized for crime purposes. "Senator Guingona. How about the difference between the syndicated group and a band in case of specific crimes against persons and property? "Senator Tolentino. Well, in the case of a band that means all of them participate in the commission of the offense. All the members, I think, four or more participate in the commission of the offense. But in the case of a syndicated crime, maybe one member of the group alone commits a crime, while in the organized group one or two members may commit the crime. "xxx xxx xxx

"Senator Guingona. Yes, but as can be gleaned from the answer of the distinguished Sponsor, only those who actually commit the offense would be the one liable for this aggravating circumstance. Those who know but do not participate are not principals, and even if they are members of the syndicate, they will not be held liable. "My question is: Would the same situation not arise if we say that conspiracy would qualify the offense instead of having a syndicated crime here where the member of the syndicated group, who does not participate, is not liable? "Senator Tolentino. Mr. President, I think the concept of syndicate here is different from conspiracy. Two or more persons may conspire to commit robbery. All right. That is a particular offense. But in the case of a syndicate, the concept here is a group that is organized for commission of crimes, not only a particular crime, but of crimes. So, there is a big difference between the conspiracy and the syndicate. "Now, if the idea of the distinguished President Pro Tempore is to make the mere fact of conspiracy an aggravating circumstance, well, that is another matter. We can have that as a proposal later on. But mere conspiracy does not constitute a syndicate as conceived in this provision that we are presenting. "Senator Guingona. So that if two or more persons get together and decide to commit one crime only, that is not a syndicate. "Senator Tolentino. That is not a syndicate. That is a conspiracy. "xxx xxx xxx

"Senator Guingona. That is why under the circumstances, if there is a conspiracy to sell prohibited drugs, under the principle of conspiracy, the liability of the seller would be equally applied to the liability of the financier or to the importer. "Senator Tolentino. But if they are not syndicate, there is no aggravating circumstance. They are all liable equally, but there is no aggravating circumstance.

"Senator Guingona. Precisely. Can we not change or instead of amending the conspiracy concept, apply that and say that conspiracy will now be considered as the qualifying aggravating circumstance? In that way, all will have the same liability, and it is up to the individual person to put up the defense and say: 'I did not know. I was a part of the syndicate, but I was only doing something that I thought was confined to this.' "Senator Tolentino. Mr. President, if what the distinguished Gentleman means that instead of 'who belongs to an organized or syndicated crime group, we just have to say 'who is a part of conspiracy, that will not carry the intent of this provision. Because that means, whenever there is an agreement between two or more persons to commit a particular crime at one time, we already increase the penalty. That is not the idea of this. The idea of this proposal is that this group actually engages in the commission of crimes, not just a particular crime. "As in the case already mentioned by the distinguished Gentleman, there is a syndicate, but one group commits the crime of selling; another group commits the crime of importing; another group commits the crime of planting drugs. There are different crimes committed by a single group that is organized for that purpose. "But when we talk of conspiracy, we mean an agreement between two or more persons to commit a particular crime. I do not think the Gentleman can raise that to a level of making it an aggravating circumstance because there is no reason for it. The reason in the syndicated crime is that it is practically a profession that is being adopted by a group. "Senator Guingona. Must there be more than one offense planned? "Senator Tolentino. Maybe, several in the future, not in a particular instance. "Here is a syndicate that may commit one crime now; another crime tomorrow; another crime two days afterwards. It is really a crime group." What emerges from this discussion is the idea of a group of persons, at least two in number, which is organized for the purpose of committing crimes for gain. In the case at bar, while the evidence shows that accused-appellant and his companions planned to rob the Saycons, there is no evidence that they were organized for the purpose of committing crimes for gain. There was a conspiracy to commit robbery but not a syndicated or organized crime group. The foregoing is the opinion of nine (9) members of the Court, five (5) of whom believe that the aggravating circumstance of nighttime should have been appreciated by the trial court. To them it is clear that accused-appellant and his companions waited until it was midnight of April 10, 1994 before carrying out their plan, the better to ensure its success. As earlier noted, three of accusedappellant's companions (Alcober, Clariza and Demson) arrived at 7:00 o'clock in the evening of April 10, 1994 in the house of accused-appellant. But the group did not then go into action. At 10:00 o'clock the other two (Aruta and Caenghog) arrived to join the group. Still the group did not strike. They waited until midnight before they did. All the time, the group was looking over the wall, Evidently accused-appellant and his group were waiting until the occupants of the house had retired for the night. Even viewed objectively, it can be said that nighttime greatly facilitated the commission of the crime because with people asleep, the possibility of resistance from the occupants of the house and help from the neighbors was considerably diminished. As held in People v. Alcala:[46] "While it does not positively appear that the accused sought the nighttime for the perpetration of the crime, the fact is that they at least took advantage of it, for they approached the house at an early time, and yet they did not commit the crime until late in the night. This is sufficient in order that the aggravating circumstance of nocturnity may be held to exist. (U.S. vs. Billedo, 32 Phil., 574.)" Since there is no mitigating circumstance to offset the aggravating circumstance of nighttime, in the opinion of the five (5) Justices the greater penalty (i.e., death) must be imposed on accused-appellant, in accordance with Article 63, paragraph 2, no. 1 which provides that when only an aggravating circumstance is present in the commission of an offense, the penalty for which is composed of two indivisible penalties, the greater penalty should be imposed. Since the votes of the five (5) Justices fall short of the majority of eight (8) votes needed to affirm the sentence of death of the trial court, the penalty of reclusion perpetua should be imposed on accused-appellant in accordance with Article 47 of the Revised Penal Code, as amended by Republic Act No. 7659. On the other hand, four (4) of the Justices, while holding that accused-appellant is guilty of robbery with homicide, do not agree that nighttime was sought in this case in order to facilitate the commission of the crime and therefore they vote to impose on accusedappellant the penalty ofreclusion perpetua. The remaining six (6) other Justices believe that accused-appellant is guilty only of the separate crimes of homicide and physical injuries. Of these six, four (4) believe that nighttime should be appreciated as an aggravating circumstance, while two (2) do not think it should. Two (2) of the six (6) Justices, with whom the other four (4) concurred (so far as the two find the crimes committed to be homicide and physical injuries), expressed different reasons for their dissents. One said:

[1] "In People vs. Galit (135 SCRA 465 [1985]), it was held that to satisfy the constitutional guarantees accorded a person under custodial investigation, 'there should be several short and clear questions and every right explained in simple words.' The warning given to the accused-appellant in the form of two paragraphs falls short of this requirement. He was not informed by the investigator of his right to a competent and independent counsel of his choice. Neither was he asked whether he has a counsel of his choice, nor was he given an opportunity to look for one." [2] "My reading of the PAGPAUBAYA suggests that he waived not just the right to remain silent but also the right to counsel. However, as can be gleaned from his certification, Atty. Abrenica did nothing as a procured lawyer; he remained as a mere stolid witness to an act of a lowlytaho vendor, which could seal the latter's destiny with death. [The Constitution] requires of the counsel a meaningful presence consisting of a sincere effort to explain further to the subject the significance, import, and consequences of the waiver." [3] "Even assuming that the extrajudicial confession spoke the truth and was not extracted by means of violence or intimidation, the denial of the accused-appellant's right to a competent and independent counsel or the absence of effective legal assistance when he waived his constitutional rights rendered the confession inadmissible pursuant to Section 12(3), Article II of the 1987 Constitution." The other said: [1] "The NBI ought to have given him reasonable opportunity to get a lawyer of his confidence thru his family or friends before extracting his confession. The police practice of calling any lawyer on-sight to assist a suspect under custodial investigation should be discontinued. x x x For generally, these on-sight lawyers give their services free and understandably lack the enthusiasm to defend the rights of an accused. Atty. Abrenica appears to belong to this variety. x x x The records do not show how well he advised appellant of his rights. Indeed, he did not even appear during the trial to enlighten the court of the extent of his legal services to the appellant. When the crime is heinous and punishable by death, it behooves this Court to be strict in safeguarding the right to counsel of the accused. It can spell the difference between life and death." [2] "Even assuming that the appellant was not denied the right to counsel, x x x he should only be convicted for the separate crimes of homicide and physical injuries. x x x They failed to consummate their conspiracy because of the intervention of security guard Felipe "Philip" Climaco and houseboy Joey Rodriguez. On the occasion of said attempted robbery, accused-appellant and his companions stabbed Climaco and Rodriguez. Climaco died while Rodriguez sustained serious physical injuries. x x x "The taking of Climaco's gun cannot be complexed with the stabbing of Climaco and Rodriguez to constitute robbery with homicide. Before they entered the premises, the group had no intention of robbing Climaco of his gun. It was only Darius, one of the companions of accused-appellant, who seized Climaco's gun after they had killed him. His act was merely an afterthought. x x x "The facts in People vs. Tolentino and People vs. Hasiron are different from the case at bar. In those cases, the intent to rob the victims is clear and the killing was only incidental to the robbery. x x x "The taking [by another malefactor] of Climaco's gun constitutes theft. Be that as it may, accused-appellant cannot be held liable for theft because that is not the object of the conspiracy. The evidence shows that the group only conspired to rob the Saycon residence. The rule is that conspirators are liable only for acts done pursuant to the conspiracy. x x x" WHEREFORE, the decision of Branch 104 of the Regional Trial Court of Quezon City, so far as it finds the accused-appellant guilty of robbery with homicide is, AFFIRMED with the modification that the penalty of reclusion perpetua is imposed on him for lack of necessary votes to affirm the death sentence. SO ORDERED.

(30) PETER PAUL ABALLE Y MENDOZA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE JUDGE BERNARDO V. SALUDARES, respondents. [G.R. No. L-64086 March 15, 1990] FERNAN, C.J.: This is a direct appeal from the decision of the then Court of First Instance of Davao City, Branch II, finding petitioner Peter Paul Aballe y Mendoza guilty of homicide and sentencing him to an indeterminate penalty of eight (8) years and one (1) day of prision mayor to sixteen (16) years of reclusion temporal with all the accessory penalties and ordering him to indemnify the heirs of the deceased Jennie Banguis y Aquino in the amount of P12,000.00 and to pay the amount of P5,000.00 as actual and compensatory damages. 1 At around seven o'clock in the evening of November 7, 1980 in Saypon, Toril, Davao City, Quirino Banguis, a 42-year old driver, attended a birthday party at the residence of his neighbor Aguilles Mora. He brought along his wife and other children, leaving his 12-year-old daughter Jennie alone in their house. 2 Upon their return at around 8:30 that same night, Quirino found Jennie in the sala, lying prostrate, bathed in her own blood with multiple wounds on different parts of her body. There were no eyewitnesses to the bizarre killing. The postmortem report disclosed that Jennie sustained a total of thirty-two (32) stab wounds. Cause of death was attributed to hemorrhage secondary to multiple stab wounds. 3 At daybreak of the following day, November 8, 1980, acting on information furnished by the victim's father, a police team headed by Sergeant Herminigildo Marante sought the accused Peter Paul Aballe for questioning. They found him just as he was coming out of the communal bathroom in Saypon and wearing what appeared to be a bloodstained T-shirt. Upon seeing Sgt. Marante, the accused without anyone asking him, orally admitted that he killed Jennie Banguis. Sgt. Marante subsequently brought him to the Toril police station for interrogation. While under custodial investigation, Aballe, 17 years old, a school dropout (he finished second year high school) and next door neighbor of the victim, brought the police to his house and pointed to them the pot at the "bangera" where he had concealed the death weapon which was a four-inch kitchen knife. 4 Also taken from Aballe was the bloodstained red and white striped T-shirt which he claimed he wore during the commission of the crime. 5 Aballe also made an extrajudicial confession admitting his guilt in killing Jennie while under the influence of liquor and marijuana. 6 The sworn affidavit in the main reads as follows: Preliminary Question: Mr. Aballe, you are under investigation in connection with an offense. Any statement you may give may be use (sic) for or against you in court in the future. Under our New Constitution, you have the right to remain silent and the right to the presence and assistance of a counsel of your own choice, do you understand? Do you waive all these rights? Answer: Yes sir. Q After apprising you of your rights under our new Constitution, do you still wish to proceed with this investigation? A Yes sir. Q Are you willing to waive all these rights? A Yes sir. . . . Q If so will you please state your name and other personal circumstances. A Peter Paul Aballe y Mendoza, 17 years old, single, a high school drop out, jobless and presently residing at Saypon, Crossing Bayabas, Toril, Davao City. Q Are you aware on why you are in this Office?

A I am here sir in connection with the death of a minor JENNY BANGUIS Y AQUINO, our neighbor in the night of November 7, 1980. Q What do you know about the death of the said JENNY BANGUIS? A I was the one who killed her sir while she was sleeping alone at their residence by stabbing her with the use of a kitchen knife for several times while I was under the influence of liquor and marijuana at about 6:30 P.M. November 7, 1980. Q Where did you get the said marijuana you were referring to? A From one alias Dodong Flores who sold it to me for Fifteen pesos (P15.00) per match box. Q Showing you this kitchen knife and this blooded ( sic) T-shirt, (Investigator showing the subject a kitchen knife measuring about (4) inches in length with a wooden handle and a striped T-shirt with blood stains) can you identify this ( sic)? A That is the very same knife sir I used in stabbing JENNY BANGUlS and that was the T-shirt I wore during the incident. Q Do you have any standing grudge with the said JENNY? A No sir, for I only stabbed her when she slapped me after I woke her up at their residence where she was sleeping alone. Q You mean to say that you just stabbed her because she slapped you when you woke her up? A Yes sir, and I was not at my right sense for I was under influence of liquor and the marijuana I took. Q After you have stabbed her, where did you go? A I went to watch television at the residence of one Alias Ma at Saypon, Crossing Bayabas, Toril, Davao City and I only knew that the said JENNY BANGUIS was dead the morning after and I was apprehended by the Police and was brought to this office. Q I have no more to ask, do you have something more to say in investigation? A No more sir. Q Are you willing to affix your signature in this statement signifying veracity to the best of your knowledge and belief ? A Yes sir, . . . . 7 Whereupon, an information was filed against Aballe, charging him with homicide penalized under Article 249 of the Revised Penal Code. 8 At his arraignment on April 13, 1981, he pleaded not guilty. 9 He also disavowed his extrajudicial confession on the ground that it was obtained through coercion and in the absence of counsel. Aballe's repudiation of his earlier confession notwithstanding, the trial court convicted the accused of the crime of homicide. 10 In this petition for review on certiorari, Aballe contends that the trial court erred in giving full weight to his extrajudicial confession taken during custodial investigation and in imposing a penalty which was not in accordance with law. The argument that Aballe's extrajudicial admission should have been disregarded by the lower court for having been obtained in violation of Aballe's constitutional rights is well taken. Throughout the custodial interrogation, the accused's parents and relatives were almost always around but at no stage of the entire proceedings was it shown that the youthful offender was ever represented by

counsel. Since the execution of the extrajudicial statement 11was admittedly made in the absence of counsel, whether de oficio or de parte, and the waiver of counsel was not made with the assistance of counsel as mandated by the provisions of Section 20, Article IV of the 1973 Constitution, said confession should have been discarded by the lower court. 12 Indeed, equally inadmissible is the kitchen knife 13 recovered from Aballe after his capture and after the police had started to question him. Together with the extrajudicial confession, the fatal weapon is but a fruit of a constitutionally infirmed interrogation and must consequently be disallowed. The bloodstained T-shirt, 14 however, is admissible, being in the nature of an evidence in plain view 15 which an arresting officer may take and introduce in evidence. The prevailing rule in this jurisdiction is that "an officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the cause . . ." 16 But even with the exclusion of the extrajudicial confession and the fatal weapon we agree with the trial court that the guilt of the accused has been established beyond reasonable doubt. It is well to note that even before the taking of the extrajudicial confession, the accused, upon being picked up in the morning of November 8, 1980 as he was coming out of the communal bathroom and wearing a T-shirt covered with bloodstains which he tried to cover with his hands, suddenly broke down and knelt before Sgt. Marante and confessed that he killed Jennie Banguis. The testimony of Sgt. Marante on Aballe's oral confession is competent evidence to positively link the accused to the aforesaid killing. His testimony reads in part: Q: In the morning of November 8, 1980, where were you at that time? A: At the police station. Q: And could you tell us of any unusual incident? A: The father of the deceased came to the office and he told us that he suspected somebody whom he observed to be suspicious so we responded immediately to the call of assistance of the father and went back to the scene of the incident and asked for the whereabouts of the person whom he confided to us the name. Q: And what did you find out? A: Somebody told us that the subject was still in a common bathroom so I posted myself outside the bathroom. Q: This subject you are referring to Sgt. Marante, who is he? A: Peter Paul Aballe. xxx xxx xxx Q: And after finding out that . . . ah, by the way, where was the bathroom? A: It was a common bathroom located just a few meters away from infront of his house. xxx xxx xxx Q: And when you found out that the subject was still in the bathroom what did you do? A: I waited until he came out. Q: And did that person come outside? A: Yes, sir. Q: Is he the accused?

A: Yes, sir. Q: What happened next? A: I saw bloodstains in his T-shirt and I pointed to the bloodstain and he tried to cover it and I notice again that he had a swollen knuckle and I asked him what is this and then he broke down, held my hand, knelt down and confessed that he was the one who killed the victim and I said you stop that because whatever you will say now might led ( sic) you to jail and he continued and so I asked him where is (sic) his parents and the mother was nowhere to be found and I asked for his relatives and they accompanied him to the police station. At the police station the mother later arrived and I told her that your son confessed to the commission of the crime. Q: And in the station what did you do per your procedure? A: As I was appraising (sic) him or asking him in front of her ( sic) mother I still repeated the same thing. I appraised (sic) him if he needs a lawyer and he said he does not need a lawyer because he just wanted to tell the truth. And in the course, I called the desk officer to record what he mentioned as to the commission of the crime. Q: Aside from the admission of the accused in this case what other physical objects of the crime were you able to recover? A: I was able to recover the fatal weapon, the knife. Q: Where? A: From the house of the accused. Q: Who gave it to you? A: The accused himself. Q: What else? A: The T-shirt with bloodstain. Q: Where is the knife now? A: In the possession of the desk officer in Toril. Q: And also the T-shirt? A: Yes sir. Q: So after interviewing the accused, what other procedure followed? A: The accused was indorsed to the office investigator to take down the statement of said accused. xxx xxx xxx Q: When did you apprehend the accused, while he was inside or already outside the bathroom? A: He was coming out. xxx xxx xxx

Q: What was he wearing? A: T-shirt with bloodstain on the breast that is why I asked him immediately what is this and I pointed to the bloodstain. Q: Mr. Marante you immediately asked or rather you informed the accused immediately of the death of Jennie Banguis after getting out of the bathroom? A: He confessed to me. Q: You just answer the question, did you inform him? A: No, I did not. Q: So without informing him about it as you said he immediately confessed. A: Yes, sir. Q: At that time were you in your police uniform? A: No, I was in civilian. Q: Without even introducing yourself at that time is was only after bringing the accused to the police station did he know that you were a Deputy District Commander of the police in Toril? A: Probably yes. 17 "The declaration of an accused expressly acknowledging his guilt of the offenses charged may be given in evidence against him." 18 The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance. (23 C.J.S. 196) 19 Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally admitted having slain the victim. 20 The penalty decreed by the lower court must however be modified. The killing of Jennie is mitigated by minority (the accused was born on June 29, 1963), but it is aggravated by dwelling since Jennie was fatally stabbed while in her parents' house, a fact overlooked by the trial court. Not having been alleged in the information, dwelling is considered generic and cannot therefore offset minority which is a privileged mitigating circumstance. The imposable penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. For being only 17 years, 4 months and 8 days of age at the time of the commission of the offense, the penalty next lower than that prescribed by law shall be imposed on the accused but always in the proper period. With the aggravating circumstance of dwelling, the penalty is imposable in its maximum period or from ten (10) years and one (1) day to twelve (12) years or prision mayor maximum. 21 Applying the Indeterminate Sentence Law, the range of the penalty next lower is from six (6) months and one (1) day to six (6) years of prision correccional. WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED with the penalty modified to an indeterminate sentence of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum. The civil indemnity is increased to P30,000.00 in accordance with recent jurisprudence. Costs against the accused Peter Paul Aballe. SO ORDERED.

(31) THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. EDUARDO P. CAGUIOA Judge, Court of First Instance of Bulacan, Branch VII, and PAQUITO YUPO, respondents. [G.R. No. L-38975 January 17, 1980] FERNANDO, C.J.: It is not easy to make out a case of improvident exercise of authority on the part of a lower court when the assailed actuation was clearly inspired by a desire to adhere to the literal and explicit mandate of the Constitution. That is the difficulty confronting the prosecution when it filed this certiorari proceeding resulting from respondent Judge Eduardo P. Caguioa sustaining the objection of the defense to questions asked a witness based on an alleged extrajudicial admission by an accused private respondent Paquito Yupo, during a police interrogation conducted on July 18, 1973, without his having been assisted by counsel. There was, in the opinion of respondent Judge, a clear failure to abide by the express prohibition in the fundamental law against the possibility of any confession obtained from a person under investigation without his having been informed of his right to keep silent and to have the benefit of counsel. 1 Clearly then, the leading case of Magtoto v. Manguera 2 does not apply. the interrogation having taken place six months after the effectivity Of the present Constitution. The prosecution would deny its applicability, contending that there was a waiver. Respondent Judge was of the view that this innovation in the Constitution, intended to buttress and fortify the right against selfincrimination, was not susceptible of waiver. When he remained firm in his stand, the petition was filed, a grave abuse of discretion being imputed to him. According to the petition, the Provincial Fiscal of Bulacan filed on September 14, 1973, in the Court of First Instance of Bulacan, an information for murder against Paquito Yupo y Gonzales, which was docketed as Criminal Case No. 146-V-73, with the case, after the raffle, being assigned to Branch VIII, presided by respondent Judge. 3Upon arraignment on October 5, 1973, the accused pleaded not guilty. 4 The trial of the case then proceeded, the prosecution having presented six witnesses, including the father of the deceased, Miguel Tribol, and his common-law wife, Lydia Begnotia who allegedly received the ante mortem statement of the victim, Rodolfo Tribol. 5 Then, at the hearing on June 3, 1974, the prosecution presented Corporal Conrado Roca of the Meycauayan Police Department, before whom a written statement of the accused Paquito Yupo and his alleged waiver of his right to remain silent and to be assisted by a counsel of his own choice was taken. 6 After this witness had Identified the statement of the accused and the waiver, he was questioned on the incriminating answers in such statement to the police, but there was an objection on the part of the defense counsel based on the ground of such statement being inadmissible in evidence, as the statement was taken by the police without any counsel assisting the accused in the investigation. 7 Respondent Judge sustained the objection of the defense on the view that such judicial confession of the accused is inadmissible in evidence for being unconstitutional, it appearing that the accused was not assisted by a counsel when it was given. 8 He likewise stated that such right could not be waived. 9 Upon his refuse to reconsider such ruling, this petition was filed. Certiorari does not lie. The petition must be dismissed. It was not shown that the alleged waiver was given freely and voluntarily. The questioning was rather perfunctory. An even more telling circumstance against such alleged waiver being given credence was that private respondent, a native of Samar, then nineteen years old, was interrogated extensively in Tagalog, no showing having been made that his acquaintance with the language was such that he could fully understand the import of what was asked him. On the specific question of whether or not the right to counsel during custodial interrogation interrogation may be waived, the Court rules that there is no bar to such a waiver if made intelligently and voluntarily, with full understanding of its consequences. 1. As far back as Abriol v. Homeres, 10 a 1949 decision, decided under the 1935 Constitution, which did not contain a provision similar to Section 20 which adopted the Miranda doctrine, this Court, through Justice Ozaeta, relying on the leading American case of Johnson v. Zerbst, 11 made clear that while there could be a waiver of the rights of an accused, it must be intelligently waived, otherwise a court's jurisdiction starting at the banning of the trial may be lost in the course of the proceeding. 12 The landmark opinion of Miranda v. Arizona, 13 decided in 1966, as noted above, the source of this constitutional provision, emphasized that statements made during the period of custodial interrogation to be admissible require a clear intelligent waiver of constitutional rights, the suspect being warned prior to questioning that he has a right to remain silent, that any utterance may be used against him and that he has the right to the presence of a counsel, either retained or appointed. In the language of Chief Justice Warren: "Our holding win be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean 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. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does not make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning.

Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." 14 2. Tested by such a clear and unequivocal standard, the alleged waiver falls far short. It is clearly inadmissible. There was a perfunctory opening statement asked by a certain Corporal Conrado B. Roca of the Police Force of Meycauayan, worded thus: "Ipinaaalam ko sa iyo na ikaw ay sinisiyasat tungkol sa isang paglabag sa batas na iyong ginawa, bago ko ipagpatuloy ang pagtatanong sa iyo, ikaw ay may karapatan na huwag magsalita kung ayaw mo at may karapatan ka rin na magkaroon ng abogado na iyong gusto at dapat mo ring mabatid na anuman ang sabihin mo dito ay maaaring gamitin ng ayon o laban sa iyo, magsasalaysay ka pa rin ba?" 15 Then came the monosyllabic answer Opo. That was ala Even the very annex submitted to the petition merely stated that there were signatures of private respondent Yupo, the aforesaid Roca, and a certain Roberto Sales. The day when it was subscribed and sworn to, allegedly before Municipal Judge Mariano Mendieta was not even specified. Again, there was a statement that it was a certified true copy by a certain Teresita M. Tecson, whose connection with the case or with the court was not even shown. There was no signature. There were only illegible letters, perhaps indicating that they were the initials. The doubt that must have occurred to the police officials of Meycauayan is evident from their submitting a one-page statement, presumably signed by the same people and certified by the same Tecson, reading in fun as follows: " [Sa sinumang Kinauukulan lpinabasa, ipinaalam at naintindihan ni Paquito Yupo y Gonzales], 19 na taong gulang, binata tubo sa San Policarpio, Eastern Samar ang nasa ibaba nito '[Ikaw ay sinisiyasat ngayon dahilan sa paglabag sa batas. Karapatan mo ang huwag magsalita. Anumang iyong sasabihin ay maaring gamiting katibayan laban sa iyo. At ikaw ay may karapatan sa tulong at sa pagharap ng abogado na iyong napipisil sa habila ng kabatiran ni [Paquito Yupo ng mga nilalaman ng nasa itaas, siya ay nagbigay pa rin ng salaysay .," 16 Could it be their way of trying to impress on a court the fact that there was an in waiver? If so, it did not cure the fatal infirmity. Rather the contrary. 3. People v. Bacong 17 stands as a warning against imputing to an accused an understanding of the proceeding when the language used is one with which he is not familiar. The point at issue was whether there was an improvident plea of guilt. It was stressed in the brief filed on behalf of the accused that he " 'is an ignorant and illiterate person, a neophyte in the national penitentiary, and one fully conversant [only] with his native Visayan. This is apparent from his statement thus: "26. T Marunong ka bang bumasa at sumulat ng wikang tagalog? & Naka uunawa po ako sir, pero hindi po ako masyadong marunong, ang tangi ko pong naiisulat ay ang aking pangalan " ... An observation and closer look [at] his signature indeed reveals that the accused is an illiterate and unschooled person. The strokes of his signature are irregular, halting, and show a difficult and laborious effort to write the letters of his name. ... In his signature on file with this Honorable Court, the same observations can be made. ... Admittedly, the accused is a Visayan and still a neophyte in the national penitentiary who does not understand well Tagalog. ... We cannot expect the accused to have fully understood the legal signification of these qualifying circumstances, which allegations had been the subject of various interpretations of our courts. ...' " 18 As a matter of fact in that case, Solicitor General Estelito P. Mendoza, in lieu of appellant's brief filed a manifestation admitting that there was an improvident plea of guilt and that judgment should be set aside. In that case, there was an effort to ascertain whether the accused could read and write in Tagalog' In this case, the private respondent, a Visayan, was asked a kilometric question in Tagalog, and the interrogator was satisfied with the monosyllabic Opo. Also, the failure to submit to this Court the alleged signature of private respondent may be indicative of the fear on the part of counsel for petitioner that the absence of education of the nineteen-year old private respondent would be apparent. At any rate, it cannot be denied that to predicate a waiver under the circumstances disclosed would be to nullify the plain command of the constitutional provision requiring that a confession to be admissible must be given only if the accused were informed of his right to remain silent and to counsel; otherwise, it is "inadmissible in character." The lower court, therefore, acted in accordance with the plain dictate of the Constitution. To quote from that eminent civil libertarian Justice Douglas: "Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for inquisitorial practices and make an empty form of [constitutional rights]." 19 WHEREFORE, the petition for certiorari is dismissed. The trial of the case is ordered to be resumed forthwith No costs.

(32) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ENCARNACION MALIMIT alias "MANOLO", accusedappellant. [G.R. No. 109775 November 14, 1996] FRANCISCO, J.: Appellant Jose Encarnacion Malimit, charged with 1 and convicted of the special complex crime of robbery with homicide, 2 was meted by the trial court 3 the penalty of reclusion perpetua. He was also ordered to indemnify the heirs of Onofre Malaki the sum of Fifty Thousand Pesos (P50,000.00) without subsidiary imprisonment in case of insolvency, and to pay the cost. 4 In this appeal, appellant asks for his acquittal alleging that the trial court committed the following errors, to wit: I THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE PROSECUTION WITNESSES ON THEIR ALLEGED IDENTIFICATION OF THE ACCUSED-APPELLANT AS THE PERPETRATOR OF THE CRIME DESPITE THE FACT (SIC) THEY REVEALED THEIR ALLEGED "KNOWLEDGE" OF TH6E CRIME MORE THAN FIVE MONTHS AFTER THE INCIDENT. II THE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE WALLET AND ITS CONTENTS ALTHOUGH THE CIRCUMSTANCES WHICH LEAD TO ITS PRODUCTION WAS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED. III THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 5 The following is the recital of facts as summarized by the appellee in its Brief, and duly supported by the evidence on record: On April 15, 1991, around 8:00 o'clock in the evening, [Onofre] Malaki was attending to his store. Malaki's houseboy Edilberto Batin, on the other hand, was busy cooking chicken for supper at the kitchen located at the back of the store (TSN, June 19, 199 (sic), p. 14). Soon thereafter, Florencio Rondon, a farmer, arrived at the store of Malaki. Rondon was to purchase chemical for his rice farm (TSN, May 22, 1992, p. 19). Rondon came from his house, approximately one hundred and fifty (150) meters distant from Malaki's store (Ibid., p. 24). Meanwhile, Batin had just finished cooking and from the kitchen, he proceeded directly to the store to ask his employer (Malaki) if supper is to be prepared. As Batin stepped inside the store, he was taken aback when he saw appellant coming out of the store with a bolo (TSN, June 9, 1992, p. 14), while his boss, bathed in his own blood, was sprawled on the floor "struggling for his life" (hovering between life and death) (Ibid.). Rondon, who was outside and barely five (5) meters away from the store, also saw appellant Jose Malimit (or "Manolo") rushing out through the front door of Malaki's store with a blood-stained bolo (TSN, May 22, 1992, p. 29). Aided by the illumination coming from a pressure lamp ("petromax") inside the store, Rondon clearly recognized Malimit (Ibid., p. 22). Batin immediately went out of the store to seek help. Outside the store, he met Rondon (TSN, June 9, 1992, p. 15). After a brief conversation, both Batin and Rondon rushed to the nearby house of Malaki's brother-in-law Eutiquio Beloy and informed Beloy of the tragic incident which befell Malaki. Batin, along with Beloy, went back to the store. Inside, they saw the lifeless body of Malaki in a pool of blood lying prostrate at the floor. Beloy readily noticed that the store's drawer was opened and ransacked and the wallet of Malaki was missing from his pocket (Ibid., pp. 16-17). 6 In his first assignment of error, appellant questions the credibility of prosecution witnesses Florencio Rondon and Edilberto Batin by pointing out their alleged delay in revealing what they knew about the incident. He posits that while the crime took place on April 15, 1991, it was only on September 17, 1991 when these witnesses tagged him as the culprit.

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

(3) Any confession or admission obtained in violation of this or Sec. 17 hereof, shall be inadmissible in evidence against him. (Emphasis ours.) xxx xxx xxx These are the so-called "Miranda rights" so oftenly disregarded by our men in uniform. However, infractions thereof render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, 29 is not affected even if obtained or taken in the course of custodial investigation. Concededly, appellant was not informed of his right to remain silent and to have his own counsel by the investigating policemen during the custodial investigation. Neither did he execute a written waiver of these rights in accordance with the constitutional prescriptions. Nevertheless, these constitutional short-cuts do not affect the admissibility of Malaki's wallet, identification card, residence certificate and keys for the purpose of establishing other facts relevant to the crime. Thus, the wallet is admissible to establish the fact that it was the very wallet taken from Malaki on the night of the robbery. The identification card, residence certificate and keys found inside the wallet, on the other hand, are admissible to prove that the wallet really belongs to Malaki. Furthermore, even assuming arguendo that these pieces of evidence are inadmissible, the same will not detract from appellant's culpability considering the existence of other evidence and circumstances establishing appellant's identity and guilt as perpetrator of the crime charged. We, now come to appellant's third assignment of error where he demurs on the prosecution's evidence, contending that they are insufficient to sustain his conviction. Our close scrutiny of the record reveals otherwise. Time and again, we ruled that there can be a verdict of conviction based on circumstantial evidence when the circumstances proved form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused, to the exclusion of all the others, as the perpetrator of the crime. 30 In order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz., (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 31 In this case, there were at least five (5) circumstances constituting an unbroken chain of events which by their "concordant combination and cumulative effect", satisfy the requirements for the conviction of the appellant, 32 specifically: (1) appellant was seen by Rondon and Batin, whose credibilities were untarnished, holding a bolo in his right hand and rushing out of Malaki's store seconds prior to their discovery of the crime; 33 (2) Malaki sustained multiple stab wounds 34 and he died of "cardiac arrest, secondary to severe external hemorrhage due to multiple stab wounds", 35 (3) witness Elmer Ladica saw the appellant on August 6, 1991, accompanied by some policemen, retrieve Malaki's wallet underneath a stone at the seashore in Barangay Hingatungan; 36 (4) appellant himself admitted in his testimony that on August 6, 1991, he accompanied several policemen to the seashore where he hid Malaki's wallet; 37 and (5) appellant's flight and his subsequent disappearance from Hingatungan immediately after the incident. 38 On the other hand, appellant's version of the story does not inspire belief. He maintains that on that fateful night he was in his house together with his wife. He claims that they had just arrived from a gambling spree allegedly in the house of a certain Maui Petalcorin. Surprisingly, however, the defense did not bother to call appellant's wife to the witness stand to corroborate appellant's alibi. Neither did it present as witness Maui Petalcorin, or any other person who may have seen the appellant in the said place, if only to provide a semblance of truth to this assertion. As the defense of alibi is weak in view of the positive identification of the appellant by the prosecution witnesses,39 it becomes weaker because of the unexplained failure of the defense to present any corroboration. 40 Furthermore, proof that appellant was in his house when the crime was committed is not enough. Appellant must likewise demonstrate that he could not have been physically present at the place of the crime or in its vicinity, at the time of its commission. 41 In this case, appellant himself admitted that his house was just about eighty (80) meters away from the house of Malaki. 42 It was, therefore, not impossible for him to have been physically present at the place of the commission of the crime, as in fact, no evidence to negate this possibility was ever adduced by him at the trial. Appellant's insistence that he merely found Malaki's wallet by chance while gathering shells along the seashore, and that he feared being implicated in the crime for which reason he hid the wallet underneath a stone, hardly inspires belief. We are at a loss, just as the trial court was, as to why appellant should fear being implicated in the crime if indeed he merely found Malaki's wallet by chance. No inference can be drawn from appellant's purported apprehension other than the logical conclusion that appellant had knowledge of the crime. Besides, proof that appellant is in possession of a stolen property gives rise to a valid presumption that he stole the same. 43 In fine, as the killing of Malaki took place on the occasion of robbery, appellant was correctly convicted by the trial court of the special complex crime of robbery with homicide, defined and penalized under Article 294, paragraph 1 of the Revised Penal Code. WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED in toto. SO ORDERED.

(33) LITO C. MARCELO, petitioner, vs. THE HON. SANDIGANBAYAN (First Division) and the PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 109242. January 26, 1999] MENDOZA, J.: This is a petition for review on certiorari filed by Lito Marcelo from a decision of the Sandiganbayan (First Division)[1] convicting him and two others of qualified theft. The information against them alleges: That on or about February 17, 1989, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused, ARNOLD PASICOLAN, a public officer, being then an Emergency Laborer assigned as bag opener at the printed matters section of Makati Central Post Office, and taking advantage of his official position by having access to the mail matters in conspiracy with accused RONNIE S. ROMERO and LITO MARCELO, both private individuals, did then and there wilfully, unlawfully and feloniously with grave abuse of confidence, and with intent of gain and without the consent of the owners thereof, take, steal and carry away from the Central Post office of Makati one bag containing assorted mail matters some of them containing U.S. Dollar Bills in the aggregate amount of $500, or its peso equivalent in the amount of P11,000.00, Philippine Currency, to the damage and prejudice of the different addressee (sic) or the government in the aforesaid mentioned (sic) amount. CONTRARY TO LAW. The facts established during the trial show the following: On February 10, 1989, Jacinto Merete, a letter carrier in the Makati Central Post Office, disclosed to his chief, Projecto Tumagan, the existence of a group responsible for the pilferage of mail matter in the post office.[2] Among those mentioned by Merete were Arnold Pasicolan, an emergency laborer assigned as a bag opener in the Printed Matters Section, and Redentor Aguinaldo, a mail sorter of the Makati Post Office. Merete likewise described the modus operandi of the group. For this reason, Tumagan sought the aid of the National Bureau of Investigation (NBI) in apprehending the group responsible for mail pilferage in the Makati Post Office. On February 17, 1989, NBI Director Salvador Ranin dispatched NBI agents to Legaspi Village following a report that the group would stage a theft of mail matter on that day. Tumagan accompanied a team of NBI agents composed of Senior Agent Arles Vela and two other agents in a private car. They arrived at Legaspi Village at about 1:00 p.m. They stayed at the corner of Adelantado and Gamboa Streets, while two other teams of NBI agents waited at Amorsolo Street, near the Esguerra Building.[3] At 2:00 p.m., a postal delivery jeep, driven by one Henry Orindai, was parked in front of the Esguerra Building on Adelantado Street.[4] Esguerra Building is located between Adelantado and Amorsolo Streets. Adelantado and Amorsolo Streets are parallel to each other. The passengers of the postal delivery jeep were Arnold Pasicolan, Jacinto Merete, and the driver, Henry Orindai.[5] Pasicolan alighted from the jeep bringing with him a mail bag. Merete stayed inside the jeep. Pasicolan then passed through an alley between Esguerra and Montepino Buildings going towards Amorsolo St. [6] Montepino Building is adjacent to Esguerra Building. The two are separated by the alley. Upon reaching Amorsolo St., Pasicolan gave the mail bag to two persons, who were later identified as Ronnie Romero and petitioner Lito Marcelo. The latter transferred the contents of the mail bag ( i.e., assorted mail matter) to a travelling bag. The two then secured the bag to the back of their motorcycle. [7] Meanwhile, the NBI team led by agent Vela, upon seeing Pasicolan going towards Amorsolo St., moved their car and started towards Amorsolo St. They were just in time to see Pasicolan handing over the mail bag to Marcelo and Romero. [8] At that point, Atty. Sacaguing and Arles Vela arrested the two accused. Unaware of the arrest of Romero and Marcelo, Pasicolan went back to the postal delivery jeep and proceeded toward Pasay Road. The NBI agents followed the postal delivery jeep, overtook it, and arrested Pasicolan.[9] The NBI agents brought Pasicolan, Marcelo, and Romero to their headquarters. They also brought along with them the motorcycle of Romero and Marcelo and the bag of unsorted mail found in their possession. [10] On their way to the NBI headquarters, they passed by the Makati Central Post Office, intending to arrest another suspect, Redentor Aguinaldo. However, they were not able to find him there.[11] The unsorted mail seized from Marcelo and Romero consisted of 622 letters.[12] The names of the addressees were listed. They were subsequently notified by the Bureau of Posts to claim their letters. Many of them, after proper identification, were able to claim their letters. Some letters contained money. Romero, Marcelo, and Pasicolan were asked to affix their signatures on the envelopes of the letters. They did so in the presence of the members of the NBI Administrative and Investigative Staff and the people transacting business with the NBI at that time.

According to Director Ranin, they required the accused to do this in order to identify the letters as the very same letters confiscated from them.[13] NBI Director Ranin allegedly saw US dollar bills in various denominations of 20, 50, and 100 dollars. [14] Vela and the other NBI agents stated in their affidavits that there were dollar bills in the letters which, if converted to Philippine pesos, at the then exchange rate of P22 to US $1, were worth P11,000.00.[15] The addressees agreed to leave the envelopes of the letters with the NBI. Those letters which were not claimed were opened in court in the presence of the counsel for the defense. The letters were found to contain three (3) one dollar bills, one (1) five dollar bill, one (1) twenty dollar bill, a check for twenty-five dollars, and fifty (50) Saudi Arabian riyals.[16] Arnold Pasicolan, Ronnie Romero, and herein petitioner Lito Marcelo were charged with infidelity in the custody of documents. The case was later withdrawn and another information for qualified theft was filed before the Sandiganbayan. On March 8, 1993, the Sandiganbayan found all the accused guilty beyond reasonable doubt as principals of the crime of qualified theft. The dispositive portion of its decision reads: WHEREFORE, the Court finds the three accused, Arnold Pasicolan y Mabazza, Ronnie Romero y Santos, and Lito Mercado [should be Marcelo] y Cruz, guilty, as principals, beyond reasonable doubt of the crime of qualified theft defined in Article 310, in conjunction with Articles 308 and 309, of the Revised Penal Code. Accordingly, applying the Indeterminate Sentence Law and considering the aggravating circumstances of taking advantage of public position, the Court imposes upon Arnold Pasicolan y Mabazza the penalty ranging from EIGHT (8) years, EIGHT (8) months, and ONE (1) day of Prision mayor, as minimum, to THIRTEEN (13) YEARS, ONE (1) month, and ELEVEN (11) days of reclusion temporal, as maximum. Applying again the Indeterminate Sentence Law and there being no aggravating nor mitigating circumstances, the Court imposes upon Ronnie Romero y Santos and Lito Marcelo y Cruz, the penalty ranging from SEVEN (7) YEARS, four (4) months, and ONE (1) day of prision mayor, as minimum, to eleven (11) years, SIX (6) months, and TWENTY-ONE (21) days of prision mayor, as maximum. Hence, the instant petition for review on certiorari based on the following assignment of errors: (1) Respondent Honorable Court had wrongly made the crucial finding against petitioner that he has committed the act charged in conspiracy with each other. (2) Respondent Honorable Court erred in admitting as evidence of petitioners guilt the letters signed by the accused during custodial investigation without the assistance of counsel, in utter disregard of his constitutional right. First. Petitioner says that since the subject of the alleged pilferage was mail matter, only a government employee may be held guilty of qualified theft unless a private individual was shown to have been in conspiracy with him. He contends that since he is not a government employee, then he cannot be charged or held guilty of the crime as there is no proof that he conspired with a postal employee. The petitioner argues that there is no evidence to prove that he was at any time in conspiracy with the members of the syndicate inside the post office. In fact, petitioner points out, Jacinto Merete, Projecto Tumagan, and his co-accused Arnold Pasicolan were one in saying that it was their first time to see him and Romero on February 17, 1989. Likewise, in the meeting allegedly conducted by the members of the syndicate, he and Romero were not around nor were their names mentioned. Petitioner says that although he and Romero knew each other, it was only on February 17, 1989 that they saw each other again in order to see a movie. We cannot understand petitioners theory that, as the subject of the pilferage was mail matter, only a government employee, presumably of the postal service, can be held liable of qualified theft. What makes the theft of mail matter qualified is the fact that the subject thereof is mail matter, regardless of whether the offender is a postal employee or a private individual. This much is clear from Art. 310 of the Revised Penal Code which provides: Qualified theft. The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. Thus, as long as the thing stolen is one of those enumerated in Art. 310, the crime is qualified theft. In this case, it is mail matter. Hence, it is not necessary that petitioner be shown to have been in conspiracy with a government employee in order to hold him liable for qualified theft. Be that as it may, conspiracy was proven in this case. NBI agent Arles Vela testified that petitioner was instrumental in transferring the contents of the mail bag which Pasicolan handed to them to their travelling bag and that afterward petitioner and his co-accused Romero tied the bag to their motorcycle.

Velas testimony was corroborated by Projecto Tumagan, who likewise testified that Romero and Marcelo transferred the contents of the mail bag to their bags. Although Tumagan said petitioner and Romero had two bags, thus contradicting Velas testimony that petitioner and his co-accused had only one bag, the inconsistency in the testimonies of these two prosecution witnesses is not really of much importance. What is important is that Tumagan corroborated Velas testimony that petitioner helped in putting the letters in their bag. The discrepancy could be due to the fact that these two witnesses were inside a car and were at some distance from the persons they were observing. At any rate, during the cross-examination, Tumagan said that the contents of the mail bag were transferred to one other bag implying that there was really just one bag involved. [17] Moreover, the defense should have confronted Tumagan with this inconsistency and asked him to explain. For its failure to do so, the defense cannot for the first time raise the point in this appeal. Petitioner Marcelo showed no sign of surprise or hesitation when Pasicolan handed the mail bag to him and Romero. It was apparent he was acting pursuant to a prior agreement because when the mail bag was given to him, he got the bag and he and Romero then transferred its contents to their travelling bag. Petitioner acted in concert with Pasicolan and Romero, thus indicating he was in conspiracy with them. As the Sandiganbayan said: The accused appear to have committed the acts charged in conspiracy with each other pursuant to a pre-conceived plan known to all of them to attain a common goal. Thus, when the postal delivery jeep stopped near Esguerra Building along Adelantado Street, Pasicolan alighted bringing with him a mail bag, passed through an alley beside Esquerra Building, and upon reaching Amorsolo Street handed over the mail bag to Romero and Marcelo who were waiting for him. Upon receiving the mail bag they quickly opened it and transferred its contents to a bag which Aguinaldo provided for the purpose. No words were exchanged between Pasicolan, on the other hand, and Romero and Marcelo, on the other, in effecting the delivery. Pasicolan did not ask if Romero and/or Marcelo were the person or persons sent to receive the mail bag. These facts indicate that the three accused already knew each other and were fully aware of what each had to do. And when Romero and Marcelo were arrested for receiving the mail bag, they said nothing to the NBI. Not even a whimper of protest was heard from them. They appear resigned to their fate after having been caught red-handed. Petitioner Marcelo claimed that he and Romero met on February 17, 1989 in order to see a movie; that when Pasicolan handed four envelopes to Romero, he was across the street buying cigarettes; and that when he joined Romero, a person identifying himself as an NBI agent arrested them. Marcelo testified:[18] ATTY. CRUZ Q So you were asked by Ronnie Romero if you will be reporting for work at that time? A Yes, sir. JUSTICE HERMOSISIMA Q What time was this when you were asked by Ronnie Romero? A 1:00 oclock in the afternoon. ATTY. CRUZ Q What was the reason why you were asked by Ronnie Romero? A He wanted me to go with him to see a movie. Q Did he tell you at what place you will see a movie? A No, sir. Q What was your reply? A I told him yes, I will go with you, anyway I have to go to my work at 10:00 oclock in the evening. .... Q What happened next Mr. Marcelo? A Then I rode at the back of his motorcycle and we went straight to Makati. Suddenly we stopped near a building and I asked him what we will do there and he told me he was going to wait for somebody there. .... ATTY. CRUZ Q What was told to you when you reached there? WITNESS A He told me he had to wait for somebody there and I told him to hurry up, I thought you said we are going to see a movie, and he said, this will not take long. Q While at Taguig, were you informed by Ronnie Romero that you will be waiting for somebody when you reached Makati? A No, sir. .... Q A Q And what happened next? While we were there I told Ronnie Romero I had to buy cigarette from across the street and after a while, about half an hour, Ronnie called me I saw somebody handing him about four pieces of envelopes. How would you describe that envelope?

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

It was like the Manila envelope that we see being used by the elementary grades. Was there any distinguishing mark in this envelope? No, sir. Were you able to see what was the contents of these envelopes? No, sir. That person who handed the envelope to Ronnie, do you know him? I do not know him. While that envelope was being handed to Ronnie, you mean to say you were across the street? Yes, sir. And so you crossed the street to reach Ronnie? Yes, sir. When you crossed the street was the envelope still being handed or already handed to Ronnie? It was already handed to him. What happened next? After I crossed the street somebody shouted at us identifying himself as NBI, WE are from the NBI, do not move.

The foregoing testimony is contrary to the testimony of Ronnie Romero. Romero said that Redentor Aguinaldo, a mail sorter, had asked him to meet a person in Makati who would give him an envelope to be delivered to an unidentified person at the BF Homes Subdivision in Paraaque. Romeros version is as follows:[19] ATTY. I. CRUZ: Q And do you know a certain person by the name of Redentor Aguinaldo? JUSTICE HERMOSISIMA: Q The accusation against you is that you conspired with your co-accused Arnold Pasicolan and Lito Marcelo in stealing the articles and things stated in the Information. Why do you say that you are not part of the conspiracy, what do you mean by that statement? A Because, sir, I do not know what was the contents of the envelope. You can proceed now. ATTY. I. CRUZ: Q You mentioned of an envelope which you claim not to have known the contents of the same. Who gave you the envelope? A Arnold Pasicolan. Q Do you know Arnold Pasicolan prior to and/or before February 17, 1989? .... A No, sir. ATTY. I. CRUZ: Q When for the first time did you come to know Arnold Pasicolan? A On February 17, sir. Q When, where specifically did you come to know him? A At the NBI office, sir. Q Now... JUSTICE HERMOSISIMA: Q February 17, 1989? A Yes, Your Honor. Proceed. .... ATTY. I. CRUZ: Q Do you know a certain Redentor Aguinaldo? A Yes, sir. JUSTICE HERMOSISIMA: Q Tell us the circumstances under which you received this envelope? A I received that envelope given to me by Arnold Pasicolan. Q If you answer in monosyllable we will not understand. Alright, you tell your story? A Redentor Aguinaldo on February 17 told me that he is going to give me a job. What I will do is get the envelope and bring it to a certain subdivision in Las Pias and somebody will pick it up and pay me P100.00 for it. Proceed. ATTY. I. CRUZ: Q Now, do you know the person to whom you are to deliver the envelope? A No, sir. Q Now, if you do now know the person to whom you will deliver the envelope. JUSTICE HERMOSISIMA: You may not cross-examine, tell him to tell us facts. ATTY. I. CRUZ: Q Where specifically in the subdivision in Paraaque where you will deliver the envelope?

A BF Homes. JUSTICE HERMOSISIMA: Q To what particular person will you supposed to deliver it? A I was just asked to go to that place and somebody will approach me. Q To make your story more believable, BF Homes in Paraaque is a very big subdivision. You enter that subdivision and there will be several persons whom you can see there. How will the person know that you are carrying an envelope for him. Where were you supposed to deliver it. If you cannot explain that, we will not believe you? A In that subdivision, there is a vacant place where there are no houses. It is where I often go. Q BF Homes subdivision in Paraaque has several vacant lots, how will you know what vacant lot to proceed to? A It was pointed to me by Aguinaldo. Q So, Aguinaldo went with you in the morning of that same day and pointed to you the place? A In the morning of that same day and he pointed to me the place. Second. The petitioner contends that the Sandiganbayan erred in admitting in evidence the letters signed by him because he was asked to sign them during custodial investigation without the assistance of counsel. The following provisions of the Constitution are invoked by petitioner: Article III, 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. .... (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 17. No person shall be compelled to be a witness against himself. Petitioners counsel says that the signing of petitioners and his co -accuseds names was not a mere mechanical act but one which required the use of intelligence and therefore constitutes self-incrimination. Petitioners counsel presumably has in mind the ruling in Beltran v. Samson[20] to the effect that the prohibition against compelling a man to be a witness against himself extends to any attempt to compel the accused to furnish a specimen of his handwriting for the purpose of comparing it with the handwriting in a document in a prosecution for falsification. Writing is something more than moving the body, or the hand, or the fin gers; writing is not a purely mechanical act because it requires the application of intelligence and attention, [21] so it was held. To be sure, the use of specimen handwriting in Beltran is different from the use of petitioners signature in this case. In that case, the purpose was to show that the specimen handwriting matched the handwriting in the document alleged to have been falsified and thereby show that the accused was the author of the crime (falsification) while in this case the purpose for securing the signature of petitioner on the envelopes was merely to authenticate the envelopes as the ones seized from him and Ronnie Romero. However, this purpose and petitioners signatures on the envelope, when coupled with the testimony of prosecution witnesses that the envelopes seized from petitioner were those given to him and Romero, undoubtedly help establish the guilt of petitioner. Since these signatures are actually evidence of admission obtained from petitioner and his co-accused under circumstances contemplated in Art. III, 12(1) and 17 of the Constitution, they should be excluded. For indeed, petitioner and his co-accused signed following their arrest. Hence, they were at the time under custodial investigation, defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way. [22] Under the Constitution, among the rights of a person under custodial investigation is the right to have competent and independent counsel preferably of his own choice and if the person cannot afford the services of counsel, that he must be provided with one. However, the letters are themselves not inadmissible in evidence. The letters were validly seized from petitioner and Romero as an incident of a valid arrest. A ruling that petitioners admission that the letters in question were those seized from him and his companion on February 17, 1989 is inadmissible in evidence does not extend to the exclusion from evidence of the letters themselves. The letters can stand on their own, being the fruits of a crime validly seized during a lawful arrest. That these letters were the ones found in the possession of petitioner and his companion and seized from them was shown by the testimonies of Vela and Tumagan. Indeed, petitioner and his co-accused were not convicted solely on the basis of the signatures found on the letters but on other evidence, notably the testimonies of NBI agents and other prosecution witnesses. WHEREFORE, the decision of the Sandiganbayan is AFFIRMED. SO ORDERED.

(34) DAVID GUTANG Y JUAREZ, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. [G.R. No. 135406. July 11, 2000] DE LEON, JR., J.: Before us is a petition for review on certiorari assailing the Decision[1] dated September 9, 1998 rendered by the former Twelfth Division of the Court of Appeals in CA-G.R. CR No. 19463. The assailed Decision affirmed the judgment[2] dated October 13, 1995 of the Regional Trial Court of Pasig, Metro Manila, finding petitioner David J. Gutang guilty beyond reasonable doubt for violation of Sections 8 and 16 of RA 6425, as amended, (for illegal possession and use of prohibited drugs) as charged in Criminal Cases Nos. 2696-D and 2697-D, respectively. The facts are as follows: On March 5, 1994, accused-appellant David Gutang, together with Noel Regala, Alex Jimenez and Oscar de Venecia, Jr., was arrested by elements of the PNP NARCOM, in connection with the enforcement of a search warrant [3] in his residence at No. 331 Ortigas Avenue, Greenhills, San Juan, Metro Manila. When the police operatives of the PNP-NARCOM served the search warrant, which was issued by Judge Martin Villarama, Jr. of the Regional Trial Court, Branch 156, Pasig, Metro Manila, they found the petitioner and his three (3) companions inside the comfort room of the masters bedroom, at the second floor of the house.[4] During the search, the following materials were found on top of a glass table inside the masters bedroom: a. shabu paraphernalias, such as tooters; b. aluminum foil; c. two (2) burners (one small, one big); d. fourteen (14) disposable lighters; e. three (3) weighing scales; f. plastic sealant used in repacking shabu; g. several transparent plastic bags of different sizes; h. about 1.4 grams of suspected marijuana fruiting tops contained in a small white plastic; i. about 0.7 gram of suspected dried marijuana contained in a small plastic container.[5] The PNP-NARCOM team also inspected the cars of accused Regala, Jimenez and de Venecia, Jr. which were parked inside the compound of the residence of petitioner Gutang. They found a Winchester Rayban case (sunglasses) with an undetermined amount of suspected shabu residues and tooters in a black plastic container and aluminum foil inside the car of Regala. The cars of Jimenez and de Venecia, Jr. yielded negative results. The items which were confiscated were then brought to the crime laboratory of the Philippine National Police (PNP) at Camp Crame, Quezon City for laboratory tests. The results of the laboratory examinations showed that the said items found in the masters bedroom of the residence of petitioner Gutang were positive for marijuana and methamphetamine hydrochloride (shabu). The items found inside the car of Regala were also positive for shabu. The findings are as follows: PHYSICAL SCIENCES REPORT NO. D-168-94 CASE: Alleged Viol. Of RA 6425 SUSPECTS: DAVID GUTANG Y JUAREZ NOEL REGALA Y YORRO ALEX JIMENEZ Y ESPINOSA CAREY DE VENECIA Y LOCSIN TIME AND DATE RECEIVED: 1430H, 05 MARCH 1994 REQUESTING PARTY/UNIT: C, 2nd SOG NARCOM Camp Crame, Q.C. SPECIMEN SUBMITTED: Exh. A One (1) white plastic bag containing the following: Exh. A-1 One (1) white film case with dried suspected marijuana fruiting tops weighing 1.56 grams. Exh. A-2 One (1) small black box with dried suspected marijuana fruiting tops weighing 0.70 gram. Exh. A-3 Two (2) pieces of improvised tooter with white crystalline residue. Exh. A-4 Several foil and small plastic bag with white crystalline residue. Exh. B One (1) white plastic bag marked ROEL REGALA containing the following: Exh. B-1 One (1) Winchester case with white crystalline substance. Exh. B-2 One (1) black case containing several tooters with white crystalline residue. PURPOSE OF LABORATORY EXAMINATION: To determine the presence of prohibited and/or regulated drug.

FINDINGS: Qualitative examination conducted on the above-stated specimen gave the following results: 1. Exhs. A-1 and A-2 POSITIVE to the test for Marijuana, a prohibited drug. 2. Exhs. A-3, A-4, B-1 and B-2 POSITIVE to the test for methamphetamine hydrochloride (shabu), a regulated drug. CONCLUSION Exhs. A-1 and A-2 contain marijuana, a prohibited drug. Exhs. A-3, A-4, B-1 and B-2 contain Methamphetamine Hydrochloride (shabu) a regulated drug. xxx REMARKS: TIME AND DATE COMPLETED: 1630H, Or March 1994 (Annex A, pp. 6-8) On the same day, March 5, 1994, immediately after Gutang, Regala, Jimenez and de Venecia, Jr. were placed under arrest, they were brought to the PNP Crime Laboratory at Camp Crame. According to PNP Forensic Chemist Julita De Villa, their office received from PNP-NARCOM which is also based in Camp Crame a letter-request for drug dependency test on the four (4) men.[6] After receiving the said request, Mrs. Esguerra of the PNP Crime Laboratory asked the four (4) men including the petitioner to give a sample of their urine. The petitioner and his co-accused complied and submitted their urine samples to determine the presence of prohibited drugs. After examining the said urine samples, PNP Forensic Chemist De Villa came out with Chemistry Report No. DT-107-94[7] and Physical Report No. DT-107-94[8] dated March 9, 1994, showing that the said urine samples all tested positive for the presence of methamphetamine hydrochloride (shabu). Consequently, the informations in Criminal Cases Nos. 2696-D and 2697-D were filed in court against the petitioner and his companions for violation of Sections 8 and 16 of Republic Act No. 6425, (otherwise known as the Dangerous Drugs Act) as amended by Republic Act No. 7659. Incidentally, the charge against accused Oscar de Venecia, Jr. was dismissed by the trial court in an Order[9]dated August 3, 1994 on the ground that he voluntarily submitted himself for treatment, rehabilitation and confinement at the New Beginnings Foundation, Inc., a private rehabilitation center accredited by the Dangerous Drugs Board. Upon arraignment, petitioner Gutang entered a plea of not guilty. His co-accused, Regala and Jimenez, likewise pleaded not guilty. Thereafter, joint trial of the cases proceeded. However, petitioner Gutang did not present any evidence. After trial, the lower court rendered its decision, the dispositive portion of which reads: WHEREFORE, foregoing considered, the Court finds 1) accused DAVID GUTANG and ALEXANDER JIMENEZ in Criminal Case No. 2696-D, GUILTY beyond reasonable doubt for violation of Section 8 of R.A. 6425 as amended (Possession and use of prohibited drug); and are hereby sentenced to suffer a penalty of six (6) months of arresto mayor to two (2) years, four (4) months of prision correccional and to pay the costs; 2) In Criminal Case No. 2697-D (Possession) accused DAVID GUTANG, NOEL REGALA and ALEXANDER JIMENEZ, GUILTY beyond reasonable doubt of violation of Section 16 (ibid) and are hereby sentenced to suffer a penalty of six (6) months of arresto mayor to two (2) years, four (4) months of prision correccional and to pay the costs; 3) accused NOEL REGALA, in Criminal Case No. 2698-D (Possession of regulated drugs) is hereby sentenced to suffer a penalty of six (6) months of arresto mayor to two (2) years, four (4) months of prision correccionaland to pay the costs. The items confiscated are ordered forfeited in favor of the government and to be disposed of in accordance with law. SO ORDERED.[10] The judgment of conviction of the lower court was affirmed by the Court of Appeals. Hence, this petition wherein the petitioner raises the following assignments of error: I THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE RECEIPT FOR PROPERTY SEIZED; EXHIBIT I AND EXHIBIT R; THE PHYSICAL SCIENCE REPORT NO. D-168-94. EXHIBIT D; THE CHEMISTRY REPORT NO. DT-107-94, EXHIBIT L; AND THE PHYSICAL SCIENCE REPORT NO. DT -107-94, EXHIBIT M ARE INADMISSIBLE IN EVIDENCE. II THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PRESUMPTION OF INNOCENCE OF THE ACCUSED HAS NOT BEEN OVERCOME BY PROOF BEYOND REASONABLE DOUBT.

We affirm the conviction of the petitioner. Petitioner insists that the trial court erred in admitting in evidence Exhibits I and R, which are the Rece ipts of Property Seized, considering that it was obtained in violation of his constitutional rights. The said Receipts for Property Seized, which described the properties seized from the petitioner by virtue of the search warrant, contain his signature. According to petitioner, inasmuch as the said evidence were obtained without the assistance of a lawyer, said evidence are tantamount to having been derived from an uncounselled extra-judicial confession and, thus, are inadmissible in evidence for being fruits of the poisonous tree. We agree. It has been held in a long line of cases that the signature of the accused in the Receipt of Property Seized is inadmissible in evidence if it was obtained without the assistance of counsel. [11] The signature of the accused on such a receipt is a declaration against his interest and a tacit admission of the crime charged for the reason that, in the case at bar, mere unexplained possession of prohibited drugs is punishable by law. Therefore, the signatures of the petitioner on the two (2) Receipts of Property Seized (Exhibits I and R) are not admissible in evidence, the same being tantamount to an uncounselled extra-judicial confession which is prohibited by the Constitution. Petitioner further contends that since the Receipts for Property Seized (Exhibits I and R) are inadmissible in evidence, it follows that the Physical Science Reports Nos. D-168-94 and DT-107-94 (Exhibit D and M) and Chemistry Report No. DT-107-94 (Exhibit L) finding the said items seized to be positive for marijuana and shabu, are also inadmissible inasmuch as they are mere conclusions drawn from the said Receipts and hence a part thereof. We disagree. The fact that the Receipts of Property Seized (Exhibits I and R) are inadmissible in evidence does not render inadmissable the Physical Science Reports (Exhibit D and M) and the Chemistry Report (Exhibit L) inasmuch as the examined materials were legally seized or taken from the petitioners bedroom on the strength of a valid search warrant duly issued by Judge Villarama, Jr. of the Regional Trial Court of Pasig, Metro Manila. Since the said materials were validly seized or taken from the bedroom of the petitioner in his presence, the laboratory tests conducted thereon were legally and validly done. Hence, the said Reports containing the results of the laboratory examinations, aside from the testimonial and other real evidence of the prosecution, are admissible in evidence and sufficiently proved that the petitioner used and had the said prohibited drugs and paraphernalia in his possession. In other words, even without the Receipts of Property Seized (Exhibits I and R) the alleged guilt of the petitioner for the crimes charged were proven beyond reasonable doubt. Petitioner also posits the theory that since he had no counsel during the custodial investigation when his urine sample was taken and chemically examined, Exhibits L and M, which are the respecti ve Chemistry and Physical Reports, both dated March 9, 1994, are also inadmissible in evidence since his urine sample was derived in effect from an uncounselled extra-judicial confession. Petitioner claims that the taking of his urine sample allegedly violates Article III, Section 2 of the Constitution, which provides that: Sec. 2. The right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized. We are not persuaded. The right to counsel begins from the time a person is taken into custody and placed under investigation for the commission of a crime, i.e., when the investigating officer starts to ask questions to elicit information and/or confession or admissions from the accused. Such right is guaranteed by the Constitution and cannot be waived except in writing and in the presence of counsel. However, what the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material. [12] In fact, an accused may validly be compelled to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done, without running afoul of the proscription against testimonial compulsion.[13] The situation in the case at bar falls within the exemption under the freedom from testimonial compulsion since what was sought to be examined came from the body of the accused. This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosed facts but to ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not compelled to give samples of their urine but they in fact voluntarily gave the same when they were requested to undergo a drug test.[14] Assuming arguendo that the urine samples taken from the petitioner are inadmissible in evidence, we agree with the trial court that the record is replete with other pieces of credible evidence including the testimonial evidence of the prosecution which point to the culpability of the petitioner for the crimes charged. First of all, the petitioner has not satisfactorily explained the presence in his bedroom of the assorted drug paraphernalia [15] and prohibited drugs found atop a round table therein at the time of the raid. [16] Petitioners feeble excuse that he and his co -accused were not in the masters bedroom but inside the comfort room deserves scant consideration since the comfort room is part of t he masters bedroom.[17] Prosecution witness Capt. Franklin Moises Mabanag, head of the said PNP-NARCOM raiding team,

testified that when petitioner was arrested, the latter showed manifestations and signs that he was under the influence of drugs, to wit: By Fiscal Villanueva (To the witness) Q: Mr. Witness, why was a drug defendant (sic) test requested on the persons of David Gutang, Noel Regala, Alexander Jimenez and Oscar de Venecia? A: A drug test was made on them because when we held these persons David Gutang, Noel Regala, Alexander Jimenez and Oscar de Venecia, they showed manifestations and signs that they are under the influence of drugs. Atty. Arias: That is a conjectural answer. The witness is not authorized to testify on that. Fiscal Villanueva: We agreed as to the expertise of this witness at the time when I was qualifying him (interrupted) By Fiscal Villanueva (To the witness) Court: At any rate, that was only his observation it is not necessarily binding to the court, that is his testimony, let it remain. Atty. Arias: But the rule is clear. Court: That is what he observed. Fiscal Villanueva: And what is this manifestation that you observed? Atty. Arias: Precisely, that is already proving something beyond what his eyes can see. Fiscal Villanueva: That is part of his testimony. Court: Let the witness answer. Witness: I observed they are profusely sweating and their lips are dry, I let them show their tongue and it was whitish and their faces are pale, reason why we made the necessary request for drug test.[18] It is worth noting that the search warrant was served only after months of surveillance work by the PNP-NARCOM operatives led by Chief Inspector Franklin Mabanag in the residence of petitioner. Earlier, a confidential informant had even bought a gram of shabu from petitioner Gutang. Prosecution witness Mabanag also found, during the surveillance, persons who frequented the house of petitioner, and that the confidential informant of the PNP-NARCOM had in fact gained entry into the house. The police officers are presumed to have performed the search in the regular performance of their work. Allegedly improper motive on the part of the PNP-NARCOM team must be shown by the defense, otherwise, they are presumed to be in the regular performance of their official duties.[19] But the defense failed to do so. All told, in the face of the evidence adduced by the prosecution, it is clear that petitioner is guilty beyond reasonable doubt of the crimes charged. WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals affirming the judgment of the Regional Trial Court is AFFIRMED. SO ORDERED.

(35) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REY DENIEGA y MACOY, and HOYLE DIAZ y

URNILLO, defendants-appellants.
[G.R. No. 103499 December 29, 1995]

KAPUNAN, J.: The naked body of Marlyn Canoy was found on a heap of garbage in an ill-frequented back corner on the left side of the Mt. Carmel Church in New Manila, Quezon City. Her hands were tied behind her back by a shoestring and pieces of her own clothing. The body bore thirty nine (39) stab wounds. There was evidence that she had been brutally assaulted, physically and sexually, before she was murdered. Police authorities investigating the gruesome crime on August 31, 1989, arrested Rey Daniega y Macoy on information that the victim was last seen with Daniega, 1 a waiter at the Gathering Disco where Canoy used to work. Friends of Canoy volunteered the
information that the former had just broken off from a stormy relationship with Daniega. 2The latter, it was bruited, 3 desperately tried to patch up the relationship.

Following the latter's arrest, and on the basis of a confession obtained by police authorities from him during custodial investigation (where he allegedly admitted raping and killing Canoy), 4 appellant Hoyle Diaz y Urnillo was invited by the
investigators for questioning. A second sworn statement, substantially similar and corroborating many of the details of Daniega's sworn affidavit, was later extracted from Diaz. In the said statement, Diaz admitted his participation in the rape of Canoy, but denied that he had something to do with the victim's death. 5

Armed with the said extra-judicial confessions, an Information was filed with the Regional Trial Court of Quezon City, 6 charging petitioners with the crime of Rape with Homicide, committed as follows: That on or about the 29th day of August, 1989, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping each other, with lewd designs, did, then and there wilfully, unlawfully and feloniously, by means of force, violence and/or intimidation have sexual intercourse with MARLYN CANOY BENDO, without her consent and against her will; and by reason of and on the occasion thereof, said accused, pursuant to their conspiracy, did, then and there wilfully, unlawfully and feloniously, with intent to kill and without any justifiable cause, attack, assault and employ personal violence upon the person of said victim, by then and there stabbing her with an icepick several times, thereby inflicting upon her serious and mortal wounds which were the direct and immediate cause of her death, to the damage and prejudice of the heirs of said Marlyn Canoy Bendo, in such amount as may be awarded to them under the provisions of the New Civil Code. CONTRARY TO LAW. At trial, the confessions obtained by law enforcement authorities during their (separate) custodial investigations formed the centerpiece of the prosecution's case for Rape with Homicide against both accused. 7 These confessions allegedly disclosed details
of the killing, summarized by the trial court in its Decision dated August 23, 1991, thus:

Rey Deniega's confession essentially stated: On August 28, 1989, he and Marlyn were at her house at Onyx Street, Sta. Ana Manila. There they had an altercation because she wanted to break up with her already. He accompanied Marlyn afterwards to Rolando's Disco Pub where Marlyn works. They agreed however, to meet again after she gets (sic) out of the Disco Pub to have a final talk about their relationship. They agreed to see each other at 3:00 in the morning of August 29, 1989 at a waiting shed along Aurora Boulevard near San Juan. He arrived there earlier than Marlyn. While waiting, Rey saw Hoyle Diaz (a.k.a. Boyet) pass by. Rey told Hoyle that he is going to take Marlyn to the Mt. Carmel Church compound and if Boyet wants to take revenge on Marlyn (makaganti) Boyet can hold-up her there. When Marlyn and Rey were already at the Mt. Carmel Church compound, Boyet arrived with two companions. Boyet berated Marlyn for choosing Rey as her boyfriend instead of Boyet despite the fact that he has already

spent large sums for her. Then, suddenly the two companions of Boyet by the name of Tony and Carlos pulled with a jerk the apparel of Marlyn and undressed her. The two tied Marlyn's hands and got her necklace and wristwatch. Boyet then took off his T-shirt and pulled down his pants and raped Marlyn. After the rape, Tony and Carlos stabbed Marlyn. Then Boyet gave Rey an icepick and ordered him to stab Marlyn whom he stabbed once in the stomach. Rey left leaving the three men behind. Hoyle Diaz confession essentially stated: He came to know of both Rey Deniega and Marlyn Canoy at Gathering House where Hoyle used to take drinks. He was courting Marlyn there and used to take her as a table partner. He saw Rey Deniega on a bridge near Broadway Avenue and Aurora Boulevard, Quezon City on August 29, 1989 at around 2:00 in the morning. There Rey told Hoyle that he will teach Marlyn a lesson and will hold her up. He asked Hoyle to accompany him. At between 3:00 and 4:00 that morning Marlyn arrived at the waiting shed where she and Rey were supposed to meet and Rey took Marlyn to Mt. Carmel Church compound with Hoyle Diaz following behind. The two talked for about 20 minutes. Then they had an altercation, hurling and hollering bad words at each other. Rey tried to undress Marlyn who resisted. Rey boxed Marlyn and was finally able to take off her clothes. Then Rey raped Marlyn. After Rey was through, Hoyle raped Marlyn. Afterwards, Rey told Hoyle that so that there will be no more trouble (aberia) they better finish off Marlyn. Rey took out an icepick and stabbed Marlyn. Then he handed the icepick to Hoyle and Hoyle stabbed Marlyn too. Then Rey faced Hoyle (hinarap) and so Hoyle ran away as Rey chased him. As Hoyle ran he threw away the icepick. He does not know if Rey returned to get the necklace, bag and wristwatch of Marlyn. Hoyle also stated that he saw that Rey was heavily influenced by drugs (sabog sa gamot). Hoyle also recalled that on the way to Mt. Carmel a man followed them but the man was no longer in the vicinity when they reached the Mt. Carmel Church Compound. When Rey ran after Hoyle, Rey was holding no weapon. Marlyn was raped right where she was found dead. 8 In their defense, appellants, during the course of the trial, vehemently denied the claim that they had voluntarily executed the said confessions. 9 Appellants Daniega and Diaz went to the extent of seeking the assistance of the National Bureau of Investigation,
and there executed a sworn statement to the effect that their respective confessions were coerced and obtained through torture. 10 Both testified that they were subjected to electrocution and water treatment. They contended that they were arrested without warrants of arrest and that the confessions obtained from them immediately thereafter were made without the assistance of counsel.

After the prosecution rested its case on December 14, 1990, the accused-appellants moved for leave to file Demurrer to Evidence, which the trial court granted. 11 In a demurrer submitted to the trial court on December 28, 1990, appellants moved for the
dismissal of the information for Rape with Homicide on the ground of insufficiency of evidence, stressing that: 1) the confessions obtained by police authorities were acquired without the assistance of counsel in violation of their constitutional rights and were hence, inadmissible in evidence; 2) the same (confessions) "were obtained through torture, force, threat and other means which vitiat[ed] (their) free will;" and 3) except for the testimonies of the medico-legal officer and two IBP lawyers who alleged that they assisted the accused during their custodial investigation, the prosecution presented no other evidence to warrant a conviction. 12

In an Order dated January 30, 1991, the Regional Trial Court denied the motion for Demurrer to Evidence. 13Consequently, after
hearing the appellants' testimonies, the lower court, on August 31, 1991 rendered its Decision convicting the accused-appellants of the crime of Rape with Homicide and sentencing each of them to a penalty of Reclusion Perpetua.14 They were likewise ordered to pay the heirs of Marlyn Canoy the amount of P50,000.00 in solidum. 15

In dismissing appellant's principal defense that their confessions were obtained in violation of their constitutional rights, the trial court held that: The court finds it hard to believe that (Atty. Sansano and Atty. Rous), both of whom are officers of the Legal Aid Committee of the IBP and are prominent practitioners of great integrity, would act as the accused said they did. Over and beyond this it appears that the confessions were executed during daytime and the accused themselves brought to the Quezon City IBP office at noontime during office hours when several employees of

that chapter were working, there are usually other lawyers there, and therefore, the accused, if their confession were really prevaricated beforehand, had ample atmosphere to tell Atty. Sansano and Atty. Rous, respectively, that their confession were coerced and untrue. The two counsels testified that they precisely segregated the accused from their police escorts to cull out the truth and the accused volunteered to confess to the crime at bar; Rey Deniega was arrested at around 6:30 in the morning and Hoyle Diaz at around 9:30 in the morning. Rey was brought to the IBP at around 11:00 in the morning and Hoyle at around 2:00 p.m. of the same day of their arrest on August 31, 1990. Their confession were quite lengthily (4 page each) and filled with details. There is nothing in the record to show that the apprehending officers are clever and articulate enough to be able to fabricate in a short a time the kind of confessions submitted here . . . . 16 Considering that no eyewitnesses to the actual commission of the crime were presented before the court, the issue of the voluntariness and due execution of the extrajudicial confessions of the appellants upon which their conviction was based, is pivotal in the resolution of the instant appeal. Analyzing the appropriate provisions of law in relation to the facts of the case at bench, we find for appellants. It is a settled rule that this Court will not normally overturn factual conclusions of the trial court, unless factual evidence has either been deliberately ignored or misapprehended. The confessions which form part of the record of the case at bench are an eloquent example of facts deliberately ignored: the legal insufficiencies and inconsistencies in the documents in question are so glaring, even from a cursory examination of the confessions, that they should not escape even the untrained eye. The statements evidencing the interrogation, including those portions in which the appellants purportedly were informed of their constitutional rights, were in typewritten form. However, within the body of these documents, blank spaces were conspicuously left at strategic areas (spaces) where the accused were supposed to sign and acknowledge that they were appraised of their rights and that they gave their statements voluntarily. These were spaces obviously provided for the accused to fill in the blank with the word "yes" ("opo") followed by another blank space for their respective signatures. In addition to these, the header of the disputed documents indicates that the investigations were conducted at the police headquarters, contradicting the prosecution witnesses' declarations that the confessions were obtained in the Quezon City IBP office. Apart from the defects evident on the face of the documents, there exists evidence indicating that the actual custodial investigation was conducted at the police headquarters in the absence of counsel, as contended by appellants. While we have no dispute with the trial court's observation that the appellants were brought to the Quezon City IBP office during daytime when other individuals were holding office in the IBP floor (who may have witnessed the presence of the appellants in the area), 17 it is
one thing for appellants to be brought to the IBP office only for the purpose of signing the confessions in plain view of the other employees of the office, while compliance with the constitutional mandate requiring the presence of counsel during the actual custodial investigation is quite another.

There is convincing proof 18 that, while Attys. Sansano and Rous may have been present at the signing of the documents, they were
not present at all during the actual custodial investigation of the accused in the police headquarters.

For instance, Atty. Sansano placed the time of arrival of appellant Deniega at the IBP Quezon City chapter office at "around 11:30 in the morning" of August 31, 1989. 19 However, Deniega's extrajudicial confession taken by Pat. Maniquis gives the time of
its execution as 11:20 A.M. also on August 31, 1989 or earlier than the time they allegedly arrived at the IBP office.

Moreover, even assuming the possibility of error in recording the actual time of the investigation, 20 there is conflict as to the
place where the custodial investigation was actually conducted. Atty. Sansano for instance, testified that Daniega's extrajudicial confession was taken at the QC-IBP office. 21 An examination of the document's heading however reveals that the confessions were given to the investigator (Maniquis) at the police headquarters of the SID, QCPS ( sa himpilan ng homicide ng SID, QCPS) not in the IBP office of Atty. Sansano.

With respect to the extrajudicial confession of appellant Diaz, Atty. Rous' declaration that "the custodial investigation was conducted by the policeman in the (IBP chapter) office," 22 conflicts with the statement in the actual document (sinumpaang
salaysay) that he (appellant) executed his confession at the police headquarters of the SID, QCPS (himpilan ng homicide, SID, QCPS) and not the IBP office.

Lastly, the probity of Pat. Maniquis, who testified in rebuttal was certainly not enhanced by the information given the trial court by prosecution witness P/Sgt. Rogelio Barcelona that he (Maniquis) had been dismissed from the service for unspecified reasons. 23 A thorough reading of the transcripts of the testimonies of the two lawyers, Atty. Sansano and Atty. Rous, indicates that they appeared less as agents of the accused during the alleged investigation than they were agents of the police authorities. In the case before us, it was the police authorities who brought the accused, handcuffed, to the IBP headquarters where the services of the lawyers were supposedly "engaged." No details of the actual assistance rendered during the interrogation process were furnished or alleged during the entire testimony of the lawyers in open court. The bulk of the lawyers' oral testimonies merely gave the trial court assurance that they supposedly explained to the appellants their constitutional rights, that the signatures present were their signatures and those of the accused, and that the accused agreed to having the lawyers assist them during the process of custodial investigation. 24 Clearly, the standards utilized by police authorities (and the lawyers) to assure the constitutional rights of the accused in the case at bench fall short of the standards demanded by our case law and the Constitution itself. In Morales, Jr. v. Enrile, 25 the Court defined the procedure which law enforcement officers must observe in custodial investigations
as follows:

At the time, a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter of 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 on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. 26 The rules laid down in Morales were reiterated in 1985 case of People vs. Galit. 27 The 1987 Constitution provided a stricter rule by mandating that waiver of the right to counsel must be made not only in the presence of counsel but also in writing. Article III, Section 12 provides: 1) Any person under investigation for the commission of an offense shall have the right to be informed of the 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. Section 33, Rule 130 of the Rules of Court requires, moreover, that a confession, to be admissible, must beexpress. Finally, Republic Act 7438 mandates that the entire confession must be in writing. 28 In all, under rules laid down by the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy all of four fundamental requirements: 1) the confession must be voluntary 2) the confession must be made with the assistance of competent and independent counsel; 3) the confession must be express and 4) the confession must be in writing. It is noteworthy that the modifiers competent and independent were terms absent in all organic laws previous to the 1987 Constitution. Their addition in the fundamental law of 1987 was meant to stress the primacy accorded to the voluntariness of the choice, under the uniquely stressful conditions of a custodial investigation, by according the accused, deprived of normal conditions guaranteeing individual autonomy, an informed judgment based on the choices given to him by a competent and independent lawyer.

Thus, the lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accused's behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would merely be giving a routine, peremptory and meaningless recital of the individual's constitutional rights. In People vs. Basay, this Court stressed that an accused's right to be informed of the right to remain silent and to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." 29 Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) "should be engaged by the accused (himself), or by the latter's relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition." 30 Lawyers engaged by the police,
whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic.

Conditions vary at every stage of the process of custodial investigation. What may satisfy constitutional requirements of voluntariness at the investigation's onset may not be sufficient as the investigation goes on. There would be denial of the right to the assistance of competent and independent counsel if the investigation or, as in the case before us, during the process of signing. The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If the advice given is so cursory as to be useless, voluntariness is impaired. If the lawyer's role is reduced to being that of a mere witness to the signing of a pre-prepared document albeit indicating therein compliance with the accused's constitutional rights, the constitutional standard guaranteed by Article III, Section 12 (1) is not met. The process above-described fulfills the prophylactic purpose of the constitutional provision by avoiding "the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation for the commission of the offense" 31 and ensuring that the
accused's waiver of his right to self incrimination during the investigation is an informed one in all aspects.

The process of assisting appellants in the case at bench as described by the lawyers in their testimony therefore hardly meets the standard of effective and meaningful communication required by the 1987 Constitution, when its framers decided to add the modifiers competent and independent to the requirement for counsel during the process of custodial investigations. The failure to meet the constitutional requirement for competent and independent counsel and the glaring inconsistencies in documents purportedly executed under the trained and watchful eyes of the lawyers who allegedly were of assistance to the accused during the process of custodial investigation - taken together with the manner in which the signatures of the accused were affixed into the confessions cast a serious doubt on their due execution, and support the contention that the sworn statements executed by the appellants were already prepared and signed at the police headquarters before the statements were brought to the QC-IBP office for signing. During the trial, Daniega testified to the following: Q Was Atty. Sansano present when this alleged sinumpaang salaysay was taken from you by questions and answers which consist of 31 questions and 32 answers? A No, because this statement was signed by me at the police station and then we brought it to the IBP office. 32 In his cross-examination, the other accused, Diaz likewise testified as follows: Q Who told you to sign this document? A That paper, we made that at the headquarters. Q Do you know who prepared this at the headquarters? A It was Pat. Maniquis.

Q And Pat. Maniquis was typing this while he was asking you this question? A. I did not see that paper while he was investigating me, it was later, he showed that to me, maam. Q For how long a time more or less (did) Pat. Maniquis investigate(d) you? A About one hour maam. Q And after that one hour, how long a time elapse(d) before you were brought to the IBP Bldg. A Two or three in the afternoon. Q And when you were told to sign this document, at the IBP Bldg., Pat. Maniquis, who were the person(s) present aside from you and Pat. Maniquis? Atty. Gojar: He did not sign that in the IBP, your Honor. It was at the headquarters. A I signed that document(s) at the police headquarters. Q What time more or less was that, when you signed that document? A About lunch time. Q Was that after Pat. Maniquis investigated you? A Yes maam. Q Who were present at the time Pat. Maniquis told you to sign this? A I don't know them, I only remember Pat. Maniquis. Q Did you have any occasion to read this before you sign(ed) this? A No maam, he just asked me to sign it. Q But can you read tagalog? A Yes maam. Q And you did not take any opportunity to read this before you sign(ed) it? A Everything went fast, sir. Q After you signed this how long a time elapse(d) before you went to Quezon City IBP? Atty. Gojar: It was already answered, your honor. Q What time did you sign this?

A I signed it about ten to eleven in the morning ad we went to IBP about two or three in the afternoon. 33 (Emphasis supplied.) Together with all the legal deficiencies pointed out so far, it would not be difficult for us to give credence to appellants' testimonies to the effect that the investigation was actually conducted in the absence of counsel in one place (the QC SID headquarters) and signed in the presence of counsel in another (the QC IBP office). Appellants, who were not trained in the law, would not have understood the constitutional nuances of the fact that the confessions and the signing of the documents evidencing the confessions were obtained in different places. Assuming they were couched, appellants were quite vehement as they were consistent in their separate oral testimonies, and one or both of them would have withered, in any case, on intense cross examination. These facts lead us to the inevitable conclusion that the confessions of both defendants were obtained in the absence of independent and competent counsel as mandated by the 1987 Constitution and that the same may have been acquired under conditions negating voluntariness, as alleged by the accused. 34 In fine, the likelihood for compulsion is forcefully apparent in every custodial investigation. A person compelled under the circumstances obtaining in every custodial investigation is surrounded by psychologically hostile forces and the threat of physical violence so that the information extracted is hardly voluntary. In the oftentimes highly intimidating setting of a police investigation, the potential for suggestion is strong. Every so often, courts are confronted with the difficult task of taking a hard look into the sufficiency of extra-judicial confessions extracted by law enforcement authorities as the sole basis for convicting accused individuals. In cases of crimes notable for their brutality and ruthlessness, the impulse to find the culprits at any cost occasionally tempts these agencies to take shortcuts and disregard constitutional and legal safeguards intended to bring about a reasonable assurance that only the guilty are punished. Our courts, in the process of establishing guilt beyond reasonable doubt, play a central role in bringing about this assurance by determining whether or not the evidence gathered by law enforcement agencies scrupulously meets exacting standards fixed by the Constitution. If the standards are not met, the Constitution provides the corresponding remedy by providing a strict exclusionary rule,i.e., that "[a]ny confession or admission obtained in violation of (Article III, Section 12[1]) . . . hereof shall be inadmissible in evidence." 35 There is a distinct possibility that the confessions given by the appellants in the case at bench might speak the truth. Judges face unimaginable pressures from all areas, including the pressure of their heavy dockets. They are on the forefront of the government's battle against crime. Were it not for the defects inherent in the confessions, and the contradictions and inconsistencies here noted, the trial court's well-written opinion in the case at bench an eloquent example of the earnest attempts judges make to battle crime, would have been readily sustained by this Court. Yet again, there remains the possibility that the real assailants lurk free somewhere, thanking their luck. What can only be said, in relation to the unfortunate circumstances of the case at bench has already been said,ad nauseam, in a number of cases before this. In People v. Javar, 36 for
instance, we emphasized, conformably with Art. III, Sec. 12 of the Constitution that:

Any statement obtained in violation of the constitutional provision, or in part, shall be inadmissible in evidence. Even if the confession speaks the truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given. We stress, once again, that the exclusionary rules adopted by the framers of the 1987 Constitution were designed, not to vindicate the constitutional rights of lawbreakers but to protect the rights of all citizens, especially the innocent, in the only conceivable way those rights could be effectively protected, by removing the incentive of law enforcement and other officials to obtain confessions by the easy route, either by psychological and physical torture, or by methods which fall short of the standard provided by the fundamental law. Allowing any profit gained through such methods furnishes an incentive for law enforcement officials to engage in constitutionally proscribed methods of law enforcement, and renders nugatory the only effective constitutional protections available to citizens. WHEREFORE, PREMISES CONSIDERED, appellants Rey Daniega y Macoy and Hoyle Diaz y Urnillo are herebyACQUITTED of the crime of Rape with Homicide. Their immediate release from custody is hereby ordered unless they are being held on other legal grounds. SO ORDERED.

(36) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SABAS CALVO, JR., and RODOLFO LONGCOP,accusedappellants. [G.R. No. 91694. March 14, 1997] FRANCISCO, J.: Charged with and prosecuted for robbery with homicide were herein appellant Sabas Calvo, Jr. and co-accused Rodolfo Longcop under an information reading: "That on or about September 26, 1987, in the City of Manila, Philippines, the said accused, conspiring and confederating together with JOSE BALSOLASO Y TUBINO who has already been charged for the same crime before the Regional Trial Court of Manila under Criminal Case No. 87-58217, and one whose true name, identity and whereabouts are still unknown and helping one another, with intent to gain and by means of force and violence, that is, by strangling with a piece of cloth IGNACIA MAULEON Y JOPIA and stabbing her several times with bladed instruments, did then and there willfully, unlawfully and feloniously take, rob and carry away one bag containing P1,150.00 in cash, among other things, owned by said Ignacia J. Mauleon against the latter's will, to the damage and prejudice of said Ignacio J. Mauleon in the same sum of P1,150.00, Philippine Currency; that by reason or on the occasion of the said robbery, herein accused, with intent to kill, inflicted fatal stab wounds upon the said Ignacia J. Mauleon which were the direct cause of her death immediately thereafter." The antecedents have been narrated in detail by the trial court, to wit: "FACTS DEDUCED FROM THE PROSECUTION EVIDENCE: "Spouses Felipe and Ignacia Maullon, are engaged in a bakery business with every sign of prosperity; in fact, they have stores scattered all over the City and employ a host of bakery workers. "One of their bakeries, the Philip's Bakery is at Espaa, Sarnpaloc, Manila where Beatriz Bido is a stay-in sales girl. On September 26, 1987 at about 9:00 in the evening after her washing chores, she went upstairs, knocked at the room of her boss, Mrs. Ignacia Maullon. Nobody answered. About five minutes later, two men barged out from the room rushing downstairs. One of them held a gun whom Bido identified as one, Sabas Calvo. He pushed her into the bath room repeatedly but she resisted. He threatened Bido not to shout else (sic) he will shoot her. Bido also identified the companion as one Bobby Gaspar, who closely followed Calvo, who was carrying a leather bag. When Bido succeeded in entering Mrs. Maullon's room she was speechless and surprised to see Mrs. Maullon's body sprawled on the floor in a pool of blood. She also saw the room in disarray - clothes and other articles were scattered all over the place. The cabinets and drawers were forced open and ransacked. Bdio ( sic) rushed down shouting hysterically. She saw Cora, Rosemarie, Leny, Romy, Rodolfo, Tony, Nonong, and others. She narrated to them as she gasped for breath the horrible sight she saw upstairs. Some of her companions then rushed upstairs to see for themselves what happened while the others sought immediate help. Cora, another sales girl, went to a neighbor and phone Yollie Maullon who was at another store of the Maullon's. "Nearby the Philip's Bakery is another store owned and operated by one Lucila Gorospe, a businesswoman. Gorospe was just in front of her store facing the Philip's Bakery when this incident happened. Her store was still opened at the time and was well lighted. By the side of the street near the store is an electric post with electric light. All these lights: the one at her store, the electric post and that of Philip's Bakery illuminated the place well. It was while facing the Philip's Bakery, a distance of about seven (7) meters away when she saw two men running as fast as their legs could carry them. The men came from the stairs of Philip's Bakery. Beatriz identified one of them as Sabas Calvo, Jr., who was running towards P. Campano Street, carrying a bag. Sabas' companion did not carry anything. One, Henry Jordan - driver of Marietta rushed out and gave the duo a chase. Calvo however, pointed his gun at Henry Jordan. He scampered for safety and gave up the chase. Bobby and Calvo made good their escape. "In the meantime, the Homicide Section of the Western Police District received a telephone call from Tessie Evangelista informing them that a female unidentified body was found inside Philip's Bakery located at the corner of Morayta and Espaa Streets. The police immediately dispatched a team of operatives composed of Pfc. Norberto Obrero, Cpl. Pedro Campano and Pat. Renato Marquez. The team immediately proceeded to the place of the incident. When they arrived, they saw a mobile patrol car of police Station No. 4 already in the premises. The patrol car with some four policemen were searching and investigating the place. The team proceeded upstairs. They found the room with the dead Ignacia Maullon. The room was in topsyturvy condition; the contents of the cabinet and drawers were scattered all over the place. The victim Ignacia Maullon lie sprawled on her back in the middle of the room. Pfc. Obrero took pictures of the scene. Ignacia Maullon sustained multiple stabbed wounds on different parts of her body. After several inquiries Pat. Obrero succeeded in getting two witnesses: Beatriz Bido and Rosemarie Libreilla. Investigation went underway and series of documents were prepared such as the Progress Report, Advanced Report (Exh. B), Progress Report (Exh. C), Booking sheet and Arrest Report, Exh. E statement of Beatriz Bido (Exh. F) Statement of Rosemarie Libreilla (Exh. G).

"Afterwards, an identified informant tipped the police on the whereabouts of the suspects. Immediately the operatives were dispatched and the proceeded to 4959 Herran, Makati, Metro Manila. They threw a cordon around the place. During the operation two persons were seen scampering for cover. The duo were followed closely and were found trying to hide in the roof. One of them made a dash for liberty but eventually fell into the clutches of the lawmen. He was brought to the headquarters. The arrested man turned out later to be Jose Balsolaso. Again the police followed the trail of the other culprits. Tips came in, that the wanted culprits could be at Barrio Obrero then at Balic-Balic. However, inspite of the concerted efforts, the hunt proved futile. The remaining suspects were not bagged. Then more information was received that suspects may have gone to their hometown at Northern Samar. On instructions from their headquarters, the operatives led by Pat. Tan, Pat Libol and relatives of the victim went to Palapag, Northern Samar. Withe (sic) assistance from the Local Police authorities they found their quarry. Sabas Calvo, Jr., was placed under their custody, brought to Manila Headquarters. On November 5, 1985, accused Rodolfo Longcop was also arrested at Philip's Bakery, Manila. Upon investigation, Rodolfo Longcop chose to remain silent and did not issue any written statement. Accused Sabas Calvo, Jr., indicated his willingness to give his statement. The police advised accused Sabas Calvo, Jr., of his constitutional rights and gve (sic) him Atty. Alfredo Feraren, Jr. of the Citizen Legal Assistance Office of Quezon City, as counsel to assist him during the custodial investigation/interrogation. The accused was adviced on his Constitutional right by both the police and his counsel Atty. Feraren, Jr., during the custodial investigation. Accused Sabas Calvo Jr. gave his statement marked as Exh. K, duly counter signed by his appointed counsel Atty. Feraren Jr. In the statement (Exh. K) he admitted having committed the crime and implicated one Bobby Gaspar and Rodolfo Longcop. Whereupon, the police closed the case with the filing of the complaint before the Fiscal's Office. In turn, the Fiscal Office filed the case against Sabas Calvo Jr. and Rodolfo Longcop for robbery with homicide under Crim. Case No. 87-58217. "After the government witness Beatriz Bido finished testifying, where she failed to identify accused Jose Balsolaso, the Prosecution moved for the dismissal of the case as to Jose Balsolaso. the Court in its order dated March 13, 1988 under Crim. Case No. 87-58217 dismissed the case of accused Jose Balsolaso. "On the other hand, the defense presented the lone testimony of accused Sabas Calvo, Jr. TESTIMONIAL EVIDENCE: "1. Sabas Calvo, Jr., 26, single, Silk screen printer and a resident of Pilarmino St., Proj. 4, Quezon City.

"The accused testified and claimed that on February 26, 1987, he was at home at Palapag, Northern Samar. On November 1, 1987 while in his hometwon (sic) he was arrested by three men Pat. Abil Orio, policeman from Palapag and two other policemen from Laoang Northern Samar and he was brought to the Municipal Hall of Palapag and later to Laoang. Then he was turned over to Manila Police authorities who in turn brought him to Manila. On November 3, 1987 (sic). On November 5 1987, he was investigated. He does not know he was represented by a counsel and does not know Atty. Feraren Jr., of the CLAO. According to him he was placed in a police line-up, made to go outside where a woman looked at him and identified him while inside the jail. He claimed to have asked protection from the police and to wait for his mother to get a lawyer for him. He disclaimed participation in the robbery at Philip's Bakery and the killing of Ignacia Maullon. Unlike the other accused, Rodolfo Longcop, an employee of Philip's Bakery and employed by victim Ignacia Maullon did not go into hiding after the killing and when the authorities were hot on the trial of the suspects he chose to stay put and continue his work at Philip's Bakery. When accused Sabas Calvo, Jr. was arrested at his hometown at Northern Samar and during the investigation pointed at Rodolfo Longcop as one of their companions in the dastardly crime that he had committed, accused Rodolfo Longcop was immediately arrested and placed on detention. During the trial while accused Rodolfo Longcop was in detention, he died of sickness." [1] With the death of accused Longcop during the pendency of the trial and the dismissal of the case as against Jose Balsolaso, only appellant Calvo was found guilty of the crime charged, sentenced to reclusion perpetua or life imprisonment and ordered to indemnify deceased Ignacia Mauleon's heirs in the amount of P50,000.00. The bases for conviction were (1) appellant's extrajudicial confession dated November 5, 1987 (Exhibit "K") wherein he recounted how the plan to rob the bakery was hatched and his participation as lookout while his companions Longcop and one Bobby Gaspar did the actual heist and killing of Ignacia Mauleon, and (2) the identification of appellant by prosecution witnesses Beatriz Bido and Lucila Gorospe. Now before us pleading for his acquittal, appellant assails the admissibility of his alleged extrajudicial confession, as well as the credibility of the prosecution witnesses. Anent extrajudicial confessions, this Court reiterates its pronouncement in " People vs. Deniega"[2] that "under rules laid down by the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy all of four fundamental requirements: 1) the confession must be voluntary; 2) the confession must be made with the assistance of competent and independent counsel; 3) the confession must be express; and 4) the confession must be in writing." The "irregularities" which appellant claims to have attended his extrajudicial confession principally relate to the second requirement.

The first "irregularity" concerns the competence of Atty. Alfredo Ferraren, the CLAO lawyer who assisted appellant in the preparation of his extrajudicial confession. Appellant claims that Atty. Ferraren utterly failed to protect his rights during the custodial investigation as shown by the following advice given by said lawyer which, to borrow appellant's counsel's words, "threatened the accused and further pushed him deep to the mud." [3]
"FISCAL PATAG (to witness): Q: Now, you said you have assisted him in the preparation of this Extra Judicial Confession, will you kindly tell this Court as to how you assisted him there? A: (Atty. Ferraren) I talked with him, asked him his involvement in this case. I advice ( sic) him if he really committed this offense. It is better that he execute an Extra Judicial Confession. I told that if he does not, then he maybe suspected of having fabricated facts after a long time. COURT (to witness): Q: You advice (sic) him that? A: I advice (sic) him that if he really committed the offense, it would be better for him to execute an Extra Judicial Confession, otherwise if he will not execute an Extra Judicial Confession, Your Honor, he maybe placed in a situation were they maybe thinking that he fabricated facts."[4]

We cannot see how this kind of advice rendered Atty. Ferraren incompetent, or could ever be considered as telltale sign of the involuntariness of the confession. It was nothing more than a straight-forward exhortation for appellant to tell the truth as to his participation in the crime, if he indeed had something to do with it. A confession is not rendered involuntary merely because defendant was told that he should tell the truth or that it would be better for him to tell the truth. [5] Stated elsewise, telling the accused that it would be better for him to speak or tell the truth does not furnish any Inducement, or a sufficient inducement, to render objectionable a confession thereby obtained, unless threats or promises are applied. [6] These threats or promises which the accused must successfully prove in order to make his confession inadmissible, must take the form of violence, intimidation, a promise of reward or leniency.[7] Atty. Ferraren's proposition that appellant may be suspected of merely fabricating facts if he does not execute a confession hardly qualifies as a "threat" or "promise" as herein contemplated. Surely then, no temptation to appellant to falsely accuse himself can be found in the tenor and language of Atty. Ferraren's advice. The other "irregularity" apparently relates to a denial of the right to have an independent counsel of one's own choice, inasmuch as appellant claims that the police authorities ignored his initial request to wait for his mother who was scouting for a lawyer. Appellant thus testified:
"Q: A: Q: A: Q: A: Q: A: When you were brought by the policemen to the General Headquarters, did you ask some favors for your protection? Yes, sir. What protection did you ask from the policemen? While I was investigated I was telling them to wait for my mother who was then looking for a lawyer for me. To whom did you ask this request? To Corporal Bagallon, sir. What was the response of Corporal Bagallon? Never mind."[8]

Appellant is nonetheless deemed to have waived this defect when, as shown by the following excerpts from his extrajudicial confession (Exh. "K") he agreed to be represented by Atty. Ferraren in lieu of a counsel of his own choice. Thus:
"PAALAA(sic).: Ikaw SABAS CALVO Jr., ay nasa ilalim ngayon ng isang pagsisiyasat hinggil sa isang krimen na naganap noong petsa 26 ng Setyembre, 1987, sa loob ng isang bakery shop sa kalye Espaa, Sampaloc, Manila, na kung saan ay may nasawina nagngangalang IGNACIA MAULEON. Bago ka namin isailalim sa pagsisiyasat, ikaw ay aming pinaaalahanan na may mga karapatan ka sa ilalim ng ating bagong Saligang Batas, bilang isang taong nasasailalim ng isang pagsisiyasat o imbestigasyon, tulad ng mga sumusunod: 01. T: Ikaw ay may karapatang manatiling tahimik, huwag magbigay ng isang salaysay o tumangging sumagot sa anumang katanungan, ano ngayon ang iyong masasabi? S: Magbibigay po ako ng salaysay. Isasalaysay mga pangyayari. 02. T: Ikaw ay may karapatan pa ring kumuha ng serbisyo ng isang abogado para makatulong mo sa imbestigasyong ito at dahil din sa nasabi mo sa amin kanina na pansamantala ay wala kang makukuhang abogado ikaw ngayon ay aming bibigyan ng libreng abogado sa pamamagitan ng pamahalaan o gobierno natin at ito ay nasa katauhan ni ATTY. ALFREDO FERRAREN, tinatanggap mo ba na maging abogado mo ngayon si Atty. Ferraren? S: Opo. 03. T: Naiintindihan mo ba ang lahat ng mga karapatan mo na ipinaliwanag namin sa iyo? S: Opo. 04. T: Sa kabila ng mga karapatan mo na aming ipinaliwanag sa iyo. ikaw pa rin ba ay nakahandang magbigay sa amin ng isang malaya at kusang loob na salaysay sa harap ni ATTY. FERRAREN? S: Opo. (Underscoring supplied).

(At this juncture, ATTY. ALFREDO FERRAREN, JR., conceded to push thru with the taking down of declarant's statement after the latter signified his willingness and voluntariness to give a free and voluntary statement)

SGD. ______________________ ATTY. ALFREDO FERRAREN, JR. Citizens Legal Assistance Office QUEZON CITY DISTRICT OFFICE 646 Perlas Building Quezon Avenue, Q. C. "

SGD. _________________ SABAS CALVO, JR. (Declarant)

Having been cleared of any irregularity, we therefore uphold the admissibility of appellant's extrajudicial confession which, by itself, is sufficient basis for his conviction. A confession, to recall, constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. This presumption of spontaneity and voluntariness stands unless the defense proves otherwise. [9] Even if the extrajudicial confession be ignored by assuming, for argument's sake, that the alleged "irregularities" indeed marred its execution, there is nonetheless other evidence particularly the identification made by prosecution witnesses Beatriz Bido and Lucila Gorospe upon which appellant's guilt was duly established. Witness Bido identified appellant as one of the two (2) men (the other was Bobby Gaspar) who went out of deceased Ignacia Mauleon's room and who angrily told her not to shout otherwise she will be shot. She further testified that after appellant and Bobby Gaspar left the room and went downstairs already carrying a bag, she went inside the room which was already in disarray and saw the bloodied, lifeless body of Ignacia Mauleon sprawled on the floor.[10] Witness Gorospe corroborated Bido's identification of appellant when she testified that from her vantage point (in front of her own store which is just seven (7) meters away from deceased Ignacia Mauleon's bakery), she identified appellant who was carrying a shoulder bag, as one of the two (2) men coming down from the stairs of deceased Mauleon's bakery and who thereafter ran away at a very fast pace, with one Henry Jordas giving chase. Henry Jordas, according to Gorospe, nonetheless gave up his pursuit when appellant pointed a gun at him. Witness Gorospe also stated that she was familiar with appellant, having seen the latter in front of deceased Mauleon's bakery on three (3) previous occasions.[11] Contrary to appellant's claim, the credibility of witness Bido is not at all shattered by the fact that during the police line-up held on September 30, 1987, she pointed to Jose Balsolaso as Bobby Gaspar's companion in the crime committed at the Mauleon bakery. She has offered a satisfactory explanation by saying that she has honestly mistaken said Balsolaso for appellant, as both have similar facial features.[12] Besides, what is more determinative is her identification, in open court, of appellant as the one present at the scene of the crime with Bobby Gaspar. Thus,
"Q: Now, before this Court, will you kindly point to the person whom you saw the presence at the scene on September 26, 1987 whom you saw at that time held a gun whom you said pointing at you saying that you should not shout? A: It was Sabas Calvo. Q: For purposes of identification . . . ATTY. POTOT: It was already answered, Your Honor, Sabas Calvo. FISCAL PATAG: For purposes of identification, Your Honor. COURT: Let the witness answer. WITNESS: Witness pointing to a person who identify himself as Sabas Calvo."[13] (undersoring supplied)

With the identification of appellant made by witnesses Bido and Gorospe whose testimonies appear credible and who have not been shown to have been driven by any ill-motives in implicating him in the crime, appellant's claim of non-involvement must therefore fail. Alibi and denial, to repeat, cannot prevail over positive identification. [14] In fine, appellant's conviction for robbery with homicide as charged, is in order. We nonetheless have to correct that portion of the appealed decision (specifically in the dispositive portion) where the trial court, while correctly imposing the penalty of reclusion perpetua pursuant to the first paragraph of Article 294 of the Revised Penal Code, apparently equated such penalty with life imprisonment. Both are different and distinct penalties.[15] As explained in "People vs. Baguio."[16] "The Code does not prescribe the penalty of 'life imprisonment' for any of the felonies therein defined, that penalty being invariably imposed for serious offense penalized not by the Revised Penal Code but by special laws. Reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon, it also carries with it accessory penalties, namely: perpetual special disqualification, etc. It is not the same as 'life imprisonment' which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration." WHEREFORE, save for the slight modification removing from its dispositive portion the alternative reference to "life imprisonment", the assailed decision dated March 31, 1989 convicting appellant Sabas Calvo, Jr. of the crime of robbery with homicide, is hereby AFFIRMED in all other respects. SO ORDERED.

(37) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO RAMBO LISING, RODOLFO MANALILI, FELIMON GARCIA, ENRICO DIZON and ROBIN MANGA, accused-appellants. [G.R. No. 106210-11. January 30, 1998] KAPUNAN, J.: The parents of Cochise and Beebom must have lifted their sorrowful faces heavenward and blurted out an anguished cry: Oh God! Why must it be they, so young, so loving, so beautiful and so promising, to be brutally snatched from our embrace and never to be seen again? Conchise, whose full name was Ernesto Bernabe II, was 26 years old on the fateful day of April 26, 1990 and Ana Lourdes Castaos, or Beebom to her family and friends, was 22. Cochise had just graduated from the University of the Philippines with a degree of Bachelor of Laws and was reviewing for the bar examinations, while Beebom was a graduating student at the College of Mass Communications from the same university. Both excelled in academic and extra-curricular activities. The senseless and gruesome killing of the young man and woman, both full of promise, horrifies us. But what makes this crime more despicable in our eyes is the involvement of people sworn to uphold the law. For the crimes for which they were charged and sentenced, appellants now come to this Court asking us to give their case a second look, insisting on their innocence. Sometime in March, 1990, Rodolfo Manalili, a businessman asked Felimon Garcia, his townmate, if he knew somebody who could allegedly effect the arrest of one Robert Herrera, the suspect in the killing of his brother, Delfin Manalili. Felimon Garcia said he knew one and arranged a meeting with him. On April 21, 1990, Felimon Garcia called up Manalili and informed him that he already contacted a policeman to help him and said that the policeman wanted to talk to him. So an appointment was set at 12:00 p.m. of April 22, 1990 at Dau Exit, North Expressway, Mabalacat, Pampanga. On said date Manalili, together with his son Richard, arrived at the Dau Exit at about 12:30 p.m. of April 22, 1990. Felimon Garcia was already there waiting for Manalili. They proceeded to the Golden Palace Chinese Restaurant where they would meet Roberto Lising. They, however, had to change venue because Roberto Lisings live -in partner, Ligaya Faustino and other companions were in the restaurant. So they went instead to a nearbycarinderia and instructed Felimon Garcia to follow them there. Shortly, Felimon Garcia arrived and introduced Roberto Lising, Enrico Dizon and another man armed with a service pistol to Manalili. During the meeting, Manalili gave them P2,000.00 and instructed them to go and see Vic Nabua,* his employee who will point to them the person to be arrested. On April 23-24, Lisings group went to Quezon City and met Vic Lisboa. They conducted a surveillance on the Castaos residence in the hope of seeing Herrera. Failing to do so, the group was asked to come back the next day. On April 25, the same group arrived at the vicinity of the Castaos residence at around 5:00 p.m. to resume their surveillance. Two hours later, Lisboa alerted the group after allegedly spotting Herrera entering the Castaos residence. Later, the group saw a man and a woman who happened to be Cochise and Beebom leave the Castaos residence in a green box type Lancer car. The group followed the Lancer car with Lising, Dizon and Manga riding in a black car and Lisboa and Garcia in a motorcycle. The Lancer car went to Dayrits Ham and Burger House on Timog Circle, Quezon City where the couple intended to have dinner. Alighting from the car, they were accosted by Dizon and Manga who were both carrying firearms. Amidst protestations, Dizon poked his gun at Cochise, handcuffed him, and shoved him into the car. Beebom protested loudly at the arrest and was also shoved into the back of the car. The young couples failure to go home that night and the next day alarmed their parents, so a search was then initiated by cl ose friends and relatives - inquiring from hospitals, restaurants, friends houses and possible places where the couple would go. One group chanced upon Dayrits Ham and Burger House where they were told that a couple who fitted their descriptions were taken by three (3) men believed to be from the military in the evening of April 25, 1990. The abduction of Cochise and Beebom hit the front pages. Appeals by the parents to locate them reached the authorities where all possible angles of their disappearance were explored but there were no significant leads. After about two (2) months of futile search for their whereabouts, a break came on June 21, 1990 when two (2) security guards working in a Shellane Warehouse in San

Fernando, Pampanga went to see Ms. Rosie Bernabe at her Pasay City Hall office and had information concerning her son, Cochise. Mrs. Bernabe referred the two guards to the CAPCOM who interviewed them. The two guards told the CAPCOM that their friends Raul Morales and Jun Medrano, both employees of Roberto Lising, informed them that Lising killed a mestisuhin man and a woman in their warehouse. On June 23, 1990, Raul Morales was picked up and told his story. In a sworn statement executed on even date, he stated that he was apahinante residing in the warehouse where LPG cylinders are stored, located near Valle Verde Drive-In Lodge in San Fernando, Pampanga, owned by Ligaya Fausto, common-law wife of Roberto Lising alias Rambo. In the main, he said: 21. T: Sa ikaliliwanag ng pagsisiyasat na ito, maaari bang isalaysay mo ang sinasabi mong hindi pangkaraniwang pangyayari? S: Nangyari yan alas 2:00 ng madaling araw ng 26 April 1990 natutulog ako, nang mayron kumatok sa pinto ng bodega at nagising ako. Tinawag ko si Aida Morales para buksan ang gate tapos sabi ni Aida Ikaw na lang ang magbukas pagkatapos kinuha ko yung susi sa kanya para buksan ang yong gate. Noong binubuksan ko yong gate sabi sa akin ni Roberto Llising Bakit ang tagal mo tapos pakabukas ko ng gate pumasok yong dalawang kotse una yung itim pagkatapos yung green na kotse na Lancer, tapos unang bumaba sa kotse na itim si Rambo, pangalawa si Felimon bumaba sa kotse na Lancer may dala na pala. Pagkatapos lumabas ng gate si Felimon may dala na pala. Si Rambo naman binuksan yong dalawang pinto ng kotseng itim bumaba yung babae at saka yung lalaki hinila palabas ni Rambo. Pagkatapos tinalian niya ng alambre bukod pa sa pagtali ng alambre pati pa yong mukha tinalian ng damit. Pagkatapos pagtali ni Rambo, biglang dumating si Felimon dala pa yong pala pagkatapos sininyasahan si Rambo na ilabas na iyong lalaki. Dinala ulit ni Rambo yung pala noong palabas na sila nung lalaki. Pagkatapos ayaw nga lumabas ng lalaki, itinulak ni Rambo papunta sa labas, sabi naman ng babae maawa naman po kayo sa amin dahil wala kaming kasalanan pagkatapos tinutukan ni Rambo yong babae at sabi Puta ng ina mo, wag kang maingay, papatayin rin kita. Noong dinala na ni Rambo, umiiyak na lang yong babae. Mga kalahating oras bago bumalik si Rambo sa bodega na hindi na kasama yong lalaki. Nakahubad siya at pinapawisan, bukod pa yan, naghugas pa ng kamay siya. Pagkatapos nag-usap-usap silang tatlo, si Rambo, si Felimon at yong kasama ni Rambo. Pagkatapos nagsabi si Rambo sa akin na buksan na ang gate at aalis na sila. Binuksan ko ang gate at nagsakayan sila sa kotse, si Rambo sa itim at saka yong babae, sa Lancer naman ang nakasakay yong kasama niya at si Felimon, at pagkatapos lumabas na sila, tuloy-tuloy na umalis.[1]

On June 25, 1990, the body of Cochise was exhumed. An autopsy was conducted where the finding was: Cause of Death: Multiple Stab Wounds The next day, Beeboms body, which was in an advanced decomposing stage was exhumed from a shallow grave, two (2) kilometers from where Cochises body was fou nd. After evading arrest the previous days, Roberto Lising was finally apprehended on June 30, 1990. In a Sworn Statement on the same day at Camp Bagong Diwa, Bicutan, he implicated Felimon Garcia and Roberto Manalili. According to him, this is what happened: x x x at about 11:00 oclock in the evening of April 25, 1990, he received a telephone call from FELIMON GARCIA informing that he and his companions were at Valle Verde Lodge at San Fernando, Pampanga and that they have a problem. He immediately went to that place and saw FELIMON GARCIA who introduced to him RUDY MANALILI who was then accompanied by six (6) other men; that he saw a yellow Mercedes Benz, a black Torana and a green Lancer; that on board the Lancer were a man and a woman who were blindfolded and were introduced to him by RUDY MANALILI as ROBERTO HERRERA and JOY MANALILI; that they proceeded to one of the rooms of the motel where MANALILI told him that the two persons should die because they killed his brother DELFIN MANALILI; that afterwards RUDY MANALILI paid the chit and they proceeded to the warehouse at Villa Victoria, San Fernando, Pampanga, owned by LIGAYA FAUSTO where he bound COCHISE and led him back of the warehouse; that MANALILI stabbed COCHISE and he acted only as a look-out; that FELIMON GARCIA and another person brought the blindfolded woman to Brgy. San Agustin where she was killed that before he, FILIMON GARCIA and RUDY MANALILI parted ways, MANALILI told him to take care of the Lancer, change its color and later he will get it and after that he was given P40,000.00 in check which he encashed at the UCPB Diliman Branch, Quezon City on April 26, 1990; that he gave P15,000.00 to FELIMON GARCIA and kept the rest; that he had the Lancer repainted and used it. [2] Thereafter, the manhunt for Felimon Garcia and Rodolfo Manalili began. One by one, the men responsible for the killing of Cochise and Beebom fell into the hands of the authorities. On January 4, 1991, Garcia surrendered and was brought to the NBI. He named Pat. Enrico Dizon as the companion of Lising when Cochise and Beebom were kidnapped and brought to Valle Verde Lodge. He refused to make a statement or give further information until Rodolfo Manalili was arrested. On January 16, 1991, Enrico Dizon was turned over by his superiors to the NBI. He named a certain CIC Robin Manga as one of their companions and owner of the car they used when Cochise and Beebom were kidnapped. Thus, Manga was also picked up.

Meanwhile, Rodolfo Manalili, who was in Australia at that time was fetched by then NBI Director Alfredo Lim and Atty. Diego Gutierrez after proper representations were made with the Australian police. On January 17, 1991 Felimon Garcia, with the assistance of his counsel, Atty. Redemberto Villanueva, executed a statement revealing that: x x x he met RODOLFO MANALILI sometime in April 1987 in his office at No. 71 Mapang-akit Street corner V. Luna, Quezon City while soliciting contribution for Barangay fiesta of San Isidro, Minalin. The relationship continued until he was requested by MANALILI to look for persons who could help in arresting ROBERTO HERRERA, the suspect in the killing of his brother DELFIN MANALILI. He contacted ROBERTO LISING alias RAMBO, a policemen assigned with Pampanga PC Intelligence Unit, thru LIGAYA FAUSTO, his relative and live-in partner of LISING, to help in the arrest of HERRERA, and on April 21, 1990, while in the residence of LISING, he placed a long-distance call to MANALILI to inform him that LISING is willing to help. They talked over the phone and agreed to meet the following day in Dao. He met MANALILI at the Dao-Mabalacat exit and accompanied the latter to LISING, ENRICO DIZON AND ANOTHER MAN ARMED WITH SERVICE PISTOL (.45 CALIBER AND Armalite. MANALILI, during the meeting, said that VIC NABUA, his employee, will act as pointer of the persons to be arrested and LISING agreed and asked from MANALILI P50,000.00 for the job to which MANALILI agreed. Initially MANALILI gave P2,000.00 to LISING as expenses. He together with LISING, ENRICO DIZON and the driver of a Tamaraw went to Quezon City on April 23 and 24, 1990, but VIC NABUA failed to spot HERRERA. On April 25, 1990, LISING and DIZON returned on board a black car, Colt Galant (sic) driven by ROBIN MANGA and NABUA finally told then that HERRERA was at a house near the Camelot. After a few minutes of surveillance NABUA approached them and told them to follow the car driven by a man with a woman companion. Said car proceeded to Timog Circle and parked in front of Dayrit Hamburger House, followed by the Colt Galant which they likewise followed on board a motor and handcuffed the man and the woman. Then LISING instructed him to contact MANALILI and VIC NABUA proceeded to Pampanga PC where they were instructed by the military on duty to proceed to Valle Verde Lodge, San Fernando, Pampanga. There they saw LISING and ERNESTO COCHISE BERNABE and BEEBOM CASTAOS. MANALILI identified them and instructed him and LISING to release COCHISE and BEEBOM and assured that whatever MANALILI promised to LISING WILL BE PAID. Lising AGREED. However, after MANALILI left, LISING told him to bring COCHISE and BEEBOM to a warehouse owned by LIGAYA FAUSTO where COCHISE was killed by LISING. Thereafter BEEBOM was forced by ENRICO DIZON and ROBIN MANGA top board the Galant car which left the warehouse towards Barangay San Agustin. He and LISING were left in the warehouse and proceeded to the house of LIGAYA FAUSTO at MALIGAYA Village in San Fernando. At about 9:00 a.m. he and LISING went to the warehouse of MANALILI at Xavierville Subdivision, Quezon City and there a check forP40,000.00 was given to LISING who encashed it with Fareast Bank and went to Pampanga. He alighted at Sto. Domingo, Minalin, Pampanga after LISING gave him P500.00.[3] Rodolfo Manalili, on the other hand, with the assistance of Atty. Rodolfo Jimenez manifested on January 18, 1991: That he met LISING through FELIMON GARCIA whom he requested to look for some police officers who could help in the arrest of ROBERTO HERRERA, the accused in the killing of his brother DELFIN MANALILI. He met LISING together with a certain Pat ENRICO DIZON of the Guagua police and another police officer in Dau, Pampanga on April 22, 1990, and gave them a sketch of HERRERA. On April 24, 1990, he told GARCIA to postpone their plan against HERRERA due to his forthcoming travel to Germany on April 25. However, at about 10:00 p.m. of April 25, GARCIA came to his office at No. 71 Mapangakit, Diliman, Quezon City and informed that they have already arrested HERRERA with a lady companion and that he was instructed to go to Pampanga, which he did. He was accompanied in his car by GARCIA and VICTOR LISBOA. They proceeded to Valle Verde Hotel in San Fernando, Pampanga, and brought him to Room 213 where he saw a man slumped on the floor with his eyes and mouth covered with tape. The lady companion sitting on the bed had her eyes also taped. He told LISING that the man is not HERRERA. He was forced to peek (sic) inside the room anew, and this time recognized the woman to be BEEBOM CASTAOS. He pleaded to LISING and companions to release them and would give them whatever amount he promised them. After he was told that BEEBOM and COCHISE would be released he instructed GARCIA to stay behind and see to it that his instructions were complied with. Then, he returned with VICTOR LISBOA. The following day, at about 8:00 a.m., LISING and GARCIA came to his house and told him that the man and BEEBOM were already released and in turn gave them a Far East Bank check in the amount ofP40,000.00. On April 26, he left for Germany and returned on May 28, 1990. While still in Germany his wife and househelps have been receiving threatening telephone calls and on the first week of June he received a call from GARCIA who gave the telephone to LISING who asked for P60,000.00, otherwise he will kill him or implicate him in the crime.

On June 21, 1990 he left for Hong Kong then to Melbourne for fear of his life and that of his family. He claimed that the police officers he saw in Valle Verde Hotel were Pampanga policeman and not Quezon City policeman.[4] Consequently, two (2) Amended Informations were filed in court against Roberto Rambo Lising, Rodolfo Manalili, Felimon Garcia, Enrico Dizon, Robin Manga, and Ligaya Fausto. Criminal Case No. Q-90-15239 For Carnapping (Violation of Republic Act No. 6539) [5] That on or about the 25thday of April 1990, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, P/Pfc. Roberto Lising y Canlas, Enrico Dizon, Robin Manga y Quimzon, being then members of the Integrated National Police with Presidential waiver, and Rodolfo Manalili, Felimon Garcia and Ligaya Fausto, private individuals and several Does, conspiring together, confederating with and mutually helping one another, with intent to gain, and without the knowledge and consent of the owner thereof, by means of violence and intimidation against persons, did, then and there, willfully, unlawfully and feloniously take, rob and carry away one G.T. Lancer, with plate No. PER 942 in an undetermined value and belonging to Ernesto Bernabe II, to the damage and prejudice of the offended party in such amount as may be awarded under the provisions of the Civil Code. [6] Criminal Case No. Q-90-15240 For: Kidnapping with Double Murder[7] That on or about the 25th day of April, 1990, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, P/Pfc. Roberto Rambo Lising y Canlas, Enrico Dizon, Roberto (sic) Manga y Quimzon, being then members of the Integrated National Police with Presidential waiver,and Rodolfo Manalili, Felimon Garcia, both private individuals, and several Does, conspiring together, confederating with and mutually helping one another, did, then and there, willfully, unlawfully and feloniously and for the purpose of detaining Ernesto Bernabe II y Blanco @ Cochise and Ana Lourdes Castaos y Jis de Ortega @ Beebom, kidnap or in any manner deprive them of their liberty and thereafter, pursuant to their conspiracy, took them to San Fernando, Pampanga, and with intent to kill, with treachery, evident premeditation and cruelty, did, then and there stab them several times in the chest and slit open their necks, augmenting their sufferings which were the direct and immediate cause of their deaths and thereafter burying them to prevent discovery, and Ligaya Fausto, also a private individual, knowing the criminal intent of the above-named principal accused cooperated in the execution of the crime by supplying material and/or moral aid, to the damage and prejudice of the Heirs of said victims in such amounts as may be awarded to them under the provisions of the New Civil Code. [8] Upon arraignment, all the accused pleaded not guilty. In building up their case, the prosecution presented two vital witnesses: Froilan Olimpia, who witnesses the abduction of the young couple at Dayrits Ham and Burger House; and Raul Morales, the pahinante who testified on the killing of Cochise. On May 27, 1991, Froilan Olimpia testified in court and stated that he was 31 years old and was formerly a security guard of Nationwide Security and Investigation Agency. He was assigned at the Rotonda Wine Station, the establishment beside Dayrits Ham and Burger House along Timog Circle, Quezon City. His tour of duty on April 25, 1990 was from 12:00 noon to 12:00 midnight. At about 7:00 to 7:30 in the evening, Olimpia was at his post in front of the Wine Station. There was a green box type Lancer car which parked in front of the Dayrits Ham and Burger House carrying a man and a woman. Then a black car with no license plate parked behind the green car and two men alighted from it carrying guns. They announced that they were policemen, one was carrying a .45 caliber firearm in his holster and other was carrying a long firearm. These men went towards the green box type Lancer and handcuffed its driver. He only heard the man being handcuffed retort Bakit? When asked about the female companion, he said that his attention was more focused on the handcuffing incident and just later noticed that the woman was already seated at the back of the car. He did not even see the other man driving the black car. Olimpia further explained that the security guard of Dayrits Ham and Burger House, Anastacio dela Cruz, was not really able to witness the whole incident since he was busy buying a cigarette stick from a nearby vendor. Just when the latter was returning to his post, the cars were already backing up ready to leave. He did not tell anyone about the incident nor bothered to report to the authorities since he was aware that the perpetrators were policemen. He came to know about the identities of the man and woman and their disappearance when two persons were making inquiries about them on April 27, 1990. The next time, another group of people asked him about what he witnessed until he was picked up by the NBI for further questioning about the whole incident. Raul Morales was presented in court on April 17, 1991. He stated that since March 1988, he had been working for Ligaya Fausto and Roberto Lising as a pahinante or truck helper of Crown Gas Commercial, a dealer of LPG, located in Valle Victoria Village, San Fernando, Pampanga. He knew Roberto Lising to be a policeman and is known by the name Rambo Lising. He works

as a policeman in the morning and when he returns home after work, helps in delivering gas. During his testimony, Morales was given a clean sheet of paper and pen where he was asked to make a sketch of his place of work. At about 2:00 in the morning of April 26, 1990, he was awakened by a knock at the gate of the warehouse. When he opened the gate, two cars came in: a green box-type Lancer car driven by Lising, with Felimon Garcia seated in front, a man and a woman at the back seat of the car; and a black car with Dizon and Manga. After the two cars entered the premises, he saw Lising go behind their sleeping quarters and get a wire. Lising and Dizon then brought Cochise to an area in the middle of the warehouse while Manga led Beebom to another end. After alighting from the car, Felimon Garcia got a spade from the back compartment of the car and went out of the warehouse. Lising and Dizon then removed the handcuffs of Cochise, tied his hands with the wire and blindfolded him with a tape and torn cloth. Morales further testified that it was Lising who closed the gate but left it ajar. In a little while, he noticed another man enter the gate and walked towards Beebom. He heard the woman plead: Uncle, maawa po kayo sa amin, while Manga was tying Beeboms hands with the wire. Garcia, after going inside the warehouse, was handed a knife by Lising which he used to stab Cochise on the chest. Lising then retrieved his knife from Garcia and continued to stab Cochise. When Cochise was already dead, the four men, namely, Lising, Garcia, Dizon and Manga carried Cochise out of the warehouse. They were away for about half an hour and when they came back, the four men directly went to the well and washed their hands. The four walked towards Manalili and talked with each other. He could not hear the conversation but saw that they grouped themselves together. Before leaving, Lising called on Morales and told him to close the gate and keep the shoes of Cochise. Lising boarded the green box-type Lancer car with Garcia and the woman. He noticed Rudy Manalili walk out of the gate. On April 26, 1991, the court conducted an ocular inspection of the scene of the crime. Witness Morales pointed to the court how events transpired from where he was seated. On the basis of the testimonies of the above witnesses, plus the confessions made in the extrajudicial statements executed by Roberto Lising, Felimon Garcia, and Rodolfo Manalili, the prosecution presented their version of the incident as quoted from the trial courts decision, to wit: 1. The conspiracy to abduct and subsequently kill Ernesto Cochise Bernabe II and Ana Lourdes Beebom Castaos was hatched sometime in March 1990 when accused Rodolfo Manalili secured the services of accused Felimon Garcia to look for men who would be willing to commit the dastardly deed for a fee. (Exhi bits HH and MM). 2. Accused Garcia then set about on his task and contacted accused Roberto Lising and Enrico Dizon for the job. (Ibid.) 3. At a meeting arranged by Garcia on 22 April 1990, accused Manalili talked with Lising and Dizon at Mabalacat, Pampanga about the details of the conspiracy. (Ibid.) 4. Accused Manalili promised Lising, Dizon and their companions the amount of P50,000.00 for the job. (Ibid.)

5. Lising and Dizon readily accepted Manalilis using a total of P10,000.00 as downpayment, the balance of P40,000.00 payable after the victims have been kidnapped and killed. ( Ibid.) 6. Accused Lising and Dizon then recruited accused Robin Manga to help implement the orders of Manalili. ( Ibid.)

7. On 25 April 1990, at around 5:00 oclock in the afternoon, accused Lising, Dizon, Garcia and Manga, on board Mangas black car, went to the vicinity of the Camelot Hotel at Quezon City. They positioned themselves about 60 meters away from the Castaos residence and waited for the victims. (Exhibit MM) 8. At around 6:30 oclock in the evening of the same day, Cochise and Beebom went out of the Castaos residence, boarded Cochises green colored 1985 Lancer car with plate No. PER 942. ( Ibid.) This Lancer car is owned by, and registered under the name of Cochises father, Fiscal Ernesto Bernabe. (Exhibit DD) 9. Cochise and Beebom then proceeded toward Dayrits Ham and Burger House at Timog Avenue, Quezon City. ( Ibid.)

10. Accused Lising, Dizon, Garcia and Manga immediately boarded Mangas black car and tailed the green Lancer. (Ibid.) 11. Upon reaching Dayrits hamburger House, Cochise parked the green Lancer in front of the restaurant. (TSN, 7 May 1991, p.6) 12. Immediately thereafter, Mangas black car was parked immediately behind. ( Ibid.)

13. Accused Dizon, armed with a .45 caliber pistol, and accused Manga, carrying a long firearm, alighted from the black car, proceeded towards the green Lancer and announced that they are policemen. (Id. At 7)

14. While Cochise and Beebom were alighting from the green Lancer, Dizon approached, pointed the .45 caliber pistol at Cochise and handcuffed Cochises hands behind his back. ( Id., at 8) 15. 16. Cochise, visibly surprised and confused, asked Dizon, Bakit? (Id. at 14) Accused Dizon ignored the question and rudely pushed Cochise into the back seat of the green Lancer. ( Id., at 7-9)

17. Similarly, accused Manga approached Beebom at the other side of the green Lancer, and pushed her into the other back seat of the green Lancer. (Ibid.) 18. Accused Dizon and Manga then boarded the front of the green Lancer, backed the car out of the parking area of Dayrits Ham & Burger House and drove away towards EDSA. ( Id.at 11) 19. Accused Lising and Garcia, on board Mangas black car, immediately followed. ( Ibid.)

20. After the forcible abduction of Cochise and Beebom, Garcia informed Manalili of the success of the operation. Garcia further told Manalili to go to a designated place in San Fernando, Pampanga, where Cochise and Beebom will be taken. (Exhibit MM) 21. Manalili then proceeded to San Fernando, Pampanga on board his gray Mercedes Benz. ( Ibid.)

22. At around 2:00 oclock in the morning of 26 April 1990, a ccused Lising, Dizon, Garcia and Manga brought Cochise and Beebom to a bodega in San Fernando, Pampanga owned by accused Ligaya Fausto. (TSN, 18 April 1991, p.6) 23. At this time, Lising was driving the green Lancer with Garcia at the front seat. At the rear of the car were Cochise and Beebom. (Id. at 8) 24. Manga, on the other hand, was driving the black car, with Dizon beside him. ( Id., at 8)

25. After the green Lancer and the black car were parked inside the bodega, Cochise, blind-folded, handcuffed and gagged with several strips of masking tape, was dragged out of the green Lancer by Lising and Dizon towards an area near the toilet. (Id., at 9-10; TSN, 26 April 1991, p.3) 26. Beebom, on the other hand, was taken by Manga to another area of the Bodega where she could not see Cochise or hear what was being done to him. (Ibid.) 27. At this point in time, Manalili arrived, parked the car on the road outside the bodega and walked inside towards Beebom. (TSN, 18, April 1991, p.11) 28. 29. Beebom, seeing Manalili, pleaded, Uncle, parang awa mo na. Wala kaming kasalanan. (Ibid.) Manalili simply ignored Beeboms plea for mercy. ( Ibid.)

30. Meanwhile, Garcia went to the back of the green Lancer, got a spade from the truck compartment, and went out of the bodega. (Ibid). Garcia walked towards the back of the bodega and there, dug a shallow grave. (Exhibit HH) 31. Lising went to the clothesline area of the bodega, got a length of a laundry wire and some clothes which he tore apart and made into makeshift ropes. (TSN, 18 April 1991, p. 12) 33. 34. Garcia then returned to the bodega with the spade still in his hands and approached Cochise. ( Id., at 14) Lising handed a knife to Garcia, who then stabbed Cochise in the chest. (Ibid.)

35. Lising, appearing, dissatisfied, grabbed the knife from Garcia and stabbed Cochise several times in the chest and stomach area, as if telling Garcia how to do it. All this time, Dizon was holding Cochise. (Id., at 14-15) 36. Cochise then fell to the ground, mortally wounded. (Ibid.)

37. Thereupon, Dizon motioned to Manga to help carry the body of Cochise. Manalili then was left to keep watch over Beebom. (Id., at 16) 38. Lising, Dizon, Garcia and Manga brought Cochise to the back of the bodega, into the shallow grave dug by Garcia. The four then covered cochise with soil. (TSN, 26 April 1991, p. 6; Exhibit MM) 39. 18) They then reported to Manalili for final instructions. The order was for all of them to leave. (TSN, 26 April 1991, p.

40. Beebom inquired about Cochise, Lising and Dizon answered that they had released Cochise, and that they would likewise release her. (TSN, 18 April 1991, p. 18; Exhibit MM)

41. Thus, the five accused left the bodega, Dizon and Manga on board the black car, Manalili in his own car, and Lising, Garcia and Beebom in the green Lancer. (TSN, 18 April 1991, p. 18) 42. Later, upon the instructions of Lising, Dizon and Manga took Beebom with them on the black car. (Exhibit MM). This was the last time that Beebom was seen alive. 43. At around 5:00 oclock in the morning of the same day, Fausto arrived at her bodega and waited for Lising to arrive. (TSN, 18 April 1991, p. 20) 44. About an hour later, Lising arrived on board the Lancer car taken from Cochise. Lising alighted from the Lancer car, proceeded to one of the huts in the bodega where Fausto was staying, and informed Fausto about the taking of the Lancer car. (Id., at 21) 45. After a few minutes, Fausto emerged from the hut and instructed a certain Jun Medrano, one of Faustos helpers in the bodega, to drive the Lancer car to her house in Maligaya Village, San Fernando, Pampanga, and hide it there. (Id., at 22) 46. Pursuant to Faustos instruction, Jun Medrano, together with two other helpers of Fausto, Raul Morales, and a certain Nonoy, drove the Lancer car to Faustos house and hid it in the barbelan area of the house. (Id., at 23-24; Exhibit Y) 47. Meanwhile, satisfied that his orders had been fully implemented, Manalili paid Lising the P40,000.00 balance of the contract, by issuing a Far East Bank check for the said amount to Lising at around 8:00 oclock in the morning of 26 April 1990. (Exhibits K and HH) 48. Lising immediately encashed the check and distributed the proceeds among himself and the other accused, Exhibits K-2 and MM) 49. The Lancer car taken from Cochise, on the other hand, remained hidden for sometime at the residence of Fausto in Maligaya Village where it was repainted to a light gray color upon the instruction of Fausto. (TSN, 18 April 1991, pp. 2627; Exhibits CC, CC-1 to CC-6) 50. After the Lancer car was repainted to light gray, Faustos helpers in the bodega, namely, Jun Medrano, Raul Morales, Rudy, Bebot and Arnold, upon Faustos instructions, pushed the Lancer car for about fifteen minutes to have its engine started. Thereafter, the Lancer car was driven to Faustos bodega. (TSN, 18 April 1991, pp. 28-29) 51. Lising and Fausto thereafter started using the Lancer car in going to the bank and other places in San Fernando, Pampanga. (Ibid.) 52. The Lancer car was subsequently recovered by the PC/CAPCOM and turned over to the custody of Fiscal Ernesto Bernabe. (Exhibits CC, CC-1 to CC-6 and EE) 53. On 25 June 1990, after two months of frantic and exhaustive search made by the Bernabe family, the body of Cochise was found and exhumed from the grave where Cochise was buried by Lising, Garcia Dizon and Manga at the back of Faustos bodega in San Fernando, Pampanga. It was determined during an autopsy that Cochise died to multiple stab wounds in his chest and upper stomach. (TSN, 10 April 1991, p. 33; Exhibits D, D-1 E and E-1 54. The next day, also after two months of frantic and exhaustive search made by the Castaos family, the body of Beebom was found and exhumed from a shallow grave about two kilometers from the bodega of Fausto. It was determined during the autopsy that Beebom died of severe hemorrhage, secondary to two stab wounds in the chest. (TSN, 10 April 1991, p. 40; Exhibits 1 and J) 55. Cochise was 26 years old and Beebom was 22 years old when their lives were untimely ended by the accused. Cochise had just finished his Bachelor of Laws degree from the University of the Philippines and was then reviewing for his bar examinations when he was abducted on 25 April 1990. Beebom, on the other hand, was a graduating Mass Communication student of the University of the Philippines when she was abducted on 25 April 1990. Both Cochise and Beebom excelled in academic and extra-curricular activities, their written works having been published in periodicals and other publications. Cochise and Beebom were in the best of their youth and health at the time of their untimely death. (TSN, 9 August 1991, pp. 4-7; TSN, 23 July 1991, pp. 24-26; Exhibit II) 56. The Bernabe family, in their attempt to locate Cochise spent a total of P380,000.00. in laying Cochise to his final rest, the Bernabe family spent a total of P632,222.00 for funeral and other expenses. (TSN, 9 August 1991, p. 12; Exhibits LL, LL-1 to LL-3) 57. The Castaos family, on the other hand, spent a total of P350,000.00 for the funeral services for Beebom. (TSN, 23 July 1991, p. 39)[9] In their defense, the accused policemen claimed that there was insufficient evidence to sustain their conviction. At the same time, each one had an alibi.

Roberto Lising asserted that on April 25, 1990, he took a leave of absence from office to be able to celebrate his fathers b irthday in Arayat, Pampanga and stayed there for the night. His father was presented to corroborate his assertion. Enrico Dizon testified that April 25, 1990 was an ordinary working day for him. He left the office at 5:00 p.m. and headed for home at NO. 107 Kamia St., Bgy. Sindalen, San Fernando, Pampanga. In fact, two of his neighbors recounted in court the verbal exchange they had when they saw each other in their neighborhood. Roberto Manga, meanwhile averred that it was impossible for him to participate in the commission of the crime since he was still nursing his gunshot wounds sustained in an encounter with lawless elements for about a year already. Garcia and Manalili did not take the witness stand. They opted to rely on their extrajudicial statements executed the previous days manifesting the absence if criminal intent. On July 1, 1992, the trial court rendered a decision with the following dispositive portion: WHEREFORE, premises considered, this Court finds accused RODOLFO MANALILI, ROBERTO LISING y CANLAS, FELIMON GARCIA, ROBIN MANGA y QUIMZON and ENRICO DIZON y ESCARIO, GUILTY beyond reasonable doubt of the crime of Double Murder qualified with treachery and aggravated by evidence premeditation and abused of public position by Lising, Manga and Dizon, and hereby sentences each one of them to suffer a penalty of double Reclusion Perpetua with all its accessory penalties provided by law (the death penalty having been abolished by the 1987 Constitution); to pay jointly and severally the heirs of Ernesto Bernabe II; (a) (b) (c) (d) P1,000,000.00 as funeral and other expenses; P50,000.00 as compensatory damages; P500,000.00 as moral damages; P2,000,000.00 for Cochises loss of earning capacity;

The heirs of Ana Lourdes Castaos: (a) (b) (c) P350,000.00 for funeral and other expenses; P50,000.00 as compensatory damages; P500,000.00 as moral damages;

The Court also finds accused Roberto Lising, Enrico Dizon and Robin Manga GUILTY beyond reasonable doubt of the crime of Slight Illegal Detention aggravated by use of a motor vehicle and hereby sentences each one of them to suffer the maximum penalty of Reclusion Temporalwith imprisonment from Seventeen (17) years, Four (4) months and one (1) day to Twenty years, and to pay the cost. Accused LIGAYA FAUSTO who is charged as an accessory after the fact (not accomplice as alleged by the Prosecution), is hereby acquitted for insufficiency of evidence. Accused RODOLFO MANALILI, ROBERTO LISING, ENRICO DIZON, ROBIN MANGA and FELIMON GARCIA are given full credit of their respective sentences in this case. With respect to Criminal Case No. Q-15239 for carnapping, all the accused are hereby ACQUITTED of the crime charged, it appearing that the use of the car was done only to facilitate the commission of the crime of Slight Illegal Detention. [10] In this appeal, the following assignment of errors were made: Roberto Lising contends that: I. THAT THE HONORABLE TRIAL COURT ERRED IN ADMITTING AND CONSIDERING THE STATEMENTS OF RODOLFO MANALILI (EXHS. HH:, HH-1 TO HH-25) AND THAT OF FELIMON GARCIA (MM, MM-1 TO MM-14) ADMISSIBLE AS AGAINST ROBERTO RAMBO LISING; THAT THE HONORABLE TRIAL COURT ERRED IN DECLARING RAUL MORALES AS A CREDIBLE WITNESS, ALSO AS AGAINST ROBERTO RAMBO LISING; THAT THE HONORABLE TRIAL COURT ERRED, LIKEWISE, IN STATING THAT HEREIN APPELLANT IMMEDIATELY ENCASHED THE CHECK AND DISTRIBUTED THE PROCEEDS AMONG HIMSELF AND THE OTHERS (EXHS. K -2 AND MM); THAT THE HONORABLE TRIAL COURT ERRED IN DECLARING THE STATEMENT OF THE HEREIN APPELLANT AS ADMISSIBLE IN EVIDENCE AS AGAINST HIM;

II. III.

IV.

V.

THAT THE HONORABLE TRIAL COURT ERRED IN DECLARING THAT HEREIN APPELLANT (LISING IS EQUALLY LIABLE FOR KIDNAPPING THUS, JIVING (SIC) THE PLACE FOR PURPOSES OF JURISDICTION; AND THAT THE HON. COURT ERRED IN CONVICTING TE HEREIN APPELLANT (ROBERTO LISING) AS ONE OF ALL THE ACCUSED FOR THE CRIMES OF DOUBLE MURDER AND WITH ENRICO DIZON AND ROBIN MANGA FOR SLIGHT ILLEGAL DETENTION BEYOND REASONABLE DOUBT. [11]

VI.

Enrico Dizon argues that: 1. THE LOWER COURT ERRED IN GRANTING THE MOTION TO DROP THE NAMES OF ROLANDO KHO, ROLANDO FERNANDEZ, NOEMI PANGAN AND JESUS REMOLACIO FROM THE INFORMATION AND ADMIT AMENDED INFORMATION IMPLICATING ACCUSED-APPELLANT ENRICO DIZON DESPITE CLEAR EVIDENCE OF THE PARTICIPATION OF KHO, FERNANDEZ, PANGAN AND REMOLACIO; 2. THE LOWER COURT ERRED IN ADOPTING THE PROSECUTIONS VERSION OF STATEMENT OF THE FACTS ALTHOUGH THERE WERE MISLEADING STATEMENTS AS PROVED BY THEIR CONTRADICTIONS TO THE TRANSCRIPTS OF STENOGRAPHIC NOTES, AND AFFIDAVITS PRESENTED; 3. THE LOWER COURT GRAVELY ERRED IN NOT CONSIDERING THE PRESUMPTION OF INNOCENCE FOR IT RELIED IN THE WEAKNESS OF THE DEFENSE OF ALIBI, WITHOUT REGARDING THE INCONSISTENCIES IN THE TESTIMONY OF PROSECUTION WITNESS RAUL MORALES AND FROILAN OLIMPIA; 4. THE LOWER COURT COMMITTED ERROR WHEN IT GAVE CREDENCE TO THE AFFIDAVITS EXECUTED BY LISING, MANALILI AND GARCIA DESPITE THE FACT THAT THEY WERE NOT PRESENTED AS WITNESSES BEFORE THE LOWER COURT; 5. THE LOWER COURT GRAVELY ERRED IN ADJUDGING THE ACCUSED-APPELLANT GUILTY OF THE CRIMINAL ACTS BASED ON THE DECLARATION OF FELIMON G ARCIAS EXTRAJUDICIAL CONFESSION WITHOUT ESTABLISHING FIRST THE CONSPIRACY TO WHICH ACCUSED-APPELLANT DIZON WAS A PART.[12] Robin Manga asserts that: I. THE LOWER COURT ERRED IN GIVING FULL WEIGHT AND CREDIT ON THE EXTRAJUDICIAL STATEMENT OF CO-ACCUSED RODOLFO MANALILI AND FELIMON GARCIA DESPITE THE FACT THAT THE TWO DID NOT TAKE THE WITNESS STAND NOR THEIR STATEMENTS OFFERED IN EVIDENCE; THE LOWER COURT ERRED IN HOLDING THAT THE EXTRAJUDICIAL STATEMENTS OF RODOLFO MANALILI AND FELIMON GARCIA AFFIRMED CONSPIRACY AMONG THE ACCUSED-APPELLANTS DESPITE ITS UTTER LACK OF EVIDENTIARY VALUE; THE LOWER COURT ERRED IN GIVING FULL WEIGHT AND CREDIT ON THE TESTIMONIES OF RAUL MORALES AND FROILAN OLIMPIA DESPITE THE FACT THAT THE STATEMENTS OF THE TWO ARE REPLETE WITH INCONSISTENCIES, SELF-CONTRADICTIONS AND ARE HIGHLY IMPROBABLE; THE LOWER COURT ERRED IN FINDING THAT FELIMON GARCIAS NARRATION OF THE ABDUCTION WAS CONSISTENT WITH THE TESTIMONY OF FROILAN OLIMPIA WITH RESPECT TO THE PARTICIPATION OF ACCUSED-APPELLANT ROBIN MANGA DESPITE STATEMENTS BY OLIMPIA THAT HE SAW QUEZON CITY POLICEMEN ROLANDO KHO AND ROLANDO FERNANDEZ AS THE PERSONS WHO ABDUCTED COCHISE AND BEEBOM IN THE EARLY EVENING OF APRIL 25, 1990 AND DESPITE THE FACT THAT THE EXTRAJUDICIAL STATEMENT FELIMON GARCIA WAS NOT EVEN IDENTIFIED BY THE LATTER DURING THE TRIAL OF THESE CASES; THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE MATTERS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED-APPELLANT MANGA; THE LOWER COURT ERRED IN FAILING TO OBSERVE THE PHYSICAL IMPOSSIBILITY OF ACCUSED-APPELLANT MANGA BEING INVOLVED IN THE OFFENSES CHARGED; THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT MANGA.[13]

II.

III.

IV.

V. VI. VII.

Rodolfo Manalili avers that:

I.

THE TRIAL COURT GRAVELY ERRED IN GIVING TOTAL CREDIBILITY TO RAUL MORALES AND IN NOT FINDING THAT RAUL MORALES WAS A REHEARSED AND PERJURED WITNESS INSOFAR AS IMPLICATING ACCUSED RODOLFO MANALILI IN THE COMMISSION OF THE CRIME OF DOUBLE MURDER IS CONCERNED; THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT ACCUSED RODOLFO MANALILI DID NOT HAVE ANY CRIMINAL INTENT OF DOING AWAY WITH THE LIVES OF ERNESTO BERNABE II AND ANA LOURDES CASTAOS AND THAT HE LIKEWISE DID NOT HAVE ANY MOTIVE WHATSOEVER IN CONSPIRING TO DO SO; THE TRIAL COURT GRAVELY ERRED IN NOT CONCLUDING THAT ACCUSED RODOLFO MANALILI NEVER ENTERED INTO A CONSPIRACY TO COMMIT THE CRIME OF DOUBLE MURDER NOR DID HE COMMIT ANY ACT/S ON THE BASIS OF WHICH IT CAN BE INFERRED THAT HE ENTERED INTO SUCH A CONSPIRACY TO COMMIT THE CRIME IMPUTED TO HIM; SINCE THERE WAS IN EFFECT SEPARATE TRIAL OF THE SEVERAL ACCUSED WHO WERE EACH REPRESENTED BY SEPARATE LAWYERS AND CONSIDERING THAT CONSPIRACY BETWEEN MANALILI AND HIS CO-ACCUSED HAS NOT BEEN SHOWN BY ANY ACT OR DECLARATION DURING ITS EXISTENCE, THE TRIAL COURT GRAVELY ERRED IN TAKING INTO ACCOUNT THE SWORN STATEMENT OF ROBERTO LISING AS EVIDENCE AGAINST RODOLFO MANALILI TO THE EXTENT THAT IT PURPORTS TO ATTEST TO MANALILIS INVOLVEMENT IN THE CRIME; THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING SPECIAL CIRCUMSTANCES OF THE CASE ON THE BASIS OF WHICH IT CAN BE INFERRED THAT ANOTHER PARTY WHO WOULD BE MOST BENEFITED BY DOING AWAY WITH THE LIVES OF THE VICTIMS, WAS BEHIND THE COMMISSION OF DOUBLE MURDER; THE TRIAL COURT GRAVELY ERRED IN NOT APPLYING THE WELL-ESTABLISHED PRINCIPLE IN CRIMINAL LAW THAT WHEN THE FACTS AND CIRCUMSTANCES OF THE CASE ARE SUSCEPTIBLE TO TWO REASONABLE INTERPRETATIONS: ONE REASONABLE INTERPRETATION LEADING TO A DECISION OF CONVICTION, AND THE OTHER REASONABLE INTERPRETATION LEADING TO A FINDING OF ACQUITTAL, THEN THE EVIDENCE OF THE PROSECUTION HAS NOT FULFILLED THE STRINGENT REQUIREMENT OF THE LAW OF PROVING THE GUILT OF ACCUSED RODOLFO MANALILI BEYOND DOUBT AND THEREFROM SAID ACCUSED MANALILI IS ENTITLED TO AN ACQUITTAL; AND THE LOWER COURT GRAVELY ERRED IN AWARDING INFLATED, UNSUBSTANTIATED, AND SPECULATIVE DAMAGES WHICH ARE NOT RECOVERABLE UNDER EXISTING JURISPRUDENCE.[14]

II.

III.

IV.

V.

VI.

VII.

Felimon Garcia contends that: I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT RAUL MORALES WAS A REHEARSED AND PERJURED WITNESS TO MAKE FALSE ASSERTIONS IMPLICATING APPELLANT FELIMON GARCIA IN THE COMMISSION OF THE CRIME OF DOUBLE MURDER; SINCE THERE WAS IN EFFECT SEPARATE TRIALS OF THE SEVERAL ACCUSED WHO WERE EACH REPRESENTED BY SEPARATE LAWYERS AND CONSIDERING THAT CONSPIRACY BETWEEN APPELLANT FELIMON GARCIA AND HIS CO-ACCUSED HAS NOT BEEN SHOWN BY ANY ACT OR DECLARATION DURING ITS EXISTENCE, THE TRIAL COURT GRAVELY ERRED IN TAKING INTO ACCOUNT THE SWORN STATEMENT OF ROBERTO LISING AS EVIDENCE AGAINST APPELLANT FELIMON GARCIA; THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT APPELLANT FELIMON GARCIA DID NOT HAVE ANY CRIMINAL INTENT NOR MOTIVE WHATSOEVER TO CONSPIRE WITH APPELLANT LISING ET AL TO KILL ERNESTO BERNABE II AND ANA LOURDES CASTAOS BOTH OF WHOM APPELLANT GARCIA HAS NEVER KNOWN OR MET BEFORE APRIL 25, 1990; THE TRIAL COURT GRAVELY ERRED IN NOT CONCLUDING THAT APPELLANT FELIMON GARCIA PERFORMED THE ACTS ADMITTED BY HIM UNDER THE COMPULSION OF AN IRRESISTIBLE FORCE AND/OR UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER INJURY AND THEREFORE EXEMPT FROM CRIMINAL LIABILITY; AND EVEN ASSUMING ARGUENDO THAT APPELLANT FELIMON GARCIA IS NOT EXEMPT FROM CRIMINAL LIABILITY, THE TRIAL COURT GRAVELY ERRED IN NOT FINDING HIM GUILTY

II.

III.

IV.

V.

MERELY AS AN ACCOMPLICE OF THE CRIME OF DOUBLE MURDER AND THEREFORE ENTITLED TO A LOWER PENALTY IN VIEW OF THE PRESENCE OF VOLUNTARY SURRENDER, OBFUSCATION, AND LACK OF INTENTION TO COMMIT SO GRAVE A WRONG, AS MITIGATING CIRCUMSTANCES.[15] Basically the present appeal is anchored on three issues: (a) the admissibility of the extrajudicial statements of appellants Manalili, Garcia and Lising; (b) the credibility of prosecution witnesses Froilan Olimpia and Raul Morales and the (c) finding of conspiracy among the appellants. Extrajudicial statements are as a rule, admissible as against their respective declarants, pursuant to the rule that the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. This is based upon the presumption that no man would declare anything against himself, unless such declarations were true. A mans act, conduct and declarations wherever made, provided they be voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth and it is his fault if they are not.[16] There is no question that their respective extrajudicial statement of Manalili and Garcia were executed voluntarily. They were assisted by their counsel and properly sworn to before a duly authorized officer. They merely relied on their extra-judicial statements and did not take the witness stand during the trial. Lising, on the other hand, claims that he was coerced and tortured into executing the extrajudicial statement but nothing appears on record that such extrajudicial statement was made under compulsion, duress or violence on his person. Lising did not present himself for physical examination, nor did he file administrative charges against his alleged tormentors which would necessarily buttress the claim of torture in the absence of such evidence. There are in fact indicia of voluntariness in the execution of his extrajudicial statements, to wit: (a) it contains many details and facts which the investigating officer could not have known and could have supplied, without the knowledge and information given by Lising himself; (b) it bears corrections duly initialed by him; (c) it tends to explain or justify his conduct and shift the blame to his co-accused Manalili. Moreover, the claim that Lising was not assisted by counsel is belied by the fact that the signature of his counsel Atty. Yabut appears in all the pages of his extrajudicial statements. The rule that an extrajudicial statement is evidence only against the person making it, also recognizes various exceptions. One such exception worth noting is the rule that where several extrajudicial statements had been made by several persons charged with an offense and there could have been no collusion with reference to said several confessions, the facts that the statements are in all material respects identical, is confirmatory of the confession of the co-defendants and is admissible against other persons implicated therein.[17] They are also admissible as circumstantial evidence against the person implicated therein to show the probability of the latters actual participation in the commission of the crime and may likewise serve as corroborative evidence if it is clear from other facts and circumstances that other persons had participated in the perpetration of the crime charged and proved. [18] These are known as interlocking confessions. No doubt that the statements were independently executed and rather identical with each other in their material details. There are also distinct similarities in the narration of events leading to the killings of Cochise and Beebom. Manalili and Garcias statements reveal that Manalili wanted to effect the arrest of Robert Herrera; that he asked help from Garcia if the latter knew of policemen who could do the job for the promised consideration of P50,000.00; that a downpayment of P2,000.00 was made; that Manalili was informed that Robert Herrera and Joy Ortega were arrested; that Manalili together with Garcia and Nabua proceeded to Valle Verde Motel; that they were met by Dizon and Manga at the motel and were told that Herrera was inside the room; that upon discovery that Lisings group had taken the wrong person and recognized Beeboms voice, Manalili pleaded to the group that the victim be released, assuring Lising that the balance P40,000.00 would still be paid; that Lising and his group refused but relented upon Manalilis persistence; that Manalili left for Man ila but instructed Garcia to stay behind and ensure the release of the victims; and that the next day Lising went to his office and claimed the balance to which Manalili issued the corresponding check. Garcia added that after Manalili had left, Lising told him to bring Cochise and Beebom to the warehouse owned by Ligaya where Cochise was killed. Thereafter, they forcibly took Beebom into the car and proceeded to Brgy. San Agustin. Likewise, we find Lisings statement as corroborative evidence against the ot hers. Except as to that portion where he exculpates himself from any liability stating that it was Manalili and Garcia who actually stabbed Cochise in the warehouse and that he was merely a lookout, Lisings statement is identical as to the other material facts, namely, that Cochise and Beebom were brought to the Valle Verde Motel, blindfolded where he met Manalili and Garcia; that they were brought to the warehouse on board a green box type Lancer car, where Cochise was killed; that Beebom was brought to Brgy. San Agustin where she was eventually killed; that he should take care of the green box type Lancer car and was given P40,000.00 in check. Nonetheless, the trial courts decision, in convicting all the accused was based not on the aforesaid extrajudici al statements of the accused alone but mainly on the eyewitness account of the two witnesses, Froilan Olimpia and Raul Morales, which the trial court gave weight and credence as bearing the chime of truth and honesty. Well -established is the rule that the trial courts evaluation of the credit-worthiness of the testimony given before it by witnesses should be accorded great respect. [19] Froilan Olimpia, a security

guard of the Rotonda Wine Station, an establishment adjacent to the Dayrits Ham and Burger House who witnessed the abduction of Cochise and Beebom in front of the said restaurant. He testified that he saw three men in a black car without a license plate drive to Dayrits Ham and Burger House and park behind the green Lancer car. When the two men alighted from the car, they introduced themselves as policemen to the by-standers, one carrying a .45 caliber firearm in his holster and the other carrying a long firearm. The two men approached the green Lancer car and handcuffed its driver. Olimpia only heard the man say: Bakit? He later noticed that the woman was already seated at the bac k of the car. These two men drove the green Lancer car which was followed by the black car. When asked to identify the three men, Olimpia unhesitatingly identified Dizon and Manga.
Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Mr. Witness, on April 25, 1990, where were you employed? Security Guard of Nationwide Security & Investigation Agency. You said you were employed with Nationwide Security & Investigation Agency, as Security Guard on said date, where were you assigned as security guard? At Rotonda Wine Station, sir. Where is this Rotonda Wine Station located? At Timog Ave., sir. What city? Quezon City, sir. You said you were employed as security guard of Rotonda Wine Station, Timog Ave., Quezon City, do you have proof to show that you were a security guard of said Rotonda Wine Station on April 25, 1990? I have, sir, but it is filed with the agency. This Rotonda Wine Station, what establishments are beside this establishment, and let us talk first on the left and then right? The left side of Rotonda Wine Station is the Dayrit Hamburger House and the right is a drugstore. What was your tour of duty on April 25, 1990? 12:00 noon to 12:00 midnight, sir. And did you report for duty on said date? Yes, sir. On or about 7:00 to 7:30 oclock in the evening of April 25, 1990 , what particular portion of Rotonda Wine Station were you posted? I was at the door, sir. Door of what, front or back? Front door of the Rotonda Wine Station, sir. When you said you were at the front door, inside the building or outside? Outside of the door, sir. You mentioned a while ago that on the left side of the Rotonda Wine Station where were posted is the Dayrit Hamburger House, was there a security guard there? Yes, sir. And do you know him? Yes, sir. What is his name? Anastacio de la Cruz, sir. You stated that at 7:00 to 7:30 in the evening of April 25, 1990, you positioned yourself in front or outside the door of Rotonda Wine Station, did you notice anything unusual while you were posting there? Yes, sir, there was. What was that unusual incident that took place, if any? There was a vehicle parking in front of Dayrit Hamburger house. What kind of a vehicle parked there? Green Lancer, car, box type. Where was it parked particularly? In front of Dayrit Hamburger house, at the side of the street. Did you notice the passenger of that green Lancer car? No, I did not know them, sir. But did you have the occasion to look and see them? Yes, sir. How many were they? Two, sir. Were they male and female? Yes, sir, one man a and one woman. You said you noticed the car with two persons boarding it, what happened after the vehicle parked on the side of the street in front of the Dayrit Hamburger house? After they had parked their vehicle, I noticed that another car parked behind that green Lancer car without any plate number. Did you notice what kind of a car was that which parked behind the green Lancer car? I noticed it was a black car without plate number but I did not notice the make. What happened after the black car parked behind the green Lancer car? Two men from the black car alighted. What did the two men do after they alighted? After they alighted they announced and introduced themselves that they were policemen and they went towards the green Lancer car.

Q. A. Q. A. Q. A.

You said they introduced themselves as policemen, to whom? To the people around the vicinity, to the by-standers. When the two men who introduced themselves as policemen, did you notice if they were armed? Yes, sir. Please inform us what arm or weapon did they carry? The other one was carrying a .45 firearm on his holster and the other one was carrying a long firearm, I do not know what kind of firearm that long firearm was. Q. This person carrying 45 firearm, could you still recall him or his figure or feature? A. If I see him again, I could recognize him. Q. But can you describe him before this Court? A. Yes, sir, he is tall, a little bit dark complexion and with a little mustache. Q. You said that if you see that person again, you can recognize him. Will you please look around the courtroom and point to him if he is now inside? A. Yes, he is here, sir. Q. If he is here, will you please point to him? A. Yes, I can point to him. Q. Will you please go down from the witness stand, go to him and tap him on his shoulder? A. (Witness went down from the witness stand, went to the person and tap the shoulder, who when asked of his name answered as ENRICO DIZON). Q. Go back to the witness stand. ATTY. CRESCINI: May we make it of record, Your Honor, that at the time the witness was asked to identify Enrico Dizon, there are many people, at least one hundred in number, standing inside the courtroom closely to each other. FISCAL: I would like to adopt the same manifestation, Your Honor. Q. You have identified the person with 45 caliber firearm, the person who was carrying a long firearm, can you still recognize him or can you remember his feature? A. If I could see him again, I can recognize him. Q. You said that you can see that person with long firearm again, you can recognize him, will you look around the courtroom and tell us if that person you are referring to is here? A. Yes, he is here. Q. Will you please point to him? A. (Witness pointing to a person inside the courtroom who when asked of his name answered as ROBIN MANGA). Q. Now, that you identified the two armed men who alighted from the black car and introduced themselves as policemen, what did these two men do after that? A. They went towards the parked green Lancer car. Q. And what did they do when they went towards the green Lancer car? A. They immediately handcuffed the man driving the green Lancer car. Q. This person who was handcuffed, were you able to look and see him? A. Yes, sir. Q. Can you still recognize him if you see him again? A. Yes, sir, I can recognize him if I see him again. Q. What about a picture, if you are shown a picture of that man who was handcuffed, could you still be able to identify him? A. Yes, sir, I can. Q. I am showing to you a picture marked as Exh. X -4 please look at this picture and tell us if you could recognize this picture? A. Yes, sir, I know this person. Q. Who is this person? A. He is Ernesto Bernabe II, sir. Q. What relation has this person in this picture and the person who was handcuffed in the evening of April 25, 1990 at the time you saw him? A. I know, sir, this person in the picture and the one who was handcuffed refer to one and the same person. Q. You said that Ernesto Bernabe was handcuffed, you know where was his companion at the time, who was a woman? A. I noticed she was already inside the car. Q. What car are you referring, the green Lancer car or the black car without plate number? A. The green Lancer car, sir. Q. You said you saw the woman, were you able to look and see her that evening? A. Yes, sir. Q. Would you still be able to identify her if you see her again? A. Yes, sir. Q. I am showing to Exh. X-4 will you look at this picture, and tell us what relation has this person in this picture to the one who was together with the man who was handcuffed? A. She is the woman I am referring to, sir, whom I saw inside the green Lancer, they are one and the same. Q. You said you saw the man whom you identified as Ernesto Bernabe being handcuffed by the two policeman, how far were you from them? A. Five armslength (sic), sir. Q. By the way, this front of Dayrit Hamburger house and this Rotonda Wine Store, are they lighted at night? A. Yes, sir. Q. What kind of light illuminates the area? A. Mercury lamp, sir. Q. How many lights are there?

A. Q. A.

Many, sir. You said there were lights, in the area during nighttime, can you describe to us from your point of comparison in daytime whether it is bright or not more particularly at the time of the incident in question? It was bright just like daytime, sir.[20]

As to the killing of the two victims, Raul Morales testimony about what transpired in the warehouse in the morning of April 26, 1990 satisfied the trial court beyond reasonable doubt, as being consistent and credible, sufficient to convict all the accused for the crime of murder. He testified positively, that on that fateful morning, two cars entered the warehouse after he opened the gate. Lising and Garcia alighted from the green Lancer car and brought out from the backseat Cochise and Beebom. The other black car carried Dizon and Manga. Soon after, Manalili entered the gate which was left open by Lising, and stood beside Beebom. Cochise, whose hands were tied with a wire was brought to an area far from Beeboms view. He was stabbed by Garcia, and then by Lising. Afte r killing Cochise, the four men carried him out of the warehouse while Manalili stayed with Beebom. The trial court was even more convinced about the witnesses credibility after conducting an ocular inspection of the scene o f the crime.
ATTY. LLORENTE: Q. Now, Mr. Morales, from yesterdays hearing, you mentioned that at about 2:090, April 26, you were awakened by a sound of a motor vehicle and somebody was knocking. Do you recall having stated that yesterday? A. Yes, I remember that, sir. Q. Now, apart from the sound of the motor vehicle and the knock at the door, what else do you recall? A. Somebody called for Aida, sir. Q. What else? A. I heard somebody said Aida, you open the door and she told me just open the door, Sir. Q. And what did you do? A. I opened the door, Sir. xxx. Q. After the gate was opened, what happened? A. Two (2) cars got inside, Sir. Q. Can you describe the first car that entered he gate. A. The first one that got inside was colored green, Sir. Q. Do you know the make model or kind of vehicle that is colored green? A. It was a Lancer car, Sir. Q. Did you notice also who was driving? A. Yes, I saw, Sir. Q. Who? A. It was Roberto Lising, Sir. Q. Was there anybody else inside the car? A. There was, Sir. Q. Who were inside that car? A. One was in front and two were at the back seat, Sir. Q. The one in front, do you know who was that? A. Yes, Sir. Q. Who? A. Felimon Garcia, Sir. Q. Was that the first time that you met this person? A. Felimon Garcia? ATTY. LLORENTE: Yes. A. That was the third time, Sir. Q. Why do you know Felimon Garcia? A. Because he is a cousin of Ligaya Fausto, Sir. Q. Can you please look around the Courtroom and tell us if you can point to this Felimon Garcia and if you can, please do. That man, Sir. (Witness pointing to a man in white t-shirt who when asked answered by the name of Felimon Garcia). Q. What about the two (2) passengers at the back of the Lancer car, who were they? A. There was one woman and one man but I dont know their names, Sir. Q. Lets go to the man. Did you see his condition? Physical condition, his appearance? A. Tall, medium built, good-looking and hairy on the arms. He was wearing white t-shirt and was in shorts, Sir. Q. What about the condition under which this person was seated at the back of the car, can you describe that? A. I was not able to observe how he was seated, all I know is that I saw him when he went out of the car, Sir. Q. What about the other passengers, the woman passenger. Can you describe her. A. She was medium built, she was beautiful and fair complexioned puti. Q. Now, lets go to the second car. Did you notice the driver of the second car? A. Yes, sir. Q. Did you recognize this person?

A. Yes, Sir. Q. Would you be able to identify him? A. Yes, Sir. Q. Can you please look around if this person driving the second car is in this Courtroom and if so, please point to him. (witness pointing to a man in white shirt who when asked answered by the name of ROBIN MANGA). Q. Was there anybody else inside the second car aside from the driver? A. There was, Sir. Q. Would you be able to identify that person? A. Yes, Sir. Q. Can you again look around the Courtroom and tell us if that person is present and if so, please point to him? A. (Witness pointing a man in stripe shirt who when asked answered by the name of Enrico Dizon). Q. Now, the two (2) cars having entered the premises, could you please tell us what happened with these two (2) cars after entering the premises? A. I saw Roberto Lising went behind the place of our sleeping quarters and got a wire, Sir. xxx Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. How did that woman reach that portion of the Lancer car? Can you describe that? She was brought to that portion by he companion of Rambo, Sir Who in particular? That man, Sir, (witness pointing to accused Robin Manga). What about the man, how was he brought to that portion which you have identified from the Lancer car? It was Roberto Lising who brought him there, Sir. All by himself? They were two (2), Sir. Whos the second aside from Mr. Lising? (witness pointing to accused Enrico Dizon). After the man and the woman were placed in that position as you described, what happened? Felimon Garcia came out and he was bringing with him a spade (pala), Sir. Did you notice where Felimon Garcia got that spade or pala? Yes, Sir. Where? They got it from the Lancer car, Sir. In what particular portion of the Lancer car? At the back compartment of the car, Sir. Incidentally, Mr. Morales, what happened to the gate? Who closed the gate? It was they who closed the gate, Sir. Did anybody else arrive? Yes, there were, Sir. Who? (witness pointing to accused Rodolfo Manalili) witness pointed to a man in eyeglasses who when asked answered by the name of Rodolfo Manalili. Q. Now, this person that you said arrived, how did he arrive? A. When he arrive, he went direct to the woman and talked with the woman, Sir. Q. Did you hear any conversation between that man as you identified as accused Manalili to the woman that you pointed to here in the sketch? A. I only heard Dont harm us. We have done no wrong. p. 46 missing person that you have described in that area present at that time? A. They were sweethearts, Sir. Q. Let me just refer you to the woman that was brought out of the green car, Lancer car. Did you ever come to know his name later on? A. When I read it from the newspaper, Sir. Q. And what was the name that you were able to read from the paper that made you identified that woman from the Lancer car? A. Beebom, Sir. Q. What is the complete name? A. Beebom Castaos, Sir. Q. What about the man. Did you also get his complete name. A. Yes, Sir. Q. What is his complete name? A. Cochise Bernabe, Sir. Q. Now, after this man that you have just identified as Cochise Bernabe, after his hands were tied at the back, what else did Mr. Lising and Mr. Dizon do with this man? A. Felimon went inside the bodega, Sir. Q. And what did Felimon do? A. After that, he went towards Lising, Sir. Q. And when Felimon approached Lising, what happened? A. Felimon was given a knife, Sir. (Witness in the vernacular said kutsilyo) Q. What did Felimon do with the knife? A. They went towards the man, Sir.

Q. And what happened? A. Then he stabbed the man once, Sir. Q. How? Can you demonstrate? A. Yes, Sir. ATTY. LLORENTE: Please do. (witness demonstrating by placing his left hand on the height of his shoulder and making a thrust by his left hand forward). Q. What else happened after what you had demonstrated happened? A. Rambo grabbed and took the knife from Felimon, Sir. Q. And what did Rambo do with the knife? A. He also stabbed the man, Sir. ATTY. LLORENTE: Can you demonstrate to us how did he do this? A. Yes, sir. (witness demonstrating by putting his left hand forward at the height of his shoulder and making a forward thrust by his right hand several times). Q. Did you notice what portion of Cochise was stabbed when Lising was doing this? A. Yes, Sir. Q. Where? A. Inside the bodega, Sir. Sa may bodega.

xxx.[21] The defense, however, would discredit the of Raul Morales alleging that he was not a credible witness considering that there were inconsistencies and improbabilities in his testimony. To them, he was a rehearsed witness, since he was taken from the NBI to the residence of Governor Remullas son, a good friend of Cochise, as sanctuary during the trial of this case. Some of the inconsistencies pointed out are as follows: (1) in the sworn statement, Morales claimed that the black car driven by Lising entered the compound ahead followed by the green car driven by Garcia while he stated in his testimony in court that the green Lancer car was first to enter, driven by Lising with Garcia in the passenger seat followed by the black car with Manga and Dizon on board; (2) in his statement, Morales indicated that he did not see the actual killing of Cochise since the victim was brought out, while he testified in court that Garcia and Lising stabbed the victim inside the compound; (3) Morales made mention of a total of five persons, including the two victims, in the early morning of April 26, while in court, he identified the five accused seen with the two victims. In has been held that inconsistencies and discrepancies in the testimony referring to minor details and not upon the basic aspect of the crime do not impair the witness credibility. [22] These inconsistencies even tend to strengthen, rather than weaken, the credibility of witnesses as they negate any suspicion of a rehearsed testimony. [23] The defense finds it also improbable for Morales to have witnessed the events at such a vantage point from the steps of the hut, since the perpetrators of a crime would not unnecessarily expose themselves in the committing the act to prevent possible identification. Obviously, it never occurred to Lising at the time that Morale, who was under his control and who was afraid of him, would ever testify against him. Manalili makes capital of the fact that Morales did not mention him at all in his prior sworn statement as being present at the scene of the crime. For Manalili, the omission of his name was a significant development as it appeared improbable that a vital witness will miss out an alleged perpetrator if indeed he was present at the scene of the crime. Raul Morales himself admitted later on that there were omissions in his sworn statement made before the CAPCOM because he was afraid of his employer Lising and his companions. Understandably, he was reluctant to volunteer all the information about the killing for fear that he would suffer the same fate of Cochise and Beebom. The initial reluctance of witness to volunteer information about a criminal case and their unwillingness to be involved in the criminal investigation is of common knowledge and has been judicially declared as insufficient to affect credibility. [24] Besides, at that time, Raul Morales was merely concerned with bringing out his story without really paying particular attention to the details. He related that his employer Lising and companions brought a man and a woman to their warehouse and killed them both. He saw Cochises face on the papers and recognized him to be the man who m Lising s group killed. Morales only mentioned Lising and Garcias names in his sworn statement because they were the only ones known to him. Such omission and discrepancies should not be taken against him. It bears emphasis that a sworn statement or an affidavit does not purport to be a complete compendium of the details of the event narrated by the affiant. [25] It is a matter of judicial experience that a sworn statement being taken ex parte is almost always incomplete and often and often inaccurate. Thus, discrepancies between the statements of the affiant in his sworn statement and those made on the witness stand do not necessarily discredit him.[26] There is no rule of evidence to the effect that omission of certain particulars in an affidavit or sworn statement would estop an affiant in making an elaboration thereof during the trial.[27] Whenever there is an inconsistency between the affidavit and testimony of the witness, the latter commands greater weight. [28]

Roberto Lising discredits Raul Morales as having a motive in implicating him to the crime since he quelled a rally staged by Morales who was the most arrogant and stubborn of Faustos employees, seeking an increase in pay. As pahinante in their LPG business, Morales, according to Lising, was oftentimes reprimanded for not doing his job well and held responsible for lost gas tanks. The motive imputed to Morales, a mere pahinante, if he were arrogant and stubborn, would be tolerated by Lising, the live-in partner of Fausto. By and large, the defenses raised by the accused do not persuade us. When it comes to the issue of credibility of the witness, appellate courts give much weight and respect to the findings of the trial court since the trial court is in the better position to examine real evidence as well as observe the demeanor of the witness. [29] With the eyewitnesses account of Froilan Olimpia and Raul Morales, the culpability of the accused for the crimes charged have been established. This brings us to the third issue of whether or not there was conspiracy. Conspiracy is a unity of purpose and intention in the commission of a crime. [30] Where two or more persons come to an agreement concerning the commission of a felony and decide to commit it then conspiracy exists. While direct evidence is not necessary, conspiracy may be inferred from and proven by acts of the accused themselves when during and after said acts point to a joint purpose and design, concerted action and community of interest.[31] Undoubtedly, the trial court did not err in finding the existence of conspiracy in this case. With the interlocking confessions of Manalili, Garcia and Lising, the group came to an agreement to effect the arrest of Robert Herrera for a considerable sum of P50,000.00. The stake-out at the Castaos residence, the tailing of the car, the abduction at Dayrits Ham and Burger Restaurant and the detention in the Valle Verde Motel and the subsequent killing of the two victims all show that all the accused acted in unison and cooperated with each other towards the accomplishment of a common criminal design. Where conspiracy is established, the act of one is the act of all. Garcia, for his part, prays that his liability be mitigated on grounds of lack of intent or motive, acts made under the compulsion of an irresistible force, and voluntary surrender, which if considered would make him merely an accomplice to the crime. Unfortunately, these defenses and unavailing. To be exempt from criminal liability, a person invoking irresistible force or uncontrollable fear must show that the force exerted was such that it reduced him to a mere instrument who acted not only without will but against his will.[32] That compulsion must be of some character as to leave the accused no opportunity for self-defense in equal combat of for escape.[33] Garcias participation and presence from the time the abduction was hatched, up to the killing of the victims is undisputed. He was very well aware of Manalilis plans. He was instrumental in introducing Lising to Manalili. Likewise, Lisings intentions to silence both Cochise and Beebom at the end upon realizing an alleged mistake was known to him. He did not do anything to deter the commission or to report the crimes immediately thereafter. In fact, he stated that he and Lising saw each other after the incident but never mentioned anything about it, which only goes to show their intention of concealing the crime. Only after several months of being hunted, did he send feelers for this surrender. Where conspiracy is established, the precise modality or extent of participation of each individual conspirator becomes secondary since the act of one is the act of all. [34] The degree of actual participation in the commission of crime is immaterial. In People v. Degoma, the Court explained: x x x. One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-conspirators; he merges his will into the common felonious intent. A person who embraces a criminal conspiracy is properly held to have casts his lot with his fellow conspirators and to have taken his chances that things may go awry and that the offended party may resists or third persons may get killed in the course of implementing the basic criminal design. To free himself from such criminal liability, the law requires some overt act on the part of the conspirator, to seek to prevent commission of the second or related felony or to abandon or dissociate himself from the conspiracy to commit the initial felony. (People v. Salvador, 163 SCRA 574, 580-582 [1988]; People v. Bazar, 162 SCRA 609, 617 [1988]; People v. Escober, 157 SCRA 541 567 [1988]; People v. Pelagio, 20 SCRA 153, 159-160 [1967] (Italics supplied).[35] For the same reasons. Manalili can not likewise be exonerated from the crime. We have examined carefully the arguments of the Solicitor General in urging Manalilis acquittal, but the facts and circumstances surrounding the case do not support his sta nd. We find it difficult to accept Manalilis contention that he had contracted the services of policemen to effect the legal arrest of Robert Herrera, the main suspect in the killing of his brother, Delfin Manalili. Equally preposterous is his assertion that upon arriving at the Valle Verde Hotel in San Fernando, Pampanga, he realized there was a mistake in the identities of the persons arrested, so he insisted that they be released. Neither is there factual basis to his claim that he had every reason to protect the life of Beebom, in particular, since the latter is a principal witness against Robert Herrera, the suspect in the shooting of his brother. In the first place, why did he take it upon himself to employ persons unknown to him to effect the arrest of Herrera? The warrant of arrest of Herrera, if one was really issued, was never presented in evidence. In the second place, the surreptitious meeting of Manalili with Lising arranged by Garcia, the surveillance or stake out of the Castaos residence, the manner of abduction where

the victims were blindfolded, handcuffed and gagged at Valle Verde Motel, cannot certainly be considered as acts in the regular performance of their duties as policemen. Thirdly, if it was true that Manalili just wanted the arrest of Robert Herrera, why did he have to seek the assistance of Pampanga policemen? It would have been more logical and expedient to have utilized the NBI or Quezon City Police especially when the alleged warrant of arrest was issued by a Quezon City court. After all, is was not difficult to locate Robert Herrera as he was reportedly frequenting the Castaos residence in Quezon City. Fourthly, it does not stand to reason why the victims were taken to Pampanga after allegedly being arrested in Quezon City. It would have been more cogent for the appellants to have delivered the victims to the nearest station of the Quezon City Police Department considering that the warrant of arrest was allegedly issued by a Quezon city court. If arrest was really in the minds of the accused, why did they hole-up with the victims in a motel when they arrived in Pampanga? Finally, if they were bent on legally arresting one Roberto Herrera, it was not necessary for them to also take the woman companion of the person they mistook as Herrera. All these only shows that Manalili had premeditated in his mind a more sinister plot than merely effecting a legal arrest. It is an unmitigated absurdity for Manalili to pretend that upon his realization of the mistake in their arrest, he insiste d upon the release of the victims since he had every reason to keep Beebom alive. If he had just a bit of concern for Beeboms safety, why did Manalili leave for Manila without bringing her and Cochise with him to make sure that no harm would befall them, knowingly full well of Lisings resolve just revealed to him to silence both victims? What should be nearer the truth in that Beebom and Cochise became aware of Manalilis presence at the motel together with the other accused and this was the added reason why the two ha d to be eliminated, to do away with having to e xplain why he was at the scene. His pretension that he wanted to keep Beebom from harms way because she was to have testified in the prosecution of his brother brings hollow. It cannot be assumed that had she lived she would have testified in court and pointed to Robert Herrera as the killer of Manalilis brother. In any case, assuming the remote possibility, the mistake in the identity of the victims does not exonerate Manalili pursuant to the rule that one who performs a criminal act should be held liable for the act and for all its consequences although the victim was not the person whom the fellow intended to injure. [36] We are reminded of the rule that the conviction must not rest on the weakness of the defense but on the strength of the prosecutions evidence. In the instant case, apart from its interlocking sworn statements of appellants, Raul Morales positi ve testimony that he saw Manalili enter the bodega, and stand beside Beebom, while Cochise was being killed, convinces us with moral certainty that Manalili is equally guilty of the crime charged. His presence in the warehouse clearly belies his claim that from the motel, he left for Manila already. As against the positive testimony and identification, mere denials of the accused cannot prevail to overcome conviction by the court.[37] The inaction of Manalili where he could have prevented the killings only reveal his complicity to the crime. Manalili is certainly part of a complete whole without whom there would be no Cochise-Beebom double murder case. Furthermore, the decision of the trial court exonerating Manalili and Garcia for the crime of Kidnapping and finding the rest of the accused guilty for the crime of Slight Illegal Detention only does not escape us. There being conspiracy, all the accused should be equally guilty for the crimes as charged. Unfortunately, we can no longer convict Manalili and Garcia for Kidnapping in consonance with the constitutional right against double jeopardy. Nonetheless, they stand to suffer the penalty of Reclusion Perpetua for the double murder. The crime of Slight Illegal Detention should be qualified to Serious Illegal detention under Article 267 of the Revised Penal Code considering that a female victim was involved. WHEREFORE, this Court hereby renders judgment as follows: 1. The decision of the lower court finding accused Rodolfo Manalili, Roberto Rambo Lising, Felimon Garcia, Robin Q. Manga and Enrico Dizon guilty beyond reasonable doubt of the crime of double murder, including their civil liability is hereby AFFIRMED in toto, and 2. The decision of the lower court finding accused Roberto Rambo Lising, Enrico Dizon, and Robin Manga guilty of the crime of slight illegal detention aggravated by the use of motor vehicle is hereby MODIFIED, in that the said accused are hereby declared guilty of the crime of Kidnapping under Article 267 (4) of the Revised Penal Code, and are hereby sentenced to suffer the penalty of reclusion perpetua. SO ORDERED.

(38) THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BRIGIDO ENCIPIDO, CHARLITO MANATAD, JESUS RUBIO, RUDY LUMARDA, JOSE CABAGERAN, EDDIE DE LA PE;A, CRIS RAMIREZ, and JESUS or JOHN DOE, accused, BRIGIDO ENCIPIDO, CHARLITO MANATAD, and EDDIE DE LA PE;A accused-appellants. [G.R. No. 70091 December 29, 1986] MELENCIO-HERRERA, J.: On March 30, 1982, Jose Lacumbes (hereinafter referred to as the DECEASED), a resident of Barangay Mabini in the Municipality of Tubajon, Surigao del Norte, was found killed by his wife and children near the hut in their farm in Sitio Capacohan in the same barangay. Post Mortem findings performed the following morning were: l) Incised wound of the neck. 2) Eight [8] multiple stab wounds at the back; one [1] inch in length and two and a half [2] inches in depth. 3) Removed right external ear. 4) Contusions left lumbar region. 5) Both hands tied at the back with rattan. CAUSE OF DEATH: Hemorrhage, severe, secondary to incised wounds of the neck and multiple stab wounds at the back. On February 2, 1983, in Criminal Case No. 14 of the Regional Trial Court, 10th Judicial Region, Branch 32 (the CASE BELOW), the following eight (8) persons: (1) Brigido ENCIPIDO (2) Charlito MANATAD, (3) Eddie DE LA PENA (hereinafter referred to as APPELLANTS), (4) Jesus Rubio, (5) Rudy Lumarda, (6) Jose CABAGERAN (7) Cris Ramirez, and (8) Jesus or John Doe were charged with Murder for the death of the DECEASED. Only fly APPELLANTS were tried, the other five accused having remained at large. A review of the prosecution evidence presented in the CASE BELOW can begin with the testimony of Felicisimo Alciso. This witness narrated that he went to the hut of the DECEASED in the afternoon of March 30, 1982, in order to get some chickens which the latter had promised him but that, before reaching the hut, he heard a gunshot. He stopped and saw that the DECEASED was being tied and subjected to fist blows. There were three persons who mauled the DECEASED, while others stayed at a distance. Then, somebody struck the DECEASED with the butt of a gun causing the latter to fall to the ground. He described that the hands of the DECEASED were tied at the back, ENCIPIDO was behind the DECEASED, while MANATAD and DE LA PE;A were on the sides. 1On orders of ENCIPIDO also known as "Commander Tanga," DE LA PE;A, also called "Agosto de la Pena struck the Deceased's neck with a bolo which almost I severed the latter's head. Frightened, witness Alciso fled from the scene. After learning from friends and neighbors that those who had killed the DECEASED were detained, Alciso went to the jail to find out for himself if they were among the group responsible for the death of the DECEASED, and because "I was afraid that I will be the next one to be killed by them." He recognized APPELLANTS as among the suspects. When he asked DE LA PENA why he was in jail, the latter answered that it was because they were the ones who had beheaded the DECEASED. Alciso was unable to talk to ENCIPIDO and MANATAD. Before Alciso there was another prosecution witness presented, Armando Bagacay whose testimony turned out to be hearsay but which nevertheless is reproduced here to complete the evidence for the prosecution. He testified that while he was massaging one of the accused, Rudy Lainarda on March 10, 1982, the latter told him that his ailment was caused by witchcraft of the victim, Jose Lacumbes, and that he would seek the aid of the rebels to cut Lacumbes' head. Four days later, Bagacay met one of those originally indicted, Jesus Rubio, who confided to him that they would cut Lacumbes' neck for making Lumarda sick and for being responsible for all i the witchcraft in the community. Subsequently, witness Bagacay heard of the death of Lacumbes at the hands of the rebels. Two other prosecution witnesses supported testimony Alciso Jorge Ortega, INP Station Commander of Loreto, Agusan del Norte, testified that when he had just arrived from Surigao City at about 2:30 o'clock P.M. of May 1, 1982, and while still at the wharf, he was met by ENCIPIDO who introduced himself as "Commander Tanga," invited him (Ortega) for a drink so he could talk to the latter personally. Having ac cepted the invitation, the two proceeded to a store where ENCIPIDOs fourteen companions were already waiting. They introduced themselves as rebels and offered to help the municipal government. In the course of the conversation, ENCIPIDO and DE LA PE;A disclosed to the Station Commander that they were the ones who had beheaded the DECEASED, killed a certain Benny and one Balaba, and who were responsible for all the killings in Dinagat Island. The other prosecution witness, Mariano Espina, the Municipal Mayor of Loreto, testified that in the evening of that same day of May 1, 1982, Station Commander Jorge Ortega informed him that Commander Tanga" and his men wanted to pay him a courtesy call.

They arrived at about 8:00 in the evening at his house. They introduced themselves and placed their sidearms on a table as a sign of goodwill. At the time, there were about 2 policemen and 3 CHDF men outside the house but no arrests were made, nor were firearms confiscated, as a sign of reciprocal goodwill "Commander Tanga" then confided to the Mayor his mission to cooperate with his administration as they had heard that he was a good Mayor. He also informed the Mayor that he had been a member of the NPA since he was 13 years old; that he had already killed many people, including the DECEASED, so that the latter could no longer harm other people with his witchcraft. For his part, DE LA PE;A brought out a sharp-pointed knife and tried to test its sharpness, admitted having cut the neck of the DECEASED, and even showed the latter's ear, dried by that time. The foregoing testimonies were buttressed from a most unexpected source. DE LA PE;A, to the surprise of APPELLANT APPELLANTS' common counsel testified in open Court that, although he belonged to the group of "Commander Tanga," the latter, MANATAD and a third individual merely forced him to join, threatening to kill him if he refused; that he was with the group from March 28, 1982; that he was present on March 30, 1982 when "Commander Tanga" and MANATAD killed the DECEASED but that he was merely standing by; that the duo were the first ones apprehended, and after them he was also arrested by the CHDF. In their defense, ENCIPIDO and MANATAD denied having I killed the victim and interposed the defense of alibi. ENCIPIDO claimed that on March 30, 1982, he was sawing lumber from morning till 3:00 P.M. at Barangay Boa for a certain Norberto Bukid. After working he rested in Bukid's house and did not leave the place. He further testified that he did not know the DECEASED nor the Station Commander, nor the Municipal Mayor except when he surrendered his .45 caliber pistol to the latter on May 2, 1982 after which he was arrested. He decided to surrender his pistol because he was afraid he might be apprehended for having an unlicensed firearm. MANATAD and DE LA PENA were also placed in jail with him. Thereafter, with seven others, he was taken to PC headquarters at Surigao City where they were severely maltreated and he was forced to sign an affidavit admitting that he is "Commander Tanga" responsible for the killing of the DECEASED and other persons. He denied having admitted to the Station Commander and to the Municipal Mayor his Identi ty as "Commander Tanga" or that he had killed the DECEASED and other persons besides. MANATAD, for his part, also denied all imputations against him, stating that he only came to know ENCIPIDO in jail; that he did not know the DECEASED nor who killed him that during the whole day of March 30, 1982, he was plowing the field tenanted by his mother-in-law at Barangay Malinao; that he started plowing early in the morning and stopped at about 5:00 o'clock P.M. after which he stayed home. Barangay Captain Sergio Peniones partially corroborated MANATAD's testimony by stating that he saw MANATAD plowing the i field in the morning of March 30, 1982. MANATAD's wife, Bienvenida Edusma also testified that her husband stayed home after 5:00 o'clock P.M. of that day as he was tired after the day's work; that, in fact, she quarreled with her husband because he refused to accompany her in bringing their sick child to Tubajon on so that she went alone carrying the child even though she was then seven months pregnant. In a Decision promulgated by the Trial Court on December 5, 1984, APPELLANTS were found guilty of Murder and sen tenced to reclusion perpetua to pay damages to the heirs of the DECEASED in the amount of P12,000.00 and to pay 3/8 of the costs. On behalf of APPELLANTS, counsel de officio filed a Motion for Reconsideration before the Trial Court on December 26, 1984, which the latter denied for having been filed more than fifteen (5) days after the promulgation date of December 5, 1984. A Notice of Appeal filed before the then Intermediate Appellate Court was allowed as an appeal not from the judgment but from the Order denying the Motion for Reconsideration. The penalty imposed by the Trial Court being reclusion perpetual the appeal was indorsed to this instance, which we accepted in the interest of substantial justice. APPELLANTS raise the following Assignments of Error: A The lower Court erred in giving credence to the hearsay testimonies of prosecution witnesses Mariano Espina and George Ortega basing therefrom its findings of conviction; B The lower Court erred in giving credence to the incredible and hearsay testimony of Felicisimo Alciso the alleged eyewitness; C The lower Court erred in appreciating the so-called judicial admission of accused Eddie de la Pena as against his co-accused Brigido ENCIPIDO and Charlito Manatad; D The lower Court erred in convicting appellants Brigido ENCIPIDO and Charlito Manatad; E The lower Court erred in refusing to give due course to appellants' motion for reconsideration holding that it was filed out of time when its judgment accordingly has become final; F

The lower Court erred in convicting appellant Eddie de la Pe;a. The evidence against APPELLANTS, taken en conjunto" justifies the finding of guilt beyond reasonable doubt. 1. Eyewitness Felicisimo Alciso positively Identified APPELLANT as among the group who led the DECEASED out of his hut, with his hands tied behind his back, and thereafter mauled him and hacked his neck in the afternoon of March 30, 1982. The autopsy findings, particularly, the "incised wound of the neck," "contusions left lumbar region" and "both hands tied at the back with rattan" confirm his description of what he had witnessed. The defense contents, however, that said witness could not have recognized APPELLANTS. It is true that at the start of his testimony, he had stated that he did not recognize the assailants. Thus: Q. Who were the persons who mauled Jose Lacumbes during that time? A. I saw that there were three of them but I could not recognize them; and there were some other persons who were staying from a distance. 2 That testimony, however, referred to the early stage of the incident when the victim was being mauled. Subsequently, in respect of the killing itself, the witness declared: Fiscal Sandangal Could you not recognize the three persons who killed Jose Lacumbes? Witness: I could recognize the three persons who killed Jose Lacumbes. 3 Then he described specifically: Q. What else did you see, if any? A. I saw that somebody was beating Jose Lacumbes with the use of a gun, and when Jose Lacumbes fell down, Commander Tanga commanded Eddie de la Pena to cut the head of the victim but the head was not severed from the body. 4 After pointing to the APPELLANTS in the Courtroom and replying to a question by the Court, Alciso further explained: Court (addressing to the witness) When did you know the accused by their names? WITNESS: In the jail your Honor. Before I met them in the jail I already recognized their faces but I just do not know their names. Later on, I already know their names. 5 The defense further claims that Alciso could not have recognized the assailants because he was at a distance of 80 to 90 meters away from the scene of, the crime. In another instance, however, he said that the place of the killing was about "20 arms length" from the hut of the DECEASED, while he was also about the same distance from the hut at that time. The distances stated were merely his estimates and can be moderately exact or moderately inexact specially with provincial folk. The important fact is that even from where he was, he witnessed the incident and his description of it was corroborated by the admission of APPELLANTS, themselves and supported by the autopsy findings on the cadaver. As this Court ruled in People vs. Hamtig et al., 6 the credibility of the testimony of a witness is not affected by some flaws and inconsistencies in minor details, if as regards the main incident, the Identities of the malefactors, the testimonies appear to be consistent with each other." And although it was admittedly the first time that Alciso saw the malefactors, it does not necessarily follow that he could not have recognized their faces. Persons observing a startling occurrence would strive to know the ones involved specially where as in this case the DECEASED was not unknown to Alciso. Next, it is argued that Alcisos testimony that he went to i the jail to verify the Identity of the malefactors is not worthy of credence. Concededly, that actuation was unusual However, as the witness explained he did so because he feared that he may be the next one to be Killed And the fact that he asked DE LA PE;A why the latter was in jail does not necessarily lead to the conclusion, as alleged, that he had not witnessed the occurrence. A friendly question was more likely to evoke candid answer.

There is nothing strange either in Alcisos not having mentioned the culprits by name in his sworn statement taken more than three months after the incident, having referred to them merely as "five persons." As is wen known "an affidavit is not prepared by the affiant himself Omissions and misunderstanding . are not infrequent, particularly under circumstances of hurry and impatience." 7 ENCIPIDO and DE LA PE;A verbally acknowledged their guilt before Station Commander Ortega and Municipal Mayor Espina when they individually boasted that they had killed the DECEASED so that the latter could no longer harm other people with his witchcraft. They admitted that they had beheaded the DECEASED. DE LA PE;A even showed the Mayor the DECEASED's dried ear which he had severed, Further, while I i in jail, DE LA PE;A also admitted to Alciso when the latter I asked him the reason for their confinement, that it was because they were the ones who had beheaded the DE CEASED. These oral confessions indicating complicity in the commission of the crime with which they are charged are admissible in evidence against the declarants ENCIPIDO and DE LA PE;A pursuant to Sections 22 8 and 29 9 of the Rules of Court. It is the fact that admissions were made by APPELLANTS and against their own interest which gives them their evidentiary value. 10 It is also to be noted that APPELLANTS' extra-judicial confessions were independently made without collusion, are Identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latter's actual participation in the commission of the crime. 11 They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. 12 They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. And while it may be that ENCIPIDOS written statement before the PC on May 6, 1982 confessing to the killing of the DECEASED was not presented at the trial no presumption of wilful suppression of evidence may be levelled against the prosecution on account of its non-production. Apparently, for the prosecution, it was not important or necessary to bolster up its case. The argument that the testimonies of Station Commander Ortega, Mayor Espina, and Alciso as to the extrajudicial admissions made to them respectively by ENCIPIDO and/or DE LA PE;A constitute hearsay, and thus inadmissible, is not well taken. Oral confessions may be proved by any competent witness by whom they were heard, the same as any other fact: The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood an of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance. (23 C.J.S. 196). Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused. (Underhill's Criminal Evidence, 4th Ed., Niblack, sec. 278, p. 551). 13 ENCIPIDOS and DE LA PE;A's extrajudicial acknowledgments of guilt to the Municipal Mayor and the INP Station Commander are not necessarily incredible for, in their minds, they were not "confessing" but bragging of their exploits" in the belief that they were saving the community from the witchcraft of the DECEASED and the evil doings of some people. There is no proof whatsoever that the extrajudicial admissions in question were coerced or concocted by those officials, who are responsible public officers and presumed to have regularly performed their functions and against whose impartiality nothing has been proven. The fact that no arrest were made by them immediately after the disclosures do not necessarily belie their testimonies since the spirit of "reciprocal goodwill" pervaded the encounters. Arrests were made, however, the day after, or on May 2, 1982. APPELLANTS had the opportunity during the trial to refute their verbal admissions as in fact, they denied having made them, but their denials do not ring with truth in the face of other inculpating evidence. 3. The additional incriminating evidence was furnished by DE LA PE;A who, in open Court, under oath, testified that he belonged to "Commander Tanga's" group, was with them since two days before the incident, and that he was with ENCIPIDO and MANATAD when they killed the DECEASED. DE LA PE;AS declaration confirms the existence of the group, their responsibility for the killing and, at the very least, his presence during the commission of the crime. True, DE LA PE;A exculpated himself by stating that he was only forced to join the group and was merely standing by when the killing occurred. A statement involving guilt does not, however, lose its character as a confession from the fact that it was accompanied by statements of an exculpatory nature, 14 it being "the natural tendency of every transgressor, with perhaps very rare exceptions, to acquit himself while he can do so from all liability that might arise from his act, or at least mitigate it in the eyes of the law and those of his fellowmen". 15 Like other evidence, it must be weighed, believed, or disbelieved in whole or in part, as reason may decide. Herein, the exculpatory statement has been proven false by Alcisos credible account that upon ENCIPIDOS orders, DE

LA PE;A hacked the DECEASED's neck with a bolo which almost severed the latter's head, which testimony is confirmed by the autopsy finding of "incised wound on the neck." It was likewise proven false by DE LA PE;As own extrajudicial admission to the Municipal Mayor that he had hacked the DECEASED's neck and severed his ear, which is buttressed by the post mortem finding of "removed right external ear." DE LA PE;AS judicial admission is admissible not only against him but against his co-accused ENCIPIDO and MANATAD as well. The general rule that the confession of an accused may be given in evidence against him but that it is not competent evidence against his co-accused, admits of exceptions. Thus, this Court has held that where several accused are tried together for the same complaint, the testimony lawfully given by one during the trial implicating the others is competent evidence against the latter. 16 "The extrajudicial admission or confession of a co-conspirator out of court is different from the testimony given by a co-accused during trial. The first is admissible against the declarant alone, but the second is perfectly admissible against his co-accused," 17 who had the right and opportunity to cross-examine the declarant. In this case, counsel de officio had such opportunity to cross-examine DE LA PE;A but did not avail of it because in his own words: Atty Moleta: I would like to inform the Honorable Court that I am in quandary It is my duty as counsel-de-oficio to be candid to this Honorable Court. The witness has not actually followed what I intimated to him to be the nature of his testimony. 18 In other words, the reason counsel refrained from cross examination was not because he was not given the opportunity to do so but because DE LA PE;A did not follow counsel's bidding as to the nature of his testimony. The coached testimony failed but the truth prevailed. Besides, defense counsel could have presented rebuttal evidence to overcome DE LA PE;A's testimony if he had chosen to do so but did not. Thus, MANATAD's direct participation in the commission of the crime with which he is charged has been established by DE LA PE;A's declaration in open Court that "Commander Tanga and Charlito Manatad killed a certain person," and the corroborative testimony of Alciso who categorically testified that MANATAD was on one side of the DECEASED, DE LA PE;A on the other and ENCIPIDO at the back when they perpetrated the offense with which they are changed. In MANATAD's respect, therefore, it is not necessary to invoke conspiracy" to support his conviction. The defense of alibi separately interposed by ENCIPIDO and MANATAD cannot prevail over their positive Identification by eyewitness Also by ENCIPIDOS verbal acknowledgments of guilt, and by DE LA PE;A's judicial and extra- i judicial admission/confession, which are interlocking and ad-missible as against themselves and as against the others whom they also implicated. Neither were ENCIPIDO and MANATAD able to prove that they were at some place for such a period of time that it was impossible for them to have been at the scene of the crime at the time of its commission. Barangay Boa where ENCIPIDO was allegedly sawing lumber was approximately 60 kilometers away, 19 and Barangay Malinao where MANATAD was supposedly plowing the field, about 12 kilometers, 20from Barangay Mabini, Tubajon, Surigao where the incident occurred. In the last analysis, the core issue addresses itself to the credibility of witnesses, a matter that the Trial Court had unequalled competence to consider and decide since it was in a vantage position to observe the conduct and demeanor of the witnesses of both sides while testifying, an opportunity not afforded to Appellate Courts. Its findings as to credibility should not be disturbed and are entitled to great weight unless there is some fact of record that has been overlooked or the significance of which has been misconstrued, 21 which exceptions we find absent herein. The last assigned error delving on the refusal of the Trial Court to give due course to appellants' Motion for Reconsideration on the ground that the judgment had become final is no longer of any consequence since all the grounds therefor have been elevated to and considered by this Court on appeal. In fine, the threads of evidence woven together establish APPELLANTS' guilt to a moral certainty. WHEREFORE, the judgment appealed from is hereby affirmed except as to the civil indemnity, which is hereby increased to P30,000.00 in accordance with recent jurisprudence. With proportionate costs. SO ORDERED.

(39) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FORTUNATO PAMON, GERSON DULANG alias "Toto", AND JOHN DOE alias "Dodo", accused-appellants. [G.R. No. 102005 January 25, 1993] CAMPOS, JR. J.: This is an appeal from the judgment ** of the Regional Trial Court, Branch 6, Dipolog City, convicting accused-appellants Fortunato Pamon and Gerson Dulang of murder and sentencing them to reclusion perpetua. From the records, the following facts are evident: In the morning of July 26, 1985, Robert Te drove his 3/4-ton cargo truck from his residence in Sta. Filomena to Sindutan, Roxas, Zamboanga del Norte to buy copra. With him were Hipolito Andig, Victorino Jauculan, Orlando Tapia, and two other laborers. While they were negotiating a road in Lipakan, the truck got stuck in the mud. As a result, the trucks of Lily Wong and Gerson Dulang which were following his truck were blocked and could not proceed. In order to pull the truck from the mud, Robert Te ordered his companions to tie the wrench of the truck to a coconut tree with a cable. Robert Te remained behind the wheel to maneuver the truck. While in that position, a man approached Robert Te and shot him on the bridge of his nose. The latter died instantly. Another shot was fired and Cesar Siga was hit. Thereafter, the truck was burned by another man. The gunman escaped and boarded the last truck which was the one owned by Gerson Dulang. Initial investigations by the police and the National Bureau of Investigation (NBI) pointed to the New People's Army (NPA) as the killers. However, subsequent investigations by the Criminal Investigation Service (CIS) yielded Fortunato Pamon as the one responsible for Robert Te's death. On March 14, 1987, Fortunato Pamon was arrested by virtue of a warrant of arrest for a murder charge against him in the RTC of Tangub City. He was detained at the PC stockade at Camp Hamac, Sicayab, Zamboanga del Norte. On March 18 or 19, 1987, Fortunato Pamon, in the presence of Atty. Rubencio Ligorio of the Citizens Legal Assistance Office (CLAO), executed before Pfc. Roland Salatandre of the CIS a Confession marked as Exhibit "A". He admitted that he shot and killed Robert Te. Furthermore, he implicated John Doe, alias "Dodo", Gerson Dulang, and Inocencio Feras. The following are excerpts from the affidavit: Q If you can still remember, where were you in the morning of July 26, 1985, at about 7:00 o'clock in the morning, more or less? A I was in Brgy. Lipakan, Roxas, Zamboanga del Norte together with alias Dodo. Q What were you two (2) doing there? A We were on mission to kill Dodong Te, a copra buyer from Dipolog City. Q Were you able to kill Dodong Te? A Yes, sir. I shot him with a 45 Caliber Pistol on his head and when I shot him again, I do not knew (sic) if he was hit. Q Why did you kill Dodong Te? A I killed Dodong Te with the assistance of my companion alias Dodo per instruction of Mayor Inocencio Feras (sic). Alias Dodo was hired by one Toto Dulang, a copra buyer from Dipolog City according to alias Dodo. 1 He also narrated the circumstances leading to his being hired as a gunman, his meeting with "Dodo" for the first time in the house of Inocencio Feras, and how they got to Lipakan in the morning of July 26, 1985. Furthermore, he said that he was promised P15,000.00 by Inocencio Feras as payment for the job and that alias "Dodo" would receive the same amount from Gerson Dulang.

This extrajudicial confession was subscribed and sworn to before Judge Vicente Aseniero on March 20, 1987. Fortunato Pamon reaffirmed his Confession during the preliminary investigation of the case on March 23, 1987. During the said investigation, he was asked: Q When you were told by Dodo that one [sic] the Chinese who is the one driving the truck is Robert Te @ Dodong what did you do? A We were yet on our way to the truck which was driven by Robert Te @ Dodong and upon reaching the rear part of the cargo truck which was driven by Robert Te I handed the gasoline which was placed in the plastic gallon wrapped with a dirty cloth which Dodo received then I told Dodo do not burn the truck because we will kill him and burn the truck. Then I proceeded to the place where the driver was, to the left side of the carao truck and when I was already near the driver I pulled out the 45 caliber which I placed on my right armpit wrapped in a jacket and aimed it to the driver and at that moment looked and faced me and that was the time I pulled the trigger of the 45 caliber and hit the forehead of the driver. After Robert Te was hit on his forehead he dropped himself to the right side of the placed (sic) where he was sitting whereupon I shot him again because I thought that he could not be killed by the first shot and that that shot I could not tell whether he was hit or not. 2 On September 17, 1987, an information for murder was filed against Fortunato Pamon, as principal by direct participation, Inocencio Feras and Gerson Dulang as principals by inducemet, and John Doe, alias "Dodo" as accomplice. The original information stated: The undersigned, Provincial Fiscal, accuses FORTUNATO PAMON alias "Bebie", as principal by direct participation, Ex-Mayor INOCENCIO FERAS as principal by induction, GERSON DULANG alias "Toto" as principal by induction and JOHN DOE (at large) as accomplice of the crime of MURDER, committed as follows: That, in the morning, on or about the 26th day of July, 1985, in the municipality of Roxas, Zamboanga del Norte, within the jurisdiction of this Honorable Court, accused Ex-Mayor Inocencio Feras being then the mastermind in the bizarre plot to liquidate one ROBERT TE alias "Dodong", did then and there wilfully, unlawfully and feloniously induce, offer a price and reward to his co-accused conspiring, confederating together and mutually helping with one JOHN DOE alias "Dodo" who is still at large, accused Fortunato Pamon who acted as the triggerman, armed with a 45 caliber pistol and with intent to kill by means of treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot said ROBERT TE alias "Dodong" while the latter was operating his 3/4 ton cargo truck bound for Sindutan of said municipality, thereby inflicting upon him gunshot wound on the bridge of his nose which caused his instantaneous death; that as a result of the commission of the said crime the heirs of the herein victim suffered the following damages, viz: a) Indemnity for victim's death P30,000.00 b) Loss of earning capacity 10,000.00 c) Moral and exemplary damages 20,000.00 P60,000.00. CONTRARY TO LAW, (Viol. of Art. 248, Revised Penal Code), with the aggravating circumstance of recidivism with respect to accused Fortunato Pamon alias "Bebie" having been convicted in Criminal Case No. 4615 for Murder in Tangub City, and in consideration of price and reward, and the qualifying circumstances of treachery and evident premeditation. 3 When Inocencio Feras died during the course of the trial, the information was amended by dropping Feras' name and substituting the name of Gerson Dulang, in the abovequoted paragraph. During the trial, the prosecution presented the testimonies of Evangeline Te, the widow of Robert Te, Rolando Salatandre, Judge Vicente Aseniero, Victoriano Jauculan and Hipolito Andig. Evangeline Te testified that at about 9:00 o'clock in the morning of July 25, 1985, she received a call from Gerson Dulang. The latter invited Robert Te to a birthday party in Gerson Dulang's house. Robert Te accepted the invitation, left at half past nine, and returned at 2:00 o'clock in the afternoon, already drunk. While in that state, he revealed to Evangeline, his wife, that Gerson Dulang told him; "We will meet in the mountain to find out who is the better man among us". She also said that before her husband left at 4:30 in the morning on July 26, 1985, he again told her those words.

Rolando Salatandre testified that the extrajudicial Confession of Fortunato Pamon was voluntary and that it was in accordance with the constitutional mandate. This was reaffirmed by Judge Vicente Aseniero in his testimony. Victoriano Jauculan, an employee of Robert Te, pointed to Fortunato Pamon as the gunman. Hipolito Andig likewise identified Fortunato Pamon as the killer. They both stated that Fortunato Pamon boarded Gerson Dulang's truck after the incident. Prosecution also presented as evidence the medical certificate issued by Dr. Venusto Bengua on March 20, 1992 which stated that no marks, bruises or signs of torture were found in Fortunato Pamon's body. The defense, on the other hand, presented the testimony of Gerson Dulang who professed ignorance of the crime; of Raul Curativo, a neighbor of Fortunato Pamon, who described the killer as "short, dark in complexion, with curly hair and was bearded", 4 and who said that Fortunato Pamon was not the killer; of Jaime Gilbero, who said that at the time of the killing, Fortunato Pamon was plowing his field; and of Fortunato Pamon himself who denied the killing and retracted his extrajudicial confession. His affidavit of retraction, dated April 23, 1987, is attached as Annex "B" 5 of Appellant's Brief. He alleged therein that the confession was involuntary on his part as it resulted from torture and coercion. This affidavit was, however, not offered in the trial court as an exhibit. After trial, the trial court convicted Fortunato Pamon, Gerson Dulang and John Doe alias "Dodo". It held: The prosecution's thesis that accused Pamon was the author of the death of Robert Te finds support in the Confession (Exhibit "A") of said accused admitting his role as particeps criminis or criminal partner of his coaccused, Inocencio Feras, Gerson Dulang and John Doe alias "Dodo" admitting having killed the victim on that illfated morning of July 26, 1985 at Linapakan, Roxas, Zamboanga del Norte. Of course, said accused repudiated his Confession during trial claiming, among others, that he was not assisted by counsel during his investigation by CIS Pfc. Ronald Salatandre on March 18-19, 1987 at the CIS Office, Dipolog City, considering, according to him, that his supposed counsel, Atty. Rubencio Legorio, arrived in said office when his Confession was already prepared (TSN, Hamoy, Oct. 10, 1990, p. 71) by which he meant that Atty. Legorio was not present when his Confession was taken; but this is belied by Exhibit H-3 showing Atty. Legorio while Pfc. Salatandre was typing (Exhibit H-1) his investigation of said accused, as well as latter's claim under discussion is toppled by his "unexplained failure" (People vs. Sosing, 111 SCRA 368, 374, Par. 3) to present Atty. Legorio to bolster his claim that latter lawyer was not present when his Confession was taken. Such unexplained failure of accused Pamon constituted a conduct (Emphasis supplied) on his part granting truth or verity to the prosecution's assertion that, indeed, by the latter's (prosecution's) Exh. 3-A, supra, Atty. Legorio was actually present during, and not after his (accused Pamon's) investigation, for Atty. Legorio, as a PAO attorney, would not have affixed his signature (Exhibit A-15) if Pfc. Ronald Salatandre had threatened and coerced accused Pamon into giving his sworn statement/Confession. On this point, the Supreme Court said Surely, the CLAO attorney would not have affixed his signature had Pat. Muy, as alleged, threatened and coerced Appellant MENDOZA into giving his sworn statement. (People vs. Yap, 185 SCRA 227, Par. 5.) In fact, accused Pamon declared that he, together with his counsel Atty. Legorio, signed his Confession (Tsn, Hamoy, Oct. 10, 1990, p. 72). A confession constitutes evidence of high order because it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless he is prompted by truth and his conscience. . . . There was, therefore, compliance by the custodial investigator with the jural mandate in PEOPLE VS. GALIT, 135 SCRA 465 prescribing the assistance of counsel for the validity/admissibility of a Confession, in which case, accused Pamon's Confession (Exh. A, supra) is valid and admissible, not only against him, but also against his coaccused Dulang and John Doe alias "Dodo". (People vs. Ramirez, 169 SCRA 711 A SENSU CONTRARIO, because the latter authority says, "Confessions obtained in violation of Art. III, Sec. 12(1) of the Constitution are not admissible against the declarants and much less against third persons). 6 The trial court also considered the argument of the defense that Atty. Rubencio Ligorio was not Fortunato Pamon's choice as his counsel during the custodial investigation because Fortunato Pamon was only forced to sign a paper which turned out be a letter to Atty. Rubencio Ligorio. Anent this allegation, the court said that there was no violation of the constitutional right of the accused to have competent and independent counsel of his own choice "because Pamon did not also refuse Atty. Legorio to assist him during his investigation, for he did not even declare during the trial that he, in fact, refused Atty. Legorio to assist him during the investigation, thus, indicating after all, his choice of Atty. Legorio as his counsel during his custodial investigation". 7

In upholding the voluntariness of the extrajudicial Confession, the trial court also observed that only Fortunato Pamon could have known the identities of his co-conspirators and that he did not present evidence that the CIS knew them beforehand. Furthermore, the court also said that assuming that the Confession was inadmissible, there were other evidences which proved beyond reasonable doubt the guilt of accused Fortunato Pamon, among which was the positive identification by witnesses pointing to him as the killer. This, according to the trial court, shattered the defense of alibi of the accused. It also considered Gerson Dulang's demeanor as a basis for convicting the latter for his lack of seriousness in testifying which rendered him incapable of telling the truth. Besides, he had already been implicated by Fortunato Pamon in his Confession. He was held to be principal by induction because according to accused Fortunato Pamon's Confession, he induced co-accused John Doe alias "Dodo" to kill victim Robert Te. 8 The participation of coaccused Fortunato Pamon was held to be principal by direct participation because according to his Confession, he was the one who actually shot Robert Te to death; John Doe was also held liable because the three were conspirators their common purpose being to liquidate Robert Te. After finding the defendants guilty beyond reasonable doubt of the crime of murder, the Court sentenced them as follows: . . . judgment is hereby rendered declaring accused, Fortunato Pamon and Gerson Dulang, guilty beyond reasonable doubt of the crime of murder charged in the Information and are hereby correspondingly sentenced each to suffer the penalty of reclusion perpetua with the accessories of the law, and to indemnify jointly and severally the heirs of deceased victim, Robert Te, in the total sum of ninety thousand pesos (not sixty thousand as mistakenly alleged in the original and amended information) (P90,000.00), inclusive of indemnity for victim's death P60,000.00; loss of earning capacity P10,000.00; and moral and exemplary damages P20,000.00. Accused, Fortunato Pamon, is not entitled to the full credit of his preventive imprisonment in view of his being a recidivist (Article 29, No. 1, Revised Penal Code) by reason of his previous conviction for Murder in Criminal Case No. 4615 by the Regional Trial Court of Tangub City. Upon application filed with the Court and after due notice to the prosecution, the bailbond of accused Gerson Dulang shall be cancelled upon his surrender for the execution of this judgment. Costs against both convicted accused. 9 From this judgment of conviction, the defendants appealed. Fortunato Pamon and Gerson Dulang made separate assignments of errors. Fortunato Pamon avers that the trial court erred in upholding the validity of his arrest and the voluntariness and admissibility of his extrajudicial Confession, and in not considering the testimony of a witness, Raul Curativo, that Fortunato Pamon was not the killer. Gerson Dulang, on the other hand, claims that the court erred in trying him under both the original and amended informations since they both did not charge an offense against him; in admitting the amended information after his arraignment on the original information because the amendment was not merely a formal but a substantial amendment, in trying him under the amended information when he was not arraigned under it; and in depriving him of the right to be tried by an impartial judge. Both allege that their guilt was not proven beyond reasonable doubt. They also assail the admission of the extrajudicial Confession which was involuntarily given and the conviction of Gerson Dulang under the said Confession since apart from it, there was no other evidence to prove the conspiracy and Gerson Dulang's guilt. This appeal hinges on the admissibility or inadmissibility of the extrajudicial Confession of accused-appellant Fortunato Pamon as evidence against him and his co-accused Gerson Dulang. Both appellants allege that the trial court erred in admitting the Confession as it was violative of Article III, Section 12(1) of the Constitution which guarantees a person under investigation the right to be assisted by an independent counsel of his own choice and the right against torture and violence. Any violation of said guarantees renders an extrajudicial confession inadmissible. Contrary to the allegations of Fortunato Pamon, We are constrained to uphold the admissibility of his extrajudicial Confession. A confession constitutes an evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. 10 This presumption of spontaneity and voluntariness stands unless the defense proves otherwise. 11 A confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat, or promise of reward of leniency. 12 In People vs. Quijano, 13 this Court, in dismissing the plea that the trial court erred in admitting the accused's allegedly involuntary extrajudicial confession, held:

Finally, the alleged use of force and intimidation has not been substantiated by evidence other than the statements of the appellants. As has been pointed out, such allegation is another naive attempt of appellants to backtrack from their prior voluntary admission of guilt. . . . . We believe that Fortunato Pamon has not presented enough proof to overcome this presumption. Apart from his testimony that he was maltreated, Fortunato Pamon presented no other substantial proof to buttress his claim. He did not submit any medical certificate which would attest to his allegation that he was mauled and was hit on the head. On the other hand, the prosecution's witness testified that the examining physician, Dr. Venusto Bengua, found no sign of physical maltreatment in Fortunato Pamon's body. 14 Neither did he file any complaint against his manhandlers with the proper authorities. In People vs. Solis, 15 We held: A careful scrutiny of the records belie the assertions of maltreatment. We find that the appellants were afforded the services of counsel during the time they executed their statements. There was also an instance when the Presiding Judge visited Joveniano's detention cell and inquired about his condition and complaints . . . . Cabug was, likewise, brought before the Fiscal before whom the former subscribed to the veracity of his statement . . . . With all these chances to report the alleged maltreatment, appellants kept silent. They did not even file a complaint against their alleged tormentors or ask their counsel or relatives to do so. . . . We have already ruled that a confession is deemed to have been made voluntarily if the accused did not complain to the proper authorities regarding the alleged maltreatment despite the opportunity to do so . . . . Appellants neither asked for medical attention nor presented any medical certificate to attest to the bruises or injuries on their persons. (Emphasis Ours). The more recent case of People vs. Damaso, 16 quoting earlier cases, reiterated the aforementioned ruling. We quote: In addition, bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient in view of the standing rule . . . "that where the defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these were considered by this Court as factors indicating voluntariness. In the case at bar, Fortunato Pamon had several chances to deny the voluntariness of his Confession. First, when he and Atty. Rubencio Ligorio conferred; second, when he subscribed the Confession before Judge Vicente Aseniero on March 20, 1987; and third, when he was before the investigating officer on March 23, 1987. In the last instance, instead of repudiating his Confession, he reaffirmed it. The other earmarks of voluntariness which are appreciated by this Court are the following: the signature of Atty. Rubencio Ligorio; the signature of Judge Vicente Aseniero; the presence of details in his Confession. 17 Aside from holding that the extrajudicial Confession of Fortunato Pamon had been voluntarily given, We also hold that it was given in the presence and with the assistance of counsel. The evidence presented by the prosecution has adequately established that Atty. Rubencio Ligorio was present when the confession was made and subscribed to. But Fortunato Pamon claimed that Atty. Rubencio Ligorio was not a counsel of his choice. We are well aware of the constitutional mandate that the counsel present must not be just any counsel, but one who has been chosen by the accused. In a recent case, We affirmed the rule that ". . . no in-custody investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person in his behalf or appointed by the court upon petition either of the detainee himself or by someone in his behalf". 18 Thus, We already had occasion to rule that where counsel is provided for by investigators, the confession taken in the presence of such counsel is inadmissible as evidence because it fails to satisfy the constitutional guarantee. 19 But this doctrine recognizes certain exceptions. Where the counsel has been appointed by the investigators with the conformity of the confessant, the latter's confession is considered as valid and binding upon him. 20 The decision in People vs. Alvarez 21 is also relevant to the case at bar. We said therein that "while it may be that a lawyer was provided by the police, Alvarez never signified to have a lawyer of his choice." Thus, the trial court's findings that Fortunato Pamon was assisted by a counsel of his choice is hereby sustained. Having ruled on the constitutionality and admissibility of the Confession, We hereby find that the lower court did not err in convicting accused Fortunato Pamon of murder. Likewise, the trial court committed no error in holding that Fortunato Pamon was validly

arrested since he himself admitted that he was taken into custody by virtue of a warrant of arrest issued by a judge who convicted him in an earlier murder case. However, although We sustain the trial court's conviction of Fortunato Pamon, We are constrained to disagree with the trial court's conviction of Gerson Dulang. Well settled is the rule that the guilt of an accused must be established by proof beyond reasonable doubt. The prosecution failed to meet this quantum of proof with respect to Gerson Dulang. Apart from the extrajudicial Confession of Fortunato Pamon, there is no other evidence linking Gerson Dulang to the crime except the testimonies of the widow of Robert Te and of the latter's employees which We have summarized earlier. The conviction of Gerson Dulang can hardly rest on such very tenuous grounds. We are, therefore, left with the extrajudicial Confession of Fortunato Pamon. The trial court, in admitting the Confession as evidence against Gerson Dulang said: There was, therefore, compliance by the custodial investigator with the jural mandate . . . in which case, accused Pamon's Confession, "A", supra) is valid and admissible, not only against him, but also against his co-accused Dulang . . . (People vs. Ramirez, 169 SCRA 711-A SENSU CONTRARIO, because the latter authority says, "Confessions obtained in violation of Article III, Sec. 12(1) of the Constitution are not admissible against the declarants and much less against third persons".). 22(Emphasis Ours). We cannot sustain the trial court's reasoning that if the confession is not admissible against the accused, it will not also be admissible against those who had been implicated therein. But, if it is admissible against the former, then it will also be admissible against the latter. This simply ignores the doctrine: RES INTER ALIOS ACTA ALTERI NOCERI NON DEBET. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. 23 An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. 24 This is so because the co-accused has no opportunity to crossexamine the confessant and thus, as against him, the confession is hearsay. 25 The case of People vs. Plaza 26 is instructive. The ruling of the Court is quoted, thus: In short, the extra-judicial confessions/statements of the Napal brothers are inadmissible against Plaza first, because as earlier stated they lack the indispensable requisite of corroboration by other evidence and, second, because during the trial the Napal brothers not only denied that their co-accused Plaza participated in the killing of Luna but went on to repudiate their statements as having been extracted from them through the use of force, violation [sic] and intimidation. The same situation obtains in this case. The Confession was repudiated by Fortunato Pamon during the trial. Consequently, it did not become a judicial admission which would have been admissible against all those implicated. 27 Moreover, We also want to point out that Fortunato Pamon had no personal knowledge of Gerson Dulang's participation. He only heard from alias "Dodo" that Gerson Dulang hired him to kill Robert Te. 28 Thus, the confession of Fortunato Pamon vis-a-vis Gerson Dulang was, as the appellant called it, double hearsay. WHEREFORE, premises considered, the decision of the trial court is hereby MODIFIED, We hereby AFFIRM the conviction of accused Fortunato Pamon and REVERSE and SET ASIDE the conviction of Gerson Dulang on reasonable doubt. SO ORDERED.

(40) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NELIA NICANDRO y VELARMA, accused-appellant. [G.R. No. L-59378 February 11, 1986] PLANA, J.: This is an appeal from a judgment of the then Court of First Instance of Manila, Branch VIII, convicting the accused Nelia Nicandro y Velarma of violation of Section 4, Article II, in relation to Section 2(e), (f), (1), (m), and (o) Article I, of Republic Act 6425, as amended (Dangerous Drugs Act), upon an information which reads: That on or about November 6, 1981, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell deliver, give away to another or distribute any prohibited drug, did then and there willfully, unlawfully, and knowingly sell or offer for sale four (4) sticks of marijuana cigarettes, marijuana flowering tops wrapped in a piece of newspaper, one (1) roach marijuana cigarette and marijuana seeds and ashes contained in a white plastic bag, which are prohibited drugs. The People's version of the facts is as follows: Not long before November 6,1981, the Drug Enforcement Unit of Police Station No. 5, Western Police District, Metropolitan Police Force, Manila, received complaints from concerned citizens regarding the illegal sale of prohibited drugs by one alias 'Nel' in the Commodore Pension House at Arquiza Street, Ermita, Manila (p. 4, tsn, Dec. 8, 1981). lt was also informed that the use of prohibited drugs in said place was rampant (pp. 3, 18-19, tsn, Ibid). Responding to said complaints and reports, Cpl. Salvador Guitan and Pfc. Romeo Joves of the Drug Enforcement Unit of said Police Station No. 5 placed the Commodore Pension House and its surroundings under surveillance for about a week (pp. 4-5, tsn, Ibid.). After the complaints and reports were verified to be true, an entrapment with the confidential informant acting as the buyer of marijuana was organized. (pp. 5-6, 29-30, tsn, Ibid.). At about 9:00 p.m. on November 6, 1981, the police team formed to carry out the entrapment plan was alerted of the presence of the drug pusher, alias 'Nel', at room 301 of the Commodore Pension House, selling marijuana to drug users (pp. 6, 32-33, tsn, Ibid.). Immediately Cpl. Salvador Guitan, Pat. Proceso Federes, Pat. Aurora Gomez and Pfc. Romeo Joves proceeded to the said Commodore Pension House and met the female confidential informant at the corner of Arquiza Street and M.H. del Pilar Street, Ermita, Manila (pp. 6, 23, 33, tsn, Dec. 8, 1981; pp. 15-16, tsn. Dec. 9, 1981). Pfc. Joves gave the informant two (2) P5.00 bills, marked Exhibits "D" and "E", with his initial thereon, marked Exhibits "D-1", and "E-1" (Exhs. "D", "D-1" "E" and "E-1", pp. 3-4, Folio of Exhs.; pp. 6, 8, 35, tsn, Dec. 8, 1981; p. 16, tsn, Dec. 9, 1981). They instructed her to follow them to the Commodore Pension House (p. 33, tsn, Dec. 8, 1981). Following later, the informant went to room 301 of the Commodore Pension House (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Upon a given signal she knocked on the door of the room. Appellant Nelia Nicandro y Velarma, alias 'Nel', opened the door (p. 6, tsn, Dec. 8. 1981). The informant asked to buy some marijuana cigarette and gave appellant the two (2) marked P 5.00 bills (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Thereupon, the appellant delivered to informant four (4) sticks of marijuana cigarette (pp. 7, 25, tsn; Dec. 8,1981; p. 8, tsn, Dec. 9, 1981). Immediately the police team closed in and nabbed appellant (p. 7, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Pat. Gomez frisked appellant and got from the right front pocket of her pants the two (2), marked P5.00 bills (Exhs. "D" & " E ") and from the left pocket of her pants marijuana flowering tops wrapped in a piece of newspaper (pp. 8-9, 12, 34, tsn, Dec. 8, 1981; pp. 9-10, 17-19, tsn. Dec. 9, 1981). Appellant tried to escape by entering her rented room 301 but was immediately (pp. 8-9, tsn, Dec. 9, 1981). xxx xxx xxx Upon being investigated and after having been duly apprised of her constitutional rights, appellant orally admitted having sold the four (4) sticks of marijuana cigarettes and the ownership of the marijuana flowering tops taken from her pocket, but refused to reduce her confession to writing (pp. 12-13, tan; Dec. 8, 1981. ... (People's Brief, pp. 3-6, 8.)

To support the charges, the prosecution relied principally on Pat. Joves, who testified that he saw the accused sell marijuana cigarettes to the unnamed police informant, which allegedly the accused verbally admitted when she was under custodial investigation. Pat. Joves declared: Q Where were you when the informant handed the two P5.00 bills to the accused? A We were hidden within the vicinity of Room 301 sir. Q After your confidential informant have handed the two P5.00 bills to the accused, what happened next? A The accused in turn handed one small plastic bag containing suspected marijuana leaves. I beg to correct sir. I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir. Q What did you do when you saw the accused hand over to the confidential informant the four sticks of cigarettes containing marijuana? A When we saw the accused handed the four sticks of suspected marijuana cigarettes to our confidential informant, and after a pre-a rranged signal was given by the confidential informant that the accused had already sold her the marijuana cigarettes, we immediately nabbed said suspect and at the same time we Identified ourselves as police officers. (TSN, Dec. 8, 1981, p. 7.) xxx xxx xxx Q You also conducted the investigation of this accused and confiscation of the articles of the crime? A Yes, sir. Q How did you conduct the investigation? A The first thing I did was I informed the accused of her constitutional rights. Q What next? A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. Q Did you place that in writing? A The accused refused to place her statement in writing, sir. ( Ibid., pp. 12-13.) xxx xxx xxx CROSS EXAMINATION Q And who were your companions in apprehending the accused? A I was with Police Cpl. Salvador Guitan, Pat. Federis and Policewoman Aurora Gomez, sir. Q When you posted yourselves and other companions at the third floor of Commodore Pensione House, were there any other persons present in the premises, Pat. Joves? A There were other persons passing by or walking in the place from where we were posted sir.

Q In fact, there were several or many persons in that place because there is a lodging house Pat. Joves when you posted yourselves there? There were several persons present there? A There are several persons present but they are just passing by or walking towards their rooms, sir. Q And you want this Court to believe that in spite of the presence of these people walking and passing to the place where you made the apprehension, you want this Court to believe that the accuse was then selling the alleged marijuana sticks? WITNESS: Please repeat the questions? ATTY. CARINGAL: Q You want the Court to believe that the accused was selling the prohibited drug in public because according to you there were several persons present then? A There were several persons passing by sir at that place. Q You testified a while ago Pat. Joves that you have seen the accused handing a plastic bag to your confidential informant. How big is that plastic bag.? A It was not a plastic bag, sir but four sticks of marijuana cigarettes, sir. Q Do you want to impress this Honorable Court that the accused was selling this marijuana cigarette in the open? A The accused sold marijuana cigarettes also in a way that she will not be noticed by other persons sir. Q How were you able to say that the things handed by the accused to your confidential informant were four sticks of marijuana cigarettes when you have just said that the transactions was done secretly? A She was handing the marijuana cigarette secretly, sir. Q How were you able to say and how were you able to determine that the things handed to your confidential informant were four sticks of marijuana cigarettes? A We saw and observed that the accused handed sticks of suspected marijuana cigarettes and we also have a prearranged signal from the confidential informant that the marijuana was already sold by the accused, sir. (Ibid., pp. 23-25.) Policewoman Aurora Gomez also testified but her testimony was limited to events subsequent to the alleged sale of marijuana cigarettes. She did not witness the sale. (TSN, Dec. 9, 1981, pp. 17-18, 21.) Neither did Cpl. Guitan or Pat. Federis. After trial, the trial court convicted the accused as aforesaid and imposed the penalty of reclusion perpetua and a fine of P20,000.00. In the instant appeal, defendant-appellant has assigned the following errors: I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED FOR VIOLATION OF SECTION 4 OF ARTICLE II IN RELATION TO SECTION 2(e), (1), (f) and (o), ARTICLE 1, R.A. 6425, AS AMENDED BY P.D. NO. 44 AND FURTHER AMENDED BY P.D. NO. 1675.

II THE COURT A QUO GRAVELY ERRED IN GIVING PROBATIVE VALUE TO THE TESTIMONIES OF ALL POLICE OF OFFICERS WHICH ARE HEARSAY. III THE COURT A QUO GRAVELY ERRED IN ADMITTING PROSECUTION EVIDENCE WHICH WERE OBTAINED IN VIOLATION PETITION OF ACCUSED CONSTITUTIONAL RIGHTS. IV THE CONSTITUTIONAL RIGHTS OF THE ACCUSED MORE PARTICULARLY THE RIGHT TO CONFRONTATION AND TO CROSS-EXAMINE WITNESS AGAINST HER HAS BEEN VIOLATED. Numerous factors combine to make the appeal meritorious. The prosecution evidence leaves much to be desired. It is at best uncertain whether any prosecution witness really saw the alleged sale of marijuana cigarettes. Patrolman Joves allegedly was an eyewitness. He testified that he saw the appellant sell marijuana cigarettes to the police informant, as the transaction took place openly just outside room 301, in the presence of several persons "passing by or walking in the place". But when his attention was called to the improbability that an illegal merchandise would openly be sold, he qualified his story by saying that appellant handed the marijuana cigarettes to appellant "secretly". Pat. Joves was not certain as to what he saw. At first, he said that after the police informant had paid appellant, the latter handed to the former "one small plastic bag containing suspected marijuana leaves." Then he corrected himself by saying: "I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir." It is probable that Pat. Joves really did not see either the alleged delivery of the marijuana cigarettes or the supposed payment therefor. After all, according to him, the transaction was effected "secretly". On the other hand, if the sale was made within the view of Pat. Joves and his companions, there would have been no need for them to wait for a signal from the police informant to indicate that the transaction had been completed, before closing in and arresting appellant. With the testimony of Pat. Joves seriously placed in doubt, there is not much left of the prosecution evidence. Note that the police informant was not presented as a witness, prompting the accused to invoke with reason the presumption that evidence willfully suppressed would be adverse if produced. [Rules of Court, Rule 131, Sec. 5(e).] In convicting the appellant, the trial court relied partly on her alleged oral admission declaraciones custodial investigation, as testified to by Pat. Joves. This reliance is assailed as violative of Section 20 of Article IV of the Constitution which 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 above provision is an expanded version of the guarantee against self-incrimination, formally incorporating the doctrine in the landmark American case of Miranda vs. Arizona ... Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean 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. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to

consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. [384 U.S. 436, 444-445. Incidentally, the Miranda doctrine rests on just one broad guarantee in the U.S. Constitution, i.e., that no person shall be compelled in any criminal case to be a witness against himself. (Fifth Amendment.)] 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 meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefor, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV 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, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. (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. Now, since the right "to be informed" implies comprehension, the degree of explanation required will necessary vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the subject is unlettered. Thus, in the cited case of People vs. Ramos, this Court said: In the case at bar, appellant has only finished Grade VI, which means that he is not adequately educated to understand fairly and fully the significance of his constitutional rights to silence and to counsel. As mandated, it is not enough that the police investigator merely informs him of his constitutional rights to silence and to counsel, and then taking his statements down, the interrogating officer must have patience in explaining these rights to him The records do not reveal that these requirements have been fully complied with, nor was there any showing that appellant has been represented by counsel during custodial investigation. In consonance with Section 20 of the Bill of Rights which states that 'any confession obtained in violation of this section shall be inadmissible in evidence,' We hold that the verbal admissions of appellant during custodial investigation may not be taken in evidence against him. (pp. 321-322.) Like other constitutional rights, the right against self-incrimination, including the right of a person under investigation to remain silent and to counsel, and to be informed of such right, may be waived. To be valid, however, a waiver of the right must not only be voluntary; it must be made knowingly and intelligently (People vs. Caguioa, supra), which presupposes an awareness or understanding of what is being waived. It stands to reason that where the right has not been adequately explained and there are serious doubts as to whether the person interrogated knew and understood his relevant constitutional rights when he answered the questions, it is Idle to talk of waiver of rights. Going to the instant case, Pat. Joves testified that he conducted the custodial investigation of appellant. As to the manner of investigation, he tersely testified: Q How did you conduct the investigation? A The first thing I did was I informed the accused of her constitutional rights. Q What next? A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. (TSN, December 8, 1981, pp. 12-13.) According to Pat. Joves, he informed appellant of her constitutional rights when she was under custodial investigation. What specific rights he mentioned to appellant, he did not say. Neither did he state the manner in which the appellant was advised of her constitutional rights so as to make her understand them. This is particularly significant in the instant case because appellant is illiterate and cannot be expected to be able to grasp the significance of her right to silence and to counsel upon merely hearing an abstract statement thereof.

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. As broadly stated in the Miranda case and quoted with approval by the then Chief Justice Enrique M. Fernando in People vs. Caguioa, supra, ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial investigation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (95 SCRA 2,9. Emphasis supplied.) The reason is not difficult to see. A constitutional guarantee should be liberally construed with a view to promoting its object. ... Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. xxx xxx xxx In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of these rights be assumed on a silent record. ... (Miranda case, 384 U.S. 436, 491, 498-499.) 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 apprisal was sufficiently manifested and intelligently understood" by the accuse. Similarly, in People vs. Caguioa, the Court sustained the rejection by the trial court of the extrajudicial admission made by the accused during custodial investigation, there being no showing by the prosecution that there was sufficient compliance with the constitutional duty to inform the accused of his rights to silence and to counsel, without which there could be no intelligent waiver of said rights. In said case, the accused a native of Samar was interrogated in Tagalog. The prosecution did not show that the accused's acquaintance with Tagalog was such that he could fully understand the questions posed to him. All considered, we hold that the guilt of appellant has not been established beyond reasonable doubt. WHEREFORE, the appealed decision is reversed and set aside, and the appellant is hereby acquitted on the basis of reasonable doubt. SO ORDERED.

SECTION 13

(1) FLAVIANO B. CORTES, complainant, vs. JUDGE SEGUNDO B. CATRAL, Regional Trial Court, Branch 7, Aparri, Cagayan, respondent. [A.M. No. RTJ-97-1387. September 10, 1997] ROMERO, J.: Once again, the Court is asked to elucidate on the rules in the grant of the application for bail. A sworn letter complaint was filed by Flaviano Cortes charging Judge Segundo B. Catral of the RTC of Aparri, Cagayan with Gross Ignorance of the Law committed as follows: 1. He granted bail in murder cases without hearing: People v. Duerme, et al., Criminal Case No. 07-893 for murder and People v. Rodrigo Bumanglag, Criminal Case No. 08-866 for murder These two cases are like the case of Teresita Q. Tucay v. Judge Roger Domagas, 242 SCRA 110 being classified as heinous crimes there (sic) are supposedly unbailable; 2. On May 3, 1995, Barangay Captain Rodolfo Castanedas Criminal Case No. 11-6250 for Illegal Possession of Firearm was raffled and assigned to his sala. The provincial prosecutor granted a bailbond of P180,000.00 but it was reduced by Judge Segundo Catral for only P30,000.00. The worst part of it no hearing has been made from 1995 to the present because according to his clerks, he is holding it in abeyance. This Barangay Captain Rodolfo Castaneda is one of the goons of Julio Bong Decierto his nephew who has a pending murder case; 3. Another Barangay Captain Nilo de Rivera with a homicide case was granted with a bailbond of P14,800.00 by Judge Segundo Catral. The amount is too low. It is because this Nilo de Rivera is another goon of Julio Bong Decierto; 4. Jimmy Siriban the right hand man of Julio Bong Dicierto was sued for concubinage and convicted by Judge Herminio del Castillo in MTC. Jimmy Siriban appealed and it was elevated to the RTC Branch 08, the sala of Judge Segundo Catral. Judge Segundo Catral acquitted Jimmy Siriban, rumors in Aparri spread that the wife of Judge Segundo Catral went to Jimmy Siribans house to get the envelop;[1] In his comment dated August 16, 1996, respo ndent judge branded the complainant as a self anointed concern (sic) citizen of Aparri, Cagayan who has gained notoriety as a character assassinator, a public nuisance and most often called speaker for hire during election time. Respondent further laments that a ghost lawyer is taking advantage of the notoriety of Mr. Flaviano Cortes by manipulating him like a robot and letting him loose like a mad dog barking on the wrong tree and biting everybody including the other members of the bench.[2] With regard to the first charge, respondent judge, in his comment, clarified that Criminal Case No. 07-893 is the case of People v. Willie Bumanglag y Magno for frustrated homicide pending in Branch 7 of the Regional Trial Court of Aparri where the presiding judge is Hon. Virgilio Alameda. However, if the complainant is referring to Ahmed Duerme y Paypon, et al., Criminal Case No. 874[3] for murder pending in Branch 7 of the RTC where respondent was then designated as presiding judge, respondent stresses that the provincial prosecutor recommended P200,000.00 as bailbond for each of the accused. Subsequently, in a motion for reduction of bailbond, the resolution of the motion was submitted to the sound discretion of the court. The court, mindful of the fact that the prosecution is banking on weak circumstantial evidence and guided by the factors prescribed in Section 9 of Administrative Circular 12-94[4] issued an order for reduction of the bailbond from P200,000.00 toP50,000.00.[5] In the case of People v. Rodrigo Bumanglag, Criminal Case 08-866 for murder, the inquest judge issued a warrant of arrest for the accused with no bail recommended. When the case was elevated to the Regional Trial Court upon information filed by the provincial prosecutor, the information made no mention of a bailbond. In the hearing of the petition to determine whether or not the evidence of guilt is strong, the fiscal opted not to introduce evidence and recommended bail in the sum of P200,000.00 instead. Respondent judge acting on the said recommendation and again guided by the provision of Section 9, Administrative Circular 12-94 in conjunction with the evidence extant on the record approved the recommendation of Prosecutor Apolinar Carrao. [6] A duplicate copy of trial prosecutor Apolinar Carraos letter dated September 3, 1996 addressed to the provincial prosecutor Romeo Sacquing was presented by the respondent to disprove the accusation that he granted bail to the accused without conducting any hearing.[7] As regards the third charge concerning the illegal possession of firearm against Barangay Captain Rodolfo Castaneda, the bailbond recommended by the prosecutor was P180,000.00. Accused, through counsel Atty. Bulseco, filed a motion for reduction of the bailbond toP30,000.00. Counsel even vouched and guaranteed the appearance of the accused in court, whenever required. The motion for reduction of bailbond was submitted without serious opposition and the prosecutor mindful perhaps that there is no corpus of the crime as no firearm was caught or taken from the possession of the accused merely submitted the same to the discretion of the court.[8]

In Criminal Case No. 08-915 concerning a homicide case against Barangay Captain Nilo de Rivero, respondent judge says that the bailbond of P14,800.00 was recommended by the acting Officer-In-Charge (OIC) as contained in his manifestation accompanying the information.[9] Respondent judge then acting on the recommendation of the OIC provincial prosecut or and mindful of the guidelines in fixing a reasonable amount of bailbond coupled by the fact that the evidence on record is merely circumstantial and there was no eyewitness to the commission of crime granted bailbond in the sum of P14,800.00.[10] Finally, respondent judge says the accusation regarding the acquittal of one Jimmy Siriban is simply the product of a dirty imagination and is a dirty trick intended to defame the name of his family by rumor mongers who are unwilling to come out in the open to substantiate their accusation. On September 9, 1996, respondent submitted his additional comment dated September 5, 1996 informing the Office of the Court Administrator that Criminal Case No. 07-784, referred to in the letter complainant (sic) of Mr. Flaviano Cortes, has already been dismissed by Judge Virgilio Alameda, RTC, Branch 07, Aparri Cagayan, in his order dated August 16, 1996. [11] Respondent judge stresses that, as can be gleaned from the penultimate paragraph of said order, the accused, despite reduction of their bailbonds, remained detention prisoners because of their failure to post bond. In his original comment, respondent stated, among others, that the evidence against the accused in Criminal Case No. 07-874 was based on weak circumstantial evidence which prompted the court to grant them a reduced bailbond of P50,000.00. Respondent judge noted that the complaining witnesses never appeared despite the fact that the case had been set for hearing several times. The Office of the Court Administrator recommended the dismissal of the complaint saying that there is nothing in the allegations of the complainant that would warrant the imposition of administrative sanction against respondent judge. In recommending the dismissal of the complaint against respondent judge, the Office of the Court Administrato r noted, x x x complainant failed to show any indication that bad faith motivated the actuation of the respondent in granting and reducing the amount of bail of the accused in some of the criminal cases that were assigned in his sala. x x x it is crystal clear that the increase or reduction of bail rests in the sound discretion of the court depending upon the particular circumstances of the case. It should be noted further that the reduction in the amount of bail of the accused in the criminal cases in question were all done by the respondent with the knowledge and conformity of the Public Prosecutor concerned. Moreover, the actions taken by the respondent were in the exercise of judicial discretion that may not be assailed in an administrative proceedi ngs (sic).[12] We do not agree. Bail is the security required by the court and given by the accused to ensure that the accused appears before the proper court at the scheduled time and place to answer the charges brought against him or her. It is awarded to the accused to honor the presumption of innocence until his guilt is proven beyond reasonable doubt, and to enable him to prepare his defense without being subject to punishment prior to conviction.[13] Bail should be fixed according to the circumstances of each case. The amount fixed should be sufficient to ensure the presence of the accused at the trial yet reasonable enough to comply with the constitutional provision that bail should not be excessive. [14] Therefore, whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicants character and reputation, forfeiture of other bonds or whether he is a fugitive from justice.[15] When a person is charged with an offense punishable by death, reclusion perpetua or life imprisonment, bail is a matter of discretion. Rule 114, Section 7 of the Rules of Court states: No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action. Consequently, when the accused is charged with an offense punishable by death, reclusion perpetua or life imprisonment, the judge is mandated to conduct a hearing, whether summary or otherwise in the discretion of the court, not only to take into account the guidelines set forth in Section 9, Rule 114 of the Rules of Court, but primarily to determine the existence of strong evidence of guilt or lack of it, against the accused. A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable an d consistent with the purpose of hearing which is merely to determine the weight of evidence for purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered or admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination. [16] Respondent judge, in two instances, granted bail to an accused charged with murder, without having conducted any hearing as to whether the evidence of guilt against the accused is strong. In the case of People v. Ahmed Duerme y Paypon, et al., Criminal Case No. 874, accused Ahmed Duerme together with four other persons were charged with the crime of murder. The provincial prosecutor recommended the sum of P200,000.00 as bailbond for each accused.[17] The records do not reveal whether a hearing was actually conducted on the application for bail although

respondent judge implies that there was one, stating that acting on this recommendation of the provincial prosecutor and tak ing into account the guidelines prescribed in Section 9 of Administrative Circular 12-94, the court issued a warrant of arrest and fixed the amount of P200,000.00 for the provisional liberty of each of the accused. [18] Subsequently, counsel for accused Ahmed Duerme filed a motion for reduction of bail. The hearing of the motion was conducted on August 21, 1995 with the prosecution, not having interposed any opposition, and submitting the resolution of the motion to the sound discretion of the court instead. Respondent judge then issued an order granting a reduced bailbond of P50,000.00 for accused Ahmed Duerme inasmuch as the evidence was not so strong to warrant the fixation of said amount. [19] Respondent judge, in his comment, disclosed that the prosecution was banking on weak circumstantial evidence since there was no eyewitness to the commission of the offense as borne out from the affidavits and sworn statements of the prosecution witnesses.[20] The order granting the reduced bailbond, however, did not contain a summary of the evidence for the prosecution.[21] In the case of People v. Rodrigo Bumanglag, Criminal Case No. 08-866, accused Bumanglag was charge with murder in a criminal complaint filed before the Municipal Trial Court of Sta. Ana, Cagayan. After conducting a preliminary investigation, the inquest judge issued a warrant of the arrest for the accused with no bail recommended. When the case was elevated to the Regional Trial Court, the information made no mention of a bailbond. Consequently, accused through counsel filed a petition for bail. In the hearing of the petition to determine whether or not the evidence of guilt against the accused was strong, the fiscal opted not to introduce evidence and recommended the sum of P200,000.00 instead.[22] Respondent judge, acting on said recommendation and again guided by the provision of Section 9, Administrative Circular 12-94 in conjunction with the evidence extant on record, issued an order granting bail to the accused in the sum of P200,000.00.[23] Unable to post the said bond, accused through counsel filed a motion to reduce bail.[24] In the course of the hearing of the petition, the public prosecutor manifested that he had no objection to the sum of P50,000.00 as bail for the accused. Respondent judge, then guided by the factual setting and the supporting evidence extant on record[25] reduced the bail bond from P200,000.00 to P50,000.00 as recommended by the prosecutor. Once again, the order granting the bail of P200,000.00, as well as the reduced bail bond of P50,000.00, did not contain a summary of the evidence presented by the prosecution. Respondent judge insists that in the aforecited cases, a hearing was actually conducted on the application and motion for reduction of bail, but the public prosecutor opted not to introduce evidence and submitted the resolution of the petition, as well as the motion for reduction of bail, to the sound discretion of the court instead. Respondent observed that since it is a basic principle of procedure that the prosecution of criminal cases is under the direct control and supervision of the fiscal or prosecutor, would it be procedurally proper for the court to compel prosecutor Apolinar Carrao, the public prosecutor assigned in the case of People v. Rodrigo Bumanlag, Criminal Case No. 08-866, to prove the evidence of guilt of the accused for the crime of murder when the prosecutor candidly admitted in open court that in his honest view, the strength of evidence on hand for the state can only prove the crime of homicide and not murder?[26] In the recent case of Inocencio Basco v. Judge Leo M. Rapatalo,[27] this court ruled that x x x the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application of bail to the sound discretion of the court. A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the application to grant and fix bail. The importance of a hearing has been emphasized in not a few cases wherein the court ruled that, even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it against the accused. The reason for this is plain. Inasmuch as the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial discretion, It may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court,[28] it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce evidence in his own rebuttal.[29] Respondent judge justifies the grant of bail in the two cases by stating that the prosecutor recommended the grant of bail. Respondent also added that in the case of People v. Ahmed Duerme, there were no eyewitnesses to the commission of the offense as borne out from the affidavits and sworn statements of the witnesses. [30] As a matter of fact, the case had already been dismissed for failure to prosecute by Judge Alameda inasmuch as the prosecutor himself admitted that there was lack of interest on the part of the witnesses to pursue the case and not a single witness ever went to court to see him. [31] The fact that Criminal Case No. 07-874 was subsequently dismissed by Judge Alameda does not completely exculpate respondent judge. We need only remind him that he is not bound by the recommendation of the prosecutor and the affidavits and sworn statements of the witnesses are mere hearsay statements which could hardly be the basis for determining whether or not the evidence of guilt against the accused is strong. Worth noting, too, is the fact that the order granting the application, as well as the reduction for bail the aforecited cases, did not contain a summary of the evidence presented by the prosecution. In Criminal Case No. 07-874, respondent only arrived at the conclusion that "the evidence was not so strong to warrant the fixation of said amount [32] and the observation that: When the hearing of this petition was called, some legal skirmishes arose between the Prosecutor and the Defense Counsel, after which, the prosecutor out of humanitarian reason yielded and manifested that he is amenable that the accused be admitted to bail in the amount

of P200,000.00 in Criminal Case No. 08 -866.[33] Well settled in a number of cases[34] is the rule that the courts order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise the order granting or denying bail may be invalidated because the summary of the evidence for the prosecution which contains the judges evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. The procedural lapse of respondent judge is aggravated by the fact that even though the accused in Criminal Case No. 07874, People v. Ahmed Duerme, have yet to be arrested, respondent already fixed bail in the sum of P200,000.00. Respondent evidently knew that the accused were still at large as he even had to direct their arrest in the same order where he simultaneously granted them bail.[35] At this juncture, there is a need to reiterate the basic principle that the right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty[36] and it would be premature, not to say incongruous, to file a petition for bail for some whose freedom has yet to be curtailed. With regard to the third charge filed against respondent judge, we adopt the findings of the Office of the Court Administrator that the complainant failed to show that bad faith motivated the actuation of respondent judge in reducing the amount of bail in Criminal Case No. 11250 for Illegal Possession of Firearm against Barangay Captain Rodolfo Castaneda. Respondent judge, in granting and subsequently reducing the recommended bailbond of P180,000.00 considered the fact that there was no corpus of the crime as no firearm was taken from the possession of the accused, as well as the fact that counsel for the accused vouched and guaranteed the appearance of the accused in court whenever required. [37] Moreover, records show that, contrary to the allegations of the complainant, the trial of the case had already been set for hearing but on more than one occasion, the defense counsel, as well as the prosecutor, both moved to have it reset.[38] In Criminal Case No. 08-915 for homicide filed against accused Nilo de Rivera, complainant alleges that the amount of P14,800.00 granted by respondent as bailbond of the accused is too low. Respondent judge stresses that the amount was recommended by the prosecutor and notmotu propio by the trial court. Respondent added that the amount of bail was appropriate inasmuch as it was fixed in accordance with the guidelines set forth in Section 9 of Administrative Circular 12-94. As long as in fixing the amount of bail, the court is guided by the purpose for which bail is required, that is, to secure the appearance of the accused to answer charges brought against him, the decision of the court to grant bail in the sum it deems appropriate will not be interfered with. With respect to the last charge, we adopt the findings of the office of the Court Administrator that there is nothing in the record to substantiate the allegation of the complainant that the acquittal of a certain Jimmy Siriban by respondent judge was tainted with irregularity. Other than his bare allegation, complainant has yet to present evidence as to any irregularity committed by respondent judge in acquitting Mr. Siriban. In sum, we find respondent Judge Segundo B. Catral guilty of gross ignorance of the law for having granted bail to the accused in Criminal Cases No. 07-874 and 08-866 without having conducted the requisite hearing. It is indeed surprising, not to say, alarming, that the Court should be besieged with a number of administrative cases filed against erring judges involving bail. After all, there is no dearth of jurisprudence on the basic principles involving bail. As a matter of fact, the Court itself, through its Philippine Judicial Academy, has been including lectures on the subject in the regular seminars conducted for judges. Be that as it may, we reiterate the following duties of the trial judge in case an application for bail is filed: 1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; (Section 7 and 8, supra) 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond (Section 19, supra) Otherwise petition should be denied.[39] With such succinct but clear rules now incorporated in the Rules of Court, trial judges are enjoined to study them as well and be guided accordingly. Admittedly, judges cannot be held to account for an erroneous decision rendered in good faith, but this defense is much too frequently cited even if not applicable. A number of cases on bail having already been decided, this Court justifiably expects judges to discharge their duties assiduously. For judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles. Faith in the administration of justice can only be engendered if litigants are convinced that the members of the Bench cannot justly be charge with a deficiency in their grasp of legal principles. WHEREFORE, in view of the foregoing, respondent Judge Segundo B. Catral is hereby ORDERED to pay a fine P20,000.00 with the WARNING that a repetition of the same or similar acts in the future will be dealt with more severely. SO ORDERED.

(2) PEPITO MAGNO, petitioner, vs. DAVAO, respondents. [G.R. No. L-19361 February 26, 1965] DIZON, J.:

HON.

MACAPANTON

ABBAS

and

THE

PROVINCIAL

FISCAL

OF

In Criminal Case No. 285-A filed with the Municipal Court of the City of Davao against Francisco Nuez and others, for Robbery with Rape, petitioner Pepito Magno was arrested by virtue of a warrant of arrest issued by said court. After proper proceedings, said court forwarded the case to the Court of First Instance of Davao where it was docketed as Criminal Case No. 7155. Prior to the filing of the information in the latter court, petitioner filed a motion for bail, but the same was denied by the respondent judge on the ground that it was filed prematurely. A second motion for bail was filed subsequently by petitioner, and after a hearing held thereon, the respondent judge issued a order on November 24, 1961 granting the motion and fixing the bail bond in the sum of P40,000.00. In the afternoon of the same date, however, the fiscal moved for a reconsideration of the order, claiming that he had just received sufficient evidence to prove the guilt of petitioner. The Court stayed the effectivity of the order granting bail and, after a hearing on the motion for reconsideration, the order was finally set aside and another was issued denying the motion for bail. Petitioner's motion for reconsideration of this last order having been denied, he filed the present special civil action of certiorari, claiming that, in denying his motion for bail, the respondent judge committed a grave abuse of discretion. In the order of the respondent judge complained of, His Honor states the following: The hearing of an application for bail is summary in nature. On such hearing, the Court "does not seek to try the merits or to enter into any nice inquiry as to the weight that would be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. (8 C.J.S. 93, 94)." (Padilla, Criminal Procedure 1955 ed. p. 270 citing Ocampo vs. Bernabe et al., 77 Phil. 55). It has also been held that "to sustain a refusal of bail in a capital case it is enough that evidence induces the belief that the accused have committed the offenses." (Ex-parte Page 255, p. 887, 82 Cal. App. 576). According to the law as interpreted by the courts like the case cited above it appears that in an application for bail the Court does not go into the merits of the case. Therefore, inconsistency or contradiction in the testimony of a witness for the prosecution is not sufficient in itself to entitle the accused to bail. It is enough, for the denial of bail, that the proof of guilt is evident or the presumption great. It is sufficient that the evidence presented by the prosecution induces the belief that the accused had committed the offense. Guided by the above ruling the Court is of the opinion that the accused shall be denied bail. He is accused of a capital offense. The evidence presented during the hearing of the petition for bail, without passing upon the merits of the evidence, shows that the accused Pepito Magno has participated in the commission of the offense of which he is charged with other persons. The least that can be said about the evidence on record, without passing on the merits, is that the proof of guilt of the accused is presumptively strong.1wph1.t It is petitioner's contention that, while under the Constitution and the Rules of Court, a person charged with a capital offense may be denied bail, before conviction, only if the evidence of guilt against him is strong, the respondent judge denied him bail only on the strength of a strong presumption of guilt, thereby committing a grave abuse of discretion. Petitioner's contention is without merit. A reading of the order complained of clearly shows that, in the opinion of the respondent judge, the evidence presented during the summary hearing on the motion for bail showed "that the accused Pepito Magno has participated in the commission of the offense of which he is charged with other persons." Casting aside other unnecessary pronouncements made in the order complained of, we believe that what the respondent judge really found and held was that the evidence of guilt presented against petitioner was strong and justified denial of his motion for bail. At this stage of the proceeding, there is nothing before us, sufficient to justify the conclusion that His Honor erred or abused his discretion in so holding. PREMISES CONSIDERED, the petition under consideration is dismissed and the writ prayed for denied, with costs.

(3) INOCENCIO BASCO, complainant, vs. JUDGE LEO H. RAPATALO, Regional Trial Court, Branch 32, Agoo, La Union, respondent. [A.M. No. RTJ-96-1335. March 5, 1997] ROMERO, J.: In a sworn letter-complaint dated August 14, 1995, complainant Inocencio Basco charged respondent Judge Leo M. Rapatalo of RTC, Branch 32, Agoo, La Union with gross ignorance or willful disregard of established rule of law for granting bail to an accused in a murder case (Criminal Case No. 2927) without receiving evidence and conducting a hearing. Complainant, who is the father of the victim, alleged that an information for murder was filed against a certain Roger Morente, one of three accused. The accused Morente filed a petition for bail. The hearing for said petition was set for May 31, 1995 by petitioner but was not heard since the respondent Judge was then on leave. It was reset to June 8, 1995 but on said date, respondent Judge reset it to June 22, 1995. The hearing for June 22, 1995, however, did not materialize. Instead, the accused was arraigned and trial was set. Again, the petition for bail was not heard on said date as the prosecution's witnesses in connection with said petition were not notified. Another attempt was made to reset the hearing to July 17, 1995. In the meantime, complainant allegedly saw the accused in Rosario, La Union on July 3, 1995. He later learned that the accused was out on bail despite the fact that the petition had not been heard at all. Upon investigation, complainant discovered that bail had been granted and a release order dated June 29, 1995 [1] was issued on the basis of a marginal note[2] dated June 22, 1995, at the bottom of the bail petition by Assistant Prosecutor Manuel Oliva which stated: "No objection: P80,000.00," signed and approved by the assistant prosecutor and eventually by respondent Judge. Note that there was already a release order dated June 29, 1995 on the basis of the marginal note of the Assistant Prosecutor dated June 22, 1995 (when the hearing of the petition for bail was aborted and instead arraignment took place) when another hearing was scheduled for July 17, 1995. In his comment dated October 16, 1995, respondent Judge alleged that he granted the petition based on the prosecutor's option not to oppose the petition as well as the latter's recommendation setting the bailbond in the amount of P80,000.00. He averred that when the prosecution chose not to oppose the petition for bail, he had the discretion on whether to approve it or not. He further declared that when he approved the petition, he had a right to presume that the prosecutor knew what he was doing since he was more familiar with the case, having conducted the preliminary investigation. Furthermore, the private prosecutor was not around at the time the public prosecutor recommended bail. Respondent Judge stated that in any case, the bailbond posted by accused was cancelled and a warrant for his arrest was issued on account of complainant's motion for reconsideration. The Assistant Provincial Prosecutor apparently conformed to and approved the motion for reconsideration.[3] To date, accused is confined at the La Union Provincial Jail. A better understanding of bail as an aspect of criminal procedure entails appreciating its nature and purposes. "Bail" is the security required by the court and given by the accused to ensure that the accused appears before the proper court at the scheduled time and place to answer the charges brought against him or her. In theory, the only function of bail is to ensure the appearance of the defendant at the time set for trial. The sole purpose of confining the accused in jail before conviction, it has been observed, is to assure his presence at the trial.[4] In other words, if the denial of bail is authorized in capital offenses, it is only in theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the court. Hence the exception to the fundamental right to be bailed should be applied in direct ratio to the extent of probability of evasion of the prosecution. [5] In practice, bail has also been used to prevent the release of an accused who might otherwise be dangerous to society or whom the judges might not want to release."[6] It is in view of the abovementioned practical function of bail that it is not a matter of right in cases where the person is charged with a capital offense punishable by death, reclusion perpetua or life imprisonment. Article 114, section 7 of the Rules of Court, as amended, states, "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action." When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. "This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court,[7] it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal." [8] To be sure, the discretion of the trial court, "is not absolute nor beyond control. It must be sound, and exercised within reasonable bounds. Judicial discretion, by its very nature involves the exercise of the judge's individual opinion and the law has wisely provided that its exercise be guided by well-known rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in granting or denying bail said: "But discretion

when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular." [9] Consequently, in the application for bail of a person charged with a capital offense cpunishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong. "A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination." [10] If a party is denied the opportunity to be heard, there would be a violation of procedural due process. That it is mandatory for the judge to require a hearing in a petition for bail is emphasized in the following cases: (1) People v. Sola decided in 1981.[11] In this case seven separate information for murder were filed against the accused Sola and 18 other persons. After preliminary investigation, the municipal trial court issued warrants for their arrest. However without giving the prosecution the opportunity to prove that the evidence of guilt against the accused is strong. the court granted them the right to post bail for their temporary release. Citing People v. San Diego,[12] we held: "We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, 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. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground." (2) People v. Dacudao decided in 1989.[13] In this case, an information was filed against the accused for murder, a non-bailable offense. The judge, without conducting any hearing, granted bail on the ground that there was not enough evidence to warrant a case for murder because only affidavits of the prosecution witnesses who were allegedly not eyewitnesses to the crime were filed. We held: "Whatever the court possessed at the time it issued the questioned ruling was intended only for prima facie determining whether or not there is sufficient ground to engender a well founded belief that the crime was committed and pinpointing the persons who probably committed it. Whether or not the evidence of guilt is strong for each individual accused still has to established unless the prosecution submits the issue on whatever it has already presented. To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or held. It is equally entitled to due process." (3) People v. Calo decided in 1990.[14] In this case, the prosecution was scheduled to present nine witnesses at the hearings held to determine whether the evidence against the private respondents was strong. After hearing the fifth witness, the respondent judge insisted on terminating the proceedings. We held: "The prosecution in the instant case was not given adequate opportunity to prove that there is strong evidence of guilt and to present within a reasonable time all the evidence it desired to present." (4) Libarios v. Dabalo decided in 1991[15] which involved an administrative complaint against the respondent judge for ignorance of the law and grave abuse of discretion. In this case, the respondent judge, without conducting any prior hearing, directed the issuance of a warrant of arrest against the accused charged with murder, fixing at the same time the bail at P50,000.00 each on the ground that the evidence against them was merely circumstantial. We held: "Where a person is accused of a capital offense, the trial court must conduct a hearing in a summary proceeding to allow the prosecution to present, within a reasonable time, all evidence it may desire to produce to prove that the evidence of guilt against the accused is strong before resolving the issue of bail for the temporary release of the accused. Failure to conduct a hearing before fixing bail in the instant case amounted to a violation of due process." The respondent judge was ordered to pay a fine of P20,000.00 and warned to exercise more care in the performance of his duties. (5) People v. Nano decided in 1992.[16] In this case. the judge issued an order admitting the accused in a kidnapping and murder case to bail without any hearing. We held: "The prosecution must first be given an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong." (6) Pico v. Combong, Jr. decided in 1992.[17] In this administrative case, the respondent judge granted bail to an accused charged with an offense punishable byreclusion perpetua, without notice and hearing and even before the accused had been arrested or detained. We held: "It is well settled that an application for bail from a person charged with a capital offense (now an offense punishable by reclusion perpetua) must be set for hearing at which both the defense and the prosecution must be given reasonable opportunity to prove (in case of the prosecution) that the evidence of guilt of the applicant is strong, or (in the case of the defense) that

such evidence of guilt was not strong." The respondent judge was ordered to pay a fine of P20,000.00 and warned to exercise greater care and diligence in the performance of his duties. (7) De Guia v. Maglalang decided in 1993,[18] the respondent judge issued a warrant of arrest and also fixed the bail of an accused charged with the non bailable offense of statutory rape without allowing the prosecution an opportunity to show that the evidence of guilt against the accused is strong. Respondent judge alleged that the only evidence on record the sworn statements of the complaining witness and her guardian were not sufficient to justify the denial of bail. We held: "It is an established principle that in cases where a person is accused of a capital offense, the trial court must conduct a hearing in a summary proceeding, to allow the prosecution an opportunity to present, within a reasonable time, all evidence it may desire to produce to prove that the evidence of guilt against the accused is strong, before resolving the issue of bail for the temporary release of the accused. Failure to conduct a hearing before fixing bail amounts to a violation of due process." It was noted that the warrant of arrest was returned unserved and that after the case was re-raffled to the complainant judge's sala, the warrant was set aside and cancelled. There was no evidence on record showing whether the approved bail was revoked by the complainant judge, whether the accused was apprehended or whether the accused filed an application for bail. Hence, the respondent judge was ordered to pay a fine of P5,000.00 instead of the usual P20,000.00 that the court imposes on judges who grant the application of bail without notice and hearing. (8) Borinaga v. Tamin decided in 1993.[19] In this case, a complaint for murder was filed against five persons. While the preliminary investigation was pending in the Municipal Circuit Trial Court, a petition for bail was filed by one of the accused before the respondent judge in the Regional Trial Court. The respondent judge ordered the prosecutor to appear at the hearing to present evidence that the guilt of the accused is strong. At the scheduled hearing, the public prosecutor failed to appear prompting the respondent to grant the application for bail. We held: "Whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present within a reasonable time all evidence it may desire to introduce before the court may resolve the motion for bail." The respondent judge was fined P20,000.00 and was warned that the commission of a similar offense in the future will be dealt with more severely. (9) Aurillo v. Francisco decided in 1994.[20] In this administrative case, the respondent judge issued two separate warrants of arrest against two persons charged with murder and parricide, but fixed the amount of bail for each accused without notifying the prosecution of any motion to fix bail nor of any order granting the same. Citing People v. Dacudao,[21] we held: "A hearing is absolutely indispensable before a judge can properly determine whether the prosecution's evidence is weak or strong. Hence, a denial of the prosecution's request to adduce evidence, deprives it of procedural due process, a right to which it is equally entitled as the defense. A hearing is required to afford the judge a basis for determining the existence of those factors set forth under Rule 114, Sec 6." The respondent judge was ordered to pay a fine of P20,000 with a warning that the commission of the same or similar acts in the future will be dealt with more severely. (10) Estoya v. Abraham-Singson decided in 1994[22] In this case, an administrative complaint was filed against the respondent judge, alleging, among others, thatshe granted an application for bail filed by the accused charged with murder. The grant was made over the objection of the prosecution which insisted that the evidence of guilt was strong and without allowing the prosecution to present evidence in this regard. We held: "In immediately granting bail and fixing it at only P20,000.00 for each of the accused without allowing the prosecution to present its evidence, the respondent denied the prosecution due process. This Court had said so in many cases and had imposed sanctions on judges who granted applications for bail in capital offenses and in offenses punishable by reclusion perpetua without giving the prosecution the opportunity to prove that the evidence of guilt is strong." The respondent judge was dismissed from service because the erroneous granting of bail was just one of the offenses found to have been committed by her in the aforesaid complaint. (11) Aguirre v. Belmonte decided in 1994.[23] In this administrative case the respondent judge issued warrants of arrest and, at the same time and on his own motion. authorized the provisional release on bail of the accused in two criminal cases for murder. The accused were still at large at the time the order granting bail was issued. We held: "A hearing is mandatory before bail can be granted to an accused who is charged with a capital offense." The judge was ordered to pay a fine of P25,000.00 with a warning that a repetition of the same or similar acts in the future will be dealt with more severely. He was meted a fine in a higher amount than the usual P20,000.00 because it involved two criminal cases wherein the respondent judge, "was not only the grantor of bail but likewise the applicant therefor." (12) Lardizabal v. Reyes decided in 1994.[24] In this administrative case, the respondent judge issued an order directing the arrest of the accused charged with rape and, motu proprio, fixed the bail of the accused in the amount of P80,000.00 without application on the part of the accused to be admitted to bail. When the accused filed a motion to reduce bailbond, the respondent judge again, without any prior notice and hearing, reduced the bail to P40,000.00. We held: "The rule is explicit that when an accused is charged with a serious offense punishable by reclusion perpetua, such as rape, bail may be granted only after a motion for that purpose has been filed by the accused and a hearing thereon conducted by a judge to determine whether or not the prosecution's evidence of guilt is strong."

The respondent judge was ordered to pay a fine of P20,000.00 with a warning that a repetition of similar or the same offense will be dealt with more severely. (13) Guillermo v. Reyes decided in 1995[25] involving an administrative complaint against the respondent judge for granting bail to the two accused charged with serious illegal detention. When the two accused first filed a joint application for bail, the petition for bail was duly heard and the evidence offered by the accused and the prosecution in opposition thereto were properly taken into account. However, the respondent judge denied the application for bail on the ground that it was premature since the accused were not yet in custody of the law. In a subsequent order, the respondent judge, without conducting any hearing on the aforestated application and thereby denying the prosecution an opportunity to oppose the same, granted said petition upon the voluntary appearance in court of the two accused. Respondent judge insisted that there was a hearing but the proceeding he adverted to was that which was conducted when the motion for bail was first considered and then denied for being premature. We held: "The error of the respondent judge lies in the fact that in his subsequent consideration of the application for bail, he acted affirmatively thereon without conducting another hearing and what is worse, his order concededly lacked the requisite summary or resume of the evidence presented by the parties and necessary to support the grant of bail." The respondent judge was reprimanded because despite the irregularity in the procedure adopted in the proceeding, the prosecution was undeniably afforded the benefit of notice and hearing. No erroneous appreciation of the evidence was alleged nor did the prosecution indicate its desire to introduce additional evidence in an appropriate challenge to the aforestated grant of bail by the respondent. (14) Santos v. Ofilada decided in 1995.[26] In this case, an administrative complaint was filed against the respondent judge, who, without notice and hearing to the prosecution, granted bail to an accused charged with murder and illegal possession of firearm. We held: "Where admission to bail is a matter of discretion, a hearing is mandatory before an accused can be granted bail. At the hearing, both the prosecution and the defense must be given reasonable opportunity to prove, in case of the prosecution, that the evidence of guilt of the applicant is strong, and in the case of the defense, that evidence of such guilt is not strong." The respondent judge was ordered to pay a fine of P20,000.00 with a warning that a repetition of similar acts will warrant a more severe sanction. (15) Sule v. Biteng decided in 1995.[27] In this administrative case, the respondent judge, without affording the prosecution the opportunity to be heard, granted with indecent haste the petition for bail filed by the accused charged with murder because the accused "x x x voluntarily surrendered to the authorities as soon as he was informed that he was one of the suspect (sic) x x x" We held: "With his open admission that he granted bail to the accused without giving the prosecution any opportunity to be heard, the respondent deliberately disregarded decisions of this court holding that such act amounts to a denial of due process, and made himself administratively liable for gross ignorance of the law for which appropriate sanctions may be imposed." The respondent judge was ordered to pay a fine of P20,000.00 and warned that commission of the same or similar acts in the future will be dealt with more severely. (16) Reymualdo Buzon, Jr. v. Judge Tirso Velasco decided in 1996.[28] In this administrative case, the respondent judge, without hearing nor comment from the prosecution, granted bail to an accused charged with murder. Notably, no bail was recommended in the warrant of arrest. We held: "When bail is a matter of discretion, the judge is required to conduct a hearing and to give notice of such hearing to the fiscal or require him to submit his recommendation. x x x Truly, a judge would not be in a position to determine whether the prosecution's evidence is weak or strong unless a hearing is first conducted." A fine of P20,000.00 was imposed on the respondent judge with the stern warning that a repetition of the same or similar acts in the future will be dealt with more severely. The aforecited cases are all to the effect that when bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence, or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties. Since the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial discretion, the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application for bail to the discretion of the court. Hence: (1) In the case of Gimeno v. Arcueno, Sr.,[29] an administrative complaint was filed against the respondent judge for granting bail to one of the accused in a robbery with homicide case without affording the prosecution a chance to be heard. The respondent judge explained that he issued an order for the motion to fix bail but the public prosecutor filed a comment instead which respondent judge thought was adequate compliance with law. Respondent added that the evidence of guilt of the accused, as disclosed by the records, was not so strong as to deny the application for bail. In fact, the accused who filed for bail, together with three others, were later dropped by the Office of the Provincial Prosecutor from the information for failure of the witnesses to positively identify them. We held: "The grant of bail is a matter of right except in cases involving capital offenses when the matter is left to the sound discretion of the court. That discretion lies, not in the determination whether or not a hearing should be held but in the appreciation and evaluation of the prosecution's evidence of guilt against the accused. x x x A hearing is plainly indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong." Although the respondent judge's explanation was not enough to completely exculpate him, the circumstances, coupled with his sincere belief in the propriety of his order warranted

a mitigation of the usual sanction the Court imposes in cases of this nature. The respondent judge was ordered to pay a fine of P5,000.00 and warned that a repetition of the same or similar act in the future will be dealt with more severely. (2) In the case of Concerned Citizens v. Elma,[30] an administrative complaint was filed against the respondent judge for granting bail to a person charged with illegal recruitment in large scale and estafa in five separate information. The accused filed a motion to fix bail and the respondent judge instead of setting the application for hearing, directed the prosecution to file its comment or opposition. The prosecution submitted its comment leaving the application for bail to the discretion of the court. The respondent judge, in granting the bail of the accused rationalized that in ordering the prosecution to comment on the accused's motion to fix bail, he has substantially complied with the requirement of a formal hearing. He further claimed that he required the prosecution to adduce evidence but the latter refused and left the determination of the motion to his discretion. This Court held, "It is true that the weight of the evidence adduced is addressed to the sound discretion of the court. However, such discretion may only be exercised after the hearing called to ascertain the degree of guilt of the accused for the purpose of determining whether or not he should be granted liberty. x x x In the case at bar, however, no formal hearing was conducted by the respondent judge. He could not have assessed the weight of evidence against the accused Gatus before granting the latter's application for bail." The respondent judge was dismissed from service because he was previously fined for a similar offense and was sternly warned that a repetition of the same or similar offense would be dealt with more severely. (3) In the case of Baylon v. Sison,[31] an administrative complaint was filed against the respondent judge for granting bail to several accused in a double murder case. The respondent judge claimed that he granted the application for bail because the assistant prosecutor who was present at the hearing did not interpose an objection thereto and that the prosecution never requested that it be allowed to show that the evidence of guilt is strong but instead, submitted the incident for resolution. The respondent judge further claimed that the motion for reconsideration of the order granting bail was denied only after due consideration of the pertinent affidavits. We held: "The discretion of the court, in cases involving capital offenses may be exercised only after there has been a hearing called to ascertain the weight of the evidence against the accused. Peremptorily, the discretion lies, not in determining whether or not there will be a hearing, but in appreciating and evaluating the weight of the evidence of guilt against the accused." The respondent judge was ordered to pay a fine of P20,000.00 with a stern warning that the commission of the same or similar offense in the future would be dealt with more severely. A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the application to grant and fix bail. "The importance of a hearing has been emphasized in not a few cases wherein the court ruled that even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused."[32] In the recent case of Tucay v. Domagas,[33] an administrative complaint was filed against the respondent judge for granting bail to an accused charged with murder. The application for bail contained the annotation "No objection" of the provincial prosecutor and the respondent judge, without holding a hearing to determine whether the evidence of the prosecution was strong, granted bail and ordered the release of the accused from detention with instructions to the bondsman to register the bond with the Register of Deeds within ten days. It was later found out that the assessed value of the property given was short of the amount fixed for the release of the accused. We held: "Although the provincial prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should have nevertheless have set the petition for bail for hearing and diligently ascertained from the prosecution whether the latter was not really contesting the bail application. x x x Only after satisfying himself that the prosecution did not wish to oppose the petition for bail for justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule 114, Sec. 6 for fixing bail should respondent judge have ordered the petition for bail and ordered the release of the accused." Respondent judge herein was ordered to pay a fine of P20,000.00 and was given a stern warning that the commission of a similar offense in the future would be dealt with more severely. Corollarily, another reason why hearing of a petition for bail is required, as can be gleaned from the abovecited case, is for the court to take into consideration the guidelines set forth in Section 6, Rule 114 of the Rules of Court in fixing the amount of bail.[34] This Court, in a number of cases[35] held that even if the prosecution fails to adduce evidence in opposition to an application for bail of an accused, the court may still require that it answer questions in order to ascertain not only the strength of the state's evidence but also the adequacy of the amount of bail. After hearing, the court's order granting or refusing bail must contain a summary of the evidence for the prosecution. [36] On the basis thereof, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate the guilt of the accused. Otherwise, the order granting or denying the application for bail may be invalidated because the summary of evidence for the prosecution which contains the judge's evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. This court in the case of Carpio v. Maglalang[37] invalidated the order of respondent judge granting bail to the accused because "Without summarizing the factual basis of its order granting bail, the court merely stated the number of prosecution witnesses but not their respective testimonies, and concluded that the evidence presented by the prosecution was not "sufficiently strong" to deny bail to Escano."

With the mounting precedents, this Court sees no reason why it has to repeatedly remind trial court judges to perform their mandatory duty of conducting the required hearing in bail applications where the accused stands charged with a capital offense. An evaluation of the records in the case at bar reveals that respondent Judge granted bail to the accused without first conducting a hearing to prove that the guilt of the accused is strong despite his knowledge that the offense charged is a capital offense in disregard of the procedure laid down in Section 8, Rule 114 of the Rules of Court as amended by Administrative Circular No. 12-94. Respondent judge admittedly granted the petition for bail based on the prosecution's declaration not to oppose the petition. Respondent's assertion, however, that he has a right to presume that the prosecutor knows what he is doing on account of the latter's familiarity with the case due to his having conducted the preliminary investigation is faulty. Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor. In the case of Montalbo v. Santamaria,[38] this Court held that the respondent judge is duty bound to exercise judicial discretion conferred upon him by law to determine whether in the case at bar, the proof is evident or the presumption of guilt is strong against the defendant and to grant or deny the petition for provisional liberty. It also held that a writ of mandamus will lie in order to compel the respondent judge to perform a duty imposed upon him by law. The absence of objection from the prosecution is never a basis for granting bail to the accused. It is the court's determination after a hearing that the guilt of the accused is not strong that forms the basis for granting bail. Respondent Judge should not have relied solely on the recommendation made by the prosecutor but should have ascertained personally whether the evidence of guilt is strong. After all, the judge is not bound by the prosecutor's recommendation. Moreover, there will be a violation of due process if the respondent Judge grants the application for bail without hearing since Section 8 of Rule 114 provides that whatever evidence presented for or against the accused's provisional release will be determined at the hearing. The practice by trial court judges of granting bail to the accused when the prosecutor refuses or fails to present evidence to prove that the evidence of guilt of the accused is strong can be traced to the case of Herras Teehankee v. Director of Prisons[39] where this Court gave the following "instructions" to the People's Court, [40] thus: "1) In capital cases like the present when the prosecutor does not oppose the petition for release on bail, the court should, as a general rule, in the proper exercise of its discretion, grant the release after the approval of the bail which it should fix for the purpose; 2) But if the court has reasons to believe that the special prosecutor's attitude is not justified, it may ask him questions to ascertain the strength of the state's evidence or to judge the adequacy of the amount of bail; 3) When, however, the special prosecutor refuses to answer any particular question on the ground that the answer may involve a disclosure imperiling the success of the prosecution or jeopardizing the public interest, the court may not compel him to do so, if and when he exhibits a statement to that effect of the Solicitor General, who, as head of the Office of Special Prosecutors, is vested with the direction and control of the prosecution, and may not, even at the trial, be ordered by the court to present evidence which he does not want to introduce provided, of course, that such refusal shall not prejudice the rights of the defendant or detainee." [41] The rationale for the first instruction was stated by this Court, as follows: "If, for any reason, any party should abstain from introducing evidence in the case for any definite purpose, no law nor rule exists by which he may be so compelled and the court before which the case is pending has to act without that evidence and, in so doing, it clearly would not be failing in its duties. If the Constitution or the law plots a certain course of action to be taken by the court when certain evidence is found by it to exist, and the opposite course if that evidence is wanting, and said evidence is not voluntarily adduced by the proper party, the court's clear duty would be to adopt that course which has been provided for in case of absence of such evidence. Applying the principle to the case at bar, it was no more within the power nor discretion of the court to coerce the prosecution into presenting its evidence than to force the prisoner into adducing hers. And when both elected not to do so, as they had a perfect right to elect, the only thing remaining for the court to do was to grant the application for bail." As for the second instruction, this Court stated that: "The prosecutor might not oppose the application for bail and might refuse to satisfy his burden of proof, but where the court has reasons to believe that the prosecutor's attitude is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court must possess a reasonable degree of control over him in the paramount interest of justice. Under such circumstance, the court is authorized by our second instruction to inquire from the prosecutor as to the nature of his evidence to determine whether or not it is strong, it being possible for the prosecutor to have erred in considering it weak and, therefore, recommending bail."

As for the third instruction, this Court declared: "It must be observed that the court is made to rely upon the official statement of the Solicitor General on the question of whether or not the revelation of evidence may endanger the success of the prosecution and jeopardize the public interest. This is so, for there is no way for the court to determine that question without having the evidence disclosed in the presence of the applicant, disclosure which is sought to be avoided to protect the interests of the prosecution before the trial." It is to be recalled that Herras Teehankee was decided fully half a century ago under a completely different factual milieu. Haydee Herras Teehankee was indicted under a law dealing with treason cases and collaboration with the enemy. The said "instructions" given in the said case under the 1940 Rules of Court no longer apply due to the amendments introduced in the 1985 Rules of Court. In the 1940 Rules of Court of the Philippines, the applicable provisions on "Bail" provides, as follows: "Sec. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. Sec. 6. Capital offenses not bailable. No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong. Sec. 7. Capital offense Burden of proof . On the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that the evidence of guilt is strong is on the prosecution. The above-cited provisions have not been adopted in toto in the 1985 Rules of Court, as amended by Administrative Circular No. 12-94, since some phrases and lines have been intercalated, as shown by the underscored phrases and statements below: "Sec. 6. Capital offense, defined. A capital offense, as the term is used in these rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, may be punished with death. Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, of an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. Sec. 8. Burden of proof in bail application. At the hearing of an application for admission to bail filed by any person who is in custody for the commission of an offense punishable by death, reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearings shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the witness is dead, outside of the Philippines or otherwise unable to testify." It should be noted that there has been added in Section 8 a crucial sentence not found in the counterpart provision, Section 7, Rule 110 of the 1940 Rules of Court. The above-underscored sentence in Section 8, Rule 114 of the 1985 Rules of Court, as amended, was added to address a situation where in case the prosecution does not choose to present evidence to oppose the application for bail, the judge may feel duty-bound to grant the bail application. In such a case, the judge may well lose control of the proceedings. In a sense, this undermines the authority of a judge since all that the prosecution has to do to "force" the judge to grant the bail application is to refrain from presenting evidence opposing the same. In effect, this situation makes Sections 6 and 7 of the 1940 Rules of Court on "Bail" meaningless since whether or not the evidence of guilt of a person charged with a capital offense is strong cannot be determined if the prosecution chooses not to present evidence or oppose the bail application in a hearing precisely to be conducted by the trial judge for that purpose, as called for in the two sections. In the event that the prosecution fails or refuses to adduce evidence in the scheduled hearing, then a hearing as in a regular trial should be scheduled. In this regard, a hearing in the application for bail necessarily means presentation of evidence, and the filing of a comment or a written opposition to the bail application by the prosecution will not suffice. The prosecution under the revised provision is duty bound to present evidence in the bail hearing to prove whether the evidence of guilt of the accused is strong and not merely to oppose the grant of bail to the accused. "This also prevents the practice in the past wherein a petition for bail was used as a means to force the prosecution into a premature revelation of its evidence and, if it refused to do so, the accused would claim the grant of bail on the ground that the evidence of guilt was not strong." [42] It should be stressed at this point, however, that the nature of the hearing in an application for bail must be equated with its purpose i.e., to determine the bailability of the accused. If the prosecution were permitted to conduct a hearing for bail as if it were a full-dress trial on the merits, the purpose of the proceeding, which is to secure provisional liberty of the accused to enable him to

prepare for his defense, could be defeated. At any rate, in case of a summary hearing, the prosecution witnesses could always be recalled at the trial on the merits.[43] In the light of the applicable rules on bail and the jurisprudential principles just enunciated, this Court reiterates the duties of the trial judge in case an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra); (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, supra); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied. The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof.[44] A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of a deficiency in their grasp of legal principles.[45] Respondent judge herein insists that he could exercise his discretion in granting bail to the accused since the Assistant Prosecutor signified in writing that he had no objection to the grant of bail and recommended, instead, the bailbond in the sum of P80,000.00. It is to be emphasized that although the court may have the discretion to grant the application for bail, in cases of capital offenses, the determination as to whether or not the evidence of guilt is strong can only be reached after due hearing which, in this particular instance has not been substantially complied with by the respondent Judge. While it may be true that the respondent judge set the application for bail for hearing three times, thus showing lack of malice or bad faith in granting bail to the accused, nonetheless, this does not completely exculpate him because the fact remains that a hearing has not actually been conducted in violation of his duty to determine whether or not the evidence against the accused is strong for purposes of bail. Normally, the Court imposes a penalty of P20,000.00 fine in cases where the judge grants the application for bail without notice and hearing. In view however of the circumstances of this case, a reprimand instead of the P20,000.00 would suffice. WHEREFORE, in view of the foregoing, respondent Judge Leo M. Rapatalo, RTC, Branch 32, Agoo, La Union, is hereby REPRIMANDEDwith the WARNING that a repetition of the same or similar acts in the future will be dealt with more severely. SO ORDERED.

(4) PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALFREDO CABRAL, Presiding Judge, RTC, Branch 30, Camarines Sur and RODERICK ODIAMAR, respondents. [G.R. No. 131909. February 18, 1999] ROMERO, J.: Assailed before this Court is the August 1, 1997 decision [1] of the Court of Appeals in CA GR. No. 42318 which affirmed the March 24, 1995 and June 14, 1996 orders[2] of the lower court granting accused-respondents Motion for Bail and denying petitioner Peoples Motions to Recall and Invalidate Order of March 24, 1995 and to Recall and/or Reconsider the Order of May 5, 1995 confirming the hospitalization of accused-respondent. Accused-respondent Roderick Odiamar was charged with rape upon the complaint of Cecille Buenafe. In a bid to secure temporary liberty, accused-respondent filed a motion praying that he be released on bail which petitioner opposed by presenting real, documentary and testimonial evidence. The lower court, however, granted the motion for bail in an order, the dispositive portion of which reads: WHEREFORE, the evidence not being strong at the (sic) stage of the trial, this court is constrained to grant bail for the provisional liberty of the accused Roderick Odiamar in the amount of P30,000.00. (Italics supplied) Believing that accused-respondent was not entitled to bail as the evidence against him was strong, the prosecution filed the two abovementioned motions which the lower court disposed of, thus: WHEREFORE, the motions dated 10 May 1995 and 15 May 1995 both filed by Atty. Romulo Tolentino, State Prosecutor, are hereby denied, for lack of merit. The above-cited orders prompted petitioner to file a petition before the Court of Appeals with prayer for temporary restraining order and preliminary injunction. The Court of Appeals denied the petition reasoning thus: We have examined in close and painstaking detail the records of this case, and find that the claim of the People that the respondent judge had over-stepped the exercise of his jurisdiction in issuing the questioned orders, is unimpressed with merit. We are not inclined to declare that there was grave abuse in respondent courts exercise of its discretion in allowing accused to obtain bail. There is grave abuse of discretion where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. We do not find this to be so in this case. Our ruling is based not only on the respect to be accorded the findings of facts of the trial court, which had the advantage (not available to Us) of having observed first-hand the quality of the autoptic proference and the documentary exhibits of the parties, as well as the demeanor of the witnesses on the stand, but is grounded on the liberal slant given by the law in favor of the accused. Differently stated, in the absence of clear, potent and compelling reasons, We are not prepared to supplant the exercise of the respondent courts discretion with that of Our own. Still convinced by the merit of its case, petitioner filed the instant petition submitting the following sole issue: WHETHER OR NOT THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED DECISION AND RESOLUTION DESPITE A SHOWING BY THE PROSECUTION THAT THERE IS STRONG EVIDENCE PROVING RESPONDENTS GUILT FOR THE CRIME CHARGED. The above-submitted issue pertains to the orders of the lower court granting accused-respondents application for bail which it justified through its summary of the evidence presented during the hearing. Said order states, thus: Now going over the evidence adduced in conjunction with the petition for bail filed by the accused through counsel, the cour t believes that the evidence so far presented by the prosecution is not strong. This is so because the crime of rape is not to be presumed; consent and not physical force is the common origin of acts between man and woman. Strong evidence and indication of great weight alone support such presumption. It is the teaching of applicable doctrines that form the defense in rape prosecution. In the final analysis, it is entitled to prevail, not necessarily because the untarnished truth is on its side but merely because it can raise reasonable, not fanciful doubts. It has the right to require the complainant (sic) strong evidence and an indication of great weight (People v. Godoy, G.R. No. L-31177, July 15, 1976), and in the instant case, the reasonable doubt is on the evidence of the prosecution, more so, because the intrinsic nature of the crime, the conviction or the acquittal of the accused depends almost entirely on the credibility of the complainant (People v. Oliquino, G.R. No. 94703, May 31, 1993). Rightly so, because in the commission of the offense of rape the facts and circumstances occuring either prior, during and subsequent thereto may provide conclusion whether they may negate the

commission thereof by the accused (People v. Flores, L-6065, October 26, 1986). If they negate, they do presuppose that the evidence for the prosecution is not strong. More so, because in the instant case, the facts and circumstances showing that they do seem to negate the commission thereof were mostly brought out during the cross-examination. As such, they deserve full faith and credence because the purpose thereof is to test accuracy and truthfulness and freedom from interest and bias or the reverse (Rule 132, Sec. 6, Revised Rules of Evidence). The facts and circumstances brought up are as follow, to wit: a) That, when the offended party Cecille Buenafe rode in the jeepney then driven by the accused Roderick Odiamar in that evening of July 20, 1994 at about 8:00 oclock from the Poblacion, Lagonoy, Camarines Sur the former knew that i t was for a joy ride. In fact, she did not even offer any protest when the said jeepney proceeded to the Pilapil Beach resort at Telegrafo, San Jose, Camarines Sur instead of Sabang, same municipality, where she and Stephen Florece intended to go. And when the said jeepney was already inside that resort, Cecille even followed the accused in going down from the jeepney also without protest on her part, a fact which shows voluntariness on the part of the offended party and, therefore, to the mind of the court her claim of rape should not be received with precipitate credulity. On the contrary, an insight into the human nature is necessary (People v. Barbo, 56 SCRA 495). And it is only when the testimony is impeccable and rings true throughout where it shall be believed (People v. Tapao, G.R. No. L-41704, October 23, 1981). Rightly so, because the aphorism that evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with the common experience and observation of mankind is nowhere of moral relevance than in cases involving prosecution of rape (People v. Macatangay, 107 Phil. 188); b) That, in that resort, when the accused Roderick Odiamar and companions allegedly forced the offended party Cecille Buenafe to drink gin, the latter, at first, refused and even did not swallow it but later on voluntarily took four (4) shots there shows that there (was) no force. And as regards the claim that the accused Roderick Odiamar and companions allegedly forced the said offended party to inhale smoke, out of a small cigarette, presumably a marijuana, it becomes doubtful because the prosecution, however, failed to present any portion of that so-called small cigarette much less did it present an expert witness to show that inhaling of smoke from the said cigarette would cause dizziness. Rightly so, because administration of narcotics is covered by Art. 335, par. 2 Revised Penal Code (People v. Giduces C.A. 38 O.C. 1434 cited in the Revised Penal Code, Aquino, Vol.III, pp. 392). As such, the burden of proof rests with the prosecution but it failed to do so; c) That, in that cottage where the accused, Roderick Odiamar allegedly brought the offended party, Cecille Buenafe, the former was able to consummate the alleged offense of rape by removing the two (2) hands of the offended party, placed them on her knee, separating them thereby freeing the said hand and consequently pushed the head of the accused but the latter was able to insert his penis when the said offended party was no longer moving and the latter became tired. Neither evidence has been presented to show that the offended party suffered an injury much less any part of her pants or blouse was torn nor evidence to show that there was an overpowering and overbearing moral influence of the accused towards the offended party (People v. Mabunga, G.R. No. 96441d, March 13, 1992) more so, because force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other (People v. Erogo, 102077 January 4, 1994); d) That, after the alleged commission of rape at about 3:00 oclock in the early morning of July 21, 1994, the offended party, C ecille, Stephen Florece and the latters companions all boarded the same jeepney going back to the Poblacion of Lagonoy, without the said offended party, protesting, crying or in any way showing sign of grief regarding the alleged commission of the offense of rape until the jeepney reached the house of Roderick Odiamar where the latter parked it. As in other cases, the testimony of the offended party shall not be accepted unless her sincerity and candor are free from suspicion, because the nature of the offense of rape is an accusation easy to be made, hard to be proved but harder to be defended by the party accused though innocent (People v. Francisco G.R. No. L-43789, July 15, 1981). It becomes necessary, therefore, for the courts to exercise the most painstaking care in scrutinizing the testimony of the witnesses for the prosecution (People v. Dayag, L-30619, March 29, 1974); e) That the offended party, Cecille Buenafe had herself physically examined by Dr. Josephine Decena for medical certificate dated July 27, 1994 and it states, among others, that there was a healed laceration on the hymen, her laceration might have been sustained by the said offended party, a month, six (6) months, and even a year, prior to the said examination and that the said laceration might have been caused by repeated penetration of a male sex organ probably showing that the offended party might have experienced sexual intercourse. This piece of testimony coming from an expert, such finding is binding to court (Rules of Court, Moran, op.cit, vol 5, 1963, ed. pp. 413). f) That the offended party, Cecille Buenafe accompanied by the Station Commander of Lagonoy, Camarines Sur, proceeded to Naga City and upon the suggestion of Gov. Bulaong, the said offended party submitted for medical treatment before the same physician per medical certificate dated August 1, 1994 but according to the said physician the lesions near the umbilicus were due to skin diseases but the said offended party claim they were made by the accused after the sexual acts. As such, there were contradictions on material points, it becomes of doubtful veracity (People v. Palicte 83 Phil.) and it also destroys the testimony (People v. Garcia, G.R. No. 13086, March 27, 1961). As to the fact that the said lesion was made by the accused subsequent to the commission of the act, it is immaterial. As such, it has no probative value.

The lower court concluded that the evidence of guilt was not strong. The Office of the Solicitor General disagreed with the lower court. It opined that aside from failing to include some pieces of evidence in the summary, the trial court also misapplied some well-established doctrines of criminal law. The Office of the Solicitor General pointed out the following circumstances duly presented in the hearing for bail: First. There was no ill motive on the part of Cecille to impute the heinous crime of rape against respondent (People v. Paragsa, 83 SCRA 105 [1978]; People v. Delovino, 247 SCRA 637 [1995]). Second. Dr. Belmonte, the psychiatrist who attended to Cecille testified that based on her psychiatric examination of the latter, Cecille manifested psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptoms. These abnormal psychological manifestations, according to Dr. Belmonte, are traceable to the rape incident (Pages 5-7, TSN, November 22, 1994.) Third. The unrebutted offer of compromise by respondent is an implied admission of guilt (People v. Flore, 239 SCRA 83 [1994]). Fourth. Cecille was threatened by a deadly weapon and rendered unconscious by intoxication and inhalation of marijuana smoke. Fifth. The fact that after the conduct of two (2) preliminary investigations, no bail was recommended in the information constitutes clear and strong evidence of the guilt of (all) the accused (Baylon v. Sison, 243 SCRA 284 [1995]. Sixth. Cecille categorically testified on re-cross examination (pages 5-7, Order) that respondent succeeded in forcibly deflowering her because she was already weak and dizzy due to the effect of the smoke and the gin. Her declarations remain unrebutted. Seventh. Cecille categorically testified that she performed acts manifesting her lament, torment and suffering due to the rape. She went to Stephen Florece, cried and complained about the incident. Instead of helping her, Florece threatened to harm her and her family. (Pages 9-13, November 17, 1994). The statements of Cecille are positive statements which, under existing jurisprudence, are stronger than the denials put forth by respondent (Batiquin v. Court of Appeals, 258 SCRA 334 [1996]). Eight. The reliance by trial court on the testimony of Dr. Decena to the effect that the lacerations suffered by Cecille might have been sustained by the latter a month, six (6) months or even a year prior to the examination (Page 12 (e), Order, March 24, 1995) thus implying that respondent could not have committed the crime is highly misplaced. Dr. Decena herself testified that she cannot tell how old is an old hymenal laceration because she cannot indicate when an old laceration was inflicted and that from the size of the vagina she could not point the exact cause (Pages 7 -10, TSN, December 9, 1994). Nevertheless, proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime (People v. Echegaray, 257 SCRA 561 [1996]). Further, in crimes against chastity, the medical examination of the victims genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborativein nature. (People v. Arce, 227 SCRA 406 [1993]). Ninth. With respect to the cigarette wounds, Dr. Decena positively testified that the wounds could have been caused by cigarette butts as alleged by the victim (Page 6, TSN, December 9, 1994) which confirms Cecilles testimony (quoted in the Order at pa ge 9) that respondent burned her right side of the stomach thrice. The above points are well taken and have impressed upon this Court the merits of the instant petition. The 1987 Constitution in Article III, Section 13 of the Bill of Rights provides: 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. (Italics supplied) In view of the above exception to the constitutional guarantee on bail and in accordance with its rule-making powers,[3] the Supreme Court, in promulgating the Rules of Court, adopted the following provision: Sec. 7. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. [4] (Italics supplied)

In this case, accused-respondent was being charged with rape qualified by the use of a deadly weapon punishable by reclusion perpetua to death.[5] As such, bail is discretionary and not a matter of right. The grant or denial of an application for bail is, therefore, dependent on whether the evidence of guilt is strong which the lower court should determine in a hearing called for the purpose. The determination of whether the evidence of guilt is strong, in this regard, is a matter of judicial discretion. While the lower court would never be deprived of its mandated prerogative to exercise judicial discretion, this Court would unhesitatingly reverse the tr ial courts findings if found to be laced with grave abuse of discretion. By judicial discretion, the law mandates the determination of whether proof is evident or the presumption of guilt is strong.[6] Proof evident or Evident proof in this connection has been held to mean clear, strong evidence which leads a wellguarded dispassionate judgment to the conclusion that the offense has been committed as charged, that accused is the guilty agent, and that he will probably be punished capitally if the law is administered.[7] Presumption great exists when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excludes all reasonable probability of any other conclusion. [8] Even though there is a reasonable doubt as to the guilt of accused, if on an examination of the entire record the presumption is great that accused is guilty of a capital offense, bail should be refused.[9] (Emphasis and Italics supplied) In other words, the test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt. As such, the court is ministerially bound to decide which circumstances and factors are present which would show evident guilt or presumption of guilt as defined above. [10] This Court has observed that the lower courts order faile d to mention and include some significant factors and circumstances which, to the mind of this Court are strong, clear and convincing. First, it excluded the testimony of Dr. Belmonte about her psychiatric examination of the victim as well as her findings that the latter manifested psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptom.[11] This particular testimony should have been considered and included in the summary as it was given by an expert witness. Second, the unrebutted offer of compromise by accused-respondent is an implied admission of guilt which should have been noted as an offer of a compromise is generally considered as admissible evidence against the party making it. [12] Aside from failing to mention those important pieces of evidence and testimonies, this Court has likewise observed that the lower court misappplied some doctrines in criminal law. First, the lower court, in its order, intoned the following doctrine that evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with common experience and observation of mankind. According to the lower court, the credibility of the complainant is suspect because she willingly went with accused-respondent to the resort where she was allegedly raped. In the scene of the crime, complainant allegedly voluntarily drank four shots of gin. The complainant, likewise, never protested nor cried while they were on their way to accused-respondents house. Because of those findings, the lower court doubted the credibility of complainant and stated that the crime of rape is not to be presumed and that sexual acts between a man and a woman are presumed to be consensual. In overcoming such presumption, much depends on the credibility of the complainant. This Court cannot agree. First, there was no finding of any ill-motive on the part of complainant in filing the rape charge against accused-respondent. This should have been taken into consideration. The following rebuttal of petitioner to the findings of the lower court is more credible: It must also be stressed that Cecille testified that she was forced by respondent to drink gin with the help of his friends by holding her hair and putting the glass on her mouth (Pages 5-7, TSN, November 17, 1994). More, respondent and his friends blew smoke into her face forcing her to inhale the intoxicating smoke. Whenever she attempted to leave the place, she was forced to sit down by Odiamar and his friends (Pages 6-7, TSN, November 17, 1994). Similarly, Cecille categorically declared that she was threatened by Florece with a gun (Page 17, TSN, November 17, 1994). The requirement of force and intimidation in the crime of rape are relative and m ust be viewed in light of the victims perspective and the offenders physical condition (People v. Plaza, 242 SCRA 724 [1995]). Further, physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will because of fear for life and personal safety. (People v. Ramos, 245 SCRA 405 [1995]) In this case, Cecille was only fifteen (15) years old at the time of the incident in question. At her age, it is reasonable to assume that a shot of gin rendered her tipsy. Thus, four (4) shots of gin must have rendered her dizzy, intoxicated and deprived of will or reason. The resulting weakness and dizziness which deprived Cecille of reason, will and freedom must be viewed in light of her perception and judgment at the time of the commission of the crime, and not by any hard and fast rule because in rape cases, submission does not necessarily imply volition. (Querido , 229 SCRA 745 [1994])

It must likewise be taken into consideration that when Cecille went with the group of accused-respondent, she was of the impression that it was just for a joy ride. The conclusion made by the trial court that Cecille must have consented to the sexual act because she acquiesced to go with them in the first place is, therefore, bereft of any legal or factual support, if not non sequitur. That she agreed to accompany them for a joy ride does not mean that she also agreed to the bestial acts later committed against her person. Second, the lower court stated that force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other. The lower court enunciated this doctrine in finding that the alleged rape was actually a consensual act since the prosecution was unable to show that complainant suffered any injury nor show any evidence that her pants or blouse was torn. Neither was there any evidence that accused-respondent exerted overpowering and overbearing moral influence over the offended party. This Court is of the impression that when the lower court invoked the above doctrine, it readily concluded that complainant agreed to the sexual act disregarding testimonies lending credence to complainants allegation that she was th reatened and intimidated as well as rendered weak and dizzy, not only by the smoke of the marijuana cigarette but also by intoxication, thereby facilitating the commission of the crime. It was not imperative for the prosecution, in order to prove the elements of force or intimidation to show that Cecille had broken limbs or that her blouse or pants were torn. Her testimony to that effect would have sufficed. Nevertheless, the prosecution still exerted efforts to corroborate Cecilles claim by presenting the examining physician who testified that Cecille suffered hymenal lacerations and lesions near the umbilicus area. Unfortunately, however, the lower court chose to ignore these telling pieces of evidence. In addition, the lower court doubted complainants allegation that she was forced to smoke a small cigarette, presumably marijuana, due to the fact that the prosecution failed to present any portion of that so -called small cigarette much less did it present an expert witness to show that inhaling of smoke from the said cigarette would cause the said offended party to suffer weakness and dizziness. Said ratiocination is trifling and unpersuasive. In fact, it is even misleading as complainant categorically asserted that what made her weak and dizzy were the smoke of the cigarette and the intoxicating effect of four shots of gin, not the inhalation of the smoke alone. In any case, complainant could not be expected to produce that portion of that so -called small cigarette. Moreover, one does not need an expert witness to testify on what is common knowledge - that four shots of gin have a weakening and dizzying effect on the drinker, especially one as young as the fifteen-year old complainant. More disturbing than the above misapplication o f criminal law doctrines is the lower courts misinterpretation of the medical findings and deliberate withholding of some testimonies which would have shown a very strong likelihood that complainant could indeed have been raped. The following pieces of evidence cited in the summary of the assailed order are indications of misleading findings: First, the lower court did not lend any credence to the medical certificate issued after complainants physical examination. On the contrary, it interpreted it to mean that the offended party is already experienced in sexual intercourse, after the examining physician had testified that the hymenal lacerations might have been sustained a month, six months or even a year prior to the examination. Interestingly, the lower court failed to mention that Dr. Decena also testified that she cannot tell how old is an old hymenal laceration because she cannot indicate when an old laceration was inflicted and that from the size of the vagina she could not point the exact cause. This Court views this apparent lapse on the part of the lower court with concern and agrees with petitioner, in accordance with well established jurisprudence, that proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime. Further, in crimes against chastity, the medical examination of the victims genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature.[13] And contrary to the theory espoused by the lower court, a hymenal laceration is not conclusive proof that one is experienced in sexual intercourse. Second, the lower court highlighted the testimony of Dr. Decena to the effect that the cigarette burns indicated that the lesions near complainants umbilicus were due to skin diseases. Notably, however, the lower court again failed to mention that Dr. Decena likewise positively testified that the wounds could have been caused by cigarette butts as alleged by the victim which corr oborates Cecilles testimony that respondent burned her right side of the stomach thrice. It is thus indicative from the above observations that the lower court abused its discretion and showed manifest bias in favor of accused-respondent in determining which circumstances are to be considered in supporting its decision as to the guilt of accusedrespondent. In this regard, it must be remembered that the discretion to be exercised in granting or denying bail, according to Basco v. Rapatalo[14] is not absolute nor beyond control. It must be sound, and exercised within reasonable bounds. Judicial discretion, by its very nature, involves the exercise of the judges individual opinion. It is because of its very nature that the law has wisely provided that its exercise be guided by well-known rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in granting or denying bail said: But discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular.

The fact that vital prosecution evidence and testimonies have been irregularly disregarded indicate that they have not been considered at all in arriving at the decision to grant bail. This irregularity is even more pronounced with the misapplication of the two criminal law doctrines cited to support the grant of the bail application. This Court cannot help but observe that the lower court exerted painstaking efforts to show that the evidence of guilt of accused-respondent is not strong by its non sequitur justifications, misleading or unsupported conclusions, irregular disregard of vital prosecution evidence and strained interpretation, if not misinterpretation, of criminal law doctrines. It is the view of this Court that: (1) the testimony of Dr. Decena confirming complainants allegation that accused -respondent burned the right side of her stomach with cigarette butts, (2) the testimony of Dr. Belmonte stating that complainant exhibited psychological manifestations which are traceable to the rape incident, and (3) the unrebutted offer of compromise, are indications of the strength of the evidence of guilt of accused-respondent. Lending credence to petitioners case is the fact that after the conduct of two (2) preliminary investigations, no bail was recommended in the information. According to Baylon v. Sison,[15] such recommendation constitutes clear and strong evidence of guilt of the accused. Aside from the apparent abuse of discretion in determining which circumstances and pieces of evidence are to be considered, the lower court also did not strictly comply with jurisprudential guidelines in the exercise of discretion. As reiterated in Carpio v. Maglalang,[16] discretion is guided by: first, the applicable provisions of the Constitution and the statutes; second, by the rules which this Court may promulgate; and third, by those principles of equity and justice that are deemed to be part of the laws of the land. The present Constitution, as previously adverted to, provides that in crimes punishable by reclusion perpetua when evidence of guilt is strong, bail is not a matter of right. This Court has reiterated this mandate in Section 7, Rule 14 of the Rules of Court. Recently, this Court laid down the following rules in Basco v. Judge Rapatalo[17]which outlined the duties of a judge in case an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation; (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its discretion; (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution ; (Italics supplied) (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied. Based on the above-cited procedure and requirements, after the hearing, the courts order granting or refusing bail must contain a summary of the evidence for the prosecution. [18] A summary is defined as a comprehensive and usually brief abstract or digest of a text or statement.[19] There are two corollary reasons for the summary. First, the summary of the evidence in the order is an extension of the hearing proper, thus, a part of procedural due process wherein the evidence presented during the prior hearing is formally recognized as having been presented and most importantly, considered. The failure to include every piece of evidence in the summary presented by the prosecution in their favor during the prior hearing would be tantamount to not giving them the opportunity to be heard in said hearing, for the inference would be that they were not considered at all in weighing the evidence of guilt. Such would be a denial of due process, for due process means not only giving every contending party the opportunity to be heard but also for the Court to consider every piece of evidence presented in their favor.[20] Second, the summary of the evidence in the order is the basis for the judges exercising his judicial discretion. Only after weighing the pieces of evidence as contained in the summary will the judge formulate his own conclusion as to whether the evidence of guilt against the accused is strong based on his discretion. [21] (Emphasis supplied) Based on the above-stated reasons, the summary should necessarily be a complete compilation or restatement of all the pieces of evidence presented during the hearing proper. The lower court cannot exercise judicial discretion as to what pieces of evidence should be included in the summary. While conceding that some prosecution evidence were enumerated, said enumeration was incomplete. An incomplete enumeration or selective inclusion of pieces of evidence for the prosecution in the order cannot be considered a summary, for a summary is necessarily a reasonable recital of any evidence presented by the prosecution. A summary that is incomplete is not a summary at all. According to Borinaga v. Tamin,[22] the absence of a summary in the order would make said order defective in form and substance. Corollarily, an order containing an incomplete summary would l ikewise be defective in form and substance which cannot be sustained or be given a semblance of validity. In Carpio v. Maglalang,[23] said order was considered defective and voidable. As such, the order granting or denying the application for bail may be invalidated. [24] WHEREFORE, in view of the foregoing, the decision dated August 1, 1997 and the resolution dated December 22, 1997 in CA G.R. No. 42318 are REVERSED and the order dated March 24, 1995 in Criminal Case No. T-1417 is declared void for having been issued in grave abuse of discretion. The court a quo shall immediately issue a warrant for the rearrest of Roderick Odiamar if his bail bond has been approved and thereafter, proceed with dispatch in the disposition of said case. This resolution is immediately executory. SO ORDERED.

(5) LEONARDO ALMEDA, petitioner, vs. HON. ONOFRE A. VILLALUZ, in his capacity as presiding judge of the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, and HON. GREGORIO PINEDA, City Fiscal of Pasay City, respondents. [G.R. No. L-31665 August 6, 1975] CASTRO, J.: The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the respondent judge with a direction that it be posted entirely in cash. At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda. At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had already pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's motion in open court. An oral motion for reconsideration was denied. Immediately thereafter, the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. The petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court. Hence, the present special civil action for certiorari with preliminary injunction. Two issues are posed to us for resolution: First, whether the respondent judge has the authority to require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his provisional liberty, and second, whether the amendment to the information, after a plea of not guilty thereto, was properly allowed in both substance and procedure. 1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "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." The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 1 In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the Constitution, 2 and may not be denied even where the accused has previously escaped detention, 3 or by reason of his prior absconding. 4 In order to safeguard the right of an accused to bail, the Constitution further provides that "excessive bail shall not be required." This is logical cause the imposition of an unreasonable bail may negate the very right itself. We have thus held that "where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we would not hesitate to exercise our supervisory powers to provide the required remedy." 5 Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying him his constitutional right to bail. Aside from the foregoing, the condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The sole purpose of bail is to insure the attendance of the

accused when required by the court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered. 6 And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. This is clearly deducible from the language of section 14 of Rule 114 of the Rules of Court: SEC. 14. Deposit of money as bail. At any time after the amount of bail is fixed by order, the defendant, instead of giving bail, may deposit with the nearest collector of internal revenue, or provincial, city, or municipal treasurer the sum mentioned in the order, and upon delivering to the court a proper certificate of the deposit, must be discharged from custody. Money thus deposited, shall be applied to the payment of the fine and costs for which judgment may be given; and the surplus, if any, shall be returned to the defendant. Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond. But while we repudiate the particular measure adopted by the respondent judge, we cannot fault the motive that caused him to demur to the petitioner's offer of a surety bond. Based on the petitioner's past record, 7 the range of his career in crime weighs heavily against letting him off easily on a middling amount of bail. The likelihood of his jumping bail or committing other harm to the citizenry while on provisional liberty is a consideration that simply cannot be ignored. Fortunately, the court is not without devices with which to meet the situation. First, it could increase the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the person of the accused and for the purpose of discouraging likely commission of other crimes by a notorious defendant while on provisional liberty, the latter could be required, as one of the conditions of his bail bond, to report in person periodically to the court and make an accounting of his movements. And third, the accused might be warned, though this warning is not essential to the requirements of due process, that under the 1973 Constitution 8 "Trial may proceed notwithstanding his absence provided that he has been duly notified and his failure to appear is unjustified." With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia, the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused (5) the health of the accused; (6) the character and strength of the evidence; (7) the probability of the accused's appearance or non-appearance at the trial; (8) forfeiture of previous bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for appearance at trial in other cases. 9 It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the other precautions hitherto considered useful courts should see to it that all surety bonds are accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at making the bail system work in this jurisdiction. 2. Anent the second issue posed by the petitioner, the amendment of the information to include allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused, is valid and in no way violates his right to be fully apprised before trial of the charges against him. Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information on all matters of form after the defendant has pleaded and during the trial when the same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in substance. And the substantial matter in a complaint or information is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 10 Under our law, a person is considered a habitual delinquent "if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa orfalsification, he is found guilty of any of said crimes a third time or oftener." 11 The law imposes an additional penalty based on the criminal propensity of the accused apart from that provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a crime in itself, it is only a factor in determining a total penalty. 12 Article 62 of the Revised Penal Code which treats of habitual delinquency does not establish a new crime, but only regulates the "effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency." as its caption indicates. In fact, the provision on habitual delinquency is found in a section of the Code prescribing rules for the application of penalties, not in a section defining offense. 13 A recidivist, upon the other hand, is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said Code. 14

The additional allegations of habitual delinquency and recidivism do not have the effect of charging another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained in the information. Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case. The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume. Consequently, in authorizing the amendments, the respondent judge acted with due consideration of the petitioner's rights and did not abuse his discretion. Anent the petitioner's claim that the amendment of the information by the State places him in double jeopardy, it should be remembered that there is double jeopardy only when all the following requisites obtain 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 consent. 15 It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified theft of a motor vehicle contained in the original information. Neither has the case against him been dismissed or otherwise terminated. The mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the criminal action for qualified theft alleged in the original information. 16 It cannot likewise be said that the accused is being placed in jeopardy a second time for the past crimes of which he had been convicted. The constitutional objection, on the ground of double jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents, has long been rejected. 17 The procedure taken by the respondent fiscal and allowed by the respondent judge in the amendment of the information does not, however, merit our approbation. Under section 2 of Rule 15 of the Rules of Court, "all motions shall be made in writing except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial." A motion to amend the information, after the accused has pleaded thereto, is certainly one that should be placed in writing and properly set for hearing. We are loath to give our imprimatur to the kind of shortcut devised by the respondents, especially as it relates to an alteration in the information. Considering, however, that the petitioner was not deprived of his day in court and was in fact given advance warning of the proposed amendment, although orally, we refrain from disturbing the said amendment. ACCORDINGLY, the order of the respondent judge of February 18, 1970 denying the motion of the petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby set aside, without prejudice, however, to increasing the amount of the bail bond and/or the imposition of such conditions as the respondent judge might consider desirable and proper for the purpose of insuring the attendance of the petitioner at the trial, provided they are consistent with the views herein expressed. No costs.

(6) B/GEN. JOSE COMENDADOR, B/GEN, 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 PERA, 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: B/GEN. 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. 93177 August 2, 1991]
B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, petitioners, vs. HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT PA., respondents. [No. 95020 August 2, 1991] B/GEN. JOSE COMENDADOR, B/GEN. 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. CESAR DE LA PENA 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. B/GEN. 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 COURTMARTIAL NO. 14, respondents. [No. 96948 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, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT MEMEL ROJAS

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

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 counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS. Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence. 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. 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. 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. 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 petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides: Art. 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 cross-examine 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 disobey 'ng 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 corpuson 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 counter-affidavits 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 the 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 court-martial could itself postpone trial pending the investigation. And the military reviewing authorities could consider the same contention, reversing a court- martial 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 pre-trial 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. compensable prerequisite to the exercise of Army general court-martial jurisdiction 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 its 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 constitute 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: Art. 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:

Art. 18. Challenges. Members of general or special courts-martial 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, its aside from the fact that the officer corps of the developing army was numerically made equate 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 11 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 L 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 lawmakers 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 1 29, 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. 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. 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 it 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 dissmiss 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 48hour 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 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.

(7) BUENAVENTURA B. SUNGA, complainant, vs. JUDGE CONCEPCION SALUD, Municipal Circuit Court, Amulong Iguig Cagayan, respondent. [A.M. Matter. No. 2205-MJ November 19, 1981] FERNANDO, C.J.: It was the imposition of a bail bond in the amount of P18,000.00 for the alleged violation of Presidential Decree No. 583, the penalty for which is prision mayor or a fine ranging from P5,000.00 to P10,000.00 or both, that led to a verified letter-complaint from Buenaventura B. Sunga for grave abuse of authority or, at the very least, ignorance of the law. Complainant was accused in a criminal case for unlawful ejectment. Upon being required to comment, respondent Judge denied such accusation and maintained that considering the penalty of prision mayor, the bail bond which he fixed at P18,000.00 could not be considered excessive. The matter was then referred to Executive Judge Bonifacio Cacdac, Jr. of the Court of First Instance of Cagayan, Branch V at Tuguegarao, for investigation, report and recommendation. He conducted such investigation. In his report, based primarily on a motion to dismiss filed by the complainant himself manifesting lack of interest, he recommended the dismissal of the complaint. He likewise could not find any justification for the charge of excessive bail. Court Administrator Justice Lorenzo Relova, agreeing with the recommendation of Deputy Court Administrator Romeo Mendoza, submitted to the Court his report "that respondent Judge Concepcion Salud be found guilty of grave abuse of authority for which he should be fined equivalent to one (1) month salary, not chargeable to his leave credits and warned that a repetition of such infraction in the future will be dealt with more severely." 1 This Court pursuant to the mandate that excessive bail should not be required feels that a more severe penalty should be imposed. 2 The members of the Judiciary were reminded in Circular No. 1, 3 dealing with the fixing of the bail bond in criminal cases, of the authoritative doctrine in Villasenor v. Abano. 4 The following factors are to be considered:" 1. Ability of the accused to give bail; 2. Nature of the offense; 3. Penalty for the offense charged; 4. Character and reputation of the accused; 5. Health of the accused; 6. Character and strength of the evidence; 7. Probability of the accused appearing in trial. 8. Forfeiture of the other bonds; 9. Whether the accused was a fugitive from justice when arrested; and 10. If the accused is under bond for appearance at trial in other cases." 5 This Court, in the later case of De la Camara vs. Enage 6was equally explicit on the matter. Thus: "Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United States Constitution limits itself to a prohibition against excessive bail. As construed in the latest American decision, 'the sole permissible function of money bail is to assure the accused's presence at trial, and declared that "bail set at a higher figure than an amount reasonably calculated to fulfill this purpose is excessive under the Eighth Amendment. 7 It should be stressed, contrary to the thinking of Executive Judge Cacdac, that the mere assertion of lack of interest to prosecute is not automatically followed by the matter being considered closed. WHEREFORE, respondent Judge is fined equivalent to two (2) months salary, not chargeable to his leave credits. He is warned that a repetition of a failure to apply constitutional provisions would result in a much more severe penalty. Let a copy of this resolution be spread on his record.

(8) 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 COMISSION, HON. EDMUNDO M. REYES, as Commissioner of Immigration, and the Chief of the Aviation Security Command (AVSECOM), respondents. [G.R. No. L-62100 May 30, 1986] FERNAN, J.: 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. 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 Instance Corporation as surety. 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: 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. The Court sees no urgency from this statement. No matter of any magnitude is discerned to warrant judicial imprimatur on the proposed 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: 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 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. 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. On September 20, 1984, the Court in a resolution en banc denied petitioner's motion for leave to go abroad pendente lite. 12 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 vs. 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. 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. SO ORDERED.