[G.R. No. 122485.

  February 1, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY

Y AMPARADO, accused-appellant.

DECISION
PER CURIAM:

A violation of the dignity, purity and privacy of a child who is still innocent and unexposed
to the ways of worldly pleasures is a harrowing experience that destroys not only her future but
of the youth population as well, who in the teachings of our national hero, are considered the
hope of the fatherland.  Once again, the Court is confronted by another tragic desecration of
human dignity, committed no less upon a child, who at the salad age of a few days past 12 years,
has yet to knock on the portals of womanhood, and met her untimely death as a result of the
"intrinsically evil act" of non-consensual sex called rape. Burdened with the supreme penalty of
death, rape is an ignominious crime for which necessity is neither an excuse nor does there exist
any other rational justification other than lust. But those who lust ought not to lust.
The Court quotes with approval from the People's Brief, the facts narrating the horrible
experience and the tragic demise of a young and innocent child in the bloody hands of appellant,
as such facts are ably supported by evidence on record:[1] *

"Appellant Larry Mahinay started working as houseboy with Maria Isip on November
20, 1993. His task was to take care of Isip's house which was under construction
adjacent to her old residence situated inside a compound at No. 4165 Dian Street,
Gen. T. de Leon, Valenzuela , Metro Manila. But he stayed and slept in an apartment
also owned by Isip, located 10 meters away from the unfinished house (TSN,
September 6, 1995, pp. 5-10).

"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian Street.  She
used to pass by Isip's house on her way to school and play inside the compound yard,
catching maya birds together with other children. While they were playing, appellant
was always around washing his clothes. Inside the compound yard was a septic tank
(TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp. 17; 20-22).

"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking
spree. Around 10 o'clock in the morning, appellant, who was already drunk, left
Gregorio Rivera and asked permission from Isip to go out with his friends (TSN,
September 6, 1995, pp. 9-11).
"Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the
compound, saw Ma. Victoria on that same day three to four times catching birds
inside Isip's unfinished house around 4 o'clock in the afternoon. The unfinished house
was about 8 meters away from Rivera's store (TSN, September 18, 1995, pp.9-11).

"On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his in-
law's house between 6 to 7 o'clock p.m. to call his office regarding changes on the trip
of President Fidel V. Ramos. The house of his in-laws was near the house of Isip. On
his way to his in-law's house, Sgt. Suni met appellant along Dian Street. That same
evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria standing in front of the gate
of the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17).

"Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to

buy lugaw. Norgina Rivera informed appellant that there was none left of it. She
notice that appellant appeared to be uneasy and in deep thought. His hair was
disarrayed; he was drunk and was walking in a dazed manner. She asked why he
looked so worried but he did not answer. Then he left and walked back to the
compound (TSN, September 18, 1995, pp. 4-8; 12-14).

"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She
last saw her daughter wearing a pair of white shorts, brown belt, a yellow hair ribbon,
printed blue blouse, dirty white panty, white lady sando and blue rubber slippers
(TSN, August 23, 1995, pp. 22, 33).

"Isip testified that appellant failed to show up for supper that night. On the following
day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger jeepney
driven by Fernando Trinidad at thetalipapa. Appellant alighted at the top of the bridge
of the North Expressway and had thereafter disappeared (TSN, September 20, 1995,
pp. 4-9; September 27, 1995; pp. 14-17).

"That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria
inside the septic tank. Boy immediately reported what he saw to the victim's parents,
Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13).

"With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was
retrieved from the septic tank. She was wearing a printed blouse without underwear.
Her face bore bruises. Results of the autopsy revealed the following findings:

Cyanosis, lips and nailbeds,

Contusions, supra pubic area, 6.0 x 3.0 cm., thigh right,

Anterior aspect, middle third, 4.5 x 3.0 cm.

Contused-abrasions on the forehead, 5.0 x 5.0 cm, angle of the left eye, lateral aspect,
2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x 1.0 cm.
and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior
aspect, 4.0 x 2.0 cm.  scapular area, right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5
cm. lumbar area, left 7.0 x  8.0 cm. arm, left, posterior aspect, middle third, 11.00 x
4.0 cm. elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior
aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right
antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect, lower 3 rd  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 8  Street,
th

Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9).

"The policemen returned to the scene of the crime. At the second floor of the house
under construction, they retrieved from one of the rooms a pair of dirty white short
pants, a brown belt and a yellow hair ribbon which was identified by Elvira Chan to
belong to her daughter, Ma. Victoria.  They also found inside another room a pair of
blue slippers which Isip identified as that of Appellant.  Also found in the yard, three
armslength away from the septic tank were an underwear, a leather wallet, a pair of
dirty long pants and a pliers positively identified by Isip as appellant's
belongings.  These items were brought to the police station (TSN, August 14, 1995,
pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).

"A police report was subsequently prepared including a referral slip addressed to the
office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved the
victim's underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).

"After a series of follow-up operations, appellant was finally arrested in Barangay

Obario Matala, Ibaan, Batangas. He was brought to Valenzuela Police Station. On
July 7, 1995, with the assistance of Atty. Restituto Viernes, appellant executed an
extra-judicial confession wherein he narrated in detail how he raped and killed the
victim. Also, when appellant came face to face with the victim's mother and aunt, he
confided to them that he was not alone in raping and killing the victim. He pointed to
Zaldy and Boyet as his 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 26  day of June 1995 in Valenzuela, Metro Manila and within
th

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).

“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, 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 x x x than the
termination of a human life.”[7] For life, once taken is like virginity, which once defiled can never
be restored. In order therefore, that 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 evidence[8] and pursuant to settled  jurisprudence,[9] conviction may be had on
circumstantial evidence provided that the following requisites concur:
1.  there is more than one circumstance;
2.  the facts from which the inferences are derived are proven; and
3.  the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.
Simply put, for circumstantial evidence to be sufficient to support a conviction, all circumstances
must be consistent with each other, consistent with the hypothesis that the accused is guilty, and
at the same time inconsistent with the hypothesis that he is innocent and with every other rational
hypothesis except that of guilt.[10] Facts and circumstances consistent with guilt and inconsistent
with innocence, constitute evidence which, in weight and probative force, may surpass even
direct evidence in its effect upon the court.[11]
In the case at bench, the trial court gave credence to several circumstantial evidence, which
upon thorough review of the Court is more than enough to prove 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
sigsaging 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 G. Suni, categorically, testified that on

June 25, 1995 between 6:00 and 7:00 in the evening, on his way to his in-law’s 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 Diam St., Gen. T. de
Leon, Valenzuela, Metro Manila, pinpointed the accused Larry Mahinay as one of the
passengers who boarded his passenger jeepney on June 26, 1995 at 2:00 early
morning and alighted on top of the overpass of the North Expressway.

“FIFTH – Personal belongings of the victim was found in the unfinished big house of
Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a
clear indication that the victim was raped and killed in the said premises.

“There is no showing that the testimonies of the prosecution witnesses (sic) fabricated
or there was any reason for them to 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 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 na siya tapos ni-rape ko na
siya.”

“There is no clear proof of maltreatment and/or tortured in giving the

statement.  There were no medical certificate submitted by the accused to sustain his
claim that he was mauled by the police officers.

There being no evidence presented to show that said confession were obtained as a
result of violence, torture,  maltreatment, intimidation, threat or promise of reward or
leniency nor that the investigating officer could have been motivated to concoct the
facts narrated in said affidavit; the confession of the accused is held to be true, correct
and freely or voluntarily given. (People v. Tuazon 6 SCRA 249; People v. Tiongson 6
SCRA 431, People v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA 73.)

“SEVENTH – Accused Larry Mahinay testified in open Court that he was not able to
enter the apartment where he is sleeping because it was already closed and he
proceeded to the second floor of the unfinished house and slept. He said while
sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it
inside his room. That at the point of a knife, the two ordered him to have sex with the
dead body but he refused. That the two asked him to assist them in dumping the dead
body of the victim in the septic tank downstairs. (Tsn pp8-9 October 16, 1995). This is
unbelievable and unnatural. Accused Larry Mahinay is staying in the apartment and
not in the unfinished house. That he slept in the said unfinished house only that night
of June 25, 1995 because the apartment where he was staying was already closed. The
Court is at a loss how would Zaldy and Boyet knew he (Larry Mahinay) was in the
second floor of the unfinished house.

“Furthermore, if the child is already dead when brought by Zaldy and Boyet in the
room at the second floor of the unfinished house where accused Larry Mahinay was
sleeping, why  will Boyet and Zaldy still brought the cadaver upstairs only to be
disposed/dumped later in the septic tank located in the ground floor. Boyet and Zaldy
can easily disposed and dumped the body in the septic tank by themselves.

“It is likewise strange that the dead body of the child was taken to the room where
accused Larry Mahinay was sleeping only to force the latter to have sex with the dead
body of the child.

“We have no test to the truth of human testimony except it’s conformity to aver
knowledge observation and experience. Whatever  is repugnant to these belongs to the
miraculous. (People vs. Santos L-385 Nov. 16, 1979)”

“EIGHT – If the accused did not commit the crime and was only forced to
disposed/dumpted the body of the victim in the septic tank, he could have apprise Col.
Maganto, a high ranking police officer or the lady reporter who interviewed him. His
failure and omission to reveal the same is unnatural. An innocent person will at once
naturally and emphatically repel an accusation of crime as a matter of preservation
and self-defense and as a precaution against prejudicing himself. A 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 the Revised Penal Code, as amended by Section 11,
R.A. 7659, which provides:

“When and how rape is committed – Rape is committed by having carnal knowledge
of a woman under any of the following circumstances.

1.) By using force or intimidation;

2.) When the woman is deprived of reason or otherwise unconscious; and
3.) When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or on

the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:

1.) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or
the common-law spouse of the parent of the victim.
2.) When the victim is under the custody of the police or military authorities.
3.) When the rape is committed in full view of the husband, parent, any of the children or other
relatives within the third degree of  consanguinity.
4.) When the victim is a religious or a child below seven (7) years old.
5.) When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease.
6.) When committed by any member of the Armed Forces of the Philippines or Philippine
National Police or any law enforcement agency.
 7.) When by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation.[14]
At the time of the commission of this heinous act, rape was still considered a crime against
chastity,[15] although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape has since been re-
classified as a crime against persons under Articles 266-A and 266-B, and thus, may be
prosecuted even without a complaint filed by the offended party.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman
by force and without consent.[16] (Under the new law, rape may be committed even by a woman
and the victim may even be a man.)[17] If the woman is under 12 years of age, proof of force and
consent becomes immaterial[18] not only because force is not an element of statutory rape, [19] but
the absence of a free consent is presumed when the woman is below such age. Conviction will
therefore lie, provided sexual intercourse is be proven.  But if the woman is 12 years of age or
over at the time she was violated, as in this case, not only the first element of sexual intercourse
must be proven but also the other element that the 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.
Based on the evidence on record, sexual intercourse with the victim was adequately
proven.  This is shown from the testimony of the medical doctor who conducted post mortem
examination on the child’s body:
Q: And after that what other parts of the victim did you examine?
A: Then I examined the genitalia of the victim.
Q: And what did you find out after you examined the genitalia of the victim?
A: The hymen was tall-thick with complete laceration at 4:00 o’clock and 8:00 o’clock position and
that the edges were congested.
Q: Now, what might have caused the laceration?
A: Under normal circumstances this might have (sic) caused by a penetration of an organ.
Q: So, the laceration was caused by the penetration of a male organ?
A: Adult male organ, sir.
Q: You are very sure of that, Mr. Witness?
A: I am very sure of that.[20]
Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted
that he had sexual congress with the unconscious child.
“15. T: Ano ang nangyari ng mga sandali o oras na iyon?
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na ginagawa, tapos
dumating yung batang babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay tapos
tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos ni rape
ko na siya.
“16. T: Ano ang suot nung batang babae na sinasabi mo?
S: Itong short na ito, (pointing to a dirty white short placed atop this 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 Diam, Gen. T. de Leon, Valenzuela, M.M.
“22. T: Alam mo na ba ang pangalan ng batang babae na ni rape mo?
S: Hindi ko po alam.
“23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong ni rape at pinatay
ay si MA. VICTORIA CHAN? Matatandaan mo ba ito?
S: Oho.
“24. T: Nung ma-rape mo, nakaraos ka ba?
 S: Naka-isa po.
“25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng ‘NAKARAOS’, maaari bang
ipaliwanag mo ito?
S: Nilabasan po ako ng tamod.
“26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung iyong ari?
S: Nakapasok po doon sa ari nung babae.
“27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong ginawa?
S: Natulak ko siya sa terrace.
“28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace?
S: Inilagay ko po sa poso-negra.
“29. T: Saan makikita yung poso-negra na sinasabi mo?
S: Doon din sa malaking bahay ni ATE MARIA.
“30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-negra?
S: Doon ko lang po inilagay.
“31. T: Bakit nga doon mo inilagay siya?
 S: Natatakot po ako.
“32. T: Kanino ka natatakot?
S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis.
“33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra?
S: Hindi ko po alam dahil nung pagbagsak niya inilagay  ko na siya sa poso-negra.
“34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?
S: Nag-iisa lang po ako.
“35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay pa ba siya o
patay na?
S: Buhay pa po.
“36. T: Papaano mo siya pinatay?
S: Tinulak ko nga po siya sa terrace.”[21]
In proving sexual intercourse, it is not full or deep penetration of the 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 extrajudicial confession, which he,
however, claims was executed in violation of his constitutional right to counsel. But his
contention is belied by the records as well as the testimony of the lawyer who assisted, warned
and explained to him his constitutionally guaranteed pre-interrogatory and custodial rights. As
testified to by the assisting lawyer:
“Q – Will you please inform the Court what was that call about?
“A – We went to the station, police investigation together with Atty. Froilan Zapanta and we were told
by Police Officer Alabastro that one Larry Mahinay would like to confess of the crime of, I think,
rape with homicide.
“Q – And upon reaching the investigation room of Valenzuela PNP who were the other person
present?
“A – Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside the investigation
room and the parents of the child who was allegedly raped.
“Q- And when you reached the investigation room do you notice whether the accused already there?
“A – The accused was already there.
“Q – Was he alone?
“A – he was alone, sir.
“Q – So, when you were already infront of SPO1 Arnold Alabastro and the other PNP Officers, what
did they tell you, if any?
“A – They told us together with Atty. Zapanta that this Larry Mahinay would like to confess of the
crime charged, sir.
“Q – By the way, who was that Atty. Zapanta?
“A – Our immediate Superior of the Public 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?
“A – Yes, sir, and it was also explained to him one by one by Police Officer Alabastro.
“Q – I show to you this constitutional right which you said were reduced into writing, will you be able
to recognize the same?
“A – Yes, sir.
“Q – Will you please go over this and tell the Court whether that is the same document you
mentioned?
“A – Yes, sir, these were the said rights reduced into writing.
ATTY. PRINCIPE:
May we request, Your Honor, that this document be marked as our Exhibit A proper.
“Q – Do you recall after reducing into writing this constitutional right of the accused whether you
asked him to sign to acknowledge or to conform?
“A – I was the one who asked him, sir. It was Police Officer Alabastro.
“Q – But you were present?
“A – I was then present when he signed.
“Q – There is a signature in this constitutional right after the enumeration, before and after there are
two (2) signatures, will you please recognize the two (2) signatures?
“A – These were the same signatures signed in my presence, sir.
“Q – The signature of whom?
“A – The signature of Larry Mahinay, sir.
“ATTY. PRINCIPE:
May we request, Your Honor, that the two (2) signatures identified by my compañero be encircled and
marked as Exhibit A-1 and A-2.
“Q – After you said that you apprised the accused of his constitutional right explaining to him in
Filipino, in local dialect, what was the respond of the accused?
“A- Larry Mahinay said that we will proceed with his statement.
“Q – What was the reply?
“A – He said “Opo”.
“Q – Did you ask him of his educational attainment?
“A – It was the Police Officer who asked him.
“Q – In your presence?
“A – In my presence, sir.
“Q – And when he said or when he replied “Opo” so the question started?
“A – Yes, sir.
“Q – I noticed in this Exhibit A that there is also a waiver of rights, were you present also when he
signed this waiver?
“A – Yes, sir, I was also present.
“Q – Did you explain to him the meaning of this waiver?
“A – I had also explained to him, sir.
“Q – In Filipino?
“A – In Tagalog, sir.
“Q – And there is also a signature after the waiver in Filipino over the typewritten name Larry
Mahinay, “Nagsasalaysay”, whose signature is that?
“A – This is also signed in my presence.
“Q – Why are you sure that this is his signature?
“A – He signed in my presence, sir.
“Q – And below immediately are the two (2) signatures. The first one is when Larry Mahinay
subscribed and sworn to, there is a signature here, do you recognize this signature?
“A – This is my signature, sir.
 “Q – And immediately after your first signature is a Certification that you have personally examined
the accused Larry Mahinay and testified that he voluntary executed the Extra Judicial Confession,
do you recognize the signature?
“A – This is also my signature, sir.”[23] (emphasis supplied).
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 of the
truth of human testimony, except its conformity to our knowledge, observation and
experience.  Whatever is repugnant to these belongs to the miraculous, and is outside
of judicial cognizance.”

Ultimately, all the foregoing boils down to the issue of credibility of witnesses.  Settled is
the rule that the findings of facts and assessment of credibility of witnesses is a matter best left to
the trial court because of its unique position of having observed that elusive and incommunicable
evidence of the witnesses’ department on the stand while testifying, which opportunity is denied
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 63 of the RPC.  However, if any of those
circumstances proven but not alleged cannot be considered as an aggravating circumstance under
Articles 14 and 15, the same cannot affect the imposition of the penalty because Articles 63 of
the RPC in mentioning aggravating circumstances refers to those defined in Articles 14 and
15.  Under R.A. No. 8353, if any of the 10 circumstances is alleged in the information/complaint,
it may be treated as a qualifying circumstance.  But if it is not so alleged, it may be considered as
an aggravating circumstance, in which case the only penalty is death – subject to the usual proof
of such circumstance in either case.
 Death being a single indivisible penalty and the only penalty prescribed by law for the crime
of “rape with homicide”, the 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 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 Code [38] after proof
that the offended party is entitled to moral, temperate and compensatory damages. [39] Under the
circumstances of this case, appellant is liable to the victim’s heirs for the amount of P75,000.00
as civil indemnity andP50,000.00 as moral damages.
Lastly, considering the heavy penalty of death and in order to ensure that the evidence
against and accused were obtained through lawful means, the Court, as guardian of the rights of
the people lays down the procedure, guidelines and duties which the arresting, detaining,
inviting, or investigating officer or his companions must do and observe at the time of making an
arrest and again at and during the time of the custodial interrogation [40] in accordance with the
Constitution, jurisprudence and Republic Act No. 7438:[41] It is high-time to educate our law-
enforcement agencies who neglect either by ignorance or indifference the so-called Miranda
rights which had become insufficient and which the Court must update in the light of new legal
developments:
1.  The person arrested, detained, invited or under custodial investigation must be informed in a
language known to and understood by him of the reason for the arrest and he must be shown
the warrant of arrest, if any; Every other warnings, information or communication must be in
a language known to and understood by said person;
2.  He must be warned that he has a right to remain silent and that any statement he makes may
be used as evidence against him;
3.  He must be informed that he has the right to be assisted at all times and have the presence of
an independent and competent lawyer, preferably of his own choice;
4.  He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one
will be provided for him; and that a lawyer may also be engaged by any person in his behalf,
or may be appointed by the court upon petition of the person arrested or one acting in his
behalf;
5.  That whether or not the person arrested has a lawyer, he must be informed that no custodial
investigation in any form shall be conducted except in the presence of his counsel or after a
valid waiver has been made;
6.  The person arrested must be informed that, at any time, he has the right to communicate or
confer by the most expedient means – telephone, radio, letter or messenger – with his lawyer
(either retained or appointed), any member of his immediate family, or any medical doctor,
priest or minister chosen by him or by any one from his immediate family or by his counsel,
or be visited by/confer with duly accredited national or international non-government
organization.  It shall be the responsibility of the officer to ensure that this is accomplished;
7.  He must be informed that he has the right to waive any of said rights provided it is made
voluntarily, knowingly and intelligently and ensure that he understood the same;
8.  In addition, if the person arrested waives his right to a lawyer, he must be informed that it
must be done in writing AND in the presence of counsel, otherwise, he must be warned that
the waiver is void even if he insist on his waiver and chooses to speak;
9.  That the person arrested must be informed that he may indicate in any manner at any time or
stage of the process that he does not wish to be questioned with warning that once he makes
such indication, the police may not interrogate him if the same had not yet commenced, or
the interrogation must ceased if it has already begun;
10.            The person arrested must be informed that his initial waiver of his right to remain
silent, the right to counsel or any of his rights does not bar him from invoking it at any time
during the process, regardless of whether he may have answered some questions or
volunteered some statements;
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.
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.
PEOPLE OF THE PHILIPPINES, G.R. No. 186228
                                   Plaintiff-Appellee,  
   
  Present:
   
  CARPIO, J.,     
     Chairperson,           
-versus- BRION,
  DEL CASTILLO,
  ABAD, and
  PEREZ, JJ.
   
   
ANTONIO LAUGA Y Promulgated:
PINA ALIASTERIO,                             
                                 Accused-Appellant. March 15, 2010
 
   

x-----------------------------------------------------------------------------------------x
 
 
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
 
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, [29]  and 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.[32]  She 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,[36] he 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.[38]  They 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 decision[41] 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 P50,000.00 as moral damages, and P50,000.00 as civil indemnity with
exemplary damages of P25,000.00.[43]
 
On 30 September 2008, the decision of the trial court was AFFIRMED with
MODIFICATIONS[44]  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
[46]
from P50,000.00 to P75,000.00.  
 
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. Malngan[55] 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.
 
[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) a BarangayTanod; 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 byMoises 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
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.
 
Aggravating/Qualifying Circumstances
 
The presence of the qualifying circumstances of minority and relationship
with the offender in the instant case has likewise been adequately established. Both
qualifying circumstances were specifically alleged in the 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 P50,000.00 to P75,000.00, 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 P75,000.00 as civil
indemnity ex delicto[84] and P75,000.00 as moral damages.[85]  However, the award
of exemplary damages should have been increased from P25,000.00to P30,000.00.
[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 withreclusion 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 isGUILTY beyond reasonable doubt of qualified rape, and is
hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for
parole and to pay AAAP75,000.00 as civil indemnity, P75,000.00 as moral
damages, and P30,000.00 as exemplary damages.
  
SO ORDERED.

[G.R. No. 125333.  March 20, 2002]

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

FELIXMINIA y CAMACHO, accused-appellant.

DECISION
PER CURIAM:

This is an automatic review of the decision of the Regional Trial Court (RTC),
Branch 45,[1] Urdaneta, Pangasinan in Criminal Case No. U-8668 imposing on
accused-appellant Rolando Felixminia the penalty of death.
Accused-appellant was charged with the crime of rape with homicide in an
Information which reads thusly:

That on or about the 19th day of September, 1995, in the afternoon, at Brgy. San
Vicente, Municipality of Urdaneta, Province of Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there,
wilfully, unlawfully and feloniously, by means of force, have carnal knowledge with
(sic) Maria Lourdes Galinato, alias “Tisay”, a six (6) year old girl, against her will,
and to conceal his criminal act, accused kill (sic) and bury (sic) said Maria Lourdes
Galinato near the Macalong River in aforesaid barangay, to the damage and prejudice
of her heirs.

Contrary to Article 335, No. 3, in relation to Article 249, Revised Penal Code. [2]

On November 15, 1995, accused-appellant was arraigned and he pleaded “not

guilty.”[3] Thereafter, trial ensued.
After trial, the court a quo rendered a decision finding accused-appellant guilty
beyond reasonable doubt of the crime charged. The judgment reads as follows:

WHEREFORE, the Court finds the accused, ROLANDO FELIXMINIA y

CAMACHO, GUILTY beyond reasonable doubt of the crime of RAPE defined and
penalized under Republic Act No. 7659, the offense having been committed with the
attendant circumstances of “when by reason or on the occasion of the rape, a homicide
is committed” and “when the victim is a religious or a child below seven (7) years
old,” hereby sentences him to the supreme penalty of DEATH, to pay the heirs of the
victim Ma. Lourdes Galinato the amount of P50,000.00 as indemnity; P30,699.00 as
actual damages and P500,000.00 as moral damages.

And to pay the costs.

Penultimately, it is said: “Dura lex, sed lex” translated as “The law is harsh, but that is
the law!”

SO ORDERED.[4]

Accused-appellant now attributes the following errors to the trial court, viz:

I

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED PURELY ON

THE BASIS OF CIRCUMSTANTIAL EVIDENCE THAT DO NOT HOWEVER
MEET THE REQUISITES PROVIDED FOR BY LAW FOR CONVICTION BY
CIRCUMSTANTIAL EVIDENCE.
II

THE LOWER COURT ERRED IN NOT APPLYING THE DOCTRINE OF

THE “FRUIT OF THE POISONOUS TREE" AND IN NOT REJECTING
EVIDENCES (SIC) AND CIRCUMSTANCES OBTAINED AND DERIVED IN A
MANNER THAT SHOULD HAVE MADE THEM CONSTITUTIONALLY
INADMISSIBLE.
III

THE LOWER COURT ERRED IN TOTALLY DISREGARDING THE

UNREBUTTED EVIDENCE SUBMITTED BY THE ACCUSED TO EXPLAIN HIS
ACTIONS AND SUPPORT HIS DEFENSE.
IV

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED AND

SENTENCING HIM TO THE EXTREME PENALTY OF DEATH. [5]

The records disclose that on September 19, 1995, at about seven o’clock in the
morning, accused-appellant was drinking gin with his cousin, Ronnie Garcia, in a
canteen at Urdaneta, Pangasinan.[6]Thereafter, they proceeded to Bayaoas, also in
Urdaneta, Pangasinan, where they continued drinking. [7]
Around ten o’clock in the morning of the same day, prosecution witness Rosita
Mangunay saw accused-appellant and Ronnie Garcia walking along Ambrosio Street
in the poblacion. When they passed her, they greeted her and she noticed that they
both smelled of liquor.[8]
In the early afternoon of the same day, the already inebriated accused-appellant went
to look for the six-year old Maria Lourdes Galinato, also known as “Tisay” and found
her playing inside a jeepney. He took her.[9]
At around two forty-five in the afternoon of the same day, witness Mangunay again
saw the accused-appellant walking along Ambrosio Street, Urdaneta, at the corner or
the crossroad of a small sari-sari store owned by a certain Soling. She saw accused-
appellant carrying a child who was crying and struggling. She recognized the child as
“Tisay.” She declared that she clearly saw the accused-appellant because they were
walking towards each other coming from opposite directions. Accused-appellant
proceeded to the west.[10]
Between three to four o’clock in the afternoon, prosecution witness Natividad
Bernardo, a resident of San Vicente, Urdaneta, Pangasinan, saw accused-appellant
pass by their house. He was parrying a child who looked about five to six years old.
They were heading towards the Macalong River. [11]
At approximately the same time, prosecution witness Leah Magno, also resident of the
same barangay, saw accused-appellant carrying a child. They were heading towards
the wooded area in the Macalong River. [12]
At around five o’clock in the afternoon to six-thirty in the evening of the same day,
witness Magno saw accused-appellant again, this time he was walking alone to town
coming from the direction of the Macalong River. [13]
Meanwhile, the parents of Maria Lourdes were frantically searching for their child.
When their search proved futile, they reported her missing to the barangay captain and
to the police.[14]
Upon receipt of reports that accused-appellant was seen with the missing child during
the day, the police together with the barangay captains of Camantiles and Bayaoas of
Urdaneta, Pangasinan and some relatives of the Galinatos went to the residence of
accused-appellant at Sitio Lico, Yatyat, Manaoag, Pangasinan. [15] As they approached
the said house, they saw the accused-appellant jump out of the window carrying a
black bag.[16] Accused-appellant fled. They gave chase. After searching three
barangays for more than twenty exhausting hours, the pursuers finally caught up with
him at an open field in Magalong, Laoac, Pangasinan at around three o’clock in the
afternoon of September 20, 1995. [17] He was brought to the Urdaneta police station
where he admitted that he raped, killed and buried Maria Lourdes near the Macalong
River in San Vicente, Urdaneta, Pangasinan.[18]
Thereafter, the police brought him to the Macalong River. There, he trembled and
hysterically cried as he pointed to the place where he raped, killed and buried Maria
Lourdes.[19] True enough, they found the lifeless body of the little child lying half-
buried in the creek with her head hanging on her shoulder. [20]
An autopsy conducted on the body of Maria Lourdes revealed the following findings:

SIGNIFICANT EXTERNAL FINDINGS:

- Washerwoman’s hands and feet.

- Bleeding from nares.

- Laceration of Hymen.

3-5 o’clock

6-8 o’clock

- Introitus admits two (2) fingers.

- Ecchymosis on center of throat and right hyoid area, below left eye and
frontal region of face and bridge of nose and right eye.

- Obvious non-alignment of neck.

SIGNIFICANT INTERNAL FINDINGS:

- 50 cc to 100 cc blood in cranium mostly from basal area.

CAUSE OF DEATH:

Brain stem injury.

Hymenal laceration.[21]

In his brief, accused-appellant contends that the lower court erred in not applying the
doctrine of the “fruit of the poisonous tree” and in not rejecting as inadmissible the
evidence derived therefrom.
Section 12 of Article III of the 1997 Constitution, which embodies the mandatory
protection afforded a person under investigation for the commission of a crime and
the corresponding duty of the State to enforce such mandate, 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 preferable of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation or any other means which vitiate
the free will shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as
well as compensation to and rehabilitation of victims of torture or similar practices,
and their families.

The ruling of the Court in People v. Bravo[22] is instructive. Thus:

The mantle of protection under this constitutional provision covers the period from the
time a person is taken into custody for investigation of his possible participation in the
commission of a crime or from the time he is singled out as a suspect in the
commission of a crime although not yet in custody (People v. Andan, 269 SCRA
95; Bernas, The Constitution of the Republic of the Philippines: A Commentary, 1996
ed., p. 412, citing People v. Mara, 236 SCRA 565). The exclusionary rule sprang
from a recognition that police interrogatory procedures lay fertile grounds for
coercion, physical and psychological, of the suspect to admit responsibility for the
crime under investigation. It was not intended as a deterrent to the accused from
confessing guilt, if he voluntarily and intelligently so desires but to protect the
accused from admitting what he is coerced to admit although untrue (People v.
Deniega, 251 SCRA 626). Law enforcement agencies are required to effectively
communicate the rights of a person under investigation and to insure that it is fully
understood.  Any measure short of this requirement is considered a denial of such
right (People v. Santos, 283 SCRA 443; People v. Januario, 267 SCRA 609). Courts
are not allowed to distinguish between preliminary questioning and custodial
investigation proper when applying the exclusionary rule. Any information or
admission given by a person while in custody which may appear harmless or
innocuous at the time without the competent assistance of an independent counsel
should be struck down as inadmissible. (Gamboa v. Cruz, 162 SCRA 642; People v.
Isla, 278 SCRA 47; People v. Binamira, 277 SCRA 232). It has been held, however,
that an admission made to news reporters or to a confidant of the accused is not
covered by the exclusionary rule (People v. Andan, supra.)
In the instant case, the admission made by accused-appellant was not in the form of a
written extra-judicial confession; the admission was made verbally to the PO3
Roberto Reyes, a member of the Philippine National Police stationed in Urdaneta,
Pangasinan. PO3 Reyes testified that after accused-appellant was taken into custody,
he “interviewed and interrogated” the latter and in the course of their “conversation,”
accused-appellant said that he “raped, killed and buried” Maria Lourdes. [23] There is
no doubt, therefore, that accused-appellant was taken into custody for investigation of
his possible participation in the commission of the crime. Hence, the constitutional
mantle of protection clearly covers the instant situation. While said officer testified
that he apprised the accused-appellant of his right to remain silent and to have a
counsel of his own choice, accused-appellant’s alleged admission was made without
the presence of a counsel. It does not appear either that accused-appellant manifested
that he could not afford the services of a counsel nor waived his right to one in writing
and in the presence of a counsel as no such written and counseled waiver of these
rights was presented in evidence. Therefore, the Court finds the extra-judicial
confession of accused-appellant invalid since he was deprived of his right to counsel
during said custodial investigation. Consequently, the exclusionary rule applies and
the extra-judicial confession should be struck down as inadmissible.
Consonant with the constitutional precept that a person under custodial investigation
should have a right to counsel “in every phase of the investigation,” [24] the Court has
held in a number of cases that a person under custodial investigation should enjoy the
right to counsel from its inception to its termination. Truly, the accused’s counsel of
choice must be present and must be able to advise and assist his client from the time
he answers the first question until the time he signs the extra-judicial confession.
[25]
 In People v. Morial,[26] the Court elucidated on the need for requiring a counsel’s
continuing presence throughout the custodial investigation in order to guarantee the
accused’s rights.
In seeking the reversal of the challenged decision, accused-appellant contends that his
extra-judicial confession which was extorted from him by the police officers in
violation of his constitutional rights cannot be made the basis for his conviction.
Notwithstanding the inadmissibility of the extra-judicial confession executed by the
accused-appellant, he was properly convicted by the trial court because (a)
compromising circumstances were duly proven which were consistent with each other
and which lead with moral certainty to the conclusion that he was guilty of the crime
charged and (b) the totality of such circumstances eliminated beyond reasonable doubt
the possibility of his innocence. In People v. Mahinay,[27] this Court held that
conviction may be had on circumstantial evidence provided that the following
requisites concur, to wit: (1) there is more than one circumstance; (2) the facts from
which the inferences are derived are proven; and (3) the combination of all
circumstances is such as to produce a conviction beyond reasonable doubt. Stated
differently, the circumstantial evidence which warrant conviction in this case (a)
constitute an unbroken chain of events which reasonably led to the conclusion
pointing to the accused-appellant, to the exclusion of all others, as the person guilty of
the crime;[28] (b) were consistent with each other and with the hypothesis that the
accused-appellant is guilty; and (c) were at the same time, inconsistent with the
hypothesis that he is innocent and with every other rational hypothesis except that of
guilt.[29]
In the case at bar, the trial court gave credence to several circumstances, which upon
thorough review of this Court are more than sufficient to prove accused-appellant’s
guilt beyond reasonable doubt. These circumstances are as follows:
1.  Rosita Mangunay saw accused-appellant at about ten o’clock in the morning of September
19, 1995, walking along Ambrosio Street, Poblacion, Urdaneta Pangasinan; [30]
2.  Rosita Mangunay saw accused-appellant at about two forty-five in the afternoon of
September 19, 1995, walking and carrying the victim who was then struggling and crying; [31]
3.  Natividad Bernardo saw accused-appellant between three to four o’clock in the afternoon of
September 19, 1995 carrying the victim going to the Macalong River where the body of the
victim was later found;[32]
4.  Leah Magno, while at her yard at San Vicente East, Urdaneta, Pangasinan, at about three to
four o’clock in the afternoon of September 19, 1995, saw the accused-appellant carrying a
child and headed towards the Macalong River;[33]
5.  Leah Magno, at about six-thirty in the evening of September 19, 1995, saw accused-
appellant walking alone coming from the direction of the Macalong River; [34]
6.  Accused-appellant told Johnny Galinato that he played with the victim and left her at a
jeepney when Johnny Galinato talked to accused-appellant in the evening of September 19,
l995;[35]
7.  Accused-appellant did not go with Johnny Galinato when the latter invited him to go to the
police headquarters in order to tell the police authorities that he did not know the
whereabouts of the victim.[36] His failure to reveal the same is unnatural for an innocent
person will at once naturally and emphatically repel an accusation of crime as a
matter of self-preservation and self-defense and as a precaution against prejudicing
himself. A person’s silence therefore, particularly when it is persistent, will justify
that he is not innocent;[37]
8.  Accused-appellant jumped out of the window of his house and ran away when police officers
Reyes and Peralta together with Johnny Galinato went back to said house. [38] Such act of
flight by accused-appellant strongly indicate his consciousness of guilt;
9.  Accused-appellant ran away when he saw Johnny Galinato at about six-thirty in the morning
of September 20, 1995, in the field at the back of the house accused-appellant; [39]
10.            Accused-appellant told Johnny Galinato that the victim was with his aunt at Sta.
Maria when he was apprehended at Barangay Magalong, Laoac, Pangasinan: [40]
11.            Accused-appellant testified that in the morning of September 19, 1995, he fetched the
victim who was playing inside a jeepney allegedly upon the request of Ronnie Garcia. [41]
 12.            Accused-appellant, in the afternoon of September 19, 1995, went to San Vicente,
Urdaneta, Pangasinan carrying the crying and struggling victim and in which place the body
of the victim was later found;[42]
13.            Accused-appellant testified that he was with the victim when she died, allegedly
because she was killed by Ronnie Garcia;[43] and
14.            Accused-appellant did not tell the police that it was Ronnie Garcia who raped and
killed the victim when he saw Ronnie Garcia at the police station. [44]

It is settled in our criminal jurisprudence that “(c)onspiracy and/or direct

participation in a crime may be proven by circumstantial evidence.” [45] An accused can
be convicted if the compromising circumstances duly proven are consistent with each
other and lead with moral certainty to only one conclusion; and if the totality of such
circumstances eliminated beyond reasonable doubt the possibility of innocence.
[46]
 Indeed, the circumstantial evidence herein warrant conviction of the accused-
appellant as they constitute an unbroken chain of events which reasonably lead to the
conclusion that the accused-appellant, to the exclusion of all others, is the person
guilty of the crime.[47] The circumstances are consistent with each other, consistent
with the hypothesis that the accused-appellant 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.[48] Moreover, Section 4, Rule 133 of the Rules provides
that an accused can still be convicted even if no eyewitness is available, provided that
enough circumstantial evidence has been established by the prosecution to prove
beyond reasonable doubt that the accused committed the crime. [49]Resort to
circumstantial evidence is essential when to insist on direct testimony would result in
setting felons free and deny proper protection to the community. Circumstantial
evidence is not a “weaker form of evidence vis-à-vis direct evidence,”[50] and cases
have recognized that circumstantial evidence in its weight and probative force, may
surpass direct evidence in its effect upon the Court. [51]
It cannot be denied that there is no evidence as to the manner by which the rape
was committed or to the acts done by the perpetrator which ultimately led to or caused
the death of the victim. It bears stressing that in crimes of rape with homicide, it is
seldom, if not ever, that there is an eyewitness to the act itself. Consequently, the
courts must rely on the aforementioned circumstantial evidence, which lead to the
obvious conclusion that accused is the perpetrator of the crime, more so when there is
corroborative evidence pointing to the guilt of the accused. Here, the testimonies of
the prosecution witnesses in court and the findings made in the autopsy report of Dr.
Ramon Gonzales, Jr.,[52] autopsy report of the Philippine National Police, [53] joint
affidavit of police officers Reyes and Rubianes, [54] and affidavit of witness Mangunay,
[55]
 show beyond reasonable doubt that the accused-appellant is guilty of the crime
charged.
 Moreover, it is unbelievable that accused-appellant just brought the victim to
Ronnie Garcia, and that it was only the latter who raped and killed her. “Evidence to
be believed must not only proceed from the mouth of a credible witness, but must be
credible in itself - such as the common experience and observation of mankind can
approve as probable under the circumstances. We have no test of the truth of human
testimony, except its conformity to our knowledge, observation and experience.
Whatever is repugnant to these belongs to the miraculous, and is outside of judicial
cognizance.”[56] Surely, such testimony is too uncertain and too easily fabricated for
the purpose of deceiving, to be relied upon by this Court.
Accordingly, since it was clearly established that Maria Lourdes was only six
years old when she was raped and killed by the accused-appellant, the proper
imposable penalty is death [57] pursuant to Section 335, No. 3 of the Revised Penal
Code, as amended by Republic Act No. 7659, in relation to Article 249 of the Revised
Penal Code.
In line with recent judicial prescription, the indemnification for the victim shall be
in the increased amount of P125,000.00 if the crime of rape with homicide is
committed or effectively qualified by any of the circumstances under which the death
penalty is authorized by the applicable amendatory laws. Accordingly, the amount of
P50,000.00 awarded by the trial court is increased to P 125,000.00. Moral damages
may additionally be awarded in the amount of P50,000.00 without the need for
pleading or proof of the basis thereof as has heretofore been the practice. Accordingly,
the amount of P500,000.00 awarded by the trial court is reduced to P50,000.00.
WHEREFORE, the decision of the Regional Trial Court, Branch 45, Urdaneta,
Pangasinan in Criminal Case No. U-8668, finding accused-appellant Rolando
Felixminia y Camacho guilty beyond reasonable doubt of the crime of rape with
homicide and imposing upon him the penalty of death, is hereby AFFIRMED with the
modification that the award of civil indemnity is increased from P50,000.00 to
P125,000.00 and the award of moral damages is reduced from P500,000.00 to
P50,000.00.
In accordance with Article 83 of the Revised Penal Code, as amended by Section
25 of Republic Act No. 7659, upon finality of this decision, let the records of this case
be forthwith forwarded to the Office of the President for possible exercise of
executive clemency or pardoning power.
SO ORDERED.

[G.R No. 134056.  July 6, 2000]

 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERT
FIGUEROA and BEATRICE VALERIO, accused.
ROBERT FIGUEROA, accused-appellant.

DECISION
DAVIDE, JR., C.J.:

Accused-appellant ROBERT FIGUEROA (hereafter OBET)

appeals from the 18 May 1998 Decision  of the Regional Trial Court of
[1]

Parañaque City, Branch 259, in Criminal Case No. 97-306, convicting

him of violation of Section 14-A , Article III of R.A. No. 6425, otherwise
[2]

known as the Dangerous Drugs Act of 1972, as amended by RA. No.

7659. His co-accused Beatrice Valerio (hereafter Betty) was acquitted.
OBET and Betty were indicted under an information, dated 2 April
1997, whose accusatory portion reads as follows:

That on 16 February 1997 and for sometime prior thereto in Parañaque City
and within the jurisdiction of this Honorable Court, the above-named accused
without authority of law, conspiring, confederating and helping one another,
did then and there, wilfully, unlawfully and feloniously manufacture, produce,
prepare or process methamphetamine hydrochloride or shabu, a regulated
drug amounting to a 2.4 liters, directly by means of chemical synthesis.

CONTRARY TO LAW. [3]

When arraigned OBET and Betty each entered a plea of not guilty.
[4]
 Trial on the merits then ensued.
The witnesses presented by the prosecution were NBI
Forensic Chemist Mary Ann T. Aranas, NBI Special Investigator III Pio
M. Palencia (hereafter PALENCIA), and NBI Intelligence Agent II
Martin Soriano (hereafter SORIANO).
PALENCIA testified that on 15 February 1997, he was in the office
of SORIANO at Project 6, Quezon City, when they received a call from
their informant, a woman, who reported that a certain OBET was
allegedly engaged in large-scale drug trafficking in Makati City.
PALENCIA and SORIANO forthwith instructed their informant to
establish contact with OBET for a buy-bust operation. After several
hours, the informant reported that OBET was already waiting for her at
No. 1485 Soliman Street, Makati City, with instructions for her to come
alone as soon as she was ready with P150,000. PALENCIA then
caused the dusting of fluorescent powder over ten pieces of authentic
P100 bills as buy-bust money and gave them to the informant. [5]

On board a taxi, PALENCIA, SORIANO and their informant

proceeded to the rendezvous area. They arrived at half past twelve
o'clock in the early morning of 16 February 1997. As the gate was
already open, the informant entered the premises, while PALENCIA
and SORIANO discreetly crawled and positioned themselves near the
gate of the house. Strategically positioned, PALENCIA overheard
OBET ask the informant whether she had the money. PALENCIA then
saw the informant hand over the money to OBET. While counting the
money, OBET sensed the presence of other people in the area. OBET,
who was in possession of a .45 caliber pistol, fired it twice toward the
direction of PALENCIA, while hurrying towards the house. OBET then
held hostage his mistress, Estrella Brilliantes, and her two children for
the next three hours until the arrival of one Major Roberto Reyes to
whom OBET surrendered. PALENCIA and SORIANO brought OBET,
his firearm and the recovered buy-bust money to the WPD
Headquarters for recording purposes and, thereafter, to the NBI
Headquarters. [6]

At the NBI Headquarters, PALENCIA and SORIANO methodically

interrogated OBET about the source of his shabu. OBET eventually
volunteered that his source was a certain Betty of 263 El Grande
Street, B.F. Homes, Parañaque City. PALENCIA and SORIANO took
OBET to Betty's house as a follow-up operation. They arrived at
around 6:00 a.m. of the same day, 16 February 1997. As OBET called
Betty earlier to tell her that he was arriving, Betty already had the gate
opened for them. After parking, PALENCIA saw Betty waiting for them.
Upon seeing OBET in handcuffs, Betty asked what happened. OBET
replied that he was just caught in a buy-bust operation. PALENCIA and
SORIANO then tried to convince Betty to surrender the shabu that
OBET insisted was hidden inside the house. As Betty persistently
denied the existence of the shabu, PALENCIA told OBET to confer
with Betty. After a while, OBET proceeded to the kitchen of the
guesthouse located outside the main house, followed by Betty. OBET
then promptly pointed to what he termed as liquid shabu inside a white
pail along with other drug paraphernalia, such as a beaker spray.
PALENCIA and SORIANO seized the items. [7]

Thereafter, PALENCIA requested a laboratory examination of all

the seized items and an ultraviolet light examination over the persons
of OBET, Betty and a certain Eva Baluyot.  PALENCIA claimed that
[8]

based on the certification issued by the Forensic Chemistry Division of

the NBI, all the items seized from Betty's residence were positive for
methamphetamine hydrochloride except specimen no.7; while from
among the persons subjected to ultraviolet light examination, only
OBET was found positive for fluorescent powder. [9]

On cross-examination, PALENCIA admitted that he and SORIANO

conducted the search without a search warrant, but with the consent of
Betty.  He also admitted that he did not actually see OBET or Betty in
[10]

the act of manufacturing shabu. [11]

NBI Intelligence Agent II SORIANO corroborated PALENCIA's

testimony. He likewise admitted that the custodial investigation of
OBET, during which he divulged Betty as the source of shabu, was
conducted in the absence of any counsel. SORIANO also confirmed
PALENCIA's testimony that they were not armed with a search
warrant, but that they conducted the follow-up operation at Betty's
house under the hot pursuit theory.  He further maintained that OBET,
[12]

after conferring with Betty, uttered, “Ako na nga, ako na nga"(I will do

it, I will do it). OBET then proceeded to the dirty kitchen, pointed to the
refrigerator and had it moved. Thereafter, SORIANO saw a plastic pail
containing liquid with floating brown substances.
SORIANO admitted that he and PALENCIA neither witnessed
OBET and Betty manufacture shabu in the manner described in
Section 2(j) of the Dangerous Drugs Act ; nor did they possess
[13]

evidence, independent of the items they had seized, that OBET and
Betty were engaged in the labeling or manufacturing of shabu. [14]

Forensic Chemist Mary Ann T. Aranas testified that on 16 February

1997, she conducted a laboratory examination for the presence of any
prohibited or regulated drug on eleven different specimens (Exhibits
"B"-"L").  The result of the examination disclosed that all the
[15]

specimens except specimen no. 7 (Exhibit "H") were positive for

methamphetamine hydrochloride.  She further observed that
[16]

specimen no. 8 (Exhibit I- I-2), the brown liquid with floating solid flakes
contained in a plastic pail, was positive for epedrine,  a substance
[17]

used in the manufacture of methamphetamine hydrochloride. She

opined that this crude form of shabu would have to undergo chemical
processes, like extraction, crystallization, distillation, before it could be
finally converted into shabu's crystalline form. She also conducted a
fluorescent powder examination over the persons of OBET and Betty.
Only OBET gave a positive result. [18]

On the other hand, OBET testified that while he was watching

television on the night of 15 February 1997, he heard the doorbell
rang. Upon seeing Eva Baluyot, his childhood friend, he opened the
door for her. Inside the house, Eva handed him a bundle of money and
stated that she was buying shabu from him. OBET emphatically told
Eva that he was not engaged in such illegal trade and returned the
money. OBET then accompanied Eva out of the house. At the garage,
OBET noticed someone peeping from the dark; so he told Eva to go
back inside the house with him. Eva ignored the request. OBET thus
left Eva at the garage and got his .45 caliber gun from his house. While
he was locking the door, his handgun accidentally fired off, as he forgot
that it had already been cocked. This blast was followed by shouts of
people outside claiming that they were NBI men.  Uncertain, OBET did
not go out of the house but instead told the alleged NBI men to call the
Makati Police, specifically Major Reyes. The NBI agents, however,
persisted in convincing OBET to go out of the house. He did get out of
his house after three hours when he heard the voice of Major Reyes.
OBET gave to Major Reyes his gun. The Makati Police and the NBI
men thereafter conducted a joint search inside OBET's house which,
however, yielded nothing. OBET was then brought to the Makati Police
Headquarters where the incident was recorded. Thereafter,
PALENCIA, SORIANO and another NBI man brought OBET to the
house of Betty, his former live-in partner, at El Grande Street, B.F.
Homes, Parañaque City, upon the insistence and information of Eva
Baluyot. [19]

Upon entering B.F. Homes, SORIANO instructed OBET to call and

tell Betty that he was already near. The gate was already opened when
they arrived, and the NBI men freely parked their car at the garage.
Then, PALENCIA and SORIANO alighted from the car and entered
Betty's house. OBET was left in the car under the charge of the third
NBI man; hence, he knew nothing of what happened inside Betty's
house.[20]

For her part, Betty admitted that she was romantically involved with
OBET and had a child by him. She recalled that on 16 February 1997,
OBET called at around 6:00 a.m. and requested her to open the gate
for him, as he was already near. She ran down to the garage and
opened the gate. Since her car was parked halfway through the
garage, she went to the main house to get her car keys to make way
for OBET's car. But as she came out of the main house, OBET's car
was already parked inside the garage. She noticed that OBET had two
companions with long firearms. The two, whom Betty later found out as
NBI men PALENCIA and SORIANO, informed her that they had just
come from a buy-bust operation and that OBET had led them to her
house, as there were illegal chemicals kept in the premises. Shocked
andamazed, she then asked for a search warrant, but the NBI men
could not produce any. [21]

Betty further recalled that the NBI men claimed that they found
contraband items near the dirty kitchen at a small space behind
the refrigerator where cases of softdrinks were stored. Betty denied
any knowledge that there were illegal chemicals inside her house and
that these were manufactured into shabu. She also denied knowing
Eva Baluyot.[22]

On cross-examination, Betty disclaimed her alleged consent to the

search of her house, for she specifically asked the NBI men for a
search warrant. She asserted that she did not see the NBI men find the
shabu paraphernalia because she went up to the second floor of her
house. She only saw that the NBI men were bringing several items out
of her house.[23]

The trial court agreed with the prosecution's theory that the
warrantless arrests of OBET and Betty were conducted within the
purview of valid warrantless arrests enumerated in Section 5,  Rule
[24]

113 of the Rules of Court. It then ruled as valid the consented

warrantless search conducted at the house of Betty. Consequently,
it found that the very items seized by the NBI agents at the kitchen
of Betty's guesthouse were admissible as the corpus  delicti of the
violation of Section 14-A of the Dangerous Drugs Act. Thus, the trial
court "believed" that the paraphernalia seized were indispensable to
the processing or manufacturing of shabu into crystallized form.
Although it conceded that the prosecution witnesses did not actually
see the crystallization processes, the trial court observed that the
Dangerous Drug Act does not require that there be actual
manufacturing activities at the time of the seizure.
 The trial court, however, acquitted Betty for failure of the
prosecution to adduce evidence that she, in conspiracy with OBET,
manufactured shabu without the requisite authority. It did not arrive at
a similar conclusion as far as OBET was concerned, but declared that
based on the evidence on record, OBET's guilt of the crime charged
 was proved beyond reasonable doubt. Thus, in the decision of 18 May
1998 the trial court decreed as follows:

WHEREFORE, finding the evidence insufficient to warrant the conviction of

accused Beatrice Valerio y del Rosario for Violation of Sec. 14-a of Article III
of R.A. 6425 as amended by R.A. 7659, this court pronounces her NOT
GUILTY and considering that she is detained at the NBI the NBI is directed to
immediately release her from custody unless there be some reasons for her
detention. Finding, however, accused Robert Figueroa GUILTY as charged
[of] the same offense in the absence of any mitigating or aggravating
circumstances, this Court hereby sentences him to suffer the penalty of
Reclusion Perpetua and to pay a fine of P500,000.00 and to suffer the
accessory penalties provided by law, specifically Art. VI [sic] of the Revised
Penal Code.

The Clerk of Court is directed to prepare the Mittimus for the immediate
transfer of Robert Figueroa to the Bureau of Corrections in Muntinlupa City.

SO ORDERED.

Unsatisfied with the verdict, OBET appealed the decision to us. He

principally premises his prayer for acquittal on the failure of the State to
show by convincing evidence that shortly prior to or during custodial
investigation, he was apprised of his constitutional rights to remain
silent, to have a competent and independent counsel preferably of his
own choice, and to be informed of such rights. He asserts that he did
not waive those rights. Thus, whatever admissions were allegedly
extracted from him are inadmissible in evidence. Even assuming that
his extrajudicial statements were admissible, Betty's acquittal would
work in his favor because the indictment is based on conspiracy. In a
conspiracy, the act of one is the act of all. Therefore, the acts imputed
to him were also the acts of Betty, and vice versa. Since the trial court
considered insufficient for conviction the acts of Betty, then he, too,
should be acquitted.
In the Appellee's Brief, the Office of the Solicitor General (OSG)
maintains that not all warrantless searches and seizures are
illegal.  For one, a warrantless search and seizure is not unreasonable
and offensive to the Constitution if consent is shown. In this case, the
prosecution convincingly proved that Betty consented to the search of
her house. With her consent, Betty validly waived her constitutional
right against unreasonable searches and seizure. Consequently, the
items seized in her house by virtue of the consented search are
admissible in evidence against her and OBET.
The OSG also contends that the acquittal of Betty does not per
se work to absolve OBET of the crime charged. Betty's believable
disavowal of the location of the paraphernalia and other circumstances
on record reasonably indicative of her innocence cannot redound in
favor of OBET. The latter apparently knew the exact location of the
hidden paraphernalia. By such disclosure, it is not far-fetched to
conclude that OBET had been actually engaged in the manufacture of
shabu.
We first resolve the question of whether Betty's acquittal would
benefit OBET.
We disagree with the theory of OBET that in an indictment based
on conspiracy, the acquittal of a conspirator likewise absolves a co-
conspirator from criminal liability. Indeed, the rule is well-settled that
once a conspiracy is established, the act of one is the act of all, and
each of the conspirators is liable for the crimes committed by the other
conspirators.  It follows then that if the prosecution fails to prove
[25]

conspiracy, the alleged conspirators should be held individually

responsible for their own respective acts. Accordingly, OBET's criminal
liability in this case must be judged on the basis of his own acts as
established by the quantum of proof required in criminal cases.
We should then determine whether the prosecution was able to
establish beyond reasonable doubt OBET's guilt for unauthorized
manufacture of shabu, a regulated drug.
After a meticulous review of the records and of the evidence
adduced by the parties in this case, we find that what PALENCIA and
SORIANO did left much to be desired, thereby resulting in a bungled
prosecution of the case. The evidence for the prosecution miserably
failed to prove OBET's guilt of the offense charged.
The buy-bust operation was a failure because no shabu or other
regulated or prohibited drug was found in OBET's person and
residence. No evidence was adduced to show that OBET handed
shabu over to the informant. Yet, he was placed in custody. For what
offense he was held in custody does not, initially, appear very clear on
the record.
It was established that OBET fired two shots toward the direction of
PALENCIA and SORIANO and held hostage his mistress and her two
children. Yet he was not placed under custodial investigation for such
crimes as grave threats, coercion, illegal possession of firearms, or
crimes other than that with which he was charged.
On the contrary, OBET was held in custody and investigated or
interrogated about the source of the shabu, none of which was found
during the buy-bust operation. In short he was held in custody as a
consequence of the failed buy-bust operation and as a follow-up to link
him to the source and establish a conspiracy in the illegal trade of
shabu. Allegedly, he admitted that the source was Betty. On the basis
of that admission, PALENCIA and SORIANO, together with OBET,
proceeded to the residence of Betty. Needless to state, OBET cannot
be investigated for anything in relation to shabu while under custody
without informing him of his rights to remain silent and to have a
competent and independent counsel preferably of his own choice. Any
waiver of such rights should be in writing and made in the presence of
a counsel pursuant to Section 12 (1) , Article III of theConstitution. It
[26]

has been held that these rights attach from the moment the
investigation starts, i.e. when the investigating officers begin to ask
questions to elicit information and confessions or admissions from the
suspect.[27]

It is always incumbent upon the prosecution to prove at the trial

that prior to in-custody questioning, the confessant was informed of his
constitutional rights. The presumption of regularity of official acts does
not prevail over the constitutional presumption of innocence.  Hence,
[28]

in the absence of proof that the arresting officers complied with these
constitutional safeguards, extrajudicial statements, whether inculpatory
or exculpatory, made during custodial investigation are inadmissible
and cannot be considered in the adjudication of a case.  In other
[29]

words, confessions and admissions in violation of Section 12 (1),

Article III of the Constitution are inadmissible in evidence against the
declarant and more so against third persons.  This is so even if such
[30]

statements are gospel truth and voluntarily given.  Such statements

[31]

are useless except as evidence against the very police authorities who
violated the suspect's rights.
[32]

SORIANO admitted that the custodial investigation of OBET was

conducted without the presence of a lawyer, and there is no proof that
OBET waived said right and the right to remain silent. No waiver in
writing and in the presence of a counsel was presented. Thus,
pursuant to paragraph 3 of Section 12 of Article III of the Constitution
any admission obtained from OBET in the course of his custodial
 investigation was inadmissible against him and cannot be used as a
justification for the search without a warrant.
The search conducted on Betty's house was allegedly consented to
by Betty. Indeed, a consented search is one of the exceptions to the
requirement of a search warrant. InPeople v. Chua Ho San @ Tsay Ho
San,  we pointed out that:
[33]

This interdiction against warrantless searches and seizures, however, is not

absolute and such warrantless searches and seizures have long been
deemed permissible by jurisprudence in instances of (1) search of moving
vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or
consented searches, (5) stop and frisk situations (Terry search), and (6)
search incidental to a lawful arrest. The last includes a valid warrantless
search and seizure pursuant to an equally valid warrantless arrest, for, while
as a rule, an arrest is considered legitimate if effected with a valid warrant of
arrest, the Rules of Court recognize permissible warrantless arrest, to wit: (1)
arrest flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of
escaped prisoners.

In case of consented searches or waiver of the constitutional

guarantee, against obtrusive searches, it is fundamental that to
constitute, a waiver, it must first appear that (1) the right exists; (2) that
the person involved had knowledge, either actual or constructive, of
the existence of such right; and (3) the said person had an actual
intention to relinquish the right.  The third condition does not exist in
[34]

the instant case. The fact is, Betty asked for a search warrant, thus:
Q    And of course, these NBI Special Investigators informed you of their purpose is that
correct?
A     Yes sir.
Q    And of course believing that there was nothing in your house you acceded?
A     No sir, I was asking for a search warrant.
Q    And what was their reply?
A     They did not have any but that Figueroa had led them to the property.[35]

 Neither can the search be appreciated as a search incidental to a

valid warrantless arrest of either Betty or OBET as intimated by the trial
court. First, Betty's arrest did not precede the search. Second, per the
prosecution's evidence OBET was not arrested for possession or sale
of regulated or prohibited drugs as a consequence of the buy-bust
operation. He surrendered after taking hostage Estrella and her two
 children, although he was thereafter held in custody for further
questioning on illegal drugs.
There is no showing that the house occupied by Betty and the
articles confiscated therefrom belong to OBET. That OBET pointed to
PALENCIA and SORIANO the places where the articles were found
provides no sufficient basis for a conclusion that they belonged to him.
Even if the articles thus seized actually belonged to him, they cannot
be constitutionally and legally used against him to establish his criminal
liability therefor, since the seizure was the fruit of an invalid custodial
investigation.
WHEREFORE, in view of all the foregoing, the 18 May 1998
Decision of the Regional Trial Court, Branch 259, Parañaque City,
convicting herein accused-appellant Robert Figueroa of violation of
Section 14-A, Article III of the Dangerous Drugs Act, as amended, is
hereby REVERSED and SET ASIDE. He is hereby ACQUITTED of the
crime charged, and ORDERED immediately released from
confinement or detention unless his continued detention is warranted
by virtue of a valid legal cause. The Director of the Bureau of
Corrections is directed to submit within five (5) days from receipt of a
copy of this decision a report on the release of accused-appellant.
Costs de oficio.
SO ORDERED.

[G.R. No. 151286. March 31, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. CATALINO DUEÑAS,

JR. appellant.

DECISION
CORONA, J.:

Before us on automatic review is the decision, [1] dated October 26, 2001,

of the Regional Trial Court (RTC) of Baler, Aurora, Branch 96, in Criminal
Case No. 2220 finding the appellant, Catalino Dueñas, Jr., guilty beyond
reasonable doubt of the crime of murder qualified by evident premeditation
and attended by the aggravating circumstance of recidivism. Appellant was
sentenced to death.
 On April 1, 1997, Provincial Prosecutor Charlaw W. Ronquillo filed with the
RTC Baler, Aurora an information charging appellant with the crime of murder:

That at about 8:00 o’clock in the morning on November 29, 1996 at Gabgab
Buhangin, Baler, Aurora and within the jurisdiction of this Honorable Court the said
accused who was convicted of Murder on October 2, 1990, with intent to kill, evident
premeditation, treachery and use of an unlicensed firearm, did then and there, attack,
assault and use personal violence upon Elva Ramos-Jacob, also known as Elving
Jacob, by shooting her at the head with a .38 caliber revolver that caused her death not
long thereafter.

CONTRARY TO LAW.[2]

Upon arraignment, appellant entered a plea of not guilty.[3]

The following facts are uncontroverted.
Appellant was a convicted felon for the crime of homicide[4] in Criminal
Case No. 1414 in the Regional Trial Court, Branch 66, Baler, Aurora. He was
serving sentence in the Iwahig Prison Farm, Puerto Princesa City, Palawan,
when he escaped from confinement on July 11, 1995.
On November 29, 1996, at around 8:00 a.m., Cesar Friginal was cutting
grass in his rice field in Sitio Gabgab, Brgy. Buhangin, Baler, Aurora, when he
heard two gunshots. He instinctively turned to the direction where he heard
the shots and, from about a hundred meters away, saw a short man wearing
green clothes running away. At first, he ignored the occurrence but when he
saw people trooping to the vicinity, he joined the crowd and there saw a dead
woman on the ground. The woman was later identified as his cousin and
neighbor, Elva “Ka Elving” Ramos-Jacob.[5]
On December 6, 1996, Dr. Nenita S. Hernandez, municipal health officer
of Baler, Aurora, conducted a post mortem examination on the victim. Her
autopsy report showed the following:

I - Head:

1. wound, gunshot, entrance, circular in shape about 1 cm. diameter at the right
parieto-temporal area.
2. wound, gunshot, exit, stollate in shape, edges everted about 1.5 cm. diameter with
an exposed brain matter and fractured bone fragment located at the temporal area,
right side.
3. wound lacerated about 1.5 cm. long at the right parietal area.
II - Arm:

1. wound lacerated 4 cm. long, lateral aspect, right wrist.

CAUSE OF DEATH:

The most probable cause of death was brain damage and hypovelmic shock due to
gunshot wounds of the brain.[6]

In a manifestation, the Office of the Solicitor General (OSG) narrated what

it viewed as the factual antecedents of the case:

On December 18, 1996, appellant tried to enter the house of one Benny Poblete in
Brgy. Buhangin, Baler, Aurora, without permission. Benny and his father Harold
Poblete tied appellant’s hands until the police arrived. Police Officer Noel C. Palmero
then apprehended and detained appellant at the Baler Police Station.

The next day, or on December 19, 1996, appellant sought voluntary confinement for
“safekeeping” because there were threats upon his life brought about by his
involvement in the aforementioned incident of theft against the Pobletes.

Right after his apprehension, appellant intimated to Police Officer Palmero that he has
information regarding the death of Ka Elving. Police Officer Palmero then instructed
appellant to think about it over (sic) first.

Four days after or on December 23, 1996, Police Officer Palmero asked the still
detained appellant if he was ready to divulge the information regarding Ka Elving’s
death, to which appellant answered yes. Appellant was then informed of his
constitutional rights, including the right to secure the services of a lawyer of his own
choice. Police Officer Palmero told appellant that if he cannot afford the services of
counsel, he would even be provided with one for free.

By eleven o’clock that same morning, Atty. Josefina S. Angara, upon the police’s
invitation, arrived at the Baler Police Station to talk to appellant. Atty. Angara spoke
with appellant in private for about thirty (30) minutes. Appellant blamed Benny for
kicking him and causing him to suffer chest pains. Atty. Angara asked appellant what
really happened. Before long, appellant admitted that he was commissioned by Benny
to kill the victim. Atty. Angara warned him of the seriousness of his implications but
appellant was adamant in confessing to the murder of Ka Elving. The lawyer-client
conference was briefly interrupted by lunchtime. By one-thirty in the afternoon,
however, the inquisition resumed. Between the hours of three thirty and four o’clock
in the afternoon, appellant completed his Sinumpaang Salaysaywhere he confessed to
the killing of Ka Elving. The statement of appellant was initially written on pad paper,
thereafter it was typewritten. However, by the time the Sinumpaang Salaysay was
finalized, it was already past office hours such that the attestation before the municipal
mayor was postponed until the following morning.

Afterwards, because of persistent chest pains, appellant was then brought to the
Aurora Memorial Hospital to be medically examined. However, Police Officer
Palmero did not inquire as to the results of the medical examination. The results of the
medical examination were not offered in evidence.

The following morning, December 24, 1996, appellant, who was escorted by the
police, was brought before the then Municipal Mayor of Baler, Aurora, Arturo S.
Angara. Mayor Angara read the signedSinumpaang Salaysay before administering the
oath. He probed appellant if the signature appearing in the Sinumpaang Salaysay was
his and whether he understood the contents of the said document. Subsequently,
Mayor Angara affixed his signature on appellant’s Sinumpaang Salaysay.

In substance, the contested Sinumpaang Salaysay states that Benny Poblete

commissioned one Cesar to kill Ka Elving. Cesar, in turn, contacted appellant for the
hit. For more than a week, appellant and Cesar, together with a certain Manny
Gonzales, stalked the victim. On November 29, 1996, appellant acted as a lookout
while his companions shot the victim.[7]

On the other hand, appellant testified that, before noon on December 14,
1996,[8] he went to the house of one Benny Poblete to see his brother-in-law,
Erwin Bernardo, who was working for the Pobletes. Since his brother-in-law
was not around, Harold, son of Benny Poblete, invited him to a drinking spree.
While they were drinking, police officers Alfredo Miel and Amoranto Aquino
arrived and arrested him. He was brought to the municipal hall where he
was forced to admit the killing of Elving Jacob. For three consecutive nights,
he was mauled. As a result, his eyes became swollen and his chest ached.
Unable to endure the pain any longer, he owned up to the crime.[9]
On December 23, 1996, PO3 Noel C. Palmero, in the presence of Atty.
Josefina Angara, took appellant’s statement. Appellant claimed that neither
investigating officer Palmero nor Atty. Josefina Angara apprised him of his
constitutional rights during the custodial investigation. The following day, he
was brought to Mayor Arturo Angara before whom he swore to his affidavit
containing his confession.[10]
Dr. Roberto A. Correa of the Aurora Memorial Hospital testified that he
conducted a medical examination of the appellant at around 2:00 p.m. on
December 23, 1996. During the examination, he found a three-inch lacerated
wound on appellant’s right arm and a biositis tenderness (inflammation of the
muscle) in his right scapular area. He further testified that the lesions were
caused by a sharp instrument. Aside from these lesions, Dr. Correo did not
notice any other injuries on the body of the appellant.[11]
On rebuttal, Atty. Angara belied the accusation of Dueñas. She testified
that at past 10:00 a.m. on December 23, 1996, policemen came to her office
and requested her to assist the appellant who was then under custodial
investigation. She arrived at the police station at past 11:00 a.m. and was
introduced to the appellant. During her private conversation with the appellant,
she apprised him of his constitutional rights and told him that whatever he said
could be used against him. She discouraged him from giving his confession
but appellant was determined to do so. The questioning resumed at about
1:30 p.m. and lasted up to 4:00 p.m. While the investigation was going on,
appellant complained of chest pains so she requested that appellant be
brought to the hospital for medical attention.
PO3 Palmero was also presented as rebuttal witness. He disclaimed
mauling the appellant. He admitted that appellant was indeed complaining of
chest pains but it was allegedly the result of the kick by Harold Poblete. In
contrast with his previous declaration that he fetched Atty. Angara at around
3:30 p.m. to assist appellant during the investigation, PO3 Palmero now
claimed that the interrogation lasted about three hours, that is, from 1:00 p.m.
up to about 4:00 p.m. on December 23, 1996. He also declared that appellant
was given medical attention after the interrogation.[12]
Relying principally on the extrajudicial confession of the appellant on
December 23, 1996 (which was later repudiated), the trial court rendered its
decision convicting appellant of the crime charged:

WHEREFORE, premises considered, the Court finds accused Catalino Dueñas, Jr.
GUILTY BEYOND REASONABLE DOUBT of the crime of Murder qualified by
evident premeditation, and considering the presence of the aggravating circumstance
of recidivism and in the absence of any mitigating circumstance, hereby sentences
him to suffer the extreme penalty of DEATH and further orders him to indemnify the
heirs of the victims in the amount of Fifty Thousand Pesos (P50,000.00) as moral
damages and to pay the costs.

SO ORDERED.[13]

Hence, this automatic appeal.

 According to appellant, the extrajudicial confession which the trial court
relied on heavily for his conviction was infirm because the confession was
secured through force and intimidation, a violation of his constitutional rights.
For the State, the OSG filed a manifestation and motion in lieu of
appellee’s brief, seeking the reversal of the challenged decision and the
acquittal of Dueñas on the ground of involuntariness of his extrajudicial
confession. The OSG underscored the fact that it was forced out of appellant
by means of threats, violence and intimidation, thus violating his rights.
The appeal is meritorious.
In convicting the appellant, the court a quo reasoned as follows:

The extrajudicial confession of accused Dueñas, Jr. was freely and voluntarily given
and that his retraction and claims of violence and coercion were merely belated
contrivances and efforts of exculpation.

The statement (Exh. B-Stip.) itself reveals that there was compliance with the
constitutional requirement on pre-interrogation advisories, thus:

PASUBALI:            Ikaw Catalino Dueñas, Jr., ipinagbibigay alam ko sa iyo, na ikaw ay

inuusig sa isang kasalanan, pinapaalala ko sa iyo na sa ilalim ng ating Saligang
Batas ay karapatan mo ang manahimik at hindi sumagot sa mga tanong ko sa iyo
at magkaroon ng Abogado ng sarili mong pili, ito ba ay nauunawaan mo?
SAGOT:   Opo.
TANONG:              Alam mo ba at naipaliwanag ng iyong abogado na anumang
salaysay mo sa pagsisiyasat na ito ay maaring gamitin laban sa iyo?
SAGOT:   Opo.

The Court finds no merit in the insinuation of the defense that Atty. Josefina Angara
was not Dueñas’ own choice as counsel for the interrogation (TSN, October 4, 2001,
p. 4).

xxx             xxx             xxx

In the present case, accused even admitted that he trusted Atty. Angara when he
signed his sworn statement in the presence of the said counsel (TSN, November 23,
2000, p. 9).

Absent any showing that the lawyer who assisted the accused was remissed (sic) in
her duties, it can be safely concluded that the custodial investigation of Dueñas was
regularly conducted.
As could be observed, the confession is replete with details that could not have been
concocted by the police authorities.  According to Dueñas, he is one of those who
killed Elva Jacob; that his companions were Manny Gonzales and one Cesar; that
Benny Poblete contacted Cesar who in turn contacted him (accused) for the purpose
of killing Elving Jacob because his (Benny Poblete’s) daughter Rhea who died in
September, 1996 might still be alive were it not for the witchcraft of Elving Jacob and
her siblings; that he (accused) was contacted by Cesar in November, 1996 at the
market near the terminal of Baliwag Transit in Cabanatuan City; that he and Cesar
were together when they went to Baler, Aurora and they just fetched Manny Gonzales
at the gasoline station in Maria Aurora, Aurora; that they hatched the plan of
executing Elving Jacob in the middle of November, 1996 at the house of Benny
Poblete; that at that place and time, Cesar was given three thousand pesos
(P3,000.00); that he (accused) did not know Cesar well but could describe the latter’s
distinctive features; that Cesar and Manny Gonzales were armed with a .38 cal.
revolver; that they conducted a surveillance on Elving Jacob for more than a week to
determine her movement in going to and from the ricefield she is working on at Sitio
Gabgab, Brgy. Buhangin, Baler, Aurora; that on November 29, 1996, at about eight
o’clock in the morning, they positioned themselves under a canal, feigning to be
catching fish, until Elving Jacob passed by; that his two companions followed Elving
Jacob, while he remained on top of the canal and acted as a look out; that, not long
thereafter, he heard two gunshots; that they left the scene and reunited at Santiago’s
house in Brgy. Suklayin, Baler, Aurora; that on December 18, 1996, at around one
o’clock in the afternoon, he was instructed by Cesar to go to the house of Benny
Poblete to collect the balance of five thousand pesos (P5,000.00); and that he was
arrested there by the police. “The confession is replete with details that only the
confessant could have known and which, therefore, show that the confession was
executed voluntarily (People vs. Jimenez, 105 SCRA 721).”

Also, the confession of the accused is exonerative in nature as it points to other

member of the group as the triggerman. “The exculpatory tone of admission of the
crime and the abundance of details negate violence and maltreatment in obtaining a
confession. A guilty person seldom admits his guilt fully and completely. He has a
tendency to explain away his conduct or minimize his fault or crime or shift the blame
to others.”

xxx                 xxx                 xxx

The defense tried to impress to the Court that the policemen subjected the accused to
cruel and painful punishment to extract his confession, thus:

ATTY. NOVERAS TO THE ACCUSED

 Q     During the third time they mauled you and told you to admit responsibility for the
death of Elving Jacob, what happened?
A      I already admit (sic) because I could not bear the pain anymore, Sir.

xxx               xxx                  xxx

Q     What else, if there are any?

A      They could (sic) not allow me to sleep. They just throw water on me so I could not
sleep or rest. (TSN, October 4, 2000, pp. 3-4).
But,
Q     You said you were forced and intimidated to give the confession in connection
with the death of Mrs. Jacob, did you tell Atty. Angara about the fact?
A      I did not.
Q     Why?
A      HOW COULD I TELL THAT WHEN THE POLICE OFFICERS WERE THERE
SURROUNDING ME? (Emphasis ours) (Ibid, p. 6)

xxx               xxx                xxx

PROS. RONQUILLO TO THE ACCUSED

Q     Did you file any charge to (sic) the policemen who mauled you?
A      No, sir.
Q     Why?
A      BECAUSE I HAVE NO ONE TO TELL ON AND I AM AFRAID FOR THEM, SIR
(sic). (TSN, November 23, 2000, p. 11)

A review of appellant’s extrajudicial confession discloses certain facts and

circumstances which put his culpability in doubt.
Under Article III, Section 12 of the 1987 Constitution, persons under
custodial investigation have the following rights:
(1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and
independent counsel, preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation or any other means which vitiate the
free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.
 (4)               xxx                       xxx                       xxx

There are two kinds of involuntary or coerced confessions covered by this

constitutional provision: (1) those resulting from third degree methods like
torture, force, violence, threat and intimidation, and (2) those given without the
benefit of the Miranda warnings.[14]
Viewed against this backdrop, certain circumstances in this case need to
be carefully reviewed and considered.
On December 18, 1996,[15] appellant was arrested for theft on the request
of a certain Benny Poblete. PO3 Palmero admitted that at the time of the
arrest, appellant was not committing any crime. He was detained overnight
without any charges. The following day, PO3 Palmero claimed that appellant
supposedly sought “voluntary confinement for his own protection.” The police
blotter entry, however, was not offered in evidence. Only a certification of such
entry was presented, which certification was not even signed by appellant.
Under the circumstances, the “voluntary confinement” tale appears to be an
afterthought to cover up the appellant’s illegal arrest and detention. No person
in his right mind, already behind bars, will still seek “voluntary confinement”
when there are no charges against him.
Appellant executed his sworn statement on his alleged involvement in the
killing of Ka Elving on December 23, 1996 or five days after his arrest.
Immediately after accomplishing the affidavit, appellant sought medical
attention, during which Dr. Correa found positive marks of violence on the
latter’s body, an indication that physical coercion occurred at one point from
the time of his arrest up to the execution of his extrajudicial confession. The
only purpose of the maltreatment could have been to force him to admit guilt
against his will. When confronted on this matter, rebuttal witness PO3
Palmero had nothing but evasive and unresponsive answers:
Q     Did you personally bring Dueñas to the hospital?
A      I could not remember, anymore, Sir. But he was brought to the hospital.
Q     Are you sure of that?
A      Yes, sir.
Q     If you could not remember anymore if you were the one who bring (sic) him to the
hospital, do you know who was the police officer who brought him?
A      I do not know the jailer at the time.
Q     Were you still in the police station when he was brought back?
A      Maybe I was not there.
 Q     Did you try to inquire what was the result of the examination being conducted
upon Catalino Dueñas?
A      Not anymore, sir.
Q     Why?
A      Because I could not remember anymore the person who accompanied him.[16]

The trial court considered appellant’s claim of maltreatment as but a lame

excuse. It stated that the failure of the accused to complain to the swearing
officer or to file charges against the person(s) who allegedly maltreated him,
although he had the opportunity to do so, meant that the confession was
voluntary. But appellant adequately explained why he did not tell anybody
about the police brutality he had suffered. He testified:
Q     You said you were forced and intimidated to give the confession in connection
with the death of Mrs. Jacob, did you tell Atty. Angara about that fact?
A      I did not.
Q     Why?
A      How could I tell that when the police officers were there surrounding me.[17]

On cross-examination, appellant made the following declaration:

PROS. RONQUILLO
Q     Did you file any charge to (sic) the policemen who mauled you?
A      No, sir.
Q     Why?
A      Because I have no one to tell on and I am afraid for them, sir. (sic)[18]

Furthermore, the trial court misapplied the rule that a confession is

presumed voluntary where the same contains details and facts unknown to
the investigator which could have been supplied only by the perpetrator of the
crime. In People vs. Abayon,[19] we held:

It is a settled rule that where an alleged confession contains details and is replete with
facts which could have possibly been supplied only by the perpetrator of the crime,
and could not have been known to or invented by the investigators, the confession is
considered to have been voluntarily given. This rule, however, was erroneously
applied by the trial court in the case at bar.

The facts and details contained in at least three of the confessions, those of Reynaldo
Abayon, Mariano Aragon and Jose Juarez, were already known to the PC
investigators at the time the statements were allegedly signed by the said accused-
appellants. The three confessions referred to all appear to have been executed after the
body of the deceased Pedro Eslamado had been exhumed by the PC team on July 15,
1971. Abayon's statement is dated July 16, Aragon's statement, July 22, and Juarez'
statement, July 23, 1971. On those dates, the PC would have known details and facts
such as, that Pedro Eslamado was abducted and killed, where his remains were buried,
that he was tied around the mouth by towels, that his hands were tied with shoe
strings, all of which were stated in the confessions.

In this case, the police authorities already knew of the murder

of Ka Elving. As succinctly pointed out by the Office of the Solicitor General:

xxx at the time of the execution of the extrajudicial confession, and even before
appellant’s arrest, the post mortem examination was already available to the police.
Data regarding the murder weapon, the wounds sustained by the victim, the
whereabouts of the cadaver were properly within the knowledge of the investigating
officers. The latter, then, could have easily filled up the details of the crime in the
extrajudicial confession. It must be emphasized that the presumption of voluntariness
of an extrajudicial confession arises only when the replete details could have been
supplied by no other person but the perpetrator himself [People vs. Base, 105 SCRA
721 (1981)], which is not the case here.

Also worth mentioning is the belated appearance of Atty. Angara,

incidentally not of appellant’s choice, who assisted him in the execution of his
extrajudicial confession. This fell terribly short of the standards demanded by
the Constitution and Section 2 of RA 7438.[20] Appellant was arrested before
noon on December 18, 1996. The extrajudicial confession was taken five days
later, on December 23, 1996. Atty. Angara testified that policemen came to
her office at past 10:00 a.m. on December 23, 1996 requesting her to assist a
suspect under custodial investigation. She arrived at the police station at
around 11:00 a.m. and conferred with the appellant for about 30 minutes. The
interrogation resumed after lunch and lasted till 4:00 p.m.
From the foregoing, it is evident that appellant had already been in
detention for five days before he came to be assisted by a lawyer, just before
he was about to put his confession in writing. We entertain no doubt that the
constitutional requirement was violated. In People vs. Bolanos,[21] we held that:

An accused who is on board the police vehicle on the way to the police station is
already under custodial investigation and should therefore be accorded his rights
under the Constitution.

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. According to PO3
Palmero, right after appellant’s arrest, the latter already insinuated to him that
he would confess his participation in the killing. As he testified on cross-
examination:
Q     On December 18, 1996, when you arrested him what did he actually
told (sic) you?
A      Before we put him in jail at the Baler Police Station he told us that he has (sic) to
reveal something about the death of Elvira Jacob.
Q     So you already know that on December 18, 1996 that whatever Catalino Dueñas
will reveal to you will give you lead in solving the investigation in connection with
the death of Elvira Jacob, isn’t it?
A      Yes, sir.
Q     So, you still waited until December 23, 1996 for that revelation, isn’t it?
A      Yes, sir. That’s all, your honor.[22]

Well-settled is the doctrine that the purpose of providing counsel to a

person under custodial investigation is to curb the uncivilized practice of
extracting a confession, even through the slightest coercion which might lead
the accused to admit something untrue. [23] 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.”[24] These constitutional guarantees are meant to
protect a person from the inherently coercive psychological, if not physical,
atmosphere of such investigation.[25]
Finally, the court notes the material discrepancy between the testimony of
PO3 Palmero and that of Atty. Angara. When PO3 Palmero was first put on
the witness stand, he testified that he fetched Atty. Angara to assist appellant
at about 3:30 p.m. on December 23, 1996. The interrogation lasted more or
less an hour. However, on rebuttal, PO3 Palmero changed his story and
declared that the interrogation of appellant lasted about three hours from
about 1:00 p.m. to 4:00 p.m. The adjustment in the time cited may have been
made to conform to the earlier testimony of rebuttal witness Atty. Angara who
said that the interrogation of appellant lasted from about 1:30 p.m. up to about
4:00 p.m. But how could the interrogation of appellant have taken place within
that time-frame when, according to Dr. Correo and the appellant’s medical
record, the doctor conducted his medical examination of the appellant at
around 2:00 p.m. on December 23, 1996?[26]
In view of the foregoing, since the extrajudicial confession of appellant was
given in violation of the safeguards in Article III, Section 12 of the Constitution,
we hold that the appellant’s extrajudicial confession dated December 23, 1996
was inadmissible as evidence. And with the exclusion thereof, the record is
bereft of any substantial evidence to sustain the judgment of conviction. While
it is true that one Cesar Friginal was presented as a witness by the
prosecution, his testimony did not implicate the appellant in the murder of
Elving Jacob, the witness having said only that he saw a short man in green
clothes running away from the vicinity of the crime.
WHEREFORE, the decision of the Regional Trial Court of Baler, Aurora,
Branch 96, in Criminal Case No. 2220, convicting appellant Catalino Dueñas,
Jr., is hereby REVERSED and SET ASIDE. Appellant is ACQUITTED of the
crime of murder and his immediate release is ordered unless there is reason
to return him for confinement at the Iwahig Prison Farm in Puerto Princesa
City or to detain him for some other valid cause. The Director of Prisons is
directed to inform this Court of his compliance within ten days from receipt of
this decision.
No costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES,          G.R. No. 157399
                             Appellee,
                                                                    Present:
                              
   Davide, Jr., C.J. (Chairman),
          - versus -                                               Quisumbing,
                                                                      Ynares-Santiago,
   Carpio, and
   Azcuna, JJ.
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.                        Promulgated:
 
JAIME OCHOA,                            
                             Appellant.                          November 17, 2005
x ---------------------------------------------------------------------------------------- x
 
 DECISION
 
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 –
 
            That sometime in July 1990, or for sometime prior or subsequent thereto,
in Quezon City, Philippines, and within the jurisdiction of this Honorable Court,
accused Jose Ting Lan Uy, Jr., a public accountable officer, being the Treasurer
of National Power Corporation (NAPOCOR), Ernesto Gamus and Jaime Ochoa,
both public officers being the Manager of the Loan Management and Foreign
Exchange Division (LOMAFED) and Foreign Trader Analyst, respectively, also
of NAPOCOR, and accused Raul Gutierrez, alias Raul Nicolas, alias George
Añonuevo, alias Mara Añonuevo, a private individual being a foreign exchange
trader, said public officers taking advantage of their official positions, with grave
abuse of authority and committing the offense in relation to their office,
conspiring, confederating 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 (PNB), NPC Branch in the total amount of ONE HUNDRED
EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO
HUNDRED NINETY ONE PESOS and TWENTY FIVE CENTAVOS
(P183,805,291.25), Philippine Currency, intended for the purchase of US dollars
from the United Coconut 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 the Payment Instructions (PI) when signed by the NAPOCOR
authorities did not indicate the account number of Raul Gutierrez, thereby making
alteration or intercalation in a genuine document which changes its meaning, and
with the use of the said falsified commercial documents, accused succeeded in
diverting, collecting and receiving the total amount of ONE HUNDRED EIGHTY
THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED
NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.75),
Philippine Currency from the National Power Corporation, which they thereafter
 malverse, embezzle, misappropriate and 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 –
 
1.       That accused Uy at the time stated in the information was a Treasurer at
the NPC;
 
2.         That accused Ernesto Gamus was at the time mentioned in the information
was (sic) the Manager of Loan Management and Foreign Exchange
Division (LOMAFED);
 
3.         That accused Jaime Ochoa was the Senior Financial Analyst, LOMAFED,
at the time mentioned in the information;
 
4.                  That accused Gamus does not have any custody to (sic) public funds;
 
5.                  That accused Ochoa’s position as Sr. Financial Analyst did not require
him to take custody or control of public funds;
 
6.                  That the application forms for cashier’s check or Manager’s check are not
accountable forms of the NAPOCOR.[3]
 
Trial on the merits thereafter ensued. On May 28, 2002, the Sandiganbayan
rendered its Decision,[4] the dispositive portion of which reads:
 
            WHEREFORE, premises considered, accused Jaime B. Ochoa is hereby
found GUILTY beyond reasonable doubt of the crime of Malversation thru
falsification of Commercial Document and is sentenced to suffer the penalty
of reclusion perpetua and to pay a fine equal to the amount malversed which is
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 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)
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.[9]  To
sustain a charge of malversation, there must either be criminal intent or criminal
negligence[10] 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.
[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 custody[15] 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,[23] or 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
team[28] and 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 independent from the
NPC inquiry and should not be confused or lumped together with the latter.     
 
Appellant invokes Galman v. Pamaran[30] 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. Bernas [34] qualified this statement by saying
that “[J]urisprudence under the 1987 Constitution, however, has consistently held,
following Escobedo, the stricter view, that the rights begin to be available only
when the person is  already 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 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]  
 
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, 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.

[G.R. No. 128551.  July 31, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMIL
SAMOLDE Y TAMBUNTING and ARMANDO ANDRES, accused.
RAMIL SAMOLDE Y TAMBUNTING, accused-appellant.

DECISION
MENDOZA, J.:

This is an appeal from the decision, [1] dated February 26, 1992, of the Regional Trial
Court, Branch 74, Antipolo, Rizal, insofar as it finds accused-appellant Ramil Samolde
guilty of the crime of murder and sentences him to suffer the penalty of reclusion
perpetua and to pay the amount of P50,000.00 as civil indemnity for the death of
Feliciano Nepomuceno.
The facts are as follows:
On August 10, 1989, accused-appellant Ramil Samolde was charged, together with
Armando Andres, with the crime of murder, the information against them alleging  ¾

That, on or about the 13th day of May 1989, in the municipality of Taytay,
province of Rizal, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and
mutually helping and aiding one another, with intent to kill, treachery and
evident premeditation, taking advantage of superior strength, did then and
there willfully, unlawfully and feloniously attack, assault and grab the service
firearm a caliber .38 revolver with SN-982794 Smith & Wesson of one P/Cpl.
Feliciano Nepomuceno y Cruz and shot the herein victim on the body, as a
result of which the said P/Cpl. Feliciano Nepomuceno y Cruz sustained
gunshot wounds which caused his death.[2]

When arraigned on November 29, 1989, both accused pleaded not guilty,
whereupon,  trial was held. [3]
The prosecution presented six witnesses, namely, Edgardo Cabalin, [4] Ricardo
Nepomuceno, Dr. Dario L. Gajardo, P/Sgt. Benjamin Calderon, P/Sgt. Romeo De Leon,
and Arsenia Nepomuceno.
Edgardo Cabalin, a neighbor of the victim and accused-appellant, testified that at
around 5 o’clock in the afternoon of May 13, 1989, accused-appellant and Armando
Reyes asked him to lend them a tear gas gun which they would use to get someone’s
firearm.  However, Cabalin said, he did not lend his tear gas gun to them.  He claimed
that while he was having drinks with a friend at a store, he later learned that
Nepomuceno had been shot.  At that point, he and his friend knew who the assailants
were.  He explained that accused-appellant had a grudge against Nepomuceno
because when the former was in jail for stealing a chicken, the latter beat him up. [5]
 On cross-examination, Cabalin admitted that he did not really witness the killing of
Nepomuceno.  He only learned of this fact when he and his friend were drinking beer at
the store of a certain Turong Duleng and the other people there were talking about the
incident.[6]
Ricardo Nepomuceno, a nephew of the victim, testified that he knew the accused-
appellant and Armando Andres because they grew up together in Taytay, Rizal until he
moved to Morong,  Rizal.  He said that on May 13, 1989, between 7:30 and 8 o’clock in
the evening,  he saw Ricardo Nepomuceno on Naval Street being followed by Armando
Andres and accused-appellant.  Ricardo said he was 15 to 20 meters away from the
two.   He recognized them because he had known them for a long time, and there was
light coming from the electric post and from the houses along the street.  According to
this witness, when Feliciano Nepomuceno turned to Mahinhin Street, accused-appellant
grabbed him from behind while Andres, who was in front, stabbed the victim on the side
with a knife.   As Feliciano Nepomuceno’s gun fell, Andres picked it up and shot the
victim three times.  Afterwards, he ran towards the direction of Sky Theater.  On the
other hand, accused-appellant Samolde ran towards Salazar Street.
As soon as the assailants had fled, Ricardo Nepomuceno claimed he went to the
aid of his uncle and put him on a tricycle to take him to the hospital.  On the way, they
were met by an ambulance and Feliciano Nepomuceno was transferred to it.  However,
he died before reaching the hospital.  His body was later taken to Camp Crame for
autopsy.  Ricardo Nepomuceno said he did not know of any bad blood  between his
uncle and the accused.[7]
On cross-examination, Ricardo Nepomuceno reiterated that he saw Armando
Andres stab the victim at the side as accused-appellant Samolde held the victim.  He
admitted, however, that he did not volunteer information to the police. [8]
Dr. Dario L. Gajardo examined the body of Feliciano Nepomuceno.  His findings are
as follows:

SPECIMEN SUBMITTED:

Cadaver of Feliciano Nepomuceno, about 52 years old, policeman, 171 cm. in

height and a resident of #92 Int. Naval St., Taytay, Rizal.

PURPOSE OF LABORATORY EXAMINATION:

To determine the cause of death.

FINDINGS:

Fairly developed, fairly nourished male cadaver in primary flacidity with

postmortem lividity over the dependent portions of the body.  Conjunctivae are
pale.  Lips and nailbeds are cyanotic.
TRUNK AND UPPER EXTREMITY:

(1) Gunshot wound, point of entry, left infraclavicular region, measuring 0.8 by

0.7 cm., 13.5 cm. from the anterior midline, with an abraided collar, measuring
0.2 cm. laterally and superiorly, 0.1 cm. medially and inferiorly, directed
posteriorwards, downwards and to the right, fracturing the 3rd left thoracic rib
along the midclavicular line and 5th left thoracic rib along the midaxillary line,
lacerating the upper lobe of both lungs and arch of the aorta, with a
deformed .38 caliber slug recovered at the right axillary region, just beneath
the skin.

(2) Gunshot wound, point of entry, right infrascapular region, measuring 0.8 by

0.7 cm., 5 cm. from the posterior midline, with an abraided collar, measuring
0.2 cm. laterally, 0.1 cm. medially, superiorly and inferiorly, directed
anteriorwards, downwards and to the left, fracturing the 10th right thoracic rib
along the paravertebral line and 9th thoracic vertebra, lacerating the lower
lobe of the right lung with a deformed .38 caliber slug recovered at the left
thoracic cavity.

(3) Gunshot wound, thru and thru, point of entry, left mammary region,
measuring 1.8 by 0.8 cm., 10 cm. from the anterior midline, with an abraided
collar, measuring 0.2 cm. superiorly, 1 cm. laterally, 0.1 cm. medially and
inferiorly, directed downwards and medialwards, making a point of exit at the
epigastric region, measuring 3 by 6.2 cm., 5.5 cm. left of the anterior midline.

(4) Gunshot wound, thru and thru, point of entry, distal 3rd of the left arm,
measuring 0.8 by 0.7 cm., 8 cm. lateral to its anterior midline, with an abraided
collar, measuring 0.2 cm. laterally, 0.1 cm. medially, superiorly and inferiorly,
directed horizonwards and medialwards, making a point of exit at the middle
3rd of the left arm, measuring 2 by 1.5 cm., 2 cm. medial to its anterior
midline.

One thousand eight hundred (1,800) cc of blood and blood clots accumulated
at the thoracic cavity.

Stomach is full of partially digested food particles consisting mostly of rice and
the rest of the visceral organs are grossly unremarkable.

CONCLUSION

Cause of death is cardio-respiratory arrest due to shock and hemorrhage

secondary to multiple gunshot wounds in the trunk and upper extremity.[9]
 Dr. Gajardo testified that judging from the point of entry of the bullets in wound nos.
1 and 3, he concluded that the assailant was in front of the victim, while in wound no. 2,
the assailant was at the back of the victim. He said that from the location of wound no.
2, it was possible that the victim was lying on his stomach when he was shot.  Wound
no. 4 was found on the left arm of the victim.  Wound nos. 1, 2, and 3 were the fatal
wounds which caused the victim’s instantaneous death.  Dr. Gajardo opined that these
wounds were caused by a .38 caliber gun.[10]
On cross-examination, Dr. Gajardo said that although there were other injuries
found in the body of the victim, these injuries were part of the gunshot wounds
sustained by him, indicating that the victim fought off his assailants.  No stab wound,
however, was found on the body of the deceased.  Dr. Gajardo conceded that it was
possible that wound nos. 3 and 4 were caused by a different firearm because he was
unable to recover the slugs from these wounds. [11] Dr. Gajardo explained that he placed
the slugs which he recovered from the body of the victim inside an envelope attached to
the medical report.[12]  He said he did not place any markings on the slugs because this
might destroy the evidence.  He simply wrapped the slugs with pink paper with tag
number M-079-89 corresponding to the number of the medical report. [13]
P/Sgt. Benjamin Calderon, chief investigator of the Taytay police, testified that, at
about 8 o’clock in the evening of May 13, 1989, he went to the  scene of the crime on
Salazar Street near the corner of Mahinhin Street.  He interviewed several people,
including Edgardo Cabalin.  Moreover, he was the one to whom accused-appellant and
Armando Andres gave their statements in which they admitted that they killed Feliciano
Nepomuceno.  Sgt. Calderon said that the statements were given with the assistance of
Atty. Emiliano Benito.  He further said that the firearm taken from Feliciano
Nepomuceno was recovered from the house of Armando Andres’ relatives in Antipolo
by police operatives led by Station Commander Daniel Hernandez. [14]
On cross-examination, Sgt. Calderon clarified that he was not one of those who
arrested accused-appellant and Andres.  According to Sgt. Calderon, Andres was
arrested on June 19, 1989, but he executed his statement only on June 22, 1989, after
he was provided with a lawyer.  Sgt. Calderon said he advised accused Andres to get
his own lawyer and when the latter failed to do so, he recommended Atty. Benito to
Andres.  Atty. Benito stayed with Andres from the start of the investigation until the
execution of the latter’s statement.  Sgt. Calderon said that Andres was not given a
physical examination prior to the investigation.  On the other hand, accused-appellant,
according to Sgt. Calderon, was arrested on June 6, 1989 in Bustos, Bulacan by P/Sgt.
Rogelio De Leon. That same afternoon, Sgt. Calderon took Samolde’s
statement.  Accused-appellant was assisted by Atty. Emiliano Benito who stayed with
accused-appellant until the end of the investigation.  Sgt. Calderon could not remember
whether Samolde was physically examined. [15]
P/Sgt. Romeo De Leon also testified.  He said that on June 6, 1989, he went to
Bustos to arrest accused Ramil Samolde.  Upon arriving in the town, he and his
companions found that accused-appellant Samolde was in jail for stealing a television
set.  Sgt. De Leon talked to the complainant in the theft case and convinced him to
withdraw his complaint so that they could take accused-appellant with them to Taytay
for proper investigation.  As to Andres, Sgt. De Leon testified that he learned from
Samolde that Andres had gone to Ilocos Sur.  Accordingly, on June 19, 1989, Sgt. De
Leon and his team went to Barrio Surbic, Narvacan, Ilocos Sur, and found
Andres.   Andres expressed  regret for  killing Nepomuceno.[16]
Sgt. De Leon stated on cross-examination that he was chief of the intelligence
operation of the Taytay Police Station and that he was authorized to serve warrants of
arrest.  They arrested Samolde in Taytay on June 6, 1989.  He said that during the six-
hour trip to Taytay, they questioned accused-appellant regarding the whereabouts of
Andres and the gun taken from Nepomuceno.  Sgt. De Leon denied having used
violence against Samolde.  He said he asked Andres for the gun used in killing
Feliciano Nepomuceno, and Andres said it was in Antipolo.
It was admitted that no counsel assisted Andres when he was interrogated.  Sgt. De
Leon denied using force against Andres during the twelve-hour trip from Narvacan to
Taytay.[17]
Arsenia Nepomuceno, wife of the deceased Feliciano Nepomuceno, testified that on
May 13, 1989, Perry Nepomuceno, a nephew, told her that her husband had been shot
while on his way home.  She went to the place where her husband was shot but he was
no longer there, having been taken to the Angono Memorial Hospital.  Accordingly, she
and her nephew went to the hospital but they found that he had died.  She testified that
she spent P7,500.00 for food and beverages served during her husband’s five-day
wake and paid P475.00 for the electricity. She also paid P14,500.00 for the funeral
services, P7,500.00 for the tomb, and P6,500.00 for the family lot.   She said that her
husband earned P1,800.00 a month as a policeman.   She related how she spent
sleepless nights after the death of her husband and how she was forced to accept
sewing jobs to care for their four children. [18] The expenses for the funeral services were
supported by a receipt for P14,500.00 issued by La Funeraria Oro. [19] She also
presented receipts for P1,800.00 for the construction of Feliciano Nepomuceno’s
tomb[20] andP7,500.00  for the family plot in the Taytay Municipal Cemetery. [21]
Arsenia Nepomuceno admitted on cross-examination that she was not present
when the receipt for P14,500.00 was issued by La Funeraria Oro, but she was present
when the receipts for P1,800.00 and P7,500.00 for the tomb and cemetery plot were
issued.[22]
Accused-appellant Ramil Samolde and Armando Andres testified in their behalf.
Samolde testified that the victim, Feliciano Nepomuceno, was his neighbor in
Taytay.   He admitted harboring ill will and much bitterness towards the latter because
he was an abusive policeman.[23] According to Samolde, at around 7:30 in the evening of
May 13, 1989,[24] he was walking towards the market when he met Feliciano
Nepomuceno.  Nepomuceno pointed a gun at him and called him a thief.   Samolde said
he parried the gun and stabbed Nepomuceno with a carver, hitting the latter on the left
side.  When the gun fell to the ground, Samolde picked it up and shot Nepomuceno.  He
then went to his brother’s house to ask for money so that he could go to Plaridel,
Bulacan, where he stayed until he was arrested.  He was detained in Bustos for two
weeks, then transferred to the Taytay jail where he claimed he was beaten up by the
police. Samolde testified that the police wanted to know who helped him kill
Nepomuceno.  He gave a statement implicating Andres because of a grudge which he
bore against the latter.  Accused-appellant claimed that although he was provided a
lawyer, the latter was not really present during his investigation.
On cross-examination, accused-appellant testified that he was on his way to the
Taytay market when he met Nepomuceno who, as he often used to, called him a
thief.  He reiterated that he stabbed Nepomuceno before shooting him with a service
revolver.  Accused-appellant said that as Nepomuceno held a gun to his face, he
parried it and stabbed Nepomuceno, causing the latter to drop his gun.  Accused-
appellant said he then picked up the gun and shot Nepomuceno twice.  Accused-
appellant denied he had a companion.  He testified that during his detention, he was not
allowed to be seen, lest visitors notice his swollen face.  He later told his parents that he
had been manhandled in jail, but the latter did not file a case against the policemen.   As
regards his counsel, accused-appellant stated that, contrary to what was stated in his
extrajudicial confession, his lawyer did not really assist him.  He was not informed of his
constitutional rights when he executed his extrajudicial confession, and he did so only
after he had been subjected to some brutality by the police.   Upon inquiry by the trial
court, accused-appellant stated that although he made two thrusts with his carver at
Nepomuceno, he failed to hit the latter.   He admitted that he is left-handed.[25]
On the other hand, Armando Andres told the court that he was born in Taytay and
that he earned his living by driving a tricycle.  He said that although he knew accused-
appellant Ramil Samolde, they were not friends. Andres said he likewise knew the
victim, Feliciano Nepomuceno, but did not know where he lived.   Andres claimed that
on May 13, 1989, he was in Surbic, Ilocos Sur, where he had been living with his
sister.  He learned that he was implicated in the killing of Nepomuceno only when the
police came to arrest him in Ilocos Sur on June 19, 1989.  Like accused-appellant,
Andres also claimed he was beaten up by a policeman at the Taytay jail; that the sworn
statement he gave had been prepared by the police; that he was not given any
opportunity to read it before he signed it; and that he did so because he was subjected
to torture and intimidation by the police.  He said he could not remember whether he
had a lawyer when he gave his sworn statement.
On cross-examination, Andres explained that he knew accused-appellant because
the latter used to ride on his tricycle, but he denied that he and accused-appellant were
close friends.  He likewise denied being acquainted with the victim Nepomuceno,
reiterating that he only knew the latter by face.  He denied shooting Nepomuceno.  He
also disclaimed going to the house of a certain Leandro Nalo in Antipolo, Rizal.  He
further denied burying in Antipolo Nepomuceno’s .38 caliber revolver.  He admitted
having gone to Ilocos Sur only on May 15, 1989, and not on May 13, 1989, but denied
that he was hiding.[26]
On February 26, 1992, the trial court rendered judgment as follows:

In view of all the foregoing, the Court finds Ramil Samolde y Tambunting and
Armando Andres y Mendoza GUILTY beyond reasonable doubt of the crime
of Murder, and they are hereby sentenced to suffer the indeterminate penalty
of Reclusion Perpetua, and to pay jointly and severally the heirs of deceased
Feliciano Nepomuceno, by way of indemnity, the sum of Fifty Thousand
(P50,000.00) Pesos, without subsidiary imprisonment in case of insolvency.

For failure of accused Ramil Samolde and Armando Andres to agree

voluntarily in writing before or during their temporary imprisonment to abide by
the same disciplinary rules imposed upon convicted prisoner, they shall be
credited in the service of their sentence each with 4/5 of the time during which
they have undergone preventive imprisonment.

SO ORDERED.[27]

Only Ramil Samolde has appealed.  He contends that:

1.  The Court erred in finding there is complicity by circumstantial evidence; and
2.  Accused-Appellant was given P10,000.00 by Armando Andres to confess to the
murder.[28]
Armando Andres did not appeal.
We find accused-appellant’s contentions to be without merit.
First.  To be sure, the testimony of Ricardo Nepomuceno cannot be relied upon to
sustain the conviction of accused-appellant. Nepomuceno claimed that he saw the
incident happen because he was at the scene of the crime.  He claimed he had come
from his parents’ house, and he saw the deceased being followed at Naval Street by
accused-appellant and Armando Andres.  Yet he never volunteered information to the
police.[29]  We can understand the reluctance of a witness to testify in a case that does
not concern him personally.  But the victim in this case was the witness’ own uncle. Until
he testified at the trial of the case on June 20, 1990, more than one year after allegedly
witnessing the killing of his uncle on May 13, 1989, Ricardo Nepomuceno never told
anyone about what he allegedly knew about the killing.  Such unexplained delay of an
alleged eyewitness to the murder of a kin in reporting the matter to the authorities casts
grave doubts on the credibility of his testimony.  As we held in a similar case:[30]

The rule is ordinarily to the effect that delay by a witness in divulging what he
or she knows about the commission of a crime, such as the identity of the
offender, is not by itself a setback to the evidentiary value of such a witness’
testimony.  The courts, however, have been quick to deny evidentiary weight
where such delay is not sufficiently justified by any acceptable explanation.

For instance, well-founded fear of reprisal, or the unpredictable manner by

which individuals react when confronted by a gruesome event as to place the
viewer in a state of shock for sometime, have been considered as permissible
situations resulting in delay.  Invariably, however, even under the foregoing
circumstances the delay must not be undue in point of time. Thus, failure to
reveal what one had witnessed about a crime for a number of days, or weeks,
or even a number of months, is allowable.  But, that will not hold true where,
as in the case now being reviewed, the delay had unreasonably stretched all
too far out into a year and four months, especially in the absence of any
compelling or rational basis for such self-imposed and lengthy silence.

His belated disclosure raises the suspicion that his testimony was fabricated in order to
provide evidence to the prosecution.[31]
Moreover, Ricardo Nepomuceno’s narration of the events is incredible.  He testified:
Q:   Now, on May 13, 1989 . . . between the hours of 7:30 to 8:00 in the evening, do you still
recall where were you?
A:    I came from the house of my parents and I was about to go home to Morong.
Q:   And while walking at Naval St. as you said at about that time between the hours of 7:30
and 8:00 o’clock in the evening, do you recall of any unusual incident that took place
within the vicinity?
....
A:    I saw Armando Andres and Ramil Samolde they were also walking along and following
Cpl. Nepomuceno.
Q:   Now, on what street did you see both accused Ramil Samolde and Armando Andres
following Feliciano Nepomuceno?
A:    Also in Naval St.
Q:   And will you tell us at about what distance were you from the 3?
A:    About 15 meters.
Q:   Now, while walking and following the 3 what happened, if any?
A:    Upon reaching the corner of Naval and Mahinhin they turn towards Mahinhin St. so they
were blocked to my view.
Q:   Now, you said that you saw the two accused following Cpl. Feliciano
Nepomuceno.  Now, you were in there back, is it not?
A:    Yes, sir.
Q:   Now, will you tell us why you were able to recognize the two accused when as you said
you were at their back?
A:    I have known them for a long time that is why even if their back[s are] against me I can
still recognize them.
Q:  Now, considering the length of time that you have known both accused were you their
playmates?
A:    We used to meet at the place of Ramil because we used to play with the gamecock.
....
Q:   Now, considering the three of you grew up together in the same place at Naval St.,
Taytay, Rizal, you can recognize anyone of them at the distance of about 15 meters, do I
get you right?
A:    Yes, sir.
Q:   Now, will you describe that place Naval St. during nighttime at around 7:30 to 8:00 in the
evening with regards to the lighting, it is dark or it is lighted?
A:    It is lighted and it is bright.
Q:   Now, what is the source of this light which you said illumin[ed] the street?
A:    From the post of the Meralco.
Q:   Now, is that street thickly populated?
A:    Yes, sir.
Q:   And the houses along these streets were lighted at that time?
A:    Yes, sir.
Q:   Now, you made mention a while ago that the three referring to both accused and
Feliciano Nepomuceno executed a turn, to what street did the three proceed?
A:    To Mahinhin St.
Q:   And what did you do after that?
A:    Upon  reaching the street corner I also turn towards them.
Q:   You mean to say you likewise turn to Mahinhin St.?
A:    Yes, sir.
Q:   What happened next, if any?
A:    Upon turning on the street I already saw that Ramil Samolde was embracing Cpl.
Nepomuceno on the back.
Q:   And what about Armando Andres what was he doing then?
A:    He was in front and holding a knife as he just stabbed Nepomuceno.
Q:   Now, did you see what portion of the body of Cpl. Nepomuceno was stabbed by
Armando Andres?
A:    As  far as I know it was on the side.
Q:   Left side or right side?
A:    I cannot recall, sir.
Q:   Now, what happened next, if any?
A:    After Armando stabbed Cpl. Nepomuceno his gun fell.
Q:   And as the gun of Cpl. Nepomuceno fell on the ground what happened next?
A:    It was picked up by Armando.
Q:   And what did Armando do with that gun?
 A:    He fired it to Cpl. Nepomuceno.
Q:   Now, how many gunshots did you hear?
A:    Three (3) times, sir.
Q:   After that what happened next, if any?
A:    They run away in different direction.[32]
Answering questions on cross-examination, Ricardo Nepomuceno reiterated that he
saw Andres holding a pointed instrument which the latter used to stab the victim.  As he
testified:
Q:   Mr. Witness, you are under oath in testifying in connection with this case, are you sure
you saw Armando holding a knife, is that correct?
A:    I know that he was holding an instrument.
Q:   Will you describe what he is holding?
A:    A pointed instrument.
Q:   And according to you while Andres is holding that knife, did you see Armando stabbed
the victim Cpl. Nepomuceno, is that correct?
A:    Yes, sir.
Q:   Are you sure of that?
A:    Yes, sir.
Q:   And are you sure what portion of the body does Cpl. Nepomuceno was hit?
A:    I saw that he was hit on his side of the body.[33]
The above testimony is, however, belied by the results of the physical examination
of the victim as well as by the testimony of Dr. Dario L. Gajardo. The medico-legal
report states that Feliciano Nepomuceno sustained four gunshot wounds, three of which
were fatal, but there was no stab wound.  Dr. Gajardo testified:
Q:   In your findings, it appears that there are four (4) gunshot wound[s], is that correct?
A:    Yes, Sir.
Q:   No other injuries at the body of the victim that you have found?
A:    Well, there were other injuries which is part.
Q:   Did you find any stab wound on the body of the victim?
A:    None, Sir.[34]
In People v. Padica,[35] it was held that the absence of stab wounds does not negate
a witness’ testimony that the victim was stabbed by his assailants.  In that case,
however, the apparent inconsistency between the witness’ testimony and the evidence
is explained by the fact that, although the accused tried to stab the victim, the weapon
failed to penetrate and hit the body.  In the present case, however, Dr. Gajardo
categorically stated not only that there was no stab wound found on the body of the
victim but also that the other injuries sustained by him were part of the gunshot wounds
inflicted on him.[36] These other wounds, such as the abrasions, were caused by the
struggle between the victim and his assailants. [37] No lacerations were reported to have
been sustained by the victim.
Nor is the extrajudicial confession of accused-appellant admissible in
evidence.  Accused-appellant was not informed of his constitutional rights before his
statement was taken.
The pertinent portions of his extrajudicial confession read:
PALIWANAG:  Ikaw ngayon ay nasa ilalim ng isang pagsisiyasat. Bago kita tanungin ng mga
bagay-bagay na may kinalaman sa kasong ito ay nais kong ipabatid ko sa iyo ang iyong mga
karapatan na gaya ng mga sumusunod:
Na:              Ikaw ay may karapatan manatiling tahimik, at may karapatan magbigay o huwag
ng salaysay kung gusto mo.
Na:  Ano mang salaysay kung magbibigay ka ito ay maaaring gamitin katibayan laban o
pabor sa iyo sa alin mang hukuman dito sa kapuluan Pilipinas.
Na:  Ikaw ay  may karapatan din sa tulong at pagharap ng sino mang manananggol na iyong
nais.
1.  TANONG: Matapos mong mabatid ang iyong mga karapatan alinsunod sa ating bagong
saligang batas, ikaw ba ay nahahandang magbigay ng isang malaya at kusang loob na
salaysay na ang iyong sasabihin ay pawang katotohanan lamang?
SAGOT:      Opo.
2.  T:           Ikaw ba ay mayroon abogado sa oras na ito, upang makatulong mo sa
imbestigasyon na ito?
S:    Mayroon po, si Atty. Emiliano Benito, na siyang aking nagustuhan abogado, upang
makatulong ko sa pagsisiyasat sa akin.
3.   T:          Sa harap ng iyong abogado, nauunawaan mo bang lahat ang iyong mga
karapatan na aking ipinaliwanag sa iyo?
S:    Opo, kaya po ako kumuha o pumili ng aking abogado.
4.   T:          Mailalagda mo ba ang iyong pangalan, bilang patunay na nauunawaan mo ang
mga karapatan mo at bilang patotoo na ikaw ay may katulong na abogado sa oras ng
pagsisiyasat sa iyo?
S:    Opo.

Assisted by:                                              (SGD.)RAMIL SAMOLDE

 (Sgd.) Atty. Emiliano Benito                                Nagsasalaysay[38]

Clearly, accused-appellant was not properly apprised of his constitutional

rights.  Under Art. III, §12(1) of the Constitution, a suspect in custodial investigation
must be given the following warnings: “(1) He must be informed of his right to remain
silent; (2) he must be warned that anything he says can and will be used against him;
and (3) he must be told that he has a right to counsel, and that if he is indigent, a lawyer
will be appointed to represent him.” [39] As the abovequoted portion of the extrajudicial
confession shows, accused-appellant was given no more than a perfunctory recitation
of his rights, signifying nothing more than a feigned compliance with the constitutional
requirements.  This manner of giving warnings has been held to be “merely ceremonial
and inadequate to transmit meaningful information to the suspect.” [40] For this reason, we
hold accused-appellant’s extrajudicial confession is invalid.
However, apart from the testimony of Ricardo Nepomuceno and the extrajudicial
confession of accused-appellant, there is sufficient evidence in the records showing
accused-appellant’s guilt.  Accused-appellant confessed in open court that he had killed
Feliciano Nepomuceno.  It is this admission of accused-appellant which should be
considered.[41]
Now accused-appellant testified that on the day in question, he met the deceased
and, as he had done in the past, the latter poked a gun at him at the same time called
him a thief. Angered by what had been done to him, accused-appellant said he pushed
Nepomuceno’s hand away and stabbed him with a carver.  Then, when Nepomuceno
dropped his gun to the ground, accused-appellant picked it up and shot
Nepomuceno.  Accused-appellant claimed that he merely implicated Armando Andres
because he had a grudge against Andres.[42]
The trial court dismissed this attempt to exculpate Andres and convicted the
latter.  We think the trial court correctly did so.   Indeed, accused-appellant now claims
that he was givenP10,000.00 by Andres to make the admission in court in order to
exonerate the latter.[43] But the fact that Armando Andres chose not to appeal is proof of
the falsity of this claim.  This flipflop makes accused-appellant’s explanation as to why
he admitted slaying Feliciano Nepomuceno very doubtful.
We have held that a judicial confession constitutes evidence of a high order.   The
presumption is that no sane person would deliberately confess to the commission of a
crime unless prompted to do so by truth and conscience. [44]  Indeed, it is hard to believe
that a person, of whatever economic status, would confess to a crime that he did not
commit for monetary considerations and thus barter away his liberty, and for that matter,
even his life, for a mess of potage, for that is what the mere sum of P10,000.00
allegedly paid to him to make the confession means.
On the other hand, the fact that accused-appellant felt bitter towards the victim for
having tortured him in jail was the motivating factor which made him kill the latter.   The
attempt of accused-appellant and Andres to borrow a tear gas gun from a neighbor so
that they could take the victim’s gun and their flight after getting their quarry, when taken
together with accused-appellant’s judicial confession, place beyond the shadow of
doubt the guilt of accused-appellant.
“Generally, motive is proved by the acts or statements of the accused before or
immediately after the commission of the offense - deeds or words that may express the
motive or from which his reason for committing the offense may be inferred.” [45] In this
case, Edgardo Cabalin, a neighbor, testified that accused-appellant harbored ill feelings
towards the victim. Cabalin related that, at one time, accused-appellant, who had been
jailed for stealing, was beaten up in jail by  Feliciano Nepomuceno, a member of the
police.[46] (Accused-appellant himself said the victim was an abusive policeman and
admitted that he felt much bitterness towards him. [47])  Cabalin testified that at around 5
o’clock in the afternoon of May 13, 1989, the same day the victim was killed, accused-
appellant and Armando Andres tried to borrow a tear gas gun from him because they
were planning to take someone’s gun, but, Cabalin said, he did not lend them his tear
gas gun.[48] Accused-appellant thus had a motive to kill Nepomuceno.
Another circumstance to be taken against accused-appellant was his flight after the
commission of the crime.   Accused-appellant was arrested in Bulacan.  Apparently, he
went into hiding in Bulacan to avoid arrest.   In a similar case, it was held that the fact
that the accused disappeared shortly after the commission of the crime and could not
be found in their respective residences such that an alias warrant had to be issued for
their arrest were strong indications that they committed the crime.  Flight has been held
to be an indication of guilt.[49]
Second.  The question of whether the killing of Feliciano Nepomuceno was
committed with treachery and with evident premeditation remains to be resolved.   In
this case, the trial court found the killing to be attended by the qualifying circumstance of
treachery.
We do not agree.  For treachery to be appreciated as a qualifying circumstance, the
following elements must concur:  “(1) the employment of means of execution which
gives the person assaulted no opportunity to defend himself or retaliate; and (b) that
said means of execution were deliberately or consciously adopted by the
assailant.”[50] As already stated, Ricardo Nepomuceno’s testimony cannot be given
credence. No other evidence was presented by the prosecution to prove the mode and
manner in which accused-appellant and Armando Andres executed the crime.  For this
reason, there is no basis for appreciating treachery in this case.
We hold, however, that there was evident premeditation so as to make the killing
murder. The elements of evident premeditation are:  (1) the time when the accused
determined to commit the crime;  (2) an act manifestly indicating that the accused has
clung to his determination; and (3) a sufficient lapse of time between such determination
and execution to allow him to reflect upon the circumstances of his act. [51]
As stated earlier, accused-appellant and Armando Andres tried to borrow Cabalin’s
tear gas gun.  This attempt by accused-appellant and his co-accused to arm themselves
prior to the commission of the crime constitutes direct evidence that the killing of
Feliciano Nepomuceno had been planned with care and executed with utmost
deliberation.  Such act also shows that the accused-appellant and his co-accused had a
previous agreement to kill Feliciano Nepomuceno.  From the time the two agreed to
commit the crime to the time of the killing itself, sufficient time had lapsed for them to
desist from their criminal plan had they wanted to.  Instead, they clung to their
determination and went ahead with their nefarious plan.   That nobody saw the killing of
Nepomuceno even indicates that the two planned to commit the crime at such time and
place where the victim was alone and help would be difficult to obtain.   The killing of
Nepomuceno was done under such circumstances that the assailants foresaw the
problems they might encounter, i.e., the victim was armed and thus knew how to defend
himself, and figured out  the means to deal  with them.  “The essence of premeditation
is that the execution of the criminal act was preceded by cool thought and reflection
upon the resolution to carry out the criminal intent during a space of time sufficient to
arrive at a calm judgment.” [52] Clearly, the elements of evident premeditation are present
in this case.
Third.  As to the question of damages, the trial court correctly awarded P50,000.00
as civil indemnity to the heirs of Feliciano Nepomuceno, in accordance with our recent
rulings.[53]We find that aside from the civil indemnity, however, the heirs of Feliciano
Nepomuceno are entitled to actual damages for expenses incurred during Feliciano
Nepomuceno’s wake and burial.  To be entitled to such damages, it is necessary to
prove the actual amount of loss with a reasonable degree of certainty, premised upon
competent proof and on the best evidence obtainable by the injured party. [54]  In the case
at bar, the funeral expenses were shown by a receipt issued by La Funeraria Oro, Inc.
in the amount P14,500.00.[55] In addition, the prosecution presented receipts issued in
favor of Arsenia Nepomuceno to show the payment of P1,800.00 for the construction of
Feliciano Nepomuceno’s grave [56] and P7,500.00 for the family lot located at the Taytay
Municipal Cemetery.[57] These receipts are sufficient to prove the amount of actual
damages with reasonable certainty.  The heirs of the victim are, therefore, entitled to the
full amount of P23,800.00 as actual damages representing the expenses sustained by
them for the death of Feliciano Nepomuceno.
As regards the victim’s loss of earning capacity, the only evidence offered by the
prosecution is the widow’s testimony that, at the time of his death, Feliciano
Nepomuceno was earningP1,800.00 a month.  Awards for the loss of earning capacity
partake of the nature of damages and must thus be proved not only by credible and
satisfactory evidence but also by unbiased proof. [58]  In the case at bar, we find the
testimony by the widow Arsenia Nepomuceno to be self-serving and insufficient to
justify an award of unearned income to her.
WHEREFORE, the decision of the Regional Trial Court, Branch 74, Antipolo, Rizal
is AFFIRMED with the MODIFICATION that, in addition to the award of P50,000.00 as
civil indemnity, accused-appellant is ordered to pay to the heirs of the victim Feliciano
Nepomuceno the amount of P23,800.00 as actual damages for the expenses incurred
by them as a result of the victim’s death.  The decision of the trial court is final as to
Armando Andres who did not appeal therefrom.
SO ORDERED.

G.R. No. 85215 July 7, 1989

THE PEOPLE OF THE PHILIPPINES, petitioner, 

vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial
Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

 
NARVASA, J.:

What has given rise to the controversy at bar is the equation by the respondent Judge of the right of
an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III
of the Constitution, with the right of any person "under investigation for the commission of an offense
. . . to remain silent and to counsel, and to be informed of such right," granted by the same provision.
The relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned
at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the
sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the
matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct
and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines
Employees' Association (PALEA) to which Ramos pertained.  2

On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten
notes 3 reading as follows:

2-8-86

TO WHOM IT MAY CONCERN:

THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE

IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000
(APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR
BEFORE 1700/9 FEB 86.

(s)
Felipe
Ramos

(Printed
) F.
Ramos

At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City,
Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of
the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in
writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the
tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that
although he had planned on paying back the money, he had been prevented from doing so,
"perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x
x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he
desired the next investigation to be at the same place, "Baguio CTO," and that he should be
represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his
statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the parties
at all; but it would seem that no compromise agreement was reached much less consummated.

About two (2) months later, an information was filed against Felipe Ramos charging him with the
crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January
29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) —
 .. with unfaithfulness and/or abuse of confidence, did then and there willfully ...
defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit:
said accused ... having been entrusted with and received in trust fare tickets of
passengers for one-way trip and round-trip in the total amount of P76,700.65, with
the express obligation to remit all the proceeds of the sale, account for it and/or to
return those unsold, ... once in possession thereof and instead of complying with his
obligation, with intent to defraud, did then and there ... misappropriate, misapply and
convert the value of the tickets in the sum of P76,700.65 and in spite of repeated
demands, ... failed and refused to make good his obligation, to the damage and
prejudice of the offended party .. .

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter
ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and
supervision of the Fiscal.

At the close of the people's case, the private prosecutors made a written offer of evidence dated
June 21, 1988, 6which included "the (above mentioned) statement of accused Felipe J. Ramos taken on
February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his
"handwritten admission x x given on February 8, 1986," also above referred to, which had been marked
as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence."  7 Particularly as

regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession,
was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same
reasons interposed under Exhibits 'A' and 'J.'

By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony
of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A
and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the
statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an
investigation conducted by the Branch Manager x x since it does not appear that the accused was
reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the
same and gave his statement, it was with the assistance actually of a counsel." He also declared
inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February
8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the
accused was assisted by counsel when he made said admission."

The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September
14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v.
Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison,  142 SCRA
219, and People v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations
the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of
counsel," and the explicit precept in the present Constitution that the rights in custodial investigation
"cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation
of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the
proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional
provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative
in character could not operate to except the case "from the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for
certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the
People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson
and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY
RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial
and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of
any order, decision or judgment in the aforesaid case or on any matter in relation to the same case,
now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court
also subsequently required the Solicitor General to comment on the petition. The comments of
Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has
made common cause with the petitioner and prays "that the petition be given due course and
thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to
admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever
impropriety might have attended the institution of the instant action in the name of the People of the
Philippines by lawyers de parte of the offended party in the criminal action in question.

The Court deems that there has been full ventilation of the issue — of whether or not it was grave
abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now
proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent
Judge has given a construction that is disputed by the People. The section reads as follows:

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

It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section,
namely:

1) the right against self-incrimination — i.e., the right of a person not to be compelled
to be a witness against himself — set out in the first sentence, which is a verbatim
reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that
accorded by the Fifth Amendment of the American Constitution, 12 and

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

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

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution,
is accorded to every person who gives evidence, whether voluntarily or under compulsion of
subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to
be a witness against himself"

The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to
answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether
he be a party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer
to which has a tendency to incriminate him for some crime. However, the right can be claimed only when
the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any
other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the
court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey
it, appear as required, take the stand, be sworn and answer questions. It is only when a particular
question is addressed to him, the answer to which may incriminate him for some offense, that he may
refuse to answer on the strength of the constitutional guaranty.

That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge,
or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a
witness of his right against self-incrimination. It is a right that a witness knows or should know, in
accordance with the well known axiom that every one is presumed to know the law, that ignorance of
the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness
can be expected to know in advance the character or effect of a question to be put to the latter. 17

The right against self-incrimination is not self- executing or automatically operational. It must be
claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It
follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the
appropriate time. 18

Rights in Custodial Interrogation

Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of
rights. These rights apply to persons "under investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities; and this is what makes these rights different
from that embodied in the first sentence, that against self-incrimination which, as aforestated,
indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.

This provision granting explicit rights to persons under investigation for an offense was not in the
1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v.
Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20

Section 20 states that whenever any person is "under investigation for the commission of an
offense"--

1) he shall have the right to remain silent and to counsel, and to be informed of such
right, 21

2) nor force, violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him; 22 and

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

evidence. 23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in
police custody, "in-custody interrogation" being regarded as the commencement of an adversary
proceeding against the suspect.24

He must be warned prior to any questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity afforded him, the individual may knowingly
and intelligently waive these rights and agree to answer or make a statement. But unless and until
such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained
as a result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated

atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is
meant "questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has also
been more precisely described by this Court." 28

.. . After a person is arrested and his custodial investigation begins a confrontation

arises which at best may be tanned unequal. The detainee is brought to an army
camp or police headquarters and there questioned and "cross-examined" not only by
one but as many investigators as may be necessary to break down his morale. He
finds himself in strange and unfamiliar surroundings, and every person he meets he
considers hostile to him. The investigators are well-trained and seasoned in their
work. They employ all the methods and means that experience and study have
taught them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights. And even if
they were, the intimidating and coercive presence of the officers of the law in such an
atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to
remedy this imbalance.

Not every statement made to the police by a person involved in some crime is within the scope of
the constitutional protection. If not made "under custodial interrogation," or "under investigation for
the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person
went to a police precinct and before any sort of investigation could be initiated, declared that he was
giving himself up for the killing of an old woman because she was threatening to kill him by barang, or
witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional
procedure on custodial interrogation not being exigible under the circumstances.

Rights of Defendant in Criminal Case

As Regards Giving of Testimony

It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-
incrimination and (2) those during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.

It seems quite evident that a defendant on trial or under preliminary investigation is not under
custodial interrogation. His interrogation by the police, if any there had been would already have
been ended at the time of the filing of the criminal case in court (or the public prosecutors' office).
Hence, with respect to a defendant in a criminal case already pending in court (or the public
prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation"
laid down by the second and subsequent sentences of Section 20, Article IV of the 1973
Constitution, for the obvious reason that he is no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary investigation before the public
prosecutor), in common with all other persons, possesses the right against self- incrimination set out
in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to
answer a specific incriminatory question at the time that it is put to him. 30

Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony
or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness."
Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others-

1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf;
but if he offers himself as a witness he may be cross-examined as any other witness; however, his
neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32

The right of the defendant in a criminal case "to be exempt from being a witness against himself'
signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he
is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other
process or order of the Court. He cannot be required to be a witness either for the prosecution, or for
a co-accused, or even for himself. 33 In other words — unlike an ordinary witness (or a party in a civil
action) who may be compelled to testify by subpoena, having only the right to refuse to answer a
particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to
testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as the
law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be
used against him." 35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does
testify, then he "may be cross- examined as any other witness." He may be cross-examined as to
any matters stated in his direct examination, or connected therewith . 36 He may not on cross-
examination refuse to answer any question on the ground that the answer that he will give, or the
evidence he will produce, would have a tendency to incriminate him for the crime with which he is
charged.

It must however be made clear that if the defendant in a criminal action be asked a question which
might incriminate him, not for the crime with which he is charged, but for some other crime, distinct
from that of which he is accused, he may decline to answer that specific question, on the strength of
the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973
Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for
murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer
any question on the ground that he might be implicated in that crime of murder; but he may decline
to answer any particular question which might implicate him for a different and distinct offense, say,
estafa.

In fine, a person suspected of having committed a crime and subsequently charged with its
commission in court, has the following rights in the matter of his testifying or producing evidence, to
wit:

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

a) to refuse to be a witness;

b) not to have any prejudice whatsoever result to him by such refusal;

c) to testify in his own behalf, subject to cross-examination by the

prosecution;

d) WHILE TESTIFYING, to refuse to answer a specific question

which tends to incriminate him for some crime other than that for
which he is then prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended the nature
and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has
taken them as applying to the same juridical situation, equating one with the other. In so doing, he
has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to
be cogent and logical. The thesis was however so far divorced from the actual and correct state of
the constitutional and legal principles involved as to make application of said thesis to the case
before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders
were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and
set aside.

It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under
custodial interrogation, as the term should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have
had a hand. The constitutional rights of a person under custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the
inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first
day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be
recorded, the record having thereafter been marked during the trial of the criminal action
subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit
K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to
compromise his liability in the alleged irregularities, was a free and even spontaneous act on his
part. They may not be excluded on the ground that the so-called "Miranda rights" had not been
accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of
any person against self-incrimination when the investigation is conducted by the complaining parties,
complaining companies, or complaining employers because being interested parties, unlike the
police agencies who have no propriety or pecuniary interest to protect, they may in their over-
eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give
statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It
suffices to draw attention to the specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer until and unless the employee has
been accorded due process, by which is meant that the latter must be informed of the offenses
ascribed to him and afforded adequate time and opportunity to explain his side. The requirement
entails the making of statements, oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues
and friends. The employee may, of course, refuse to submit any statement at the investigation, that
is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be
absurd to reject his statements, whether at the administrative investigation, or at a subsequent
criminal action brought against him, because he had not been accorded, prior to his making and
presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.)
which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the
employee's statements, whether called "position paper," "answer," etc., are submitted by him
precisely so that they may be admitted and duly considered by the investigating officer or committee,
in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's expressed
apprehensions may be realized, that violence or intimidation, undue pressure or influence be
brought to bear on an employee under investigation — or for that matter, on a person being
interrogated by another whom he has supposedly offended. In such an event, any admission or
confession wrung from the person under interrogation would be inadmissible in evidence, on proof of
the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973
Constitution, but simply on the general, incontestable proposition that involuntary or coerced
statements may not in justice be received against the makers thereof, and really should not be
accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the
respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988,
and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said
Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The
temporary restraining order of October 26, 1988 having become functus officio, is now declared of
no further force and effect.

G.R. No. 112983 March 22, 1995

PEOPLE OF THE PHILIPPINES plaintiff-appellee, 

vs.
HECTOR MAQUEDA @ PUTOL, and RENE SAGVAMAIJTE (at large), Accused, HECTOR
MAQUEDA @ PUTOL, Accused-Appellant.

DAVIDE, JR., J.:

As against a bustling city life, Britisher Horace William Barker, a consultant of the World Bank, and
his Filipino wife, Teresita Mendoza, chose the peace and quiet of a country home not any near the
metropolis of Manila or its environs, but in the rugged and mountainous terrain of Tuba, Benguet.
Perhaps they thought they were in a veritable paradise, beyond the reach of worldly distractions and
trouble when in the early morning of 27 August 91, in the, sanctity of their own home, Horace was
brutally slain and Teresita badly battered with lead pipes on the occasion of a robbery. Sufficient
prima facie evidence pointed to Rene Salvamante, the victims·former houseboy, as one of the
perpetrators of the That illusion was shattered ghastly crime.

As to Rene's co-conspirator, the, prosecution initially included one Richard Malig y Severino in the
information for robbery with homicide and serious physical injuries  1 filed on 19 November 1991 with
Branch 10 of the Regional Trial Court (RTC) of Benguet at La Trinidad, Benguet.

Only Richard Malig was arrested On 22 January 1992, prior to the arraignment of Richard Malig, the
prosecution filed a motion to amend the information 2 to implead as co-accused Hector Maqueda
alias Putol because the evaluation Of the evidence subsequently submitted established his complicity in
the crime, and at the hearing of the motion the following day, the Prosecutor further asked that accused
Richard Malig be dropped from the information because further evaluation of the evidence disclosed no
sufficient evidence against him. 3

The motion to drop Malig was granted and warrants for the arrest of accused Salvamante and
Maqueda were issued. Maqueda was subsequently arrested on 4 March 1992, and on 9 April 1992,
he filed an application for bail.  4 He categorically stated therein that "he is willing and volunteering to be a
State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this
case."

On 22 April 1992, the prosecution filed an Amended Informations  5 with only Salvamante and Maqueda
as the accused. Its accusatory portion reads as follows:

That on or about the 27th Of August, 1991, at Tagadi; Upper Tadiangan Municipality
of Tuba, Province Of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, the, above-named accused, Conspiring, confederating and
mutually aiding one another, armed with lead pipes, and with intent of gain and
against the will and consent of the owners thereof, did then and there willfully,
unlawfully and feloniously enter the house of Spouses TERESITA and WILLIAM
HORACE BARKER and with violence against and intimidation of the persons therein
ransack the place and take and carry away the following articles, to ,it:

[An enumeration and description of the articles follow]

all having a total value of TWO HUNDRED FOUR THOUSAND TWO HUNDRED
FIFTY PESOS (P204.250.00), Philippine Currency, belonging to, the said Teresita
and William Horace Barker; that on the occasion and by reason of the said robbery;
both accused willfully, unlawfully and feloniously repeatedly strike Teresita Barker
and William Horace Barker with lead pipes on the different Parts of their body,
leading to the death of William Horace Barker and inflicting various physical injuries
on the former which required medical attendance for a period of more than thirty (30)
days and have likewise incapacitated her from the performance of her, customary
labor for the same period of time.

Contrary to Law.

Since Rene Salvamante continues to elude arrest and has remained at large, trial proceeded
entered a plea of not guilty on 22 April 1992. 6

In its decision 7 Promulgated on 31 August 1993, the trial Maqueda guilty beyond reasonable doubt of the
crime of robbery with homicide and serious physical Injuries and sentenced him to Suffer the penalty
of reclusion perpetua  and to indemnify the victim, Teresita M, Barker in the amount of P50,000.00 for the
death of William Horace Barker, court found accused Hector P41,681,00 representing actual expenses,
P100,000.00 as moral damages and to pay the costs."

The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker, househelps Norie
Dacara and Julieta Villanueva, Mike Tayaban, Dr. Francisco Hernandez, Jr., Francisco Cabotaje,
prosecutor Daniel Zarate, Ray Dean Salvosa, Glen Enriquez, SPO1 Rodolfo Tabadero, and
Policarpio Cambod in its evidence in chief and Fredesminda Castrence and SP03 Armando Molleno
on rebuttal. Accused Hector Maqueda took the witness stand and presented SPO1 Aurelio Sagun,
Jr. in his evidence in chief and Myrna Maqueda Katindig as his sour-rebuttal witness.
The version of the prosecution, as culled from the trial court's detailed and meticulous summary
thereof, is as follows:

Between 10:30 and 11:00 pm. of 26 August 1991, the spouses Horace William Barker and Teresita
Mendoza Barker repaired to their bedroom after Teresita had checked, as washer wont, the main
doors of their house to see if they had been locked and bolted.

At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a househelp of the Barkers
who shared a room with her cousin and fellow househelp, Julieta Villanueva, got up, opened the
door to the garage, went to the lavatory to wash her face, and proceeded to the toilet. When she
opened the door of the toilet and switched. on the light, she saw Rene Salvamante. She knew
Salvamante very well because he and his sister Melanie were the former househelps of the Barkers
whom she and Julieta Villanueva had replaced and because Salvamante had acquainted her on her
chores.

Salvamante suddenly strangled her. While she Was fighting back, Norie happened to turn her face
and she saw a fair-complexioned, tall man with a high-bridged nose at Salvamante's side, whom she
identified at the trial as Maqueda. After she broke free from Salvamante, Norie fled towards the
garage and shouted for help. Salvamante chased her and pulled her back inside the house.

Julieta Villanueva, who was awakened by the shouts of Norie, got out of her bed and upon opening
the door of her room, saw a man clad in maong jacket and short pants with 'his right hand
brandishing a lead pipe standing two meters in front of her. At the trial, She pointed to, accused
Maqueda as the man she saw then. (She got scared and immediately closed the door. Since the
door knob turned as if someone was forcing his way into the room, she held on to it and shouted for
help.

The shouts awakened Teresita Mendoza Barker. She rose from her bed and went out of the room,
leaving behind her husband who was still asleep; She went down the Stairs and proceeded t, the
dining room. She saw Salvamante and a companion who was a complete stranger to her. Suddenly
the two rushed towards her and beat her up with lead pipes. Despite her pleas to get what they want
and not to hurt her, they continued to beat her up until she lost consciousness. At the trial, she
pointed to accused Maqueda as Salvamante's companion.

Salvamante also hit Norie with the lead pipe on her back and at the·back of her right hand. She fell
to the concrete floor, and after she had recovered, she ran to-the garage and hid under the car. After
a few seconds, ,he went near the door of the garage and because she could not open it, she called
Julieta. Julieta opened the door and they rushed to their room and closed the door. When they saw
that the door knob was being turned, they braced themselves against the door to prevent anyone
from entering. While locked in their room, they heard the moans of Mrs. Barker and the shouts of Mr.
Barker: "That's enough, that's enough, that's enough." When the noise stopped, Norie and Julieta
heard the sound of water flowing from the toilet and the barking of dogs.

At 7:00 a.m. of that same day, 27 August 1991, Mike Tabayan and Mark Pacio were resting in a
waiting shed beside the Asin road at Aguyad, Tuba·, Benguet, which is only a kilometer away from
the house of the Barkers. They saw two men approaching them from a curve. When the two men
reached the shed, he and Mark noticed that the taller of the two had an amputated left hand and a
right hand with a missing thumb and index finger. This man was carrying a black bag on his right
shoulder

Speaking in Tagalog, the taller man asked Mike and Mark whether the road they were following
would lead to Naguilian, La Union. Mike replied that it did not. Five minutes later, a passenger
jeepney bound for Baguio City and owned and driven by Ben Lusnong arrived at the waiting shed.
The two men bearded it, Mike again noticed that the taller man had the defects above mentioned
because the latter used his right hand with only three fingers to hold on to the bar of the jeepney as
he bearded it. In the Investigation conducted by the Tuba Police, he identified through a picture the
shorter man as Salvamante, and at the hearing, he pointed to Maqueda as the taller man.

At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered bough courage to leave the room where
they had earlier barricaded themselves and proceed to the kitchen to get the key to the gate of the
garage. In the dining room, they saw the Barkers bathed in their own blood. Norie and Julieta rushed
out of the house and ran to the place of Janet Albon to seek help. After requesting Janet to call the
police, they returned to the Barker's house but did not enter it for fear of what they had seen earlier.
They just stayed near the road.

Soon after, security guards of the Baguio College Foundation (BCF) arrived. A team from the Baguio
City Police Station, headed by Police Officer Policarpio Cambod, and which included Dr. Perfecto
Micu of the City Health Department, also arrived. The team conducted an initial investigation only
because it found out that the scene of the crime was within the jurisdiction of the Tuba Police
Station, which, however, was difficult to get in touch with at that time. Dr. Perfecto Micu found the
body of Mr. Barker inside the Barker house and Cambod prepared a sketch (Exhibit "JJ") showing its
location.' They went around the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-
shirt (Exhibit "CC"), and a green hand towel (Exhibit "DD"). He also discovered another lead pipe
(Exhibit "BB") at the back of the door of the house. He then interviewed the two househelps who
provided him with descriptions of the assailants. The team then left, leaving behind BCF Security
Officer Glen Enriquez and a security guard. Cambod prepared a report of his initial investigation
(Exhibit "KK").

Enriquez conducted his own investigation. At the master's bedroom, he saw several pieces of
jewelry scattered on the floor and an empty inner cabinet. He noticed footprints at the back of the
house, particularly at the riprap wall, and observed that the grass below it was parted as if someone
had passed through and created a trail amidst the grass down toward the Asin road of Tuba,
Benguet. Upon his request, a security guard of the BCF, Edgar Dalit, was sent to the Barker house
to secure the premises. Enriquez then left after Dalit's arrival.

At 5:00 p.m. of that same day, members of the Tuba Police Station arrived at the·Barker house to
conduct their investigation. Enriquez, who in the meantime was called by Dalit, returned to the
Barker house.

The lead pipes, black T-shirt, and the green hand towel recovered from the Barker house by the
Baguio City Police were first brought to the PNP Crime Laboratory Service at Camp Dangwa, La
Trinidad, Benguet, and then to the court.

The body of William Horace Barker was taken to the Baguio Funeral Homes at Naguilian Road,
Baguio City, where it was examined by Dr. Francisco P. Cabotaje, Municipal·Health Officer of Tuba,
Benguet. H, found in it twenty-seven injuries, which could have been caused by a blunt instrument,
determined the cause of death as hemorrhagic shock, and then issued a death certificate (Exhibits
"P," "O," and "R").

The wounded Teresita Barker was brought to the Baguio General Hospital and Medical Center
where she was treated and confined for eight days. The attending physician, Dr. Francisco L.
Hernandez, Jr., first saw her at around 11:00 a.m. of 27 August 1991. She was in a comatose state.
Dr. Hernandez found that she sustained multiple lacerations primarily an the left side of the occipital
area, bleeding in the left ear, and bruises on the arm. One of the muscles adjoining her eyes was
paralyzed. She regained consciousness only after two days. Dr. Hernandez opined that Mrs.
Barker's injuries were caused by a blunt instrument, like a lead pipe, and concluded that if her
injuries had been left unattended, she would have died by noontime of 27 August 1991 due to
bleeding or hemorrhagic shock.

On 1 September 1991, a police team from the Tuba Police Station, Benguet, came to the hospital
bed of Mrs. Barker, showed her pictures of several persons, and asked her to identify the persons
who had assaulted her. She pointed to a person who turned out to be Richard Malig. When informed
of the investigation, Dr. Hernandez told the members of the team that it was improper for them to
conduct it without first consulting him since Mrs. Barker had not yet fully recovered consciousness.
Moreover, her eyesight had not yet improved, her visual acuity was impaired, and she had double
vision.

On 3 September 1991, the remains of Mr. Barker were cremated. Mrs. Barker was then discharged
from the hospital and upon getting home, tried to determine the items lost during the robbery. She
requested Glen Enriquez to get back the pieces of jewelry taken by the Tuba PNP (Exhibit "U"). The
Tuba PNP gave them to Enriquez (Exhibit "V"). Mrs. Barker discovered that her Canon camera,
radio cassette recorder (Exhibit "W-3"), and some pieces of jewelry (Exhibit "W-2") were missing.
The aggregate value of the missing items was P204,250.00. She then executed an affidavit on these
missing items (Exhibit "X.).

Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City. It was revealed that she
sustained a damaged artery on her left eye which could cause blindness. she then sought treatment
at the St. Luke's Roosevelt Hospital in New York (Exhibit "L") where she underwent an unsuccessful
operation. She likewise received treatment at the New York Medical Center (Exhibit "M").

On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the BCF, ordered Glen
Enriquez to go to Guinyangan, Quezon, to coordinate with the police in determining the,
whereabouts of accused Rene Salvamante. In Guinyangan, Enriquez was able to obtain information
from the barangay captain, Basilio Requeron, that he saw Salvamante together with a certain "Putol"
in September 1991; however, they already left the place.

On 21 December 1991, Enriquez, Melanie Mendoza, and three others went back to Guinyangan to
find out whether Salvamante and "Putol" had returned. Upon being informed by Barangay Captain
Requeron that the two had not, Enriquez requested Requeron to notify him immediately once
Salvamante or "Putol" returned to Guinyangan,

On 4 March 1992, Requeron's daughter called up Enriquez to inform him that Putol," who is none
other than accused Hector Maqueda, had been arrested in Guinyangan. Enriquez and Maj. Rodolfo
Anagaran, Chief of the Tuba Police Station, together with another policeman, Proceeded to
Guinyangan. The Guinyangan Police Station turned over Maqueda to Maj. Anagaran who then
brought Maqueda to the Benguet Provincial Jail.

Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken to the. headquarters of the
235th PNP Mobile Force Company at Sta. Maria, Calauag, Quezon. Its commanding officer, Maj.
Virgilio F. Rendon, directed SP03 Armando Molleno to get Maqueda's statement. He did so and
according to him, he informed Maqueda of his rights under the Constitution. Maqueda thereafter
signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation in the crime at
the Barker house on 27 August 1991.

On 9 April 1992, while he was under detention, Maqueda filed a Motion to Grant Bail (Exhibit "GG-
6"). He stated therein that "he is willing and volunteering·to be a State witness in the above entitled
case, it appearing that he is the least guilty among the accused in this case." Prosecutor Zarate then
had a talk with Maqueda regarding such statement and asked him if he was in the company of
Salvamante on 27 August 1991 in entering the house of the Barkers. After he received an affirmative
answer, Prosecutor Zarate told Maqueda that he would oppose the motion for bail since he,
Maqueda, was the only accused on trial (Exhibit "II").

In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and obtained
permission from the latter to talk to Maqueda. Salvosa then led Maqueda toward the balcony.
Maqueda narrated to Salvosa that Salvamante brought him to Baguio City in order to find a job as a
peanut vendor; Salvamante then brought him to the Barker house and it was only when they were at
the vicinity thereof that Salvamante revealed to him that his zeal purpose in going to Baguio City was
to rob the Barkers; he initially objected to the plan, but later on agreed to it; when they were in the
kitchen of the Barker house, one of the househelps was already there; Salvamante hit her with a
lead pipe and she screamed; then Mrs. Barker came down, forcing him, Maqueda, to attack her with
the lead pipe provided·him by Salvamante, After he felled Mrs. Barker, he helped Salvamante in
beating up Mr. Barker who had followed his wife downstairs. the Barkers were already unconscious
on the' floor, Salvamante went upstairs and a few minutes later came down bringing with him a radio
cassette and some pieces of jewelry.

Maqueda further divulged to Salvosa that they then changed clothes, went out of the house, walked
toward the road where they Saw two persons from whom they asked directions, and when a
passenger jeepney stopped and they were informed by the two Persons that it was bound for Baguio
City, he and Salvamante bearded it. They alighted somewhere along Albano Street in Baguio City
and walked until they reached the Philippine Rabbit Bus station where they boarded a bus for
Manila. 8

Accused Hector Maqueda put up the defense of denial and alibi. Hi, testimony is summarized by the
trial court in this wise:

Accused Hector Maqueda denied having anything to do with the crime. He stated
that O" August 27, 1991 he was at the polvoron factory owned by Minda Castrense
located at Lot 1, Block 21 Posadas Bayview Subdivision, Sukat, Muntinlupa, Metro
Manila. He was employed as a caretaker Since July 5, 1991 and he worked
continuously there up to August 27, 1991, It was his sister, Myrna Katindig, who
found him the job as caretaker. A, caretaker, it was his duty to supervise the
employees in the factory and whenever his employer was not around, he was in
charge of the sales. He and his 8 co-employees all Sleep inside the factory.

On August 26, 1991, he reported for work although he could not recall what he did
that day. He slept inside the factory that night and on August 27, 1991, he was
teaching the new employees how to make the seasoning for the polvoron.

On December 20, 1991, he went home to Gapas, Guinyangan, Quezon Province as

it was his vacation time from his job at the polvoron factory. He was to be back at
work after New Year's Day in 1992. Upon alighting from the bus at Guinyangan,
Quezon, he saw accused Rene Salvamante. He knows accused Salvamante as they
were childhood playmates, having gone to the same elementary school. He had no
chance to talk to him that day when he saw him and so they just waved to each
other. He again saw accused Salvamante after Christmas day on the road beside
their (Salvamante) house. Salvamante invited him to go to Calauag, Quezon
Province and roam around. He agreed to go as he also wanted to visit his brother,
Jose Maqueda who resided at Sabangdos, Calauag, Quezon. When the two accused
 were at Calauag, Salvamante asked Maqueda to accompany him /Salvamante) in
selling a cassette recorder which he said came from Baguio City. Accused Maqueda
knew that Salvamante worked in Baguio as the latter's mother told him about it. They
were able to sell the cassette recorder to Salvamante's aunt. They had their meal
and then went to visit accused Maqueda's brother. After that occasion, he never saw
accused Salvamante again. After his Christmas vacation, he went back to work a the
polvoron factory until February 29, 1992. One of his co-workers Roselyn Merca, who
was a townmate of his asked him to accompany her home as she was hard up in her
work at the factory. Hence, he accompanied Rosely home to Guinyangan, Quezon.
He was supposed to report back for work on March 2, 1992 but he was not able to as
he was arrested by members of the CAGFU at the house of Roselyn Merca when he
brought her home. He was then brought to the Guinyangan municipal jail, then to the
Tuba Police Station, Tuba, Benguet. There he was told to cooperate with the police
in arresting Salvamante so he would not stay long in the Province of Benguet. He
was also told that if he would point to accused Salvamante, he would be freed and
he could also become a state witness: He told them that he could attest to the fact
that he accompanied accused Salvamante in selling the cassette recorder.

On March 5, 1992, he was brought to the Benguet Provincial Jail at La Trinidad,

Benguet where he has remained under detention up to the present.  9

The prosecution rebutted the testimony of Hector Maqueda by presenting Fredesminda Castience
and SP03 Armando Molleno. Castrence, the owner of the polvoron factory where Maqueda worked,
·testified that she started her business only on 30 August 1991 and thus it was impossible for her to
have hired Maqueda on 5 July 1991. SP03 Molleno declared that he informed Maqueda of his
constitutional rights before Maqueda was investigated and that Maqueda voluntarily and freely gave
his Sinumpaang Salaysay (Exhibit "LL"). 10

Although the trial court had doubts on the identification of Maqueda by prosecution witnesses
Teresita Mendoza Barker, Norie Dacara, and Julieta Villanueva and thus disregarded their
testimonies on this matter, it decreed a conviction "based on the confession and the proof of corpus
delicti" as well as on circumstantial evidence. It stated thus:

Since we have discarded the positive identification theory of the prosecution

pinpointing accused Maqueda as the culprit, can we still secure a conviction based
on the confession and the proof of corpus delicti as well as on circumstantial
evidence?

In order to establish the guilt of the accused through circumstantia1 evidence, the
following requisites must be present: 1) there must be 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 a conviction beyond reasonable doubt
(People vs. Pajarit, G.R. No. 82770, October 19, 1992, 214 SCRA 678). There must
be an unbroken chain of circamstances which leads to one fair and reasonable
conclusion pointing to the defendant to the exclusion of all Others, as the author of
the crime (People vs. Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569).

The circumstances shown by the prosecution which tend to show the guilt of the
accused are:

1. A physical demonstration to which the accused and his counsel did not offer any
objection shows that despite his being handicapped, accused Maqueda could well
 and easily grip a lead pipe and strike a cement post with such force that it produced
a resounding vibration. It is not farfetched then to conclude that accused Maqueda
could have easily beat Mr. Barker to death.

2. His presence within the vicinity of the crime scene right after the incident in the
company of accused Salvamante was testified to by Mike Tabayan, the only
prosecution witness who noticed the defective hands of the accused. As they had to
ask for directions from the witness in the Tagalog dialect shows that they were
strangers to the place

3. Accused Maqueda knows or is familiar with accused Rene Salvamante as they

from the same town. By his own testimony, accused Maqueda has established that
he Salvamante are close friends to the point that they went out together during the
Christmas vacation in 1991 and he even accompanied Salvamante in selling the
black radio cassette recorder.

4. His Motion to Grant Bail (Exhibit "HH") contains this statement that he is willing
and volunteering to be State witness in the above-entitled case, it the accused in
appearing that he is the least guilty along This in effect, supports his extrajudicial
confession trade to the police at Although he claims that he did not his signature
would lean his as he was just told that release from detention, this is a flimsy excuse
which cannot Had he not understood what the motion meant, he could have easily
asked his sister and brother-in-law what it meant seeing that their signatures up
already affixed on the motion.

5. This time, his admission to Prosecutor Zarate that he was at the Barker house that
fateful morning and his even more damaging admission to Ray Dean Salvosa as to
what he actually did can be considered as another circumstance to already bloster
the increasing circumstances against the accused.

6. The accused's defense is alibi. As stated in a long Line of cases, alibi is at best a
weak defense and easy of fabrication (People vs. Martinado, G.R. No. 92020,
October 19, 1992, 214 SCRA 712). For alibi to be given credence, it must not only
appear that the accused interposing the same was at some other place but also that
it was physically impossible for him to be at the scene of the crime at the time of its
commission (People vs. Pugal, G.R. No. 90637, October 29, 1992, 215 SCRA 247).
This defense easily crumbles down as Tayaban placed accused Maqueda at vicinity
of the crime scene.

The combination of all these circumstances plus extrajudicial confession produce the
needed proof beyond reasonable doubt that indeed accused Maqueda is guilty of the
crime. 11

The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit: "LL") of Maqueda

taken by SP02 Molleno immediately after Maqueda was arrested.

Maqueda seasonably appealed to us his conviction. In his 14-page brief, he pleads that we acquit
him because the trial court committed this lone error:

. . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE

DOUBT OF THE CRIME CHARGED. 12
Only three pages of the brief, typed double space, are devoted to his arguments which are anchored
on his alibi that at the time the crime Was committed he was not in Benguet but in Sukat,
Muntinlupa, Metro Manila, ad the failure of the star witnesses for the Prosecution to identify him. He
alleges that Mrs. Barker, when investigated at the hospital, Pointed to Richard Malig as the
companion of Rene Salvamante, and that when initially investigated, the two housemaids gave a
description of Salvamante's companion that fitted Richard Malig.

We find no merit in this appeal. As hereinafter shown, the defense of alibi is unconvincing.

The accused's arguments which stress the incredibility of the testimonies of Mrs. Barker and the
househelps identifying Maqueda are misdirected and misplaced because the trial court had ruled
that Mrs. Teresita Mendoza Barker and the two housemaids, Norie Dacara and Julieta Villanueva,
were not able to positively identify Magueda, The trial court based his conviction on his extrajudicial
confession and the proof of corpus delicti, as well as on circumstantial evidence. He should have
focused his attention and arguments on these.

From its ratiocinations, the trial court made a distinction between an extrajudicial confession —
the Sinumpaang Salaysay — and an extrajudicial admission — the, verbal admissions to Prosecutor
Zarate and Ray Dean Salvosa. A perusal of the Sinumpaang Salaysay fails to convince us that it is
an extrajudicial confession. It is only an extrajudicial admission. There is a distinction between. the
former and the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules of Court which
read as follows:

Sec. 26. Admission of a party. — The act, declaration or omission of party as to a

relevant fact may be given in evidence against him.

xxx xxx xxx

Sec. 33. Confession. — The declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein, may be given in
evidence against him.

In a confession, there is an acknowledgment of guilt. The term admission is usually applied in

criminal cases to statements of fact by the accused which do not directly involve an acknowledgment
of his guilt or of the criminal intent to commit the offense with which he is charged. 13 Wharton
distinguishes a confession from an admission as follows:

A confession is an acknowledgment in express terms, by a party in a criminal case,

of his guilt of the crime charged, while an admission is a statement by the accused,
direct or implied, of facts pertinent to the issue and tending, in connection with proof
of other facts, to prove his guilt. In other words, an admission is something less than
a confession, and is but an acknowledgment of some fact or circumstance which in
itself is insufficient to authorize a conviction and which tends only to establish the
ultimate fact of guilt. 14

And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient
for conviction unless corroborated by evidence of corpus delicti.

The trial court admitted the Sinumpaang Salaysay of accused Maqueda although it was taken
without the assistance of counsel because it was of the opinion that since an information had already
benefited in court against him and he was arrested pursuant to a warrant of arrest issued by the
court, the Sinumpaang Salaysay was not, therefore, taken during custodial investigation. Hence,
Section 12(1), Article III of the Constitution providing as follows:

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.

is not applicable, 15 i.e., the police investigation was " no longer within the ambit of a custodial
investigation." It heavily relied on People vs. Ayson  16 where this Court elucidated on the rights of a
person under custodial investigation and the rights of an accused after a case is filed in court. The trial
court went on to state:

At the time of the confession, the accused was already facing charges in court. He
no longer had the right to remain silent and to counsel but he had the right to refuse
to be a witness and not to have any prejudice whatsoever result to him by such
refusal. And yet, despite his knowing fully well that a case had already been filed in
court, he still confessed when he did not have to do so. 17

The trial court then held that the admissibility of the Sinumpaang Salaysay should not be tested
under the aforequoted Section 12(1), Article III of the Constitution, but on the voluntariness of its
execution. Since voluntariness is presumed, Maqueda had the burden of proving otherwise, which
he failed to do and, hence, theSinumpaang Salaysay was admissible against him.

As to the admissions made by Maqueda to Prosecutor Zarate and Ray Dean Salvosa, the trial court
admitted their testimony thereon only to prove the tenor of their conversation but not to prove the
truth of the admission because such testimony was objected to as hearsay. It said:

In any case, it is settled that when testimony is presented to establish not the truth
but the tenor of the statement or the fact that such statement was made, it is not
hearsay (People vs. Fule, G.R. No. 83027, February 28, 1992, 206 SCRA 652). 18

While we commend the efforts of the trial court to distinguish between the rights of a person under
Section 12(1), Article III of the Constitution and his rights after a criminal complaint or information
had been filed against him, we cannot agree with its sweeping view that after such filing an accused
"no longer Has] the right to remain silent End to counsel but he [has] the right to refuge to be a
witness and not to have any prejudice whatsoever result to him by such refusal." If this were so, then
there would be a hiatus in the criminal justice process where an accused is deprived of his
constitutional rights to remain silent and to counsel and to be informed of such rights. Such a view
would not only give a very restrictive application to Section 12(1); it would also diminish the said
accused's rights under Section 14(2) Article III of the Constitution,

The exercise of the rights to remain silent and to counsel and to be informed thereof under Section
12(1), Article III of the Constitution are not confined to that period prior to the filing of a criminal
complaint or information but are available at that stage when a person is "under investigation for the
commission of an offense." The direct and primary source of this Section 12(1) is the second
paragraph of Section 20, Article II of the 1973 Constitution which reads:

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 . . .
The first sentence to which it immediately follows refers to the right against self-incrimination
reading:

No person shall be compelled to be a witness against himself.

which is now Section 17, Article III of the 1987 Constitution. The incorporation of the second
paragraph of Section 20 in the Bill of Rights of the 1973 constitution was an acceptance of the
landmark doctrine laid down by the united States Supreme Court in Miranda vs. Arizona. 19 In that
case, the Court explicitly stated that the holding therein "is not an innovation in our jurisprudence, but is
an application of principles long recognized and applied in other settings." It went on to state its ruling:

Our holding will be spelled out with some specificity in the pages which follow but
briefly stated, it is this: the prosecution may not use statements, whether exculpatory
or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. By custodial interrogation, we mean questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. As for the procedural
safeguards to be employed, unless other fully effective means are devised to inform
accused persons of their right of silence and to assure a continuous opportunity to
exercise it, the following measures are required. Prior to any questioning the person
must be warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the presence
of an attorney, either retained or appointed. The defendant may waive effectuation of
these rights, provided the waiver is made voluntarily, knowingly and intelligently. If,
however, he indicates in any manner and at any stage of the process that he wishes
to consult with an attorney before speaking there can be no questioning. Likewise, if
the individual is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that he may have
answered some question or volunteered some statements on his own does not
deprive him of the right to refrain from answering any further inquiries until he has
consulted with an attorney and thereafter consents to a questioned. 20

It may be pointed out though that as formulated in the second paragraph of the aforementioned
Section 20, the word custudial, which was used in Miranda with reference to the investigation, was
excluded. In view thereof, inGalman vs. Pamaran, 21 this Court aptly observed:

The fact that the framers of our Constitution did not choose to use the term
"custodial" by having it inserted between the words "under" and "investigation," as in
fact the sentence opens with the phrase "any person" goes to prove that they did not
adopt in toto the entire fabric of the Miranda doctrine.

Clearly then, the second paragraph of Section 20 has even broadened the application of Miranda by
making it applicable to the investigation for the commission of an offense of a person and in
custody. 22 Accordingly, as so formulated, the second paragraph of Section 20 changed the rule adopted
in People vs. Jose  23 that the rights of the accused only begin upon arraignment, Applying the second
paragraph of Section 20, this Court laid down this rule in Morales vs, Enrile: 24

7. At the time a person is arrested, it shall be the duty of the arresting officer to
inform him of the reason for the arrest and he must be shown the warrant of arrest, if
any. He shall be informed of his constitutional rights to remain silent and to counsel,
and that any statement he might make could be used against him. The person
 arrested shall have the right to communicate with his lawyer, a relative, or anyone he
chooses by the most expedient means — by telephone if possible — or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it be in the
presence of counsel engaged by the person arrested, by any person on his behalf, or
appointed by the court upon petition either of the detainee himself or by anyone on
his behalf. The right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel. Any statement obtained in violation of
the procedure herein laid down, whether exculpatory or inculpatory, in whole or in
part, shall be inadmissible in evidence.

Note that the first sentence requires the arresting officer to inform the person to be arrested of the
reason for the arrest and show him "the warrant of arrest, if any." The underscored phrase simply
means that a case had been filed against him in a court of either preliminary or original jurisdiction
and that the court had issued the corresponding warrant of arrest. From the foregoing, it is clear that
the right to remain silent and to counsel and to be informed thereof under the second paragraph of
Section 20 are available to a person at any time before arraignment whenever he is investigated for
the commission of an offense. This paragraph was incorporated into Section 12(1), Article III of the
present Constitution with the following additional safeguards: (a) the counsel must be competent and
independent, preferably of his own choice, (b) if the party cannot afford the services of such counsel,
he must be provided with one, and (c) the rights therein cannot be waived except in writing and in
the presence of counsel.

Then, too, the right to be heard would be a farce if it did not include the right to counsel. 25 Thus,
Section 12(2), Article III of the present Constitution provides that in all criminal prosecutions the accused
shall enjoy the right to be heard by himself and counsel." In People vs. Holgado, 26 this Court emphatically
declared:

One of the great principles of justice guaranteed by our Constitution is that "no
person shall be-held to answer for a criminal offense without due process of law",
and that all accused "shall enjoy the right to be heard by himself and counsel." In
criminal cases there can be no fair hearing unless the accused be given an
opportunity to be heard by counsel. The right to be heard would be of little avail if it
does not include the right to be heard by counsel. Even the most intelligent or
educated man may have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not because he is guilty but
because he does not know how to establish his innocence. And this can happen
more easily to persons who are ignorant or uneducated. It is for this reason that the
right to be assisted by counsel is deemed so important that it has become a
constitutional right and it is so implemented that under our rules of procedure it is not
enough for the Court to apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney, but it is essential that
the court should assign one de officio for him if he so desires and he is poor or grant
him a reasonable time to procure an attorney of his own.

It was, therefore, wrong for the trial court to hold that Section 12(1), Article III of the Constitution is
strictly limited to custodial investigation and that it does not apply to a person against whom a
criminal complaint or information has already been filed because after its filing he loses his right to
remain silent and to counsel. If we follow the theory of the trial court, then police authorities and
other law enforcement agencies would have a heyday in extracting confessions or admissions from
accused persons after they had been arrested but before they are arraigned because at such stage
the accused persons are supposedly not entitled to the enjoyment of the rights to remain silent and
to counsel.
Once a criminal complaint or information is filed in court and the accused is thereafter arrested by
virtue of a warrant of arrest, he must be delivered to the nearest police station or jail and the
arresting officer must make a return of the warrant to the issuing judge, 27 and since the court has
already acquired jurisdiction over his person, it would be improper for any public officer Or law
enforcement agency to investigate him in connection with the commission of the offense for which he is
charged. If, nevertheless, he is subjected to such' investigation, then Section 12(1), Article III of the
Constitution and the jurisprudence thereon must be faithfully complied with.

The Sinumpaang Salaysay of Maqueda taken by SP02 Molleno after the former's arrest was taken
in palpable violation of his rights under Section 12(1), Article III of the Constitution. As disclosed by a
reading thereof, Maqueda was not even told of any of his constitutional rights under the said section.
The statement was also taken in the absence of counsel. Such uncounselled Sinumpaang
Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of the Constitution
which reads:

(3) Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadmissible in evidence against him.

However, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa
stand on a different footing. These are not governed by the exclusionary rules under the Bill of
Rights.. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an
investigation, but in connection with Maqueda's plea to be utilized as a state witness; and as to the
other admission, it was given to a private person. The provisions of the Bill of Rights are primarily
limitations on government, declaring the rights that exist without governmental grant, that may not be
taken away by government and that government has the duty to protect; 28or restriction on the power
of government found "not in the particular specific types of action prohibited, but in the general principle
that keeps alive in the public mind the doctrine that governmental power is not unlimited.  29 They are the
fundamental safeguards against aggressions of arbitrary power, 30 or state tyranny and abuse of authority.
In laying down the principles of the government and fundamental liberties of the people, the Constitution
did not govern the relationships between individuals. 31

Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in
evidence against the former Under Section 26, Rule 130 of the Rules of Court. In Aballe vs;
People, 32 this Court held that the declaration of an accused expressly acknowledging his guilt of the
offense may be given in evidence against him and any person, otherwise competent to testify as a
witness, who heard the confession, is competent to testify as to the substance of what he heard if he
heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he
gives its substance. By analogy, that rule applies to oral extrajudicial admissions.

To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he
explicitly .stated that "he is willing and volunteering to be a state witness in the above entitled case, it
appearing that he is the least guilty among the accused in this case."

In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his willingness to be a
state witness, Maqueda's participation in the commission of the crime charged was established
beyond moral certainty. His defense of alibi was futile because by his own admission he was not
only at the scene of the crime at the time of its commission, he also admitted his participation
therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt
was, as correctly ruled by the trial court, established beyond doubt by circumstantial evidence. The
following circumstances were duly proved in this case:

(1) He and a companion were seen a kilometer away from the Barker house an hour
after the crime in question was committed there;
 (2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker,
Norie Dacara, and Julieta Villanueva as one of two persons who committed the
crime;

(3) He and co-accused Rene Salvamante are friends;

(4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left
the place sometime in September 1991;

(5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and

(6) He freely and voluntarily offered to be a state witness stating that "he is the least
guilty."

Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for
conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are 
proven; and

(c) the combination of all the circumstances is such as to produce a conviction

beyond reasonable doubt.

Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can

be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and
reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty
person, i.e. the circumstances proved must be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis
except that of guilty. 33 We do not hesitate to rule that all the requisites of Section 2, Rule 133 of the
Rules of Court are present in this case.

This conclusion having been reached, the defense of alibi put up by the appellant must fail. The trial
court correctly rejected such defense. The rule is settled that for the defense of alibi to prosper, the
requirements of time and place must be strictly met. It is not enough to prove that the accused was
somewhere else when the crime was committed, he must demonstrate that it was physically
impossible for him to have been at the scene of the crime at the time of its commission. 34 Through
the unrebutted testimony of Mike Tayaban, which Maqueda does not controvert in his brief, it was
positively established that Maqueda and a companion were seen at 7:00 a.m. of 27 August 1991 at the
waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer away from the house of the Barkers. It
was not then impossible for Maqueda and his companion to have been at the Barker house at the time
the crime was committed. Moreover, Fredisminda Castrence categorically declared that Maqueda started
working in her polvoron factory in Sukat only on 7 October 1991, thereby belying his, testimony that he
started working on 5 July 1991 and continuously until 27 August 1991.

WHEREFORE, in of the foregoing, the instant appeal is DISMISSED and the appealed decision Of
Branch 10 of the Regional Trial Court Of Benguet in Criminal Case, No.91-CR-1206 is AFFIRMED in
toto.

Costs against accused-appellant HECTOR MAQUEDA @ PUTOL.

SO ORDERED,

G.R. No. 95604 April 29, 1994

LUCIANO KIMPO y NIÑANUEVO, petitioner, 

vs.
THE SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, respondents.

Augusto S. Sanchez & Associates Law Firm for petitioner.

The Solicitor General for the People of the Philippines.

VITUG, J.:

Petitioner Luciano Kimpo y Niñanuevo, a Special Collecting Officer of the Bureau of Domestic Trade
at General Santos City, was found guilty beyond reasonable doubt by the Sandiganbayan of
malversation of public funds. He appealed to this Court.

The case was initiated by Special Prosecution Officer Mothalib C. Onos who, on 29 March 1989,
filed with the Sandiganbayan an information charging petitioner with having committed the following
offense:

That on or about April 30, 1985 and/or sometime prior thereto, in General Santos
city, and within the jurisdiction of this Honorable Court, accused Luciano Kimpo, a
public officer, being the Special Collecting Officer, Bureau of Domestic Trade,
General Santos City, and as such is an accountable officer responsible for the funds
collected by him by reason of the duties of his office, did then and there wilfully,
unlawfully and feloniously, with grave abuse of confidence, appropriate, embezzle
and convert to his personal use and benefit the sum of Fifteen Thousand Three
Hundred Nine Pesos (P15,309.00), which amount constitutes his collection, to the
damage and prejudice of the Government in the aforesaid amount.

Contrary to law.

When arraigned, petitioner, assisted by counsel, 1 pleaded, "not guilty."

At the pre-trial inquest conducted by the Sandiganbayan, the following exhibits were admitted:

1. Exhibits A and A-1, as well as the fact that they are faithful reproductions of the
originals. In connection therewith, the accused admitted that he was on or before
April 30, 1985, Special Collecting Officer, Bureau of Trade, General Santos City;

2. That an audit-examination of the cash and accounts of the accused was

conducted on April 30, 1985; that the corresponding Report of Examination (Exhibit
B), Statement of Accountability for Accountable Forms without Money Value (Exhibit
B-1), and Reconciliation Statement of Accountability (Exhibit B-3) were made and
signed, and that the signatures appearing on the dorsal side of Exhibits B and B-1
are those of the accused, all these admissions being subject to the qualification that
 the accused is questioning the validity of the audit examination and the accuracy of
the results thereof on constitutional grounds;

3. The existence of Exhibits C, E, F, M and M-1, including the fact that they are
faithful copies of the originals, subject to the same qualification made with respect to
Exhibits B, B-1 and B-2;

4. The existence of Exhibits D and D-1, including the fact that they are correct copies
of the originals, but not their relevance;

5. Exhibit H as the Official Cash Book of the accused and his signatures appearing
between the entries therein beginning August 1, 1984 and up to April 31, 1985, with
the qualification that the said entries were not made by him;

6. The existence of Exhibits I, I-1 to I- 40, J, J-1 to J-95, K, 

K-1 to K-26, and L, L-1 to L-44 (carbon copies of official receipts) and his signatures
thereon, subject to the qualification that the entries therein were not made by him;

7. Exhibit N, subject to the qualification that the data mentioned therein were based
on the results of the audit examination, the validity and accuracy of which are
questioned;

8. Exhibits A 1-1, N 2-2, T 2-1, L 3-1, F 4-2, A 5, L 7, N 7-1, U 7-2, B 8-1, C 8, D 8, E 8, G 8, G 8, H 8,
M 8-2, Y8-2 AND Y 8-2 AND Y 8-3 (xerox copies of official receipts), including the fact that
they are faithful reproductions of the originals;

9. Exhibits J 8 to O 8, as well as the signatures appearing on the last page of each exhibit
and the fact that they are true copies of the originals.

The testimonial evidence consisted of the testimonies of Lydia Mendoza, State Audit Examiner of
the Commission on Audit, for the prosecution, and of Milda de la Peña, Trade and Industry Analyst
of the Department of Trade and Industry at its South Cotabato Provincial Office, as well as that of
petitioner Kimpo himself, for the defense.

From all the evidence adduced, the Sandiganbayan concluded, thus:

Accused herein having admitted his public position as alleged in the information and
the existence of a shortage of P15,309.00 upon audit examination of his
accountabilities, then what remains to be resolved only is whether any criminal
liability is attributable to him by reason of such shortage. As can be deduced from the
defense evidence, testimonial and documentary, accused lays the blame for the
shortage on one Yvette Samaranos, whom he admitted to have been retained by him
as his unofficial clerk/collector in his office and who attended to the receipt of
payments for the registration of business names and issuance of certifications and
official receipts for such payments, including penalties, and fees for repair shop
establishments. While the certifications and official receipts were pre-signed by him,
the collections thereunder were made by Samaranos, who also entered the amounts
collected by her in accused's cashbook.

The amounts collected between the period from July 17, 1984 to April 30, 1985
totalled P100,486.50, from which should be deducted total remittances of
P85,177.50, leaving a balance of P16,221.50. An Inventory of Cash and/or allowed
Cash Items produced P912.50, leaving a shortage of P15,309.00 which was
determined by Auditor Lydia R. Mendoza as the difference between the amounts
appearing in the originals of the Official Receipts/Letter of Confirmation and the
duplicate Official Receipts. In other words, what were collected and reflected in the
duplicate ORs were not the correct amounts appearing in the original ORs issued to
the payees and which were verified and confirmed later by the payees.

Auditor Mendoza supported her findings of a shortage and the reasons for such
shortage thru a formal "Comparison of Duplicate Official Receipts of P2.00 per
Report of Collections with the Confirmation Letter and/or Original Official Receipts"
for the period from July 17, 1984 to April 30, 1985. Therein, it clearly appeared that
while the amounts to be officially collected should be P110.00 or P112.00, the
amounts reported to have been collected and which were reflected in the duplicate
ORs were only P2.00. The unreported and unrecorded collections of P108.00 or
P110.00 from individual payees were reflected in the original ORs which were
confirmed by said payees through confirmation letters and which totalled P15,309.00.

After the cash count made by Auditor Mendoza as a prelude to her Report of
Examination and subsequent verification/confirmation, she sent a letter of demand to
the accused on October 14, 1985, which the accused received on the same date.
Therein, he was required to produce immediately the balance of P3,418.50, due to
the fact that he had made deposits amounting to P11,890.50, "after cash count and
confirmed by us (Please see Scheduled 2)." On October 17, 1985, accused
submitted his letter-explanation to Auditor Mendoza wherein he laid the blame for the
shortage on his office clerk whom he had already relieved and alleged that he had
not benefited, directly or indirectly, from the missing funds. On October 18, 1985 and
November 7, 1985, accused "restituted and deposited with the Bureau of Treasury
thru PNB, GSC" the amounts of P2,933.50 and P485.00, respectively, which, if
added to his previous deposits from June 2, 1985 to August 23, 1985 amounting to
P11,890.50, would total P15,309.50.

There being no dispute, therefore, as to the existence of the shortage in the accounts
of the accused, as found by Auditor Mendoza as of April 30, 1985, amounting to
P15,309.00 and the fact of accused's settlement for such shortage through
installments deposited with the PNB, General Santos City between June 2, 1985 to
November 7, 1985, then it behooves the Court to determine if accused herein had
rendered himself liable or not under Article 217 of the Revised Penal Code by reason
of such shortage. Such determination must perforce go into the merits of his claim
that the responsibility for such shortage should be laid on the doorstep of Yvette
Samaranos, a private individual, whom he inherited from his predecessor who had
allowed her to work in the office as clerk-collector and whom he retained for the
following reasons: (1) the Office of the Bureau of Domestic Trade at General Santos
City, of which he was the Provincial Trade Development Officer, was a one-man
operation, hence, understaffed; (2) he had to go out to the field to campaign for
increased registration of business names, hold symposiums of consumers' groups,
conduct meetings for retailers and consumers and repair shop establishments; (3) he
occasionally goes out to attend raffles conducted by private establishments as
representative of the Bureau of Domestic Trade; and (4) he had to leave someone in
the office to attend to the general public in the registration and/or renewal of business
names and the issuance of certifications and official receipts for the collection of the
proper fees. For the reason that he was out in the field for days at times, he pre-
signed official receipts in blank, as well as certifications, which he entrusted to
 Samaranos who then fills up the said receipts and certifications and makes the
corresponding entries in his cashbook. As it turned out, however, Samaranos
collected the proper official fees, issued the original receipts with the proper
amounts, filled up the duplicates thereof with reduced amounts, made the
corresponding entries in the cashbook based on the amounts reflected in the
duplicates and made the proper remittances based on the improper entries.

Accused's defense cannot be accepted, nor can it absolve him from criminal liability
for the missing public funds which the audit examination on his accountabilities as of
April 30, 1985 had revealed. As Special Disbursing Officer, he was the primary
accountable officer for such funds and the fact, which was not definitely or
conclusively established by his evidence, that another person, albeit a private
individual, was responsible for the misappropriation thereof, cannot be considered in
exculpation or justification of such primary accountability.

xxx xxx xxx

Consequently, accused herein cannot blame anyone else for the predicament that he
found himself in. First of all, he should not have allowed Yvette Samaranos, who did
not possess any appointment, to perform official acts which he was ordained to do.
Secondly, since the collection of official fees was a sensitive area, he should have
refrained from pre-signing official receipts and certifications. Thirdly, if he were that
desirous of rendering conscientious public service, he should have ensured that the
collection of official fees was properly made, recorded and remitted. Fourthly, his
admission that he had to pay the salaries of Samaranos through honoraria received
by him from raffles is fatal to his cause since he should have realized that, under
such circumstance, Samaranos would be subject to the most severe temptation to
fool around with the agency's collections. Apparently, accused was more interested
in conducting field trips and raffles whereby he would be able to collect per diems,
travelling allowances and honoraria from private firms. To allow public accountable
officers to adopt the practice resorted to by the accused in allowing private
individuals to perform public functions would lead to chaos and anarchy and would
render nugatory all applicable norms of public trust and accountability. His bare and
unsupported claim that, after discovery of the shortage upon audit examination, he
took steps to charge Yvette Samaranos for Estafa Thru Falsification of Public
Documents does not, in any way, erase his criminal liability which could be
characterized as malversation of Public Funds through negligence. In his case, such
negligence may be described as gross and inexcusable, amounting to a definite
laxity resulting in the deliberate non-performance of his duties.

On the basis of the above findings, judgment was rendered by the Sandiganbayan convicting
petitioner Kimpo and sentencing him, accordingly:

WHEREFORE, judgment is hereby rendered finding accused Luciano Kimpo y

Niñanuevo GUILTY beyond reasonable doubt of the offense of Malversation of
Public Funds, as defined and penalized under Article 217, paragraph 4 of the
Revised Penal Code, and favorably appreciating the mitigating circumstances of
voluntary surrender and full restitution, after applying the Indeterminate Sentence
Law, hereby sentences him to suffer an indeterminate penalty ranging from SEVEN
(7) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision mayor as the
minimum, to ELEVEN (11) YEARS, SIX (6) MONTHS and TWENTY-ONE (21)
DAYS, likewise of prision mayor as the maximum; to further suffer perpetual special
 disqualification; to pay a fine of P15,309.00 equal to the amount malversed and to
pay the costs of this action. No civil liability is awarded in view of the full restitution of
the amount involved.

SO ORDERED.

In this appeal, petitioner submitted the following assignment of errors: That —

THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED EXHIBITS

B TO B-3 AGAINST THE ACCUSED OVER ACCUSED'S OBJECTIONS
ANCHORED ON ARTICLE III, SECTIONS 12 & 17 OF THE 1987 CONSTITUTION.

II

THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED — OVER

PETITIONER'S OBJECTIONS — ALLEGED CONFIRMATION LETTERS NOT
SIGNED OR NOT PROPERLY IDENTIFIED, AS EVIDENCE TO PROVE ALLEGED
SHORTAGE.

III

THE RESPONDENT COURT ERRED IN LAW WHEN IT RULED THAT ACCUSED

IS PRESUMED TO HAVE MALVERSED P15,309.00 BECAUSE HE FAILED TO
HAVE THE AMOUNT FORTHCOMING UPON DEMAND.

IV

THE RESPONDENT COURT ERRED IN LAW IN HOLDING ACCUSED LIABLE

FOR MALVERSATION OF PUBLIC FUNDS THROUGH NEGLIGENCE.

The appeal has no merit.

Petitioner faults the Sandiganbayan for having considered Exhibits "B" to "B-3," inclusive, despite
what he claims to be an impairment of his constitutional rights under Article III, Section 12
paragraphs (1) and (3), and Section 17, 2 of the 1987 Constitution. We cannot agree. The questioned
exhibits pertain to the Report of Examination, the Statement of Accountability for Accountable Forms
without Money Value, and a Reconciliation Statement of Accountability, which are official forms prepared
and accomplished in the normal course of audit regularly conducted by the Commission on Audit.
Petitioner, not being at the time under investigation for the commission of a criminal offense, let alone
under custodial investigation, clearly cannot be said to have been deprived of the constitutional
prerogatives he invokes (Villaroza vs. Sandiganbayan, G.R. No. 79636, 17 December 1987; People vs.
Olivares, 186 SCRA 536).

On the so-called confirmatory letters, respondent court concluded thus —

III. The Letters of Confirmation (Exhibits Z to II, JJ to SS, TT to GGG, HHH to WWW,
XXX to ZZZZ, AAAA to JJJJJ, KKKKK to KKKKKKK to JJJJJJJJ and JJJJJJJJ) were
not the primary evidence presented by the prosecution to prove the manipulations
and irregularities in question but theoriginals and duplicates of the Official Receipts
 (Exhibits L to I-40, J to J-95, K to K-26 and L to L-44), all of which were admittedly
signed by the accused, wherein it could clearly be seen that payments for P110.00
were reflected as P2.00 only. Thus, the Letters of Confirmation are only secondary
evidence to support and prove the principal facts in issue. Accused had not,
REPEAT, had not, denied that the above-mentioned official receipts, originals and
duplicates, are genuine and correctly reflect the amounts which appear to be listed
therein.

Hardly can the above findings be validly challenged. Indeed, considering all the evidence on record,
there is not much that the questioned letters could have lent to augment the case for the
prosecution.

Petitioner has been charged with having violated Article 217 of the Revised Penal Code, which, in
full, reads:

Art. 217. Malversation of public funds or property. — Presumption of malversation. —

Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or negligence, shall permit any other person to
take such public funds or property, wholly or partially, or shall otherwise be guilty the
misappropriation or malversation of such funds or property shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than six thousand pesos but is less
than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall
be prima facie evidence that he has put such missing funds or property to personal
use.

The validity and constitutionality of the presumption of evidence provided in the above Article, which
petitioner questions, has long been settled affirmatively in a number of cases heretofore decided by
this Court; 3 that point need not again be belabored.
Even while an information charges willful malversation, conviction for malversation through
negligence may, nevertheless, be adjudged as the evidence so yields. Malversation, unlike other
felonies punished under the Revised Penal Code, is consummated, and the same penalty is
imposed, regardless of whether the mode of commission is with intent or due to negligence. 4

Petitioner argues that the restitution made by him of the full amount should exonerate him from
criminal liability. The argument not only is an inappropriate defense in criminal cases but it also even
at times tightens a finding of guilt. In malversation of public funds, payment, indemnification, or
reimbursement of funds misappropriated, after the commission of the crime, does not extinguish the
criminal liability of the offender which, at most, can merely affect the accused's civil liability
thereunder 5 and be considered a mitigating circumstance being analogous to voluntary surrender. 6

WHEREFORE, the petition is DISMISSED, and the appealed decision of respondent

Sandiganbayan is AFFIRMED in toto.

SO ORDERED.