CONSTI 2 Sec.
11-13Page |1
G.R. No. 177508. August 7, 2009.*
BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND
TRANSPARENCY (BANAT) PARTY-LIST, represented by SALVADOR B.
BRITANICO, petitioner, vs. COMMISSION ON ELECTIONS, respondent.
Judicial Review; Statutes; It is settled that every statute is presumed to be
constitutional.—It is settled that every statute is presumed to be
constitutional. The presumption is that the legislature intended to enact a
valid, sensible and just law. Those who petition the Court to declare a law
unconstitutional must show that there is a clear and unequivocal breach of
the Constitution, not merely a doubtful, speculative or argumentative one;
otherwise, the petition must fail.
Same; Same; Constitutional Law; Titles of Bills; The constitutional
requirement that “every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof” is satisfied if the title is
comprehensive enough to include subjects related to the general purpose
which the statute seeks to achieve.—Both the COMELEC and the OSG
maintain that the title of RA 9369 is broad enough to encompass topics
which deal not only with the automation process but with everything related
to its purpose encouraging a transparent, credible, fair, and accurate
elections. The constitutional requirement that “every bill passed by the
Congress shall embrace only one subject which shall be expressed in the
title thereof” has always been given a practical rather than a technical
construction. The requirement is satisfied if the title is comprehensive
enough to include subjects related to the general purpose which the statute
seeks to achieve. The title of a law does not have to be an index of its
contents and will suffice if the matters embodied in the text are relevant to
each other and may be inferred from the title. Moreover, a title which
declares a statute to be an act to amend a specified code is sufficient and
the precise nature of the amendatory act need not be further stated.
Election Law; Election Contests; Electoral Tribunals; The jurisdiction of the
Presidential Electoral Tribunal and the Senate Electoral Tribunal can only be
invoked once the winning presidential, vice presidential or senatorial
candidates have been proclaimed, while under Section 37 of Republic Act
No. 9369, Congress and the COMELEC en banc shall determine only the
authenticity and due execution of the certificates of canvass, a power that
they shall exercise before the proclamation of the winning presidential, vice
presidential, and senatorial candidates.—In the present case, Congress and
the COMELEC en banc do not encroach upon the jurisdiction of the PET and
the SET. There is no conflict of jurisdiction since the powers of Congress and
the COMELEC en banc, on one hand, and the PET and the SET, on the
other, are exercised on different occasions and for different purposes. The
PET is the sole judge of all contests relating to the election, returns and
qualifications of the President or Vice President. The SET is the sole judge of
all contests relating to the election, returns, and qualifications of members of
the Senate. The jurisdiction of the PET and the SET can only be invoked
once the winning presidential, vice presidential or senatorial candidates have
been proclaimed. On the other hand, under Section 37, Congress and the
COMELEC en banc shall determine only the authenticity and due execution
of the certificates of canvass. Congress and the COMELEC en banc shall
exercise this power before the proclamation of the winning presidential, vice
presidential, and senatorial candidates.
Same; Same; Same; Constitutional Law; Commission on Elections
(COMELEC); The Constitution did not give the Commission on Elections the
“exclusive power” to investigate and prosecute cases of violations of election
laws.—We do not agree with petitioner and the COMELEC that the
Constitution gave the COMELEC the “exclusive power” to investigate and
prosecute cases of violations of election laws. Section 2(6), Article IX-C of
the Constitution vests in the COMELEC the power to “investigate and, where
appropriate, prosecute cases of violations of election laws, including acts or
omissions constituting election frauds, offenses, and malpractices.” This was
an important innovation introduced by the Constitution because this provision
was not in the 1935 or 1973 Constitutions. The phrase “[w]here appropriate”
leaves to the legislature the power to determine the kind of election offenses
that the COMELEC shall prosecute exclusively or concurrently with other
prosecuting arms of the government.
Same; Same; Same; Same; The grant of the “exclusive power” to the
Commission on Elections (COMELEC) can be found in Section 265 of Batas
Pambansa 881—prior to BP 881, no such “exclusive power” was ever
bestowed on the COMELEC.—The grant of the “exclusive power” to the
COMELEC can be found in Section 265 of BP 881, which provides: Sec.
265. Prosecution.—The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all
election offenses punishable under this Code, and to prosecute the same.

The Commission may avail of the assistance of other prosecuting arms of
the government: Provided, however, That in the event that the Commission
fails to act on any complaint within four months from his filing, the
complainant may file the complaint with the office of the fiscal or with the
Ministry of Justice for proper investigation and prosecution, if warranted.
(Emphasis supplied) This was also an innovation introduced by BP 881. The
history of election laws shows that prior to BP 881, no such “exclusive
power” was ever bestowed on the COMELEC.
Same; Same; Same; Same; The grant of the “exclusive power” to investigate
and prosecute election offenses to the Commission on Elections
(COMELEC) was not by virtue of the Constitution but by Batas Pambansa
881, a legislative enactment; Given the plenary power of the legislature to
amend or repeal laws, if Congress passes a law amending Section 265 of
Batas Pambansa 881, such law does not violate the Constitution.—It is clear
that the grant of the “exclusive power” to investigate and prosecute election
offenses to the COMELEC was not by virtue of the Constitution but by BP
881, a legislative enactment. If the intention of the framers of the Constitution
were to give the COMELEC the “exclusive power” to investigate and
prosecute election offenses, the framers would have expressly so stated in
the Constitution. They did not. In People v. Basilla, 179 SCRA 87 (1989), we
acknowledged that without the assistance of provincial and city fiscals and
their assistants and staff members, and of the state prosecutors of the
Department of Justice, the prompt and fair investigation and prosecution of
election offenses committed before or in the course of nationwide elections
would simply not be possible. In COMELEC v. Español, 417 SCRA 554
(2003), we also stated that enfeebled by lack of funds and the magnitude of
its workload, the COMELEC did not have a sufficient number of legal officers
to conduct such investigation and to prosecute such cases. The prompt
investigation, prosecution, and disposition of election offenses constitute an
indispensable part of the task of securing free, orderly, honest, peaceful, and
credible elections. Thus, given the plenary power of the legislature to amend
or repeal laws, if Congress passes a law amending Section 265 of BP 881,
such law does not violate the Constitution.
Same; Police Power; Contracts; Non-Impairment Clause; The non-
impairment clause is limited in application to laws that derogate from prior
acts or contracts by enlarging, abridging or in any manner changing the
intention of the parties; It is settled that police power is superior to the non-
impairment clause.—There is no violation of the non-impairment clause.
CONSTI 2 Sec.11-13Page |2
First, the non- impairment clause is limited in application to laws that
derogate from prior acts or contracts by enlarging, abridging or in any
manner changing the intention of the parties. There is impairment if a
subsequent law changes the terms of a contract between the parties,
imposes new conditions, dispenses with those agreed upon or withdraws
remedies for the enforcement of the rights of the parties. As observed by the
OSG, there is no existing contract yet and, therefore, no enforceable right or
demandable obligation will be impaired. RA 9369 was enacted more than
three months prior to the 14 May 2007 elections. Hence, when the dominant
majority and minority parties hired their respective poll watchers for the 14
May 2007 elections, they were deemed to have incorporated in their
contracts all the provisions of RA 9369. Second, it is settled that police
power is superior to the non-impairment clause. The constitutional guaranty
of non-impairment of contracts is limited by the exercise of the police power
of the State, in the interest of public health, safety, morals, and general
welfare of the community.
Same; Same; Poll Watchers; The regulation of the per diem of the poll
watchers of the dominant majority and minority parties promotes the general
welfare of the community and is a valid exercise of police power.—Assuming
there were existing contracts, Section 34 would still be constitutional
because the law was enacted in the exercise of the police power of the State
to promote the general welfare of the people. We agree with the COMELEC
that the role of poll watchers is invested with public interest. In fact, even
petitioner concedes that poll watchers not only guard the votes of their
respective candidates or political parties but also ensure that all the votes
are properly counted. Ultimately, poll watchers aid in fair and honest
elections. Poll watchers help ensure that the elections are transparent,
credible, fair, and accurate. The regulation of the per diem of the poll
watchers of the dominant majority and minority parties promotes the general
welfare of the community and is a valid exercise of police power. Barangay
Association for National Advancement and Transparency (BANAT) Party-List
vs. Commission on Elections, 595 SCRA 477, G.R. No. 177508 August 7,
2009
DECISION
CARPIO, J.:

The Case
Before the Court is a petition for prohibition 1 with a prayer for the issuance of
a temporary restraining order or a writ of preliminary injunction 2 filed by
petitioner Barangay Association for National Advancement and
Transparency (BANAT) Party List (petitioner) assailing the constitutionality of
Republic Act No. 9369 (RA 9369) 3 and enjoining respondent Commission on
Elections (COMELEC) from implementing the statute.
RA 9369 is a consolidation of Senate Bill No. 2231 and House Bill No. 5352
passed by the Senate on 7 December 2006 and the House of
Representatives on 19 December 2006. On 23 January 2007, less than four
months before the 14 May 2007 local elections, the President signed RA
9369. Two newspapers of general circulation, Malaya and Business Mirror,
published RA 9369 on 26 January 2007. RA 9369 thus took effect on 10
February 2007.
On 7 May 2007, petitioner, a duly accredited multi-sectoral organization, filed
this petition for prohibition alleging that RA 9369 violated Section 26(1),
Article VI of the Constitution. 4 Petitioner also assails the constitutionality of
Sections 34, 37, 38, and 43 of RA 9369. According to petitioner, these
provisions are of questionable application and doubtful validity for failing to
comply with the provisions of the Constitution.
The COMELEC and the Office of the Solicitor General (OSG) filed their
respective Comments. At the outset, both maintain that RA 9369 enjoys the
presumption of constitutionality, save for the prayer of the COMELEC to
declare Section 43 as unconstitutional.
The Assailed Provisions of RA 9369
Petitioner assails the following provisions of RA 9369:
1. Section 34 which provides:
SEC. 34. Sec. 26 of Republic Act No. 7166 is hereby amended to read as
follows:
CONSTI 2 Sec.11-13Page |3
"SEC. 26. Official Watchers. - Every registered political party or coalition of
political parties, and every candidate shall each be entitled to one watcher in
every polling place and canvassing center: Provided That, candidates for the
Sangguniang Panlalawigan, Sangguniang Panlunsod, or Sangguniang
Bayan belonging to the same slate or ticket shall collectively be entitled to
only one watcher.
"The dominant majority party and dominant minority party, which the
Commission shall determine in accordance with law, shall each be entitled to
one official watcher who shall be paid a fixed per diem of four hundred pesos
(400.00).
"There shall also recognized six principal watchers, representing the six
accredited major political parties excluding the dominant majority and
minority parties, who shall be designated by the Commission upon
nomination of the said parties. These political parties shall be determined by
the Commission upon notice and hearing on the basis of the following
circumstances:
"(a) The established record of the said parties, coalition of groups
that now composed them, taking into account, among other things,
their showing in past election;
"(b) The number of incumbent elective officials belonging to them
ninety (90) days before the date of election;
"(c) Their identifiable political organizations and strengths as
evidenced by their organized/chapters;
"(d) The ability to fill a complete slate of candidates from the
municipal level to the position of President; and
"(e) Other analogous circumstances that may determine their
relative organizations and strengths."
2. Section 37 which provides:

SEC. 37. Section 30 of Republic Act No. 7166 is hereby amended to read as
follows:
"SEC. 30. Congress as the National Board of Canvassers for the Election of
President and Vice President: The Commission en banc as the National
Board of Canvassers for the election of senators: Determination of
Authenticity and Due Execution of Certificates of Canvass. – Congress and
the Commission en banc shall determine the authenticity and due execution
of the certificate of canvass for president and vice president and senators,
respectively, as accomplished and transmitted to it by the local boards of
canvassers, on a showing that: (1) each certificate of canvass was executed,
signed and thumbmarked by the chairman and members of the board of
canvassers and transmitted or caused to be transmitted to Congress by
them; (2) each certificate of canvass contains the names of all of the
candidates for president and vice president or senator, as the case may be,
and their corresponding votes in words and their corresponding votes in
words and in figures; (3) there exits no discrepancy in other authentic copies
of the certificates of canvass or any of its supporting documents such as
statement of votes by city/municipality/by precinct or discrepancy in the votes
of any candidate in words and figures in the certificate; and (4) there exist no
discrepancy in the votes of any candidate in words and figures in the
certificates of canvass against the aggregate number of votes appearing in
the election returns of precincts covered by the certificate of canvass:
Provided, That certified print copies of election returns or certificates of
canvass may be used for the purpose of verifying the existence of the
discrepancy.
"When the certificate of canvass, duly certified by the board of canvassers of
each province, city of district, appears to be incomplete, the Senate
President or the Chairman of the Commission, as the case may be, shall
require the board of canvassers concerned to transmit by personal delivery,
the election returns form polling places that were not included in the
certificate of canvass and supporting statements. Said election returns shall
be submitted by personal delivery within two (2) days from receipt of notice.
"When it appears that any certificate of canvass or supporting statement of
votes by city/municipality or by precinct bears erasures or alteration which
may cast doubt as to the veracity of the number of votes stated herein and
may affect the result of the election, upon requested of the presidential, vice
presidential or senatorial candidate concerned or his party, Congress or the
CONSTI 2 Sec.11-13Page |4
Commission en banc, as the case may be shall, for the sole purpose of
verifying the actual number of votes cast for president, vice president or
senator, count the votes as they appear in the copies of the election returns
submitted to it.
"In case of any discrepancy, incompleteness, erasure or alteration as
mentioned above, the procedure on pre-proclamation controversies shall be
adopted and applied as provided in Section 17,18,19 and 20.
"Any person who present in evidence a simulated copy of an election return,
certificate of canvass or statement of votes, or a printed copy of an election
return, certificate of canvass or statement of votes bearing a simulated
certification or a simulated image, shall be guilty of an election offense shall
be penalized in accordance with Batas Pambansa Blg. 881."
3. Section 38 which provides:
SEC. 38. Section 15 of Republic Act No. 7166 is hereby amended to read as
follows:
"SEC. 15. Pre-proclamation Cases in Elections for President, Vice President,
Senator, and Member of the House of Representatives. - For purposes of the
elections for president, vice president, senator, and member of the House of
Representatives, no pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt, custody and appreciation of
election returns or the certificates of canvass, as the case may be, except as
provided for in Section 30 hereof. However, this does not preclude the
authority of the appropriate canvassing body motu proprio or upon written
complaint of an interested person to correct manifest errors in the certificate
of canvass or election returns before it.
"Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the Commission in
accordance with Section 19 hereof.
"Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
board of canvassers or district board of canvassers in Metro Manila Area,
shall be specifically noticed in the minutes of the respective proceedings."
 CONSTI 2 Sec.11-13Page |5

4. Section 43 which provides: RA 9369 does not violate Section 26(1), Article VI of the Constitution

SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to
read as follows:
"SEC. 265. Prosecution. – The Commission shall, through its duly authorized
legal officers, have the power, concurrent with the other prosecuting arms of
the government, to conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same."
The Issues
Petitioner raises the following issues:
1. Whether RA 9369 violates Section 26(1), Article VI of the Constitution;
Whether Sections 37 and 38 violate Section 17, Article VI 5 and Paragraph 7,
Section 4, Article VII6 of the Constitution;
Whether Section 43 violates Section 2(6), Article IX-C of
Constitution;7 and
Whether Section 34 violates Section 10, Article III of the Constitution. 8
The Court’s Ruling
The petition has no merit.
is settled that every statute is presumed to be constitutional. 9 The
presumption is that the legislature intended to enact a valid, sensible and just
law. Those who petition the Court to declare a law unconstitutional must
show that there is a clear and unequivocal breach of the Constitution, not
merely a doubtful, speculative or argumentative one; otherwise, the petition
must fail.10
In this case, petitioner failed to justify why RA 9369 and the assailed
provisions should be declared unconstitutional.
Petitioner alleges that the title of RA 9369 is misleading because it speaks of
poll automation but contains substantial provisions dealing with the manual
canvassing of election returns. Petitioner also alleges that Sections 34, 37,
38, and 43 are neither embraced in the title nor germane to the subject
matter of RA 9369.
Both the COMELEC and the OSG maintain that the title of RA 9369 is broad
enough to encompass topics which deal not only with the automation
process but with everything related to its purpose encouraging a transparent,
credible, fair, and accurate elections.
The constitutional requirement that "every bill passed by the Congress shall
embrace only one subject which shall be expressed in the title thereof" has
always been given a practical rather than a technical construction. 11 The
requirement is satisfied if the title is comprehensive enough to include
subjects related to the general purpose which the statute seeks to
achieve.12 The title of a law does not have to be an index of its contents and
will suffice if the matters embodied in the text are relevant to each other and
the may be inferred from the title.13 Moreover, a title which declares a statute to
be an act to amend a specified code is sufficient and the precise nature of
the amendatory act need not be further stated. 14
RA 9369 is an amendatory act entitled "An Act Amending Republic Act No.
8436, Entitled ‘An Act Authorizing the Commission on Elections to Use an
Automated Election System in the May 11, 1998 National or Local Elections
and in Subsequent National and Local Electoral Exercises, to Encourage
Transparency, Credibility, Fairness and Accuracy of Elections, Amending for
the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166
and Other Related Election Laws, Providing Funds Therefor and For Other
Purposes.’" Clearly, the subject matter of RA 9369 covers the amendments
to RA 8436, Batas Pambansa Blg. 881 (BP 881), 15 Republic Act No. 7166
(RA 7166),16 and other related election laws to achieve its purpose of
promoting transparency, credibility, fairness, and accuracy in the elections.
The provisions of RA 9369 assailed by petitioner deal with amendments to
specific provisions of RA 7166 and BP 881, specifically: (1) Sections 34, 37
and 38 amend Sections 26, 30 and 15 of RA 7166, respectively; and (2)
Section 43 of RA 9369 amends Section 265 of BP 881. Therefore, the

assailed provisions are germane to the subject matter of RA 9369 which is to
amend RA 7166 and BP 881, among others.
Sections 37 and 38 do not violate Section 17, Article VI and Paragraph 7,
Section 4, Article VII of the Constitution
Petitioner argues that Sections 37 and 38 violate the Constitution by
impairing the powers of the Presidential Electoral Tribunal (PET) and the
Senate Electoral Tribunal (SET). According to petitioner, under the amended
provisions, Congress as the National Board of Canvassers for the election of
President and Vice President (Congress), and the COMELEC en banc as the
National Board of Canvassers (COMELEC en banc), for the election of
Senators may now entertain pre-proclamation cases in the election of the
President, Vice President, and Senators. Petitioner concludes that in
entertaining pre-proclamation cases, Congress and the COMELEC en banc
undermine the independence and encroach upon the jurisdiction of the PET
and the SET.
The COMELEC maintains that the amendments introduced by Section 37
pertain only to the adoption and application of the procedures on pre-
proclamation controversies in case of any discrepancy, incompleteness,
erasure or alteration in the certificates of canvass. The COMELEC adds that
Section 37 does not provide that Congress and the COMELEC en banc may
now entertain pre-proclamation cases for national elective posts.1avvphi1
OSG argues that the Constitution does not prohibit pre-proclamation cases
involving national elective posts. According to the OSG,
only Section 15 of RA 7166 17 expressly disallows pre-proclamation cases
involving national elective posts but this provision was subsequently
amended by Section 38 of RA 9369.
In Pimentel III v. COMELEC,18 we already discussed the implications of the
amendments introduced by Sections 37 and 38 to Sections 15 and 30 19 of
RA 7166, respectively and we declared:
Indeed, this Court recognizes that by virtue of the amendments introduced
by Republic Act No. 9369 to Sections 15 and 30 of Republic Act No. 7166,
pre-proclamation cases involving the authenticity and due execution of
CONSTI 2 Sec.11-13Page |6
certificates of canvass are now allowed in elections for President, Vice-
President, and Senators. The intention of Congress to treat a case falling
under Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369, as a pre-proclamation case is apparent in the fourth paragraph of the
said provision which adopts and applies to such a case the same procedure
provided under Sections 17, 18, 19 and 20 of Republic Act No. 7166 on pre-
proclamation controversies.
In sum, in [the] elections for President, Vice-President, Senators and
Members of the House of Representatives, the general rule is still that pre-
proclamation cases on matters relating to the preparation, transmission,
receipt, custody and appreciation of election returns or certificates of
canvass are still prohibited. As with other general rules, there are recognized
exceptions to the prohibition, namely: (1) correction of manifest errors; (2)
questions affecting the composition or proceeding of the board of
canvassers; and (3) determination of the authenticity and due execution of
certificates of canvass as provided in Section 30 of Republic Act No. 7166,
as amended by Republic Act No. 9369.20
In the present case, Congress and the COMELEC en banc do not
encroach upon the jurisdiction of the PET and the SET. There is no
conflict of jurisdiction since the powers of Congress and the
COMELEC en banc, on one hand, and the PET and the SET, on the
other, are exercised on different occasions and for different purposes.
The PET is the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice President. The SET
is the sole judge of all contests relating to the election, returns, and
qualifications of members of the Senate. The jurisdiction of the PET
and the SET can only be invoked once the winning presidential, vice
presidential or senatorial candidates have been proclaimed. On the
other hand, under Section 37, Congress and the COMELEC en banc
shall determine only the authenticity and due execution of the
certificates of canvass. Congress and the COMELEC en banc shall
exercise this power before the proclamation of the winning
presidential, vice presidential, and senatorial candidates.
Section 43 does not violate Section 2(6), Article IX-C of the Constitution

Both petitioner and the COMELEC argue that the Constitution vests in the
COMELEC the "exclusive power" to investigate and prosecute cases of
violations of election laws. Petitioner and the COMELEC allege that Section
43 is unconstitutional because it gives the other prosecuting arms of the
government concurrent power with the COMELEC to investigate and
prosecute election offenses.21
We do not agree with petitioner and the COMELEC that the Constitution
gave the COMELEC the "exclusive power" to investigate and prosecute
cases of violations of election laws.
Section 2(6), Article IX-C of the Constitution vests in the COMELEC the
power to "investigate and, where appropriate, prosecute cases of violations
of election laws, including acts or omissions constituting election frauds,
offenses, and malpractices." This was an important innovation introduced by
the Constitution because this provision was not in the 1935 22 or
197323 Constitutions.24 The phrase "[w]here appropriate" leaves to the
legislature the power to determine the kind of election offenses that the
COMELEC shall prosecute exclusively or concurrently with other prosecuting
arms of the government.
The grant of the "exclusive power" to the COMELEC can be found in Section
265 of BP 881, which provides:
Sec. 265. Prosecution. - The Commission shall, through its duly authorized
legal officers, have the exclusive power to conduct preliminary investigation
of all election offenses punishable under this Code, and to prosecute the
same. The Commission may avail of the assistance of other prosecuting
arms of the government: Provided, however, That in the event that the
Commission fails to act on any complaint within four months from his filing,
the complainant may file the complaint with the office of the fiscal or with the
Ministry of Justice for proper investigation and prosecution, if warranted.
(Emphasis supplied)
This was also an innovation introduced by BP 881. The history of election
laws shows that prior to BP 881, no such "exclusive power" was ever
bestowed on the COMELEC.25
CONSTI 2 Sec.11-13Page |7
We also note that while Section 265 of BP 881 vests in the COMELEC the
"exclusive power" to conduct preliminary investigations and prosecute
election offenses, it likewise authorizes the COMELEC to avail itself of the
assistance of other prosecuting arms of the government. In the 1993
COMELEC Rules of Procedure, the authority of the COMELEC was
subsequently qualified and explained. 26 The 1993 COMELEC Rules of
Procedure provides:
Rule 34 - Prosecution of Election Offenses
Sec. 1. Authority of the Commission to Prosecute Election Offenses. -
The Commission shall have the exclusive power to conduct preliminary
investigation of all election offenses punishable under the election
laws and to prosecute the same, except as may otherwise be provided
by law. (Emphasis supplied)
It is clear that the grant of the "exclusive power" to investigate and prosecute
election offenses to the COMELEC was not by virtue of the Constitution but
by BP 881, a legislative enactment. If the intention of the framers of the
Constitution were to give the COMELEC the "exclusive power" to investigate
and prosecute election offenses, the framers would have expressly so stated
in the Constitution. They did not.
In People v. Basilla,27 we acknowledged that without the assistance of
provincial and city fiscals and their assistants and staff members, and of the
state prosecutors of the Department of Justice, the prompt and fair
investigation and prosecution of election offenses committed before or in the
course of nationwide elections would simply not be possible. 28 In COMELEC
v. Español,29 we also stated that enfeebled by lack of funds and the
magnitude of its workload, the COMELEC did not have a sufficient number of
legal officers to conduct such investigation and to prosecute such
cases.30 The prompt investigation, prosecution, and disposition of election
offenses constitute an indispensable part of the task of securing free, orderly,
honest, peaceful, and credible elections. 31 Thus, given the plenary power of
the legislature to amend or repeal laws, if Congress passes a law amending
Section 265 of BP 881, such law does not violate the Constitution.
Section 34 does not violate Section 10, Article III of the Constitution

assails the constitutionality of the provision which fixes the per diem of poll
watchers of the dominant majority and dominant minority parties at ₱on
election day. Petitioner argues that this violates the freedom of the parties to
contract and their right to fix the terms and conditions of the contract they
see as fair, equitable and just. Petitioner adds that this is a purely private
contract using private funds which cannot be regulated by law.
The OSG argues that petitioner erroneously invoked the non-impairment
clause because this only applies to previously perfected contracts. In this
case, there is no perfected contact and, therefore, no obligation will be
impaired.
Both the COMELEC and the OSG argue that the law is a proper exercise of
police power and it will prevail over a contract. According to the COMELEC,
poll watching is not just an ordinary contract but is an agreement with the
solemn duty to ensure the sanctity of votes. The role of poll watchers is
vested with public interest which can be regulated by Congress in the
exercise of its police power. The OSG further argues that the assurance that
the poll watchers will receive fair and equitable compensation promotes the
general welfare. The OSG also states that this was a reasonable regulation
considering that the dominant majority and minority parties will secure a copy
of the election returns and are given the right to assign poll watchers inside
the polling precincts.
There is no violation of the non-impairment clause. First, the non- impairment
clause is limited in application to laws that derogate from prior acts or
contracts by enlarging, abridging or in any manner changing the intention of
the parties.32 There is impairment if a subsequent law changes the terms of a
contract between the parties, imposes new conditions, dispenses with those
agreed upon or withdraws remedies for the enforcement of the rights of the
parties.33
As observed by the OSG, there is no existing contract yet and, therefore, no
enforceable right or demandable obligation will be impaired. RA 9369 was
enacted more than three months prior to the 14 May 2007 elections. Hence,
when the dominant majority and minority parties hired their respective poll
watchers for the 14 May 2007 elections, they were deemed to have
incorporated in their contracts all the provisions of RA 9369.
CONSTI 2 Sec.11-13Page |8
Second, it is settled that police power is superior to the non-impairment
clause.34 The constitutional guaranty of non-impairment of contracts is limited
by the exercise of the police power of the State, in the interest of public
health, safety, morals, and general welfare of the community.
Section 8 of COMELEC Resolution No. 1405 35 specifies the rights and duties
of poll watchers:
The watchers shall have the right to stay in the space reserved for them
inside the polling place. They shall have the right to witness and inform
themselves of the proceedings of the board; to take notes of what they may
see or hear, to take photographs of the proceedings and incidents, if any,
during the counting of votes, as well as the election returns, tally board and
ballot boxes; to file a protest against any irregularity or violation of law which
they believe may have been committed by the board or by any of its
members or by any person; to obtain from the board a certificate as to the
filing of such protest and/or of the resolution thereon; to read the ballots after
they shall have been read by the chairman, as well as the election returns
after they shall have been completed and signed by the members of the
board without touching them, but they shall not speak to any member of the
board, or to any voter, or among themselves, in such a manner as would
disturb the proceedings of the board; and to be furnished, upon request, with
a certificate of votes for the candidates, duly signed and thumbmarked by the
chairman and all the members of the board of election inspectors.
Additionally, the poll watchers of the dominant majority and minority parties
in a precinct shall, if available, affix their signatures and thumbmarks on the
election returns for that precinct. 36 The dominant majority and minority
parties shall also be given a copy of the certificates of canvass 37 and election
returns38 through their respective poll watchers. Clearly, poll watchers play
an important role in the elections.
Moreover, while the contracting parties may establish such stipulations,
clauses, terms, and conditions as they may deem convenient, such
stipulations should not be contrary to law, morals, good customs, public
order, or public policy.39
In Beltran v. Secretary of Health,40 we said:
 CONSTI 2 Sec.11-13Page |9

Furthermore, the freedom to contract is not absolute; all contracts and all

rights are subject to the police power of the State and not only may
regulations which affect them be established by the State, but all such
regulations must be subject to change from time to time, as the general well-
being of the community may require, or as the circumstances may change,
or as experience may demonstrate the necessity. 41 (Emphasis supplied)

Therefore, assuming there were existing contracts, Section 34 would still be

constitutional because the law was enacted in the exercise of the police
power of the State to promote the general welfare of the people. We agree
with the COMELEC that the role of poll watchers is invested with public
interest. In fact, even petitioner concedes that poll watchers not only guard
the votes of their respective candidates or political parties but also ensure
that all the votes are properly counted. Ultimately, poll watchers aid in fair
and honest elections. Poll watchers help ensure that the elections are
transparent, credible, fair, and accurate. The regulation of the per diem of the
poll watchers of the dominant majority and minority parties promotes the
general welfare of the community and is a valid exercise of police power.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

G.R. No. 162777. August 31, 2004.*
FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS,
represented by its Chairman, BENJAMIN S. ABALOS, ESMERALDA
AMORA-LADRA, in her capacity as Acting Director IV, National Capital
Judicial Region, Commission on Elections, and the SOLICITOR
GENERAL, respondents.
Election Law; Commission on Elections; Administrative Law; Police power,
as an inherent attribute of sovereignty, is the power to prescribe regulations
to promote the health, morals, peace, education, good order, or safety, and
the general welfare of the people.—Police power, as an inherent attribute of
sovereignty, is the power to prescribe regulations to promote the health,
morals, peace, education, good order, or safety, and the general welfare of
the people. To determine the validity of a police measure, two questions
must be asked: (1) Does the interest of the public in general, as
distinguished from those of a particular class, require the exercise of police
power? and (2) Are the means employed reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals?
Same; Same; The COMELEC was acting well within its scope of powers
when it required petitioner to discontinue the display of the subject billboards.
If the subject billboards were to be allowed, candidates for public office
whose name and image are used to advertise commercial products would
have more opportunity to make themselves known to the electorate, to the
disadvantage of other candidates who do not have the same chance of
lending their faces and names to endorse popular commercial products as
image models.—It is true that when petitioner entered into the contracts or
agreements to endorse certain products, he acted as a private individual and
had all the right to lend his name and image to these products. However,
when he filed his certificate of candidacy for Senator, the billboards featuring
his name and image assumed partisan political character because the same
indirectly promoted his candidacy. Therefore, the COMELEC was acting well
within its scope of powers when it required petitioner to discontinue the
display of the subject billboards. If the subject billboards were to be allowed,
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 10
candidates for public office whose name and image are used to advertise
commercial products would have more opportunity to make themselves
known to the electorate, to the disadvantage of other candidates who do not
have the same chance of lending their faces and names to endorse popular
commercial products as image models. Similarly, an individual intending to
run for public office within the next few months, could pay private
corporations to use him as their image model with the intention of
familiarizing the public with his name and image even before the start of the
campaign period.
Same; Same; The COMELEC is expressly authorized to supervise or
regulate the enjoyment or utilization of all media communication or
information to ensure equal opportunity, time and space.—Under the
Constitution, the COMELEC is expressly authorized to supervise or regulate
the enjoyment or utilization of all media communication or information to
ensure equal opportunity, time, and space. All these are aimed at the holding
of free, orderly, honest, peaceful, and credible elections.
Same; Same; Constitutional Law; Police Power; Time and again, this Court
has said that contracts affecting public interest contain an implied reservation
of the police power as a postulate of the exiting legal order. Police power can
be activated at anytime to change the provisions of the contract, or even
abrogate it entirely, for the promotion or protection of the general welfare.
Such an act will not militate against the impairment clause, which is subject
to and limited by the paramount police power.— The non-impairment clause
of the Constitution must yield to the loftier purposes targeted by the
Government. Equal opportunity to proffer oneself for public office, without
regard to the level of financial resources one may have at his disposal, is
indeed of vital interest to the public. The State has the duty to enact and
implement rules to safeguard this interest. Time and again, this Court has
said that contracts affecting public interest contain an implied reservation of
the police power as a postulate of the existing legal order. This power can be
activated at anytime to change the provisions of the contract, or even
abrogate it entirely, for the promotion or protection of the general welfare.
Such an act will not militate against the impairment clause, which is subject
to and limited by the paramount police power.
Same; Same; Same; Same; Fair Elections Act; By regulating the use of
election propaganda materials, the COMELEC is merely doing its duty under
the law. Under Sections 3 and 13 of the Fair Elections Act, all election
propaganda are subject to the supervision and regulation by the COMELEC.
—The Solicitor General rightly points out that the assailed provision does not

prohibit billboards as lawful election propaganda. It only regulates their use
to prevent premature campaigning and to equalize, as much as practicable,
the situation of all candidates by preventing popular and rich candidates from
gaining undue advantage in exposure and publicity on account of their
resources and popularity. Moreover, by regulating the use of such election
propaganda materials, the COMELEC is merely doing its duty under the law.
Under Sections 3 and 13 of the Fair Elections Act, all election propaganda
are subject to the supervision and regulation by the COMELEC.
Statutes; Constitutional Law; Police Power; A statute or regulation is
considered void for overbreadth when it offends the constitutional principle
that a governmental purpose to control or prevent activities constitutionally
subject to State regulations may not be achieved by means that sweep
unnecessarily broadly and thereby invade the area of protected freedoms.—
A statute or regulation is considered void for overbreadth when it offends the
constitutional principle that a governmental purpose to control or prevent
activities constitutionally subject to State regulations may not be achieved by
means that sweep unnecessarily broadly and thereby invade the area of
protected freedoms.
DECISION
AZCUNA, J.:
In this petition for prohibition with prayer for the issuance of a writ of
preliminary injunction, Francisco I. Chavez stands as a taxpayer and a
citizen asking this Court to enjoin the Commission on Elections (COMELEC)
from enforcing Section 32 of its Resolution No. 6520, dated January 6,
2004. The assailed provision is, as follows:
Section 32. All propaganda materials such as posters, streamers, stickers or
paintings on walls and other materials showing the picture, image, or name
of a person, and all advertisements on print, in radio or on television showing
the image or mentioning the name of a person, who subsequent to the
placement or display thereof becomes a candidate for public office shall be
immediately removed by said candidate and radio station, print media or
television station within 3 days after the effectivity of these implementing
rules; otherwise, he and said radio station, print media or television station
shall be presumed to have conducted premature campaigning in violation of
Section 80 of the Omnibus Election Code.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 11
Petitioner Chavez, on various dates, entered into formal agreements
with certain establishments to endorse their products. On August 18, 2003,
he authorized a certain Andrew So to use his name and image for 96 North,
a clothing company. Petitioner also signed Endorsement Agreements with
Konka International Plastics Manufacturing Corporation and another
corporation involved in the amusement and video games business, G-Box.
These last two agreements were entered into on October 14,
2003 and November 10, 2003, respectively. Pursuant to these agreements,
three billboards were set up along the Balintawak Interchange of the North
Expressway. One billboard showed petitioner promoting the plastic products
of Konka International Plastics Manufacturing Corporation, and the other two
showed petitioner endorsing the clothes of 96 North. One more billboard was
set up along Roxas Boulevard showing petitioner promoting the game and
amusement parlors of G-Box.
On December 30, 2003, however, petitioner filed his certificate of
candidacy for the position of Senator under Alyansa ng Pag-asa, a tripartite
alliance of three political parties: PROMDI, REPORMA, and Aksyon
Demokratiko.
On January 6, 2004, respondent COMELEC issued Resolution No.
6520, which contained Section 32, the provision assailed herein. On January
21, 2004, petitioner was directed to comply with the said provision by the
COMELECs Law Department. He replied, on January 29, 2004, by
requesting the COMELEC that he be informed as to how he may have
violated the assailed provision. He sent another letter dated February 23,
2004, this time asking the COMELEC that he be exempted from the
application of Section 32, considering that the billboards adverted to are
mere product endorsements and cannot be construed as paraphernalia for
premature campaigning under the rules.
The COMELEC answered petitioners request by issuing another letter,
dated February 27, 2004, wherein it ordered him to remove or cause the
removal of the billboards, or to cover them from public view pending the
approval of his request.
Feeling aggrieved, petitioner Chavez asks this Court that the
COMELEC be enjoined from enforcing the assailed provision. He urges this
Court to declare the assailed provision unconstitutional as the same is
allegedly (1) a gross violation of the non-impairment clause; (2) an invalid
exercise of police power; (3) in the nature of an ex-post facto law; (4)
contrary to the Fair Elections Act; and (5) invalid due to overbreadth.

Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of
police power? Petitioner argues that the billboards, while they exhibit his
name and image, do not at all announce his candidacy for any public office
nor solicit support for such candidacy from the electorate. They are, he
claims, mere product endorsements and not election
propaganda. Prohibiting, therefore, their exhibition to the public is not within
the scope of the powers of the COMELEC, he concludes.
This Court takes a contrary view. Police power, as an inherent attribute
of sovereignty, is the power to prescribe regulations to promote the health,
morals, peace, education, good order, or safety, and the general welfare of
the people.[1] To determine the validity of a police measure, two questions
must be asked: (1) Does the interest of the public in general, as
distinguished from those of a particular class, require the exercise of police
power? and (2) Are the means employed reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its primary
objectives are to prohibit premature campaigning and to level the playing
field for candidates of public office, to equalize the situation between popular
or rich candidates, on one hand, and lesser-known or poorer candidates, on
the other, by preventing the former from enjoying undue advantage in
exposure and publicity on account of their resources and popularity. The
latter is a valid reason for the exercise of police power as held in National
Press Club v. COMELEC,[2] wherein the petitioners questioned the
constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited
the sale or donation of print space and air time for campaigning or other
political purposes, except to the COMELEC. The obvious intention of this
provision is to equalize, as far as practicable, the situations of rich and poor
candidates by preventing the former from enjoying the undue advantage
offered by huge campaign war chests. This Court ruled therein that this
objective is of special importance and urgency in a country which, like ours,
is characterized by extreme disparity in income distribution between the
economic elite and the rest of society, and by the prevalence of poverty, with
so many of our population falling below the poverty line.
Moreover, petitioner cannot claim that the subject billboards are purely
product endorsements and do not announce nor solicit any support for his
candidacy. Under the Omnibus Election Code, election campaign or partisan
political activity is defined as an act designed to promote the election or
defeat of a particular candidate or candidates to a public office. Activities
included under this definition are:
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 12
(1) Forming organizations, associations, clubs, committees, or other groups
of persons for the purpose of soliciting votes and/or undertaking any
campaign for or against a candidate
(2) Holding political caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to
support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.[3] (underscoring ours)
It is true that when petitioner entered into the contracts or agreements
to endorse certain products, he acted as a private individual and had all the
right to lend his name and image to these products. However, when he filed
his certificate of candidacy for Senator, the billboards featuring his name and
image assumed partisan political character because the same indirectly
promoted his candidacy. Therefore, the COMELEC was acting well within its
scope of powers when it required petitioner to discontinue the display of the
subject billboards. If the subject billboards were to be allowed, candidates for
public office whose name and image are used to advertise commercial
products would have more opportunity to make themselves known to the
electorate, to the disadvantage of other candidates who do not have the
same chance of lending their faces and names to endorse popular
commercial products as image models. Similarly, an individual intending to
run for public office within the next few months, could pay private
corporations to use him as their image model with the intention of
familiarizing the public with his name and image even before the start of the
campaign period. This, without a doubt, would be a circumvention of the rule
against premature campaigning:
Sec. 80. Election campaign or partisan political activity outside campaign
period. It shall be unlawful for any person, whether or not a voter or
candidate, or for any party, or association of persons, to engage in an

election campaign or partisan political activity except during the campaign
period. x x x [4]
Article IX (C) (4) of the Constitution provides:
Sec. 4. The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of communication
or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible
elections.
Under the abovementioned Constitutional provision, the COMELEC is
expressly authorized to supervise or regulate the enjoyment or utilization of
all media communication or information to ensure equal opportunity, time,
and space. All these are aimed at the holding of free, orderly, honest,
peaceful, and credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation of the
non-impairment clause. The non-impairment clause of the Constitution must
yield to the loftier purposes targeted by the Government. [5] Equal opportunity
to proffer oneself for public office, without regard to the level of financial
resources one may have at his disposal, is indeed of vital interest to the
public. The State has the duty to enact and implement rules to safeguard this
interest. Time and again, this Court has said that contracts affecting public
interest contain an implied reservation of the police power as a postulate of
the existing legal order. This power can be activated at anytime to change
the provisions of the contract, or even abrogate it entirely, for the promotion
or protection of the general welfare.Such an act will not militate against the
impairment clause, which is subject to and limited by the paramount police
power.[6]
Furthermore, this Court notes that the very contracts entered into by
petitioner provide that the endorsers photograph and image shall be utilized
in whatever form, mode and manner in keeping with norms of decency,
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 13
reasonableness, morals and law;[7] and in whatever form, mode and
manner not contrary to law and norms of decency,[8] and in whatever form,
mode and manner in keeping with norms of decency, reasonableness,
morals and law.[9]
Petitioner also claims that Section 32 of Resolution No. 6520 is in the
nature of an ex post facto law. He urges this Court to believe that the
assailed provision makes an individual criminally liable for an election
offense for not removing such advertisement, even if at the time the said
advertisement was exhibited, the same was clearly legal. Hence, it makes a
person, whose name or image is featured in any such advertisement, liable
for premature campaigning under the Omnibus Election Code. [10] A close
scrutiny of this rationale, however, demonstrates its lack of
persuasiveness.Section 32, although not penal in nature, defines an offense
and prescribes a penalty for said offense. Laws of this nature must operate
prospectively, except when they are favorable to the accused. It should be
noted, however, that the offense defined in the assailed provision is not the
putting up of propaganda materials such as posters, streamers, stickers or
paintings on walls and other materials showing the picture, image or name of
a person, and all advertisements on print, in radio or on television showing
the image or mentioning the name of a person, who subsequent to the
placement or display thereof becomes a candidate for public office. Nor does
it prohibit or consider an offense the entering of contracts for such
propaganda materials by an individual who subsequently becomes a
candidate for public office. One definitely does not commit an offense by
entering into a contract with private parties to use his name and image to
endorse certain products prior to his becoming a candidate for public
office. The offense, as expressly prescribed in the assailed provision, is the
non-removal of the described propaganda materials three (3) days after the
effectivity of COMELEC Resolution No. 6520. If the candidate for public
office fails to remove such propaganda materials after the given period, he
shall be liable under Section 80 of the Omnibus Election Code for premature
campaigning. Indeed, nowhere is it indicated in the assailed provision that it
shall operate retroactively. There is, therefore, no ex post facto law in this
case.
Next, petitioner urges that Section 32 is a violation of the Fair Elections
Act. According to him, under this law, billboards are already permitted as
lawful election propaganda. He claims, therefore, that the COMELEC, in
effectively prohibiting the use of billboards as a form of election propaganda
through the assailed provision, violated the Fair Elections Act. Petitioners

argument is not tenable.The Solicitor General rightly points out that the
assailed provision does not prohibit billboards as lawful election
propaganda. It only regulates their use to prevent premature campaigning
and to equalize, as much as practicable, the situation of all candidates by
preventing popular and rich candidates from gaining undue advantage in
exposure and publicity on account of their resources and popularity.
[11]
 Moreover, by regulating the use of such election propaganda materials,
the COMELEC is merely doing its duty under the law. Under Sections 3 and
13 of the Fair Elections Act, all election propaganda are subject to the
supervision and regulation by the COMELEC:
SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether
on television, cable television radio, newspapers or any other medium is
hereby allowed for all registered political parties, national, regional, sectoral
parties or organizations participating under the party list elections and for all
bona fide candidates seeking national and local elective positions subject to
the limitation on authorized expenses of candidates and political parties
observance of truth in advertising and to the supervision and regulation by
the Commission on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall include:
3.1. Pamphlets, leaflets, cards, decals, stickers or other written or
printed materials the size of which does not exceed eight and
one half inches in width and fourteen inches in length;
3.2. Handwritten or printed letters urging voters to vote for or
against any particular political party or candidate for public
office;
3.3. Cloth, paper or cardboard posters whether framed or posted,
with an area not exceeding two(2) feet by three (3) feet,
except that, at the site and on the occasion of a public
meeting or rally, or in announcing the holding of said meeting
or rally, streamers not exceeding three (3) feet by eight (8)
feet in size, shall be allowed: Provided, That said streamers
may be displayed five (5) days before the date of the
meeting or rally and shall be removed within twenty-four (24)
hours after said meeting or rally;
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 14
3.4. Paid advertisements in print or broadcast media: Provided,
That the advertisements shall follow the requirements set
forth in Section 4 of this Act; and
3.5. All other forms of election propaganda not prohibited by the
Omnibus Election Code or this Act.
x x x
SECTION 13. Authority of the COMELEC to Promulgate Rules; Election
Offenses. - The COMELEC shall promulgate and furnish all political parties
and candidates and the mass media entities the rules and regulations for the
implementation of this Act, consistent with the criteria established in Article
IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election
Code (Batas Pambansa Blg. 881).
Rules and regulations promulgated by the COMELEC under and by authority
of this Section shall take effect on the seventh day after their publication in at
least two (2) daily newspapers of general circulation. Prior to effectivity of
said rules and regulations, no political advertisement or propaganda for or
against any candidate or political party shall be published or broadcast
through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued to
implement this Act shall be an election offense punishable under the first and
second paragraphs of Section 264 of the Omnibus Election Code (Batas
Pambansa Blg. 881).
Finally, petitioner contends that Section 32 of COMELEC Resolution
No. 6520 is invalid because of overbreadth.
A statute or regulation is considered void for overbreadth when it
offends the constitutional principle that a governmental purpose to control or
prevent activities constitutionally subject to State regulations may not be
achieved by means that sweep unnecessarily broadly and thereby invade
the area of protected freedoms.[12]
The provision in question is limited in its operation both as to time and
scope. It only disallows the continued display of a persons propaganda
materials and advertisements after he has filed a certificate of candidacy and
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 15

before the start of the campaign period. Said materials and advertisements

must also show his name and image.
There is no blanket prohibition of the use of propaganda materials and
advertisements. During the campaign period, these may be used subject
only to reasonable limitations necessary and incidental to achieving the
purpose of preventing premature campaigning and promoting equality of
opportunities among all candidates.
The provision, therefore, is not invalid on the ground of overbreadth.
WHEREFORE, the petition is DISMISSED and Section 32 of
COMELEC Resolution No. 6520 is declared valid and constitutional. The
prayer for a Temporary Restraining Order and/or a Writ of Preliminary
Injunction is hereby DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Tinga, and Chico-
Nazario,  JJ., concur.
Puno, Panganiban, Sandoval-Gutierrez, and Carpio, JJ.,  on official
leave.

G.R. No. 122485. February 1, 1999.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY
Y AMPARADO, accused-appellant.
Criminal Law; Rape; Those who lust and kill ought not to last.—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 last.
Same; Same; Rape with Homicide; Life, once taken is like virginity, which
once defiled can never be restored.—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.” For life, once taken is like virginity, which once
defiled can never be restored. In order therefore, that appellant’s guilty mind
be satisfied, the Court states the reasons why, as the records are not shy, for
him to verify.
Same; Evidence; Circumstantial Evidence; Requisites.—The proven
circumstances of this case when juxtaposed with appellant’s 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 and pursuant to settled jurisprudence, 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.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 16
Same; Same; Same; 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.—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. 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.
Same; Same; Same; Rape; Evidence; Guiding Principles in Review of Rape
Cases.—Guided by the three principles in the review of rape cases, to wit: 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.
Same; Rape; Statutes; Republic Act No. 8353; Under the Anti-Rape Law of
1997 (Republic Act No. 8353), rape has since been reclassified 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.—At the time
of the commission of this heinous act, rape was still considered a crime
against chastity, although under the Anti-Rape Law of 1997 (R.A. No. 8353),
rape has since been reclassified 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.
Same; Same; Same; Same; Under Republic Act No. 8353, rape may be
committed even by a woman and the victim may even be a man.—The
gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with
a woman by force and without consent. (Under the new law, rape may be
committed even by a woman and the victim may even be a man). If the
woman is under 12 years of age, proof of force and consent becomes

immaterial not only because force is not an element of statutory rape, but the
absence of a free consent is presumed when the woman is below such age.
Conviction will therefore lie, provided sexual intercourse is 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 perpetrator’s 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.
Same; Same; The mere touching by the male’s organ or instrument of sex of
the labia of the pudendum of the woman’s private parts is sufficient to
consummate rape.—In proving sexual intercourse, it is not full or deep
penetration of the victim’s vagina; rather the slightest penetration of the male
organ into the female sex organ is enough to consummate the sexual
intercourse. The mere touching by the male’s organ or instrument of sex of
the labia of the pudendum of the woman’s private parts is sufficient to
consummate rape.
Same; Same; Where 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.
—From the wounds, contusions and abrasions suffered by the victim, force
was indeed employed upon her to satisfy carnal lust. Moreover, from
appellant’s own account, he pushed the victim causing the latter to hit her
head on the table and fell unconscious. 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.
Same; Same; Witnesses; 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.—Appellant’s defense that two other persons brought to
him the dead body of the victim and forced him to rape the cadaver is too
unbelievable. In the words of Vice-Chancellor Van Fleet of New Jersey,
“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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 17
knowledge, observation and experience. Whatever is repugnant to these
belongs to the miraculous, and is outside of judicial cognizance.”
Same; Same; Same; 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’ deportment on the stand while testifying, which opportunity is
denied to the appellate courts.—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’ deportment on the stand while
testifying, which opportunity is denied to the appellate courts. In this case,
the trial court’s findings, conclusions and evaluation of the testimony of
witnesses is received on appeal with the highest respect, 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 or
justify a departure from the assessments and findings of the court below.
The absence of any improper or illmotive on the part of the principal
witnesses for the prosecution all the more strengthens the conclusion that no
such motive exists. Neither was any wrong motive attributed to the police
officers who testified against appellant.
Same; Rape with Homicide; Penalties; The special complex crime of rape
with homicide 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, the penalty is death, but 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.—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 Article 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.
Same; Same; Same; Death being a single indivisible penalty and the only
penalty prescribed by law for the crime of “rape with homicide,” the court has
no option but to apply the same “regardless of any mitigating or aggravating
circumstance that may have attended the commission of the crime.”—Death
being a single indivisible penalty and the only penalty prescribed by law for
the crime of “rape with homicide,” the court has no option but to apply the
same “regardless of any mitigating or aggravating circumstance that may
have attended the commission of the crime” in accordance with Article 63 of
the RPC, as amended. 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.
Same; Same; Damages; 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).—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). In
addition to such indemnity, she can also recover moral damages pursuant to
Article 2219 of the Civil Code in such amount as the court deems just,
without the necessity for pleading or proof of the basis thereof. Civil
indemnity is different from the award of moral and exemplary damages. 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 victim’s
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 18
injury is inherently concomitant with and necessarily resulting from the
odious crime of rape to warrant per se the award of moral damages.” 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.
Same; Constitutional Law; Custodial Investigations; Miranda Rights;
Procedure, Guidelines and duties to be done and observed by the arresting,
detaining, inviting, or investigating officer or his companions at the time of
making an arrest, at and during custodial interrogation.—Considering the
heavy penalty of death and in order to ensure that the evidence against an
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 in accordance with the Constitution,
jurisprudence and Republic Act No. 7438: 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 cease 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; 11. 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.
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 last.
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*
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 19
Appellant Larry Mahinay started working as houseboy with
Maria Isip on November 20, 1953. 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, l995; 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,
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 20
Contusions, suprapubic 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 21
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 the 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 co-conspirators (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. de Leon, Valenzuela, Metro Manila, he joined
Gregorio Rivera and a certain Totoy in a drinking spree.
Gregorio Rivera is the brother of Maria Isip, appellant's
employer. After consuming three cases of red horse beer,
he was summoned by Isip to clean the jeepney. He finished
cleaning the jeepney at 12 o'clock 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-
5).
At 2 o'clock in the afternoon, appellant, instead of going out
with his friend, opted to rejoin Gregorio Rivera and Totoy for
another drinking session. They consumed one case of red
horse beer. Around 6 o'clock p.m., Zaldy, a co-worker,
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 22
fetched him at Gregorio Rivera's house. They went to
Zaldy's house and bought a bottle of gin. They finished
drinking gin around 8 o'clock 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 o'clock 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 Rivera's
store to buy lugaw. Norgina Rivera informed him that there
was none left of it. He left the store and proceeded to Isip's
apartment. But because it was already closed, he decided
to sleep at the second floor of Isip's unfinished house.
Around 10 o'clock p.m., Zaldy and Boyet arrived carrying 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
brought him to a big house somewhere in Manila. There,
appellant heard the police officer's 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 . . . 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 appellant's guilty mind be satisfied, the Court states the
reasons why, as the records are not shy, for him to verify.
The proven circumstances of this case when juxtaposed with appellant's
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 evidence8 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 23
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 appellant's 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
accused's hair was disarranged, drunk and walking in
sigsagging manner. That the accused appeared uneasy
and seems 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 C. 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-law's 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 victim's 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 Dian 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 testify 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 Attorney's Office voluntarily gave his
statement admitting the 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 24
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 latter's 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 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 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 notable 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 pp. 8-9 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/dump 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 it's conformity to aver
knowledge observation and experience.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 25
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 person's 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
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 26

the Revised Penal Code, as amended by Section 11, R.A. 7659, 1.) When the victim is
which provides: under eighteen (18)
years of age and the
When and how rape is committed - Rape is committed by offender is a parent,
having carnal knowledge of a woman under any of the ascendant, step-parent,
following circumstances. guardian, relative by
consanguinity or affinity
within the third civil
1.) By using force or degree, or the common-
intimidation; law spouse of the parent
of the victim.
2.) When the woman is
deprived of reason or 2.) When the victim is
otherwise unconscious: under the custody of the
and police or military
authorities.
3.) When the woman is
under twelve years of 3.) When the rape is
age or is demented. committed in full view of
the husband, parent, any
The crime of rape shall be punished by reclusion perpetua. of the children or other
relatives within the third
Whenever the crime of rape is committed with use of a degree of consanguinity.
deadly weapon or by two or more persons, the penalty shall
be reclusion perpetua to death. 4.) When the victim is a
religious or a child below
When by reason or on the occasion of the rape, the victim seven (7) years old.
has become insane, the penalty shall be death.
5.) When the offender
When the rape is attempted or frustrated and a homicide is knows that he is afflicted
committed by reason or on the occasion thereof, the with Acquired Immune
penalty shall be reclusion perpetua  to death. Deficiency Syndrome
(AIDS) disease.
When by reason or on the occasion of the rape,  a homicide
is committed the penalty shall be death. 6.) When committed by
any member of the
The death penalty shall also be imposed if the crime of rape Armed Forces of the
is committed with any of the following attendant Philippines or Philippine
circumstances:
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 27

National Police or any Q: And what did you find out after you
law enforcement agency examined the genitalia of the victim?

7.) When by reason or on A: The hymen was tall-thick with complete

the occasion of the rape, laceration at 4:00 o'clock and 8:00 o'clock
the victim has suffered position and that the edges were
permanent physical congested.
mutilation. 14
Q: Now, what might have caused the
At the time of the commission of this heinous act, rape was still considered a laceration?
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 A: Under normal circumstances this might
Articles 266-A and 266-B, and thus, may be prosecuted even without a have (sic) caused by a penetration of an
complaint filed by the offended party. organ.

The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress Q: So, the laceration was caused by the
with a woman by force and without consent. 16 (Under the new law, rape may penetration of a male organ?
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 immaterial18 not only because force is not an element of statutory A: Adult male organ, sir.
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 Q: You are very sure of that, Mr. Witness?
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 A: I am very sure of that.20
be proven but also the other element that the perpetrator's evil acts with the
offended party was done through force, violence, intimidation or threat needs Besides, as may be gleaned from his extrajudicial confession, appellant
to be established. Both elements are present in this case. himself admitted that he had sexual congress with the unconscious child.

Based on the evidence on record, sexual intercourse with the victim was 15. T: Ano ang nangyari ng mga sandali o
adequately proven. This is shown from the testimony of the medical doctor oras na iyon?
who conducted post mortem examination on the child's body:
S: Natutulog po ako sa itaas ng bahay ni
Q: And after that what other parts or the ATE MARIA, yung malaking bahay na
victim did you examine? ginagawa, tapos dumating yung batang
babae. Pag-pasok niya sa kuwarto
A: Then I examined the genitalia of the hinawakan ko siya sa kamay tapos tinulak
victim. ko siya. Tapos tumama yung ulo niya sa
mesa. Ayon na, nakakatulog na siya tapos
ni rape ko na siya.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 28
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 investigator's
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 Dian, Gen. T. de Leon, Valenzuela,
M.M.
22. T: Alam mo 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 ha
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",
maaari bang ipaliwanag mo ito?
S: Nilabasan po ako ng tamod.
26 T: Nung nakaraos ka, nasaan parte na
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?
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 29
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 victim's
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 male's organ or instrument of sex of the labia of the
pudendum of the woman's 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
appellant's own account, he pushed the victim causing the latter to hit her
head on the table and fell unconscious. 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 extra judicial 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.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 30
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
Attorney's 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?
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 31

A — Yes, sir, and it was also explained to before and after there are two (2)
him one by one by Police Officer signatures, will you please recognize the
Alabastro. two (2) signatures?

Q — I show to you this constitutional right A — These were the same signatures
which you said were reduced into writing, signed in my presence, sir.
will you be able to recognize the same?
Q — The signature of whom?
A — Yes, sir.
A — The signature of Larry Mahinay, sir.
Q — Will you please go over this and tell
the Court whether that is the same ATTY. PRINCIPE:
document you mentioned?
May we request, Your Honor, that the two
A — Yes, sir, these were the said rights (2) signatures identified by my compañero
reduced into writing. be encircled and marked as Exhibit A-1
and A-2.
ATTY. PRINCIPE:
Q — After you said that you apprised the
May we request, Your Honor, that this accused of his constitutional right
document be marked as our Exhibit A. explaining to him in Filipino, in local
proper. dialect, what was the respond of the
accused?
Q — Do you recall after reducing into
writing this constitutional right of the A — Larry Mahinay said that we will
accused whether you asked him to sign to proceed with his statement.
acknowledge or to conform?
Q — What was the reply?
A — I was the one who asked him, sir. It
was Police Officer Alabastro. A — He said "Opo".

Q — But you were present? Q — Did you ask him of his educational
attainment?
A — I was then present when he signed.
A — It was the Police Officer who asked
Q — There is a signature in this him.
constitutional right after the enumeration,

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.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 32
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).
Appellant's defense that two other persons brought to him the dead body of
the victim and forced him to rape the cadaver is too 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 or 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' deportment on the stand while testifying, which opportunity is
denied to the appellate courts.25 In this case, the trial court's 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 53 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 Article 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 court has no option but to apply
the same "regardless of any mitigating or aggravating circumstance that may
have attended 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 33
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 victim's 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 Code38 after proof that the offended party is entitled to
moral, temperate and compensatory damages. 39 Under the circumstances
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 34
of this case, appellant is liable to the victim's 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 an 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 anystatement 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
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 35

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;
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.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Martinez, Purisima, Pardo, Buena and Gonzaga-
Reyes, JJ., concur.

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;

11. 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.

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 to
P75,000.00, PLUS P50,000.00 moral damages.

G.R. No. 95028. May 15, 1995.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLO COMPIL Y
LITABAN, accused-appellant.
Constitutional Law; Custodial Investigation; Extrajudicial Confessions; The
arrival of a lawyer prior to the actual signing of the uncounseled confession
does not cure the inherent defect of such confession, as the operative act is
when the police investigation is no longer a general inquiry into an unsolved
crime but has begun to focus on a particular suspect who has been taken
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 36
into custody and not when the suspect signs his supposed extrajudicial
confession.—In the case at bench, it is evident that accused-appellant was
immediately subjected to an interrogation upon his arrest in the house of Rey
Lopez in Tayabas, Quezon. He was then brought to the Tayabas Police
Station where he was further questioned. And while on their way to Manila,
the arresting agents again elicited incriminating information. In all three
instances, he confessed to the commission of the crime and admitted his
participation therein. In all those instances, he was not assisted by counsel.
The belated arrival of the CLAO lawyer the following day even if prior to the
actual signing of the uncounseled confession does not cure the defect for the
investigators were already able to extract incriminatory statements from
accused-appellant. The operative act, it has been stressed, is when the
police investigation is no longer a general inquiry into an unsolved crime but
has begun to focus on a particular suspect who has been taken into custody
by the police to carry out a process of interrogation that lends itself to
eliciting incriminatory statements, and not the signing by the suspect of his
supposed extrajudicial confession. While the extrajudicial confession of
accused-appellant is so convincing that it mentions details which could not
have been merely concocted, and jibes with the other pieces of evidence
uncovered by the investigators, still we cannot admit it in evidence because
of its implicit constitutional infirmity.
Evidence; Witnesses; Minor inconsistencies do not impair the credibility of
witnesses.—Time and again it has been said that minor inconsistencies do
not impair the credibility of witnesses, more so with witness Hermoso who
only reached Grade Two and who as the trial court noted had difficulty
understanding the questions being propounded to her. In fine, in the absence
of evidence to show any reason why prosecution witnesses should falsely
testify, it is fair to conclude that no improper motive exists and that their
testimony is worthy of full faith and credit.
Same; Circumstantial Evidence; Requisites; There can be a conviction
based on circumstantial evidence when the circumstances proven form an
unbroken chain which leads to a fair and reasonable conclusion pinpointing
the accused as the perpetrator of the crime.—We have repeatedly ruled that
the guilt of the accused may be established through circumstantial evidence
provided that: (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. And there can be a conviction based on circumstantial evidence when

the circumstances proven form an unbroken chain which leads to a fair and
reasonable conclusion pinpointing the accused as the perpetrator of the
crime.
Searches and Seizures; Arrests; An accused is estopped from questioning
the absence of a warrant if he failed to move for the quashing of the
information before the trial court.—While it may be true that the arrest,
search and seizure were made without the benefit of a warrant, accused-
appellant is now estopped from questioning this defect after failing to move
for the quashing of the information before the trial court. Thus any irregularity
attendant to his arrest was cured when he voluntarily submitted himself to
the jurisdiction of the trial court by entering a plea of “not guilty” and by
participating in the trial.
Conspiracy; Direct proof is not essential to prove conspiracy as such fact
may be inferred from the acts of the accused during and after the
commission of the crime which point to a joint purpose, concert of action and
community of interest.—Likewise devoid of merit is the contention of
accused-appellant that granting that he had participated in the commission of
the crime, he should be considered only as an accomplice. Disregarding his
extrajudicial confession and by reason of his failure to adduce evidence in
his behalf, the Court is left with no other recourse but to consider only the
evidence of the prosecution which shows that the perpetrators of the crime
acted in concert. For, direct proof is not essential to prove conspiracy which
may be inferred from the acts of the accused during and after the
commission of the crime which point to a joint purpose, concert of action and
community of interest. Thus circumstantial evidence is sufficient to prove
conspiracy. And where conspiracy exists, the act of one is the act of all, and
each is to be held in the same degree of liability as the others. People vs.
Compil, 244 SCRA 135, G.R. No. 95028 May 15, 1995
BELLOSILLO, J.:
On the belief that the case for the prosecution depends in the main on his
own extrajudicial confession which he claims is inadmissible, accused Marlo
Compil y Litaban filed a demurrer to evidence instead of presenting evidence
in his behalf. The trial court however denied his demurrer, admitted his
extrajudicial confession, and found him guilty of robbery with homicide. Now
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 37
before us, he maintains that his extrajudicial confession was extracted
without the assistance of counsel, thus constitutionally flawed.
As submitted by the prosecution, on 23 October 1987, just before midnight,
robbers struck on MJ Furnitures located along Tomas Mapua Street, Sta.
Cruz, Manila, which doubled as the dwelling of its proprietors, the spouses
Manuel and Mary Jay. The intruders made their way into the furniture shop
through the window grills they detached on the second floor where the
bedroom of the Jays was located. Two (2) of the robbers forthwith herded
the two (2) maids of the owners into the bathroom.
Manuel Jay was not yet home. He was to come from their other furniture
store, the Best Wood Furniture, along Tomas Pinpin Street, also in Sta.
Cruz. His wife Mary had earlier retired to their bedroom. Sensing however
that something unusual was going on outside, Mary opened the door to
peek. Suddenly, a man placed his arms around her neck while another
poked a balisong at her nape. She was pushed back into the bedroom and
ordered to open the drawers where she kept money. A third man ransacked
the bedroom. They then tied her hands behind her back, stuffed her mouth
with a towel, and took off with some P35,000.00 in cash and pieces of
jewelry worth P30,000.00.
Afterwards, Mary who was gagged in the bedroom, and one of the
housemaids herded into the bathroom, heard Manuel agonizing amid a
commotion in the ground floor. After noticing that the two (2) men guarding
them had already left, the helpers, Jenelyn Valle and Virginia Ngoho, dashed
out of the bathroom and proceeded to the bedroom of their employers. Upon
seeing Mary, the two (2) maids untied her hands and took out the towel from
her mouth. They then rushed to the ground floor where they saw Manuel
sprawled on the floor among the pieces of furniture which were in disarray.
He succumbed to thirteen (13) stab wounds.
In the investigation that followed, Jessie Bartolome, a furniture worker in MJ
Furnitures, told operatives of the Western Police District (WPD) that just
before the incident that evening, while with his girlfriend Linda Hermoso
inside an owner-type jeep parked near MJ Furnitures, he saw his co-workers
Marlo Compil, Baltazar Mabini and Jose Jacale go to the back of the
furniture shop. Linda then confirmed the information of Bartolome to the
police investigators who also learned that the trio who were all from Samar

failed to report for work the day after the incident, and that Baltazar Mabini
was planning to go to Tayabas, Quezon, to be the baptismal godfather of his
sister's child.
Thus on 27 October 1987, WPD agents together with Tomas Jay, brother of
the deceased, and Jenelyn Valle went to the parish church of Tayabas,
Quezon, to look for Baltazar Mabini and his companions. From the records of
the parish they were able to confirm that suspect Baltazar Mabini stood as
godfather in the baptism of the child of his sister Mamerta and Rey Lopez.
Immediately they proceeded to the house of Lopez who informed them that
Baltazar Mabini and his companions already left the day before, except
Compil who stayed behind and still planning to leave.
After being positively identified by Jenelyn Valle as one of the workers of the
Jay spouses, accused Marlo Compil who was lying on a couch was
immediately frisked and placed under arrest. According to Jenelyn, Compil
turned pale, became speechless and was trembling. However after regaining
his composure and upon being interrogated, Compil readily admitted his guilt
and pointed to the arresting officers the perpetrators of the heist from a
picture of the baptism of the child of Mabini's sister. Compil was then brought
to the Tayabas Police Station where he was further investigated. On their
way back to Manila, he was again questioned. He confessed that shortly
before midnight on 23 October 1987 he was with the group that robbed MJ
Furnitures. He divulged to the police officers who his companions were and
his participation as a lookout for which he received P1,000.00. He did not go
inside the furniture shop since he would be recognized. Only those who were
not known to their employers went inside. Compil said that his cohorts
stabbed Manuel Jay to death. He also narrated that after the robbery, they all
met in Bangkal, Makati, in the house of one Pablo Pakit, a brother of his co-
conspirator Rogelio Pakit, where they shared the loot and drank beer until
four-thirty in the morning. Then they all left for Quezon and agreed that from
there they would all go home to their respective provinces.
From Tayabas, Quezon, the arresting team together with accused Compil
proceeded to the house of Pablo Pakit who confirmed that his younger
brother Rogelio, with some six (6) others including Compil, went to his house
past midnight on 23 October 1987 and divided among themselves the money
and jewelry which, as he picked up from their conversation, was taken from
Sta. Cruz, Manila. They drank beer until past four o'clock the next morning.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 38
On 28 October 1987, the day following his arrest, accused Compil after
conferring with CLAO lawyer Melencio Claroz and in the presence of his
sister Leticia Compil, brother Orville Compil and brother-in-law Virgilio
Jacala, executed a sworn statement before Cpl. Patricio Balanay of the WPD
admitting his participation in the heist as a lookout. He named the six (6)
other perpetrators of the crime as Jose Jacale, Baltazar Mabini, Amancio
Alvos, Rogelio Pakit, a certain "Erning" and one "Lando," and asserted that
he was merely forced to join the group by Jose Jacale and Baltazar Mabini
who were the masterminds: According to Compil, he was earlier hired by
Mabini to work for MJ Furnitures where he was the foreman.
Meanwhile WPD agents had gathered other leads and conducted follow-up
operations in Manila, Parañaque and Bulacan but failed to apprehend the
cohorts of Compil.
On 12 November 1987 an Information for robbery with homicide was filed
against Marlo Compil. Assisted by a counsel de oficio he entered a plea of
"Not Guilty" when arraigned. After the prosecution had rested, the accused
represented by counsel de parte instead of adducing evidence filed a
demurrer to evidence.
On 2 June 1988 the Regional Trial Court of Manila, Br. 49, 1 denied the
demurrer, found the accused guilty of robbery with homicide, and sentenced
him to reclusion perpetua.
In his 75-page appellant's brief, accused Compil claims that "(he) was not
apprised of his constitutional rights (to remain silent and seek the assistance
of counsel) before the police officers started interrogating him from the time
of his arrest at the house of Rey Lopez, then at the Tayabas Police Station,
and while on their way to Manila . . . . (he) was made to confess and declare
statements that can be used against him in any proceeding." 2 And, the
belated arrival of counsel from the CLAO prior to the actual execution of the
written extrajudicial confession did not cure the constitutional infirmity since
the police investigators had already extracted incriminatory statements from
him the day before, which extracted statements formed part of his alleged
confession. He then concludes that "[w]ithout the admission of (his) oral . . .
and . . . written extrajudicial (confessions) . . . (he) cannot be convicted
beyond reasonable doubt of the crime of robbery with homicide based on the

testimonies of other witnesses"3 which are replete with "serious and glaring
inconsistencies and contradictions."4
In People v. Rous,5 the Third Division of this Court held that an extrajudicial
confession may be admitted in evidence even if obtained without the
assistance of counsel provided that it was read and fully explained to
confessant by counsel before it was signed. However we adopt our view
in Gamboa v. Cruz 6 where the Court En Banc ruled that "[t]he 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 respondent/accused. At such point or stage,
the person being interrogated must be assisted by counsel to avoid the
pernicious practice of extorting forced or coerced admissions or confessions
from the lips of the person undergoing interrogation for the commission of
the offense." We maintained this rule in the fairly recent cases of People v.
Macam 7 and People v. Bandula  8 where we further reiterated the
procedure —
. . . 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 . . . Any statement
obtained in violation of the procedure herein laid down,
whether exculpatory or inculpatory, in whole or in part, shall
be in admissible in evidence.
In the case at bench, it is evident that accused-appellant was immediately
subjected to an interrogation upon his arrest in the house of Rey Lopez in
Tayabas, Quezon. He was then brought to the Tayabas Police Station where
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 39
he was further questioned. And while on their way to Manila, the arresting
agents again elicited incriminating information. In all three instances, he
confessed to the commission of the crime and admitted his participation
therein. In all those instances, he was not assisted by counsel.
The belated arrival of the CLAO lawyer the following day even if prior to the
actual signing of the uncounseled confession does not cure the defect for the
investigators were already able to extract incriminatory statements from
accused-appellant. The operative act, it has been stressed, is when the
police investigation is no longer a general inquiry into an unsolved crime but
has begun to focus on a particular suspect who has been taken into custody
by the police to carry out a process of interrogation that lends itself to
eliciting incriminatory statements, and not the signing by the suspect of his
supposed extrajudicial confession. Thus in People v. de Jesus 9 we said that
admissions obtained during custodial interrogations without the benefit of
counsel although later reduced to writing and signed in the presence of
counsel are still flawed under the Constitution.
What is more, it is highly improbable for CLAO lawyer Melencio Claroz to
have fully explained to the accused who did not even finish Grade One, in
less than ten (10) minutes as borne by the records, the latter's constitutional
rights and the consequences of subscribing to an extrajudicial confession.
While the extrajudicial confession of accused-appellant is so convincing that
it mentions details which could not have been merely concocted, and jibes
with the other pieces of evidence uncovered by the investigators, still we
cannot admit it in evidence because of its implicit constitutional infirmity.
Nevertheless, we find other sufficient factual circumstances to prove his guilt
beyond reasonable doubt.
We give credence to the testimonies of prosecution witnesses Linda
Hermoso, Pablo Pakit and Jenelyn Valle. We believe that Linda Hermoso
saw the accused and Mabini in the vicinity of MJ Furnitures just before the
commission of the crime. While Hermoso may have contradicted herself on
some minor incidents, she was straightforward on this specific instance —
FISCAL FORMOSO (re-direct):

Q. You said that you saw Marlo and Puti
(Baltazar Mabini) together with Jessie
when you were inside the jeep, is it not?
WITNESS HERMOSO:
A. Yes, sir.
Q. Was this before you went to sleep?
A. Yes, sir. 10
Time and again it has been said that minor inconsistencies do not impair the
credibility of witnesses, more so with witness Hermoso who only reached
Grade Two and who as the trial court noted had difficulty understanding the
questions being propounded to her. In fine, in the absence of evidence to
show any reason why prosecution witnesses should falsely testify, it is fair to
conclude that no improper motive exists and that their testimony is worthy of
full faith and credit.
We have repeatedly ruled that the guilt of the accused may be established
through circumstantial evidence provided that: (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. 11 And there can be a conviction based
on circumstantial evidence when the circumstances proven form an
unbroken chain which leads to a fair and reasonable conclusion pinpointing
the accused as the perpetrator of the crime. 12
In the instant case, the prosecution was able to prove the guilt of the
accused through the following circumstances: First, accused Marlo Compil
and Baltazar Mabini who are both from Samar worked in MJ Furnitures in
Sta. Cruz, Manila, and were familiar with the floor plan of the shop. Second,
on the night of the incident, they were seen in front of MJ Furnitures. Third,
they were seen going to the rear of the furniture store. Fourth, robbers
forcibly entered MJ Furnitures through the back window on the second floor.
Fifth, some two (2) hours after the commission of the crime, at around two
o'clock the following morning, they were in a house in Bangkal, Makati,
dividing between themselves and their five (5) other companions the money
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 40
and jewelry taken from Sta. Cruz, Manila. Sixth, they all failed to show up for
work the following day. Seventh, accuses Compil turned ashen, was
trembling and speechless when apprehended in Tayabas, Quezon, for a
crime committed in Manila. Certainly these circumstances as gleaned from
the factual findings of the trial court form an unbroken chain which leads to a
fair and reasonable conclusion pointing to the accused as one of the
perpetrators of the crime.13 Hence even disregarding accused-appellant's
oral and written confessions, as we do, still the prosecution was able to show
that he was a co-conspirator in the robbery with homicide.
While it may be true that the arrest, search and seizure were made without
the benefit of a warrant, accused-appellant is now estopped from questioning
this defect after failing to move for the quashing of the information before the
trial court. Thus any irregularity attendant to his arrest was cured when he
voluntarily submitted himself to the jurisdiction of the trial court by entering a
plea of "not guilty" and by participating in the trial. 14
The argument of accused-appellant that the trial court should have convicted
the arresting police officers of arbitrary detention, if not delay in the delivery
of detained persons, is misplaced. Suffice it to say that the law enforcers
who arrested him are not being charged and prosecuted in the case at
bench.
Likewise devoid of merit is the contention of accused-appellant that granting
that he had participated in the commission of the crime, he should be
considered only as an accomplice. Disregarding his extrajudicial confession
and by reason of his failure to adduce evidence in his behalf, the Court is left
with no other recourse but to consider only the evidence of the prosecution
which shows that the perpetrators of the crime acted in concert. For, direct
proof is not essential to prove conspiracy 15 which may be inferred from the
acts of the accused during and after the commission of the crime which point
to a joint purpose, concert of action and community of interest. 16 Thus
circumstantial evidence is sufficient to prove conspiracy. 17 And where
conspiracy exists, the act of one is the act of all, and each is to be held in the
same degree of liability as the others. 18
WHEREFORE, the Decision of the Regional Trial Court appealed from is
AFFIRMED insofar as it finds accused-appellant MARLO COMPIL y
LITABAN guilty beyond reasonable doubt of robbery with homicide.

Consequently, he is sentenced to reclusion perpetua with all the accessory
penalties provided by law.
Accused-appellant is also directed to indemnify the heirs of the deceased
Manuel Jay in the amount of P50,000.00, plus P35,000.00 as actual
damages. He is further directed to return to Mary Jay the jewelry worth
P30,000.00, and if he can no longer return the jewelry, to pay its value.
Costs against accused-appellant.
SO ORDERED.
Padilla, Davide, Jr. and Quiason, JJ., concur.
Kapunan, J., is on leave.
G.R. No. 157399. November 17, 2005.*
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 41
PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE TING LAN UY, JR.
(Acquitted), ERNESTO GAMUS y SOTELO, JAIME OCHOA, all of the
National Power Corporation, and RAUL GUTIERREZ alias Raul Nicolas,
Alias George Añonuevo, alias Mara Añonuevo (At large), accused.
JAIME OCHOA, appellant.
Criminal Law; Malversation; Elements.—To be found guilty of malversation,
the prosecution must prove the following essential elements: a.] The offender
is a public officer; b.] He has the custody or control of funds or property by
reason of the duties of his office; c.] The funds or property involved are
public funds or property for which he is accountable; and d.] He has
appropriated, taken or misappropriated, or has consented to, or through
abandonment or negligence, permitted the taking by another person of, such
funds or property.
Same; Same; Right to be Informed; Malversation may be committed either
through a positive act of misappropriating of public funds or property or
passively through negligence by allowing another to commit such
misappropriation—to sustain the charge, there must either be a criminal
intent or criminal negligence; Even when the information charges willful
malversation, conviction for malversation through negligence may still be
adjudged if the evidence ultimately proves that mode of commission of the
offense.—Malversation may be committed either through a positive act of
misappropriation of public funds or property or passively through negligence
by allowing another to commit such misappropriation. To sustain a charge of
malversation, there must either be criminal intent or criminal negligence and
while the prevailing facts of a case may not show that deceit attended the
commission of the offense, it will not preclude the reception of evidence to
prove the existence of negligence because both are equally punishable in
Article 217 of the Revised Penal Code. More pointedly, the felony involves
breach of public trust, and whether it is committed through deceit or
negligence, the law makes it punishable and prescribes a uniform penalty
therefor. Even when the information charges willful malversation, conviction
for malversation through negligence may still be adjudged if the evidence
ultimately proves that mode of commission of the offense. Explicitly stated—
Even on the putative assumption that the evidence against petitioner yielded

a case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the
first mode of misappropriation would still be in order. Malversation is
committed either intentionally or by negligence. The dolo or the culpa
present in the offense is only a modality in the perpetration of the felony.
Even if the mode charged differs from mode proved, the same offense of
malversation is involved and conviction thereof is proper.
Same; Same; An accused charged with willful or intentional falsification can
validly be convicted of falsification through negligence, whose rationale
applies as well to the felony of malversation.—The question of whether or
not an information charging the commission of the crime by means of deceit
will preclude a conviction on the basis of negligence is neither novel nor of
first impression. In Samson v. Court of Appeals, et al., we ruled that an
accused charged with willful or intentional falsification can validly be
convicted of falsification through negligence, thus: While a criminal negligent
act is not a simple modality of a willful crime, as we held in Quizon vs.
Justice of the Peace of Bacolor, … but a distinct crime in itself, designated
as a quasi offense in our Penal Code, it may however be said that a
conviction for the former can be had under an information exclusively
charging the commission of a willful offense, upon the theory that the greater
includes the lesser offense. This is the situation that obtains in the present
case. Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the
falsification which made possible the cashing of the checks in question,
appellant did not act with criminal intent but merely failed to take proper and
adequate means to assure himself of the identity of the real claimants as an
ordinary prudent man would do. In other words, the information alleges acts
which charge willful falsification but which turned out to be not willful but
negligent. This is a case covered by the rule when there is a variance
between the allegation and proof, and is similar to some of the cases
decided by this Tribunal. x x x In People v. Consigna, et al., we ruled that the
afore-stated rationale also applies to the felony of malversation, that is, that
an accused charged with willful malversation, in an information containing
allegations similar to the present case, can be validly convicted of the same
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 42
offense of malversation through negligence where the evidence sustains the
latter mode of perpetrating the offense.
Same; Miranda Rights; Custodial Interrogations; Words and Phrases; The
“investigation” under Paragraph 1, Section 12(1), Article III of the 1987
Constitution refers to a “custodial” investigation where a suspect has already
been taken into police custody and the investigating officers have begun to
ask questions to elicit information and confessions or admissions from the
suspect; Custodial investigation refers to the critical pre-trial stage when the
investigation ceases to be a general inquiry into an unsolved crime but has
began to focus on a particular person as a suspect.—The “investigation”
under the above-quoted provision refers to a “custodial” investigation where
a suspect has already been taken into police custody and the investigating
officers begin to ask questions to elicit information and confessions or
admissions from the suspect. More specifically—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. And, the rule begins to operate at once as soon as
the investigation ceases to be a general inquiry into an unsolved crime and
direction is then aimed upon a particular suspect who has been taken into
custody and to whom the police would then direct interrogatory question
which tend to elicit incriminating statements. Succinctly stated, custodial
investigation refers to the critical pre-trial stage when the investigation
ceases to be a general inquiry into an unsolved crime but has begun to focus
on a particular person as a suspect. Such a situation contemplated has been
more precisely described thus where—After a person is arrested and his
custodial investigation begins a confrontation arises which at best may be
termed unequal. The detainee is brought to an army camp or police
headquarters and there questioned and cross-examined not only by one but
as many investigators as may be necessary to break down his morale. He
finds himself in a strange and unfamiliar surrounding, and every person he
meets he considers hostile to him. The investigators are well-trained and
seasoned in their work. They employ all the methods and means that
experience and study has taught them to extract the truth, or what may pass
for it, out of the detainee. Most detainees are unlettered and are not aware of
their constitutional rights. And even if they were, the intimidating and

coercive presence of the officers of the law in such an atmosphere
overwhelms them into silence....
Same; Same; Same; The rights enumerated by Section 12, Article III of the
Constitution are not available before government investigators enter the
picture.—The rights enumerated by the constitutional provision invoked by
accused-appellant are not available before government investigators enter
the picture. Thus we held in one case that admissions made during the
course of an administrative investigation by Philippine Airlines do not come
within the purview of Section 12. The protective mantle of the constitutional
provision also does not extend to admissions or confessions made to a
private individual, or to a verbal admission made to a radio announcer who
was not part of the investigation, or even to a mayor approached as a
personal confidante and not in his official capacity.
Same; Same; Same; The fact that a National Bureau of Investigation (NBI)
investigation was being contemporaneously conducted at the time the sworn
statement was taken will not extricate the accused from his predicament—
any investigation conducted by the NBI is a proceeding separate, distinct
and independent from the National Power Corporation (NPC) inquiry and
should not be confused or lumped together with the latter; The essence of
the constitutional safeguard is protection from coercion.—The fact that an
NBI investigation was being contemporaneously conducted at the time the
sworn statement was taken will not extricate appellant from his predicament.
The essence of the constitutional safeguard is protection from coercion. The
interview where the sworn statement is based was conducted by NPC
personnel for the NPC’s administrative investigation. Any investigation
conducted by the NBI is a proceeding separate, distinct and independent
from the NPC inquiry and should not be confused or lumped together with
the latter.
Same; Same; Same; Words and Phrases; What is being eschewed is the
evil of “extorting” a confession from the mouth of the person being
interrogated; “Extortion” is an act or practice of taking or obtaining anything
from a person by illegal use of fear, whether by force, threats or any undue
exercise of power, and in the context of obtaining an admission, “extorting”
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 43
means “compelling or coercing a confession or information by any means
serving to overcome his power of resistance, or making the confession or
admission involuntary.”—Although we held in Galman that the constitutional
protection covers not only confessions but admissions as well, we qualified
the ruling with the statement that what is being eschewed is the evil of
“extorting” a confession from the mouth of the person being interrogated. As
defined, “extortion” is an act or practice of taking or obtaining anything from a
person by illegal use of fear, whether by force, threats or any undue exercise
of power. In the context of obtaining an admission, “extorting” means
“compelling or coercing a confession or information by any means serving to
overcome his power of resistance, or making the confession or admission
involuntary.” In this case, we find nothing on record to support appellant’s
claim that his statements were extorted from him.
Same; Same; Same; Extrajudicial Statements; Notarial Law; A duly notarized
document which has in its favor the presumption of regularity and, thus, it
can be contradicted only by clear and convincing evidence.—It bears
stressing that the prosecution presented as witness Atty. Lamberto P.
Melencio who saw appellant at the hospital to show him the prepared
statement and to verify from him the truth of its contents. Atty. Melencio
testified that he asked appellant to go over the document before affixing his
signature thereto. He also inquired whether or not appellant was coerced or
intimidated by anybody when the statement was taken. Appellant denied that
he was coerced or intimidated, affirmed the contents of the document as a
true reflection of his statements, and signed the same. It need not be
overemphasized that the sworn statement is a duly notarized document
which has in its favor the presumption of regularity and, thus, it can be
contradicted only by clear and convincing evidence. Without that sort of
evidence, the presumption of regularity, the evidentiary weight conferred
upon such public document with respect to its execution, as well as the
statements and the authenticity of the signatures thereon, stand. People vs.
Ting Lan Uy, Jr., 475 SCRA 248, G.R. No. 157399 November 17, 2005.
DECISION
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 44

YNARES-SANTIAGO, J.:
For allegedly diverting and collecting funds of the National Power
Corporation (NPC) intended for the purchase of US Dollars from the United
Coconut Planters Bank (UCPB), Jose Ting Lan Uy, Jr., Ernesto
Gamus,1 Jaime Ochoa and Raul Gutierrez were indicted before the
Sandiganbayan for the complex crime of Malversation through Falsification
of Commercial Documents defined and penalized under Articles 217 and 171
(8), in relation to Article 48 of the Revised Penal Code, in an amended
Information,2 docketed as Criminal Case No. 19558, which alleges –
convert to their own personal use and benefit to the damage and prejudice of
the National Power Corporation in the aforementioned sum.
CONTRARY TO LAW.
Upon arraignment, Gamus, Uy and Ochoa pleaded not guilty to the charge,
while Gutierrez has remained at large.
On pre-trial, the prosecution and the defense stipulated –

That sometime in July 1990, or for sometime prior or subsequent thereto, in 1. That accused Uy at the time stated in the information was a Treasurer at
Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the NPC;
accused Jose Ting Lan Uy, Jr., a public accountable officer, being the
Treasurer of National Power Corporation (NAPOCOR), Ernesto Gamus and 2. That accused Ernesto Gamus was at the time mentioned in the
Jaime Ochoa, both public officers being the Manager of the Loan information was (sic) the Manager of Loan Management and Foreign
Management and Foreign Exchange Division (LOMAFED) and Foreign Exchange Division (LOMAFED);
Trader Analyst, respectively, also of NAPOCOR, and accused Raul
Gutierrez, alias Raul Nicolas, alias George Añonuevo, alias Mara Añonuevo, 3. That accused Jaime Ochoa was the Senior Financial Analyst, LOMAFED,
a private individual being a foreign exchange trader, said public officers at the time mentioned in the information;
taking advantage of their official positions, with grave abuse of authority and
committing the offense in relation to their office, conspiring, confederating 4. That accused Gamus does not have any custody to (sic) public funds;
and mutually helping one another, with their private co-accused, did then and
there willfully, unlawfully and feloniously falsify or cause to be falsified the
NPC’s application for managers checks with the Philippine National Bank 5. That accused Ochoa’s position as Sr. Financial Analyst did not require him
(PNB), NPC Branch in the total amount of ONE HUNDRED EIGHTY THREE to take custody or control of public funds;
MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY
ONE PESOS and TWENTY FIVE CENTAVOS (P183,805,291.25), Philippine 6. That the application forms for cashier’s check or Manager’s check are not
Currency, intended for the purchase of US dollars from the United Coconut accountable forms of the NAPOCOR.3
Planters Bank (UCPB), by inserting the account number of Raul Gutierrez
SA-111-121204-4, when in truth and in fact as the accused well knew that Trial on the merits thereafter ensued. On May 28, 2002, the Sandiganbayan
the Payment Instructions (PI) when signed by the NAPOCOR authorities did rendered its Decision,4 the dispositive portion of which reads:
not indicate the account number of Raul Gutierrez, thereby making alteration
or intercalation in a genuine document which changes its meaning, and with
WHEREFORE, premises considered, accused Jaime B. Ochoa is hereby
the use of the said falsified commercial documents, accused succeeded in
found GUILTY beyond reasonable doubt of the crime of Malversation thru
diverting, collecting and receiving the total amount of ONE HUNDRED
falsification of Commercial Document and is sentenced to suffer the
EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO
penalty of reclusion perpetua  and to pay a fine equal to the amount
HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS
malversed which is ONE HUNDRED EIGHTY THREE MILLION EIGHT
(P183,805,291.75), Philippine Currency from the National Power
HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND
Corporation, which they thereafter malverse, embezzle, misappropriate and

TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jose
Ting Lan Uy, Jr. Accused Ochoa shall also suffer the penalty of perpetual
disqualification. Costs against the accused.
On the ground of reasonable doubt, accused JOSE TING LAN UY, Jr. is
hereby ACQUITTED of Malversation of Public Funds thru Falsification of
Commercial Document. However, because of preponderance of evidence,
he is CIVILLY LIABLE for the damages suffered by the NPC in the amount of
ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE
THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE
CENTAVOS (P183,805,291.25) solidarily with accused Jaime Ochoa. The
Hold Departure Order against the accused embodied in this Court’s
Resolution dated April 18, 2002 is recalled.
Let an alias warrant of arrest be issued against Raul Gutierrez, alias Raul
Nicolas, alias George Añonuevo, alias Mara Añonuevo with last known
address at 1348 A. Mabini Street, Ermita, Manila or Suite 603 VIP Building,
Roxas Boulevard, Manila.
SO ORDERED.5
Aggrieved, Ochoa interposed this appeal alleging that the Sandiganbayan
erred in –
1. convicting him based on the allegations in the information;
2. admitting and considering his alleged sworn statements;
3. considering the alleged transcripts of stenographic notes and the NBI
Report.6
The factual antecedents of the case, as summed by the Sandiganbayan, are
not disputed by the parties:
In July of 1990, the National Power Corporation ("NPC") became embroiled
in a controversy involving the disappearance of P183,805,291.25 of its funds
which were originally on deposit with the Philippine National Bank, NPC
Branch ("PNB") but were subsequently used to purchase two (2)
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 45
managers’/cashier’s checks (the first check was in the amount of
P70,000,000.00 while the second was for P113,805,291.25) in order to
comply with its loan obligations to the Asian Development Bank ("ADB"). As
NPC’s debt in favor of ADB was in yen, NPC was obligated to follow an
intricate and circuitous procedure of buying US dollars from a local bank (in
this case, United Coconut Planters Bank or UCPB T.M. Kalaw Branch),
which local bank was supposed to remit the US dollars to an off-shore bank.
This off-shore bank (in this case, the Credit Lyonnais, New York) was then
supposed to remit the yen equivalent of the US dollars to a third bank (in this
case, the Bank of Japan, Tokyo Branch) which would then credit the funds to
the account of the ADB. The contracts of NPC with the concerned banks
(embodied in three [3] "Payment Instructions") included a "value date" (which
was July 13, 1990), the mere arrival of which would trigger the above-
mentioned procedure, culminating in the payment to ADB of the NPC
obligation in the foreign currency agreed upon.
On value date, per routing procedure, Credit Lyonnais (the second bank)
remitted Japanese Yen 1,143,316,130.00 to the Bank of Japan, Tokyo
Branch. Likewise, per routing procedure, UCPB T.M. Kalaw Branch was
supposed to have remitted on said value date the amount of
US$7,740,799.80. UCPB T.M. Kalaw, however, despite the fact that the PNB
had already issued two (2) manager’s/cashier’s checks ("Manager’s check"
for brevity) for such purpose, did not make the agreed remittance to Credit
Lyonnais, so Credit Lyonnais received no payment for the funds it had
remitted to the Bank of Japan, Tokyo. Both the State and the accused have
offered explanations for the failure of UCPB, T.M. Kalaw Branch to remit the
dollar equivalent of P183,805,291.25 to Credit Lyonnais. Both explanations,
naturally, were diametrically opposed.7
The prosecution theorizes that the accused diverted the funds covered by
the two PNB Manager’s checks by falsifying a commercial document called
an "Application for Cashier’s Check" (ACC) by inserting an account number
(A/C #111-1212-04) of a private individual after the name of the payee,
UCPB, T.M. Kalaw Branch. It claims that NPC did not authorize the insertion
considering that the Payment Instruction (PI) issued by NPC instructing PNB
to prepare a Manager’s check to be charged to NPC’s savings account did
not contain any account number. Through the insertion, the accused
allegedly succeeded in diverting the funds from the UCPB, T.M. Kalaw
Branch in favor of Raul Gutierrez @ Raul Nicolas @ George Añonuevo @
Mara Añonuevo, who is still at large.

In his defense, appellant asserts that there was no evidence that he
committed any of the acts alleged in the information, particularly the
intercalation on the ACC; that he deposited the checks subsequently issued
or that he received the proceeds thereof; or that he conspired with any of his
co-accused. He claims that his conviction was based on the alleged sworn
statement and the transcript of stenographic notes of a supposed interview
with appellant by the NPC personnel and the report of the National Bureau of
Investigation (NBI). Appellant maintains that he signed the sworn statement
while confined at the Philippine Heart Center and upon assurance that it
would not be used against him. He was not assisted by counsel nor was he
apprised of his constitutional rights when he executed the affidavit.
To be found guilty of malversation, the prosecution must prove the following
essential elements:
a.] The offender is a public officer;
b.] He has the custody or control of funds or property by reason of the duties
of his office;
c.] The funds or property involved are public funds or property for which he is
accountable; and
d.] He has appropriated, taken or misappropriated, or has consented to, or
through abandonment or negligence, permitted the taking by another person
of, such funds or property.8
Appellant insists that he could not be convicted under the allegations in the
information without violating his constitutional right to due process and to be
informed of the accusation against him. He points out that the information
alleges willful and intentional commission of the acts complained of while the
judgment found him guilty of inexcusable negligence amounting to malice.
Appellant’s contention lacks merit. Malversation may be committed either
through a positive act of misappropriation of public funds or property or
passively through negligence by allowing another to commit such
misappropriation.9To sustain a charge of malversation, there must either  be
criminal intent or criminal negligence10 and while the prevailing facts of a
case may not show that deceit attended the commission of the offense, it will
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 46
not preclude the reception of evidence to prove the existence of negligence
because both are equally punishable  in Article 217 of the Revised Penal
Code.
More pointedly, the felony involves breach of public trust, and whether it is
committed through deceit or negligence,the law makes it punishable and
prescribes a uniform penalty therefor. Even when the information charges
willful malversation, conviction for malversation through negligence may still
be adjudged if the evidence ultimately proves that mode of commission of
the offense.11 Explicitly stated –
Even on the putative assumption that the evidence against petitioner yielded
a case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the
first mode of misappropriation would still be in order. Malversation is
committed either intentionally or by negligence. The dolo or
the culpa present in the offense is only a modality in the perpetration of the
felony. Even if the mode charged differs from mode proved, the same
offense of malversation is involved and conviction thereof is proper. 12
The question of whether or not an information charging the commission of
the crime by means of deceit will preclude a conviction on the basis of
negligence is neither novel nor of first impression. In Samson v. Court of
Appeals, et al.,13 we ruled that an accused charged with willful or intentional
falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as
we held in Quizon vs. Justice of the Peace of Bacolor, … but a distinct crime
in itself, designated as a quasi offense in our Penal Code, it may however be
said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that
the greater includes the lesser offense. This is the situation that obtains in
the present case. Appellant was charged with willful falsification but from the
evidence submitted by the parties, the Court of Appeals found that in
effecting the falsification which made possible the cashing of the checks in
question, appellant did not act with criminal intent but merely failed to take
proper and adequate means to assure himself of the identity of the real
claimants as an ordinary prudent man would do. In other words, the
information alleges acts which charge willful falsification but which turned out

to be not willful but negligent. This is a case covered by the rule when there
is a variance between the allegation and proof, and is similar to some of the
cases decided by this Tribunal.
....
The fact that the information does not allege that the falsification was
committed with imprudence is of no moment for here this deficiency appears
supplied by the evidence submitted by appellant himself and the result has
proven beneficial to him. Certainly, having alleged that the falsification has
been willful, it would be incongruous to allege at the same time that it was
committed with imprudence for a charge of criminal intent is incompatible
with the concept of negligence.
In People v. Consigna, et al.,14 we ruled that the afore-stated rationale also
applies to the felony of malversation, that is, that an accused charged with
willful malversation, in an information containing allegations similar to the
present case, can be validly convicted of the same offense of malversation
through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Appellant next claims that he should be acquitted since his conviction was
based on his sworn statement, transcript of stenographic notes from which
the sworn statement was taken and the NBI Report, which are incompetent
evidence. He contends that his sworn statement was taken without the
benefit of counsel, in violation of his constitutional right under Section 12,
Article III of the 1987 Constitution.
Paragraph 1, Section 12, Article III of the 1987 Constitution states that –
Section 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.
The "investigation" under the above-quoted provision refers to a "custodial"
investigation where a suspect has already been taken into police
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 47
custody15 and the investigating officers begin to ask questions to elicit
information and confessions or admissions from the suspect. 16 More
specifically –
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. And, the rule begins to operate
at once as soon as the investigation ceases to be a general inquiry into an
unsolved crime and direction is then aimed upon a particular suspect who
has been taken into custody and to whom the police would then direct
interrogatory question which tend to elicit incriminating statements.17
Succinctly stated, custodial investigation refers to the critical pre-trial stage
when the investigation ceases to be a general inquiry into an unsolved crime
but has begun to focus on a particular person as a suspect. 18 Such a
situation contemplated has been more precisely described thus where –
After a person is arrested and his custodial investigation begins a
confrontation arises which at best may be termed unequal. The detainee is
brought to an army camp or police headquarters and there questioned and
cross-examined not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in a strange and
unfamiliar surrounding, and every person he meets he considers hostile to
him. The investigators are well-trained and seasoned in their work. They
employ all the methods and means that experience and study has taught
them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights. And
even if they were, the intimidating and coercive presence of the officers of
the law in such an atmosphere overwhelms them into silence.... 19
Clearly, therefore, the rights enumerated by the constitutional provision
invoked by accused-appellant are not available before  government
investigators enter the picture.20 Thus we held in one case 21 that admissions
made during the course of an administrative investigation by Philippine
Airlines do not come within the purview of Section 12. The protective mantle
of the constitutional provision also does not extend to admissions or
confessions made to a private individual, 22 or to a verbal admission made to
a radio announcer who was not part of the investigation, 23or even to a mayor
approached as a personal confidante and not in his official capacity. 24

Along the same vein, we held that a videotaped interview showing the
accused unburdening his guilt willingly, openly and publicly in the presence
of newsmen is not covered by the provision although in so ruling, we warned
trial courts to take extreme caution in further admitting similar confessions
because we recognized the distinct possibility that 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.25
Neither does the constitutional provision on custodial investigation extends to
a spontaneous statement, not elicited through questioning by the authorities,
but given in an ordinary manner whereby the accused orally admits having
committed the crime,26 nor to a person undergoing an audit examination
because an audit examiner is not a law enforcement officer. 27
Thus, the flaw in appellant’s argument in this regard becomes immediately
apparent vis-à-vis  the foregoing legal yardsticks, considering that his
statement was taken during the administrative  investigation of NPC’s audit
team28and before  he was taken into custody. As such, the inquest was still a
general inquiry into an unsolved offense at the time and there was, as yet, no
specific suspect.
Much less can appellant claim that he was in police custody because he was
confined at the time at the Philippine Heart Center and he gave this
statement to NPC personnel, not to police authorities. 29 Appellant can hardly
claim that, under the prevailing circumstances at the time, whatever degree
of compulsion may have existed went beyond the borders of the
unobjectionable where impermissible levels of duress would force him into
making false and incriminating declarations against his interest. While he
may have been persuaded into doing so, he cannot feign that he was
intimidated in such a way as to bring his statements within the ambit of the
exclusionary constitutional provision.
The fact that an NBI investigation was being contemporaneously conducted
at the time the sworn statement was taken will not extricate appellant from
his predicament. The essence of the constitutional safeguard is protection
from coercion. The interview where the sworn statement is based was
conducted by NPC personnel for  the NPC’s administrative investigation. Any
investigation conducted by the NBI is a proceeding separate, distinct and
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 48
independent from the NPC inquiry and should not be confused or lumped
together with the latter.
Appellant invokes Galman v. Pamaran30 in insisting that the constitutional
safeguard should have been applied notwithstanding that he was not yet
arrested or under detention at the time. He also invites our attention to the
pronouncements of Fr. Joaquin G. Bernas 31 that "the right to counsel is
available if a person is in custody, even if he is not a suspect; or even if not
yet in custody but he is a suspect."
The contention is tenuous. Although we held in Galman  that the
constitutional protection covers not only confessions but admissions as well,
we qualified the ruling with the statement that what is being eschewed is the
evil of "extorting" a confession from the mouth of the person being
interrogated. As defined, "extortion" is an act or practice of taking or
obtaining anything from a person by illegal use of fear, whether by force,
threats or any undue exercise of power. 32 In the context of obtaining an
admission, "extorting" means "compelling or coercing a confession or
information by any means serving to overcome his power of resistance, or
making the confession or admission involuntary." 33 In this case, we find
nothing on record to support appellant’s claim that his statements were
extorted from him.
Furthermore, while indeed Galman taken together with the 1986
deliberations on what was later to become Section 12 (1) of the 1987
Constitution may lead to the conclusion that the rights are available when the
person is already in custody as a suspect, or if the person is a suspect even
if he is not yet deprived in any significant way of his liberty, Fr.
Bernas34 qualified this statement by saying that "[J]urisprudence under the
1987 Constitution, however, hasconsistently held, following Escobedo, the
stricter view, that the rights begin to be available only when the person
isalready in custody."35
Appellant next advances the argument that even if his sworn statement were
admissible in evidence, the contents thereof may not be sufficient to sustain
a conviction. He contends that although his statement was supposedly
gathered from the transcript of stenographic notes of the conversation
between him and Atty. Bagcal, neither Atty. Bagcal nor the person who
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 49

actually prepared the sworn statement was presented. Therefore, the sworn
statement is hearsay.
The argument is puerile. It bears stressing that the prosecution presented as
witness Atty. Lamberto P. Melencio who saw appellant at the hospital to
show him the prepared statement and to verify from him the truth of its
contents.36 Atty. Melencio testified that he asked appellant to go over the
document before affixing his signature thereto. 37 He also inquired whether or
not appellant was coerced or intimidated by anybody when the statement
was taken.38 Appellant denied  that he was coerced or
intimidated,39 affirmed the contents of the document as a true reflection of his
statements,40 and signed the same.41 It need not be overemphasized that the
sworn statement is a duly notarized document which has in its favor the
presumption of regularity and, thus, it can be contradicted only by clear and
convincing evidence. Without that sort of evidence, the presumption of
regularity, the evidentiary weight conferred upon such public document with
respect to its execution, as well as the statements and the authenticity of the
signatures thereon, stand.42
although his testimony was dispensed with as the parties stipulated on the
existence and due execution of the NBI Investigation report albeit without
admitting the truth of its contents. If at all, the admission of the report’s
existence is an acknowledgment that it is neither spurious nor counterfeit.
All told, given the paucity of substance in the arguments advanced by
appellant to prop up his cause, his appeal must fall.
WHEREFORE, the May 28, 2002 Decision of the Sandiganbayan is
hereby AFFIRMED in all respects.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

In disclaiming the authenticity of his sworn statement, appellant insists that at

the time he signed the document, he was confined in the hospital and
therefore not physically and mentally fit to assess the significance of his
signature. This pretext however collides with the testimony of his own
witness, Dr. Teresita Sadava, who stated that appellant was confined for
three days and, who, when queried whether "ischemic heart disease" had
any emotional or psychological effect, gave the inconclusive reply that it
"may or may not." Moreover, as aptly observed by the Sandiganbayan,
although supposedly violated and repulsed as he was by the alleged falsity
of the affidavit, it is strange that appellant, who is supposedly astute in
business matters as he then occupied the position of Foreign Trader Analyst
of the NPC, nevertheless felt it unnecessary to execute another affidavit
retracting the same after his recovery from illness. Verily, 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. 43

Appellant finally contends that both the NBI Investigation Report and the
transcript of stenographic notes are hearsay for having been made extra-
judicially. The record, however, shows that the prosecution presented the
team leader of the NBI investigators who conducted the investigation,
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 50

G.R. No. 117565. November 18, 1997.*

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 APOLONIO 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.
QUISUMBING, Senior Deputy Executive Secretary of the Office of the
President, and JEANNETTE OBARZAMUDIO, Private Respondent,
respondents.

Administrative Law; Right to Counsel; 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 and
may not be invoked by a respondent in an administrative investigation.—
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. 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.
Same; Same; Department of Justice; While it is true that under the
Administrative Code of 1987, the 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,” conducting criminal investigations is not its sole
function—by its power to “perform such other functions as may be provided
by law,” prosecutors may be called upon to conduct administrative
investigations.—Petitioners’ misconception on the nature of the investigation
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, the 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,” conducting criminal investigations is not its sole function. By its
power to “perform such other functions as may be provided by law,”
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.
Same; Same; Public Officers; 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.—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 respondent’s capacity to represent himself, and no duty rests on such
a body to furnish the person being investigated with counsel. In an
administrative proceeding such as the one that transpired below, a
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 51
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 (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. 202 (otherwise known as the
Administrative Code of 1987). Excerpts from the transcript of stenographic
notes of the hearings attended by Lumiqued 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.
Same; Same; Due Process; The right to counsel is not indispensable to due
process unless required by the Constitution or the law.—The right to counsel
is not indispensable to due process unless required by the Constitution or
the law. In Nera v. Auditor General, 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.”
Same; Due Process; An actual hearing is not always an indispensable
aspect of due process—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.—In administrative proceedings, the essence of due process is
simply the opportunity to explain one’s side. One 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. An actual hearing
is not always an indispensable aspect of due process. 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. Moreover, this constitutional mandate is
deemed satisfied if a person is granted an opportunity to seek
reconsideration of the action or ruling complained of. Lumiqued’s appeal and
his subsequent filing of motions for reconsideration cured whatever
irregularity attended the proceedings conducted by the committee.
Same; Same; Public Officers; Security of Tenure; When the dispute
concerns one’s constitutional ri ght to security of tenure, public office is
deemed analogous to property in a limited sense—hence, the right to due
process could rightfully be invoked.—When the dispute concerns one’s
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. In this case, it has been clearly shown that Lumiqued
did not live up to this constitutional precept.
Same; Evidence; Well-settled 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.—The committee’s 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. 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.
Same; Public Officers; Dishonesty; Dishonesty is a grave offense penalized
by dismissal and under Section 9 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987, the penalty of
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 52
dismissal carries with it “cancellation of eligibility, forfeiture of leave credits
and retirement benefits, and the disqualification for reemployment in the
government service.”—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 carriers with it “cancellation of eligibility, forfeiture of
leave credits and retirement benefits, and the disqualification for
reemployment in the government service.” The instant petition, which is
aimed primarily at the “payment of retirement benefits and other benefits,”
plus back wages from the time of Lumiqued’s dismissal until his demise,
must, therefore, fail.
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 (DAR-CAR) until
President Fidel V. Ramos dismissed him from that position pursuant to
Administrative Order No. 52 dated May 12, 1993. In view of Lumiqued's
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 Obar-Zamudio 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 of P116,000.00. 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 respondent's
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
respondent's execution of an affidavit of desistance. 5
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 53
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 respondent's allegation that he violated COA rules and
regulations in incurring unliquidated 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 asserted 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 Sacred 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 respondent's condition on any reasonable
date after July 17, 1992. It is herein noted that as early as
June 23, 1992, respondent was already being assisted by
counsel.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 54
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, 10finding 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.
Respondent's 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 totaling 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 respondent's 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 respondent's 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 55
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 Lumiqued's
dismissal or removal from office, without prejudice 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
complainant's (herein private respondent's) 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 Drilon's
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
drivers 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 petition 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 Lumiqued's 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 reconsideration of A.O. No.
52, the OP, through 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.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 56
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 . . . 24
As such, the hearing conducted by the investigating committee was
not part of a criminal prosecution. This was even made more
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 57

pronounced when, after finding Lumiqued administratively liable, it complaint must be "informed of his right to the assistance of a counsel of his
hinted at the filing of a criminal case for malversation through choice," 32 is inappropriate. In the first place, this resolution is applicable only
falsification of public documents in its report and recommendation. to cases brought before the Civil Service Commission. 33 Secondly, said
resolution, which is dated January 25, 1994, took effect fifteen days following
Petitioners' misconception on the nature of the investigation 25 conducted its publication in a newspaper of general circulation, 34 much later than the
against Lumiqued appears to have been engendered by the fact that the July 1992 hearings of the investigating committee created by Department
DOJ conducted it. While it is true that under the Administrative Code of 1987, Order No. 145. Thirdly, the same committee was not remiss in the matter of
the DOJ shall "administer the criminal justice system in accordance with the reminding Lumiqued of his right to counsel. Thus, at the July 3, 1992,
accepted processes thereof consisting in the investigation of the crimes, hearing, Lumiqued was repeatedly appraised of his option to secure the
prosecution of offenders and administration of the correctional services of counsel:
system, 26 conducting criminal investigations is not its sole function. By its
power to "perform such other functions as may be provided by RSP EXEVEA:
law," 27 prosecutors may be called upon to conduct administrative
investigations. Accordingly, the investigating committee created by This is an administrative case against
Department Order No. 145 was duty-bound to conduct the administrative Director Lumiqued. Director Lumiqued is
investigation in accordance with the rules therefor. present. The complainant is present, Janet
Obar-Zamudio. Complainant has just been
While investigations conducted by an administrative body may at times be furnished with a copy of the counter-
akin to a criminal proceeding, the fact remains that under existing laws, a affidavit of the respondent. Do you have a
party in an administrative inquiry may or may not be assisted by counsel, counsel, Director?
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 DIR. LUMIQUED:
being investigated with 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 I did not bring anybody, Sir, because when
provisions of Section 32, Article VII of Republic Act No. 2260 29 (otherwise I went to see him, he told me, Sir, that he
known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV (on has already set a hearing, morning and
Discipline) of the Omnibus Rules Implementing Book V of Executive Order afternoon today.
No. 292 30 (otherwise known as the Administrative Code of 1987). Excerpts
from the transcript of stenographic notes of the hearings attended by RSP EXEVEA:
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 So, we will proceed with the hearing even
administrative investigations because such inquiries are conducted merely to without your counsel? You are willing to
determine whether there are facts that merit disciplinary measures against proceed with the hearing even without
erring public officers and employees, with the purpose of maintaining the your counsel?
dignity of government service.
DIR. LUMIQUED:
Furthermore, petitioners' reliance on Resolution No. 94-0521 of the Civil
Service Commission on the Uniform Procedure in the Conduct of Yes, I am confident. . .
Administrative Investigation stating that a respondent in an administrative
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 58

CP BALAJADIA: We will suspend in the meantime that we

are waiting for the supplemental affidavit
You are confident that you will be able to you are going to present to us. Do you
represent yourself? have any request from the panel of
investigators, Director Lumiqued?
DIR. LUMIQUED:
DIRECTOR LUMIQUED:
35
That is my concern.   (Emphasis
supplied) 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
In the course of private respondent's damaging testimony, the investigating is already engaged for a hearing and
committee once again reminded Lumiqued of his need for a counsel. Thus: according to him he is engaged for the
whole month of July.
CP BALAJADIA:
RSP EXEVEA:
Q. (To Director Lumiqued) You really wish
to go through with this even without your We cannot wait . . .
counsel?
CP BALAJADIA:
DIRECTOR LUMIQUED:
Why don't you engage the services of
A. I think so, Sir. another counsel. The charges against you
are quite serious. We are not saying you
CP BALAJADIA: are guilty already. We are just
apprehensive that you will go through this
Let us make it of record that we have investigation without a counsel. We would
been warning you to proceed with the like you to be protected legally in the
assistance of counsel but you said that course of this investigation. Why don't you
you can take care of yourself so we have get the services of another counsel. There
no other alternative but to are plenty here in Baguio . . .
proceed. 36 (Emphasis supplied).
DIRECTOR LUMIQUED:
Thereafter, the following colloquies transpired:
I will try to see, Sir . . .
CP BALAJADIA:
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,
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 59
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 Baños) 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:
. . . 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 one's side. One 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. 43Moreover, this constitutional mandate
is deemed satisfied if a person is granted an opportunity to seek
reconsideration of the action or ruling complained of. 44 Lumiqued's appeal
and his subsequent filing of motions for reconsideration cured whatever
irregularity attended the proceedings conducted by the committee. 45
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 60
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 pronouncement has been enshrined in the 1987
Constitution under Article XI, Section 1, on accountability of public officers,
as follows:
Sec. 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest
lives.
When the dispute concerns one's 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 committee's 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
committee's 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.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 61

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 for reemployment in the
government service." The instant petition, which is aimed primarily at the
"payment of retirement benefits and other benefits," plus back wages from
the time of Lumiqued's 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 No. L-56291. June 27, 1988.*
AFFIRMED. Costs against petitioners.
CRISTOPHER GAMBOA, petitioner, vs. HON. ALFREDO CRUZ, JUDGE
SO ORDERED. of the Court of First Instance of Manila, Br. XXIX, respondent.

Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug Kapunan, Mendoza, Criminal Procedure; Certiorari and prohibition are not the proper remedies
Francisco and Panganiban, JJ., concur. against an order denying a motion to Acquit.—In any event, certiorari and
prohibition are not the proper remedies against an order denying a Motion To
Narvasa, C.J., is on leave. 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 to 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.

Same; Same; An order denying a Motion to Acquit is interlocutory and not a

final order and therefore not appealable.—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, and reiterated in Mill vs. Yatco, 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.
Same; Same; Same; Whether or not petitioner was afforded his rights to
counsel and to due process is a question which he could raise as defense or
objection upon the trial on the merits and if the same fails, he could still raise
them on appeal.—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.
Same; Same; Same; Same; Failure to quash the complaint or information
before pleading, defendant is deemed to have waived all objections which
are grounds for a motion to quash, exception.—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.
Same; Same; Same; Same; Same; Petitioner is deemed to have waived
objections which are grounds for a motion to quash.—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.
Same; Same; Same; Same; Same; Same; Lower Court did not err in denying
petitioner’s Motion to Acquit.—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.
Constitutional Law; Right to Counsel; The right to counsel attaches upon the
start of an investigation.—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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 62
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.
Same; Same; Same; Police line-up is not a part of the custodial inquest.—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.
Same; Same; Same; Same; Accused should be assisted by counsel 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.—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 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.
Same; Due Process; Petitioner was not deprived of this substantive and
constitutional right as he was duly represented by a member of the Bar.—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. The case at bar is far from this situation.
Gamboa vs. Cruz, 162 SCRA 642, 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 63
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. 3To 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 64
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 out-of-
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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 65
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.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 66
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.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 67
Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Griño-
Aquino and Medialdea, JJ., concur.
G.R. No. 127493. December 8, 1999.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLANDO
LABTAN y DAQUIHON (At Large), alias BEBOT, HENRY FELICIANO y
LAGURA and JONELTO LABTAN (At Large), accused. HENRY
FELICIANO y LAGURA, accused-appellant.
Constitutional Law; Custodial Investigation; Extrajudicial Confessions; Words
and Phrases; A person is deemed under custodial investigation where the
police investigation is no longer a general inquiry into an unsolved crime but
has begun to focus on a particular suspect who had been taken into custody
by the police who carry out a process of interrogation that lends itself to elicit
incriminating statements.—We find that accused-appellant Feliciano had
been denied of his right to have a competent and independent counsel when
he was questioned in the Cagayan de Oro City Police Station. SPO1 Alfonso
Cuarez testified that he started questioning Feliciano at 8:00 a.m. of April 22,
1993 regarding his involvement in the killing of jeepney driver Florentino
Bolasito, notwithstanding the fact that he had not been apprised of his right
to counsel. At that point, accused-appellant had been subjected to custodial
investigation without a counsel. In Navallo v. Sandiganbayan, we said that a
person is deemed under custodial investigation where the police
investigation is no longer a general inquiry into an unsolved crime but has
begun to focus on a particular suspect who had been taken into custody by
the police who carry out a process of interrogation that lends itself to elicit
incriminating statements.
Same; Same; Same; Same; Right to Counsel; “Effective and Vigilant
Counsel,” Explained; The right to counsel is a fundamental right and
contemplates not a mere presence of the lawyer beside the accused.—The
right to counsel is a fundamental right and contemplates not a mere

presence of the lawyer beside the accused. In People v. Bacamante, the
term “effective and vigilant counsel” was explained thus: “necessarily and
logically [requires] that the lawyer be present and able to advise and assist
his client from the time the confessant answers the first question asked by
the investigating officer until the signing of the extrajudicial confession.
Moreover, the lawyer should ascertain that the confession is made
voluntarily and that the person under investigation fully understands the
nature and the consequence of his extrajudicial confession in relation to his
constitutional rights. A contrary rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and to be presumed
innocent.”
Same; Same; Same; Right to Counsel; A counsel’s independence is suspect
where he is regularly engaged by the police as counsel de oficio for suspects
who cannot avail the services of counsel.—We also find that Atty. Chavez’s
independence as counsel is suspect—he is regularly engaged by the
Cagayan de Oro City Police as counsel de oficio for suspects who cannot
avail the services of counsel. He even received money from the police as
payment for his services.
Same; Same; Same; Same; Notarial Law; A lawyer who notarizes the sworn
statement of a suspect whom he assists seriously compromises his
independence—by so doing, he vouches for the regularity of the
circumstances surrounding the taking of the sworn statement by the police.
—We also find that Atty. Chavez notarized the sworn statement seriously
compromised his independence. By doing so, he vouched for the regularity
of the circumstances surrounding the taking of the sworn statement by the
police. He cannot serve as counsel of the accused and the police at the
same time. There was a serious conflict of interest on his part.
Same; Same; Same; The stereotyped “advice” appearing in practically all
extrajudicial confessions which are later repudiated has assumed the nature
of “legal form” or mode.—We have examined the three-page sworn
statement allegedly executed by Feliciano and we failed to see any badge of
spontaneity and credibility to it. It shows signs of what we call stereotype
advice to which we have already called the attention of police officers. In
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 68
People v. Jarra, we said: “[T]he stereotyped ‘advice’ appearing in practically
all extrajudicial confessions which are later repudiated has assumed the
nature of ‘legal form’ or mode. Police investigators either automatically type it
together with the curt ‘Opo’ as the answer or ask the accused to sign it or
even copy it in their handwriting. Its tired, punctilious, fixed and artificially
stately style does not create an impression of voluntariness or even
understanding on the part of the accused. The showing of a spontaneous,
free and unconstrained giving up of a right is missing.” People vs. Labtan,
320 SCRA 140, G.R. No. 127493 December 8, 1999 
PUNO, J.:
Accused-appellant Henry Feliciano appeals the decision of the Regional Trial
Court of Cagayan de Oro City, Branch 25 1 convicting him of highway
robbery and robbery with homicide on the basis of a sworn statement which
he repudiated during the trial.
On April 23, 1993, an information 2 was filed against Henry Feliciano,
Orlando Labtan, and Jonelto Labtan charging them with robbery with
homicide committed as follows:
That on or about April 16, 1993, at about 2:30 in the
afternoon, more or less, at Buntong, Camaman-an,
Cagayan de Oro City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring, confederating together and mutually helping one
another, and with grave abuse of confidence, did then and
there wilfully, unlawfully and feloniously and by means of
violence, take, rob and carry away P30.00/cash money to
the damage and prejudice of the offended party (Florentino
Bolasito); that on the occasion of the said robbery and for
the purpose of enabling them (accused) to steal, take and
carry away the P30.00 money, the herein accused, in
pursuance of their conspiracy, did then and there wilfully,
unlawfully and feloniously, and with evident premeditation
and taking advantage of their number and strength and with
intent to kill, accused Orlando Labtan y
Daquihon, alias  Bebot Labtan and Jonelto Labtan,

treacherously attack, assault and use personal violence
upon Florentino Bolasito thereby inflicting upon him the
following injuries: "Shock due to multiple stab wounds
heart", with the use of a (sic) knives/bladed weapon which
accused are conveniently provided, which directly caused
the death of the said Florentino Bolasito.
Contrary to and in violation of Article 299 and 249 of the
Revised Penal Code.
Subsequently, another information 3 dated May 20, 1993 was filed against
Henry Feliciano and Orlando Labtan charging them with highway robbery
committed as follows:
That on March 28, 1993, at more or less 10:30 o'clock in
the evening while inside a motor vehicle in the national
highway at Barangay Agusan up to the road at Camaman-
an, all of Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above- named with
intent to gain and against the will of the owners, by means
of violence against and intimidation of persons, or force
upon things with the use of knives which they were
conveniently provided with, conspiring, confederating
together and mutually helping one another, did then and
there wilfully, unlawfully and feloniously and criminally take,
rob and carry away money or cash amounting to P720.00,
pioneer stereo, booster and twitters owned by and
belonging to Roman S. Mercado, and a Seiko Diver
wristwatch owned by Ismael P. Ebon, all in all amounting to
P10,800,00, against their will, to the damage and prejudice
of the said offended parties in the total sum of P10,800.00
Philippine Currency.
Contrary to and in violation of PD 532.
Only accused Feliciano pleaded not guilty to the two charges. Orlando
Labtan had escaped the Maharlika Rehabilitation and Detention Center in
Carmen, Cagayan de Oro City where he was detained while Jonelto Labtan
has eluded arrest. The two cases were tried together.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 69
The prosecution's case was mainly anchored on the three-page sworn
statement executed by Feliciano, originally in Visayan language, before the
Cagayan de Oro City Police station, viz: 4
Preliminary: You Henry Feliciano y Lagura, I would like to
inform you that you are here in [the] Theft and Robbery
Section of Cagayan de Oro City Police Station to be
investigated regarding an incident wherein a certain driver
whose name is Florentino Bolasito, a resident of Abellanoso
St., of this City (sic). Said driver was killed on April 13,
1993, whose body was found at Tipolohan, Camaman-an of
this City since you knew everything about it.
I would like to inform you that according to our law you have
the following rights:
1. You have the right to remain silent, and not to answer
incriminating questions which will be used as evidence
against you.
2. You have the right to choose an attorney to defend you in
this investigation.
3. That if you can't (sic) get a lawyer, I can give you a
counsel de oficio  to defend you.
Certification
This is to establish the fact that I myself voluntarily
executed this certification and hereby affix my signature
hereunder on the _________________ day [of] April, [1993
in the] City of Cagayan de Oro, Philippines.
Sgd. Henry Feliciano y Lagura
(Affiant)
Assisted by his lawyer:
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 70
Sgd. Pepito A. Chavez
Notary Public
Until Dec. 31, 1993
PTR No. 10843256 1/8/93
Q: Before we (will) proceed [with] this
investigation, did you understand all those
rights I narrated to you?
A: Yes, sir [,] I understand everything.
Q: Will you get a lawyer of your own to
defend you in this investigation?
A: No, sir. I can't (sic) pay the services of
lawyer.
Q: Since you will not get your own lawyer,
will you agree that I'll (sic) give you Atty.
Pepito Chavez as your counsel de oficio in
this investigation?
A: Yes, sir. I agree that Atty. Pepito
Chavez will be my lawyer for the
ascertainment of the truth.
Q: What is your highest educational
attainment?
A: Grade 4 only at Baongca, Bukidnon.
Q: In other words, you know how to read
Visaya?
A: I know[,] sir how to read Visaya
including English but I can't (sic)
understand deep English.
Q: Tell me your name, age, occupation,
residence and other personal
circumstances?
A: I, Henry Feliciano, 25 years old,
married and a resident of Kolambog,
Lapasan of this city and I am [a] jeepney
driver of this city.
Q: Up to this time, are you still driving?
A: No more, sir.
Q: What is then your work at this time?
A: I go [to] work [with] my friends like
Orlando Labtan alias Bebot Labtan who
are residents of Kolambog, Lapasan of
this City.
Q: From what time did you go along with
this [sic] persons?
A: Since the month of February, 1993.
Q: From the time you go (sic) with them,
what have you done, if any?
A: On March 1993, I participated in a hold-
up of a certain driver Mr. Roman
Mercado 5 of Tablan who owned a jeep I
use[d] to drive (before) and we got a car
stereo including the jeep. Then, we
brought the jeep to Buntong, Camaman-
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 71
an and the driver, however, we freed the
driver later.
Q: What else?
A: On March 1993 we hold-up (sic) a
collector of my brother whose name is
Carmen Tan y Feliciano 6 and we were
able to get cash of P2,080.00; [a]nd, there
was also [a] certain jeep, owned by Mr.
Mangano that we carnapped and brought
(it) to Aglayan, Malaybalay, Bukidnon.
Q: With the latest incident, what have you
done?
A: Last April 16, 1993, we held-up a
certain driver of [a] "PU Minica" whose
name is Florentino Bolasito of Abellanosa
St.
Q: Will you tell us how the driver was killed
and who killed them?
A: On April 16, 1993, at 2:30 in the
afternoon, I, Bebot Labtan and Jonelto
Labtan [were] hang[ing] around outside
Ororama Superstore at J.R. Borja St., of
this City, and the three of us went to a
place where most of PU Minica cars were
parked. We were able to board one PU
Minica driven by an old man.
Q: As you boarded the PU Minica where
did you go?
A: We ordered the driver to take us to
Buntong, Camaman-an of this City. When
we arrive[d] thereat, Jonelto told us that he
will visit his girlfriend while Bebot Labtan
alighted, we remained inside the vehicle.
As [the] driver demanded for the fare,
however, we have no money to pay.
Suddenly, I saw Bebot Labtan and Jonelto
Labtan took a knife and stabbed the
driver.
Q: After stabbing the driver, he died, and
so Jonelto Labtan drove the PU towards
Tipolohon and we leave (sic) behind the
body of the driver, instead of me getting
out from the car (sic), Jonelto did not stop
the car (sic), so we proceeded towards
Aluba Subd. and we left the PU Minica
there.
A: After you left the PU Minica at Aluba,
where did you go?
Q: I went home at Balolong of this City,
and I do not [know] where my companions
proceeded.
Q: Who then stabbed the driver?
A: The one who stabbed [the driver] [,]
sir[,] was Jonelto Labtan and Bebot
Labtan.
Q: Did (sic) you able to get some money
from the driver?
A: Jonelto Labtan was able to get P30.00,
and we brought (sic) a (sic) coconut wine
at Kolambog, Lapasan.

Q: With respect to this (sic) two (2) knives
which were taken from you and Bebot
Labtan, what can you say about this (sic)
knives?
A: These two (2) knives, sir, the sharp
knife with a knife case is owned by Bebot
Labtan, this double blade is owned by
Jonelto Labtan.
Q: Are these [the] knives which were used
by Bebot Labtan and Jonelto Labtan in
stabbing the PU Minica driver if you know?
A: Yes, sir. Bebot Labtan used this knife
with a knife case, but this knife which is
double bladed was not used, the other
kitchen knife like a fan knife which was left
inside the PU was used by Jonelto in
stabbing.
Q: When (was then) were you arrested by
the police authorities of the Theft and
Robbery Section?
A: On April 20, 1993, while we, I and
Bebot Labtan were at Tambo, Macasandig
of this City waiting for the truck of Mr.
Aberrastori to ride to bring us to Valencia,
Bukidnon, we were apprehended by the
policemen near the store of Mrs. Carmen
Tan. It was then that time where Bebot
Labtan was shot at his feet and the two
knives were confiscated.
Q: I have no other questions, do you have
anything to say.
A: No more. sir.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 72
This is to certify that I have read the foregoing statements
consisting of three (3) pages of which I have initiated and
signed in the presence of Atty. Pepito Chavez, Attorney de
Officio, and I state that it is true and correct to the best of
my knowledge and belief.
Sgd. Henry Feliciano y Lagura
(Affiant). 7
In addition, the prosecution presented the testimony of Ismael Ebon that on
March 28, 1993, at 10:30 p.m., he was driving along Bugo Highway, when
two (2) men boarded his jeepney. He identified the men as Henry Feliciano
and Orlando Labtan. Suddenly, Bebot Labtan pointed a double bladed knife
on the right side of his neck. Feliciano then took the steering wheel and
proceeded to Bolonsori. When they were near the house of a certain
Policeman Lapis, Feliciano stopped the jeep. The two then divested him of
his watch, P700.00 cash, car stereo, two (2) tweeters and one (1) booster.
They threatened to kill him should he report to the police. However, when the
two left, he proceeded to the Puerto Police Station and reported the hold-up.
He then went to the garage and told Roman Mercado, the owner of the
jeepney, that he was robbed. That night, the two of them reported the
robbery to the Cagayan de Oro City Police Station. Ebon also stated that he
knew Feliciano because the latter previously worked as driver of Roman
Mercado. 8
When the defense presented its case, only accused Henry Feliciano testified
for his behalf. His defense consisted of an alibi and a repudiation of his
sworn statement. He told the court that on March 28, 1993, when Ismael
Ebon was held-up, he was in Maasin, Baungon, Bukidnon, his birthplace. He
did not deny Ebon's claim that they were acquainted for he used to work as
driver of Roman Mercado. However, when his driver's license expired on
January 20, 1993, he went home to Bukidnon. On April 20, 1993, he went
back to Cagayan de Oro City and stayed at the residence of his sister,
Carmen Tan, who lives in Macasandig, Cagayan de Oro City. At 4:00 p.m. of
the same day, Carmen asked him to buy snacks at a nearby store. While
buying the snacks, he heard a shot and when he looked around, he saw a
man lying on the ground. Two men in civilian clothes poked their guns at
him. One of them asked him whether he was a companion of the man lying
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 73

on the ground. He said no. The two men brought him to the police station. value of the P700.00 cash, stereo, booster, and twitter and
The man lying on the ground was brought to the hospital. At the police to indemnify Ismael Ebon the sum of P2,500.00, the value
station, the two men asked him to confess whether he was a companion of of the Seiko Wrist watch divested from him and to pay the
the person who was shot. He said no. They asked him whether he was one cost.
of those who robbed Ismael Ebon. Again, he said no. He was questioned for
about an hour during which he was hit "at the right and left breast, at the right SO ORDERED. 11
and left ribs, and at the left side of [his] face." Afterwards, he was locked up
in jail. In the morning of the following day, he was investigated and mauled
for two hours. Again, he was asked whether Orlando Labtan was his Hence, this appeal where accused-appellant assigns the following errors
companion. He insisted that he was not Labtan's companion for he does not committed by the trial court:
even know him. After the investigation, a policeman approached him and
brought a piece of paper for him to sign. He asked whether it was possible I
for him to read the contents. The policeman answered, "No need, just sign
so that we can finish it." They then started to maul him. He was forced to ON THE CHARGE OF ROBBERY WITH HOMICIDE, THE
sign the paper. At around 4:00 o'clock in the afternoon of April 22, 1993, he COURT A QUO ERRED IN ADMITTING IN EVIDENCE,
was brought to the office of Atty. Pepito Chavez. He was told to sit down THE TAINTED EXTRA-JUDICIAL CONFESSION OF THE
while Atty. Chavez signed the papers. He did not know what was happening. ACCUSED EXECUTED IN THE ABSENCE OF AN
Atty. Chavez did not even talk to him before signing the document. He was EFFECTIVE AND VIGILANT COUNSEL.
then brought back to jail. 9
II
Finding the sworn statement executed by Feliciano credible, the trial court
convicted him and imposed the following penalties: 10 ON THE CHARGE OF HIGHWAY ROBBERY, THE
COURT A QUO ERRED IN BELIEVING THE
WHEREFORE, premises considered, this court hereby COMPLAINANT DRIVER WHO, IT TURNED OUT, FROM
finds accused Henry Feliciano guilty beyond reasonable THE POLICE BLOTTER, SAID THAT THE
doubt as principal by direct participation in the crime of PERPETRATORS WERE INITIALLY UNIDENTIFIED
robbery with homicide and hereby sentences the accused PERSONS THEN LATER IDENTIFIED ACCUSED
to reclusion perpetua and to indemnify the offended party FELICIANO WHOM HE KNEW VERY WELL AS A
the sum of P50,000.00 and to pay the offended party the FELLOW DRIVER.
sum of P35,000.00 representing funeral expenses and to
pay the cost. III

This court hereby finds also the accused Henry Feliciano
guilty beyond reasonable doubt of the crime of highway
robbery committed on March 28, 1993 and sentences the
accused to an indeterminate penalty of twelve (12) years
of prision mayor  as the minimum term to fourteen (14)
years, eight (8) months of reclusion temporal  in its
minimum period as the maximum term and to indemnify
Roman S. Mercado the sum of P8,000.00, representing the
THE COURT A QUO ERRED IN FINDING THE ACCUSED
GUILTY BEYOND REASONABLE DOUBT OF THE
CRIMES OF ROBBERY WITH HOMICIDE AND HIGHWAY
ROBBERY.
The appeal is meritorious.

Under Article III, Section 12 of the 1987 Constitution, the rights of persons
under custodial investigation are provided as follows:
(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 against him.
In People v.  Macam  12, the rational for the guarantee, was explained in this
wise —
Historically, the counsel guarantee was intended to assure
the assistance of counsel at the trial, inasmuch as the
accused "was confronted with both the intricacies of the law
and the advocacy of the public prosecutor." However, as
the result of the changes in the patterns of police
investigation, today's accused confronts both expert
adversaries and the judicial system well before his trial
begins (U.S. v. Ash, 413 U.S. 300, 37 L Ed 2d 619, 93 S Ct
2568 [1973]). It is therefore appropriate to extend the
counsel guarantee to critical stages of prosecution even
before the trial. The law enforcement machinery at present
involves critical confrontations of the accused by the
prosecution at pre-trial proceedings "where the result might
well settle the accused's fate and reduce the trial itself to a
mere formality."
Thus, in People v. Gamboa 13, we stated that:
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 74
[T]he 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. 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 inocuous 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.
We find that accused-appellant Feliciano had been denied of his right to
have a competent and independent counsel when he was questioned in the
Cagayan de Oro City Police Station. SPO1 Alfonso Cuarez testified that he
started questioning Feliciano at 8:00 a.m. of April 22, 1993 regarding his
involvement in the killing of jeepney driver Florentino Bolasito,
notwithstanding the fact that he had not been apprised of his right to counsel.
On cross-examination:
Atty. Carlo Mejia
Q: What [time] did you report to your office
on April 22, 1993?
SPO1 Alfonso Cuarez
A: I reported at eight o'clock in the
morning.
xxx xxx xxx.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 75
Q: What time was Henry Feliciano brought
to your office on April 22, 1993? What time
did you start to investigate Henry Feliciano
on April 22, 1993?
A: In the morning, at 8:00 o'clock, when I
reported for work.
Q: You already investigated the accused
in this case at 8:00 o'clock in the morning
on April 22, 1993?
A: Yes, sir.
Q: Of course, when you investigated the
accused in the morning, he had no
counsel yet?
A: I just interviewed him.
Q: We will just use the word interview.
Was he assisted by counsel when you
interviewed him in the morning?
A: None.
Q: What was the subject matter of the
interview in the morning of April 22, 1993
to the accused Henry Feliciano? (sic)
A: About the PU driver that was killed.
Q: Of course, he related to you everything
that transpired regarding that alleged
death of a PU driver?
A: Yes, sir.
Q: So that in the morning of April 22, 1993
you already had an idea, more or less,
who committed or who killed the PU driver
by the family name Bolasito, am I correct?
A: Yes, sir.
Q: All that time in the morning of April 22,
1993 the accused was not assisted by a
legal counsel.
A: Not yet.
Q: What time did you decide to bring the
accused to the office of Atty. Chavez on
April 22, 1993?
A: About 10:00 o'clock in the morning of
April 22, 1993.
Q: Are you trying to impress us that in the
morning of April 22, 1993 you also brought
the accused Henry Feliciano to the office
of Atty. Chavez?
A: At 8:00 in the morning, I just
interviewed him and at 10:00 o'clock in the
morning I brought him to the office of Atty.
Chavez.
Q: Are you trying to impress [upon] us that
you brought accused Henry Feliciano to
the office of Atty. Chavez at 10:00 o'clock
in the morning and in the afternoon also
you brought him to the office of Atty.
Chavez?
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 76

A: No more. In the afternoon Atty. Chavez Q: Atty. Chavez, you stated that you are a
was the one who came to our office practicing lawyer in Cagayan de Oro City
because that was what we agreed in the as well as in Misamis Oriental?
morning. 14
Atty. Pepito Chavez
At that point, accused-appellant had been subjected to custodial
investigation without a counsel. In Navallo v.Sandiganbayan 15, we said that A: Yes, sir.
a person is deemed under custodial investigation where the police
investigation is no longer a general inquiry into an unsolved crime but has
began to focus on a particular suspect who had been taken into custody by Q: Do you remember having assisted in
the police who carry out a process of interrogation that lends itself to elicit the investigation of one Henry Feliciano on
incriminating statements. April 22, 1993 at about 3:30 in the
afternoon when the said Henry Feliciano
was (sic) investigated whose written
When SPO1 Cuarez investigated accused-appellant Feliciano, the latter was statement was taken by SPO1 Cuarez in
already a suspect in the killing of jeepney driver Bolasito as shown by the the presence of Cabigon?
joint affidavit of SPO4 Johny Salcedo and SPO1 Florencio Bagaipo who
were the ones who arrested Feliciano. In their affidavit dated April 21, 1993,
the two police officers stated: A: Yes, sir.

in the investigation conducted to (sic) Henry
Feliciano, he admitted and confessed to us for (sic)
his involvement of (sic) the death of the PU driver
together with his companion Bebot Labtan, and the
same was identified by many victims of robbery
hold-up in this City. And also during the
investigation, Henry Feliciano admitted to us
regarding their confiscated bladed knife as the very
weapon used in the stabbing of the PU minica
driver.
The prosecution tried to establish that Atty. Pepito Chavez provided effective
and independent counselling to accused-appellant Feliciano which cured the
initial lack of counsel. However, this is belied by the very testimony of Atty.
Chavez showing he performed his duty in a lackadaisical fashion:
Assistant City Prosecutor Nicolas C. Caballero, Jr.
Q: Where was this statement taken?
A: At the office of the Theft and Robbery
Section at Operation Kahusay ug Kalinaw.
Q: How did you happen to assist Henry
Feliciano in the taking of his written
statement?
A: Because SPO3 Cuarez approached me
in my office and requested me to assist
Henry Feliciano in the taking of his
testimony.
Q: What time was that when SPO1
Alfonso Cuarez came to your office and
requested you to assist Henry Feliciano?
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 77
A: If I can remember right, Police Officer
Cuarez came to my office about three
o'clock in the afternoon.
Q: Where is your office in Cagayan de Oro
City?
A: Located at Pabayo-Gomez.
Q: What did you do after Alfonso Cuarez
came to your office and requested you to
assist in the taking of the written statement
or sworn statement of Henry Feliciano?
A: I told him I will follow later because at
that time when he came to my office I was
working on some paper works.
Q: When you said him, you were referring
to Alfonso Cuarez?
A: Yes, sir.
Q: What happened after you told him you
will follow later?
A: At about 3:25, if I remember right, I was
able to come to Operation Kahusay ug
Kalinaw particularly the office of the Theft
and Robbery Section.
Q: When you arrived at the Operation
Kahusay ug Kalinaw, who were there?
A: Police Officer Cabigon and Cuarez.
Q: Who else were there? What about
Henry Feliciano?
A: Yes, I have also seen Henry Feliciano.
Q: If you see again Henry Feliciano, will
you be able to identify him?
A: Yes, sir.
Q: Look around if he is present in the
courtroom?
A: (Witness pointing to a person with a
green t-shirt and when asked his name he
answered Henry Feliciano.)
Q: What did you do after you arrived at the
office of the Theft and Robbery Section
and saw Henry Feliciano, Cabigon and
Cuarez?
A: I started my investigation or
confrontation with Henry Feliciano
informing him, appraising him of his
constitutional right to counsel, that he has
a right to remain silent and appraise him if
it is his desire that I be his lawyer because
I told him if he has no desire that I will be
his lawyer, then he can look for another.
Q: What else did you inform him or asked
him aside from what you testified already?
A: I told him did you come to confess or
testify because of fact that the police
offered you some consideration or money
where you promised of release.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 78
Q: And what was the reaction of the said
Henry Feliciano?
A: As far as I can remember, Henry
Feliciano told me that he is forced to
testify only to tell the truth.
Q: While you were conferring with Henry
Feliciano, where was Eleuterio Cabigon
and Alfonso Cuarez?
A: Alfonso Cuarez was there listening to
us.
Q: How far away from you?
A: About one armslength (sic).
Q: What about Eleuterio Cabigon?
A: About three meters near.
Q: Did Alfonso Cuarez participate in your
discussions or conference with Henry
Feliciano?
A: Yes. He sometimes clarified some
answers propounded by Henry Feliciano
in the course of the investigation.
Q: For example, what answer?
A: As far as I can remember, the question
was reduced into writing.
Q: Before that, I am referring to the point
where you had a conference with Henry
Feliciano before the start of the
investigation; where was Alfonso Cuarez?
A: He was listening to us.
Q: Was there a participation of Alfonso
Cuarez during your discussion?
A: Yes, he was the one typing the
questions asked by me and the answers
propounded by Henry Feliciano.
Q: And these questions were the ones you
testified a while ago.
A: Yes, sir.
Q: After that, what happened after you
asked these questions and you got the
answer from him? What did Alfonso
Cuarez do to him?
A: Alfonso Cuarez told him that is it really
his desire . . . we are giving you Atty.
Chavez as your counsel. Are you willing?
And he said yes.
Q: What was the answer of Henry
Feliciano?
A: He answered in the affirmative.
Q: Exactly, how did he answer?
A: Yes, I am very much willing.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 79
Q: After that, when did the investigation
start?
A: About 3:30 in the afternoon.
Q: After Henry Feliciano, as you said,
answered in the affirmative, what
happened then?
A: Before I started the formal investigation
to [sic] him, I reiterated that question about
his desire to take me as his counsel, and
he again answered in the affirmative.
Q: After that, for the second time, what
happened?
A: Then I started his investigation.
Q: Were you the one who investigated
him?
A: At first, it was Alfonso Cuarez.
Sometimes, I interrupted in the
investigation.
Q: How did Alfonso Cuarez start the
investigation?
A: In the appraisal of Henry Feliciano of
his constitutional rights.
Q: After that, what happened?
A: As far as I can remember, he
proceeded with the incident where Henry
Feliciano was involved in a series of
robberies.
Q: While these questions were being
asked of Henry Feliciano, where were
you?
A: I was there.
Q: How many meters away from Henry
Feliciano?
A: About one arm's length, I sat behind
him.
Q: While these questions were asked of
Henry Feliciano, as you testified a series
of robberies were committed, what did you
do? What was your reaction?
A: At first, I interrupted with the answer of
Henry Feliciano thinking that it was not the
truth or it might be that the testimony will
be counted against him in the court. So, I
whispered to him if it is the truth, and he
insisted it is the truth.
Q: When you whispered to him, you are
referring to Henry Feliciano?
A: Yes, sir.
Q: Atty. Chavez, after the termination of
the investigation which was taken by
SPO1 Alfonso Cuarez in your presence of
SPO4 Eleuterio Cabigon on one Henry
Feliciano, what happened after that?

A: I examined the question and answer
taken, then I read it to Henry Feliciano,
appraised him, translated to him, clarified
to him after he testified.
Q: What was the reaction of Henry
Feliciano?
A: He willingly listened to my explanation
and clarification about what he confessed.
Q: And after listening to your explanation,
what happened?
A: I required him to sign. Before finally
requiring to sign, if you will change your
mind about what you confessed, you still
have the right to.
Q: What did Henry Feliciano say?
A: It is the truth; and after being clarified,
he willingly signed the confession.
Q: After Henry Feliciano signed the same
written statement of (sic) him, what did
you do?
A: After that, Alfonso Cuarez, Henry
Feliciano and me (sic) went to my office to
have that notarized, so that when I came
to the Operation Kahusay ug Kalinaw for
the taking of the confession of Henry
Feliciano, I was not bringing with me my
bill and other paraphernalias (sic).
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 80
Q: When Henry Feliciano signed the
written statement, where were you,
Cabigon and Alfonso Cuarez?
A: The same location at that time when
Henry Feliciano was taken his confession
(sic). 16
The right to counsel is a fundamental right and contemplates not a mere
presence of the lawyer beside the accused. In People v. Bacamante 17, the
term "effective and vigilant counsel" was explained thus:
necessarily and logically [requires] that the lawyer
be present and able to advise and assist his client
from the time the confessant answers the first
question asked by the investigating officer until the
signing of the extrajudicial confession. Moreover,
the lawyer should ascertain that the confession is
made voluntarily and that the person under
investigation fully understands the nature and the
consequence of his extrajudicial confession in
relation to his constitutional rights. A contrary rule
would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and
to be presumed innocent.
In People v.  dela Cruz 18, an effective counsel was characterized as:
one who can be made to act in protection of his [accused's]
rights, and not by merely going through the motions of
providing him with anyone who possesses a law degree.
Again, about the only matter that bears out the presence of
such counsel at that stage of custodial interrogation are the
signatures which she affixed on the affidavit. Withal, a
cursory reading of the confession itself and SPO1
Atanacio's version of the manner in which he conducted the
interrogation yields no evidence or indication pointing to her
having explained to the appellant his rights under the

Constitution. Indeed, from our earliest jurisprudence, the
law vouchsafes to the accused the right to an effective
counsel, one who can be made to act in protection of his
rights, and not by merely going through the motions of
providing him with anyone who possesses a law degree.
Atty. Chavez did not provide the kind of counselling required by the
Constitution. He did not explain to accused-appellant the consequences of
his action — that the sworn statement can be used against him and that it is
possible that he could be found guilty and sent to jail.
We also find that Atty. Chavez's independence as counsel is suspect — he
is regularly engaged by the Cagayan de Oro City Police as counsel de
officio  for suspects who cannot avail the services of counsel. He even
received money from the police as payment for his services:
On cross-examination:
Atty. Carlo Mejia
Q: Mr. Alfonso Cuarez, how long have you
known Atty. Chavez?
A: I know him for a long time ago (sic).
Q: How many times have you utilized Atty.
Chavez to assist prisoners under the
custody of the Cagayan de Oro Police
Department?
A: As far as I can remember, three times
already.
Q: Is Atty. Chavez being paid by your
office to assist detained prisoners?
A: Sometimes we pay him P400.00 but if
we have none, he will assist for free.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 81
Q: So Atty. Chavez is paid by the
Cagayan de Oro Police Station?
A: It is not the Cagayan de Oro Police who
paid but it is only my initiative to give him.
Q: It is only on your own personal initiative
to pay Atty. Chavez?
A: Yes.
Q: And, of course, Atty. Chavez, if you
have the money, also accepts the money
you pay to him?
A: Yes, sir.
In People v.  Deniega 19, expounding on the constitutional requirement that
the lawyer provided be "competent and independent", we stated that:
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
investigation should be as far as 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 v.  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.
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.
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."
In People v. Sahagun 20, we stated that the constitutional requirement that a
lawyer should be independent was not complied with when a lawyer who just
happened to be following-up a case at the NBI was asked to counsel the
accused:
[T]he counselling given by Atty. Dizon to Villareal was not
sufficiently protective of Villareal's rights as an accused as
contemplated by the Constitution. To start with, Atty. Dizon
is not really known to Villareal. He was requested to act as
counsel because he happened to be at the NBI following-up
a client's case. Given that circumstance, it cannot be
expected that Atty. Dizon would give an advice to Villareal
that would offend the agent conducting the investigation.
Thus, it appears that Atty. Dizon did no more than recite to
Villareal his constitutional rights. He made no independent
effort to determine whether Villareal's confessions were free
and voluntary. . . .. He did not inquire from Villareal how he
was treated in the last 24-hours. He did not seek any of
Villareal's relatives or friends to find out if he has any
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 82
defense which Villareal was not free to disclose due to his
confinement.
Atty. Dizon's lack of vigilance as a counsel is likewise
underscored by the fact that he himself testified that
Villareal gave his confession under the impression that he
was only a witness and not an accused in the case. This
revelation should have jolted Atty. Dizon and should have
driven him to exert extra efforts to find out whether Villareal
was tricked in making his confession. Again, he did not take
an extra effort.
In People v.  Januario 21, the main evidence relied upon for the conviction of
appellants was their own extrajudicial confessions which admittedly were
extracted and signed in the presence and with the assistance of a lawyer
who was applying for work in the NBI. We held that —
(s)uch counsel cannot in any wise be considered
"independent" because he cannot be expected to work
against the interest of a police agency he was hoping to
join, as a few months later he in fact was admitted into its
work force. For this violation of their constitutional right to
independent counsel, appellants deserve acquittal. After the
exclusion of their tainted confessions, no sufficient and
credible evidence remains in the Court's records to overturn
another constitutional right: the right to be presumed
innocent of any crime until the contrary is proved beyond
reasonable doubt.
Perfunctorily informing a confessant of his constitutional
rights, asking him if he wants to avail of the services of
counsel and telling him that he could ask for counsel if he
so desires or that one could be provided him at his request,
are simply not in compliance with the constitutional
mandate. In this case, appellant Canape was merely told of
his constitutional rights and posthaste, asked whether he
was willing to confess. His affirmative answer may not, by
any means, be interpreted as waiver of his right to counsel
of his own choice.

We also find the fact that Atty. Chavez notarized the sworn statement
seriously compromised his independence. By doing so, he vouched for the
regularity of the circumstances surrounding the taking of the sworn
statement by the police. He cannot serve as counsel of the accused and the
police at the same time. There was a serious conflict of interest on his part. 22
In People v. de Jesus 23, we stated that an independent counsel cannot be a
special counsel, public is private prosecutor, counsel of the police, or a
municipal attorney whose interest is admittedly adverse to the accused.
We have examined the three-page sworn statement allegedly executed by
Feliciano and we failed to see any badge of spontaneity and credibility to it. It
shows signs of what we call stereotype advice to which we have already
called the attention of police officers. In People v.  Jarra 24, we said:
[T]he stereotyped "advice" appearing in practically all
extrajudicial confessions which are later repudiated has
assumed the nature of "legal form" or mode. Police
investigators either automatically type it together with the
curt "Opo" as the answer or ask the accused to sign it or
even copy it in their handwriting. Its tired, punctilious, fixed
and artificially stately style does not create an impression of
voluntariness or even understanding on the part of the
accused. The showing of a spontaneous, free and
unconstrained giving up of a right is missing.
Since April 27, 1992 when Republic Act No. 7438 25 was enacted, the
constitutional rights of persons under custodial investigation have been
further operationalized:
Sec. 2. Rights of Persons Arrested, Detained, or Under
Custodial Investigation; Duties of Public Officers.
(a) Any person arrested, detained or under custodial
investigation shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting under
his order or in his place, who arrests, detains or
investigates any person for the commission of an offense
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 83
shall inform the latter, in a language known to and
understood by him, of his rights to remain silent and to have
competent and independent counsel, preferably of his own
choice, who shall at all times be allowed to confer privately
with the person arrested, detained or under custodial
investigation. If such person cannot afford the services of
his own counsel, he must be provided with a competent and
independent counsel by the investigating officer.
(c) The custodial investigation report shall be reduced to
writing by the investigating officer, provided that before
such report is signed, or thumbmarked if the person
arrested does not know how to read and write, it shall be
read and adequately explained to him by his counsel or by
the assisting counsel provided by the investigating officer in
the language or dialect known to such arrested or detained
person, otherwise, such investigation report shall be null
and void and of no effect whatsoever.
(d) Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in writing
and signed by such person in the presence of his counsel
or in the latter's absence, upon a valid waiver, and in the
presence of any of the parents, older brothers and sisters,
his spouses, the municipal mayor, the municipal judge,
district school supervisor, or priest or minister of the gospel
as chosen by him; otherwise, such extrajudicial confession
shall be inadmissible as evidence in any proceeding.
(e) Any waiver by a person arrested or detained under the
provisions of Article 125 of the Revised Penal Code, or
under custodial investigation, shall be in writing and signed
by the person in the presence of his counsel; otherwise
such waiver shall be null and void and of no effect.
(f) Any person arrested or detained or under custodial
investigation shall be allowed visits by or conferences with
any member of his immediate family, or any medical doctor
or priest or religious minister chosen by him or by any
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 84

member of his immediate family or by his counsel, or by
any national non-governmental organization duly accredited
by the Commission on Human Rights or by any
international non-governmental organization duly accredited
by the Office of the President. The person's immediate
family shall include his or her spouse, fiance or fiancee,
parent or child, brother or sister, grandparent or grandchild,
uncle or aunt, nephew or niece, and guardian or ward.
Consequently, it is disappointing to see how up to now some police officers
still sidestep the constitutional mandate, the consequence of which is all too
familiar — the inadmissibility of the statement, confession, or admission
taken. 26
In People v.  dela Cruz 27, we stated that "a confession made in an
atmosphere characterized by deficiencies in informing the accused of all
rights to which he is entitled would be rendered valueless and inadmissible,
perforated, as it is, by non-compliance with the procedural and substantive
safeguards to which an accused is entitled under the Bill of Rights and as
now further implemented and ramified by statutory law."
the suspect was desembarked (sic) at Camaman-an, this
City at 10:30 p.m., this date. 28
Ismael Ebon and accused-appellant Feliciano are acquainted. There is no
reason for Ebon to withhold the identity of the perpetrator except for the fact
that he was not certain of it. 29 Consequently, there is no evidence pointing to
Feliciano as one of those who held-up Ebon.
IN VIEW WHEREOF, the decision of the trial court is SET ASIDE. Accused-
appellant Henry Feliciano is ACQUITTED on both charges of robbery with
homicide and highway robbery due to lack of evidence to sustain a
conviction. The Director of the New Bilibid Prisons (NBP) is directed to
inform this Court compliance with the Decision within ten (10) days from its
receipt. No costs.
SO ORDERED.
Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.

On the charge of robbery with homicide, the only evidence presented by the
prosecution was the sworn statement which we have found inadmissible.
Thus, we are forced to absolve accused-appellant of this charge. With
respect to the charge of highway robbery, the prosecution presented the
testimony of Ismael Ebon. However, Ebon failed to identify Feliciano as the
perpetrator when he reported to the police immediately after the incident:

CASE NO. 2143 dated 0030 H 29 March 93. Ismael Ibon y

Petalcorin, 27 m (sic), of Reyes Bugo, CDO, driver of PUJ
Bugo Liner bearing Plate No. KBJ-748, and Christopher
Impoc y Amba, 16, s (sic), of Zone 4, Tablon, this City,
jointly came to this OKK-CIS and reported that they were
allegedly victimized by two unidentified robbers who was
(sic) armed with a (sic) knives and taken from the
possession of the above driver his cash money P700.00
and took our stereo Pioneer Brand with Booster and twitter.
The incident was (sic) occurred at Agusan, this City, and

G.R. No. 133188. July 23, 2004.*
PEOPLE OF THE PHILIPPINES, appellee, vs. ELIZAR TOMAQUIN,
appellant.
Criminal Law; Criminal Procedure; Custodial Investigations; Extra-judicial
Confessions; Evidence; The rule is that when there is presented in evidence
an exhibit written in any language other than the official language (Filipino or
English), if there is an appeal, that exhibit should be translated by the official
interpreter of the court, or a translation should be agreed upon by the parties,
and both the original and the translation sent to the Supreme Court; Where
the accused does not interpose any objection to the fact that there is no
official translation of his extrajudicial confession in the dialect, and the parties
and the judicial authorities or personnel concerned appear to be familiar with
or knowledgeable of such language in which the document is written, such
confession may appropriately be considered by the trial court as evidence for
the prosecution.—The rule is that when there is presented in evidence an
exhibit written in any language other than the official language (Filipino or
English), if there is an appeal, that exhibit should be translated by the official
interpreter of the court, or a translation should be agreed upon by the parties,
and both original and translation sent to this court. In this case, there is no
official translation of appellant’s extrajudicial confession in the Filipino or
English language. If the Court were to strictly follow the rule, then appellant’s
extrajudicial confession should not have been admitted by the trial court as
evidence for the prosecution. Nevertheless, considering that appellant did
not interpose any objection thereto, and the parties and the judicial
authorities or personnel concerned appeared to be familiar with or
knowledgeable of Cebuano in which the document was written, such
extrajudicial confession was appropriately considered by the trial court as
evidence for the prosecution.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 85
Same; Same; Same; Same; Right to Counsel; Barangay Captains; A
barangay captain cannot be considered as an independent counsel for
purposes of assisting one undergoing custodial investigation.—The words
“competent and independent counsel” in the constitutional provision is not an
empty rhetoric. It stresses the need to accord the accused, under the
uniquely stressful conditions of a custodial investigation, an informed
judgment on the choices explained to him by a diligent and capable lawyer.
As heretofore stated, Atty. Fortunato Parawan, at that time, was the
barangay captain of Barangay Lorega, Cebu City. Under the 1991 Local
Government Code, a barangay captain performs the following duties and
functions: (a) The punong barangay, as the chief executive of the barangay
government, shall exercise such powers and perform such duties and
functions, as provided by this Code and other laws; (b) For efficient, effective
and economical governance, the purpose of which is the general welfare of
the barangay and its inhabitants pursuant to Section 16 of this Code, the
punong barangay shall: (1) Enforce all laws and ordinances which are
applicable within the barangay; . . . (3) Maintain public order in the barangay
and, in pursuance thereof, assist the city or municipal mayor and the
sanggunian members in the performance of their duties and functions; . . .
Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the
law and ordinances in his barangay and ensure peace and order at all times.
In fact, as barangay captain, Atty. Parawan is deemed a person in authority
under Article 152 of the Revised Penal Code, to wit: ART. 152. Persons in
authority and agents of persons in authority.—Who shall be deemed as
such.—In applying the provisions of the preceding and other articles of this
Code, any person directly vested with jurisdiction, whether as an individual or
as a member of some court or government corporation, board, or
commission, shall be deemed a person in authority. A barrio captain and a
barangay chairman shall also be deemed a person in authority. On these
bases, it is not legally possible to consider Atty. Parawan as an independent
counsel of appellant.
Same; Same; Same; Same; Same; Same; What the Constitution requires is
the presence of an independent and competent counsel, one who will
effectively undertake his client’s defense without any intervening conflict of
interest.—Similarly in this case, considering that Atty. Parawan’s role as a

barangay captain, was a peacekeeping officer of his barangay and therefore
in direct conflict with the role of providing competent legal assistance to
appellant who was accused of committing a crime in his jurisdiction, Atty.
Parawan could not be considered as an independent counsel of appellant,
when the latter executed his extrajudicial confession. What the Constitution
requires is the presence of an independent and competent counsel, one who
will effectively undertake his client’s defense without any intervening conflict
of interest.
Same; Same; Same; Same; Same; An “effective and vigilant counsel”
necessarily and logically requires that the lawyer be present and able to
advise his client from the time the confessant answers the first question
asked by the investigating officer until the signing of the extrajudicial
confession; The lawyer should also ascertain that the confession is made
voluntarily and that the person under investigation fully understands the
nature and the consequence of his extrajudicial confession in relation to his
constitutional rights.—Neither does Atty. Parawan qualify as a competent
counsel, i.e., an effective and vigilant counsel. An “effective and vigilant
counsel” necessarily and logically requires that the lawyer be present and
able to advise and assist his client from the time the confessant answers the
first question asked by the investigating officer until the signing of the
extrajudicial confession. As held in People vs. Velarde: . . . The competent
and independent lawyer so engaged should be present 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. Moreover, the lawyer should ascertain that the
confession is made voluntarily and that the person under investigation fully
understands the nature and the consequence of his extrajudicial confession
in relation to his constitutional rights. A contrary rule would undoubtedly be
antagonistic to the constitutional rights to remain silent, to counsel and to be
presumed innocent.
Same; Same; Same; Same; Same; A lawyer who already suspected the
accused as having committed the crime is not an effective and vigilant
counsel—the Court cannot imagine how the counsel could have effectively
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 86
safeguarded the rights of the suspect during the investigation when he
himself entertained the suspicion that the latter is guilty of the crime charged.
—That Atty. Parawan is not an effective and vigilant counsel is bolstered by
his own testimony that he already suspected appellant as having committed
the crime when the latter was brought to his house by the barangay tanods,
viz.: * * * The Court cannot imagine how Atty. Parawan could have effectively
safeguarded appellant’s rights as an accused during the investigation when
he himself entertained the suspicion that appellant is guilty of the crime
charged, and naturally, he would want appellant to admit having committed
it.
Same; Same; Same; Same; Same; The facts that a suspect chose a
particular lawyer during the custodial investigation does not estop him from
complaining about the latter’s failure to safeguard his rights.—As provided in
Section 12, Article III of the 1987 Constitution, “(A)ny person under
investigation for the commission of an offense shall have the right . . . to
have competent and independent counsel preferably of his own choice.
Ideally, the lawyer called to be present during such investigations should be
as far as reasonably possible, the choice of the individual undergoing
questioning, but the word “preferably” does not convey the message that the
choice of a lawyer by a person under investigation is exclusive as to
preclude other equally competent and independent attorneys from handling
his defense. What is imperative is that the counsel should be competent and
independent. That appellant chose Atty. Parawan does not estop appellant
from complaining about the latter’s failure to safeguard his rights.
Same; Same; Same; Same; Same; An extrajudicial confession executed by
a suspect assisted by a counsel who failed to meet the exacting standards of
an independent and competent counsel is deemed an uncounseled
confession and, therefore, inadmissible in evidence.—Clearly, Atty. Parawan
failed to meet the exacting standards of an independent and competent
counsel as required by the Constitution. Thus, the extrajudicial confession
executed by appellant, even if gospel truth, is deemed an uncounselled
confession and therefore, inadmissible in evidence.

Same; Evidence; Circumstantial Evidence; Requisites.—Under Section 4,
Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to
convict if (a) there is more than one circumstance; (b) the facts from which
the inferences are derived are proven; and (c) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.
As jurisprudentially formulated, a judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances proven
constitute an unbroken chain which leads to one fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as the
guilty person, i.e., the circumstances proven must be consistent with each
other, consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with any other hypothesis except that of guilty. The
circumstantial evidence in this case does not constitute an unbroken chain
leading to one fair and reasonable conclusion that appellant is the guilty
person.
Same; Same; Same; Where it was a civilian who obtained and received the
evidence, the possibility that the integrity of these articles could have been
compromised cannot be ignored; Sloppy handling of evidence renders the
chain of custody of pieces of evidence dubious, and damaging to the
prosecution’s case, such as when the marking made on the shoes were
washed off because at one time, the shoes fell in the canal located in front of
the police station and they had to clean and wash the shoes.—Prosecution
witness Armando Zabate testified that the pair of black shoes and tres
cantos were given to a certain Rey for safekeeping. These were later turned
over to a Policeman Tariao of the Ramos Police Station. Zabate, however,
did not identify the person who turned over the objects to the police. There
was no showing who turned over those articles to the police and Rey was
not presented to identify if these were the same pair of shoes and tres
cantos found in Jaquelyn’s house and turned over to the police. Policeman
Tariao was not called to the witness stand so as to confirm if those articles
were the same evidence turned over to him and later presented in court.
Ordinarily, it would not be indispensable for the prosecution to allege and
prove every single fact of the case. But in this case, the pieces of evidence
are crucial to the prosecution’s case. Also, the fact that a civilian obtained
and received the evidence, the possibility that the integrity of these articles
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 87
could have been compromised cannot be ignored. The Court even noted that
during his direct examination, SPO2 Monilar was confused as to whether the
pair of shoes presented in court was the same ones that were turned over to
the police. It turned out that the marking he made on the shoes were washed
off because at one time, the shoes fell in the canal located in front of the
police station and they had to clean and wash the shoes! Such sloppy
handling renders the chain of custody of those pieces of evidence dubious,
and damaging to the prosecution’s case.
Same; Same; Witnesses; The doctrine of long standing that the testimony of
a lone witness, if credible and positive, is sufficient to convict an accused
applies only to eyewitnesses.—The prosecution’s evidence that is perceived
to be conclusive of appellant’s guilt is mainly the testimony of Rico
Magdasal. Such testimony, however, is uncorroborated. The rule is that the
testimony of one witness is sufficient to sustain a conviction, if such
testimony positively establishes the guilt of the accused beyond reasonable
doubt. Moreover, the doctrine of long standing that the testimony of a lone
witness, if credible and positive, is sufficient to convict an accused applies
only to eyewitnesses. Thus, an uncorroborated circumstantial evidence is
certainly not sufficient for conviction when the evidence itself is in serious
doubt. Rico’s lone testimony is not sufficient to establish appellant’s guilt
beyond reasonable doubt.
Same; Same; Presumption of Innocence; Even though the accused’s
defense is weak, conviction must come from the strength of the
prosecution’s evidence and not from the weakness of the defense.—
Appellant enjoys in his favor the presumption of innocence until the contrary
is proven. Proof of the guilt of the accused should not be tainted with
ambiguity. Although appellant’s defense is weak, conviction must come from
the strength of the prosecution’s evidence and not from the weakness of the
defense. In this case, the prosecution’s evidence is not strong enough to
justify a finding of guilt beyond reasonable doubt. Acquittal, therefore, is
inevitable. People vs. Tomaquin, 435 SCRA 23, G.R. No. 133188 July 23,
2004
DECISION

AUSTRIA-MARTINEZ, J.:
Once again, the Court is confronted with the issue of the admissibility of an
extrajudicial confession. This appeal particularly involves the question of
whether a barangay captain who is a lawyer can be considered an
independent counsel within the purview of Section 12, Article III of the 1987
Constitution.
On December 17, 1996, the Cebu City Prosecutor filed an Information
charging appellant with Murder, committed as follows:
That on or about the 15th day of December, 1996, about 2:30 a.m.,
in the City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, armed with a bladed instrument
(tres cantos), with deliberate intent, with intent to kill, with treachery
and evident premeditation, did then and there suddenly and
unexpectedly attack, assault and use personal violence upon one
Jaquelyn Luchavez Tatoy, by stabbing her with said bladed
instrument, hitting her on the vital parts of her body, thereby inflicting
upon her physical injuries causing:
"CARDIO RESPIRATORY ARREST DUE TO SHOCK &
HEMORRHAGE SEC. TO STAB WOUNDS TO THE
TRUNK (POSTERIOR ASPECT)"
as a consequence of which, Jaquelyn Luchavez Tatoy died almost
instantaneously.
CONTRARY TO LAW.1
On arraignment, appellant pleaded "not guilty" to the charge, 2 and trial
thereafter ensued.
There were no eyewitnesses to the incident, and the prosecution’s evidence,
aside from appellant’s extrajudicial confession, was mainly circumstantial.
As presented by the prosecution, the facts are as follows:
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 88
At around 11:00 in the evening of December 14, 1996, appellant Elizar
Tomaquin @ Hapon, together with Rico and Romy Magdasal, Noel Labay,
and a certain Cardo, were drinking "Red Horse" beer in Itom Yuta, Lorega,
Cebu City. Appellant left the group at around 1:00 in the morning,
saying he has a headache. At the behest of Rico Magdasal, the group
transferred to Lorega proper. A few minutes later, they heard Rustica Isogan
shouting for help as the latter heard Jaquelyn 3 Tatoy, her goddaughter,
asking for help. Isogan got two flashlights and they proceeded upstairs to
Jaquelyn’s house. The first to go up was a certain Moises, followed by the
brothers Rico and Romy Magdasal, while Noel and Cardo remained
downstairs. Rico noticed that the hinge and the "walling" of the main door
were damaged, as if it were kicked open, and only the light in the kitchen
was turned on. Rico also saw a black shoe on the stairs and another in
the sala, which he claims belong to appellant. When they went into the
kitchen, they saw Jaquelyn bloodied and sprawled face-up on the floor, with
her head inside a plastic container. Jaquelyn was brought to the hospital,
where she expired. A neighbor later found a tres cantos with blood on it by
the stairs, which Rico also identified to be appellant’s. 4 A certain Rey got the
black pair of shoes and tres cantos for safekeeping which were later turned
over to Policeman Tariao of the Homicide Section, Ramos Police Station.
The person who turned over the objects to Policeman Tariao was not
identified.5
At around 12:00 in the afternoon of December 15, 1996, barangay tanods
Julius Yosores and Armando Zabate of Lorega, Cebu City, searched for
appellant because of the information given by Rico Magdasal that the shoes
and tres cantos  found in the scene of the crime belonged to appellant.
Together with Rico, they went to the house of Wilson Magdasal where
appellant was temporarily staying, and found him sleeping. Appellant was
wearing a bloodstained maong shorts. The tanods told appellant that he is a
suspect in the killing of Jaquelyn, and brought him to the house
of barangay captain Atty. Fortunato Parawan. There, appellant was asked
about the shirt he was wearing and he told them that it was in Wilson
Magdasal’s house. It was Edgar Magdasal who found his shirt, wet and
bloodstained, among the soiled clothes. Atty. Parawan then told his tanods
to take appellant to the police station.6
In the morning of the next day, December 16, 1996, appellant was
investigated by SPO2 Mario Monilar of the Homicide Section, Ramos Police

Station in Cebu City. After being apprised of his constitutional rights,
appellant told SPO2 Monilar that he was willing to confess and asked for
Atty. Parawan, the barangay captain, to assist him. SPO2 Monilar called
Atty. Parawan but the latter told him that he will be available in the afternoon.
When Atty. Parawan arrived at 2:00 in the afternoon, he conferred with
appellant for around fifteen minutes. Atty. Parawan then called SPO2 Monilar
and told him that appellant was ready to give his statement. 7 Appellant’s
extrajudicial confession, which was taken down completely in the Cebuano
dialect,8 reads:
Pasiuna: Mr. ELIZAR TOMAQUIN, pahibaloon ko ikaw nga ubos sa
atong batakang balaod (Constitution) aduna kay katungod nga
pahibaloon sa imong mga katungod, sama sa imong katungod sa
pagpakahilum, ingon man duna kay katungod sa
pagdamgop/pagpilig sa abogado o manlalaban aron motabang
kanimo niining maong imbestighasyon nga may kalabutan sa
kamatayon ni Jaqueline Tatoy niadtong mga alas 2:30 sa
kaadlawon kapin kongkulang niadtong petsa 15 sa bulan sa
Disyembra 1996, didto sa Brgy Lorega proper, Siyudad sa Sugbo.
Kong ugaling dili ka maka-abot pagbayad o pagpangitago abogado
aron motabang kanimo karon, ako isip negrepresenttar sa Estado
mohatag akong abogado kanimo. Nasabtan ba kini nimo?
Tubag: OO, nasabtan ka ang akong katungod?
Pangutana: Pahabloon ko usab ikaw nga sumala usab sa atong
Batakang Balaod, anfg tanan nga imong isulti karon dinhi,
mahimong magamit ebedensya pabor o batok kanimo sa bisan
asaing husgado sa atong nasud. Nasabtan be usab kini nimo?
Tubag: OO, nasabtan ko usab kanang taan.
Pangutana: Tinuod ba gayod nga nasabtan pag-ayo nimo anf mao
nimong mga katungod ug anadam ka ba nga moperma karon dinhi
timailhan sa imong tina-aw nga nga pagsabut? ingon man andam ka
ba sa pagsulti sa matuod walay lain kon kili ang matuod lamang
gayud?
Tubag: O
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 89
Tubag: Oo, andam ako nga mpemar Sir ug ania karon dinhi ai Atty
Parawan ang among Brgy Captain nga maoy akong giisip nga
abogado nga akong pinili nga maoy motabang kanako karon. Aron
sa pagmatuod, ako kining pirmahan ning ika petsa 16 sa bulan sa
Disyembre 1996.
...
Pangutana: Sunlion ko, andama bas a pagsulti sa matuod Elizar
Tomaquin kon dili ang matuod lamang gayud? Ingon man andam ka
ba nga modawat sa resulta o linugdangan niini?
Tubag: Oo, andam gyud ako.
Pangutana: Palihog isulti ang imong ngalan inong man ang tanan
nga circumstacia o rmay kalambigitan sa imong pagkatawo, sa
imong grado, imong trabaho, imong pinuy-anan ug uban pa?
Tubag: Ako si Elizar Tomaquin kinsa nagdala sa bansagon o
apelyedo sa akong mama sanglit dili man kasado and akong mama
ug papa. Ang apelyedo sa akong papa, Cabagui ug and akon angga
Hapon. Ako 19 anyos ang panuigon, ulitawo ug kasamtangan nga
nagpuyo sa Brgy Lorega proper duol sa kapilaya San Roque apan
ako lumad nga taga Bo. Tunga, Moalboal, Cebu diin didto ano
nakatungha sa grade six.
Pangutana: Niadtong kaadlawon sa petsa 15 sa bulan sa
Disyembre 1996, diin ka man?
Tubag: Sa sinugdanan nianang mga ala una kapin kon kulang
kauba ko sa pag-inom si Rico Magdasal didito sa Brgy Lorega
Proper ug taodtaod niadto nilakaw ako libot sa sitio Itom Tuta ug
dayon nakong saka sa balay nila ni Jaqueline Tatoy sa Brgy Lorega
nianang pagka mga alas 2:20 sa maong petsa/kadlawon agii sa
aberto nga bentana sa akong tuyo sa pagkawat sa ilang colored nga
TV.

Pangutana: Nganong nakahiabwo ka man na duna silay TV nga
colored?
Tubag: Suweto man ko kay permi ko magtan-awan sa ilang colored
TV.
Pangutana: Niadtong niagi ka sa ilang bentana aron pagkawat sa
ilang TV, diin ka man punta deretso.
Tubag: Deretso ako sa may lamesa sa ilang sala diin didto gibutang
ilang TV.
Pangutana: Nakuha ba gayod nimo anf maong TV?
Tubag: Wala, kay sa akong pag-alsa sa among TV nisyagit man si
Jaqueline Tatoy nga naghidga sa ilang may terrace ug nidagan siya
padulong sa kusina nila ug diha-diha akong siyang ginsunod,
gilayog ug gidunggab makadaghan pinaagi sa akong tres kantps
nga hinagiban (Gidtudo ni Eliza rang Tres Kantos nga nakit-an didto
sa patyang lawas nga Jaqueline Tatoy).
Pangutana: Kapila nimo dunggaba ug diin maigo si Jaqueline
Totay?
Tubag: Dili na ko nakahinumdom, ingon man dili sba ko
makahinumdom kon diin to siya maigo. Basta manadaghan to nako
siya dunggaba ginamit ko ang akong Tres kantos.
Pangutana: Gawas nga imo to siyang gidunggab, wala ba nimo
pahimudsi and iyang pagkapbabye o wala ka bay plano sa pag rape
kaniya niadtong higayona?
Tubag: Wala gyud to nako siya pahimudsi og wala gyud koy tuyo sa
pag rape niya. Ang ako ra gyud nga tuyo mao ra gyud and
pagkawat sa ilang TV apan kay nisiyagit man siyang nakaila man
kayo siya nako, nahadlok kong mahibaw-an sa ako untang
pagkawat sa ilang TV, hinungdan nga ako siyang gilayog ug
gidunggab makadaghan.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 90
Pangutana: Nganog nakahibawo or nakaila ka man nga si Jaqueline
Tatoy tong naisiyagit ug imong gidunggab?
Tubag: Duna ma hayag nga suga sa elektresidad sa ilang may
kusina.
Pangutana: Kaila ba nimong daan si Jaqueline Tatoy?
Tubag: Oo, Sir ka saw ala pa ang among hitabo permi man kong
nagtan-awan sa ilang TV.
Pangutana: Human nim dunggaba si Jaqueline Tatoy unsa may
sunod nimonh gibuhat?
Tubag: Dihang sa akong pagtoo nga patay na siya, ako naidagan
agi sa pultahan nga akong gisikaran dayon kanaog subay sa
hagdan didto nabiyaan nako ang akong sapatos.
Pangutana: Diin ka man paduiong dagan?
Tubag: Didto ako padulong sa akong gipuya-an sa ilang Wilson
Magdasal sa maong Brgy.
Pangutana: Unya unsa may sunod nimonh gibuhat og nahibaw-an?
Tubag: Niadtong hapon sa petsa 15 sa bulan sa Disyembre 1996,
didtoy mga Brgy Tanods sa balay ni Wilson Magdasal diin ila akong
gipangutaan tali sa maong hitabo og igo lan ako nitudlo sa akong
white Slave shirt nga akong gihumulan ug tubig sa planggana sa
tumong nga makuha ang mansa sa dugo nga pinisik sa akong
paggdunggab patay ni Jaqueline Tatoy.
Pangutana: Ngano ug unsa may diay kalabutan niadtong maong
slaveless white shirt nimo?
Tubag: Mao na ang akong gisul-ob dihang akog kawaton unta ang
TV nila ni Jaqueline ug sa iyang pagsiyagit ako siyang gidunggab-

dunggab patay. (Elizar Yomaquin postivo nga nitudlo ug niangkon
sa maong whitel sleve less shirt)
Pangutana: Kinign nia karon dinhi nga sapatos itom nga nakuha
didto so hagdan sa balay nila ni Jaqueline Tatoy human siya nakit-i
nga patay, unsa may imong ikasulti niini?
Tubag: Mao kana ang akong sapatos nga nabiyaan didto sa ilang
hagdan human sa hitabo ug gain sa akong pagdagan akong
napatiran kadtong ilang container.
Pangutana: Sa pagkakaron, wala na akoy ipangutana kanimo. Ikay
aduna ka pa bay ikasul ti o bakwion ba hinoon sa mao nimong
gipamahayag nga naglangkob sa duha ka pahina lakip niining
maong pahina?
Tubag: Wala na akoy ikadugang pagsulti ni bakwion ba hinnon. Nao
kana ang tanan.
Pangutana: Andam ka ba pagperme niini sa pagmatuod nga wlay
tawo nga nagpugos, naghulga, nagsaad ug gnate o nag hadlok ba
hinoon kon dili sa imong kaugalingon nga kabubut-on lamang.
Tubag: Oo, andam ako pageram. Aron matuoron kining tanan kini
akong permaahn ning petsa 16 sa Diusyembre 1996, Siyudad
Sugbo, Pilipinas.9
On the witness stand, appellant did not deny that he had a drinking spree
with Rico Magdasal and three other persons. His version of the incident is
that it was Rico who committed the crime and not him. Appellant testified that
Rico asked his help in stealing the television set from the Tatoy’s residence.
When Jacquelyn saw them, she ran towards the kitchen but she did not
reach it as Rico had stabbed her on the back with the tres cantos. Appellant
claims that it was Rico who owns the tres cantos, as well as the pair of
shoes, left inside Tatoy’s house. Afraid of what happened, appellant went
home to Wilson Magdasal’s house and slept there. He was awakened the
next morning by barangay tanod Julius Yosores who kicked him. Yosores
also boxed and poked a gun at him. Appellant claims that Rico and Edgar
Magdasal maltreated him in the presence of barangay captain Atty.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 91
Fortunato Parawan when he was brought to the latter’s house. He was made
to admit committing the crime because Rico has a family while he is single.10
Appellant also repudiated his extrajudicial confession, saying that Atty.
Parawan merely asked him to sign a blank sheet of paper and in exchange,
Atty. Parawan promised to assist and help him with his expenses. 11
After trial, the Regional Trial Court of Cebu City (Branch 18) (RTC for brevity)
rendered its decision on October 24, 1997, convicting appellant of the crime
of Murder, to wit:
WHEREFORE, in view of all the foregoing considerations, accused
Elizar Tomaquin is found guilty beyond reasonable doubt of the
crime of Murder and is hereby imposed the penalty of RECLUSION
PERPERTUA, with the accessory penalties of the law; to indemnify
the heirs of Jaquelyn Tatoy in the sum of P50,000.00 and to pay the
costs. The accused is, however, credited in full during the whole
period of his detention provided he will signify in writing that he will
abide by all the rules and regulations of the penitentiary.
SO ORDERED.12
Hence, this appeal.
In his Brief, appellant raises the following Assignment of Errors:
1. THE TRIAL COURT ERRED WHEN SHE (SIC) CONVICTED
ACCUSED-APPELLANT BASED ON HIS UNCOUNSELLED
CONFESSION;
2. THE TRIAL COURT LIKEWISE ERRED WHEN SHE (SIC) GAVE
FULL CREDENCE AND FULL FAITH ON THE TESTIMONY OF
THE PROSECUTION WITNESSES;13
Appellant’s extrajudicial confession was taken and transcribed entirely in the
Cebuano dialect. Rule 132, Section 33 of the Revised Rules on Evidence
provides:

Sec. 33. Documentary evidence in an unofficial language.--
Documents written in an unofficial language shall not be admitted as
evidence, unless accompanied with a translation into English or
Filipino. To avoid interruption of proceedings, parties or their
attorneys are directed to have such translation prepared before trial.
The rule is that when there is presented in evidence an exhibit written in any
language other than the official language (Filipino or English), if there is an
appeal, that exhibit should be translated by the official interpreter of the
court, or a translation should be agreed upon by the parties, and both
original and translation sent to this court. 14 In this case, there is no official
translation of appellant’s extrajudicial confession in the Filipino or English
language. If the Court were to strictly follow the rule, then appellant’s
extrajudicial confession should not have been admitted by the trial court as
evidence for the prosecution.
Nevertheless, considering that appellant did not interpose any objection
thereto, and the parties and the judicial authorities or personnel concerned
appeared to be familiar with or knowledgeable of Cebuano in which the
document was written,15 such extrajudicial confession was appropriately
considered by the trial court as evidence for the prosecution.
As stated at the outset, the crucial issue in this case is whether or not the
extrajudicial confession executed by appellant, with the assistance of Atty.
Fortunato Parawan, is admissible in evidence against him. There is no need
at this point to secure an official translation of the confession to English.
Section 12, Article III of the 1987 Constitution 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.
The words "competent and independent counsel" in the constitutional
provision is not an empty rhetoric. It stresses the need to accord the
accused, under the uniquely stressful conditions of a custodial investigation,
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 92
an informed judgment on the choices explained to him by a diligent and
capable lawyer.16
As heretofore stated, Atty. Fortunato Parawan, at that time, was
the barangay captain of Barangay Lorega, Cebu City. Under the 1991 Local
Government Code, a barangay captain performs the following duties and
functions:
(a) The punong barangay, as the chief executive of the barangay
government, shall exercise such powers and perform such duties
and functions, as provided by this Code and other laws.
(b) For efficient, effective and economical governance, the purpose
of which is the general welfare of the barangay and its inhabitants
pursuant to Section 16 of this Code, the punong barangay shall:
(1) Enforce all laws and ordinances which are applicable
within the barangay;
...
(3) Maintain public order in the barangay and, in pursuance
thereof, assist the city or municipal mayor and the
sanggunian members in the performance of their duties and
functions; . . .17
Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the
law and ordinances in his barangayand ensure peace and order at all times.
In fact, as barangay captain, Atty. Parawan is deemed a person in authority
under Article 152 of the Revised Penal Code, to wit:
ART. 152. Persons in authority and agents of persons in authority.
– Who shall be deemed as such. – In applying the provisions of the
preceding and other articles of this Code, any person directly vested
with jurisdiction, whether as an individual or as a member of some
court or government corporation, board, or commission, shall be

deemed a person in authority. A barrio captain and a barangay
chairman shall also be deemed a person in authority.
On these bases, it is not legally possible to consider Atty. Parawan as an
independent counsel of appellant.
18 
In People vs. Culala, the Court reiterated the rule that a municipal attorney
cannot be an independent counsel because as a 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, and it was seriously
doubted whether he can effectively undertake the defense of the accused
without running into conflict of interests. Thus, the Court held that he is no
better than a fiscal or a prosecutor who cannot represent the accused during
custodial investigations.19
This is reiterated in People vs. Taliman,20 and People vs. Velarde,21 where we
further ruled that a municipal mayor cannot likewise be an independent
counsel as required by the Constitution.
Similarly in this case, considering that Atty. Parawan’s role as
a barangay captain, was a peacekeeping officer of his barangay and
therefore in direct conflict with the role of providing competent legal
assistance to appellant who was accused of committing a crime in his
jurisdiction, Atty. Parawan could not be considered as an independent
counsel of appellant, when the latter executed his extrajudicial confession.
What the Constitution requires is the presence of an independent and
competent counsel, one who will effectively undertake his client’s defense
without any intervening conflict of interest.22
Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective
and vigilant counsel. An "effective and vigilant counsel" necessarily and
logically requires that the lawyer be present and able to advise and assist his
client from the time the confessant answers the first question asked by the
investigating officer until the signing of the extrajudicial confession. As held
in People vs. Velarde:23
. . . The competent and independent lawyer so engaged should be
present at all stages of the interview, counseling or advising caution
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 93
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.24
Moreover, the lawyer should ascertain that the confession is made
voluntarily and that the person under investigation fully understands the
nature and the consequence of his extrajudicial confession in relation to his
constitutional rights. A contrary rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and to be presumed
innocent.25
The assistance rendered by Atty. Parawan to appellant cannot be fittingly
described as effective and vigilant. As testified by Atty. Parawan,
hereinbelow quoted verbatim, this was what transpired when he went to the
Ramos police station to assist appellant during the investigation:
Q What happened when you arrived at the Ramos Police Station at
around 2:00 o’clock in the afternoon of December 16, 1996?
A I go (sic) to the room where Policeman Monilar and the accused
and had a conversation with the accused.
Q What transpired during that conversation with the accused.
A I asked him. Are you going to get me as your lawyer?
Q And may we know what did he answer?
A Yes, Cap. Okay Cap.
Q When you said "Cap" what did he mean by that word "Cap."
A Being a Barangay Captain.
Q After the accused told you that you were his counsel of choice.
What did you do next if any?

A I informed Elizar Tomaquin that do you know what will be the
implication of your admission, you will be imprisoned.
Q After you asked him whether he knew of the implication of his
confession that could be … because of that confession. What was
his reaction?
A Yes Cap. I know. And then I told him as follows: "Because of this
confession you will be imprisoned."
Q And what did he say after you told him again that if he would
execute that affidavit of confession he would surely be imprisoned?
A No I even continue that "why did he do that?"
Q And what did he answer?
A He answered to me that he was drunk at that time.
Q And so what transpired next?
A So I told him are you willing now to give your confession, then
policeman Monilar went inside the room and we had that
investigation.
Q Now how was the investigation of the accused done?
A It was made in a question and answer form.
Q And in what language were the questions framed?
A In the vernacular, vesaya.
Q What did you do during the question and answer form of
investigation?
A I just observed them.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 94
Q But did you stay there until the whole taking of the confession was
over?
A Yes I was there in the presence of two persons coming from my
Barangay.
...
Q When you arrived and saw Mr. Monilar with the accused as an
Attorney did you immediately inquire what had happened before you
arrived like; Did you start the investigation? did you inquire from that
from Mr. Monilar?
A He was already preparing this top portion here.
INTERPRETER:
Q Witness pointing to the upper portion of the certification up to the
signature to that portion above the names typewritten thereon.
...
Q And that means to say that when he prepared this from the top
most portion to that portion immediately right before the typewritten
name Elizar Tomaquin and Atty. Fortunato Parawan you were not
around. Correct?
A I was not around but we have already a conversation earlier with
Monilar.26
Records also show that appellant was presented to SPO2 Monilar in the
morning of December 16, 1996. When appellant intimated that he was willing
to confess and requested the presence of Atty. Parawan, SPO2 Monilar
called up Atty. Parawan and informed him of appellant’s decision. Atty.
Parawan arrived at the Ramos Police Station only at 2:00 in the
afternoon.27 By the time Atty. Parawan arrived, the investigation had already
started and SPO2 Monilar had already asked and elicited information from
appellant. Worse, Atty. Parawan merely "observed" during the entire

investigation and failed to advise or explain to appellant the questions being
propounded by SPO2 Monilar. He did not even bother to ask appellant if the
extrajudicial confession he was about to execute was being voluntarily given.
Moreover, that Atty. Parawan is not an effective and vigilant counsel is
bolstered by his own testimony that he already suspected appellant as
having committed the crime when the latter was brought to his house by
the barangay tanods, viz.:
Q Being an attorney naturally your first question to your arresting
tanods was where was he arrested and how was he arrested and
what is the reason why he was arrested. Correct?
A Yes.
...
Q You are telling this Court now Atty. Parawan that before the
Barangay Tanods could explain to you the circumstances of his
arrest you already started to ask questions like; Why did you have
blood in your pants. Where is your t-shirt you wore. Where did you
get that information since you were not in the house of Jaqueline
Tatoy when she was killed?
A It was like this. I heard that the victim suffered multiple stab
wounds. So when I saw blood stains with all probability it might
come from the victim. It was conclusion something like when I saw
that t-shirt stained with blood.
Q So you mean to this Court that you already reached the
conclusion of mine (sic) that Elizar Tomaquin one of your
constituents in the Barangay was already on your conclusion in
mine (sic) the killer of Jacquilyn Tatoy before your tanods turned it
over to the police for investigation. Is that what you are telling Atty.
Parawan?
A It is somewhat like that. That is why I ordered my tanod to bring
him to the Homicide.28
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 95
The Court cannot imagine how Atty. Parawan could have effectively
safeguarded appellant’s rights as an accused during the investigation when
he himself entertained the suspicion that appellant is guilty of the crime
charged, and naturally, he would want appellant to admit having committed
it.
It was posited that appellant cannot challenge Atty. Parawan’s qualification
as a competent and independent counsel because he was his choice.
As provided in Section 12, Article III of the 1987 Constitution, "(A)ny person
under investigation for the commission of an offense shall have the right …
to have competent and independent counsel preferably of his own choice.
Ideally, the lawyer called to be present during such investigations should be
as far as reasonably possible, the choice of the individual undergoing
questioning, but the word "preferably" does not convey the message that the
choice of a lawyer by a person under investigation is exclusive as to
preclude other equally competent and independent attorneys from handling
his defense.29 What is imperative is that the counsel should be competent
and independent. That appellant chose Atty. Parawan does not estop
appellant from complaining about the latter’s failure to safeguard his rights.
It appears that appellant chose Atty. Parawan because he was
the barangay captain of Brgy. Lorega where appellant resides, and
apparently, appellant trusts Atty. Parawan to protect his rights. The latter,
however, fell short in tending to the trust reposed on him. Appellant did not
finish Grade 1 and does not know how to read and write. 30As between him
and Atty.
Parawan who presumably knows the intricacies of the law and appellant’s
predicament, Atty. Parawan should have known better and exercised his
sound judgment before conceding to appellant’s choice. But it did not occur
to him to inhibit himself from acting as appellant’s counsel and instead, he
even let appellant go through the investigation and execute the extrajudicial
confession knowing fully well that he was biased as regards appellant’s
innocence. Quoted verbatim, Atty. Parawan testified thus:
Q Atty. Parawan comparing yourself to the accused who is a
graduate of Batchelor (sic) of Law compared to your constituent who
is jobless, illiterate [and] of low intelligence. The question is this: It

did not occur to your mine (sic) to inhibit yourself despite the request
by telling the accused as barangay Captain there could be a conflict
of interest and bias that I would not be in (sic) effective counsel or
assistance to you. Did it not occur toy our mine (sic) or not?
A It did not occur to my nime (sic).
...
Q But as experienced attorney you know very well that when you
assist a suspect in the police station and the circumstances he was
arrested the best assistance a lawyer could give is would be to tell
the accused to remain silent. Would you agree?
...
A It did not occur to my mine (sic) that time.31
Clearly, Atty. Parawan failed to meet the exacting standards of
an independent  and competent  counsel as required by the Constitution.
Thus, the extrajudicial confession executed by appellant, even if gospel truth,
is deemed an uncounselled confession and therefore, inadmissible in
evidence.
In this regard, it may not be amiss to repeat the declaration of the Court
in People vs. Deniega,32 stressing the role of the courts in ascertaining that
extrajudicial confessions meet the exacting standards of the Constitution:
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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 96
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."
Without appellant’s extrajudicial confession, the prosecution’s case now
teeters precariously on circumstantial evidence, namely:
(1) Rico Magdasal’s testimony that:
(a) appellant left their drinking session at 1:00 in the
morning of December 16, 1996;
(b) the tres cantos  and pair of shoes found inside
Jaquelyn’s residence belongs to appellant; and
(c) appellant was wearing a pair of maong shorts and
white sando shirt on the night of the crime, which blood-
stained shirt was found among the soiled clothes in Wilson
Magdasal’s house;
(2) Medical Technologist Jude Daniel Mendoza’s testimony that the
blood stains on appellant’s sando shirt and the tres cantos was of
human origin.33
These circumstances, however, are not sufficient to demonstrate positively
and convincingly that it was appellant who killed Jaquelyn.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence
would be sufficient to convict if (a) there is more than one circumstance; (b)
the facts from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. 34 As jurisprudentially formulated, a judgment of
conviction based on circumstantial evidence can be upheld only if the
circumstances proven constitute an unbroken chain which leads to one fair

and reasonable conclusion pointing to the accused, to the exclusion of all
others, as the guilty person, i.e., the circumstances proven must be
consistent with each other, consistent with the hypothesis that the accused is
guilty, and at the same time inconsistent with any other hypothesis except
that of guilty.35
The circumstantial evidence in this case does not constitute an unbroken
chain leading to one fair and reasonable conclusion that appellant is the
guilty person.
For one, appellant’s act of leaving the drinking session at 1:00 in the morning
does not establish appellant’s whereabouts at the time the crime was
committed. There is nothing in the testimony of Rico Magdasal and the other
prosecution witnesses that will show if appellant indeed went to Jaquelyn’s
house after he left the group. No one saw him enter or leave her residence. If
at all, what was proved is that appellant was found by the barangay
tanodssleeping at home in the afternoon of the same day.
Added to that is the prosecution’s failure to establish the chain of custody of
these valuable pieces of evidence.
Prosecution witness Armando Zabate testified that the pair of black shoes
and tres cantos were given to a certain Rey for safekeeping. These were
later turned over to a Policeman Tariao of the Ramos Police Station. Zabate,
however, did not identify the person who turned over the objects to the
police.36 There was no showing who turned over those articles to the police
and Rey was not presented to identify if these were the same pair of shoes
and tres cantos found in Jaquelyn’s house and turned over to the police.
Policeman Tariao was not called to the witness stand so as to confirm if
those articles were the same evidence turned over to him and later
presented in court. Ordinarily, it would not be indispensable for the
prosecution to allege and prove every single fact of the case. But in this
case, the pieces of evidence are crucial to the prosecution’s case. Also, the
fact that a civilian obtained and received the evidence, the possibility that the
integrity of these articles could have been compromised cannot be ignored.
The Court even noted that during his direct examination, SPO2 Monilar was
confused as to whether the pair of shoes presented in court was the same
ones that were turned over to the police. It turned out that the marking he
made on the shoes were washed off because at one time, the shoes fell in
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 97
the canal located in front of the police station and they had to clean and
wash the shoes!37 Such sloppy handling renders the chain of custody of
those pieces of evidence dubious, and damaging to the prosecution’s case.
And even if appellant did own the pair of shoes and tres cantos, the fact that
it was found in the scene of the crime merely proved that he was in the
residence of Jaquelyn at some point in time. But it does not prove when
particularly he was there, his authorship of the crime or his motive for being
there. While the motive of an accused in a criminal case is generally held to
be immaterial, not being an element of the crime, motive becomes important
when, as in this case, the evidence of the commission of the crime is purely
circumstantial.38
The prosecution’s evidence that is perceived to be conclusive of appellant’s
guilt is mainly the testimony of Rico Magdasal. Such testimony, however, is
uncorroborated. The rule is that the testimony of one witness is sufficient to
sustain a conviction, if such testimony positively establishes the guilt of
the accused beyond reasonable doubt.39 Moreover, the doctrine of long
standing that the testimony of a lone witness, if credible and positive, is
sufficient to convict an accused applies only to eyewitnesses. Thus, an
uncorroborated circumstantial evidence is certainly not sufficient for
conviction when the evidence itself is in serious doubt. 40 Rico’s lone
testimony is not sufficient to establish appellant’s guilt beyond reasonable
doubt.
In addition, appellant vehemently denied Rico’s allegations. According to
appellant, it was Rico who actually owns the pair of shoes and  tres cantos;
that it was he who bid appellant to go to the Tatoys’ residence and lift their
TV set; and that it was Rico who stabbed Jaquelyn. Considering appellant’s
denial and his different version of the incident, it became incumbent upon the
prosecution to rebut appellant's allegations with further evidence to
corroborate the statement of Rico. It must be noted that there were other
persons present during their drinking spree, namely, Romy Magdasal, Noel
Labay, and a certain Cardo. These persons could have been presented as
witnesses to back up Rico’s claim but the prosecution did not do so. Rico
testified that appellant owned the tres cantos found by the stairs; but Rico
also stated he only "heard" that the tres cantos was found by the
stairs.41 Who found the tres cantosthat was supposed to have been used to
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 98

stab Jaquelyn? The neighbor who allegedly found it by the stairs was not
presented in court to identify if the tres cantos presented by the prosecution
was the alleged weapon in the stabbing of Jaquelyn. Such failure of the
prosecution to corroborate the material points of Rico’s testimony weakened
their case.
The Court also has serious misgivings on the probative value of the
white sando shirt that appellant was allegedly wearing at the time of stabbing
Jaquelyn, which Edgar Magdasal later found bloodstained among the soiled
clothes.
WHEREFORE, appellant Elizar Tomaquin is hereby ACQUITTED and
ordered RELEASED immediately, unless he is being detained for some
other legal cause.
The Director of the Bureau of Corrections is directed to cause the immediate
release of appellant unless he is being lawfully held for another cause, and
to inform this Court of the date of his release, or the ground for his continued
confinement, within ten (10) days from notice of herein decision.
Costs de oficio.

First, when appellant was asked by the barangay tanods about the shirt he SO ORDERED.
was wearing, he told them that it was in Wilson Magdasal’s house. According
to barangay tanod Armando Zabate, it was Edgar Magdasal who found the
shirt, "somewhat wet and bloody," among the soiled clothes. 42 Edgar Puno, Chairman, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.
Magdasal, however, was not presented to testify as to where he found the
shirt, the state the shirt was in when he found it, and how he knew that it was
the shirt worn by appellant.

Second, Medical Technologist Jude Daniel Mendoza testified that the

bloodstains on appellant’s sando shirt, as well as the tres cantos, were
human blood.43 Mendoza, however, did not conduct further tests to ascertain
the type of blood found on these pieces of evidence nor did he match it with
the victim’s blood type,44 hence, it does not connect the bloodstains to the
herein victim. In People vs. Rodriguez, the Court ruled that the maong pants
allegedly belonging to appellant and found positive of type O blood has no
probative value since the blood type of appellant and the victim were not
taken for purposes of comparison.45

The same ruling applies with regard to the bloodstains found on the tres
cantos.

Appellant enjoys in his favor the presumption of innocence until the contrary
is proven. Proof of the guilt of the accused should not be tainted with
ambiguity. Although appellant’s defense is weak, conviction must come from
the strength of the prosecution's evidence and not from the weakness of the
defense. In this case, the prosecution’s evidence is not strong enough to
justify a finding of guilt beyond reasonable doubt. 46 Acquittal, therefore, is
inevitable.

G.R. No. 98252. February 7, 1997.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENE JANUARIO
y ROLDAN, EFREN CANAPE y BAYOT, ELISEO SARITA @ TOTO,
EDUARDO SARINOS and SANTIAGO CID, accused. RENE JANUARIO Y
ROLDAN and EFREN CANAPE y BAYOT, accused-appellants.
Constitutional Law; Criminal Procedure; Preliminary Investigation; Trial
procedure is ordinarily followed to insure the orderly conduct of litigations to
attain the magisterial objective of the Rules of Court to protect the parties’
substantive rights.—The trial procedure as outlined in this rule is ordinarily
followed to insure the orderly conduct of litigations to attain the magisterial
objective of the Rules of Court to protect the parties’ substantive rights.
However, strict observance of the Rules depend upon the circumstances
obtaining in each case at the discretion of the trial judge.
Same; Same; Same; Court may allow the prosecutor even after he has
rested his case or even after the defense has moved for dismissal to present
voluntarily omitted evidence as long as it has still jurisdiction over the case.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 99
—Hence, the court may allow the prosecutor, even after he has rested his
case or even after the defense has moved for dismissal, to present
involuntarily omitted evidence. The primary consideration is whether the trial
court still has jurisdiction over the case. Thus “The claim that the lower court
erred in allowing the prosecuting attorney to introduce new evidence is
devoid of any merit, for while the prosecution had rested, the trial was not yet
terminated and the cause was still under the control and jurisdiction of the
court and the latter, in the exercise of its discretion, may receive additional
evidence. Sec. 3(c), Rule 119 of the Rules of Court clearly provides that, in
the furtherance of justice, the court may grant either of the parties the right
and opportunity to adduce new additional evidence bearing upon the main
issue in question.”
Same; Same; Same; If the lawyer were one furnished in the accused’s
behalf it is important that he should be competent and independent.—Thus,
the lawyer called to be present during such investigation 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 v. 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/
Same; Same; Same; A lawyer engaged for an individual facing custodial
investigation 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.—
Ideally, therefore, a lawyer engaged For an individual facing custodial
investigation (if the Jatter 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. 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.

Same; Same; Same; Under the circumstances described by the prosecution,
Atty. Saunar could not have been the independent counsel solemnly spoken
of by the Constitution.—Let us for the moment grant arguendo that Saunar’s
competence as a lawyer is beyond question. Under the circumstances
described by the prosecution however, he could not have been the
independent counsel solemnly spoken of by our Constitution. He was an
applicant for a position in the NBI and therefore it can never be said that his
loyalty was to the confessants. In fact, he was actually employed by the NBI
a few months after. As regards appellant Januario, Saunar might have really
been around to properly apprise appellant of his constitutional right as
reflected in the written sworn statement itself.
Same; Same; Same; The right to remain silent and to counsel implies a
correlative obligation on the part of the police investigator to explain and to
contemplate an effective communication that results in an understanding of
what is conveyed.—Furthermore, the right of a person under custodial
investigation to be informed of his rights to remain silent and to counsel
implies a correlative obligation on the part of the police investigator to explain
and to contemplate an effective communication that results in an
understanding of what is conveyed. Appellant Canape’s sworn statement,
which reads and sounds so lifeless on paper, fails to reflect compliance with
this requirement. Neither does the aforequoted testimony of NBI Agent
Toribio. Bearing in mind that appellant Canape reached only the fifth grade,
the NBI agents should have exerted more effort in explaining to him his
constitutional rights.
Same; Same; Same; Confession and admission explained in People vs.
Lorenzo.—An admission which, under Section 26 of Rule 130 of the Rules of
Court, is an “act, declaration or omission of a party as to a relevant fact” is
different from a confession which, in turn, is defined in Section 33 of the
same Rule as the “declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein.” Both may
be given in evidence against the person admitting or confessing. In People
vs. Lorenzo, the Court explained that in a confession there is an
acknowledgment of guilt while in an admission the statements of fact by the
accused do not directly involve an acknowledgment of guilt or of the criminal
intent to commit the offense with which the accused is charged.
Same; Same; Same; Verbal admission should also be made with the
assistance of counsel.—It is therefore clear that prior to the execution of the
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 100
sworn statements at the NBI head office, appellants had already made
verbal admissions of complicity in the crime. Verbal admissions, however,
should also be made with the assistance of counsel. Thus: “The verbal
admissions allegedly made by both appellants of their participation in the
crime, at the time of their arrest and even before their formal investigation,
are inadmissible, both as violative of their constitutional rights and as
hearsay evidence. These oral admissions, assuming they were in fact made,
constitute uncounselled extrajudicial confessions within the meaning of
Article III, Section 12 of the Constitution.” People vs. Januario, 267 SCRA
608, G.R. No. 98252 February 7, 1997
PANGANIBAN, J.:
The 1987 Constitution was crafted and ordained at a historic time when our
nation was reeling from ghastly memories of atrocities, excesses and
outright violations of our people's rights to life, liberty and property. Hence,
our bill of rights was worded to emphasize the sanctity of human liberty and
specifically to protect persons undergoing custodial investigations from
ignorant, overzealous and/or incompetent peace officers. The Constitution so
dearly values freedom and voluntariness that, inter alia, it unequivocally
guarantees a person undergoing investigation for the commission of an
offense not only the services of counsel, but a lawyer who is not merely (a)
"competent" but also (b) "independent" and (c) "preferably of his own choice"
as well.
In the case before us, the main evidence relied upon for the conviction of
appellants was their own extrajudicial confessions which admittedly were
extracted and signed in the presence and with the assistance of a lawyer
who was applying for work in the NBI. Such counsel cannot in any wise be
considered "independent" because he cannot be expected to work against
the interest of a police agency he was hoping to join, as a few months later
he in fact was admitted into its work force. For this violation of their
constitutional right to independent counsel, appellants deserve acquittal.
After the exclusion of their tainted confessions, no sufficient and credible
evidence remains in the Court's records to overturn another constitutional
right: the right to be presumed innocent of any crime until the contrary is
proved beyond reasonable doubt.

This is an appeal from the Decision1 of the Regional Trial Court of Cavite,
Branch XVIII in Tagaytay City, disposing of Criminal Case No. TG-l392-
89, viz.:
WHEREFORE, and premises considered, judgment is
hereby rendered finding accused:
(1) RENE JANUARIO Y
ROLDAN
- and - and Efren Canape, and their co-accused Santiago Cid, Eliseo Sarita @ Toto
(2) EFREN CANAPE Y
BAYOT
GUILTY beyond reasonable doubt of the crime of violation
of Sec. 14 last sentence of R.A. No. 6539, otherwise known
as the Anti-Carnapping Law and as charged against them
in the Information and pursuant to the said law, this Court
hereby imposes upon the said accused, the supreme
penalty of Reclusion Perpetua or life imprisonment.
Further, they are ordered to pay jointly and severally, but
separately, the heirs of their victims, namely, Geronimo
Malibago and Andrew Patriarca, Jr., the sums of:
(a) P50,000.00 for moral
damages
(b) P50,000.00 for
exemplary damages;
(c) P25,000.00 for actual
damages
and to pay the costs of this proceeding.
There being no evidence to warrant a finding of conviction
beyond reasonable doubt, judgment is hereby rendered
ACQUITTING Accused SANTIAGO CID of the crime
charged. Being a detention prisoner, the City Warden of
Tagaytay City is hereby ordered to immediately release
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 101
said person from his prison cell, unless he is therein
detained for any other cause.
SO ORDERED.
The Antecedents
On November 7, 1988, an Information signed by Assistant Provincial Fiscal
Jose M. Velasco, Jr., was filed against accused-appellants Rene Januario
and Eduardo Sarinos @ Digo charging them with violation of Republic Act
No. 6539 (Anti-Carnapping Law)2 allegedly commited as follows:
That on or about September 4, 1987, at Barangay Bulihan,
Municipality of Silang, Province of Cavite, the above-named
accused, together with Eliseo Sarita @ Toto and Eduardo
Sarinos who (sic) still at-large, conspiring and confederating
together and mutually helping one another, with intent to
gain, by means of force, violence and intimidation; did, then
and there, willfully (sic), unlawfully and feloniously, after
stabbing to death the driver Gernonimo (sic) Malibago and
conductor Andrew Patriarca, take, steal and carry away and
carnap, one Isuzu passenger type jeepney, with plate No.
DFB- 550, owned by Doris and Victor Wolf, to their damage
and prejudice in the total amount of P124,000.00.
CONTRARY TO LAW. 3
Arraigned on February 7, 1989, appellants Januario and Canape, assisted
by counsel de oficio, pleaded not guilty.4On May 30, 1989, Cid, assisted by
counsel de parte, likewise entered a plea of not guilty. 5 Sarita and Sarinos
remained at large. At the trial, the prosecution presented the following
witnesses: Myrna Temporas, NBI Agent Arlis S. Vela, Vicente Dilanco Pons,
Andrew Patriarca, Sr., Juliana Malibago, Atty. Magno Toribio, and Atty.
Carlos Saunar, documentary and other evidence tending to prove the
following:
Sometime in March 1988, Santiago Cid went to the house of prosecution
witness Vicente Dilanco Pens, a farmer engaged in the buy and sell

business, in Camarines Sur. Cid, Pens' cousin, asked Pens if he wanted to
buy a jeepney. Pons replied that he had no money but that he could help him
find a buyer for the jeepney for the price of P50,000.00. With Amador
Alayan, one of the drivers of his son who was around, Pons offered to look
for a buyer of the jeepney provided that Cid would entrust the vehicle to
them. Cid agreed to the proposal. At that time, Pens did not know who
owned the jeepney, but he eventually offered it for sale to Myrna Temporas
who agreed to the purchase price of P65,000.00. However, Temporas paid
Pens only the amount of P48,500.00.6
Myrna Temporas had a slightly different story. According to her, Pons said
that the jeepney was owned by his niece, Doris Wolf. Pons, purportedly
acting upon the instructions of Doris Wolf, borrowed from Myrna Temporas
the amount of P48,500.00 and used the jeepney as a collateral. The amount
was given to Pens in P10,000.00 cash and the balance in a check payable to
Doris Wolf. The check was encashed as it was cleared from Myrna
Temporas' account. It bore a signature supposedly of Doris Wolf at its back
portion and a second endorsement by Pons who subsequently deposited it in
his account.
On September 11, Temporas asked Pons to secure a special power of
attorney from Doris Wolf. Pens promised to comply in one or two weeks. But
Pens failed to pay the indebtedness. So, Myrna Temporas repeatedly went
to his house in Digmaan, Camarines Sur to collect the amount borrowed but
Pons always promised that he himself would go to her house to pay. 7
Inasmuch as Pons also failed to produce a deed of sale covering the
jeepney, Temporas lodged a complaint against him for estafa before the
NBI.8 Acting on the complaint, the NBI contacted the relatives of the owner of
the jeepney who went to Camarines Sur, identified the jeepney and informed
the NBI that its driver (deceased Geronimo Malibago) and conductor
(deceased Andrew Patriarca, Jr.) had been killed by carnappers. 9
Patriarca's widow also filed a complaint with the NBI. Upon investigation, an
NBI team led by Supervising Agent Magno Toribio found out that the
carnapping of the jeepney and the killing of Patriarca and Malibago were the
"handiwork" of a group of four (4) persons named Rene Januario, Efren
Canape, Eliseo Sarita alias Tote, and Eduardo Sarinos alias Digo. The team
also discovered that the jeepney was disposed of through Cid. 10
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 102
Appellants Januario and Canape, as well as Cid, were arrested in Camarines
Sur. The NBI then invited Pons and Temporas to shed light on the
carnapping incident. The jeepney was recovered in an auto shop with its
engine partly dismantled. Upon being informed by the NBI that the jeepney
had been found, an insurance company brought it back to Manila.
From the "oral investigation" they conducted at the Naga City NBI office on
March 27, 1988, the team learned that Sarita and Sarinos took Patriarca and
Malibago inside a sugar plantation where presumably they were killed.
Because appellants volunteered that their companions were their neighbors
in Paliparan, Dasmarinas, Cavite who could be in Manila already, the NBI
team decided to take down their statements at the NBI head office in Manila.
The team traveled with appellants to Manila, arriving there at around 1:00
o'clock in the afternoon of March 28, 1988.
At the Taft Avenue head office of the NBI, the team took the statements of
appellants one at a time. They asked Atty. Carlos Saunar, who was "just
around somewhere," to assist appellants during the investigation Agent Arlis
Vela took the: statement of appellant Januario while Supervising Agent
Toribio took that of Canape. The first portion of the statement, Exhibit C,
taken from appellant Januario reads:
SINUMPAANG SALAYSAY NA IBINIGAY NI RENE
JANUARIO Y ROLDAN SA HARAP NI NBI AGENT ARLIS
E. VELA NGAYONG IKA-28 NG MARSO 1988 SA NBI,
NCR, MANILA.
TANONG Mr. RENE
JANUARIO ipina-aalam
namin sa iyo na ikaw ay
aming inuusig sa salang
pagnakaw ng isang
jeepney at pagkapatay
sa driver at conductor
nito. Gusto naming
malaman mo na ikaw ay
hindi maaring pilitin na
magbigay ng salaysay at
kong (sic) sakaling
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 103

magbibigay ka ng T Sabihin mo ang iyong

salaysay, ano mang pangalan at iba-ibang
sasabihin mo rito ay bagay tungkol sa iyong
pueding (sic) gamitin pagkatao?
laban sa iyo sa ano
mang caso. Nauunawaan S RENE JANUARIO y
mo ba ito? ROLDAN, 26 taong
gulang, binata, isang
SAGOT Naiintiendihan (sic) buy and sell
(sic) ko. hanapbuhay at
naninirahan sa Puro
T Kailangan mo ba ang Batya, Libmanan,
tulong ng abogado sa Camarines Sur.
ipagtatanong na ito?
xxx xxx xxx 11
S Magsalaysay (sic) lang
ako nag-may abogado According to appellant Januario, two weeks before September 1987, he was
ako. already in the house of appellant Canape in Bgy. Palapala, Dasmarinas,
Cavite to procure chicken and "kalawit" for his business. He also went there
T May abogado ka ba sa because his new friends named Toto Sarita and Digo Samera (sic), as well
ngayon? as appellant Canape, wanted him to look for a buyer of a jeep. Appellant
Januario asked for a photograph of the jeep to assist him in making a
canvass of buyers in Bicol but he was told that he would have it later at night
S Mayroon no si Atty. because they were then having drinks in the house of Toto.
CARLOS SAUNAR ay
nandito para tulongan
(sic) ako. After that drinking spree, the group agreed to fetch appellants Januario and
Canape at 4:00 o'clock the following morning. It was Digo Samera who
fetched appellants before they went to the house of Tote Sarita. Together,
T Nanunumpa ka na they went to GMA town in Cavite. It was around 5:00 o'clock in the morning
magsasabi ng when they hailed a jeep from the "looban." There after, the following
katotohanan, buong allegedly transpired:
katotohanan at wala ng
iba kungdi katotohanan
lamang sa nagtatanong T Ano na ang nangyari
na ito? noong kayo ay sumakay
sa jeep?
S Opo.
S Ako ang naunang
sumakay pagtigil noong
jeep. Bago maka-alis ang
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 104

jeep nagsalita si TOTO matalian mo ang

SARITA na nasa baba pa conductor?
kasama sina EFREN
CANAPE at DIGO na S Napansin ko na lang
'HINTAY ka muna may na maneho na ni TOTO
naiwanan pa ako. Sarita ang jeep na
Sumakay si Digo sa tapat kanyang pinasibad
ng conductor na nasa habang ang driver ay
loob ng jeep nakatali na rin at ako
samantalang si TOTO ay naman ay sinabihan ni
pumuesto sa bandang DIGO na hawakan iyong
kanan sa unahan ng jeep conductor sa balikat
at si EFREN ay sa habang tinutukan no
bandang kaliwa rin ng patalim ni DIGO. Ang
jeep tapat ng driver at conductor ay nagsasalita
sabay si EFREN at na siya ay nasasaktan
TOTO na sumakay sa dahil nakatusok na ang
unahan ng jeep at patalim sa kanyang leeg
mabilis na tinulak ni o batok.
EFREN ang driver
patungo kay TOTO na
siyang tumutok, (sic) sa T Ano ang nangyari
driver ng isang sandata matapos na matutukan
balisong 29. Habang ang conductor at driver at
nangyayari iyon ay habang nagmamaneho
tinutukan naman ni DIGO Si TOTO?
na nasa loob ng jeep ang
conductor na pinasubsub S Mula sa lugar na iyon
ang ulo habang tinutukan pagkaraan ng ilang
ng 29. Ang sabi sa akin minuto ay biglang iniliko
ni DIGO ay "REN igapos sa isang-maliit na lupang
mo ito" at inabutan niya kalsada na napapaligiran
ako ng isang panyong ng tubo at talahib at doon
panali. Sa aking ay hininto ang sasakyan:
kabiglaanan ako ay
napasunod at tinali ko T Ano na ang sumonod
iyong conductor. (sic) na nangyari sa lugar
na iyon matapos na
T Ano na ang sumunod maihinto ang jeep?
na nangyari matapos
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 105

S Unang bumaba po ay S Pumasok po sa

si TOTO na hawak ang tubohan hindi ko na sila
driver pababa at itinulak makita.
ang driver sa may
tobohan (sic). Si EFREN T Ano na ang nangyari
ay sumonod (sic) matapos na dalhin ni
hanggang sa may gilid TOTO ang driver at ni
ng karsada' habang si DIGO naman ang
TOTO ay tuloy sa conductor sa tobohan
tobohan (sic) na dala ang (sic)?
driver. Si DIGO naman
ay tinulak ang conductor
hawak-hawak sa buhok S Mga ilang minuto lang
at ang sabi naman sa po ay bumalik na sila sa
akin ay hawakan ko ang sasakyan at kami
balikat. Kinuha sa akin sumakay na at si TOTO
ang conductor ni DIGO at ang nagmaneho ng
dinala sa may tubuhan sasakyan at tuloy-tuloy
(sic) at akin na lang na kami sa Bikol, sa
narinig na ang pag-ungol Libmanan, Camarines
no conductor dahil Sur.
malapit lang iyon sa
sasakyan. T Noong kayo ay umalis
sa tubohan na iyon,
T Nakikita mo ba sila nasaan na noon ang
DIGO at ang conductor driver at ang conductor?
habang siya ay
umuungol? S Wala na no.

S Hindi ko na po nakita T May napansin ka ba

kasi nasa tubohan na. kina DIGO at TOTO
noong sila ay sumakay
T Sila TOTO at ang sa jeep galing sa
driver nasaan sila tubuhan (sic)?
habang naririnig mong
umuungol ang S Humihingal sila po na
conductor? parang pagod at
napansin ko na may
dugo ang kamay ni DIGO
at ang damit at pantalon
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 106

naman ni TOTO ay may manahimik. Ano mang sabihin mo dito ay

tilamsik (sic) ng dugo. puweding gamitin laban sa iyo sa asunto
Kriminal o civil. Ikalawa ikaw ay may
xxx xxx xxx 12 karapatan na kumuha ng iyong abogado
upang tulungan ka saimbistigasyon na ito.
At kung gusto mo pero wala kang
Appellant Januario described the driver as more than fifty years old, Of pambayad sa sirbesyon (sic) nito, ikaw ay
medium build, and with gray hair and a fine nose. Upon reaching Libmanan, bibigyan ng NBI ng libre. Matapos mong
they went directly to Santiago Cid with whom appellant Januario had earlier malaman ang iyong mga karapatan, ikaw
conferred regarding the sale of the jeep. Appellant Januario did nor know to ba ay nakahandang magbigay ng kusang
whom the jeep was sold but he knew that Cid approached Vicente Pens. The loob na salaysay?
latter gave appellant Januario P1,000 cash and rice and eggs worth around
P600. A second jeep was brought by Tote and Digo to
ANSWER Opo, sir.
Roger Abajero. Cid brought both appellants to the house of Roger. Later, the
jeep was impounded at the NBI Naga City office. T Kung ganoon sabihin mo ang iyong
buong pangalan, tirahan at iba pang mga
bagay-bagay na pweding
Appellant Januario signed and thumbmarked his statement which was sworn pagkakakilalanan sa sa iyong pagkatao?
before NBI Executive Director Salvador R. Ranin. It was also Signed by Atty.
Carlos Saunar "as counsel."
S Ako is EFREN CANAPE y BAYOT, 31
anyos and idad (sic), kasal kay AIDA
Appellant Canape's sworn statement, Exhibit I, was taken by Atty. Magno V. ROLDAN, isang mag-sasaka (sic)
Toribio, a supervising NBI Agent. Quoted in full, the statement reads: nakatapos ng ika-limang baitang sa
elementarya, at at sa kasalukuyan ay
SINUMPAANG SALAYSAY NI (BINIGAY NI EFREN naninirahan sa Bgy. Sibuho, Libmanan,
CANAPE y BAYOT KAY AGENTS MAGNO V. TORIBIO Camarines Sur.
AND TOMAS C. ENRILE MGA AHENTE NG NBI DITO SA
NCR, NBI, MANILA, NGAYONG IKA 27 NG MARSO 1988. T Ikaw ba ay may nalalaman sa
pagkanakaw ng isang Malaguena type
1. TANONG Ginoong EFREN CANAPE y type Jeepney sa Bulihan, Silang, Cavite
BAYOT, ikaw ay aming iniimbistigahan noong buwan ng Septyembre 1988?
ngayon tungkol sa pagnanakaw ing isang
Izuzu (sic) type jitney sa Silang, Cavite sa S Opo, sir.
pagkamatay ng conductor nito noong
buwan ng Septembyre (sic) 1988. Bago ka
namin tanungin aming ipinaalam sa iyo T Kung ganoon sabihin mo sa mga
ang iyong mga karapatan sa ilalim ng imbistigador na ito kung paano ang buong
Saligang Batas. Una, ikaw ay may pangyayari?
karapatan na huwag magbigay ng
salaysay sa imbistigasyon na ito, at
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 107
S Kasi nung (sic) minsan ako ay mapasyal
sa Bgy. Crossing, sakop ng Dasmarinas,
Cavite noong mga buwan ng Agosto 1987
kami ay nagkita ng aking aking Kaibigan
na si 'TOTO' SARETA at ang kanyang
kasama na si DIGO (complete name
unknown) at ako ay kanyang sinabihan na
humanap ng buyer ng isang jeep. Kaya,
ng (sic) ako ay umuwi na ng Libaman,
Camarines Sur ako ay humanap (sic) ng
taong interesado na bumili ng nasabing
Jeep, katulung si RENE JANUARIO na
taga bayan ng Libmanan. Ang aming
nakitang interesado sa jeep ay si
SANTIAGO CID. Kaya ang aming ginawa
ni RENE ay bumalik sa Bgy. Crossing,
Dasmarinas, Cavite para ipaalam kina
TOTO SARETA na kami ay nakakuha na
ng buyer. Ng gabing yaon na kami ay
dumating kami ay niyaya nina TOTO na
mag inuman at habang kami ay nag-
iinuman sinabi ni TOTO na may
makukuha na kami na jeep. Mga bandang
alas kuwatro ng madaling araw, kami ay
niyaya na nlna TOTO na kunin na ang
jeep. Kami ay lumakad na papuntang
Bulihan Silang, Cavite, Pagdatlng namin
doon, kami ay naghintay ng mga ilang
minuto. Ng (sic) dumaan ang isang Jeep
na wala pang (sic) pasahero, ito ay pinara
ni DIGO at kami ay sumakay. Mga ilang
minuto naman lumipas habang ang diyep
(sic) ay tumatakbo papuntang Alabang ay
naglabas ng patalim sin TOTO at DIGO at
tinutukan ang driver at ang kundoktor.
Tapos kami ni RENE ay sinabihan (sic)
din nila na maglabas ng patalim at tutukan
din ang driver at ang kundoktor (sic).
Pagdating namin sa Bgy. Maguyam,
sakop din ng Silang sapilitang (sic) ibinaba
nina TOTO, DIGO at RENE ang driver at
ang kundoktor (sic) at dinala sa loob ng
tubuhan. Ako ay naiwan sa loob ng jeep.
Hindi naman natagalan ay lumabas na
ang tatlo galing sa loob ng tubuhan, hindi
na kasama ang driver at and kundoktor
(sic). Tapos, narining ko kay TOTO na
ayos na daw'. Ang sunod naming ginawa
ay pinatakbo na namin ang jeep
papuntang Libmanan. Pagdating namin sa
Libmanan dumerretso (sic). kay
SANTIAGO CID at ibinigay na namin sa
kanya jeep. Ang sabi naman ni
SANTIAGO ay dadalhin niya ang jeep kay
VICENTE PONS na taga Libmanan din.
T Alam mo ba ang nangyari sa driver at
konduktor (sic) ng Jeep na inagaw niyo?
S Ang pag-kaalam ko ho sa sabi ni TOTO
na 'ayos na' ang ibig sabihin ay patay na
sila.
T Sino naman ang VICENTE PONS na
ito?
S sabi sa amin ni SANTIAGO si VICENTE
PONS ay ang kanyang nakuhang buyer
ng jeep.
T Sa pagkaalam mo ba ay talagang binili
ni VICENTE PONS and Jeep?
S Opo, sir.
T Magkano naman ang pagkabili ni
VICENTE PONS?

S Hindi ko po alam kung magkano ang
iksaktong halaga, pero ang presyo sa
amin ni SANTIAGO ay P25,000.00.
T Nang dalhin ha ninyo ang jeep kay
SANTIAGO ay agad ninyong dinala at
pinagbili rin kay VICENTE PONS?
S Opo, ng araw din na iyon.
T Magkano ha ang paunang bayad kung
mayroon man, na ibinigay ni VICENTE
PONS sa inyo?
A Ang alam ko ho ay P4,000.00 ang
ibinigay ni VICENTE PONS
SANTIAGO dahil siya ang kausap nito.
T Magkano naman ang halagang naparte
mo?
S Ako ho ay binigyan ni SANTIAGO ng
P1,000.00?
T Ito bang pag-pabili ninyo ng jeep kay
VICENTE PONS ay may kasulatan?
S Wala po.
T Kailan pa ang mga sumunod na bayad
na ibinigay sa inyo ni VICENTE PONS?
S Hindi ko na ho masyadong matandaan
ang iksaktong oras na kanyang pagbayad
at kung magkano basta ang pag-kaalam
ko ay mga tatlong beses lang siyang
naghulog at iyon ay kanyang ibinibigay
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 108
kay SANTIAGO. Si SANTIAGO naman
ang siyang nag-bibigay (sic) sa amin.
T Ito bang si SANTIAGO CID at si
VICENTE PONS ay alam kung saan at
paano ninyo nakuha ang jeep?
S Opo, sir
T Nasaan na ngayon sina TOTO SARETA
at DIGO?
S Sa Dasmarinas, Cavite ho.
T Hindi na ba sila napupuntang
kay Libmanan?
S Bihira na ho sir. Pumupunta lang ho sila
kung kukuha ng pera
T Sa pagkaalam mo, mayroon pa ba
silang ibang Jeep na dinala sa Libmanan?
S Mayroon pa ho akong nalaman kay
SANTIAGO CID, na may isa pang jeep na
dinala daw sina TOTO at DIGO sa kanya
at kanya namang ibenenta kay Mr.
ROGELIO ABAJERO, na taga Libmanan
din.
T Ano pa ang ibang alam mo tungkul (sic)
dito sa pangalawa jeep, na ibenenta (sic)
nila kay Mr. ABAJERO?
S Wala na ho sir.

T Iyung tungkol sa unang jeep na ibenenta
kay Mr. VICENTE PONS, alam mo ba
kung nasaan na iyon ngayon?
S Hindi ko rin po alam kung saan dinala ni
Mr. PONS.
T Ito bang sina TOTO SARETA at DIGO
ay matagal mo ang kakilala?
S Matagal no ho sir, dahil sa ako ay
ipinanganak din sa Dasmarinas, Cavite at
doon din lumaki. Sila ho ay aking mga
kababayan at matalik kung mga kaibigan.
T Nung ikaw ba ay sabihan nina TOTO na
humanap ng buyer ng jeep alam mo ba na
ang jeep na iyon ay nanakawin lamang?
S Opo, sir.
T Pansamantala ay wala na muna akong
itatanong sa iyo, ikaw ba ay mayroon pa
ibig sabihin?
S Wala na po, KATAPUSAN NG SALAYSAY.
(Signed and thumbmarked)
EFREN B. CANAPE
Nagsalaysay
SINGED IN THE PRESENCE OF:
(Illegible signature) (Illegible signature)
SUBSCRIBED AND SWORN TO BEFORE ME this 27th
day of March 1988 at NBI National Capital Region, Manila. I
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 109
likewise certify that I have carefully examined the herein
affiant and that I am satisfied that he voluntarily executed
his statement and understood the same.
(Signed)
Atty. ARLIS E. VELA
(By Authority of Rep. Act 157)13
After the investigation, appellants went with the NBI agents in searching for
their companions." 14
Meanwhile, Andrew Patriarca, Sr. reported the disappearance of his son,
Andrew, Jr., the jeepney and its driver to the police detachment in Bulihan,
Silang, Cavite and the police stations in Silang and Imus, Cavite. Two weeks
after September 4, 1987, the body of 23 year-old Andrew Patriarca, Jr. was
found in a sugarcane plantation in Maguyam. His head was severed from his
body. 15 The body of the driver, Geronimo Malibago, stepfather of Doris Wolf,
the owner of the jeepney, 16 was recovered after the harvest of sugarcane in
the plantation 17 in Maguyam. 18 Malibago's widow identified the body from its
clothing. 19
On September 12, 1989, the prosecution formally offered its
evidence, 20 which the court duly admitted 21 For its part, the defense,
through counsel, manifested its intention to file a demurrer to evidence.
However, because the defense had not yet presented accused Cid, the court
on November 21, 1989, ordered the cancellation of his bail bond and gave
his surety thirty days within which to show cause why judgment against the
bond should not be rendered. The defense counsel, Atty. Jose Claro, was
likewise required to explain why he should not be held in contempt of court
for his failure to file a demurrer to evidence. 22
For failure of the defense counsel to appear at the scheduled hearing dates
and to file the promised demurrer to evidence, the court on December 22,
1989, issued an order stating that the "accused may no longer at this time be
allowed to present their Demurrer to Evidence." It scheduled dates for the
presentation of defense evidence and appointed Atty. Oscar Zaldivar as
counsel de oficio for the defendants. 23

Nevertheless, on December 26, 1989, counsel for the defense Claro mailed
a "demurrer to evidence or motion to dismiss on (sic) insufficiency of
evidence." 24 On January 10, 1990, the trial court denied the motion finding
that the demurrer did not "contain any reason compelling enough to recall
the previous order," disallowing the filing of said pleading. 25
On February 8, 1990, upon the manifestation of Atty. Claro that appellants
would no longer present evidence, the trial court issued an order considering
the case terminated as far as appellants were concerned. However, it
granted a "reservation" to present evidence as regards Cid. The trial court
further directed Atty. Claro to present Cid before the court on March 9, 1990.
It ordered the filing of memoranda "as the case of accused Januario and
Canope (sic) is now considered closed." It set the "partial promulgation of
judgment" on March 9, 1990 "insofar as the two (2) accused are
concerned." 26
On March 1, 1990, appellants' counsel filed their memorandum. 27
On March 9, 1990, the trial court did not make a "partial promulgation of
judgment." Instead, it ordered the "continuation of proceedings for purposes
of rebuttal evidence." 28
On the same day, the defense presented Santiago Cid as a witness. He
testified that a certain Raul Repe, Tote Sarita and Digo Sarreal approached
him about the sale of the jeepney. He referred them to Vicente Pens who he
thought would buy the vehicle. He knew appellants were "i" from Libmanan
but did not see them during the transaction for the sale of the jeepney. 29
On March 27, 1990, the Court denied defense counsel Claro's motion to
cancel the hearing scheduled for that day. Noting the presence of Atty.
Carlos Saunar, a prosecution witness whose attendance during Scheduled
trial dates had been delayed, and citing the "imperatives of justice," the trial
court issued an order directing that the testimony of said witness should be
heard that day. 30 In the absence of the counsel of record for the defense; the
trial court reiterated the appointment of Atty. Oscar Zaldivar as counsel de
oficio.
Atty. Saunar testified that he joined the NBI sometime in May or June 1988.
In March 1988, while still in private practice, he was at the NBI head office
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 110
handling a client case when Arty. Vela, an NBI agent, approached him. The
latter and Arty. Toribio introduced him to appellants and Cid. Vela and
Toribio told him that the three had verbally confessed to participation in a
crime and that they needed his assistance as they were about to execute
their sworn statements. 31 Saunar agreed to assist the three suspects and
allegedly explained to them the consequences of their confession. He also
supposedly told them individually, and in Tagalog, their constitutional rights,
like their rights to be silent and to counsel and that whatever they would say
could be used against them. 32
Saunar identified his signature in the sworn statement of appellant Januario.
However, he could no longer recall which of the three accused ,appellant
Canape although he admitted that the latter's face was "familiar." 33 He was
certain, however, that he participated in the taking of appellant Canape's
sworn statement on March 28, 1988. He admitted that his signature does not
appear on appellant Canape's sworn statement but he could "only surmise"
that he did not sign the same sworn statement because either it was not
presented to him immediately after the statement was taken or that it had
been misplaced. 34
After receiving Saunar's testimony, the trial court asked the prosecution
whether it was presented as rebuttal testimony. Answering in the positive,
the prosecutor reminded the court that when Saunar could not be presented
as a witness, he had made a reservation to call him as "additional evidence
for the prosecution and/or rebuttal" testimony. Clarifying this, the court said
that as against Cid, the testimony was a principal one but a rebuttal as far as
the appellants were concerned. 35
On May 11, 1990, the defense manifested that it was closing its case. The
prosecution having waived its right to present "any rebuttal evidence," the
trial court issued an order requiring the filing of the parties' respective
memoranda. 36 On June 27, 1990, the trial court rendered the herein
questioned Decision. 37
The Issues
In their separate briefs filed by their respective counsel (Atty. Jose C. Claro
for Januario and Any. Florendo C. Medina for Canape), appellants ascribe
basically two errors against the trial court:

(1) The trial procedure, particularly the presentation and admission Of the
testimony of Arty. Carlos Saunar, was irregular and prejudicial to the
appellants; and
(2) The extra-judicial confessions of the appellants are inadmissible in
evidence for having been extracted in violation of their constitutional right to
counsel.
Insisting that his guilt had not been proven beyond reasonable doubt,
appellant Januario contends that the trial court erred in admitting in evidence
his sworn statement before the NBI and the testimony of Arty. Saunar as
rebuttal or additional witness after the prosecution had rested its case, he
(appellant Januario) had filed his memorandum, and the decision had been
scheduled for promulgation. 38
For his part, appellant Canape also claims that his guilt had not been proven
beyond reasonable doubt. He questions the trial court's having given "weight
and sufficiency" to his extra-judicial confession. 39
Appellant Januario contends that the trial court erred in allowing the
presentation of Saunar as a witness after the prosecution had closed its case
and offered its documentary evidence. Saunar could not in any guise be
considered as a rebuttal witness simply because there was no defense
evidence to rebut.
The Court's Ruling
The First Issue: Order of Trial
The pertinent provisions of Rule 119 of the Rules of Court state:
Sec. 3. Order of trial. — The trial shall proceed in the
following order:
(a) The prosecution shall present evidence to prove the
charge, and in the proper case, the civil liability.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 111
(b) The accused may present evidence to prove his
defense, and damages, if any, arising from the issuance of
any provisional remedy in the case.
(c) The parties may then respectively present rebutting
evidence only, unless the court, in the furtherance of
justice, permits them to present additional evidence bearing
upon the main issue.
(d) Upon admission of the evidence, the cases shall be
deemed submitted unless the court directs the parties to
argue orally or to submit memoranda.
(e) However, when the accused admits the act or omission
charged in the complaint or information but interposes a
lawful defense, the order of trial may be modified
accordingly. (Emphasis supplied.)
The trial procedure as outlined in this rule is ordinarily followed to insure the
orderly conduct of litigations to attain the magisterial objective of the Rules of
Court to protect the parties' substantive rights. 40 However, strict observance
of the Rules depend upon the circumstances obtaining in each case at the
discretion of the trial judge. Thus, as early as 1917, this Court explained:
. . . . The orderly course of proceedings requires, however,
that the prosecution shall go forward and should present all
of its proof in the first instance; but it is competent for the
judge, according to the nature of the case, to allow a party
who has closed his case to introduce further evidence in
rebuttal. This rule, however, depends upon the particular
circumstances of each particular case, and falls within the
sound discretion of the judge, to be exercised or not as he
may think proper. 41
Hence, the court may allow the prosecutor, even after he has rested his case
or even after the defense has moved for dismissal, to present in-voluntarily
omitted evidence. 42 The primary consideration is whether the trial court still
has jurisdiction over the case. Thus

The claim that the lower court erred in allowing the prosecuting attorney to
introduce new evidence is devoid of any merit, for while the prosecution had
rested, the trial was not yet terminated and the cause was still under the
control and jurisdiction Of the court and the latter, in the exercise of its
discretion, may receive additional evidence. Sec. 3(9), Rule 119 of the Rules
of Court clearly provides that, in the furtherance of justice, the court may
grant either of the parties the right and opportunity to adduce new additional
evidence bearing upon the main issue in question. 43
Saunar's testimony was admitted in evidence before the trial court rendered
its Decision. Undoubtedly then, the court a quo retained its jurisdiction even
though the prosecution had rested its case. As to appellants, Saunar was an
additional prosecution witness, not a rebuttal witness, because the defense
waived presentation of evidence after the prosecution had rested its
case. 44 Saunar was, therefore, a rebuttal witness with respect to accused
Cid. 45
The Second Issue: Appellants' Right to Counsel
Proof of Saunar's  presence during the custodial investigation of appellants
is, however, not a guarantee that appellants' respective confessions had
been taken in accordance with Article 111, Section 12(1) of the Constitution.
This constitutional provision requires that a person under investigation for the
commission of an offense shall have no less than "competent and
independent counsel preferably of his own choice." Elucidating on this
particular constitutional requirement, this Court has taught:
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 investigation 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 112
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
v. 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.
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. 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. 46
We find that Saunar was not the choice of appellant Januario as his custodial
investigation counsel. Thus, NBI Agent Arlis Vela testified:
Q Now, considering that they were then
under your custody, and under
investigation, were they represented by
counsel during the time that you took their
statements?
A Yes, sir. They were.
Q Do you recall who was that counsel who
represented them?
A Atty. Carlos Saunar, sir.
Q Was he the counsel of their own choice,
or was the counsel furnished by your
office?
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 113
A Because they were not represented by
counsel of their own choice, we got the
service of Atty. Carlos Saunar who helped
them. 47
x x x           x x x          x x x
Q And Atty. Saunar is connected with the
NBI?
A At that time, he was at the NBI Office.
He was just somewhere around.
Q And it was the NBI who requested
Saunar to assist Mr. Rene Januario in the
investigation?
A We requested him, because he was just
around, sir. 48 (Emphasis supplied.)
As regards Saunar's assistance as counsel for appellant Canape,
investigating NBI Agent Magno Toribio testified as follows:
Q Now, with regards to your advice that he
has a right to counsel, and to seek
assistance of a counsel of his own choice
if he does not have one, and to remain
silent, and if he does not have a lawyer,
you will furnish One, for him, now what
was his answer?
WITNESS:
According to him, he does not need a
lawyer, but despite that refusal to have a
lawyer. . .
COURT:
That is not refusal. That is manifestation
that he does not need a lawyer. He did not
refuse. He raid, he does not need a
lawyer.
WITNESS:
Although, he does not need a lawyer, we
provided him a lawyer by the name of Atty.
Carlos Saunar, who was present during
the investigation, and who advised him of
the consequences of the statements that
he will give, and he did not refuse.
FISCAL VELAZCO:
Now, how did you know that Atty. Saunar
gave him advice gave accused Canape
advice?
A Because we were present.
Q Now, when did Atty. Saunar give that
advice to accused Canape, was it before,
during, or after the taking of this
statement?
A Before, during, and after the taking of
the statement.
Q Now, may we know from you why Atty.
Saunar was present there?
A He was present the because be was
then applying for the position of NBI agent.
FISCAL VELAZCO:
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 114

Was he the only lawyer who was present Q And from where is he?
there?
A I think he is from Bicol.
A I remember, Atty. Claro, sometimes is
there, representing another client. 49 x x x           x x x          x x x

x x x           x x x          x x x Q Now, how many times have you

requested Atty. Saunar to assist a person
Q Now, Atty. Saunar is employed with the under your investigation in the NBI office,
NBI office, am I right? other than this? A I cannot remember
anymore.
A Yes, sir.
Q You always ask him to assist if there is
Q When was he employed at the NBI no lawyer available, or the person to be
office? Tell us the exact date? investigated has no lawyer?

COURT: A If he is around. 50 (Emphasis supplied.)

If you can. Let us for the moment grant arguendo that Saunar's competence as a lawyer
is beyond question. Under the circumstances described by the prosecution
however, he could not have been the independent counsel solemnly spoken
WITNESS: of by our Constitution. He was an applicant for a position in the NBI and
therefore it can never be said that his loyalty was to the confessants. In fact,
Maybe in September. he was actually employed by the NBI a few months after. As regards
appellant Januario, Saunar might have really been around to properly
ATTY CLARO: apprise appellant of his constitutional right as reflected in the written sworn
statement itself.
19?
However, the same cannot be said about appellant Canape. Clearly, he was
A 1988. not properly informed of his constitutional rights. Perfunctorily informing a
confessant of his constitutional rights, asking him if he wants to avail of the
services of counsel and telling him that he could ask for counsel if he so
Q But he was always frequent in the NBI desires or that one could be provided him at his request, are simply not in
office because he was to be employed, is compliance with the constitutional mandate. 51 In this case, appellant Canape
that what you mean? was merely told of his constitutional rights and posthaste, asked whether he
was willing to confess. His affirmative answer may not, by any means, be
A He was applying. interpreted as a waiver of his right to counsel of his own choice.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 115

Furthermore, the right of a person under custodial investigation to be Vela that, based on the facts gathered from interviews of people in that city,
informed of his rights to remain silent and to counsel implies a correlative they "invited" and questioned appellants, thus:
obligation on the part of the police investigator to explain and to con-
template an effective communication that results in an understanding of what Q Now, tell us, what was your purpose in
is conveyed. 52 Appellant Canape's sworn statement, which reads and inviting these two (2) people?
sounds so lifeless on paper, fails to reflect compliance with this requirement.
Neither does the aforequoted testimony of NBI Agent Toribio. Bearing in
mind that appellant Canape reached only the fifth grade, the NBI agents A That was in connection with the vehicle I
should have exerted more effort in explaining to him his constitutional rights. mentioned earlier, in connection with the
carnapping incident mentioned earlier.
Moreover, there is enough reason to doubt whether appellant Canape was in
fact and in truth assisted by counsel. Atty. Saunar affirmed on the witness Q You invited them in connection with the
stand that he assisted appellants on March 28, 1988. 53 However, the sworn carnapping because you want to, know
statement itself reveals that it was taken on March 27, 1988. No satisfactory from them actually what they know about
explanation was made by the prosecution on this discrepancy. All that Agent the carnapping, am I correct?
Vela stated was that they conducted an oral investigation in Naga City on
March 27, 1988 and that investigation at the NBI Manila head office was A Precisely, that is right. 57
made in the afternoon of March 28, 1988. 54
Apparently attempting to avoid the questions on whether appellants admitted
The law enforcement agents' cavalier disregard of appellants' constitutional complicity in the crime, Agent Toribio testified:
rights is shown not only by their failure to observe Section 12 (1) of Article m
of the Constitution. They have likewise forgotten the third paragraph of ATTY. CLARO:
Section 12 of the same article which mandates that an admission of facts
related to a crime must be obtained with the assistance of counsel; otherwise When you were conducting an
it would be inadmissible in evidence against the person so admitting. 55 investigation, and you saw me at the NBI
building, Naga City, you were' referring to
An admission which, under Section 26 of Rule 130 of the Rules of Court, is the investigation of Mr. Canape, am I
an "act, declaration or omission of a party as to a relevant fact" is different right?
from a confession which, in turn, is defined in Section 33 of the same Rule
as the "declaration of an accused acknowledging his guilt of the Offense A Yes, sir.
charged, or of any offense necessarily included therein." Both may be given
in evidence against the person admitting or confessing. In People
vs. Lorenzo, 56 the Court explained that in a confession there is an Q And that investigation you were
acknowledgment of guilt while in an admission the statements of fact by the conducting was reduced to writing, and
accused do not directly involve an acknowledgment of guilt or of the criminal that is now Exhibit "G", am I right?
intent to commit the offense with which the accused is charged.
A That is not.
Appellants verbally intimated facts relevant to the commission of the crime to
the NBI agents in Naga City. This is shown by the testimony of NBI Agent
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 116

Q But you investigated Mr. Canape in Not yet. We were only asking him.
Naga City at the NBI building, am I right,
tell the Court? ATTY. CLARO:

A At that time, we were taking the By him, whom are you referring to:
statement of the woman, the complainant,
in the estafa case, and the; other
witnesses. A The complainants and the witnesses,
sir.
COURT:
Q All right. You were with Atty. Vela when
you conducted an investigation to (sic) Mr.
You mean, at the time you investigated Canape, am I right? In Naga City?
that estafa complaint, that was the time
when you also investigated Canape, is
that what you mean? WITNESS:

FISCAL VELAZCO: Yes, sir.

No, your Honor. Q And Mr. Vela at that time, was also
conducting an investigation to (sic) a
certain Rene Januario in Naga City, is that
COURT: right?

But there is a question of counsel. You A. No. We took the statement in Manila.
better clarify that.
COURT:
WITNESS:
You took the statement in Manila. How
He was asking me if I had already taken about in Naga, that is the question of
the statement of Canape. counsel?

COURT: A Naga, no statement yet.

That is it, sir, Naga City. That is the ATTY. CLARO:

question.
Mr. Toribio, because you were with Mr.
WITNESS: Vela, Mr. Vela did not conduct any
investigation to (sic) Mr. Januario, one of

the accused in this case, in Naga City?
Tell the Court?
A Not yet at that time, because it was
useless. The crime was committed in
Silang, Cavite. They will have to be
brought to Manila for the appropriate
Judge or Fiscal.
COURT:
So, you are claiming that you did not
conduct any investigation of Canape?
A We conducted an investigation. When
we took the statement of the other
witnesses, complainant and witnesses.
COURT:
Does that satisfy you?
ATTY. CLARO:
No.
COURT;
Please clarify the question.
WITNESS:
It is true that we were sometimes talking
with those people, but not investigating
them yet. 58 (Emphasis supplied.)
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 117
Note should also be taken of the fact that according to Atty. Saunar, when he
acceded to be the custodial investigation counsel of appellants, the latter had
already confessed. Thus:
COURT:
There is one thing that he would like to
add, 'that I talked to the accused one by
one,' you want to add something?
A And I confirmed with them whether they
are confessing to their crime, and they
said yes. In fact, from what I: observed,
they have already confessed to the NBI
agents.
COURT:
All of them confessed?
A Yes, your Honor, because they also told
me what happened .
FISCAL VELAZCO:
Now, when they informed you that they
intend to confess, now, did you explain to
them, to the accused or to the persons
under investigation the consequences of
confessing?
A Yes, that is basic. I informed them of
their rights to remain silent and to counsel,
and whatever they will confess there will
be used against them during the trial of
this case.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 118

Q How about that ultimate consequence of A They were still confessing at that time,
admission? your Honor.

A Yes. I told them that if they confess, ATTY. ZALDIVAR:

they will have to go to prison.
I just want to manifest into the record that
Q And what were their answers? they have already confessed; that the
witness has just repeated the word .
A Actually, they have already confessed to
their crime before I talked to them. COURT:

x x x           x x x          x x x But there is an explanation by him. Put

that on record, all of them.
ATTY. ZALDIVAR:
FISCAL VELAZCO:
Your Honor, the witness has just
answered during the preliminary question Now, did you verify whether that
of the Fiscal that at the time his assistance confession was only verbal or in writing?
was sought by the NBI, the accused had
in fact already confessed. A That was only verbal that is why there is
a need for the sworn statement to be
COURT: taken. That was the time that I was telling
them that they can be put to
I am now asking him, have you said that? jail. 59 (Emphasis supplied)

A They have already confessed. It is therefore clear that prior to the execution of the sworn statements at the
NBI head office, appellants had already made verbal admissions of
complicity in the crime. Verbal admissions, however, should also be made
ATTY. ZALDIVAR: with the assistance of counsel. Thus:

We can review the transcript of The verbal admissions allegedly made by both appellants of
stenographic notes. their participation in the crime, at the time of their arrest and
even before their formal investigation, are inadmissible,
COURT: both as violative of their constitutional rights and as hearsay
evidence. These oral admissions, assuming they were in
What do you mean by that? fact made, constitute uncounselled extrajudicial confessions
within the meaning of Article III, Section 12 of the
Constitution. 60

That appellants indeed admitted participation in the commission of the crime
in Naga City is shown by the fact that the NBI agents brought them to Manila
to facilitate apprehension of the other culprits who could be either in Cavite
or Manila. Because their uncounselled oral admissions in Naga City resulted
in the execution of their written confessions in Manila, the latter had become
as constitutionally infirm as the former. In People vs. Alicando, 61 this Court
explained the ramifications of an irregularly counselled confession or
admission:
We have not only constitutionalized the Miranda
warnings in our jurisdiction. We have also adopted the
libertarian exclusionary rules known as the "fruit of the
poisonous tree," a phrase minted by Mr. Justice Felix
Frankfurter in the celebrated case of Nardone v. United
States. According to this rule, once theprimary source (the
"tree") is shown to have been unlawfully obtained,
any secondary or derivative evidence (the "fruit") derived
from it is also inadmissible. Stated otherwise, illegally
seized evidence is obtained as a direct result of the illegal
act, whereas the "fruit of the poisonous tree" is the indirect
result of the same illegal act. The fruit of the poisonous tree
is at least once removed from the illegally seized evidence,
but is equally inadmissible. The rule is based on the
principle that evidence illegally obtained by the State should
not be used to gain other evidence because the originally
illegally obtained evidence taints all evidence sub-
sequently obtained.
Appellants might have indeed committed the crime in concert with Eliseo
Sarita and Eduardo Sarinos. However, what could have been their valuable
admissions and confessions as far as the prosecution was concerned were
sullied and rendered inadmissible by the irregular manner by which the law
enforcement agents extracted such admissions and confessions from
appellants Without such statements, the remaining prosecution evidence —
consisting mostly of hearsay testimony and investigation reports — is sorely
inadequate to prove appellants' participation in the crime.
Notably, these law enforcers did not only defy the mandate of Section 12 of
the Bill of Rights but, after making "inquiries" from appellants about the
crime, they likewise illegally detained appellants as shown by the admission
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 119
of one of the NBI agents that appellants were deprived of their liberty while in
their custody. 62 Appellants were even made to travel for ten (10)
hours 63 from Naga City to Manila just so their formal confessions could be
executed in the latter city. According to NBI Agent Vela, they "actually
arrested" the appellants when the court issued the warrant for their
arrest. 64 The records show however that the NBI turned appellants over to
the Municipal Circuit Trial Court of Silang-Amadeo in Cavite only on March
30, 1989. On the same day, the same court turned them back to the NBI for
"detention during pendency of the case. 65
Epilogue
The Court understands the difficulties faced by law enforcement agencies in
apprehending violators of the law especially those involving syndicates. It
sympathizes with the public clamor for the bringing of criminals before the
altar of justice. However, quick solution of crimes and the consequent
apprehension of malefactors are not the end-all and be- all of law
enforcement. Enforcers of the law must follow the procedure mandated by
the Constitution and the law. Otherwise, their efforts would be meaningless.
And their expenses in trying to solve crimes would constitute needless
expenditures of taxpayers' money.
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. The admonition given
by this Court to government officers, particularly those involved in law
enforcement and the administration of justice, in the case of People
vs. Cuizon, 66 where NBI agents mishandled a drug bust operation and in so
doing violated the constitutional guarantees against unlawful arrests and
illegal searches and seizures, is again called for and thus reiterated in the
case at bench, to wit:
. . . In the final analysis, we in the administration of justice
would have no right to expect Ordinary people to be law
abiding if we do not insist on the full protection of their
rights. Some lawmen, Prosecutors and judges may still tend
to gloss over an illegal search and seizure as long as the
law enforcers show the alleged evidence of the crime
regardless of the methods by which they were Obtained.

This kind of attitude condones law-breaking in the name of
law enforcement. Ironically, it only fosters the more rapid
breakdown of our system of justice, and the eventual
denigration of society. While this Court appreciates and
encourages the efforts of law enforcers to uphold the law
and to Preserve the peace and security of Society, we
nevertheless admonish them to act with deliberate care anti
within the parameters set by the Constitution and the law.
Truly, the end never justifies the means. 67
WHEREFORE, the questioned Decision of the Regional Trial Court of
Cavite, Branch 18 in Tagaytay City, is hereby REVERSED and SET ASIDE.
Appellants Rene Januario and Efren Canape are ACQUITTED. Let a copy of
this Decision be furnished the Director General, Philippine National Police
and the Director, National Bureau of investigation " order that Eliseo Sarita
and Eduardo Sarinos, who are still at large, may be apprehended and this
time properly investigated and prosecuted
The accused-appellants are hereby ORDERED RELEASED immediately
unless they are being detained for some other legal cause.
SO ORDERED,
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 120
G.R. No. 145176. March 30, 2004.*
PEOPLE OF THE PHILIPPINES, appellee, vs. SANTIAGO PERALTA y
POLIDARIO (at large), ARMANDO DATUIN, JR. y GRANADOS (at large),
ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO,
LIBRANDO FLORES y CRUZ and ANTONIO LOYOLA y SALISI, accused,
ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO,
LIBRANDO FLORES y CRUZ and ANTONIO LOYOLA y SALISI,
appellants.
Constitutional Law; Right to Counsel; The right to counsel has been written
into our Constitution in order to prevent the use of duress and other undue
influence in extracting confessions from a suspect in a crime; The basic law
specifically requires that any waiver of this right must be in writing and
executed in the presence of a counsel.—The right to counsel has been
written into our Constitution in order to prevent the use of duress and other
undue influence in extracting confessions from a suspect in a crime. The
basic law specifically requires that any waiver of this right must be made in
writing and executed in the presence of a counsel. In such case, counsel
must not only ascertain that the confession is voluntarily made and that the
accused understands its nature and consequences, but also advise and
assist the accused continuously from the time the first question is asked by
the investigating officer until the signing of the confession.
Same; Same; The accused is entitled to effective, vigilant and independent
counsel.—Hence, the lawyer’s role cannot be reduced to being that of a
mere witness to the signing of a pre-prepared confession, even if it indicated
compliance with the constitutional rights of the accused. The accused is
entitled to effective, vigilant and independent counsel. Same; Same;
Confessions; The trial court was in error when it admitted in evidence the
uncounselled confessions of Garcia and convicted the appellants on the
basis thereof.—A waiver in writing, like that which the trial court relied upon
in the present case, is not enough. Without the assistance of a counsel, the
waiver has no evidentiary relevance. The Constitution states that “[a]ny
confession or admission obtained in violation of [the aforecited Section 12]

shall be inadmissible in evidence x x x.” Hence, the trial court was in error
when it admitted in evidence the uncounseled confessions of Garcia and
convicted appellants on the basis thereof. The question of whether he was
tortured becomes moot.
Same; Arrests; Searches and Seizures; The Constitution proscribes
unreasonable searches and seizures of whatever nature.—The Constitution
proscribes unreasonable searches and seizures of whatever nature. Without
a judicial warrant, these are allowed only under the following exceptional
circumstances: (1) a search incident to a lawful arrest, (2) seizure of
evidence in plain view, (3) search of a moving motor vehicle, (4) customs
search, (5) stop and frisk situations, and (6) consented search.
Same; Same; Same; Where the arrest was incipiently illegal, it follows that
the subsequent search was similarly illegal.—Where the arrest was
incipiently illegal, it follows that the subsequent search was similarly illegal.
Any evidence obtained in violation of the constitutional provision is legally
inadmissible in evidence under the exclusionary rule. In the present case,
the perforated P100 currency notes were obtained as a result of a search
made without a warrant subsequent to an unlawful arrest; hence, they are
inadmissible in evidence.
Same; Same; Same; The legality of an arrest can be contested only by the
party whose rights have been impaired thereby; Objection to an unlawful
search and seizure is purely personal, and third parties cannot avail
themselves of it.—Moreover, untenable is the solicitor general’s argument
that Appellants De Leon, Flores and Loyola waived the illegality of the arrest
and seizure when, without raising objections thereto, they entered a plea of
guilty. It was Garcia who was unlawfully arrested and searched, not the
aforementioned three appellants. The legality of an arrest can be contested
only by the party whose rights have been impaired thereby. Objection to an
unlawful search and seizure is purely personal, and third parties cannot avail
themselves of it. People vs. Peralta, 426 SCRA 472, G.R. No. 145176 March
30, 2004.
DECISION
PANGANIBAN, J.:
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 121
The right of the accused to counsel demands effective, vigilant and
independent representation. The lawyer’s role cannot be reduced to being
that of a mere witness to the signing of an extra-judicial confession.
The Case
Before the Court is an appeal from the August 21, 2000 Decision 1 of the
Regional Trial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-
112322. Appellants Ulysses Garcia y Tupas, Miguelito de Leon y Luciano,
Librando Flores y Cruz and Antonio Loyola y Salisi, as well as their co-
accused -- Santiago Peralta y Polidario and Armando Datuin Jr. y Granados
-- were convicted therein of qualified theft. The dispositive portion of the
Decision reads:
"WHEREFORE, the accused, Santiago Peralta y Polidario, Armando Datuin,
Jr. y Granados, Ulysses Garcia y Tupas, Miguelito De Leon y Luciano,
Librando Flores y Cruz and Antonio Loyola y Salisi, are hereby convicted of
the crime of qualified theft of P194,190.00 and sentenced to suffer the
penalty of reclusion perpetua with all the accessory penalties provided by
law, and to pay the costs. Moreover, all the accused are ordered to pay the
Central Bank of the Philippines, now Bangko Sentral ng Pilipinas, actual
damages in the sum of P194,190.00 with interest thereon at the legal rate
from the date of the filing of this action, November 9, 1992, until fully paid." 2
In an Information dated November 9, 1992, 3 appellants and their co-accused
were charged as follows:
"That sometime in the year 1990 and including November 4, 1992, in the City
of Manila, Philippines, the said accused, conspiring and confederating with
others whose true names, identities and present whereabouts are still
unknown and helping one another, did then and there wilfully, unlawfully and
feloniously, with intent to gain and without the knowledge and consent of the
owner thereof, take, steal and carry away punctured currency notes due for
shredding in the total amount of P194,190.00, belonging to the Central Bank
of the Philippines as represented by Pedro Labita y Cabriga, to the damage
and prejudice of the latter in the aforesaid sum of P194,190.00 Philippine
currency;

"That said accused Santiago Peralta y Polidario, Armando Datuin, Jr. y
Granados, Ulysses Garcia y Tupas, Miguelito de Leon y Luciano and
Antonio Loyola y Salisi committed said offense with grave abuse of
confidence they being at the time employed as Currency Reviewers, Driver,
Currency Assistant I and Money Counter of the offended party and as such
they had free access to the property stolen."4
Garcia was arrested on November 4, 1992; and his co-accused, on
November 9, 1992. Appellants, however, obtained two Release Orders from
RTC Vice Executive Judge Corona Ibay-Somera on November 9 and 10,
1992, upon their filing of a cash bond to secure their appearance whenever
required by the trial court.5
During their arraignment on May 4, 1993, appellants, assisted by their
respective counsels, pleaded not guilty. 6 On September 30, 1998, the trial
court declared that Datuin Jr. and Peralta were at large, because they had
failed to appear in court despite notice.7
After trial in due course, they were all found guilty and convicted of qualified
theft in the appealed Decision.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presents the prosecution’s version
of the facts as follows:
"About 10:00 o’clock in the morning of November 4, 1992, Pedro
Labita of Central Bank of the Philippines (CBP) [now Bangko Sentral
ng Pilipinas (BSP)] went to the Theft and Robbery Section of
Western Police District Command (WPDC), and filed a complaint for
Qualified Theft against Santiago Peralta, Armando Datuin, Jr.,
Ulysses Garcia, Miguelito de Leon, Librando Flores and Antonio S.
Loyola.
"Pedro Labita submitted to SPO4 Cielito Coronel, the investigating
officer at WPDC, punctured currency notes in P100.00 and P500.00
bills with a face value of Php194,190.00. Said notes were allegedly
recovered by the BSP Cash Department during its cash counting of
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 122
punctured currency bills submitted by different banks to the latter.
The punctured bills were rejected by the BSP money counter
machine and were later submitted to the investigation staff of the
BSP Cash Department. As a result of the investigation, it was
determined that said rejected currency bills were actually punctured
notes already due for shredding. These currency bills were
punctured because they were no longer intended for circulation.
Before these notes could be shredded, they were stolen from the
BSP by the above-named accused.
"On the basis of the complaint filed by Pedro Labita, Ulysses Garcia
was apprehended in front of Golden Gate Subdivision, Las Piñas
City, while he was waiting for a passenger bus on his way to the
BSP. Garcia was brought to the police station for investigation.
"On November 4, 5 and 6, 1992, while in the custody of the police
officers, Garcia gave three separate statements admitting his guilt
and participation in the crime charged. He also identified the other
named accused as his cohorts and accomplices and narrated the
participation of each and everyone of them.
"On the basis of Garcia’s sworn statements, the other named
accused were invited for questioning at the police station and were
subsequently charged with qualified theft together with
Garcia."8 (Citations omitted)
Version of the Defense
The defense states its version of the facts in the following manner:
"Accused-appellant Garcia served as a driver of the armored car of
the Central Bank from 1978 to 1994.
"On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man
who had identified himself as a police officer arrested accused-
appellant Garcia while waiting for a passenger bus in front of the
Golden Gate Subdivision, Las Piñas City. He was arrested without
any warrant for his arrest. The police officer who had arrested

accused-appellant Garcia dragged the latter across the street and
forced him to ride x x x a car.
"While inside the car, he was blindfolded, his hands were
handcuffed behind his back, and he was made to bend with his
chest touching his knees. Somebody from behind hit him and he
heard some of the occupants of the car say that he would be
salvaged if he would not tell the truth. When the occupants of the
car mentioned perforated notes, he told them that he does not know
anything about those notes.
"After the car had stopped, he was dragged out of the car and x x x
up and down x x x the stairs. While being dragged out of the car, he
felt somebody frisk his pocket.
"At a safe house, somebody mentioned to him the names of his co-
accused and he told them that he does not know his co-accused x x
x. Whenever he would deny knowing his co-accused, somebody
would box him on his chest. Somebody poured water on accused-
appellant Garcia’s nose while lying on the bench. He was able to
spit out the water that had been poured on his nose [at first], but
somebody covered his mouth. As a result, he could not breath[e].
"When accused-appellant Garcia realized that he could not bear the
torture anymore, he decided to cooperate with the police, and they
stopped the water pouring and allowed him to sit down.
"Accused-appellant Garcia heard people talking and he heard
somebody utter, ‘may nakikinig.‘ Suddenly his two ears were hit with
open palm[s] x x x. As he was being brought down, he felt
somebody return his personal belongings to his pocket. Accused-
appellant Garcia’s personal belongings consisted of [his] driver’s
license, important papers and coin purse.
"He was forced to ride x x x the car still with blindfold. His blindfold
and handcuffs were removed when he was at the office of police
officer Dante Dimagmaliw at the Western Police District, U.N.
Avenue, Manila.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 123
"SPO4 Cielito Coronel asked accused-appellant Garcia about the
latter’s name, age and address. The arrival of Mr. Pedro Labita of
the Cash Department, Central Bank of the Philippines, interrupted
the interview, and Mr. Labita instructed SPO4 Coronel to get
accused-appellant Garcia’s wallet and examine the contents thereof.
SPO4 Coronel supposedly found three pieces of P100 perforated
bill in accused-appellant Garcia’s wallet and the former insisted that
they recovered the said perforated notes from accused-appellant’s
wallet. SPO4 Coronel took down the statement of Mr. Labita.
"It was actually Mr. Labita, and not accused-appellant Garcia, who
gave the answers appearing in accused-appellant Garcia’s alleged
three sworn statements dated November 4, 1992, November 5,
1992 and x x x November 6, 1992.
"At or about 6:00 p.m. on November 5, 1992, accused-appellant
Garcia was brought to the cell of the Theft and Robbery Section of
the WPD. At or about 8:00 p.m., he was brought to the office of Col.
Alladin Dimagmaliw where his co-accused were also inside. He did
not identify his co-accused, but he merely placed his hands on the
shoulders of each of his co-accused, upon being requested, and Mr.
Labita took x x x pictures while he was doing the said act.
"Accused-appellant Garcia came to know Atty. Francisco Sanchez
of the Public Attorney’s Office on November 4, 1992, at the office of
police officer Dante Dimagmaliw, when SPO4 Coronel introduced
Atty. Sanchez to accused-appellant Garcia and told him that Atty.
Sanchez would be his lawyer. However, accused-appellant Garcia
did not agree to have Atty. Sanchez to be his lawyer. Atty. Sanchez
left after talking to SPO4 Coronel, and accused-appellant Garcia
had not met Atty. Sanchez anymore since then. He was not present
when Atty. Sanchez allegedly signed x x x the alleged three (3)
sworn statements.
"During the hearing of the case on April 6, 2000, Atty. Sanchez
manifested in open court that he did not assist accused-appellant
Garcia when the police investigated accused-appellant Garcia, and
that he signed x x x the three (3) sworn statements only as a
witness thereto.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 124

"Accused-appellant Garcia signed the alleged three sworn Issues

statements due to SPO4 Coronel’s warning that if he would not do
so, he would again be tortured by water cure. In his Brief, Garcia raises the following issues:

"SPO[4] Coronel caused the arrest without any warrant of accused "1
appellants De Leon, Loyola, [Flores] on the basis of the complaint of
Mr. Pedro Labita, and which arrest was effected on November 5,
1992, by SPO1 Alfredo Silva and SPO1 Redelico. The trial court erred in admitting in evidence the alleged three Sworn
Statements of Accused-appellant Garcia and the alleged three pieces of
P100 perforated notes
"SPO4 Coronel, in his letter dated November 6, 1992, forwarded the
case to the Duty Inquest Prosecutor assigned at the WPDC
Headquarters."9 (Citations omitted) "2

Ruling of the Trial Court The trial court erred in finding the accused-appellant guilty of qualified
theft."11
The trial court found that all the accused used to work for the BSP. Garcia
was a driver assigned to the Security and Transport Department; while In their joint Brief, De Leon, Loyola and Flores interpose this additional
Peralta, Datuin Jr., De Leon, Flores and Loyola were laborers assigned to assignment of errors:
the Currency Retirement Division. Their main task was to haul perforated
currency notes from the currency retirement vault to the basement of the "1
BSP building for shredding.
The trial court erred in admitting in evidence the alleged three sworn
On several occasions, during the period 1990-1992, they handed to Garcia statements of Accused Ulysses Garcia (Exhibits ‘I’, ‘J’ and ‘K’) and the
perforated currency notes placed in a coin sack that he, in turn, loaded in an alleged three pieces of P100 perforated notes (Exhibits ‘N’ to ‘N-2’) over the
armored escort van and delivered to someone waiting outside the premises objections of the accused-appellants.
of the building. The trial court held that the coordinated acts of all the
accused unerringly led to the conclusion that they had conspired to pilfer the "2
perforated currency notes belonging to the BSP.
The trial court erred in denying the demurrer to evidence of Accused-
The RTC rejected the disclaimer by Garcia of his own confessions, as such appellants De Leon, Loyola and Flores;
disclaimer was "an eleventh hour concoction to exculpate himself and his co-
accused." The trial court found his allegations of torture and coerced "3
confessions unsupported by evidence. Moreover, it held that the recovery of
three pieces of perforated P100 bills from Garcia’s wallet and the flight of
Peralta and Datuin Jr. were indicative of the guilt of the accused. The trial court erred in denying the Motion for Reconsideration of the Order
denying the demurrer to evidence;
Hence, this appeal.10
"4

The trial court erred when it failed to consider the evidence adduced by the
accused-appellants, consisting of exhibits ‘1’, ‘2’ to ‘2-B’, ‘3’ and ‘4’ and the
testimony of their witness, State Auditor Esmeralda Elli;
"5
The trial court erred in finding the accused-appellants guilty of qualified
theft."12
Simplified, the issues are as follows: (1) the sufficiency of the evidence
against appellants, including the admissibility of Garcia’s confessions and of
the three perforated P100 currency notes; and (2) the propriety of the denial
of their demurrer to evidence.
The Court’s Ruling
The appeal has merit.
First Issue:
Sufficiency of Evidence
The trial court convicted appellants mainly on the strength of the three
confessions given by Garcia and the three perforated P100 currency notes
confiscated from him upon his arrest. Appellants, however, contend that
these pieces of evidence are inadmissible.
Extrajudicial Confessions
Appellants aver that the alleged three Sworn Statements of Garcia were
obtained without the assistance of counsel in violation of his rights under
Article III, Section 12 (1) and (2) of the 1987 Constitution, which provides
thus:
"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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 125
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, incomunicado, or other similar forms of detention are prohibited."
On the other hand, the OSG contends that counsel, Atty. Francisco Sanchez
III of the Public Attorney’s Office, duly assisted Garcia during the custodial
investigation.
It is clear from a plain reading of the three extrajudicial confessions 13 that
Garcia was not assisted by Atty. Sanchez. The signature of the latter on
those documents was affixed after the word "SAKSI." Moreover, he
appeared in court and categorically testified that he had not assisted Garcia
when the latter was investigated by the police, and that the former had
signed the Sworn Statement only as a witness.14
The written confessions, however, were still admitted in evidence by the RTC
on the ground that Garcia had expressed in writing his willingness and
readiness to give the Sworn Statements without the assistance of counsel.
The lower court’s action is manifest error.
The right to counsel has been written into our Constitution in order to prevent
the use of duress and other undue influence in extracting confessions from a
suspect in a crime. The basic law specifically requires that any waiver of this
right must be made in writing and executed in the presence of a counsel. In
such case, counsel must not only ascertain that the confession is voluntarily
made and that the accused understands its nature and consequences, but
also advise and assist the accused continuously from the time the first
question is asked by the investigating officer until the signing of the
confession.
Hence, the lawyer’s role cannot be reduced to being that of a mere witness
to the signing of a pre-prepared confession, even if it indicated compliance
with the constitutional rights of the accused. 15 The accused is entitled to
effective, vigilant and independent counsel.16

A waiver in writing, like that which the trial court relied upon in the present
case, is not enough. Without the assistance of a counsel, the waiver has no
evidentiary relevance.17 The Constitution states that "[a]ny confession or
admission obtained in violation of [the aforecited Section 12] shall be
inadmissible in evidence x x x." Hence, the trial court was in error when it
admitted in evidence the uncounseled confessions of Garcia and convicted
appellants on the basis thereof. The question of whether he was tortured
becomes moot.
Perforated Currency Notes
Appellants contend that the three P100 perforated currency notes (Exhibits
"N" to "N-2") allegedly confiscated from Garcia after his arrest were "fruits of
the poisonous tree" and, hence, inadmissible in evidence.
The solicitor general evades the issue and argues, instead, that appellants
waived the illegality of their arrest when they entered a plea. He further
contends that the exclusion from the evidence of the three punctured
currency bills would not alter the findings of the trial court.
The police arrested Garcia without a warrant, while he had merely been
waiting for a passenger bus after being pointed out by the Cash Department
personnel of the BSP. At the time of his arrest, he had not committed, was
not committing, and was not about to commit any crime. Neither was he
acting in a manner that would engender a reasonable ground to suspect that
he was committing a crime. None of the circumstances justifying an arrest
without a warrant under Section 5 of Rule 113 of the Rules of Court was
present.
Hence, Garcia was not lawfully arrested. Nonetheless, not having raised the
matter before entering his plea, he is deemed to have waived the illegality of
his arrest. Note, however, that this waiver is limited to the arrest. It does not
extend to the search made as an incident thereto or to the subsequent
seizure of evidence allegedly found during the search.
The Constitution proscribes unreasonable searches and seizures 18 of
whatever nature. Without a judicial warrant, these are allowed only under the
following exceptional circumstances: (1) a search incident to a lawful arrest,
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 126
(2) seizure of evidence in plain view, (3) search of a moving motor vehicle,
(4) customs search, (5) stop and frisk situations, and (6) consented search. 19
Where the arrest was incipiently illegal, it follows that the subsequent search
was similarly illegal.20 Any evidence obtained in violation of the constitutional
provision is legally inadmissible in evidence under the exclusionary rule. 21In
the present case, the perforated P100 currency notes were obtained as a
result of a search made without a warrant subsequent to an unlawful arrest;
hence, they are inadmissible in evidence.
Moreover, untenable is the solicitor general’s argument that Appellants De
Leon, Flores and Loyola waived the illegality of the arrest and seizure when,
without raising objections thereto, they entered a plea of guilty. It was Garcia
who was unlawfully arrested and searched, not the aforementioned three
appellants. The legality of an arrest can be contested only by the party
whose rights have been impaired thereby. Objection to an unlawful search
and seizure is purely personal, and third parties cannot avail themselves of
it.22
Indeed, the prosecution sufficiently proved the theft of the perforated
currency notes for retirement. It failed, however, to present sufficient
admissible evidence pointing to appellants as the authors of the crime.
The evidence presented by the prosecution shows that there were other
people who had similar access to the shredding machine area and the
currency retirement vault.23 Appellants were pinpointed by Labita because of
an anonymous phone call informing his superior of the people allegedly
behind the theft; and of the unexplained increase in their spending, which
was incompatible with their income. Labita, however, did not submit sufficient
evidence to support his allegation.
Without the extrajudicial confession and the perforated currency notes, the
remaining evidence would be utterly inadequate to overturn the constitutional
presumption of innocence.
Second Issue:
Demurrer to Evidence
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 127

Appellants contend that the trial court seriously erred when it denied the
demurrer to evidence filed by Appellants Loyola, De Leon and Flores. Not
one of the documents offered by the prosecution and admitted in evidence
by the RTC established the alleged qualified theft of perforated notes, and
not one of the pieces of evidence showed appellants’ participation in the
commission of the crime.

On the exercise of sound judicial discretion rests the trial judge’s

determination of the sufficiency or the insufficiency of the evidence
presented by the prosecution to establish a prima facie case against the
accused. Unless there is a grave abuse of discretion amounting to lack of
jurisdiction, the trial court’s denial of a motion to dismiss may not be
disturbed.24

As discussed earlier, the inadmissibility of the confessions of Garcia did not
become apparent until after Atty. Francisco had testified in court. Even if the
confiscated perforated notes from the person of the former were held to be
inadmissible, the confessions would still have constituted prima facie
evidence of the guilt of appellants. On that basis, the trial court did not abuse
its discretion in denying their demurrer to evidence.
WHEREFORE, the assailed Decision is REVERSED and SET ASIDE.
Appellants are hereby ACQUITTED and ordered immediately RELEASED,
unless they are being detained for any other lawful cause. The director of the
Bureau of Corrections is hereby directed to submit his report on the release
of the appellant or the reason for his continued detention within five (5) days
from notice of this Decision. No costs.
SO ORDERED.
Davide Jr., CJ.,(Chairman) Panganiban, Ynares-Santiago, Carpio, and
Azcuna, JJ concur.
G.R. No. 129295. August 15, 2001.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN MORIAL,
LEONARDO MORIAL alias “CARDING” and NONELITO ABIÑON ** alias
“NOLY,” defendants-appellants.
Criminal Law; Constitutional Law; Right to Counsel; Meaning of Custodial
Investigation; Rights guaranteed a person under custodial investigation.—A
custodial investigation is understood to mean as “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.” It begins when
there is no longer a general inquiry into an unsolved crime but starts to focus
on a particular person as a suspect, i.e., when the police investigator starts
interrogating or exacting a confession from the suspect in connection with an
alleged offense. A person under custodial investigation is guaranteed certain
rights, which attach upon the commencement thereof. These are the rights
(1) to remain silent, (2) to competent and independent counsel, preferably of
his own choice, and (3) to be informed of the two other rights. The
prosecution must prove with clear and convincing evidence that the accused
was accorded said rights before he extra-judicially admitted his guilt to the
authorities.

Same; Same; Same; An accused under custodial investigation must
continuously have a counsel assisting him from the very start thereof.—The
Court has stressed that an accused under custodial interrogation must
continuously have a counsel assisting him from the very start thereof. In
People vs. Lucero, where the suspect’s counsel left just when the
interrogation was starting, this Court chastised both counsel and the trial
court for their lack of zeal in safeguarding the rights of the accused.
Same; Same; Same; For even as the person under custodial investigation
enjoys the right to counsel from its inception so does he enjoy such right until
its termination—indeed, “in every phase of the investigation.”—Neither can
Atty. Aguilar rationalize his abandoning his client by saying that he left only
after the latter had admitted the “material points,” referring to the three
accused’s respective participation in the crime. For even as the person under
custodial investigation enjoys the right to counsel from its inception, so does
he enjoy such right until its termination—indeed, “in every phase of the
investigation.” An effective and vigilant counsel “necessarily and logically
requires that the lawyer be present and able to advise and assist his client
from the time the confessant answers the first question asked by the
investigating officer until the signing of the extrajudicial confession.”
Same; Same; Same; Section 2 (a) of RA. No. 7438 requires that any person
arrested, detained or under custodial investigation shall at all times be
assisted by counsel.—Furthermore, Section 2(a) of R.A. No. 7438 requires
that “[a]ny person arrested, detained or under custodial investigation shall at
all times be assisted by counsel.” The last paragraph of Section 3 of the
same law mandates that “[i]n the absence of any lawyer, no custodial
investigation shall be conducted.”
Same; Same; Same; Fact that the extra-judicial confession was
subsequently signed in the presence of counsel did not cure its constitutional
defects.—Even granting that appellant consented to Atty. Aguilar’s departure
during the investigation and to answer questions during the lawyer’s
absence, such consent was an invalid waiver of his right to counsel and his
right to remain silent. Under Section 12 (3), Article III of the Constitution,
these rights cannot be waived unless the same is made in writing and in the
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 128
presence of counsel. No such written and counseled waiver of these rights
was offered in evidence. That the extra-judicial confession was subsequently
signed in the presence of counsel did not cure its constitutional defects.
Same; Same; Same; Evidence; It is well settled that where there is
independent evidence, apart from the accused’s alleged uncounselled
confession, that the accused is truly guilty, the latter nevertheless faces a
conviction.—Notwithstanding the inadmissibility of the extrajudicial
confession executed by Leonardo Morial, the conviction of appellants is fully
supported by the other pieces of evidence adduced by the prosecution. It is
well settled that where there is independent evidence, apart from the
accused’s alleged uncounseled confession, that the accused is truly guilty,
the latter nevertheless faces a conviction.
Criminal Procedure; Evidence; Witnesses; The weight of testimony of a
witness is not impaired or in any way affected by his relationship to the victim
when there is no showing of improper motive on the part of the witness.—
The defense has tried to discredit Guilao by harping on the latter’s
relationship with private complainant, Benjamin Morial, who is the brother of
Gabriel’s wife, conveniently forgetting that Gabriel is also related to all of the
accused who are all his nephews. On this score, the Court has held that the
weight of testimony of a witness is not impaired or in any way affected by his
relationship to the victim when there is no showing of improper motive on the
part of the witness. A person who was close to the victim would not callously
violate his conscience by blaming it on someone he believed innocent
thereof, especially if the accused were his blood relatives.
Same; Same; Same; Different people react differently to an unusual event
and there is no standard of behavior when a person becomes a witness to
something so shocking or gruesome as murder especially if the assailant is
near.—Anent the failure of Guilao to either attend to the victims or to report
the matter immediately to the authorities, it should be remembered that
different people react differently to an unusual event and there is no standard
of behavior when a person becomes a witness to something so shocking or
gruesome as murder especially if the assailant is near.

Same; Same; Alibi; Alibi is the weakest of all defenses as it is easy to
fabricate and difficult to disprove, and it is practically worthless in the face of
positive identification of the accused.—The accused have no other excuse
other than alibi. Interestingly, they all testified that they were in their
respective homes at the time of the incident. Edwin Morial was sleeping,
Leonardo Morial was cooking, while Nonelito Abiñon was at home, not doing
anything. In a number of cases, the Court has ruled that alibi is the weakest
of all defenses as it is easy to fabricate and difficult to disprove, and it is
practically worthless in the face of positive identification of the accused. The
Court noted that none of the accused even presented any of their supposed
home companions to prove that they were at home when the killings took
place. In addition, it was not established that it would have been physically
impossible for them to be at the scene of the crime at the time of its
commission.
Same; Same; Conspiracy; Where the acts of the accused collectively and
individually demonstrate the existence of a common design towards the
accomplishment of the same unlawful purpose, conspiracy is evident and all
the perpetrators will be liable as principals; To exempt himself from criminal
liability, the conspirator must have performed an overt act to dissociate or
detach himself from the unlawful plan to commit the felony.—The trial court
also correctly ruled that the accused conspired to commit the crime.
Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony, and decide to commit it. It may be
inferred from the acts of the accused before, during and after the crime,
which are indicative of a joint purpose, concerted action and concurrence of
sentiments. Where the acts of the accused collectively and individually
demonstrate the existence of a common design towards the accomplishment
of the same unlawful purpose, conspiracy is evident and all the perpetrators
will be liable as principals. To exempt himself from criminal liability, the
conspirator must have performed an overt act to dissociate or detach himself
from the unlawful plan to commit the felony.
Same; Same; Aggravating Circumstance; Dwelling; The home is considered
a sacred place to its owners, and one who goes to another house to slander
or hurt him, or do him wrong is more guilty than he who offends him
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 129
elsewhere.—Dwelling was correctly appreciated as an aggravating
circumstance because of the sanctity that the law accords to the privacy of
the human abode. The home is considered a sacred place to its owners, and
one who goes to another house to slander or hurt him, or do him wrong, is
more guilty than he who offends him elsewhere. People vs. Morial, 363
SCRA 96, G.R. No. 129295 August 15, 2001
EN BANC
PER CURIAM:
Two of the three appellants herein were sentenced to death by the Regional
Trial Court (RTC) of Southern Leyte for Robbery with Homicide. The other
was sentenced to suffer only the penalty ofreclusion perpetua on account of
minority. The judgment of conviction is now before this Court on automatic
review.
The information charging appellants reads as follows:
That on the 6th day of January 1996, at about 6:30 o'clock [sic] in
the evening more or less, in [B]arangay Cagnituan, [M]unicipality of
Maasin, [P]rovince of Southern Leyte, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused
conspiring, confederating and mutually helping one another, with
intent to kill and with intent of [sic] gain, entered into [sic] the house
of Paula Bandibas and Benjamin Morial and once inside did then
and there willfully and unlawfully and feloniously attack, assault,
box, beat and stab the victims Paula Bandibas and Albert Bandibas,
with the use of sharp-pointed weapons and stones which the
accused had provided themselves for the purpose, thereby inflicting
upon the victims mortal wounds which caused their instantaneous
death, after [which], said accused took, stole and carried away
therefrom Cash in the amount of Eleven Thousand Pesos
(P11,000.00) Philippine Currency, belonging to said Paula Bandibas
and Benjamin Morial, to the damage and prejudice of the victims
and of social order.
CONTRARY TO LAW.1

Upon arraignment, the three accused pleaded not guilty.
The prosecution theorized that the accused committed the robbery in the
early evening of January 6, 1996 so they would have money to spend for the
dance later that night. To obtain the money or to silence any witnesses, the
accused killed the occupants of the house, Paula Bandibas and her three-
year old grandson Albert. In proving its theory, the prosecution offered the
testimonies of Gabriel Guilao, Benjamin Morial, SPO4 Antonio Macion and
Dr. Teodulo Salas.
The crime allegedly took place at 6:00 in the evening in Barangay Cagnituan,
Maasin, Southern Leyte. Gabriel Guilao, 62, had just finished pasturing his
horses and was on his way home. He was passing through the road near the
house of Benjamin Morial when he heard the voice of Paula Bandibas
pleading, "[P]lease don't kill me[.] I am going to give you money." Finding
what he heard "weird," Gabriel paused and remained at a distance of about
eight (8) meters from the yard of the house. From where he stood, Gabriel
saw accused Nonelito Abiñon slap Paula Bandibas' neck. Paula fell and was
stabbed by accused Edwin Morial with a small, sharp, pointed weapon.
Accused Leonardo Morial stood outside the house.
Gabriel also saw Paula Bandibas' grandson, Albert Bandibas, run towards
his grandmother's garden. Gabriel then heard the crushing sound of a stone
against flesh.
The three accused stayed in the house for about ten minutes after the killing
the victims. Thereafter, they departed and headed towards the nearby
houses.2
Paula Bandibas' common-law husband, Benjamin Morial, 56, was in
neighboring Barangay Maria Clara when the incident took place. He, along
with the father of accused Leonardo Morial, and two others, Heracleo Alonzo
and Leo Padilla, were having drinks in his Maria Clara residence.
Benjamin left Barangay Maria Clara the next day at 2:00 in the afternoon. He
arrived in Barangay Cagnituan, 7½ kilometers away, two hours later. As was
his wont, Benjamin called out Paula's name when he was some five (5)
meters from the house. This time, however, there was no answer.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 130
Benjamin raced to the house, heading straight to the bedroom. There, he
found the clothes all topsy-turvy. The box where he and Paula hid their
money was turned upside down. Someone had ransacked their house.
Benjamin moved back and saw Paula lying on the floor with a cut in her
neck. He shouted for help. Responding to his cries, Benjamin's neighbors,
includingbarangay kagawads Patricio Abiñon and Rufino Guilao, rushed to
his house. Benjamin asked his neighbors to help search for Albert, who was
found shortly some 50 meters from the house. Albert Bandibas laid flat on
the ground with two stones near his head. Benjamin requested Patricio to
send someone to report the incident to the police.3
Upon learning of Benjamin's return to Barangay Cagnituan, Gabriel Guilao
also hurried to Benjamin's house. 4 He revealed to the grieving Benjamin that
he witnessed Paula's killing and that the three accused, Edwin Morial,
Leonardo Morial and Nonelito Abiñon, were the perpetrators. Benjamin
advised Gabriel not to tell anyone about what he knew for fear that they
would all be killed since the Abiñons were "saturated in [their] place." Gabriel
heeded Benjamin's advice.5
The police arrived at around 10:00 that evening. SPO4 Antonio Macion,
along with four other police officers, investigated the tragedy. They found
wounds in Paula Bandibas' stomach, breast and neck. Albert Bandibas, on
the other hand, had a contusion on the right side of his head. Beside him
were two stones.6
After examining the victims' wounds, the police officers, along with Benjamin
Morial, proceeded to the bedroom. Benjamin informed the officers that
P11,000.00 was missing from the moneybox. Other than the cash, nothing
else was missing.
Outside the house, Benjamin disclosed to the officers his three suspects, the
accused in this case. He advised them, however, to bring only Leonardo and
Edwin Morial into custody and not to include Nonelito Abiñon, who had many
relatives in Cagnituan. As a former barangay captain of 22 years, he knew
that the Abiñons were "most feared" in Cagnituan. Benjamin did not tell the
police that Gabriel Guilao had witnessed the incident. 7

The police found Edwin and Leonardo Morial in the house of Nonelito Abiñon
and invited the two to the police station, where they were turned over to
SPO4 Andres Fernandez. The investigation conducted by SPO4 Fernandez
yielded an extra-judicial confession from accused Leonardo Morial, 8 who was
assisted by Atty. Tobias Aguilar.
On January 8, 1996, Dr. Teodulo Salas, a rural health physician, conducted
a post-mortem examination on the bodies of the victims. Dr. Salas found an
incised wound at the upper portion of Paula Bandibas' neck, which he
believed was caused by a sharp-edged weapon or instrument, possibly a
knife. Two stab wounds on the chest below and above the right nipple, both
punctured the lung. Another stab wound at the abdomen pierced the
intestine. Dr. Salas concluded that the cause of death of Paula Bandibas is
severe hemorrhages secondary to the incised wound.
On the remains of Albert Bandibas, Dr. Salas found multiple angular
corrogated wounds on the head, which could have been caused by a heavy
object such as a stone. Multiple stab wounds punctured the skull. There was
also an abrasion on the right side of the face, which was grossly swollen and
disfigured. The abrasion, according to Dr. Salas, might have been caused by
a piece of wood, by friction with the ground, or by some rough material that
struck the child's face. The last injury was a stab wound on the right
forehead. Dr. Salas believed that the cause of death of Albert Bandibas is
the intra-cranial hemorrhages secondary to the violent injury to the
head.9 The foregoing findings and conclusions were reduced to writing in the
doctor's Necropsy Reports.10
The accused, all first-degree cousins, interposed denial and alibi as their
defense. They denied being together at the time of the incident.
Accused Nonelito Abiñon, 22, claimed that he was in his house at around
6:00 in the evening of January 6, 1996. An hour later, he went to the house
of his sweetheart, Rosalie Mepico, and the two later attended a dance at
around 9:30 that evening. At the dance, they occupied a table with Renida
Mepico, Renato Montederamos and Edwin Morial. Leonardo Morial, he said,
was not with them.11
Accused Edwin Morial, 18, maintained that he was also at home on January
6, 1996. He slept from 6:00 until 7:30 in the evening. At 9:00 p.m., he went to
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 131
the dance with Renato Montederamos. Nonelito Abiñon and Reneda Mepico
were also at the dance.12
The defense pinned its bid for exculpation on the lengthy testimony of
accused Leonardo Morial, 20. He narrated as follows:
At around 6:00 to 7:00 p.m. of January 6, 1996, he was at home washing
dishes. He had supper at approximately 7:00 and went to sleep at about 7:30
or 8:00. Unlike his fellow accused, Leonardo did not go to the dance. 13
At 4:00 in the afternoon of the next day, he was in the basketball court of
their barangay watching Nonelito and Edwin playing basketball with Jaime
Morial, Renato Montederamos, Jimmy Abiñon, Danilo Morial and Christopher
Morial, among others.14 Suddenly, they heard Benjamin Morial shout for help
several times.15 Nonelito and Edwin, along with the others in the basketball
court, all rushed to Benjamin Morial's house. 16 Leonardo Morial also
proceeded to Benjamin's house after bringing home his two-year old sister. 17
At the house of Benjamin Morial, they found the lifeless body of Paula
Bandibas on the floor underneath the kitchen table. Her hands were on her
breast, one foot crooked and the other straight. She had wounds in her neck
and breast. The corpse exuded a bad odor. Benjamin Morial was crying. He
said that whoever killed Paula shall pay. 18Edwin asked Daniel Morial who the
suspects to the killing were. Daniel said he did not know. Edwin went home
after about five minutes.19
After viewing Paula Bandibas' remains, Leonardo went out of the house
because of the unpleasant smell and then headed home. 20 Nonelito, on the
other hand, departed as people started looking for the body of Albert
Bandibas since it was getting late. That was about 5:15 in the afternoon. 21
That night, Edwin and Leonardo slept at Nonelito's house. Nonelito had
invited Edwin to sleep over as they were going to dress a chicken, 22 and
Edwin had told Leonardo about it. The cousins had the chicken for dinner. It
was quite late when they finished their supper so Leonardo also decided to
spend the night at Nonelito's house. 23 They slept at past 8:00 in the
evening.24 According to Nonelito, that was not the only time that the two had
slept over. He said there were previous occasions that his cousins had spent
the night at their place.25

The Abiñon household was to be roused from its slumber three hours later.
At 11:00 p.m., the police arrived to investigate the killing of the Bandibases.
A police officer asked Edwin where he was at 6:00 in the evening of January
6, 1996. Edwin replied that he was in their house sleeping. They also asked
the same question to Leonardo Morial, who answered that he was at home
taking care of his younger siblings. Nonelito, however, was not questioned. A
policeman informed Edwin and Leonardo that they would be brought to the
police station for the continuation of the investigation.26
Edwin and Leonardo went with the police officers and arrived at the station at
around 3:00 dawn the next day. The police told them to go to sleep. 27
The suspects were interrogated after they awoke at past 6:00 that same
morning. Edwin was advised to tell the truth so he would not be killed.
Nevertheless, he refused to admit his alleged participation in the killings.
Someone then struck his left hand with a pistol. His hand swelled. A
policeman in uniform warned him that if he did not tell the truth, he would be
brought to the toilet.
Sure enough, Edwin was subsequently brought to the lavatory where he was
boxed at the back and instructed to undress. As Edwin stood naked, hands
on his side, six tires were placed around his body. A towel soaked with water
was pushed into his mouth. Fortunately, the towel did not go all the way to
his throat since another policeman, a certain Leoni Egido, advised Edwin's
tormentors to stop and have pity on him. Edwin said that around seven
policemen were in the toilet with him though he could not identify any of them
in court. He claimed that he did not have his hand examined by a physician
since he was afraid.28
Like Edwin, Leonardo was also asked where he was on January 6, 1996 at
6:00 in the evening. Leonardo reiterated that he was at home. He was then
brought to a separate room where his interrogation continued.
Leonardo refused to own up to the incident so a policeman called two other
policemen and directed them to gag Leonardo. The two held Leonardo's
arms while the other stuffed a shirt into his mouth. One of them inflicted three
successive painful blows on Leonardo's left side as the two others continued
to hold his hands.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 132
Leonardo was then seated and his gag removed. The police told Leonardo to
confess to the killings. Leonardo professed that he did not witness the
incident and could not tell them anything about it. Again, they gagged his
mouth and the same policeman who had hit him then boxed him twice, this
time on his right side. Thereafter, they released their hold and advised him to
confess so they would not kill him. Leonardo repeated that he did not know
anything about the incident. When a policeman attempted to box him again,
Leonardo finally admitted that Nonelito Abiñon and Edwin Morial were
responsible for the death of Paula Bandibas. Leonardo's interrogation lasted
one and a half to two hours.
Asked in court to identify the uniformed policemen who beat him up,
Leonardo said he could not recall their faces. He did not look at the
policemen during his interrogation and did not see their nameplates.
Leonardo did not ask the police for a physician to examine him nor did he tell
anyone about his injuries because he did not know he was permitted to do
so.
Leonardo's statements were then reduced into writing. A policeman informed
him that they were going to contact a lawyer to assist him during the
investigation. Leonardo was told that his counsel would be a certain Atty.
Aguilar whose office was very near the police station. Leonardo consented.
Having prepared Leonardo's statement, the police then told Leonardo to
come with them to Atty. Aguilar's office, which was about 50 meters from the
police station. There, he saw Atty. Aguilar for the first time. The lawyer read
to him the document and asked him whether its contents were true. The
police had instructed Leonardo to answer "yes" if he was asked that
question, and Leonardo heeded the instructions.
Leonardo denied that Atty. Aguilar examined his body for any injuries. Atty.
Aguilar did ask Leonardo if he was forced or intimidated to execute the extra-
judicial confession. Leonardo, however, did not tell his lawyer about his
injuries since a police officer had warned him that he would be mauled again
should he do so. Leonardo then signed the extra-judicial confession, after
which Atty. Aguilar affixed his. The signing over, Leonardo was brought back
to the police station.29 Later in court, Leonardo claimed that he merely made
up all the statements in the document because he was afraid.

At around 8:30 that morning, Nonelito visited Leonardo and Edwin at the
police station. A police officer informed Nonelito that he was one of the
suspects and handcuffed him.30
To belie Gabriel Guilao's eyewitness account, the defense also presented
Patricio Abiñon and Eulogio Padilla. Patricio and Eulogio purportedly saw
Gabriel in Barangay Maria Clara at the alleged time of the incident as well as
the morning after.
On rebuttal, the prosecution offered the testimonies of Flora Bandibas,
Martin Galope and Erlito Bandibas.
Flora and Martin were presented to disprove the testimony of the accused
that Edwin Morial was not at the dance with his co-accused. Flora claimed
that she saw the three together at the dance with Rosalia and Reneda
Mepico occupying one table. Nonelito and Edwin danced joyfully, even
somewhat unusually, and caught the attention of other people. Leonardo
also danced but did not seem to enjoy himself.31
Martin, abarangay tanod, was at the dance to help preserve the peace. He
maintained that he saw all the three accused, including Leonardo Morial, at
the dance.32
The defense attempted to diminish these witnesses' credibility by showing
their relation to the victim. On cross-examination, Flora admitted that she is
the wife of Ireneo Bandibas, the barangay captain, and the son of Paula
Bandibas.33 Martin Galope, for his part, said that the same Ireneo Bandibas
had appointed himbarangay tanod.34
Erlito Bandibas' testimony, on the other hand, was intended to refute the
testimonies of defense witnesses Patricio Abiñon and Eulogio Padilla that
Gabriel Guilao, the alleged eyewitness to the killings, was in Maria Clara at
the purported time of the incident.
On sur-rebuttal, the defense again presented Eulogio Padilla to dispute the
testimony of Erlito Bandibas.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 133
After trial, the RTC rendered a decision convicting all the three accused,
thus:
WHEREFORE, judgment is hereby rendered finding all the accused,
namely: LEONARDO MORIAL, NONELITO ABIÑON and EDWIN
MORIAL, GUILTY beyond reasonable doubt of the crime of
ROBBERY WITH HOMICIDE as defined under Article 293 and
penalized under Article 294 (1) of the Revised Penal Code and are
hereby sentenced as follows:
1. Accused LEONARDO MORIAL and NONELITO ABIÑON to each
suffer the supreme penalty of DEATH by lethal injection; and
2. Accused EDWIN MORIAL, due to his minority, to suffer the lesser
penalty of RECLUSION PERPETUA.
Civilly, the three (3) accused aforenamed are held liable JOINTLY
and SEVERALLY as follows:
3. To indemnify the heirs of Paula Bandibas the amount of
P50,000.00 as death indemnity;
4. To indemnify the heirs of Albert Bandibas the amount of
P50,000.00 as death indemnity;
5. To indemnify complainant Benjamin Morial the amount of
P20,546.00 as actual damages for the funeral, burial and wake
expenses;
6. To pay to the heirs [the] aforementioned moral damages of
P60,000.00 for each death; and
7. To restitute or restore to private complainant Benjamin Morial the
P11,000.00 amount robbed;
8. To pay the costs.

SO ORDERED.35
Appellants' conviction rests on two vital pieces of evidence: the extra-judicial
confession of appellant Leonardo Morial and the eyewitness account of
Gabriel Guilao.
The Court finds Leonardo Morial's extra-judicial confession invalid since he
was effectively deprived of his right to counsel during the custodial
investigation.
A custodial investigation is understood to mean as "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." 36 It
begins when there is no longer a general inquiry into an unsolved crime but
starts to focus on a particular person as a suspect,i.e., when the police
investigator starts interrogating or exacting a confession from the suspect in
connection with an alleged offense.37
A person under custodial investigation is guaranteed certain rights, which
attach upon the commencement thereof. These are the rights (1) to remain
silent, (2) to competent and independent counsel, preferably of his own
choice, and (3) to be informed of the two other rights. 38 The prosecution must
prove with clear and convincing evidence that the accused was accorded
said rights before he extra-judicially admitted his guilt to the authorities. 39
Thus, the prosecution offered the testimonies of SPO4 Andres Fernandez
and Atty. Tobias Aguilar. SPO4 Fernandez testified that the investigation he
conducted resulted in an admission by Leonardo Morial that he was one of
those who participated in the robbery with homicide. SPO4 Fernandez asked
Leonardo whether he was willing to reduce his statement into writing and to
sign the same. The suspect answered positively. SPO4 Fernandez then
advised him of his right "to remain silent and [to] have a counsel[,] [and
informed him that] whatever will be his answer will be used as evidence in
Court."40
Leonardo told the investigator that he had no money to pay for the services
of counsel. SPO4 Fernandez informed him that there are many lawyers in
their municipality and named some of them. Leonardo said he did not know
any of the lawyers mentioned. SPO4 Fernandez thus volunteered to obtain a
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 134
lawyer for the suspect, to which Leonardo Morial consented. SPO4
Fernandez then contacted Atty. Aguilar.41
Atty. Tobias Aguilar arrived at about 8:00 that morning of January 9, 1996.
After being introduced to Leonardo Morial, Atty. Aguilar had a short
conference with him. He asked Leonardo if he was willing to answer the
questions that may be propounded by the police investigator. Atty. Aguilar
warned him that the statements that he may give might be used in evidence
against him. Leonardo said he was willing to answer the questions
voluntarily. According to Atty. Aguilar, Leonardo was bent on revealing what
really happened. Thereafter, SPO4 Fernandez conducted the investigation in
Cebuano.
Midway into the investigation, after the police investigator had asked "all the
material points," Atty. Aguilar asked the investigator that he be given leave
as he had a very important engagement. The investigator agreed to the
lawyer's request.42
Before leaving, Atty. Aguilar asked Leonardo if he was willing to answer the
questions in his absence. He also instructed the police that, after the written
confession had been prepared, the accused and the document containing
the confession should be brought to his office for "further examination." Atty.
Aguilar was in the police station for less than thirty minutes from the start of
the interrogation.
At about 1:30 or 2:00 in the afternoon, Leonardo and his policeman-escort
arrived at Atty. Aguilar's office. Atty. Aguilar asked the accused whether he
was maltreated while he was away and examined the suspect's body for
contusions or abrasions. Leonardo told him that he was not harmed by the
police officer. The lawyer then studied the document to determine whether its
contents conformed to the answers given by the accused in his (counsel's)
presence. He propounded questions to Leonardo with reference to the
document. Atty. Aguilar asked him whether he understood its contents and
whether he was willing to sign it. Leonardo replied in the positive and signed
the document in the presence of Atty. Aguilar and the policeman-escort. 43
SPO4 Fernandez confirmed that Atty. Aguilar left during the investigation. On
direct examination, SPO4 Fernandez said the lawyer left the station while the
investigation was still going on, saying that he had so many things to do in

his office.44 On cross-examination, SPO4 Fernandez hesitated a little when
he testified that Atty. Aguilar "might" have probably gone out in the middle of
the investigation.45 Later, he clarified that while in the process of drafting the
statement, Atty. Aguilar told him that he had to go to his office to attend to
some matters.46 SPO4 Fernandez added that while Atty. Aguilar was "in the
police station during the investigation," "he (Atty. Aguilar) [would] come and
go but within the police station."47
During and despite Atty. Aguilar's absence, SPO4 Fernandez continued with
the investigation and propounded several more questions to Leonardo,
which the latter answered.48
The Court has stressed that an accused under custodial interrogation must
continuously have a counsel assisting him from the very start
thereof.49 InPeople vs. Lucero,50 where the suspect's counsel left just when
the interrogation was starting, this Court chastised both counsel and the trial
court for their lack of zeal in safeguarding the rights of the accused.
SPO4 Fernandez cannot justify Atty. Aguilar's leaving by claiming that when
the lawyer left, he knew very well that the suspect had already admitted that
he (Leonardo) and his companions committed the crime. 51 Neither can Atty.
Aguilar rationalize his abandoning his client by saying that he left only after
the latter had admitted the "material points," referring to the three accused's
respective participation in the crime.52 For even as the person under custodial
investigation enjoys the right to counsel from its inception, so does he enjoy
such right until its termination — indeed, "in every phase of the
investigation."53 An effective and vigilant counsel "necessarily and logically
requires that the lawyer be present and able to advise and assist his client
from the time the confessant answers the first question asked by the
investigating officer until the signing of the extrajudicial confession." 54
Furthermore, Section 2(a) of R.A. No. 7438 55 requires that "[a]ny person
arrested, detained or under custodial investigation shall at all times be
assisted by counsel." The last paragraph of Section 3 of the same law
mandates that "[i]n the absence of any lawyer, no custodial investigation
shall be conducted."
The right of appellant to counsel was therefore completely negated by the
precipitate departure of Atty. Tobias before the termination of the custodial
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 135
investigation. InPeople vs. Deniega,56 we explained the rationale for the rule
requiring counsel's continuing presence throughout the custodial
investigation:
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. . . . The competent or independent
counsel 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.
If it were true that Atty. Tobias had to attend to matters so pressing that he
had to abandon a client undergoing custodial investigation, he could have
terminated the same to be continued only until as soon as his schedule
permitted, advising the suspect in the meantime to remain silent. This he
failed to do. Appallingly, he even asked his client whether he was willing to
answer questions during the lawyer's absence. The records also disclose
that Atty. Tobias never informed appellant of his right to remain silent, not
even before the custodial investigation started. 57
Atty. Tobias, by his failure to inform appellant of the latter's right to remain
silent, by his "coming and going" during the custodial investigation, and by
his abrupt departure before the termination of the proceedings, can hardly be
the counsel that the framers of the 1987 Constitution contemplated when it
added the modifier "competent" to the word "counsel." Neither can he be
described as the "vigilant and effective" counsel that jurisprudence requires.
Precisely, it is Atty. Tobias' nonchalant behavior during the custodial
investigation that the Constitution abhors and which this Court condemns.
His casual attitude subverted the very purpose for this vital right, which is to:
. . . curb the uncivilized practice of extracting confession even by the
slightest coercion as would lead the accused to admit something
false. What is sought to be avoided is the "evil of extorting from the
very mouth of the person undergoing interrogation for the
commission of an offense, the very evidence with which to

prosecute and thereafter convict him." These constitutional
guarantee have been made available to protect him from the
inherently coercive psychological, if not physical, atmosphere of
such investigation.58
Even granting that appellant consented to Atty. Aguilar's departure during
the investigation and to answer questions during the lawyer's absence, such
consent was an invalid waiver of his right to counsel and his right to remain
silent. Under Section 12 (3), Article III of the Constitution, these rights cannot
be waived unless the same is made in writing and in the presence of
counsel. No such written and counseled waiver of these rights was offered in
evidence.
That the extra-judicial confession was subsequently signed in the presence
of counsel did not cure its constitutional defects. InPeople vs. Compil,59 this
Court held:
. . . it is evident that accused-appellant was immediately subjected
to an interrogation upon his arrest in the house of Rey Lopez in
Tayabas, Quezon. He was then brought to the Tayabas Police
Station where he was further questioned. And while on their way to
Manila, the arresting agents again elicited incriminating information.
In all three instances, he confessed to the commission of the crime
and admitted his participation therein. In all those instances, he was
not assisted by counsel.
The belated arrival of the CLAO lawyer the following day even if
prior to the actual signing of the uncounseled confession does not
cure the defect for the investigators were already able to extract
incriminatory statements from accused-appellant. The operative act,
it has been stressed, is when the police investigation is no longer a
general inquiry into an unsolved crime but has began to focus on a
particular suspect who has been taken into custody by the police to
carry out a process of interrogation that lends itself to eliciting
incriminatory statements, and not the signing by the suspect of his
supposed extrajudicial confession. Thus inPeople v. de Jesus [213
SCRA 345 (1992)] we said thatadmissions obtained during custodial
interrogations without the benefit of counsel although later reduced
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 136
to writing and signed in the presence of counsel are still flawed
under the Constitution. [Emphasis supplied.]
Moreover, appellant's policeman-escort was also present in the lawyer's
office as attorney and client discussed the voluntariness of the latter's
confession. One can hardly expect the suspect, in the face of such
intimidating presence, to candidly admit that he was coerced into confessing.
As appellant Leonardo Morial was effectively deprived of his right to counsel
during custodial investigation, his extra-judicial confession is inadmissible in
evidence against him.60
The confession is also inadmissible against appellant Leonardo Morial's co-
accused, Nonelito Abiñon and Edwin Morial. The rule on res inter alios acta
provides that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another.61
An exception to theres inter alios acta rule is an admission made by a
conspirator. Section 30, Rule 130 of the Rules of Court provides that the act
or declaration of the conspirator relating to the conspiracy and during its
existence may be given in evidence against the co-conspirator provided that
the conspiracy is shown by evidence other than by such act or declaration.
The exception, however, does not apply in this case since the confession
was made after the alleged conspiracy and not while the declarant was
engaged in carrying out the conspiracy. 62
Notwithstanding the inadmissibility of the extrajudicial confession executed
by Leonardo Morial, the conviction of appellants is fully supported by the
other pieces of evidence adduced by the prosecution. It is well settled that
where there is independent evidence, apart from the accused's alleged
uncounseled confession, that the accused is truly guilty, the latter
nevertheless faces a conviction. 63 Here, the testimony of eyewitness Gabriel
Guilao certainly deserves credence. He recounted before the trial court:
Q         Now, do you still recall Mr. Witness where you were on
January 6, 1996 at more or less 6:00 o'clock in the afternoon?
A         I can remember, sir.

Q         Where were you if you can recall?
A         I was pasturing my horse.
Q         How many horses do you have?
A         One mature and one young horse, the young one is not yet
tied up.
Q         So you have two horses all in all?
PROS. RUIZ:
Q         Do you have carabao, Mr. Witness?
A         None, Sir.
Q         Now, while you were pasturing your horse at more or less
6:00 o'clock in the afternoon of January 6, 1996, I withdraw that
question, Your Honor.
COURT:
Reform.
PROS. RUIZ:
Q         Now, how long did you stay in that pasture land?
A         Two minutes, Sir, then I went home.
Q         So, after pasturing your horse for two minutes, after that you
went home? Now, on your way home, do you remember what
happened if any?
A         Yes, Sir.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 137
Q         What was that incident are you referring to?
A         When I went home, I passed by on the road near the house
of Benjamin Morial, then I heard the voice of Paula saying: "please
don't kill me I am going to give you money."
Q         Now, when you said, Paula are you referring to Paula one of
the victim in this case?
A         Yes, Sir.
PROS. RUIZ
Q         Now, when you heard that voice of Paula, what did you do?
A         I paused for a while because what I heard I found it weird.
Q         Where did you stay at that moment as what you have said
that you stayed for a while?
A         I stayed at a distance of about 8 meters from their yard.
Q         Were there trees in the place where you were staying at that
time?
A         Yes, Sir.
Q         While staying at the distance of 8 meters away from the yard
of the house of Benjamin Morial, what did you observe if any?
A         I saw that the old woman was slapped by Nonelito Abiñon on
her neck.
Q         What else have you observed if any?
A         Then the old woman was down and when she was down, this
Edwin Morial stabbed her.

Q         Would you please tell this Honorable Court what was that
weapon used in stabbing the old woman by Edwin Morial?
A         A small sharp pointed weapon, Sir.
Q         Now, have you seen Leonardo Morial in the house of
Benjamin Morial?
WITNESS:
A         Leonardo Morial was just outside the house of Paula
Bandibas.
PROS. RUIZ:
Q         What was Leonardo Morial doing outside the house of
Benjamin Morial?
A         He was just standing thereat.
Q         Now, in your estimate, how long did Nonelito and Edwin
were inside the house of Benjamin Morial?
WITNESS:
After they have killed the old woman, two minutes . . .
ATTY. GABUCAN:
The answer is not responsive, the question was how long?
PROS. RUIZ:
That is the answer of the witness.
COURT:
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 138
Continue with the answer.
WITNESS:
A         After killing the old woman, they stayed inside the house for
about ten minutes, Sir.
Q         Now, after ten minutes, what did they do Mr. Witness?
A         They went out of the house.
PROS. RUIZ:
Q         After getting out from the house, what did they do?
A         They went home, Sir.
Q         In what direction?
A         Towards the houses nearby.64
The defense has tried to discredit Guilao by harping on the latter's
relationship with private complainant, Benjamin Morial, who is the brother of
Gabriel's wife,65 conveniently forgetting that Gabriel is also related to all of
the accused who are all his nephews. 66 On this score, the Court has held that
the weight of testimony of a witness is not impaired or in any way affected by
his relationship to the victim when there is no showing of improper motive on
the part of the witness.67 A person who was close to the victim would not
callously violate his conscience by blaming it on someone he believed
innocent thereof,68 especially if the accused were his blood relatives.
Anent the failure of Guilao to either attend to the victims or to report the
matter immediately to the authorities, it should be remembered that different
people react differently to an unusual event and there is no standard of
behavior when a person becomes a witness to something so shocking or
gruesome as murder especially if the assailant is near.69 The initial reluctance
of the eyewitness to disclose what transpired was sufficiently explained:

Gabriel, who was 62 years old at the time of the incident, was too afraid to
share what he saw even to his wife, 70 and while he wanted to tell their
barangay captain, the latter was in Davao at that time. 71 Instead, he made up
his mind to tell only Benjamin,72 the common-law husband of the victim
Paula, which he promptly did upon Benjamin's arrival at his house from
Maria Clara.73 The failure of Gabriel to execute an affidavit on what he
witnessed was in fact due to the request of Benjamin who advised him not to
tell anybody for fear that they might all be killed, 74 as the Abiñons were the
most feared persons in this place.75
The defense, likewise, tried to show that Gabriel could not have possibly
witnessed the crime because he was in Maria Clara at that time. Patricio
Abiñon, a relative of the accused Nonelito Abiñon, 76 testified that he saw
Gabriel at Maria Clara at around six o'clock in the evening of 06 January
1996,77 and again at around eight o'clock in the morning the following
day.78 He surmised that Gabriel stayed in Maria Clara because it would take
him about two (2) hours of hiking to travel from Maria Clara to Cagnituan.
However, it could not be discounted that Patricio was merely making an
opinion as to the travel or hiking time of Gabriel and he also admitted that he
was not wearing a timepiece.79 Hence, as observed by the trial court, it was
not farfetched that Gabriel was in Maria Clara in the afternoon of 06 January
1996, hiked to Cagnituan in time to witness the incident and then returned to
Maria Clara in the morning of 07 January 1996 to buy some fish.
As regards the defense testimonies that Gabriel could not have possibly
seen the incident from the trail, it should be stressed here that Gabriel
categorically stated that he was about eight (8) meters from the yard of
Benjamin's house when he saw Nonelito Abiñon slap Paula on the neck after
which Edwin Morial stabbed her.80 In addition, defense witnesses Patricio
Abiñon and Eulogio Padilla even contradicted each other when the former
stated it would be possible to see the inside of the house if the light was
on81 while the latter stated that any person inside could not be seen even if
the light was on.82
Pending review of this case, Gabriel Guilao filed before this Court a three-
page "Manifestation with Prayer," dated 22 June 2000, which in effect, was a
recantation of his testimony in the trial court. He declared that he was
"utilized" by Benjamin Morial against the three accused because the latter
had a long-standing grudge against them and was impelled by "hatred" and
a "false sense of anger." Since Benjamin could not "pinpoint" the killer of
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 139
Paula and Albert Bandibas, it was decided that the three accused be
implicated to the crime "as a way of getting revenge." Gabriel's relation to
Benjamin, whose wife is the sister of Gabriel's wife Regina, accounted for
Benjamin's influence over him. In sum, Gabriel maintained that appellants
Edwin Morial, Leonardo Morial and Nonelito Abiñon had "nothing to do with
the crime charged."
The attitude of courts towards affidavits of retraction is one of distrust, if not
of disapprobation, because —
. . . affidavits of recantation can easily be secured from poor and
ignorant witnesses for monetary consideration or through
intimidation. Recanted testimony is exceedingly unreliable for there
is always the probability that it may later be repudiated. Courts thus
look with disfavor at affidavits of retractions of testimony given in
open court, and are wary or reluctant to allow a new trial based on
retracted testimony. Indeed, it would be a dangerous rule to reject
the testimony taken before the court of justice simply because the
witness later on changed his mind for one reason or another, for
such a rule will make a solemn trial a mockery and will place the
investigation of truth at the mercy of unscrupulous witnesses.83
Further, the defense, during the trial of this case, failed to establish any
grudge or animosity between and against the accused and Benjamin Morial,
as well as against the accused and Gabriel Guilao. In fact, when Edwin's
father died, Benjamin accommodated Edwin and his mother in his nipa
house "kamalig" for more than two (2) years.84Nonelito Abiñon also testified
that he could not recall having personal differences with Benjamin. 85
The accused have no other excuse other than alibi. Interestingly, they all
testified that they were in their respective homes at the time of the incident.
Edwin Morial was sleeping,86 Leonardo Morial was cooking,87 while Nonelito
Abiñon was at home, not doing anything. 88 In a number of cases, the Court
has ruled that alibi is the weakest of all defenses as it is easy to fabricate
and difficult to disprove, and it is practically worthless in the face of positive
identification of the accused.89 The Court noted that none of the accused
even presented any of their supposed home companions to prove that they
were at home when the killings took place. In addition, it was not established
that it would have been physically impossible for them to be at the scene of

the crime at the time of its commission. 90 The house of Edwin Morial was
about two hundred (200) meters from the house of Benjamin, 91 the house of
Leonardo Morial only about sixty (60) meters away, 92 while the house of
Nonelito Abiñon was about seven hundred (700) meters from the house of
Benjamin and he could negotiate the distance in about ten (10)
minutes.93Equally unnatural were the respective reactions of the accused
when the bodies of Paula and Albert were discovered. Leonardo Morial went
home after seeing the body of Paula, 94 Edwin Morial looked at the body of
Paula for five (5) minutes after which he went home, 95 while Nonelito Abiñon
left the house of Benjamin while the others who went there upon hearing the
shouts of Benjamin were still searching for the body of Albert. 96 The
prosecution was also able to establish that the three accused were in one
table during the benefit dance which transpired on the eve of the
incident,97 contrary to statements of Edwin Morial and Nonelito Abiñon.
The trial court correctly ruled when it found the accused guilty of robbery with
homicide. It was established that all the elements of the crime were
present;i.e., (1) the taking of personal property perpetrated by means of
violence or intimidation against a person; (2) the property taken belongs to
another; (3) the taking is characterized by intent to gain oranimus lucrandi;
and (4) on the occasion of the robbery or by reason thereof, the crime of
homicide was committed.98
In this case, Benjamin, upon arrival at his house, found that their room was
in disarray, the clothes were scattered and the box where they kept their
money was already turned upside down. 99 The amount of P11,000.00
contained in the box was already missing, 100 Paula was already lifeless101 and
Albert was nowhere to be found.102
The trial court also correctly ruled that the accused conspired to commit the
crime. Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony, and decide to commit it. 103 It may be
inferred from the acts of the accused before, during and after the crime,
which are indicative of a joint purpose, concerted action and concurrence of
sentiments.104 Where the acts of the accused collectively and individually
demonstrate the existence of a common design towards the accomplishment
of the same unlawful purpose, conspiracy is evident and all the perpetrators
will be liable as principals.105 To exempt himself from criminal liability, the
conspirator must have performed an overt act to dissociate or detach himself
from the unlawful plan to commit the felony.106
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 140
In this case, it was established that after the killing of Paula, the accused
even stayed inside the house for about ten (10) minutes, 107 presumably to
look for the hidden money. After about ten (10) minutes, they left the house
of Benjamin and went home.108 Clearly, Paula and Albert were already dead
or dying but not one of the accused lifted a finger to show any pity or
remorse. Hence, they should all be made liable for the crime.
Dwelling was correctly appreciated as an aggravating circumstance because
of the sanctity that the law accords to the privacy of the human abode. 109 The
home is considered a sacred place to its owners, and one who goes to
another house to slander or hurt him, or do him wrong, more guilty than he
who offends him elsewhere.110 However, evident premeditation is inherent in
robbery and should not have been considered against the
accused.111 Treachery could only be appreciated in crimes against
persons,112 the same way with disregard of respect due to sex and age which
can be considered only in cases of crimes against persons and honor. 113
Nevertheless, accused Edwin Morial should still be spared the death penalty.
The records would show that he was a minor at the time of the execution of
the crime.114 InPeople vs. Villagracia,115 the Court ruled:
In this case, the trial court failed to consider the age of appellant
Nixon Ledesma when the crime was committed. At the time he
testified on May 17, 1989, he stated that he was only 15 years old
(TSN, May 17, 1989, p. 31). No contradictory evidence was
presented by the prosecution. So, when the crime was committed
on September 23, 1987, or more than a year before he was
presented as a witness, Nixon Ledesma was less than 15 years old.
InPeople vs. Lugto, 190 SCRA 754 [1990], we held that the accused
has the burden of proof that he was minor at the time of the
commission of the crime. However, inPeople v. Tismo, 204 SCRA
535 [1991], we upheld appellants' claim that he was 17 years old at
the time the crime was committed even without any proof to
corroborate his testimony. Considering that the prosecution failed to
present contradictory evidence, we applied to appellant therein the
privileged mitigating circumstance of minority under the second
paragraph of Article 13 of the Revised Penal Code.

Lugto appears to be an aberration from the long line of decisions
antedating it. From U.S. v. Bergantino, 3 Phil. 118 [1903] to People
v. Ebora, 141 SCRA 282 [1986], we have consistently ruled that,
although the accused did not offer any evidence to support his claim
of minority, this fact will remain as such, until disproved by the
prosecution (See also U.S. v. Barbicho, 13 Phil. 616 [1909]; U.S. vs.
Agadas, 36 Phil. 247 [1917]; People v. Ebora, 141 SCRA 282
[1986]; People v. Bernalde, 139 SCRA 426 [1986]).
Article 294 (1) of the Revised Penal Code prescribes the penalty ofreclusion
perpetua to death, when by reason or on occasion of the robbery, the crime
of homicide shall have been committed. As the aggravating circumstance of
dwelling attended the commission thereof, the greater penalty,i.e., death,
shall be imposed116 upon appellants Nonelito Abiñon and Leonardo Morial.
However, appellant Edwin Morial, who was over 15 but under 18 years of
age at the time of the commission of the crime, is entitled to the privileged
mitigating circumstance of minority. Accordingly, the penalty next
lower,117i.e.,reclusion temporal, shall be imposed upon him in its maximum
period,118 there being one aggravating circumstance (dwelling).
Said appellant is further entitled to the benefits of the Indeterminate
Sentence Law.119 Under Section 1 thereof, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly
imposed under the rules of the Revised Penal Code, and the minimum which
shall be within the range of the penalty next lower to that prescribed in the
Code for the offense. Thus, appellant Edwin Morial is hereby sentenced to
an indeterminate penalty of ten (10) years and one (1) day ofprision
mayor as minimum to seventeen (17) years, four (4) months and one (1) day
ofreclusion temporalas maximum.
As regards the civil liability of appellants, the award of P60,000.00 to the
heirs of each victim as moral damages is hereby reduced to P50,000.00
each, in conformity with recent jurisprudence. 120
Four members of the Court maintain their position that Republic Act No.
7659, insofar as it prescribes the death penalty, is unconstitutional;
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 141
nevertheless, they submit to the ruling of the Court, by majority vote, that the
law is constitutional and the death penalty should be imposed accordingly.
WHEREFORE, finding the accused guilty beyond reasonable doubt of the
crime of "Robbery with Homicide," with the aggravating circumstance of
dwelling, Leonardo Morial and Nonelito Abiñon are hereby sentenced to
suffer the penalty of death by lethal injection, while Edwin Morial, on account
of his minority, is hereby sentenced to the indeterminate penalty of from ten
(10) years and one (1) day ofprision mayor as minimum; to seventeen (17)
years, four (4) months and one (1) day ofreclusion temporal as maximum.
The accused are likewise sentenced, jointly and severally, to:
(1) indemnify the heirs of Paula Bandibas in the amount of Fifty Thousand
(P50,000.00) Pesos as death indemnity;
(2) indemnify the heirs of Albert Bandibas in the amount of Fifty Thousand
(P50,000.00) Pesos as death indemnity;
(3) indemnify the heirs of Paula Bandibas and Albert Bandibas in the amount
of Fifty Thousand (P50,000.00) Pesos for each death as moral damages;
(4) indemnify Benjamin Morial in the amount of Twenty Thousand Five
Hundred Forty-Six (P20,546.00) pesos as actual damages for the funeral,
burial and wake expenses;
(5) restitute Benjamin Morial the amount of Eleven Thousand (P11,000.00)
Pesos representing the stolen money.
Costs against accused-appellants.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83
of the Revised Penal Code, upon the finality of this decision, let the records
of this case be forthwith forwarded to the Office of the President for the
possible exercise of executive clemency or pardoning power.
SO ORDERED.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 142

Davide, C .J ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,

Panganiban, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De
Leon, Jr., JJ ., concur.
Quisumbing, J ., out of town on O.B.
Gutierrez, J ., is on leave.

G.R. No. 159659. October 16, 2006.*

RUBEN S. SIA and JOSEPHINE SIA, petitioners, vs. PEOPLE OF THE

PHILIPPINES and TERESITA LEE, respondents.

Subdivisions; P.D. No. 957; Words and Phrases; Section 2 of P.D. No. 957
does not confine the meaning of a “subdivision project” to parcels of land
classified as residential—a subdivision project also includes parcels of land
classified as commercial.—Pertinent here is Section 2 of P.D. No. 957, that
defines a subdivision project as “a tract or a parcel of land registered under
Act No. 496 which is partitioned primarily for residential purposes into
individual lots with or without improvements thereon, and offered to the
public for sale, in cash or in installment terms. It shall include all residential,

commercial, industrial and recreational areas, as well as open spaces and
other community and public areas in the project.” Observe that the provision
does not confine the meaning of “subdivision project” to parcels of land
classified as residential, contrary to what petitioners restrictively propose. A
subdivision project also includes parcels of land classified as commercial.
Indeed, the crucial requirement is that the subdivision project is partitioned
primarily for residential purposes, even if it is situated in a commercial
district.
Same; Same; A subdivision owner is required to register the Contracts to
Sell in favor of the buyer, and its failure to do so is a violation of Section 17
of P.D. No. 957.—P.D. No. 957 provides that when a registered owner of a
parcel of land wishes to convert the same into a subdivision project, he must
register the subdivision plan with the Housing and Land Use Regulatory
Board (HLURB) (Section 4). Should he decide to sell the lots therein, he
must also register the subdivision project with the HLURB and the
subdivision plan with the Register of Deeds (Section 17, paragraph 2).
Thereafter, a registration certificate is issued to the subdivision owner and he
may then apply for a License to Sell the lots in the subdivision project.
Whenever a lot is subsequently sold, the subdivision owner is required to
register the contract to sell, deed of sale and/or other similar instrument with
the Register of Deeds (Section 17, paragraph 1). From the foregoing, it is
clear that petitioners are required to register the Contracts to Sell in favor of
respondent Lee, and their failure to do so is a violation of Section 17 of P.D.
No. 957.
Same; Same; Same; The prosecution for the violation of Section 17 of P.D.
No. 957 is not included in the functions of the enforcement officers of local
government units pursuant to E.O. No. 71, hence, it follows logically that it
remains with the public prosecutors’ office.—The enforcement officers of
local government units shall only have full power to monitor, investigate and
enforce compliance with the provisions of national laws and standards
whose implementation have been devolved to the local government in
accordance with E.O. No. 71. Section 1 outlines which functions have been
devolved: x x x Noteworthy, the prosecution for the violation of Section 17 of
P.D. No. 957 is not included in the foregoing functions. Hence, it follows
logically that it remained with the City Prosecutors’ Office of Naga City.
Right to Counsel; Rights of Suspects; Miranda Rights; Section 12, Article III
of the 1987 Constitution assuring an accused of counsel of his choice
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 143
pertains specifically to a person under investigation.—Section 12, Article III
of the 1987 Constitution assuring an accused of counsel of his choice
pertains specifically to a person under investigation. Even if we were to
extend the choice of a counsel to an accused in a criminal prosecution, the
matter of the accused getting a lawyer of his preference cannot be so
absolute and arbitrary as would make the choice of counsel refer exclusively
to the predilection of the accused. In Amion v. Chiongson this Court stated:
Withal, the word “preferably” under Section 12(1), Article 3 of the 1987
Constitution does not convey the message that the choice of a lawyer by a
person under investigation is exclusive as to preclude other equally
competent and independent attorneys from handling his defense. If the rule
were otherwise, then, the tempo of a custodial investigation, will be solely in
the hands of the accused who can impede, nay, obstruct the progress of the
interrogation by simply selecting a lawyer, who for one reason or another, is
not available to protect his interest. This absurd scenario could not have
been contemplated by the framers of the charter. Sia vs. People, 504 SCRA
507, G.R. No. 159659 October 16, 2006
DECISION
QUISUMBING, J.:
In this petition for review under Rule 45 of the Rules of Court, the petitioners
urge this Court to nullify and set aside the April 25, 2003 Decision, 1 and the
July 29, 2003 Resolution,2 of the Court of Appeals in CA G.R. SP No. 68057.
The following facts are culled from the records:
Petitioners Ruben and Josephine Sia were charged before the Regional Trial
Court of Naga City, Branch 27 with three counts 3 of violation of Section 17 of
Presidential Decree (P.D.) No. 957, otherwise known as The Subdivision
and Condominium Buyers' Protective Decree.
On October 15, 2001, the petitioners filed a Consolidated Motion to Quash
alleging that (1) the trial court has no jurisdiction over the offense charged;
and (2) the City Prosecutors' Office of Naga City has no authority to file the
informations.

On October 18, 2001, the trial court denied the motion holding that it had
jurisdiction over the case. It also scheduled an arraignment on October 29,
2001. On October 23, 2001, the petitioners filed a Motion to Resolve the
Other Ground Raised in the Motion to Quash, i.e., whether the city
prosecutor had the authority to file the informations. On October 24, 2001,
the trial court denied the motion stating that the city prosecutor was
authorized to file the informations. Petitioners' Motion for Reconsideration
was likewise denied. Arraignment was then reset to November 21, 2001.
Petitioners' Motion for Postponement of their arraignment was also denied.
On November 21, 2001, the trial court appointed a counsel de oficio for
petitioner Ruben S. Sia and proceeded with the arraignment.
Before the Court of Appeals, the petitioners filed a Petition for Certiorari with
Application for Temporary Restraining Order and Writ of Preliminary
Injunction.4 The petitioners claimed that the trial court had no jurisdiction over
the offenses charged and the city prosecutor had no authority to file the
informations; that only the enforcement officers under Executive Order No.
715 are authorized to investigate and enforce laws pertaining to subdivisions.
Moreover, they asserted that petitioner Ruben S. Sia was denied his right to
counsel when the trial court forced him to enter a plea with only a counsel de
oficio.
The Court of Appeals dismissed the petition as follows:
WHEREFORE, the foregoing considered, the instant petition is
hereby DISMISSED and the assailed orders AFFIRMED in toto. No
costs.
SO ORDERED.6
The appellate court upheld the jurisdiction of the trial court for the following
reasons: (1) the informations stated that petitioners violated Section 17 of
P.D. No. 957 by failing to register with the Register of Deeds of Naga City,
the Contracts to Sell they executed in favor of respondent Teresita Lee over
several subdivision lots she purchased; (2) the acts complained of were
within the trial court's territorial jurisdiction; and (3) the penalty provided by
law for the violation, i.e., imprisonment of not more than ten years, is within
the trial court's jurisdiction. Similarly, the appellate court sustained the city
prosecutor's authority to file the informations conformably with Section 5,
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 144
Rule 110 of the Rules of Court. 7 Finally, it ruled that the trial court did not
transgress petitioner Ruben S. Sia's right to counsel since the preference in
the choice of counsel expressed in Section 12, Article III of the 1987
Constitution8 does not necessarily mean that such choice by a person under
investigation is exclusive as to preclude other equally competent and
independent lawyers from handling the defense.
Hence, this petition. The petitioners enumerate the grounds of their appeal,
as follows:
[a] x x x the alleged act or omission complained of and charged in
the questioned Informations [do not] constitute a violation of
Presidential Decree No. 957 otherwise known as the Subdivision
and Condominium Buyers' Protective Decree[.]
[b] x x x the City Prosecutors have [no] power or authority to institute
and prosecute the present case for alleged violation of the
provisions of P.D. 957 even without a prior determination thereof by
the Enforcement Officers of the Housing and Land Use Regulatory
Board (HLURB)[.]
[c] x x x the herein petitioner Ruben Sia was deprived of his
[c]onstitutional right to due process and to counsel considering that
he was assisted only by a counsel de oficio during his arraignment
despite his insistence to be assisted by their newly hired counsel de
parte[.]9
Simply stated, the issues are: (1) Did the charges in the informations
constitute violations of P.D. No. 957? (2) Does the City Prosecutors' Office of
Naga City have authority to file the informations? and (3) Was petitioner
Ruben S. Sia deprived of his right to counsel when only a counsel de
oficio assisted him during his arraignment?
After considering the submission of the parties, we find the present petition
without merit.
On the first issue, petitioners contend that P.D. No. 957 is applicable only to
residential subdivision and condominium projects and not to commercial
subdivision projects as in this case, and that the property involved had been

classified commercial and industrial in City Ordinance No. 93-041 10 and
Resolution No. 93-26111 of the Sangguniang Panlungsod of Naga City.
Furthermore, petitioners add, the documents required to be registered with
the Register of Deeds under Section 17 of P.D. No. 957, refer to lands that
have been converted into a subdivision project for residential purposes.
Respondent Lee maintains that petitioners' Development Permit (DP No. 92-
0415) showed that the project was classified as socialized housing while the
Zoning Administrator's Certification dated May 14, 1992, indicated that the
project was situated in a residential zone in accordance with the Zoning
Ordinance of Naga City. Thus, petitioners' subdivision is residential. She also
asserts that under Section 17 of P.D. No. 957, the registration of the
subdivision plan by the owner of a parcel of land who caused its conversion
into a subdivision is different from the subsequent registration of the
contracts to sell, deeds of sale and other similar instruments required by the
same provision. Hence, according to respondent, the petitioners are required
to register the Contracts to Sell in her favor.
Pertinent here is Section 2 of P.D. No. 957, that defines a subdivision project
as "a tract or a parcel of land registered under Act No. 496 which is
partitioned primarily for residential purposes into individual lots with or
without improvements thereon, and offered to the public for sale, in cash or
in installment terms. It shall include all residential, commercial, industrial and
recreational areas, as well as open spaces and other community and public
areas in the project."
Observe that the provision does not confine the meaning of "subdivision
project" to parcels of land classified as residential, contrary to what
petitioners restrictively propose. A subdivision project also includes parcels
of land classified as commercial. Indeed, the crucial requirement is that the
subdivision project is partitioned primarily for residential purposes, even if it
is situated in a commercial district.
In this case, the subdivision project was intended primarily for residential
purposes. No less than petitioners' Development Permit showed that the
project was for socialized housing. Although the location of the subdivision
was classified as a commercial district, the subdivision project continued to
be for residential purposes and was not removed from the ambit of P.D. No.
957.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 145
We have examined Sections 4 and 17 of P.D. No. 957, and found petitioners'
interpretation thereof, flawed. We quote these sections for clarity:
SEC. 4. Registration of Projects. - The registered owner of a parcel
of land who wishes to convert the same into a subdivision project
shall submit his subdivision plan to the Authority which shall act
upon and approve the same, upon a finding that the plan complies
with the Subdivision Standards and Regulations enforceable at the
time the plan is submitted. The same procedure shall be followed in
the case of a plan for a condominium project except that, in addition,
said Authority shall act upon and approve the plan with respect to
the building or buildings included in the condominium project in
accordance with the National Building Code (R.A. No. 6541).
The subdivision plan, as so approved, shall then be submitted to the
Director of Lands for approval in accordance with the procedure
prescribed in Section 44 of the Land Registration Act (Act No. 496,
as amended by R.A. No. 440): Provided, that in case of complex
subdivision plans, court approval shall no longer be required. The
condominium plan as likewise so approved, shall be submitted to
the Register of Deeds of the province or city in which the property
lies and the same shall be acted upon subject to the conditions and
in accordance with the procedure prescribed in Section 4 of the
Condominium Act (R.A. No. 4726).
xxxx
SEC. 17. Registration. - All contracts to sell, deeds of sale and other
similar instruments relative to the sale or conveyance of the
subdivision lots and condominium units, whether or not the
purchase price is paid in full, shall be registered by the seller in the
Office of the Register of Deeds of the province or city where the
property is situated.
Whenever a subdivision plan duly approved in accordance with
Section 4 hereof, together with the corresponding owner's duplicate
certificate of title, is presented to the Register of Deeds for
registration, the Register of Deeds shall register the same in
accordance with the provisions of the Land Registration Act, as

amended: Provided, however, that if there is a street, passageway
or required open space delineated on a complex subdivision plan
hereafter approved and as defined in this Decree, the Register of
Deeds shall annotate on the new certificate of title covering the
street, passageway or open space, a memorandum to the effect that
except by way of donation in favor of a city or municipality, no
portion of any street, passageway, or open space so delineated on
the plan shall be closed or otherwise disposed of by the registered
owner without the requisite approval as provided under Section 22
of this Decree.
Simply stated, P.D. No. 957 provides that when a registered owner of a
parcel of land wishes to convert the same into a subdivision project, he must
register the subdivision plan with the Housing and Land Use Regulatory
Board (HLURB) (Section 4). Should he decide to sell the lots therein, he
must also register the subdivision project with the HLURB and the
subdivision plan with the Register of Deeds (Section 17, paragraph 2).
Thereafter, a registration certificate is issued to the subdivision owner and he
may then apply for a License to Sell the lots in the subdivision project.
Whenever a lot is subsequently sold, the subdivision owner is required to
register the contract to sell, deed of sale and/or other similar instrument with
the Register of Deeds (Section 17, paragraph 1).
From the foregoing, it is clear that petitioners are required to register the
Contracts to Sell in favor of respondent Lee, and their failure to do so is a
violation of Section 17 of P.D. No. 957.
On the second issue, does the City Prosecutors' Office of Naga City have
authority to file the informations?
Section 3 of E.O. No. 71 provides that:
SEC. 3. – Without prejudice to the Board's overall monitoring,
enforcement and visitorial powers, local chief executives shall
designate appropriate local officials who meet or possess the
qualifications, standards and criteria set by the HLURB as
enforcement officers who shall have full power to monitor,
investigate and enforce compliance with these provisions of
national laws and standards whose implementation have been
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 146
devolved to the local government in accordance with this
Order.
Relative to the remaining provisions of the said laws, said officials
shall, upon request of local chief executive concerned, be
authorized by the Board to initiate preliminary monitoring and
investigative activities, and issue initial notices to enforce
compliance with the Board's mandates, orders and decisions. In all
such cases, the enforcement officer shall endorse the records of the
case, together with his actions thereon to the Board for its final
disposition and further enforcement actions.
In the exercise of his responsibilities under this Order, the said
enforcement officer shall be under the functional supervision of
HLURB, which shall promulgate standard operating procedures,
policy guidelines and instructions for the guidance of said officials
and call their attention to effect such remedial measures as may be
necessary. (Emphasis supplied.)
Clearly, the enforcement officers of local government units shall only have
full power to monitor, investigate and enforce compliance with the provisions
of national laws and standards whose implementation have been devolved to
the local government in accordance with E.O. No. 71. Section 1 outlines
which functions have been devolved:
(a) Approval of preliminary as well as final subdivision schemes and
development plans of all subdivisions, residential, commercial,
industrial and for other purposes of the public and private sectors, in
accordance with the provisions of P.D. No. 957 as amended and its
implementing standards, rules and regulations concerning approval
of subdivision plans;
(b) Approval of preliminary and final subdivision schemes and
development plans of all economic and socialized housing projects
as well as individual or group building and occupancy permits
covered by BP 220 and its implementing standards, rules and
regulations;

(c) Evaluation and resolution of opposition against the issuance of
development permits for any of the said projects, in accordance with
the said laws and the Rules of Procedure promulgated by HLURB
incident thereto;
(d) Monitoring the nature and progress of land development of
projects it has approved, as well as housing construction in the case
of house and lot packages, to ensure their faithfulness to the
approved plans and specifications thereof, and, imposition of
appropriate measures to enforce compliance therewith.
In the exercise of such responsibilities, the city or municipality
concerned shall be guided by the work program approved by the
Board upon evaluation of the developers' financial, technical and
administrative capabilities;
Moreover, the city or municipality concerned may call on the Board
for assistance in the imposition of administrative sanctions and the
Department of Justice (DOJ) in the institution of the criminal
proceedings against violators;
(e) Assessment and collection of fees incident to the foregoing.
Noteworthy, the prosecution for the violation of Section 17 of P.D. No. 957 is
not included in the foregoing functions. Hence, it follows logically that it
remained with the City Prosecutors' Office of Naga City.
Moreover, the jurisdiction of the court or agency is determined by the
allegations in the complaint. It cannot be made to depend on the defenses
made by the defendant in his Answer or Motion to Dismiss. If such were the
rule, the question of jurisdiction would depend almost entirely on the
defendant.12 The informations rest the cause of action on the petitioners'
failure to register the Contracts to Sell in accordance with Section 17 of P.D.
No. 957. The penalty imposable is a fine of not more than Twenty Thousand
Pesos and/or imprisonment of not more than ten years. 13Once again, clearly,
the offense charged is well within the jurisdiction of the trial court.
On the third issue, was Ruben S. Sia denied his right to counsel when the
trial court forced him to enter a plea with only a counsel de oficio?
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 147
We agree with herein respondent Lee when she said that petitioners were
given ample time by the trial court to get a counsel of their choice, but did
not. Through the course of the proceedings, the petitioners filed several
motions. In its Orders dated November 21, 2001, 14 the trial court noted that
although the informations were filed on August 7, 2000, the petitioners have
not yet been arraigned as of that day. The delay could no longer be
countenanced.
Section 12, Article III of the 1987 Constitution assuring an accused of
counsel of his choice pertains specifically to a person under investigation.
Even if we were to extend the choice of a counsel to an accused in a criminal
prosecution, the matter of the accused getting a lawyer of his preference
cannot be so absolute and arbitrary as would make the choice of counsel
refer exclusively to the predilection of the accused. 15 In Amion v.
Chiongson this Court stated:
Withal, the word "preferably" under Section 12(1), Article 3 of the
1987 Constitution does not convey the message that the choice of a
lawyer by a person under investigation is exclusive as to preclude
other equally competent and independent attorneys from handling
his defense. If the rule were otherwise, then, the tempo of a
custodial investigation, will be solely in the hands of the accused
who can impede, nay, obstruct the progress of the interrogation by
simply selecting a lawyer, who for one reason or another, is not
available to protect his interest. This absurd scenario could not have
been contemplated by the framers of the charter.16
In our view, petitioners' dilatory tactics should no longer be allowed to trump
the progress of the judicial process.
WHEREFORE, the instant petition is DENIED. The decision and resolution
of the Court of Appeals in CA G.R. SP No. 68057 dated April 25, 2003 and
July 29, 2003, respectively, are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 148

G.R. No. 113684. January 25, 2000.*

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO

GALLARDO y GANDER, ALFREDO COLUMNA y CORREA, and JESSIE
MICATE y ORTEZA,** accused-appellants.

Constitutional Law; Confession; Right to Counsel; A lawyer provided by the
investigators is deemed engaged by the accused where he never raised any
objection against the former’s appointment during the course of the
investigation and the accused thereafter subscribes to the veracity of his
statement before the swearing officer.—We have held that “while the initial
choice of the lawyer in cases where a person under custodial investigation
cannot afford the services of a lawyer is naturally lodged in the police
investigators, the accused really 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 former’s appointment during the course of the
investigation and the accused thereafter subscribes to the veracity of his
statement before the swearing officer.”
Same; Same; Same; There is no requirement in the Constitution that the
lawyer of an accused during custodial investigation be previously known to
them.—In the case at bar, although Atty. Velasco was provided by the State
and not by the accused themselves, the accused were given an opportunity
whether to accept or not to accept him as their lawyer. They were asked and
they immediately agreed to have Atty. Velasco as their counsel during the
investigation. There is no requirement in the Constitution that the lawyer of
an accused during custodial investigation be previously known to them. The
Constitution provides that the counsel be a competent and independent
counsel, who will represent the accused and protect their Constitutionally
guaranteed rights.
Same; Same; Same; The counsel should never prevent an accused from
freely and voluntarily telling the truth.—We have held that “to be an effective
counsel, a lawyer need not challenge all the questions being propounded to
his client. The presence of a lawyer is not intended to stop an accused from
saying anything which might incriminate him but, rather, it was adopted in
our Constitution to preclude the slightest coercion as would lead the accused
to admit something false. The counsel, however, should never prevent an
accused from freely and voluntarily telling the truth.”
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 149
Same; Same; Same; Accused-appellants were properly apprised of their
rights and there was no violation of their Constitutional rights.—Aside from
Atty. Velasco, Judge Vilma Pauig also testified that when she administered
the oath to the accused-appellants, she asked them whether they
understood the contents of their statements and whether they were forced by
the police investigators to make such statements. Accused-appellants
answered in the negative. From the foregoing, it can therefore be established
that accused-appellants were properly apprised of their rights and there was
no violation of their Constitutional rights.
Same; Same; Fundamental requirements before a confession be admissible.
—Under rules laid by the Constitution, existing laws and jurisprudence, a
confession to be admissible must satisfy all four fundamental requirements,
namely: (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.
People vs. Gallardo, 323 SCRA 218, G.R. No. 113684 January 25, 2000
PARDO, J.:
The Constitution enumerates the basic rights of a person under investigation.
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.1
xxx     xxx     xxx
The case before the Court is an appeal by accused-appellants from the
decision2 of the trial court finding them guilty of murder for the treacherous
killing of Edmundo Orizal and sentencing each of them to reclusion

perpetua and to pay in solidum the heirs of Edmundo Orizal in the sum of
P50,000.00 as indemnity for death and P150,000.00 as moral damages.
On November 7, 1991, on the basis of the sworn confessions of the
accused, the Provincial Prosecutor of Cagayan filed with the Regional Trial
Court, Tuguegarao, Cagayan an information charging the accused with
murder, committed as follows:
That on or about July 28, 1991, in the municipality of Tuguegarao,
Province of Cagayan, and within the jurisdiction of this Honorable
Court, the said accused, Armando Gallardo y Gander, Alfredo
Columna y Correa and Jessie Micate, armed with guns,
confederating and conspiring together and helping one another with
intent to kill, with evident premeditation and with treachery, did then
and there willfully, unlawfully and feloniously attack, assault and
shoot one Edmundo Orizal, inflicting upon him several gunshot
wounds on the different parts of his body which caused his
death.1âwphi1.nêt
CONTRARY TO LAW.
Tuguegarao, Cagayan, November 7, 1991.
(Sgd.) ALEJANDRO A. PULIDO, NPS
Provincial Prosecutor3
On December 2, 1991, all three accused entered a plea of not guilty. 4 Trial
ensued.
The prosecution's evidence established the following facts:
On July 28, 1991, the lifeless body of Edmundo Orizal was found in the rest
house of Ronnie Balao in Balzain, Tuguegarao, Cagayan. In an autopsy
performed by Dr. Edmundo Borja, Tuguegarao Municipal Health Officer, the
victim was found to have sustained seven (7) gunshot wounds in the chest,
abdomen, back, left and right thighs, and two (2) grazing wounds on the left
arm and back.5
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 150
Investigation by the Tuguegarao police station identified the suspects in the
murder of Edmundo Orizal as Armando Gallardo y Gander, Alfredo Columna
y Correa, and Jessie Micate y Orteza. The police received information that
the suspects were detained at the Camalaniugan Police Station because of
other criminal charges. So elements of the Tuguegarao police went to the
Camalaniugan Police Station in August 1991 to fetch the suspects. Only
Armando Gallardo and Alfredo Columna alias Fermin were in the custody of
the Camalaniugan Police Station.
The two suspects Armando Gallardo and Alfredo Columna were brought to
the Tuguegarao Police Department. On August 18, 1991, they were
investigated by Police Investigator SPO4 Isidro Marcos, and they gave
statements admitting that they, together with Jessie Micate, killed Edmundo
Orizal.
During the investigation, the dialect used was Ilocano, the native tongue of
the accused, and during the taking of the statements, Atty. Rolando Velasco
assisted them. Judge Vilma Pauig was present. She administered the oath
on the jurat of the statements. Accused-appellants signed their statements
admitting the killing of Edmundo Orizal.
According to accused-appellants, they planned and executed the killing of
Edmundo Orizal, as follows:
III
At about 10:00 in the morning of July 26, 1991, Pat. Dennis Molina, accused-
appellants Armando Gallardo and Alfredo Columna, together with Jessie
Micate and Asoy (Nelson) Hidalgo, met at the house of Alfredo Columna in
Ziminilla (Camalaniugan, Cagayan). Pat. Molina conveyed to the group the
desire of Congressman Domingo Tuzon that Edmundo Orizal be killed
because the latter was planning to ambush him and grab his land. Edmundo
Orizal was a strong campaigner and a bodyguard of retired Gen. Prospero
Olivas, who was running for mayor of Camalaniugan (against the
congressman's re-electionist wife). Pat. Molina told the group that if they
accepted the job and succeeded in their mission, Congressman Tuzon would
work for their acquittal in all their criminal cases, and would give cash
rewards.
The accused-appellants accepted the job and the following day, on July 27,
1991, they, together with Jessie Micate, Asoy Hidalgo and Pat. Molina, set

out to accomplish their mission. Pat. Molina accompanied them to Dugo,
Camalaniugan at Where Else Beauty Salon where Pat. Molina showed them
their weapons: a .38 cal. and .45 cal. handguns and a folded carbine, placed
inside a box.
At around 2:00 in the afternoon of the same day, in the house of Dadoy
Micate, Pat. Molina gave the .38 cal. revolver to Armando Gallardo, the .45
cal. pistol to Alfredo Columna, and the folded carbine to Jessie Micate. Then,
Pat. Molina instructed the three accused to look for Edmundo Orizal and kill
him.
The three boarded a tricycle and proceeded to Edmundo Orizals' boarding
house at Caritan, Tuguegarao, Cagayan. Edmundo was not there. He was at
that time in the house of Aping in Lecaros Street, Centro, Tuguegarao. The
three went to that place. At the place of Aping, accused Gallardo engaged
Edmundo in a conversation while all of them drank San Miguel beer. In the
course of their conversation, and probably to get the trust of Edmundo
Orizal, accused Gallardo told him that he had already killed Inyong Orteza,
whom Edmundo Orizal wanted dead.
At around 5:00 p.m., the group moved over to the rest house of Ronnie
Balao in Balzain, Tuguegarao. Edmundo ordered Armando Gallardo to get
his M-14 armalite rifle from Ronnie Balao. However, Ronnie Balao did not
give the firearm, but went with Armando to the rest house to talk to
Edmundo. After talking to Edmundo and Armando, Ronnie Balao went home.
Meanwhile, Edmundo Orizal, the two accused-appellants and Jessie Micate
were conversing. Edmundo was convincing accused-appellants and Jessie
Micate to join him as bodyguards of Gen. Olivas during the election
campaign. At this point, Jessie Micate leveled his carbine at Edmundo and
successively fired at him. Alfredo Columna drew his .45 cal. Pistol and shot
Edmundo Orizal five times. This was followed by Armando Gallardo who
shot Edmundo once with his .38 cal. revolver. The three accused fled, and
went to the house of Dadoy Micate in Caggay (Tuguegarao, Cagayan),
where Pat. Molina was waiting for them. They informed Pat. Molina that the
mission was accomplished.
Early the next morning, July 28, 1991, the three accused and Pat. Molina
boarded a Manny Trans bus and proceeded to Camalaniugan. They stopped
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 151
at Dugo, Camalaniugan and proceeded to the house of Congressman Tuzon
to report the killing.
Congressman Tuzon was out of his house attending the town fiesta of
Buguey (Cagayan). When he arrived, Pat. Molina informed him that
Edmundo Orizal is dead. Congressman Tuzon was very happy and promised
them that he would work for their acquittal in their pending cases and after
confirming the death of Orizal he would give them their cash rewards. 6
Nelson Hidalgo, a friend of Manuel Columna, Jr., testified that on July 26,
1991 at around 4:30 in the afternoon at the house of Manuel Columna, Jr.,
he was asked by the accused to join them in their mission to kill Edmundo
Orizal.
In that meeting, Nelson Hidalgo resolved to join the group, but while on his
way home from the meeting, he met his bosom friend Reynald Micate. He
told the latter about their plan to kill Edmundo Orizal. Reynald Micate
advised him not to participate in the killing for it would just add to his other
criminal cases. Nelson Hidalgo heeded the advice of his bosom friend.
Consequently, realizing that because of his knowledge of the plan to kill
Edmundo Orizal, he would be a target for elimination so that the plan would
not be revealed to anyone, he left Camalaniugan, and went to Buguey, then
Aparri and finally, to Manila. It was only after three months that he returned
to Camalaniugan and learned that Edmundo Orizal was killed.
On August 18, 1993, accused on their part filed with the trial court a
demurrer to evidence, arguing that the prosecution failed to establish that the
signed statements of the accused were procured in violation of Article III
Section 12 (1) of the Constitution. On September 10, 1993, the trial court
denied the demurrer and stated that the court would want to know
controverting evidence that the defense may give to intelligently decide the
issues of the case.
Accused Armando Gallardo and Alfredo Columna testified in their defense.
They gave a common version. In the words of the trial court, here is what
they alleged:
On August 18, 1991, elements of the Tuguegarao Police Station
went to Camalaniugan to fetch accused Armando Gallardo and

Alfredo Columna who were detained at the Camalaniugan Municipal
Jail in connection with other criminal cases. These two accused
were brought to the Tuguegarao Police Station to be questioned on
the killing of Edmundo Orizal.
Arriving in Tuguegarao the same day, Investigator Isidro Marco
investigated said accused and took their statements at the
Tuguegarao Police Station. The investigator, however, did not
inform them of their constitutional rights.
After the respective statements had been typewritten, investigator
Marcos neither read to nor allowed them to read the contents of
their alleged statements. The investigator just told them to sign their
so-called statements. Accused Gallardo signed the confessional
statement because he was harmed by Marcos while accused
Alfredo Columna said that he signed said document because he
was afraid he might be harmed.7
On November 29, 1993, the trial court rendered decision finding
accused Armando Gallardo y Gander and Alfredo Columna y Correa
guilty beyond reasonable doubt of murder qualified by evident
premeditation and aggravated by treachery and sentencing each of
them to reclusion perpetua and to pay in solidum the heirs of
Edmundo Orizal P50,000.00 as the mandatory indemnity for death
and P150,000.00 as moral damages. The court acquitted accused
Jessie Micate y Ortega for lack of evidence.8
Hence, this appeal.
Accused-appellants Armando Gallardo y Gander and Alfredo Columna y
Correa impute the following errors to the trial court:
1. In admitting their extra-judicial confessions in evidence against
them; and
2. In finding that their guilt was proved beyond reasonable doubt.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 152
The appeal has no merit. The extra-judicial confessions of the accused were
given after they were completely and clearly apprised of their Constitutional
rights. A lawyer assisted them and a judge administered their oath. In his
testimony, Atty. Rolando Velasco stated:
Q. After you were introduced to the two suspects what happened?
A. I interrogated first Gallardo and I told him whether he can
understand tagalog and he said he can understand and I told him if
he is willing to voluntarily give his statement to the police and he
said "yes", and I said he has the right to give his statement and if he
is going to give his statement his statement can be used against him
in court and if he wants to get the services of a lawyer of his own
choice or if he wants me to assist him and he readily accepted.
The same was done with accused Alfredo Columna.
Q. How did you represent them in the investigation?
A. I was present and I made sure that there was no force and
intimidation made on the person of these two suspects by the police
and the police who asked questions in Ilokano and the answer was
in Ilocano by the suspects.
Q. In so representing them in that investigation were you requested
to sign the document?
A. I voluntarily signed, sir.10
Judge Aquino of the Regional Trial Court, Tuguegarao, Cagayan, asked Atty.
Velasco several question particularly on the point of how the accused-
appellants were informed of their Constitutional rights. He stated:
Q. When you conferred with the accused before taking of their
9 sworn statement you stated that you asked them whether they were
forced or intimidated in making the statement?
A. Yes, sir.

Q. Did you happen to know the status of the accused at the time
their statements were taken whether they are detention prisoners or
not?
A. There was no warrant of arrest issued they were just
apprehended as suspects.
Q. Please tell the court, did they complain to you about any
harassment of any kind by the police at the time of their
investigation?
A. None, your honor.
Q. You said you accompanied them, you were present when the
oath was administered by Judge Pauig?
A. Yes, the following day I was also called by the police to be
present when the accused took their oath before Judge Pauig.
Q. You said you advised the accused before taking their sworn
statement of their constitutional rights in Tagalog, why do you say
that they understand Tagalog?
A. Because they were answering in Tagalog, also, sir.
Q. How was their Tagalog?
A. Good Tagalog, sir.
Q. Will you please tell in Tagalog the information the constitutional
right of the accused?
A. I told them "May karapatan kayong hindi magbigay ng salaysay
sa pulis, may karapatan kayong magkaroon ng abogado na sarili
ninyo kung magbigay kayo."
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 153
We have held that "while the initial choice of the lawyer in cases where a
person under custodial investigation cannot afford the services of a lawyer is
naturally lodged in the police investigators, the accused really 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 former's appointment during
the course of the investigation and the accused thereafter subscribes to the
veracity of his statement before the swearing officer.11
In the case at bar, although Atty. Velasco was provided by the State and not
by the accused themselves, the accused were given an opportunity whether
to accept or not to accept him as their lawyer. They were asked and they
immediately agreed to have Atty. Velasco as their counsel during the
investigation. There is no requirement in the Constitution that the lawyer of
an accused during custodial investigation be previously known to them. The
Constitution provides that the counsel be a competent and independent
counsel, who will represent the accused and protect their Constitutionally
guaranteed rights.
Also, we have held that "to be an effective counsel, a lawyer need not
challenge all the questions being propounded to his client. The presence of a
lawyer is not intended to stop an accused from saying anything which might
incriminate him but, rather, it was adopted in our Constitution to preclude the
slightest coercion as would lead the accused to admit something false. The
counsel, however, should never prevent an accused from freely and
voluntarily telling the truth.12
We are, therefore, convinced that Atty. Velasco acted properly in accordance
with the dictates of the Constitution and informed the accused of their
Constitutional rights. Atty. Velasco assisted the accused and made sure that
the statements given by the accused were voluntary on their part, and that
no force or intimidation was used by the investigating officers to extract a
confession from them.
Aside from Atty. Velasco, Judge Vilma Pauig also testified that when she
administered the oath to the accused-appellants, she asked them whether
they understood the contents of their statements and whether they were
forced by the police investigators to make such statements. Accused-
appellants answered in the negative. From the foregoing, it can therefore be
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 154

established that accused-appellants were properly apprised of their rights Congressman Tuzon and Pat. Molina were not liable as co-principals in the
and there was no violation of their Constitutional rights.13 crime committed.1âwphi1.nêt

Under rules laid by the Constitution, existing laws and jurisprudence, a
confession to be admissible must satisfy all four fundamental requirements,
namely: (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. 14 All
these requirements were complied with.
It would have been different if the accused were merely asked if they were
waiving their Constitutional rights without any explanation from the assisting
counsel. In this case, Atty. Velasco asked the accused if they were aware of
their rights and the lawyer informed them of their rights and asked them if
they were giving their statements willingly after being informed of their rights.
This is in compliance with the constitutional guarantee of the rights of an
accused during custodial investigation.
There is no merit to the contention that the prosecution failed to establish the
guilt of the accused beyond reasonable doubt. The testimony of prosecution
witness Nelson Hidalgo remains uncontroverted. The defense was unable to
produce any evidence to prove that Nelson Hidalgo was biased and not
credible.
Well-entrenched in this jurisdiction is the rule that "the Court will not interfere
with the trial court's assessment of the credibility of witnesses absent any
indication or showing that the trial court overlooked some material facts or
gravely abused its discretion."15
Concededly, the extra-judicial confessions of the accused Gallardo and
Columna are not admissible against Congressman Tuzon and Pat. Molina.
However, the interlocking confessions of the accused are confirmatory
evidence of the possible involvement of former Congressman Tuzon and
Pat. Molina in the crime.16
Consequently, we refer the case to the Department of Justice for
investigation of the involvement of former Congressman Tuzon and Pat.
Molina in the killing of Edmundo Orizal.
WHEREFORE, the decision appealed from is hereby AFFIRMED in toto.
However, the award of moral damages is reduced to P50,000.00.
Let a copy of this decision be furnished to the Honorable, the Secretary of
Justice, Department of Justice, Manila, for inquiry into the involvement of
other persons in the crime.
With costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Consequently, the trial court correctly found accused-appellants Alfredo

Columna y Gander and Armando Gallardo y Correa guilty beyond
reasonable doubt of the treacherous murder of Edmundo Orizal.

We are however concerned with the statements of the accused that it was
Congressman Tuzon who masterminded the killing of Edmundo Orizal. The
order of inquest Judge Dominador L. Garcia dropping Congressman Tuzon
and Pat. Molina from the criminal complaint for the reason that the
confessions of the accused Gallardo and Columna were inadmissible against
them under the res inter alios acta rule do not persuade us that former

G.R. No. 133026. February 20, 2001.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWARD ENDINO
(at large) and GERRY GALGARIN alias TOTO, accused. GERRY
GALGARIN alias TOTO, accused-appellant.
Criminal Law; Flight; An accused’s attempt at jailbreak reveals a guilty
conscience.—Corroborating further accused-appellant’s guilt, probably with
intense incriminating effect, were his immediate flight after the slaying, and
his attempt at jailbreak revealing a guilty conscience, hence, his persistent
effort to evade the clutches of the law.
Same; Custodial Investigation; Extrajudicial Confessions; Admissions; Mass
Media; A videotaped interview showing the accused unburdening his guilt
willingly, openly and publicly in the presence of newsmen does not form part
of custodial investigation if it was not given to police officers but to media
men in an attempt to elicit sympathy and forgiveness from the public.—
Apropos the court a quo’s admission of accused-appellant’s 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.
Same; Same; Same; Same; Same; Because of the inherent danger in the
use of television as a medium for admitting one’s guilt, and the recurrence of
this phenomenon in several cases, it is prudent that trial courts are reminded
that extreme caution must be taken in further admitting confessions.—
However, because of the inherent danger in the use of television as a
medium for admitting one’s guilt, and the recurrence of this phenomenon in
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 155
several cases, 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.
Same; Same; Same; Same; Same; 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.—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.
Same; Murder; Aggravating Circumstances; Treachery; The crime
committed is murder where 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.—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. People vs. Endino, 352
SCRA 307, G.R. No. 133026 February 20, 2001.
BELLOSILLO, J.:

YIELDING to man's 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.1âwphi1.nêt
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.
Niño, 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 156
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 o'clock 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 Studio as 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 mother's testimony and even said that she had
seen Gerry Galgarin stab her Kuya Dennisand 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 child's birth on 13 December 1993 or more than two (2) years
after the delivery, she informed the civil registrar that the child's 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 Appellant's Brief, Gerry Galgarin assails the trial court for rejecting 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
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 157
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-appellant's 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 Leong's identification of accused-appellant was given
in a very categorical and spontaneous manner. Her confidence as to the
attacker's 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 boyfriend's assailant was not done out of spite, but
was impelled by her desire to seek justice for Dennis.
Corroborating further accused-appellant's guilt, probably with intense
incriminating effect, were his immediate flight after the slaying, and his
attempt at jailbreak12 revealing a guilty conscience, hence, his persistent
effort to evade the clutches of the law.
Apropos the court a quo's admission of accused-appellant's 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 Decision13 -
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
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 158

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 one's 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.1âwphi1.nêt
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 and P72,725.35 as actual damages, is AFFIRMED with
the MODIFICATION that accused-appellant is further ordered to compensate
the decedent's heirs P50,000.00 as moral damages for their emotional and
mental anguish. Costs against accused-appellant.
SO ORDERED.
Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

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

G.R. No. 186228. March 15, 2010.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO LAUGA
Y PINA ALIAS TERIO, accused-appellant.
Miranda Rights; Rights of Suspects; Bantay Bayan; Words and Phrases; A
“bantay bayan” is a group of male residents living in an area organized for
the purpose of keeping peace in their community.—Following the rationale
behind the ruling in Malngan, this Court needs to ascertain whether or not a
“bantay bayan” may be deemed a law enforcement officer within the
contemplation of Article III, Section 12 of the Constitution. In People of the
Philippines v. Buendia, 382 SCRA 714 (2002), this Court had the occasion to
mention the nature of a “bantay bayan,” that is, “a group of male residents
living in [the] area organized for the purpose of keeping peace in their
community[,which is] an accredited auxiliary of the x x x PNP.” Also, it may
be worthy to consider that pursuant to Section 1(g) of Executive Order No.
309 issued on 11 November 1987, as amended, a Peace and Order
Committee in each barangay shall be organized “to serve as implementing
arm of the City/Municipal Peace and Order Council at the Barangay level.”
The composition of the Committee includes, among others: (1) the Punong
Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3)
a Member of the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at
least three (3) Members of existing Barangay-Based Anti-Crime or
neighborhood Watch Groups or a Non Government Organization
Representative well-known in his community.
Same; Same; Same; Barangay-based volunteer organization in the nature of
watch groups, as in the case of the “bantay bayan,” are recognized by the
local government unit to perform functions relating to the preservation of
peace and order at the barangay level; Any inquiry a bantay bayan makes
has the color of a state-related function and objective insofar as the
entitlement of a suspect to his constitutional rights provided for under Article
III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 159
concerned, and an extrajudicial confession taken from a suspect by such
bantay bayan without a counsel is inadmissible in evidence.—This Court is,
therefore, convinced that barangay-based volunteer organizations in the
nature of watch groups, as in the case of the “bantay bayan,” are recognized
by the local government unit to perform functions relating to the preservation
of peace and order at the barangay level. Thus, without ruling on the legality
of the actions taken by Moises Boy Banting, and the specific scope of duties
and responsibilities delegated to a “bantay bayan,” particularly on the
authority to conduct a custodial investigation, any inquiry he makes has the
color of a state-related function and objective insofar as the entitlement of a
suspect to his constitutional rights provided for under Article III, Section 12 of
the Constitution, otherwise known as the Miranda Rights, is concerned. We,
therefore, find the extrajudicial confession of appellant, which was taken
without a counsel, inadmissible in evidence.
Evidence; Witnesses; Inconsistencies which refer to minor, trivial or
inconsequential circumstances strengthen the credibility of the witnesses, as
they erase doubts that such testimonies have been coached or rehearsed.—
The testimony of AAA does not run contrary to that of BBB. Both testified
that they sought the help of a “bantay bayan.” Their respective testimonies
differ only as to when the help was sought for, which this Court could well
attribute to the nature of the testimony of BBB, a shortcut version of AAA’s
testimony that dispensed with a detailed account of the incident. At any rate,
the Court of Appeals is correct in holding that the assailed inconsistency is
too trivial to affect the veracity of the testimonies. In fact, inconsistencies
which refer to minor, trivial or inconsequential circumstances even
strengthen the credibility of the witnesses, as they erase doubts that such
testimonies have been coached or rehearsed.
Same; Same; The Court is not dissuaded from giving full credence to the
testimony of a minor complainant by motives of feuds, resentment or
revenge.—Appellant’s contention that AAA charged him of rape only
because she bore grudges against him is likewise unmeritorious. This Court
is not dissuaded from giving full credence to the testimony of a minor
complainant by motives of feuds, resentment or revenge. As correctly
pointed out by the Court of Appeals: Indeed, mere disciplinary chastisement
is not strong enough to make daughters in a Filipino family invent a charge
that would not only bring shame and humiliation upon them and their families
but also bring their fathers into the gallows of death. The Supreme Court has
repeatedly held that it is unbelievable for a daughter to charge her own father
with rape, exposing herself to the ordeal and embarrassment of a public trial

and subjecting her private parts to examination if such heinous crime was
not in fact committed. No person, much less a woman, could attain such
height of cruelty to one who has sired her, and from whom she owes her
very existence, and for which she naturally feels loving and lasting
gratefulness. Even when consumed with revenge, it takes a certain amount
of psychological depravity for a young woman to concoct a story which would
put her own father to jail for the most of his remaining life and drag the rest of
the family including herself to a lifetime of shame. It is highly improbable for
[AAA] against whom no proof of sexual perversity or loose morality has been
shown to fake charges much more against her own father. In fact her
testimony is entitled to greater weight since her accusing words were
directed against a close relative.
Same; Rape; Qualified Rape; Penalties; Elements.—Having established the
credibility of the witnesses for the prosecution, We now examine the
applicability of the Anti-Rape Law of 1997 to the case at bar. The law
provides, in part, that rape is committed, among others, “[b]y a man who
shall have carnal knowledge of a woman” “through force, threat or
intimidation.” The death penalty shall be imposed if it is committed with
aggravating/qualifying circumstances, which include, “[w]hen the victim is
under eighteen (18) years of age and the offender is a parent.” People vs.
Lauga, 615 SCRA 548, G.R. No. 186228 March 15, 2010.
DECISION
PEREZ, J.:
Before Us for final review is the trial court’s conviction of the appellant for the
rape of his thirteen-year old daughter.
Consistent with the ruling of this Court in People v. Cabalquinto, 1 the real
name and the personal circumstances of the victim, and any other
information tending to establish or compromise her identity, including those
of her immediate family or household members, are not disclosed in this
decision.
The Facts
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 160
In an Information dated 21 September 2000, 2 the appellant was accused of
the crime of QUALIFIED RAPE allegedly committed as follows:
That on or about the 15th day of March 2000, in the evening, at Barangay
xxx, municipality of xxx, province of Bukidnon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being the
father of AAA with lewd design, with the use of force and intimidation, did
then and there, willfully, unlawfully and criminally have carnal knowledge with
his own daughter AAA, a 13 year[s]old minor against her will. 3
On 12 October 2000, appellant entered a plea of not guilty. 4 During the pre-
trial conference, the prosecution and the defense stipulated and admitted: (a)
the correctness of the findings indicated in the medical certificate of the
physician who examined AAA; (b) that AAA was only thirteen (13) years old
when the alleged offense was committed; and (c) that AAA is the daughter of
the appellant.5 On trial, three (3) witnesses testified for the prosecution,
namely: victim AAA;6 her brother BBB;7 and one Moises Boy Banting,8 a
"bantay bayan" in the barangay. Their testimonies revealed the following:
In the afternoon of 15 March 2000, AAA was left alone at home. 9 AAA’s
father, the appellant, was having a drinking spree at the neighbor’s
place.10 Her mother decided to leave because when appellant gets drunk, he
has the habit of mauling AAA’s mother. 11 Her only brother BBB also went out
in the company of some neighbors.12
At around 10:00 o’clock in the evening, appellant woke AAA up; 13 removed
his pants, slid inside the blanket covering AAA and removed her pants and
underwear;14 warned her not to shout for help while threatening her with his
fist;15 and told her that he had a knife placed above her head. 16 He
proceeded to mash her breast, kiss her repeatedly, and "inserted his penis
inside her vagina."17
Soon after, BBB arrived and found AAA crying. 18 Appellant claimed he
scolded her for staying out late. 19 BBB decided to take AAA with him.20 While
on their way to their maternal grandmother’s house, AAA recounted her
harrowing experience with their father. 21 Upon reaching their grandmother’s
house, they told their grandmother and uncle of the incident, 22 after which,
they sought the assistance of Moises Boy Banting.23

Moises Boy Banting found appellant in his house wearing only his
underwear.24 He invited appellant to the police station, 25 to which appellant
obliged. At the police outpost, he admitted to him that he raped AAA
because he was unable to control himself.26
The following day, AAA submitted herself to physical examination. 27 Dra.
Josefa Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued the
Medical Certificate, which reads:
hyperemic vulvae with 4 o’clock & 6 o’clock freshly lacerated hymen; (+)
minimal to moderate bloody discharges 2° to an alleged raping incident 28
On the other hand, only appellant testified for the defense. He believed that
the charge against him was ill-motivated because he sometimes physically
abuses his wife in front of their children after engaging in a heated
argument,29and beats the children as a disciplinary measure.30 He went
further to narrate how his day was on the date of the alleged rape.
He alleged that on 15 March 2000, there was no food prepared for him at
lunchtime.31 Shortly after, AAA arrived.32She answered back when
confronted.33 This infuriated him that he kicked her hard on her buttocks. 34
Appellant went back to work and went home again around 3 o’clock in the
afternoon.35 Finding nobody at home,36he prepared his dinner and went to
sleep.37
Later in the evening, he was awakened by the members of the "Bantay
Bayan" headed by Moises Boy Banting. 38They asked him to go with them to
discuss some matters.39 He later learned that he was under detention
because AAA charged him of rape.40
On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay City,
Bukidnon, rendered its decision41 in Criminal Case No. 10372-0, finding
appellant guilty of rape qualified by relationship and minority, and sentenced
him to suffer the penalty of reclusion perpetua. 42 It also ordered him to
indemnify AAA ₱50,000.00 as moral damages, and ₱50,000.00 as civil
indemnity with exemplary damages of ₱25,000.00. 43
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 161
On 30 September 2008, the decision of the trial court was AFFIRMED with
MODIFICATIONS44 by the Court of Appeals in CA-G.R. CR HC No. 00456-
MIN.45 The appellate court found that appellant is not eligible for parole and it
increased both the civil indemnity and moral damages from ₱50,000.00 to
₱75,000.00.46
On 24 November 2008, the Court of Appeals gave due course to the
appellant’s notice of appeal.47 This Court required the parties to
simultaneously file their respective supplemental briefs, 48 but both
manifested that they will no longer file supplemental pleadings. 49
The lone assignment of error in the appellant’s brief is that, the trial court
gravely erred in finding him guilty as charged despite the failure of the
prosecution to establish his guilt beyond reasonable doubt, 50 because: (1)
there were inconsistencies in the testimonies of AAA and her brother
BBB;51 (2) his extrajudicial confession before Moises Boy Banting was
without the assistance of a counsel, in violation of his constitutional
right;52 and (3) AAA’s accusation was ill-motivated.53
Our Ruling
Appellant contests the admissibility in evidence of his alleged confession
with a "bantay bayan" and the credibility of the witnesses for the prosecution.
Admissibility in Evidence of an Extrajudicial Confession before a
"Bantay Bayan"
Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a
"bantay bayan," the confession was inadmissible in evidence because he
was not assisted by a lawyer and there was no valid waiver of such
requirement.54
The case of People v. Malngan55 is the authority on the scope of the Miranda
doctrine provided for under Article III, Section 12(1) 56 and (3)57 of the
Constitution. In Malngan, appellant questioned the admissibility of her
extrajudicial confessions given to the barangay chairman and a neighbor of
the private complainant. This Court distinguished. Thus:

Arguably, the barangay tanods, including the Barangay Chairman, in this
particular instance, may be deemed as law enforcement officer for purposes
of applying Article III, Section 12(1) and (3), of the Constitution. When
accused-appellant was brought to the barangay hall in the morning of 2
January 2001, she was already a suspect, actually the only one, in the fire
that destroyed several houses x x x. She was, therefore, already under
custodial investigation and the rights guaranteed by x x x [the] Constitution
should have already been observed or applied to her. Accused-appellant’s
confession to Barangay Chairman x x x was made in response to the
‘interrogation’ made by the latter – admittedly conducted without first
informing accused-appellant of her rights under the Constitution or done in
the presence of counsel. For this reason, the confession of accused-
appellant, given to Barangay Chairman x x x, as well as the lighter found x x
x in her bag are inadmissible in evidence against her x x x.1avvphi1
[But such does] not automatically lead to her acquittal. x x x [T]he
constitutional safeguards during custodial investigations do not apply to
those not elicited through questioning by the police or their agents but given
in an ordinary manner whereby the accused verbally admits x x x as x x x in
the case at bar when accused-appellant admitted to Mercedita Mendoza,
one of the neighbors x x x [of the private complainant]. 58 (Emphasis supplied)
Following the rationale behind the ruling in Malngan, this Court needs to
ascertain whether or not a "bantay bayan" may be deemed a law
enforcement officer within the contemplation of Article III, Section 12 of the
Constitution.
In People of the Philippines v. Buendia, 59 this Court had the occasion to
mention the nature of a "bantay bayan," that is, "a group of male residents
living in [the] area organized for the purpose of keeping peace in their
community[,which is] an accredited auxiliary of the x x x PNP." 60
Also, it may be worthy to consider that pursuant to Section 1(g) of Executive
Order No. 309 issued on 11 November 1987, as amended, a Peace and
Order Committee in each barangay shall be organized "to serve as
implementing arm of the City/Municipal Peace and Order Council at the
Barangay level."61 The composition of the Committee includes, among
others: (1) the Punong Barangay as Chairman; (2) the Chairman of
the Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa; (4)
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 162
a Barangay Tanod; and (5) at least three (3) Members of existing Barangay-
Based Anti-Crime or neighborhood Watch Groups or a Non Government
Organization Representative well-known in his community.62
This Court is, therefore, convinced that barangay-based volunteer
organizations in the nature of watch groups, as in the case of the "bantay
bayan," are recognized by the local government unit to perform functions
relating to the preservation of peace and order at the barangay level. Thus,
without ruling on the legality of the actions taken by Moises Boy Banting, and
the specific scope of duties and responsibilities delegated to a "bantay
bayan," particularly on the authority to conduct a custodial investigation, any
inquiry he makes has the color of a state-related function and objective
insofar as the entitlement of a suspect to his constitutional rights provided for
under Article III, Section 12 of the Constitution, otherwise known as the
Miranda Rights, is concerned.
We, therefore, find the extrajudicial confession of appellant, which was taken
without a counsel, inadmissible in evidence.
Be that as it may, We agree with the Court of Appeals that the conviction of
the appellant was not deduced solely from the assailed extrajudicial
confession but "from the confluence of evidence showing his guilt beyond
reasonable doubt."63
Credibility of the Witnesses for the Prosecution
Appellant assails the inconsistencies in the testimonies of AAA and her
brother BBB. AAA testified that BBB accompanied her to the house of their
grandmother. Thereafter, they, together with her relatives, proceeded to look
for a "bantay bayan." On the other hand, BBB testified that he brought her
sister to the house of their "bantay bayan" after he learned of the incident.
Citing Bartocillo v. Court of Appeals, 64 appellant argues that "where the
testimonies of two key witnesses cannot stand together, the inevitable
conclusion is that one or both must be telling a lie, and their story a mere
concoction."65
The principle, however, is not applicable in the case at bar. In Bartocillo, the
two testimonies could not simply stand together because:

On one hand, if we are to believe Susan, Orlando could not have possibly
seen the hacking incident since he had accompanied Vicente home. On the
other hand, if we are to accept the testimony of Orlando, then Susan could
not have possibly witnessed the hacking incident since she was with Vicente
at that time.
Here, the testimony of AAA does not run contrary to that of BBB. Both
testified that they sought the help of a "bantay bayan." Their respective
testimonies differ only as to when the help was sought for, which this Court
could well attribute to the nature of the testimony of BBB, a shortcut version
of AAA’s testimony that dispensed with a detailed account of the incident.
At any rate, the Court of Appeals is correct in holding that the assailed
inconsistency is too trivial to affect the veracity of the testimonies. 66 In fact,
inconsistencies which refer to minor, trivial or inconsequential circumstances
even strengthen the credibility of the witnesses, as they erase doubts that
such testimonies have been coached or rehearsed.67
Appellant’s contention that AAA charged him of rape only because she bore
grudges against him is likewise unmeritorious. This Court is not dissuaded
from giving full credence to the testimony of a minor complainant by motives
of feuds, resentment or revenge. 68 As correctly pointed out by the Court of
Appeals:
Indeed, mere disciplinary chastisement is not strong enough to make
daughters in a Filipino family invent a charge that would not only bring
shame and humiliation upon them and their families but also bring their
fathers into the gallows of death.69 The Supreme Court has repeatedly held
that it is unbelievable for a daughter to charge her own father with rape,
exposing herself to the ordeal and embarrassment of a public trial and
subjecting her private parts to examination if such heinous crime was not in
fact committed.70 No person, much less a woman, could attain such height of
cruelty to one who has sired her, and from whom she owes her very
existence, and for which she naturally feels loving and lasting
gratefulness.71 Even when consumed with revenge, it takes a certain amount
of psychological depravity for a young woman to concoct a story which would
put her own father to jail for the most of his remaining life and drag the rest of
the family including herself to a lifetime of shame. 72 It is highly improbable for
[AAA] against whom no proof of sexual perversity or loose morality has been
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 163
shown to fake charges much more against her own father. In fact her
testimony is entitled to greater weight since her accusing words were
directed against a close relative.73
Elements of Rape
Having established the credibility of the witnesses for the prosecution, We
now examine the applicability of the Anti-Rape Law of 1997 74 to the case at
bar.
The law provides, in part, that rape is committed, among others, "[b]y a man
who shall have carnal knowledge of a woman" "through force, threat or
intimidation."75 The death penalty shall be imposed if it is committed with
aggravating/qualifying circumstances, which include, "[w]hen the victim is
under eighteen (18) years of age and the offender is a parent." 76
The consistent and forthright testimony of AAA detailing how she was raped,
culminating with the penetration of appellant’s penis into her vagina, suffices
to prove that appellant had carnal knowledge of her. When a woman states
that she has been raped, she says in effect all that is necessary to show that
rape was committed.77 Further, when such testimony corresponds with
medical findings, there is sufficient basis to conclude that the essential
requisites of carnal knowledge have been established. 78
The Court of Appeals pointed out that the element of force or intimidation is
not essential when the accused is the father of the victim, inasmuch as his
superior moral ascendancy or influence substitutes for violence and
intimidation.79 At any rate, AAA was actually threatened by appellant with his
fist and a knife allegedly placed above AAA’s head.80
It may be added that the self-serving defense of appellant cannot prevail
over the positive and straightforward testimony of AAA. Settled is the rule
that, "alibi is an inherently weak defense that is viewed with suspicion
because it is easy to fabricate." 81 "Alibi and denial must be supported by
strong corroborative evidence in order to merit credibility." 82 Moreover, for the
defense of alibi to prosper, the accused must establish two elements – (1) he
was not at the locus delicti at the time the offense was committed; and (2) it
was physically impossible for him to be at the scene at the time of its
commission.83 Appellant failed in this wise.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 164

Aggravating/Qualifying Circumstances hereby sentenced to suffer the penalty of reclusion perpetua without
eligibility for parole and to pay AAA ₱75,000.00 as civil indemnity,
The presence of the qualifying circumstances of minority and relationship ₱75,000.00 as moral damages, and ₱30,000.00 as exemplary damages.
with the offender in the instant case has likewise been adequately
established. Both qualifying circumstances were specifically alleged in the SO ORDERED.
Information, stipulated on and admitted during the pre-trial conference, and
testified to by both parties in their respective testimonies. Also, such
stipulation and admission, as correctly pointed out by the Court of Appeals,
are binding upon this Court because they are judicial admissions within the
contemplation of Section 4, Rule 129 of the Revised Rules of Court. It
provides:

Sec. 4. Judicial admissions. - An admission, verbal or written, made by a

party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made.

Penalty

Finally, in increasing the amount of civil indemnity and damages each from
₱50,000.00 to ₱75,000.00, the Court of Appeals correctly considered
controlling jurisprudence to the effect that where, as here, the rape is
committed with any of the qualifying/aggravating circumstances warranting
the imposition of the death penalty, the victim is entitled to ₱75,000.00 as
civil indemnity ex delicto84 and ₱75,000.00 as moral damages. 85 However,
the award of exemplary damages should have been increased from
₱25,000.00 to ₱30,000.00.86 Also, the penalty of reclusion perpetua in lieu of
death was correctly imposed considering that the imposition of the death
penalty upon appellant would have been appropriate were it not for the
enactment of Republic Act No. 9346, or An Act Prohibiting the Imposition of
Death Penalty in the Philippines.87 We further affirm the ruling of the Court of
Appeals on appellant’s non-eligibility for parole. Sec. 3 of Republic Act No.
9346 clearly provides that "persons convicted of offenses punished
with reclusion perpetua, or whose sentences will be reduced to reclusion
perpetua by reason of the law, shall not be eligible for parole."

WHEREFORE, the Decision of the Court of Appeals dated 30 September

2008 in CA-G.R. CR HC No. 00456-MIN is hereby AFFIRMED. Appellant
Antonio Lauga is GUILTY beyond reasonable doubt of qualified rape, and is

Nos. L-32951-2. September 17, 1971.
RICARDO DE LA CAMARA, petitioner, vs. HON.MANUEL LOPEZ
ENAGE, Presiding Judge of the Court of First Instance of Agusan del
Norte and Butuan City (Branch II), respondents.
Constitutional law; Bail; Observance of the constitutional mandate that
excessive bail shall not be required.—The fact that the case is moot and
academic should not preclude this Tribunal from setting forth in language
clear and unmistakable, the obligation of fidelity on the part of lower court
judges to the unequivocal command of the Constitution that excessive bail
shall not be required.
Same; Right to bail; Purpose of bail; Denial of right to one charged with a
capital offense when evidence of guilt is strong.—Before conviction, every
person is bailable except if charged with capital offenses when the evidence
of guilt is strong. Such a right flows from the presumption of innocence in
favor of every accused who should not be subjected to the loss of freedom
as thereafter he would be entitled to acquittal, unless his guilt be proved
beyond reasonable doubt. Thereby a regime of liberty is honored in the
observance and not in the breach. It is not beyond the realm of probability,
however, that a person charged with a crime, especially so where his
defense is weak, would just simply make himself scarce and thus frustrate
the hearing of his case. A bail is intended as a guarantee that such an intent
would be thwarted. It is, in the language of Cooley, a “mode short of
confinement which would, with reasonable certainty, insure the attendance of
the accused” for the subsequent trial. Nor is there anything unreasonable in
denying this right to one charged with a capital offense when evidence of
guilt is strong, as the likelihood is, rather than await the outcome of the
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 165
proceeding against him with a death sentence, an ever-present threat, the
temptation to flee the jurisdiction would be too great to be resisted.
Same; Same; Prohibition against excessive bail; Reason.—Where 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.’ ”
Same; Excessive bail; Case at bar.—Nothing can be clearer, therefore, than
that the challenged order of August 10, 1970 fixing the amount of
P1,195,200.00 as the bail that should be posted by petitioner, the sum of
P840,000.00 for the information charging multiple murder, there being
fourteen victims, and the sum of P355,200.00 for the other offense of
multiple frustrated murder, there being twelve victims, is clearly violative of
this constitutional provision. Under the circumstances, there being only two
offenses charged, the amount required as bail could not possibly exceed
P50,000.00 for the information for murder and P25,000.00 for the other
information for frustrated murder. Nor should it be ignored in this case that
the Department of Justice did recommend the total sum of P40,-000.00 for
the two offenses.
Same; Bail; Guidelines in the fixing of bail; Discretion of court to rule on the
question of bail.—There is an attempt on the part of respondent Judge to
justify what, on its face, appears to be indefensible by the alleged reliance on
Villaseñor vs. Abaño, 21 SCRA 312. The guidelines in the fixing of bail was
there summarized, in the opinion of Justice Sanchez, as follows: “(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 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.” Respondent Judge,
however, did ignore this decisive consideration appearing at the end of the
above opinion: “Discretion, indeed, is with the court called upon to rule on
the question of bail. We must stress, however, that where conditions
imposed upon a defendant seeking bail would amount to a refusal thereof
and render nugatory the constitutional right to bail, we will not hesitate to
exercise our supervisory powers to provide the required remedy.”
Same; Same; When excessive bail could only mean that provisional liberty
would be beyond reach.—No attempt at rationalization can therefore give a
color of validity to the challenged order. There is grim irony in an accused
being told that he has a right to bail but at the same time being required to
post such an exorbitant sum. What aggravates the situation is that the lower
court judge would apparently yield to the command of the fundamental law.
In reality, such as sanctimonious avowal of respect for a mandate of the
Constitution was on a purely verbal level. There is reason to believe that any
person in the position of petitioner would under the circumstances be unable
to resist thoughts of escaping from confinement, reduced as he must have
been to a state of desperation. In the same breath that he was told he could
be bailed out, the excessive amount required could only mean that
provisional liberty would be beyond his reach. It would have been more
forthright if he were informed categorically that such a right could not be
availed of. There would have been no disappointment of expectations then. It
does call to mind these words of Justice Jackson, “a promise to the ear to be
broken to the hope, a teasing illusion like a munificent bequest in a pauper’s
will.” It is no wonder that the resulting frustration left resentment and
bitterness in its wake. De la Camara vs. Enage, 41 SCRA 1, Nos. L-32951-2
September 17, 1971
RESOLUTION
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 166
FERNANDO, J.:
An order of respondent Judge Manuel Lopez Enage, fixing the bail of
petitioner, Ricardo de la Camara, in the sum of P1,195,200.00 is assailed in
this petition for certiorari as repugnant to the constitutional mandate
prohibiting excessive bail.1 The merit of the petition on its face is thus
apparent. Nonetheless, relief sought setting aside the above order by
reducing the amount of bail to P40,000.00 cannot be granted, as in the
meanwhile, petitioner had escaped from the provincial jail, thus rendering
this case moot and academic. It is deemed advisable, however, for the
guidance of lower court judges, to set forth anew the controlling and
authoritative doctrines that should be observed in fixing the amount of the
bail sought in order that full respect be accorded to such a constitutional
right.
The facts are not in dispute. Petitioner, Ricardo, de la Camara, Municipal
Mayor of Magsaysay, Misamis Oriental, was arrested on November 7, 1968
and detained at the Provincial Jail of Agusan, for his alleged participation in
the killing of fourteen and the wounding of twelve other laborers of the
Tirador Logging Co., at Nato, Esperanza, Agusan del Sur, on August 21,
1968. Thereafter, on November 25, 1968, the Provincial Fiscal of Agusan
filed with the Court of First Instance a case for multiple frustrated
murder2 and another for multiple murder 3 against petitioner, his co-accused
Nambinalot Tagunan and Fortunato Galgo, resulting from the aforesaid
occurrence. Then on January 14, 1969, came an application for bail filed by
petitioner with the lower court, premised on the assertion that there was no
evidence to link him with such fatal incident of August 21, 1968. He likewise
mantained his innocence. Respondent Judge started the trial of petitioner on
February 24, 1969, the prosecution resting its case on July 10, 1969. As of
the time of the filing ofthe petition, the defense had not presented its
evidence.
Respondent Judge, on August 10, 1970, issued an order granting petitioner's
application for bail, admitting that there was a failure on the part of the
prosecution to prove that petitioner would flee even if he had the
opportunity,but fixed the amount of the bail bond at the excessive amount of
P1,195,200.00,the sum of P840,000.00 for the information charging multiple
murder and P355,200.00 for the offense of multiple frustrated murder. Then
came the allegation that on August 12, 1970, the Secretary of Justice,
Vicente Abad Santos, upon being informed of such order, sent a telegram to

respondent Judgestating that the bond required "is excessive" and
suggesting that a P40,000.00bond, either in cash or property, would be
reasonable. There was likewise a motion for reconsideration to reduce the
amount. Respondent Judge however remained adamant. Hence this petition.
The answer filed by respondent Judge on March 5, 1971 set forth the
circumstances concerning the issuance of the above order and the other
incidents of the case, which, to his mind would disprove any charge that he
wasguilty of grave abuse of discretion. It stressed, moreover, that the
challengedorder would find support in circulars of the Department of Justice
given sanction by this Court. He sought the dismissal of the petition for lack
of merit.
In the hearing of the case set for March 31, 1971, there was no appearance
for both the petitioner and respondents with the former, upon written motion,
being given thirty days within which to submit a memorandum in lieu of oral
argument, respondent Judge in turn having the same period from receipt
thereofto file his reply. Such a memorandum as duly submitted by petitioner
on April 6, 1971.
Instead of a reply, respondent Judge submitted, on May 26, 1971, a
supplemental answer wherein he alleged that petitioner escaped from the
provincial jail on April 28, 1971 and had since then remained at large. There
was a reiteration then of the dismissal of this petition for lack of merit,
towhich petitioner countered in a pleading dated June 7, 1971, and filed with
this Court the next day with this plea: "The undersigned counsel, therefore,
vehemently interpose opposition, on behalf of petitioner, to respondent's
prayer for dismissal of the present petition for lack of merit. For, the issue in
this case is not alone the fate of petitioner Ricardo de la Camara. The issue
in the present petition that calls for the resolution of this Honorable
Tribunal is the fate of countless other Ricardo de la Camaras who maybe
awaiting the clear-cut definition and declaration of the power of trial courts in
regard to the fixing of bail."4
While under the circumstances a ruling on the merits of the petition
for certiorari is not warranted, still, as set forth at the opening of this opinion,
the fact that this case is moot and academic should not preclude thisTribunal
from setting forth in language clear and unmistakable, the obligationof fidelity
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 167
on the part of lower court judges to the unequivocal command of
theConstitution that excessive bail shall not be required.
1. Before conviction, every person is bailable except if charged with capital
offenses when the evidence of guilt is strong. 5 Such a right flows from the
presumption of innocence in favor of every accused who should not be
subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt. Thereby a
regimeof liberty is honored in the observance and not in the breach. It is not
beyondthe realm of probability, however, that a person charged with a crime,
especially so where his defense is weak, would just simply make himself
scarceand thus frustrate the hearing of his case. A bail is intended as a
guarantee that such an intent would be thwarted. It is, in the language of
Cooley, a "mode short of confinement which would, with reasonable
certainty, insure the attendance of the accused" for the subsequent trial. 6 Nor
is there, anything unreasonable in denying this right to one charged with a
capital offense when evidence of guilt is strong, as the likelihood is, rather
than await the outcome of the proceeding against him with a death sentence,
an ever-present threat, temptation to flee the jurisdiction would be too great
to be resisted.
2. 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.7As 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
reasonablycalculated to fulfill thus purpose is "excessive" under the Eighth
Amendment."8
Nothing can be clearer, therefore, than that the challenged order of August
10, 1970 fixing the amount of P1,195,200.00 as the bail that should be
posted by petitioner, the sum of P840,000.00 for the information charging
multiple murder, there being fourteen victim, and the sum of P355,200 for the
other offense of multiple frustrated murder, there being twelve victims, is
clearly violative of constitutional provision. Under the circumstances, there
being only two offenses charged, the amount required as bail could not
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 168

possibly exceed P50,000.00 for the information for murder and P25,000.00 not entitled to the relief prayed for. What respondent Judge did, however,
for the other information for frustrated murder. Nor should it be ignored in this does call for repudiation from this Court.
case that the Department of Justice did recomend the total sum of
P40,000.00 for the twooffenses. Nor is there any justification then for imputing his inability to fix a lesser
amount by virtue of an alleged reliance on a decision of this Tribunal. Even if
3. There is an attempt on the part of respondent Judge to justify what, on its one were charitably inclined, the mildest characterization of such a result is
face, appears to be indefensible by the alleged reliance on Villaseñor v. that there was a clear reading of the Abano opinion when such a meaning
Abano.9 The guidelines in the fixing of bail was there summarized, in the was ascribed to it. No doctrine refinement may elicit approval if to doso
opinion of Justice Sanchez, as follows: "(1) ability of the accused to give bail; would be to reduce the right to bail to a barren form of words. Not only isthe
(2) nature of the offense; (3) penalty for the offense charged; (4) character order complained of absolutely bereft of support in law, but it flies in the face
and reputation of the accused; (5) health of the accused; (6) character and of common sense. It is not too much to say that it is at war with thecommand
strength of the evidence; (7) probability of the accused appearing in trial; (8) of reason.
forfeiture of other bonds; (9) whether the accused wasa fugitive from justice
when arrested; and (10) if the accused is under bond for appearance at trial With petitioner, however, having escaped from the provincial jail, no ruling
in other cases." 10 Respondent Judge, however, did ignore this decisive can be had on his plea to nullify the above order.
consideration appearing at the end of the above opinion: "Discretion, indeed,
is with the court called upon to rule on the question of bail. We must stress,
however, that where conditions imposed upon a defendant seeking bail WHEREFORE, this case is dismissed for being moot and academic. Without
would amount to a refusal thereof and render nugatory the constitutional pronouncement as to costs.
right to bail, we will not hesitate to exercise our supervisorypowers to provide
the required remedy." 11 Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Teehankee,
Barredo and Villamor, JJ., concur.
No attempt at rationalization can therefore give a color of validity to the
challenged order. There is grim irony in an accused being told that he has a Castro, J., concurs in the result.
right to bail but at the same time being required to post such an exorbitant
sum. What aggravates the situation is that the lower court judge would Makasiar, J., took no part.
apparently yield to the command of the fundamental law. In reality, such a
sanctimonious avowal of respect for a mandate of the Constitution was on a
purely verbal level. There is reason to believe that any person in the position
of petitioner would under the circumstances be unable to resists thoughts of
escaping from confinement, reduced as he must have been to a stateof
desperation. In the same breath that he was told he could be bailed out, the
excessive amount required could only mean that provisional liberty would
bebeyond his reach. It would have been more forthright if he were informed
categorically that such a right could not be availed of. There would have
beenno disappointment of expectations then. It does call to mind these
words of Justice Jackson, "a promise to the ear to be broken to the hope, a
teasing illusion like a munificent bequest in a pauper's will." 12 It is no wonder
that the resulting frustration left resentment and bitterness in its
wake.Petitioner's subsequent escape cannot be condoned. That is why he is

G.R. No. 141529. June 6, 2001.*
FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs. COURT OF
APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.
Criminal Procedure; Bail; Imposing bail in an excessive amount could render
meaningless the right to bail.—The prohibition against requiring excessive
bail is enshrined in the Constitution. The obvious rationale, as declared in the
leading case of De la Camara vs. Enage, is that imposing bail in an
excessive amount could render meaningless the right to bail. Thus, in
Villaseñor vs. Abano, this Court made the pronouncement that it will not
hesitate to exercise its supervisory powers over lower courts should the
latter, after holding the accused entitled to bail, effectively deny the same by
imposing a prohibitory sum or exacting unreasonable conditions.
Same; Same; Factors to be considered in the setting of the amount of bail.—
At the same time, Section 9, Rule 114 of the Revised Rules of Criminal
Procedure advises courts to consider the following factors in the setting of
the amount of bail: (a) Financial ability of the accused to give bail; (b) Nature
and circumstances of the offense; (c) Penalty for the offense charged; (d)
Character and reputation of the accused; (e) Age and health of the accused;
(f) Weight of the evidence against the accused; (g) Probability of the accused
appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 169
was a fugitive from justice when arrested; and (j) Pendency of other cases
where the accused is on bail.
Same; Same; Court finds that the setting of the amount at P5,500,000.00 is
unreasonable, excessive, and constitutes an effective denial of petitioner’s
right to bail.—Under the circumstances of this case, we find that appropriate
conditions have been imposed in the bail bond to ensure against the risk of
flight, particularly, the combination of the holddeparture order and the
requirement that petitioner inform the court of any change of residence and
of his whereabouts. Although an increase in the amount of bail while the
case is on appeal may be meritorious, we find that the setting of the amount
at P5,500,000.00 is unreasonable, excessive, and constitutes an effective
denial of petitioner’s right to bail.
Same; Same; The amount should be high enough to assure the presence of
the accused when required but no higher than is reasonably calculated to
fulfill this purpose.—The purpose for bail is to guarantee the appearance of
the accused at the trial, or whenever so required by the court. The amount
should be high enough to assure the presence of the accused when required
but no higher than is reasonably calculated to fulfill this purpose. To fix bail
at an amount equivalent to the civil liability of which petitioner is charged (in
this case, P5,500,000.00) is to permit the impression that the amount paid
as bail is an exaction of the civil liability that accused is charged of; this we
cannot allow because bail is not intended as a punishment, nor as a
satisfaction of civil liability which should necessarily await the judgment of
the appellate court.
Same; Same; Courts are advised that they must not only be aware but
should also consider the Bail Bond Guide due to its significance in the
administration of criminal justice.—True, the Court has held that the Bail
Bond Guide, a circular of the Department of Justice for the guidance of state
prosecutors, although technically not binding upon the courts, “merits
attention, being in a sense an expression of policy of the Executive Branch,
through the Department of Justice, in the enforcement of criminal laws.”
Thus, courts are advised that they must not only be aware but should also
consider the Bail Bond Guide due to its significance in the administration of

criminal justice. This notwithstanding, the Court is not precluded from
imposing in petitioner’s case an amount higher than P40,000.00 (based on
the Bail Bond Guide) where it perceives that an appropriate increase is
dictated by the circumstances.
Same; Same; Discretion to extend bail during the course of the appeal
should be exercised with grave caution and for strong reasons, considering
that the accused had been in fact convicted by the trial court.—It militates
emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the
Revised Rules of Criminal Procedure is clear that although the grant of bail
on appeal in non-capital offenses is discretionary, when the penalty imposed
on the convicted accused exceeds six years and circumstances exist that
point to the probability of flight if released on bail, then the accused must be
denied bail, or his bail previously granted should be cancelled. In the same
vein, the Court has held that the discretion to extend bail during the course
of the appeal should be exercised with grave caution and for strong reasons,
considering that the accused had been in fact convicted by the trial court.
Yap, Jr. vs. Court of Appeals, 358 SCRA 564, G.R. No. 141529 June 6,
2001.
GONZAGA-REYES, J.:
The right against excessive bail, and the liberty of abode and travel, are
being invoked to set aside two resolutions of the Court of Appeals which
fixed bail at P5,500,000.00 and imposed conditions on change of residence
and travel abroad.
For misappropriating amounts equivalent to P5,500,000.00, petitioner was
convicted of estafa by the Regional Trial Court of Pasig City 1 and was
sentenced to four years and two months of prision correctional, as minimum
to eight years of prision mayor  as maximum, "in addition to one (1) year for
each additional P10,000.00 in excess of P22,000.00 but in no case shall it
exceed twenty (20) years." 2 He filed a notice of appeal, and moved to be
allowed provisional liberty under the cash bond he had filed earlier in the
proceedings. The motion was denied by the trial court in an order dated
February 17,1999.
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 170
After the records of the case were transmitted to the Court of Appeals,
petitioner filed with the said court a Motion to Fix Bail For the Provisional
Liberty of Accused Appellant Pending Appeal, invoking the last paragraph of
Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to comment
on this motion, the Solicitor General opined that petitioner may be allowed to
post bail in the amount of P5,500,000.00 and be required to secure "a
certification/guaranty from the Mayor of the place of his residence that he is
a resident of the area and that he will remain to be so until final judgment is
rendered or in case he transfers residence, it must be with prior notice to the
court and private complainant." 3 Petitioner filed a Reply, contending that the
proposed bail ofP5,500,000.00 was violative of his right against excessive
bail.
The assailed resolution of the Court of Appeals 4, issued on October 6, 1999,
upheld the recommendation of the Solicitor General; thus, its dispositive
portion reads:
WHEREFORE, premises considered, the "Motion to Fix Bail For
Provisional Liberty of Accused-Appellant Pending Appeal" is hereby
GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a. Edwin Yap
is hereby ALLOWED TO POST BAIL in the amount of Five Million
Five Hundred Thousand (P5,500,000.00) Pesos, subject to the
following conditions, viz. :
(1) He (accused-appellant) secures a certification/guaranty
from the Mayor of the place of his residence that he is a
resident of the area and that he will remain to be a resident
therein until final judgment is rendered or in case he
transfers residence, it must be with prior notice to the court;
(2) The Commission of lmmigration and Deportation (CID)
is hereby directed to issue a hold departure order against
accused-appellant; and
(3) The accused-appellant shall forthwith surrender his
passport to the Division Clerk of Court for safekeeping until
the court orders its return;

(4) Any violation of the aforesaid conditions shall cause the
forfeiture of accused-appellant's bail bond, the dismissal of
appeal and his immediate arrest and confinement in jail.
SO ORDERED.5
A motion for reconsideration was filed, seeking the reduction of the amount
of bail fixed by respondent court, but was denied in a resolution issued on
November 25, 1999. Hence, this petition.
Petitioner sets out the following assignments of error:
The respondent Court of Appeals committed grave abuse of
discretion in fixing the bail of the provisional liberty of petitioner
pending appeal in the amount of P5 .5 million.
The respondent Court of Appeals committed grave abuse of
discretion in basing the bail for the provisional liberty of the
petitioner on his civil liability.
The respondent Court of Appeals unduly restricted petitioner's
constitutional liberty of abode and travel in imposing the other
conditions for the grant of bail.
Petitioner contends that the Court of Appeals, by setting bail at a prohibitory
amount, effectively denied him his right to bail. He challenges the legal basis
of respondent court for fixing bail at P5,500,000.00, which is equivalent to
the amount of his civil liability to private complainant Manila Mahogany
Marketing Corporation, and argues that the Rules of Court never intended for
the civil liability of the accused to be a guideline or basis for determining the
amount of  bail. He prays that bail be reduced to at least P40,000.00, citing
the maximum amount of bail that can be posted for the crime of estafa under
the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he
posted during the trial of the case.6
On the other hand, the Solicitor General maintains that no grave abuse of
discretion could be ascribed to the Court of Appeals for fixing the amount of
bail at P5,500,000.00 considering the severity of the penalty imposed, the
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 171
weight of the evidence against petitioner, and the gravity of the offense of
which petitioner was convicted by the RTC. He asserted that the
P5,500,000.00 not only corresponded to civil liability but also to the amount
of fraud imputed to petitioner. The Solicitor General further pointed out the
probability of flight in case petitioner is released on bail, it having been
established that petitioner was in possession of a valid passport and visa
and had in fact left the country several times during the course of the
proceedings in the lower court. It was also shown that petitioner used
different names in his business transactions and had several abodes in
different parts of the country.
As for the conditions imposed by the bail bond, the Solicitor General
advanced that all that the Court of Appeals requires is notice in case of
change of address; it does not in any way impair petitioner's right to change
abode for as long as the court is apprised of his change of residence during
the pendency of the appeal.
Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997
Rules of Court which states:
SEC. 5. Bail, when discretionary. -- Upon conviction by the Regional
Trial Court of an offense not punishable by death, reclusion
perpetua  or life imprisonment, the court, on application, may admit
the accused to bail.
The court, in its discretion, may allow the accused to continue on
provisional liberty under the same bail bond during the period to
appeal subject to the consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6)
years, but not more than twenty (20) years, the accused shall be
denied bail, or his bail previously granted shall be cancelled, upon a
showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:
(a) That the accused is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal
confinement, evaded sentence, or has violated the conditions of his
bail without valid justification;
(c) That the accused committed the offense while on probation,
parole, or under conditional pardon;
(d) That the circumstances of the accused or his case indicate the
probability of flight if released on bail; or
(e) That there is undue risk that during the pendency of the appeal,
the accused may commit another crime.
The appellate court may review the resolution of the Regional Trial
Court, on motion and with notice to the adverse party. 7
There is no question that in the present case the Court of Appeals exercised
its discretion in favor of allowing bail to petitioner on appeal. Respondent
court stated that it was doing so for "humanitarian reasons", and despite a
perceived high risk of flight, as by petitioner's admission he went out of the
country several times during the pendency of the case, for which reason the
court deemed it necessary to peg the amount of bail at P5,500,000.00.
The prohibition against requiring excessive bail is enshrined in the
Constitution.8 The obvious rationale, as declared in the leading case of De la
Camara vs. Enage,9 is that imposing bail in an excessive amount could
render meaningless the right to bail. Thus, in Villaseñor vs. Abano,10 this
Court made the pronouncement that it will not hesitate to exercise its
supervisory powers over lower courts should the latter, after holding the
accused entitled to bail, effectively deny the same by imposing a prohibitory
sum or exacting unreasonable conditions.
xxx There is grim irony in an accused being told that he has a right
to bail but at the same time being required to post such an
exorbitant sum. What aggravates the situation is that the lower court
judge would apparently yield to the command of the fundamental
law. In reality, such a sanctimonious avowal of respect for a
mandate of the Constitution was on a purely verbal level. There is
reason to believe that any person in the position of petitioner would
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 172
under the circumstances be unable to resist thoughts of escaping
from confinement, reduced as he must have been to a state of
desperation. In the same breath as he was told he could be bailed
out, the excessive amount required could only mean that provisional
liberty would be beyond his reach. It would have been more
forthright if he were informed categorically that such a right could not
be availed of. There would have been no disappointment of
expectations then. It does call to mind these words of Justice
Jackson, "a promise to the ear to be broken to the hope, a teasing
illusion like a munificent bequest in a pauper's will." XXX 11
At the same time, Section 9, Rule 114 of the Revised Rules of Criminal
Procedure advises courts to consider the following factors in the setting of
the amount of bail:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when
arrested; and
(j) Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears
that the accused may jump bail, it is certainly not precluded from installing
devices to ensure against the same. Options may include increasing the bail
bond to an appropriate level, or requiring the person to report periodically to
the court and to make an accounting of his movements. 12 In the present
case, where petitioner was found to have left the country several times while
the case was pending, the Court of Appeals required the confiscation of his
passport and the issuance of a hold-departure order against him.
Under the circumstances of this case, we find that appropriate conditions
have been imposed in the bail bond to ensure against the risk of flight,
particularly, the combination of the hold-departure order and the requirement
that petitioner inform the court of any change of residence and of his
whereabouts. Although an increase in the amount of bail while the case is on
appeal may be meritorious, we find that the setting of the amount at
P5,500,000.00 is unreasonable, excessive, and constitutes an effective
denial of petitioner's right to bail.
The purpose for bail is to guarantee the appearance of the accused at the
trial,13 or whenever so required by the Court 14. The amount should be high
enough to assure the presence of the accused when required but no higher
than is reasonably calculated to fulfill this purpose. 15 To fix bail at an amount
equivalent to the civil liability of which petitioner is charged (in this case,
P5,500,000.00).is to permit the impression that the amount paid as bail is an
exaction of the civil liability that accused is charged of; this we cannot allow
because bail is not intended as a punishment, nor as a satisfaction of civil
liability which should necessarily await the judgment of the appellate court.
At the same time, we cannot yield to petitioner's submission that bail in the
instant case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The
current Bail Bond Guide, issued on August 29, 2000, maintains
recommended bail at P40,000.00 for estafa where the amount of fraud is
P142,000.00 or over and the imposable penalty 20 years of reclusion
temporal).  True, the Court has held that the Bail Bond Guide, a circular of
the Department of Justice for the guidance of state prosecutors, although
technically not binding upon the courts, "merits attention, being in a sense an
expression of policy of the Executive Branch, through the Department of
Justice, in the enforcement of criminal laws." 16 Thus, courts are advised that
they must not only be aware but should also consider the Bail Bond Guide
due to its significance in the administration of criminal justice. 17 This
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 173
notwithstanding, the Court is not precluded from imposing in petitioner's case
an amount higher than P40,000.00 (based on the Bail Bond Guide) where it
perceives that an appropriate increase is dictated by the circumstances.
It militates emphasis that petitioner is seeking bail on appeal.  Section 5, Rule
114 of the Revised Rules of Criminal Procedure is clear that although the
grant of bail on appeal is non-capital offenses is discretionary, when the
penalty imposed on the convicted accused exceeds six years and
circumstances exist that point to the probability of flight if released on bail,
then the accused must be denied bail, or his bail previously granted should
be cancelled.18 In the same vein, the Court has held that the discretion to
extend bail during the course of the appeal should be exercised with grave
caution and for strong reasons, considering that the accused had been in
fact convicted by the trial court. 19 In an earlier case, the Court adopted
Senator Vicente J. Francisco's disquisition on why bail should be denied
after judgment of conviction as a matter of wise discretion; thus:
The importance attached to conviction is due to the underlying
principle that bail should be granted only where it is uncertain
whether the accused is guilty or innocent, and therefore, where that
uncertainty is removed by conviction it would, generally speaking,
be absurd to admit to bail. After a person has been tried and
convicted the presumption of innocence which may be relied upon in
prior applications is rebutted, and the burden is upon the accused to
show error in the conviction. From another point of view it may be
properly argued that the probability of ultimate punishment is so
enhanced by the conviction that the accused is much more likely to
attempt to escape if liberated on bail than before conviction.xxx 20
Petitioner is seeking bail on appeal. He was in fact declared guilty beyond
reasonable doubt by the RTC, and due to the serious amount of fraud
involved, sentenced to imprisonment for twenty years --the maximum penalty
for estafa by false pretenses or fraudulent acts allowed by the Revised Penal
Code. Although it cannot be controverted that the Court of Appeals, despite
the foregoing considerations and the possibility of flight still wielded its
discretion to grant petitioner bail, the setting of bail in the amount of
P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by
the penalty imposed by the lower court and the weight of the evidence
against petitioner, we believe that the amount of P200,000.00 is more
reasonable.
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 174

Petitioner also contests the condition imposed by the Court of Appeals that
he secure "a certification/guaranty from the Mayor of the place of his
residence that he is a resident of the area and that he will remain to be a
resident therein until final judgment is rendered or in case he transfers
residence, it must be with prior notice to the court", claiming that the same
violates his liberty of abode and travel.

Notably, petitioner does not question the hold-departure order which

prevents him from leaving the Philippines unless expressly permitted by the
court which issued the order.21 In fact, the petition submits that "the hold-
departure order against petitioner is already sufficient guarantee that he will
not escape. Thus, to require him to inform the court every time he changed
his residence is already unnecessary."22

The right to change abode and travel within the Philippines, being invoked by
petitioner, are not absolute rights. Section 6, Article III of the 1987
Constitution states:

The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may
be provided by law.

The order of the Court of Appeals releasing petitioner on bail constitutes

such lawful order as contemplated by the above provision. 23 The condition
imposed by the Court of Appeals is simply consistent with the nature and
function of a bail bond, which is to ensure that petitioner will make himself
available at all times whenever the Court requires his presence. Besides, a
closer look at the questioned condition will show that petitioner is not
prevented from changing abode; he is merely required to inform the court in
case he does so.

WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner's bail

pending appeal is reduced from P5,500,000.00 to P200,000.00. In all other
respects, the resolutions of the Court of Appeals, dated October 6, 1999 and
November 25, 1999, respectively, are AFFIRMED. No pronouncement as to
costs.

RULE 114
Bail
Section 1. Bail defined. — Bail is the security given for the release of a
person in custody of the law, furnished by him or a bondsman, to guarantee
his appearance before any court as required under the conditions hereinafter
specified. Bail may be given in the form of corporate surety, property bond,
cash deposit, or recognizance. (1a)
Section 2. Conditions of the bail; requirements. — All kinds of bail are
subject to the following conditions:
(a) The undertaking shall be effective upon approval, and unless
cancelled, shall remain in force at all stages of the case until
promulgation of the judgment of the Regional Trial Court,
irrespective of whether the case was originally filed in or appealed to
it;
(b) The accused shall appear before the proper court whenever
required by the court of these Rules;
(c) The failure of the accused to appear at the trial without
justification and despite due notice shall be deemed a waiver of his
right to be present thereat. In such case, the trial may proceed
in absentia; and
(d) The bondsman shall surrender the accused to the court for
execution of the final judgment.
The original papers shall state the full name and address of the accused, the
amount of the undertaking and the conditions herein required. Photographs
(passport size) taken within the last six (6) months showing the face, left and
right profiles of the accused must be attached to the bail. (2a)
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 175
Section 3. No release or transfer except on court order or bail. — No person
under detention by legal process shall be released or transferred except
upon order of the court or when he is admitted to bail. (3a)
Section 4. Bail, a matter of right; exception. — All persons in custody shall
be admitted to bail as a matter of right, with sufficient sureties, or released on
recognize as prescribed by law or this Rule (a) before or after conviction by
the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in
Cities, or Municipal Circuit Trial Court, and (b) before conviction by the
Regional Trial Court of an offense not punishable by death, reclusion
perpetua, or life imprisonment. (4a)
Section 5. Bail, when discretionary. — Upon conviction by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary. The application for bail may
be filed and acted upon by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original record to the appellate
court. However, if the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable, the
application for bail can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed to
continue on provisional liberty during the pendency of the appeal under the
same bail subject to the consent of the bondsman.
If the penalty imposed by the trial court is imprisonment exceeding six (6)
years, the accused shall be denied bail, or his bail shall be cancelled upon a
showing by the prosecution, with notice to the accused, of the following or
other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or
has committed the crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal confinement, evaded
sentence, or violated the conditions of his bail without valid
justification;

(c) That he committed the offense while under probation, parole, or
conditional pardon;
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any party, review the
resolution of the Regional Trial Court after notice to the adverse party in
either case. (5a)
Section 6. Capital offense defined. — A capital offense is an offense which,
under the law existing at the time of its commission and of the application for
admission to bail, may be punished with death. (6a)
Section 7. Capital offense of an offense punishable by reclusion perpetua or
life imprisonment, not bailable. — No person charged with a capital offense,
or an offense punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is strong, regardless of the stage of
the criminal prosecution. (7a)
Section 8. Burden of proof in bail application. — At the hearing of an
application for bail filed by a 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 hearing 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 latter is dead, outside the
Philippines, or otherwise unable to testify. (8a)
Section 9. Amount of bail; guidelines. — The judge who issued the warrant
or granted the application shall fix a reasonable amount of bail considering
primarily, but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 176
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive from justice when arrested;
and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required. (9a)
Section 10. Corporate surety. — Any domestic or foreign corporation,
licensed as a surety in accordance with law and currently authorized to act
as such, may provide bail by a bond subscribed jointly by the accused and
an officer of the corporation duly authorized by its board of directors. (10a)
Section 11. Property bond, how posted. — A property bond is an
undertaking constituted as lien on the real property given as security for the
amount of the bail. Within ten (10) days after the approval of the bond, the
accused shall cause the annotation of the lien on the certificate of title on file
with the Register of Deeds if the land is registered, or if unregistered, in the
Registration Book on the space provided therefor, in the Registry of Deeds
for the province or city where the land lies, and on the corresponding tax
declaration in the office of the provincial, city and municipal assessor
concerned.

Within the same period, the accused shall submit to the court his compliance
and his failure to do so shall be sufficient cause for the cancellation of the
property bond and his re-arrest and detention. (11a)
Section 12. Qualifications of sureties in property bond. — The qualification
of sureties in a property bond shall be as follows:
(a) Each must be a resident owner of real estate within the
Philippines;
(b) Where there is only one surety, his real estate must be worth at
least the amount of the undertaking;
(c) If there are two or more sureties, each may justify in an amount
less than that expressed in the undertaking but the aggregate of the
justified sums must be equivalent to the whole amount of bail
demanded.
In all cases, every surety must be worth the amount specified in his own
undertaking over and above all just debts, obligations and properties exempt
from execution. (12a)
Section 13. Justification of sureties. — Every surety shall justify by affidavit
taken before the judge that he possesses the qualifications prescribed in the
preceding section. He shall describe the property given as security, stating
the nature of his title, its encumbrances, the number and amount of other
bails entered into by him and still undischarged, and his other liabilities. The
court may examine the sureties upon oath concerning their sufficiency in
such manner as it may deem proper. No bail shall be approved unless the
surety is qualified. (13a)
Section 14. Deposit of cash as bail. — The accused or any person acting in
his behalf may deposit in cash with the nearest collector or internal revenue
or provincial, city, or municipal treasurer the amount of bail fixed by the court,
or recommended by the prosecutor who investigated or filed the case. Upon
submission of a proper certificate of deposit and a written undertaking
showing compliance with the requirements of section 2 of this Rule, the
accused shall be discharged from custody. The money deposited shall be
considered as bail and applied to the payment of fine and costs while the
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 177
excess, if any, shall be returned to the accused or to whoever made the
deposit. (14a)
Section 15. Recognizance. — Whenever allowed by law or these Rules, the
court may release a person in custody to his own recognizance or that of a
responsible person. (15a)
Section 16. Bail,  when not required; reduced bail or recognizance. — No
bail shall be required when the law or these Rules so provide.
When a person has been in custody for a period equal to or more than the
possible maximum imprisonment prescribe for the offense charged, he shall
be released immediately, without prejudice to the continuation of the trial or
the proceedings on appeal. If the maximum penalty to which the accused
may be sentenced is destierro, he shall be released after thirty (30) days of
preventive imprisonment.
A person in custody for a period equal to or more than the minimum of the
principal penalty prescribed for the offense charged, without application of
the Indeterminate Sentence Law or any modifying circumstance, shall be
released on a reduced bail or on his own recognizance, at the discretion of
the court. (16a)
Section 17. Bail,  where filed. — (a) Bail in the amount fixed may be filed
with the court where the case is pending, or in the absence or unavailability
of the judge thereof, with any regional trial judge, metropolitan trial judge,
municipal trial judge, or municipal circuit trial judge in the province, city, or
municipality. If the accused is arrested in a province, city, or municipality
other than where the case is pending, bail may also be filed with any regional
trial court of said place, or if no judge thereof is available, with any
metropolitan trial judge, municipal trial judge, or municipal circuit trial judge
therein.
(b) Where the grant of bail is a matter of discretion, or the accused
seeks to be released on recognizance, the application may only be
filed in the court where the case is pending, whether on preliminary
investigation, trial, or on appeal.

(c) Any person in custody who is not yet charged in court may apply
for bail with any court in the province, city, or municipality where he
is held. (17a)
Section 18. Notice of application to prosecutor. — In the application for bail
under section 8 of this Rule, the court must give reasonable notice of the
hearing to the prosecutor or require him to submit his recommendation. (18a)
Section 19. Release on bail. — The accused must be discharged upon
approval of the bail by the judge with whom it was filed in accordance with
section 17 of this Rule.
Whenever bail is filed with a court other than where the case is pending, the
judge who accepted the bail shall forward it, together with the order of
release and other supporting papers, to the court where the case is pending,
which may, for good reason, require a different one to be filed. (19a)
Section 20. Increase or reduction of bail. — After the accused is admitted to
bail, the court may, upon good cause, either increase or reduce its amount.
When increased, the accused may be committed to custody if he does not
give bail in the increased amount within a reasonable period. An accused
held to answer a criminal charge, who is released without bail upon filing of
the complaint or information, may, at any subsequent stage of the
proceedings and whenever a strong showing of guilt appears to the court, be
required to give bail in the amount fixed, or in lieu thereof, committed to
custody. (20a)
Section 21. Forfeiture of bond. — When the presence of the accused is
required by the court or these Rules, his bondsmen shall be notified to
produce him before the court on a given date and time. If the accused fails to
appear in person as required, his bail shall be declared forfeited and the
bondsmen given thirty (30) days within which to produce their principal and
to show cause why no judgment should be rendered against them for the
amount of their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his non-
production; and
C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 178
(b) explain why the accused did not appear before the court when
first required to do so.
Failing in these two requisites, a judgment shall be rendered against the
bondsmen, jointly and severally, for the amount of the bail. The court shall
not reduce or otherwise mitigate the liability of the bondsmen, unless the
accused has been surrendered or is acquitted. (21a)
Section 22. Cancellation of bail. — Upon application of the bondsmen, with
due notice to the prosecutor, the bail may be cancelled upon surrender of the
accused or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal of the
accused, dismissal of the case, or execution of the judgment of conviction.
In all instances, the cancellation shall be without prejudice to any liability on
the bond. (22a)
Section 23. Arrest of accused out on bail. — For the purpose of
surrendering the accused, the bondsmen may arrest him or, upon written
authority endorsed on a certified copy of the undertaking, cause him to be
arrested by a police officer or any other person of suitable age and
discretion.
An accused released on bail may be re-arrested without the necessity of a
warrant if he attempts to depart from the Philippines without permission of
the court where the case is pending. (23a)
Section 24. No bail after final judgment; exception. — No bail shall be
allowed after the judgment of conviction has become final. If before such
finality, the accused has applies for probation, he may be allowed temporary
liberty under his bail. When no bail was filed or the accused is incapable of
filing one, the court may allow his release on recognizance to the custody of
a responsible member of the community. In no case shall bail be allowed
after the accused has commenced to serve sentence. (24a)
Section 25. Court supervision of detainees. — The court shall exercise
supervision over all persons in custody for the purpose of eliminating
 C O N S T I 2 S e c . 1 1 - 1 3 P a g e | 179

unnecessary detention. The executive judges of the Regional Trial Courts

shall conduct monthly personal inspections of provincial, city, and municipal
jails and their prisoners within their respective jurisdictions. They shall
ascertain the number of detainees, inquire on their proper accommodation
and health and examine the condition of the jail facilities. They shall order
the segregation of sexes and of minors from adults, ensure the observance
of the right of detainees to confer privately with counsel, and strive to
eliminate conditions inimical to the detainees.

In cities and municipalities to be specified by the Supreme Court, the

municipal trial judges or municipal circuit trial judges shall conduct monthly
personal inspections of the municipal jails in their respective municipalities
and submit a report to the executive judge of the Regional Trial Court having
jurisdiction therein.

A monthly report of such visitation shall be submitted by the executive judges

to the Court Administrator which shall state the total number of detainees,
the names of those held for more than thirty (30) days, the duration of
detention, the crime charged, the status of the case, the cause for detention,
and other pertinent information. (25a)

Section 26. Bail not a bar to objections on illegal arrest, lack of or irregular

preliminary investigation. — An application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided
that he raises them before entering his plea. The court shall resolve the
matter as early as practicable but not later than the start of the trial of the
case. (n)