Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 182601               November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY FERNANDEZ and RONALD
MUNOZ, Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari under Rule 45 of the Rules of Court challenging the decision  dated
1

January 21, 2008 and the resolution  dated April 17, 2008 of the Court of Appeals (CA) in CAG.R. SP No. 91541.
2

The appealed decision affirmed the Order dated March 16, 2005 of the Regional Trial Court (RTC), Branch 96,
Quezon City, denying Joey M. Pestilos, Dwight Macapanas, Miguel Gaces, Jerry Fernandez, and Ronald Munoz's
(petitioners) Urgent Motion for Regular Preliminary Investigation, as well as their subsequent motion for
reconsideration.

The Antecedent Facts

The records of the case reveal that on February 20, 2005, at around 3: 15 in the morning, an altercation ensued
between the petitioners and Atty. Moreno Generoso (Atty. Generoso) at Kasiyahan Street, Barangay Holy Spirit,
Quezon City where the petitioners and Atty. Generoso reside. 3

Atty. Generoso called the Central Police District, Station 6 (Batas an Hills Police Station) to report the
incident.  Acting on this report, Desk Officer SPOl Primitivo Monsalve (SPOJ Monsalve) dispatched SP02
4

Dominador Javier (SP02 Javier) to go to the scene of the crime and to render assistance.  SP02 Javier, together
5

with augmentation personnel from the Airforce, A2C Alano Sayson and Airman Ruel Galvez, arrived at the scene of
the crime less than one hour after the alleged altercation  and they saw Atty. Generoso badly beaten.
6 7

Atty. Generoso then pointed to the petitioners as those who mauled him. This prompted the police officers to "invite"
the petitioners to go to Batasan Hills Police Station for investigation.  The petitioners went with the police officers to
8

Batasan Hills Police Station.  At the inquest proceeding, the City Prosecutor of Quezon City found that the
9

petitioners stabbed Atty. Generoso with a bladed weapon. Atty. Generoso fortunately survived the attack. 10

In an Information dated February 22, 2005, the petitioners were indicted for attempted murder allegedly committed
as follows:

That on or about the 20th h day of February, 2005, in Quezon City, Philippines, the said accused, conspiring
together, confederating with and mutually helping one another, with intent to kill, qualified with evident
premeditation, treachery and taking advantage of superior strength, did then and there, willfully, unlawfully and
feloniously commence the commission of the crime of Murder directly by overt acts, by then and there stabbing one
Atty. MORENO GENEROSO y FRANCO, with a bladed weapon, but said accused were not able to perform all the
acts of execution which would produce the crime of Murder by reason of some cause/s or accident other than their
own spontaneous desistance, that is, said complainant was able to parry the attack, to his damage and prejudice.

CONTRARY TO LAW. 11

On March 7, 2005, the petitioners filed an Urgent Motion for Regular Preliminary Investigation  on the ground that
12

they had not been lawfully arrested. They alleged that no valid warrantless arrest took place since the police officers
had no personal knowledge that they were the perpetrators of the crime. They also claimed that they were just
"invited" to the police station. Thus, the inquest proceeding was improper, and a regular procedure for preliminary
investigation should have been performed pursuant to Rule 112 of the Rules of Court. 13

On March 16, 2005, the RTC issued its order denying the petitioners' Urgent Motion for Regular Preliminary
Investigation.  The court likewise denied the petitioners' motion for reconsideration.
14 15

The petitioners challenged the lower court's ruling before the CA on a Rule 65 petition for certiorari. They attributed
grave abuse of discretion, amounting to lack or excess of jurisdiction, on the R TC for the denial of their motion for
preliminary investigation. 16
 The Assailed CA Decision

On January 21, 2008, the CA issued its decision dismissing the petition for lack of merit.  The CA ruled that the
17

word "invited" in the Affidavit of Arrest executed by SP02 Javier carried the meaning of a command. The arresting
officer clearly meant to arrest the petitioners to answer for the mauling of Atty. Generoso. The CA also recognized
that the arrest was pursuant to a valid warrantless arrest so that an inquest proceeding was called for as a
consequence. Thus, the R TC did not commit any grave abuse of discretion in denying the Urgent Motion for
Regular Preliminary Investigation.

The CA saw no merit in the petitioners' argument that the order denying the Urgent Motion for Regular Preliminary
Investigation is void for failure to clearly state the facts and the law upon which it was based, pursuant to Rule 16,
Section 3 of the Revised Rules of Court. The CA found that the RTC had sufficiently explained the grounds for the
denial of the motion.

The petitioners moved for reconsideration, but the CA denied the motion in its Resolution of April 17, 2008;  hence,
18

the present petition.

The Issues

The petitioners cited the following assignment of errors:

I.

WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED WITHOUT A WARRANT.

II.

WHETHER OR NOT THE PETITIONERS WERE LAWFULLY ARRESTED WHEN THEY WERE MERELY
INVITED TO THE POLICE PRECINCT.

III.

WHETHER OR NOT THE ORDER DENYING THE MOTION FOR PRELIMINARY INVESTIGATION IS
VOID FOR FAILURE TO STATE THE FACTS AND THE LAW UPON WHICH IT WAS BASED.

The petitioners primarily argue that they were not lawfully arrested. No arrest warrant was ever issued; they went to
the police station only as a response to the arresting officers' invitation. They even cited the Affidavit of Arrest, which
actually used the word "invited. "

The petitioners also claim that no valid warrantless arrest took place under the terms of Rule 112, Section 7 of the
Revised Rules of Court. The incident happened two (2) hours before the police officers actually arrived at the crime
scene. The police officers could not have undertaken a valid warrantless arrest as they had no personal knowledge
that the petitioners were the authors of the crime.

The petitioners additionally argue that the R TC' s Order denying the Urgent Motion for Regular Preliminary
Investigation is void because it was not properly issued.

The Court's Ruling

We find the petition unmeritorious and thus uphold the RTC Order. The criminal proceedings against the petitioners
should now proceed.

It is unfortunate that the kind of motion that the petitioners filed has to reach this Court for its resolution. The thought
is very tempting that the motion was employed simply to delay the proceedings and that the use of Rule 65 petition
has been abused.

But accepting things as they are, this delay can be more than compensated by fully examining in this case the
legalities surrounding warrantless warrants and establishing the proper interpretation of the Rules for the guidance
of the bench and the bar. These Rules have evolved over time, and the present case presents to us the opportunity
to re-trace their origins, development and the current applicable interpretation.

I. Brief history on warrantless arrests

The organic laws of the Philippines, specifically, the Philippine Bill of 1902,  and the 1935,  1973  and
19 20 21

1987  Constitutions all protect the right of the people to be secure in their persons against unreasonable searches
22

and seizures. Arrest falls under the term "seizure. " 23

This constitutional mandate is identical with the Fourth Amendment of the Constitution of the United States. The
Fourth Amendment traces its origins to the writings of Sir Edward Coke  and The Great Charter of the Liberties of
24

England (Magna Carta Libertatum), sealed under oath by King John on the bank of the River Thames near Windsor,
England on June 15, 1215.  The Magna Carta Libertatum limited the King of England's powers and required the
25

Crown to proclaim certain liberties  under the feudal vassals' threat of civil war.  The declarations in Chapter 29 of
26 27

the Magna Carta Libertatum later became the foundational component of the Fourth Amendment of the United
States Constitution.  It provides:
28

No freeman shall be taken, or imprisoned, or be disseised  of his Freehold, or Liberties, or free Customs, or be
29

outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful
Judgment of his Peers, or by the Law of the Land, We will sell to no man, we will not deny or defer to any man either
Justice or Right.  [Emphasis supplied]
30

In United States v. Snyder,  the United States Supreme Court held that this constitutional provision does not prohibit
31

arrests, searches and seizures without judicial warrant, but only those that are unreasonable.  With regard to an
32

arrest, it is considered a seizure, which must also satisfy the test of reasonableness. 33

In our jurisdiction, early rulings of the Court have acknowledged the validity of warrantless arrests. The Court based
these rulings on the common law of America and England that, according to the Court, were not different from the
Spanish laws.  These court rulings likewise justified warrantless arrests based on the provisions of separate laws
34

then existing in the Philippines. 35

In 1905, the Court held in The United States v. Wilson  that Section 37  of Act No. 183, or the Charter of Manila,
36 37

defined the arresting officer's power to arrest without a warrant, at least insofar as the City of Manila was concerned.

In The United States v. Vallejo, et al.,  the Court held that in the absence of any provisions under statutes or local
38

ordinances, a police officer who held similar functions as those of the officers established under the common law of
England and America, also had the power to arrest without a warrant in the Philippines.

The Court also ruled in The United States v. Santos  that the rules on warrantless arrest were based on common
39

sense and reason.  It further held that warrantless arrest found support under the then Administrative Code  which
40 41

directed municipal policemen to exercise vigilance in the prevention of public offenses.

In The United States v. Fortaleza,  the Court applied Rules 27, 28, 29 and 30  of the Provisional Law for the
42 43

Application of the Penal Code which were provisions taken from the Spanish Law.

These rules were subsequently established and incorporated in our Rules of Court and jurisprudence. Presently, the
requirements of a warrantless arrest are now summarized in Rule 113, Section 5 which states that: Section 5. Arrest
without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense;

(b) When an offense has just been committed, and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forth with
delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule
112.

A warrantless arrest under the circumstances contemplated under Section 5(a) above has been denominated as
one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.44

For purposes of this case, we shall focus on Section 5(b) – the provision applicable in the present case. This
provision has undergone changes through the years not just in its phraseology but also in its interpretation in our
jurisprudence.

We shall first trace the evolution of Section 5(b) and examine the applicable American and Philippine jurisprudence
to fully understand its roots and its appropriate present application.

II. Evolution of Section 5(b), Rule 113

A. Prior to the 1940 Rules of Court

Prior to 1940, the Court based its rulings not just on American and English common law principle on warrantless
arrests but also on laws then existing in the Philippines. In Fortaleza,  the Court cited Rule 28 of the Provisional Law
45

for the Application of the Penal Code which provided that:

Judicial and administrative authorities have power to detain, or to cause to be detained, persons whom there is
reasonable ground to believe guilty of some offense. It will be the duty of the authorities, as well as of their agents,
to arrest:

First. Such persons as may be arrested under the provisions of rule 27.

Second. A person charged with a crime for which the code provides a penalty greater than that of confinamiento.

Third. A person charged with a crime for which the code provides a penalty less than that of confinamiento, if his
antecedents or the circumstances of the case would warrant the presumption that he would fail to appear when
summoned by the judicial authorities.

The provisions of the preceding paragraph shall not apply, however, to a defendant who gives sufficient bond, to the
satisfaction of the authority or agent who may arrest him, and who it may reasonably be presumed will appear
whenever summoned by the judge or court competent to try him.

Fourth. A person coining under the provisions of the preceding paragraph may be arrested, although no formal
complaint has been filed against him, provided the following circumstances are present:

First. That the authority or agent had reasonable cause to believe that an unlawful act, amounting to a crime had
been committed.

Second. That the authority or agent had sufficient reason to believe that the person arrested participated in the
commission of such unlawful act or crime." [Emphasis and underscoring supplied]

In the same decision, the Court likewise cited Section 3 7 of the Charter of Manila, which provided that certain
officials, including police officers may, within the territory defined in the law, pursue and arrest without warrant, any
person found in suspicious places or under suspicious circumstances, reasonably tending to show that such person
has committed, or is about to commit any crime or breach of the peace.

In Santos,  the Court cited Miles v. Weston,  which ruled that a peace officer may arrest persons walking in the
46 47

street at night when there is reasonable ground to suspect the commission of a crime, although there is no proof of
a felony having been committed.

The Court ruled in Santos that the arresting officer must justify that there was a probable cause for an arrest without
a warrant. The Court defined probable cause as a reasonable ground of suspicion, supported by circumstances
sufficiently strong in themselves as to warrant a reasonable man in believing that the accused is guilty. Besides
reasonable ground of suspicion, action in good faith is another requirement. Once these conditions are complied
with, the peace officer is not liable even if the arrested person turned out to be innocent.

Based on these discussions, it appears clear that prior to the 1940 Rules of Court, it was not necessary for the
arresting officer to first have knowledge that a crime was actually committed. What was necessary was the presence
of reasonably sufficient grounds to believe the existence of an act having the characteristics of a crime; and that the
same grounds exist to believe that the person sought to be detained participated in it. In addition, it was also
established under the old court rulings that the phrase "reasonable suspicion" was tantamount to probable cause
without which, the warrantless arrest would be invalid and the arresting officer may be held liable for its breach. 48

In The US. v. Hachaw,  the Court invalidated the warrantless arrest of a Chinaman because the arresting person did
49

not state in what way the Chinaman was acting suspiciously or the particular act or circumstance which aroused the
arresting person's curiosity.

It appears, therefore, that prior to the establishment in our Rules of Court of the rules on warrantless arrests, the
gauge for a valid warrantless arrest was the arresting officer's reasonable suspicion (probable cause) that a crime
was committed and the person sought to be arrested has participated in its commission. This principle left so much
discretion and leeway on the part of the arresting officer. However, the 1940 Rules of Court has limited this
discretion.

B. The 1940 Rules of Court

(Restricting the arresting
officer's determination of
probable cause)

Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were substantially incorporated in
Section 6, Rule 109 of the 1940 Rules of Court as follows: 50
SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private person may, without a warrant, arrest a
person:

(a) When the person to be arrested has committed, is actually committing, or is about to commit an offense
in his presence;

(b) When an offense has in fact been committed, and he has reasonable ground to believe that the person
to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another. [Emphasis and underscoring supplied]

These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of Court. Notably, the 1940 and
1964 Rules have deviated from the old rulings of the Court. Prior to the 1940 Rules, the actual commission of the
offense was not necessary in determining the validity of the warrantless arrest. Too, the arresting officer's
determination of probable cause (or reasonable suspicion) applied both as to whether a crime has been committed
and whether the person to be arrested has committed it.

However, under the 1940 and the 1964 Rules of Court, the Rules required that there should be actual commission
of an offense, thus, removing the element of the arresting officer's "reasonable suspicion of the commission of an
offense." Additionally, the determination of probable cause, or reasonable suspicion, was limited only to the
determination of whether the person to be arrested has committed the offense. In other words, the 1940 and 1964
Rules of Court restricted the arresting officer's discretion in warrantless arrests under Section 6(b), Rule 113 of the
1964 Rules of Court.

C. The more restrictive 1985 Rules of Criminal Procedure

Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial changes and was re-worded and re-
numbered when it became Section 5, Rule 113 of the 1985 Rules of Criminal Procedure, to wit:

Sec. 5. Arrest without warrant; when. lawful. - A peace officer or a private person may, without a warrant, arrest a
person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that
the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the
person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7. [Emphasis and underscoring supplied]

As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the restrictions introduced under the 1964
Rules of Court. More importantly, however, it added a qualification that the commission of the offense should not
only have been "committed" but should have been "just committed." This limited the arresting officer's time frame for
conducting an investigation for purposes of gathering information indicating that the person sought to be arrested
has committed the crime.

D. The Present Revised Rules of Criminal Procedure

Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further amended with the incorporation of the
word "probable cause" as the basis of the arresting officer's determination on whether the person to be arrested has
committed the crime.

Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure provides that:

When an offense has just been committed, and he has probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has committed it.

From the current phraseology of the rules on warrantless arrest, it appears that for purposes of Section S(b ), the
following are the notable changes: first, the contemplated offense was qualified by the word "just," connoting
immediacy; and second, the warrantless arrest of a person sought to be arrested should be based on probable
cause to be determined by the arresting officer based on his personal knowledge of facts and circumstances that
the person to be arrested has committed it.
It is clear that the present rules have "objectified" the previously subjective determination of the arresting officer as
to the (1) commission of the crime; and (2) whether the person sought to be arrested committed the crime.
According to Feria, these changes were adopted to minimize arrests based on mere suspicion or hearsay. 51

As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure are:
first, an offense has just been committed; and second, the arresting officer has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it.

For purposes of this case, we shall discuss these elements separately below, starting with the element of probable
cause, followed by the elements that the offense has just been committed, and the arresting officer's personal
knowledge of facts or circumstances that the person to be arrested has committed the crime.

i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure: Probable cause

The existence of "probable cause" is now the "objectifier" or the determinant on how the arresting officer shall
proceed on the facts and circumstances, within his personal knowledge, for purposes of determining whether the
person to be arrested has committed the crime.

i.a) U.S. jurisprudence on probable cause in warrantless arrests

In Payton v. New York,  the U.S. Supreme Court held that the Fourth Amendment of the Federal Constitution does
52

not prohibit arrests without a warrant although such arrests must be reasonable. According to State v. Quinn,  the 53

warrantless arrest of a person who was discovered in the act of violating the law is not a violation of due process.

The U.S. Supreme Court, however indicated in Henry v. United States  that the Fourth Amendment limited the
54

circumstances under which warrantless arrests may be made. The necessary inquiry is not whether there was a
warrant or whether there was time to get one, but whether at the time of the arrest probable cause existed. The term
probable cause is synonymous to "reasonable cause" and "reasonable grounds." 55

In determining the existence of probable cause, the arresting officer should make a thorough investigation and
exercise reasonable judgment. The standards for evaluating the factual basis supporting a probable cause
assessment are not less stringent in warrantless arrest situation than in a case where a warrant is sought from a
judicial officer. The probable cause determination of a warrantless arrest is based on information that the arresting
officer possesses at the time of the arrest and not on the information acquired later. 56

In evaluating probable cause, probability and not certainty is the determinant of reasonableness under the Fourth
Amendment. Probable cause involves probabilities similar to the factual and practical questions of everyday life
upon which reasonable and prudent persons act. It is a pragmatic question to be determined in each case in light of
the particular circumstances and the particular offense involved. 57

In determining probable cause, the arresting officer may rely on all the information in his possession, his fair
inferences therefrom, including his observations. Mere suspicion does not meet the requirements of showing
probable cause to arrest without warrant especially if it is a mere general suspicion. Probable cause may rest on
reasonably trustworthy information as well as personal knowledge. Thus, the arresting officer may rely on
information supplied by a witness or a victim of a crime; and under the circumstances, the arresting officer need not
verify such information.58

In our jurisdiction, the Court has likewise defined probable cause in the context of Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure.

In Abelita Ill v. Doria et al.,  the Court held that personal knowledge of facts must be based on probable cause,
59

which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in
the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be arrested. A reasonable suspicion, therefore, must be founded
on probable cause, coupled with good faith on the part of the peace officers making the arrest.

i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, distinguished from
probable cause in preliminary investigations and the judicial proceeding for the issuance of a warrant of arrest

The purpose of a preliminary investigation is to determine whether a crime has been committed and whether there is
probable cause to believe that the accused is guilty of the crime and should be held for triat.  In Buchanan v. Viuda
60

de Esteban,  we defined probable cause as the existence of facts and circumstances as would excite the belief in a
61

reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.

In this particular proceeding, the finding of the existence of probable cause as to the guilt of the respondent was
based on the submitted documents of the complainant, the respondent and his witnesses. 62
On the other hand, probable cause in judicial proceedings for the issuance of a warrant of arrest is defined as the
existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that
an offense has been committed by the person sought to be arrested.

Hence, before issuing a warrant of arrest, the judge must be satisfied that based on the evidence submitted, there is
sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. At this
stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the
preliminary investigation. It is sufficient that he personally evaluates the evidence in determining probable cause  to
63

issue a warrant of arrest.

In contrast, the arresting officer's determination of probable cause under Section 5(b), Rule 113 of the Revised
Rules of Criminal Procedure is based on his personal knowledge of facts or circumstances that the person sought to
be arrested has committed the crime. These facts or circumstances pertain to actual facts or raw evidence, i.e.,
supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to
be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the
part of the peace officers making.the arrest.

The probable cause to justify warrantless arrest ordinarily signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is
guilty of the offense with which he is charged,  or an actual belief or reasonable ground of suspicion, based on
64

actual facts.
65

It is clear therefore that the standard for determining "probable cause" is invariable for the officer arresting without a
warrant, the public prosecutor, and the judge issuing a warrant of arrest. It is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been
committed by the person sought to be arrested or held for trial, as the case may be.

However, while the arresting officer, the public prosecutor and the judge all determine "probable cause," within the
spheres of their respective functions, its existence is influenced heavily by the available facts and circumstance
within their possession. In short, although these officers use the same standard of a reasonable man, they possess
dissimilar quantity of facts or circumstances, as set by the rules, upon which they must determine probable cause.

Thus, under the present rules and jurisprudence, the arresting officer should base his determination of probable
cause on his personal knowledge of facts and circumstances that the person sought to be arrested has committed
the crime; the public prosecutor and the judge must base their determination on the evidence submitted by the
parties.

In other words, the arresting officer operates on the basis of more limited facts, evidence or available information
that he must personally gather within a limited time frame.

Hence, in Santos,  the Court acknowledged the inherent limitations of determining probable cause in warrantless
66

arrests due to the urgency of its determination in these instances. The Court held that one should not expect too
much of an ordinary policeman. He is not presumed to exercise the subtle reasoning of a judicial officer. Oftentimes,
he has no opportunity to make proper investigation but must act in haste on his own belief to prevent the escape of
the criminal.
67

ii) Second and Third Elements of Section 5(b), Rule 113:

The crime has just been committed/personal
knowledge of facts or circumstances that the person
to be arrested has committed it

We deem it necessary to combine the discussions of these two elements as our jurisprudence shows that these
were usually taken together in the Court's determination of the validity of the warrantless arrests that were made
pursuant to Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure.

In Posadas v. Ombudsman,  the killing of Dennis Venturina happened on December 8, 1994. It was only on
68

December 11, 1994 that Chancellor Posadas requested the NBI's assistance. On the basis of the supposed
identification of two (2) witnesses, the NBI attempted to arrest Francis Carlo Taparan and Raymundo Narag three
(3) days after the commission of the crime. With this set of facts, it cannot be said that the officers have personal
knowledge of facts or circumstances that the persons sought to be arrested committed the crime. Hence, the Court
invalidated the warrantless arrest.

Similarly, in People v. Burgos,  one Cesar Masamlok personally and voluntarily surrendered to the authorities,
69

stating that Ruben Burgos forcibly recruited him to become a member of the NPA, with a threat of physical harm.
Upon receipt of this information, a joint team of PC-INP units was dispatched to arrest Burgos who was then plowing
the field. Indeed, the arrest was invalid considering that the only information that the police officers had in effecting
the arrest was the information from a third person. It cannot be also said in this case that there was certainty as
regards the commission of a crime.
In People v. del Rosario,  the Court held that the requirement that an offense has just been committed means that
70

there must be a large measure of immediacy between the time the offense was committed and the time of the
arrest. If there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of
arrest must be secured.

The Court held that the arrest of del Rosario did not comply with these requirements because he was arrested only
a day after the commission of the crime and not immediately thereafter. Additionally, the arresting officers were not
present and were not actual eyewitnesses to the crime. Hence, they had no personal knowledge of facts indicating
that the person to be arrested had committed the offense. They became aware of del Rosario's identity as the driver
of the getaway tricycle only during the custodial investigation.

In People v. Cendana,  the accused was arrested one (1) day after the killing of the victim and only on the basis of
71

information obtained from unnamed sources. The unlawful arrest was held invalid.

In Rolito Go v. CA,  the arrest of the accused six ( 6) days after the commission of the crime was held invalid
72

because the crime had not just been committed. Moreover, the "arresting" officers had no "personal knowledge" of
facts indicating that the accused was the gunman who had shot the victim. The information upon which the police
acted came from statements made by alleged eyewitnesses to the shooting; one stated that the accused was the
gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered
in the name of the accused's wife. That information did not constitute "personal knowledge."

In People v. Tonog, Jr.,  the warrantless arrest which was done on the same day was held valid. In this case, the
73

arresting officer had knowledge of facts which he personally gathered in the course of his investigation, indicating
that the accused was one of the perpetrators.

In People v. Gerente,  the policemen arrested Gerente only about three (3) hours after Gerente and his companions
74

had killed the victim. The Court held that the policemen had personal knowledge of the violent death of the victim
and of facts indicating that Gerente and two others had killed him. The warrantless arrest was held valid.

In People v. Alvario,  the warrantless arrest came immediately after the arresting officers received information from
75

the victim of the crime. The Court held that the personal knowledge of the arresting officers was derived from the
information supplied by the victim herself who pointed to Alvario as the man who raped her at the time of his arrest.
The Court upheld the warrantless arrest. In People v. Jayson,  there was a shooting incident. The policemen who
76

were summoned to the scene of the crime found the victim. The informants pointed to the accused as the assailant
only moments after the shooting. The Court held that the arresting officers acted on the basis of personal knowledge
of the death of the victim and of facts indicating that the accused was the assailant. Thus, the warrantless arrest was
held valid.

In People v. Acol,  a group held up the passengers in a jeepney and the policemen immediately responded to the
77

report of the crime. One of the victims saw four persons walking towards Fort Bonifacio, one of whom was wearing
his jacket. The victim pointed them to the policemen. When the group saw the policemen coming, they ran in
different directions. The Court held that the arrest was valid.

In Cadua v. CA,  there was an initial report to the police concerning a robbery. A radio dispatch was then given to
78

the arresting officers, who proceeded to Alden Street to verify the authenticity of the radio message. When they
reached the place, they met with the complainants who initiated the report about the robbery. Upon the officers'
invitation, the victims joined them in conducting a search of the nearby area where the accused was spotted in the
vicinity. Based on the reported statements of the complainants, he was identified as a logical suspect in the offense
just committed. Hence, the arrest was held valid.

In Doria,  the Court held that Section S(b ), Rule 113 of the 1985 Rules of Criminal Procedure does not require the
79

arresting officers to personally witness the commission of the offense.

In this case, P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa Sia about a
shooting incident. He dispatched a team headed by SP03 Ramirez to investigate the incident. SP03 Ramirez later
reported that a certain William Sia was wounded while Judge Abelita III, who was implicated in the incident, and his
wife just left the place of the incident. P/Supt. Doria looked for Abelita III and when he found him, he informed him of
the incident report. P/Supt. Doria requested Abelita III to go with him to the police headquarters as he had been
reported to be involved in the incident. Abelita III agreed but suddenly sped up his vehicle and proceeded to his
residence where P/Supt. Doria caught him up as he was about to run towards his house.

The police officers saw a gun in the front seat of the vehicle beside the driver's seat as Abelita III opened the door.
They also saw a shotgun at the back of the driver's seat. The police officers confiscated the firearms and arrested
Abelita III. The Court held that the petitioner's act of trying to get away, coupled with the incident report which they
investigated, were enough to raise a reasonable suspicion on the part of the police authorities as to the existence of
probable cause. Based on these discussions, it appears that the Court's appreciation of the elements that "the
offense has just been committed" and ''personal knowledge of facts and circumstances that the person to be
arrested committed it" depended on the particular circumstances of the case. However, we note that the element of
''personal knowledge of facts or circumstances" under Section S(b ), Rule 113 of the Revised Rules of Criminal
Procedure requires clarification.

The phrase covers facts or, in the alternative, circumstances. According to the Black's Law
Dictionary,  "circumstances are attendant or accompanying facts, events or conditions. " Circumstances may pertain
80

to events or actions within the actual perception, personal evaluation or observation of the police officer at the scene
of the crime. Thus, even though the police officer has not seen someone actually fleeing, he could still make a
warrantless arrest if, based on his personal evaluation of the circumstances at the scene of the crime, he could
determine the existence of probable cause that the person sought to be arrested has committed the crime.
However, the determination of probable cause and the gathering of facts or circumstances should be made
immediately after the commission of the crime in order to comply with the element of immediacy.

In other words, the clincher in the element of ''personal knowledge of facts or circumstances" is the required element
of immediacy within which these facts or circumstances should be gathered. This required time element acts as a
safeguard to ensure that the police officers have gathered the facts or perceived the circumstances within a very
limited time frame. This guarantees that the police officers would have no time to base their probable cause finding
on facts or circumstances obtained after an exhaustive investigation.

The reason for the element of the immediacy is this - as the time gap from the commission of the crime to the arrest
widens, the pieces of information gathered are prone to become contaminated and subjected to external factors,
interpretations and hearsay. On the other hand, with the element of immediacy imposed under Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure, the police officer's determination of probable cause would
necessarily be limited to raw or uncontaminated facts or circumstances, gathered as they were within a very limited
period of time. The same provision adds another safeguard with the requirement of probable cause as the standard
for evaluating these facts of circumstances before the police officer could effect a valid warrantless arrest.

In light of the discussion above on the developments of Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure and our jurisprudence on the matter, we hold that the following must be present for a valid warrantless
arrest: 1) the crime should have been just committed; and 2) the arresting officer's exercise of discretion is limited by
the standard of probable cause to be determined from the facts and circumstances within his personal knowledge.
The requirement of the existence of probable cause objectifies the reasonableness of the warrantless arrest for
purposes of compliance with the Constitutional mandate against unreasonable arrests.

Hence, for purposes of resolving the issue on the validity of the warrantless arrest of the present petitioners, the
question to be resolved is whether the requirements for a valid warrantless arrest under Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure were complied with, namely: 1) has the crime just been committed when
they were arrested? 2) did the arresting officer have personal knowledge of facts and circumstances that the
petitioners committed the crime? and 3) based on these facts and circumstances that the arresting officer
possessed at the time of the petitioners' arrest, would a reasonably discreet and prudent person believe that the
attempted murder of Atty. Generoso was committed by the petitioners? We rule in the affirmative.

III. Application of Section S(b), Rule 113 of the Revised Rules

of Criminal Procedure in the present case: there was a
valid warrantless arrest

We deem it necessary to review the records of the CA because it has misapprehended the facts in its
decision.  From a review of the records, we conclude that the police officers had personal knowledge of facts or
81

circumstances upon which they had properly determined probable cause in effecting a warrantless arrest against
the petitioners. We note, however, that the determination of the facts in the present case is purely limited to the
resolution of the issue on the validity of the warrantless arrests of the petitioners.

Based on the police blotter  entry taken at 4:15 a.m. on February 20, 2005, the date that the alleged crime was
82

committed, the petitioners were brought in for investigation at the Batasan Hills Police Station. The police blotter
stated that the alleged crime was committed at 3:15 a.m. on February 20, 2005, along Kasiyahan St., Brgy. Holy
Spirit, Quezon City.

The time of the entry of the complaint in the police blotter at 4:15 a.m., with Atty. Generoso and the petitioners
already inside the police station, would connote that the arrest took place less than one hour from the time of the
occurrence of the crime. Hence, the CA finding that the arrest took place two (2) hours after the commission of the
crime is unfounded.

The arresting officers' personal observation of Atty. Generoso's bruises when they arrived at the scene of the crime
is corroborated by the petitioners' admissions that Atty: Generoso indeed suffered blows from petitioner Macapanas
and his brother Joseph Macapanas,  although they asserted that they did it in self-defense against Atty. Generoso.
83

Atty. Generoso's bruises were also corroborated by the Medico-Legal Certificate  that was issued by East Avenue
84

Medical Center on the same date of the alleged mauling. The medical check-up of Atty. Generoso that was made
about 8:10 a.m. on the date of the incident, showed the following findings: "Contusion Hematoma, Left Frontal Area;
Abrasion, T6 area, right midclavicular line periorbital hematoma, left eye; Abrasion, distal 3rd posterolateral aspect
of right forearm; Abrasion, 4th and fifth digit, right hand; Abrasion on area of ih rib (L ant. Chest wall), tenderness on
L peripheral area, no visible abrasion. In addition, the attending physician, Dr. Eva P. Javier, diagnosed Atty.
Generoso of contusion hematoma, periorbital L., and traumatic conjunctivitis, o.s.

To summarize, the arresting officers went to the scene of the crime upon the complaint of Atty. Generoso of his
alleged mauling; the police officers responded to the scene of the crime less than one (1) hour after the alleged
mauling; the alleged crime transpired in a community where Atty. Generoso and the petitioners reside; Atty.
Generoso positively identified the petitioners as those responsible for his mauling and, notably, the petitioners  and
85

Atty. Generoso  lived almost in the same neighborhood; more importantly, when the petitioners were confronted by
86

the arresting officers, they did not deny their participation in the incident with Atty. Generoso, although they narrated
a different version of what transpired.87

With these facts and circumstances that the police officers gathered and which they have personally observed less
than one hour from the time that they have arrived at the scene of the crime until the time of the arrest of the
petitioners, we deem it reasonable to conclude that the police officers had personal knowledge of facts or
circumstances justifying the petitioners' warrantless arrests. These circumstances were well within the police
officers' observation, perception and evaluation at the time of the arrest. These circumstances qualify as the police
officers' personal observation, which are within their personal knowledge, prompting them to make the warrantless
arrests.

Similar to the factual antecedents in Jayson,  the police officers in the present case saw Atty. Generoso in his sorry
88

bloodied state. As the victim, he positively identified the petitioners as the persons who mauled him; however,
instead of fleeing like what happened in Jayson, the petitioners agreed to go with the police officers.

This is also similar to what happened in People v. Tonog, Jr.  where Tonog did not flee but voluntarily went with the
89

police officers. More than this, the petitioners in the present case even admitted to have been involved in the
incident with Atty. Generoso, although they had another version of what transpired.

In determining the reasonableness of the warrantless arrests, it is incumbent upon the courts to consider if the
police officers have complied with the requirements set under Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure, specifically, the requirement of immediacy; the police officer's personal knowledge of facts or
circumstances; and lastly, the propriety of the determination of probable cause that the person sought to be arrested
committed the crime.

The records show that soon after the report of the incident occurred, SPOl Monsalve immediately dispatched the
arresting officer, SP02 Javier, to render personal assistance to the victim.  This fact alone negates the petitioners'
90

argument that the police officers did not have personal knowledge that a crime had been committed - the police
immediately responded and had personal knowledge that a crime had been committed. 1âwphi1

To reiterate, personal knowledge of a crime just committed under the terms of the above-cited provision, does not
require actual presence at the scene while a crime was being committed; it is enough that evidence of the recent
commission of the crime is patent (as in this case) and the police officer has probable cause to believe based on
personal knowledge of facts or circumstances, that the person to be arrested has recently committed the crime.

Considering the circumstances of the stabbing, particularly the locality where it took place, its occasion, the personal
circumstances of the parties, and the immediate on-the-spot investigation that took place, the immediate and
warrantless arrests of the perpetrators were proper. Consequently, the inquest proceeding that the City Prosecutor
conducted was appropriate under the circumstances.

IV. The term "invited" in the Affidavit of Arrest is construed to

mean as an authoritative command

After the resolution of the validity of the warrantless arrest, the discussion of the petitioners' second issue is largely
academic. Arrest is defined as the taking of a person into custody in order that he may be bound to answer for the
commission of an offense. An arrest is made by an actual restraint of the person to be arrested, or by his
submission to the custody of the person making the arrest.  Thus, application of actual force, manual touching of the
91

body, physical restraint or a formal declaration of arrest is not required. It is enough that there be an intention on the
part of one of the parties to arrest the other and the intent of the other to submit, under the belief and impression
that submission is necessary. 92

Notwithstanding the term "invited" in the Affidavit of Arrest,  SP02 Javier could not but have the intention of arresting
93

the petitioners following Atty. Generoso' s account. SP02 Javier did not need to apply violent physical restraint when
a simple directive to the petitioners to follow him to the police station would produce a similar effect. In other words,
the application of actual force would only be an alternative if the petitioners had exhibited resistance.

To be sure, after a crime had just been committed and the attending policemen have acquired personal knowledge
of the incidents of the crime, including the alleged perpetrators, the arrest of the petitioners as the perpetrators
pointed to by the victim, was not a mere random act but was in connection with a particular offense. Furthermore,
SP02 Javier had informed the petitioners, at the time of their arrest, of the charges against them before taking them
to Batasan Hills Police Station for investigation. 94

V. The Order denying the motion for preliminary

investigation is valid

In their last ditch attempt at avoidance, the petitioners attack the R TC Order denying the petitioners' urgent motion
for regular preliminary investigation for allegedly having been issued in violation of Article VIII, Section 14 of the
1987 Constitution  and Rule 16, Section 3 of the Revised Rules of Court.
95 96

The RTC, in its Order dismissing the motion, clearly states that the Court is not persuaded by the evidentiary nature
of the allegations in the said motion of the accused. Aside from lack of clear and convincing proof, the Court, in the
exercise of its sound discretion on the matter, is legally bound to pursue and hereby gives preference to the speedy
disposition of the case."

We do not see any taint of impropriety or grave abuse of discretion in this Order. The RTC, in resolving the motion,
is not required to state all the facts found in the record of the case. Detailed evidentiary matters, as the RTC
decreed, is best reserved for the full-blown trial of the case, not in the preliminary incidents leading up to the trial.

Additionally, no less than the Constitution itself provides that it is the decision that should state clearly and distinctly
the facts and the law on which it is based. In resolving a motion, the court is only required to state clearly and
distinctly the reasons therefor. A contrary system would only prolong the proceedings, which was precisely what
happened to this case. Hence, we uphold the validity of the RTC's order as it correctly stated the reason for its
denial of the petitioners' Urgent Motion for Regular Preliminary Investigation. WHEREFORE, premises considered,
we hereby DENY the petition, and hereby AFFIRM the decision dated January 21, 2008 and the resolution dated
April 17, 2008 of the Court of Appeals in CA-G.R. SP No. 91541. The City Prosecutor of Quezon City is hereby
ORDERED to proceed with the criminal proceedings against the petitioners.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARVIC M.V.F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

ANTONIO T. CARPIO
Acting Chief Justice

Footnotes

 Penned by Associate Justice Sesinando E. Villon, and concurred in by Associate Justice Martin S.
1

Villarama, Jr. (now a Member of this Court) and Associate Justice Noel G. Tijam; rollo, pp. 36-46.

2
 Id. at 48.

 According to the Certification of the Batasan Hills Police Station as regards the excerpt of the PNP
3

Complaint at PNP Complaint Volume 19, Series of2005, Entry No. 324, Page No. 250; RTC records,
attached to the CA records, p. 72.
4
 Id. at 5.

5
 Affidavit of Arrest, id. at 6.

 As shown by the Certification of the Batasan Hills Police Station as regards the excerpt of the PNP
6

Complaint at PNP Complaint Volume 19, Series of2005, Entry No. 324, Page No. 250; id. at 72.

7
 Rollo, p. 37.

8
 RTC records, p. 6.

9
 Rollo, p. 75.

10
 Id. at 37.

11
 Id.

12
 Id.

13
 Id. at 37-38.

14
 The pertinent matters state:

Considering the opposition and issues raised by the prosecution, the Court is not persuaded by the
evidentiary nature of the allegations in the said motion of the accused. Aside from lack of clear and
convincing proof, the Court, in the exercise of its sound discretion on the matter, is legally bound to
pursue and hereby gives preference to the speedy disposition of the case.

ACCORDINGLY, the Urgent Motion for Regular Preliminary Investigation filed by the accused is
DENIED.

15
 Rollo, p. 38.

16
 Id.

17
 Supra note I.

18
 Supra note 2.

 Section 5 of The Philippine Bill of 1902. That no warrant shall issue but upon probable cause, supported by
19

oath or affirmation, and particularly describing the place to be searched and the person or things to be
seized.

 Section 1(3), Article III -The right of the people to be secure in their persons, houses, papers, and effects
20

against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched, and
the persons or things to be seized.

 Section 3, Article IV - The right of the people to be secure in their persons, houses, papers, and effects
21

against unreasonable searches and seizures of whatever nature and whatever purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.

 Section 2, Article III - The right of the people to be secure in their persons, houses, papers, and effects
22

against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

23
 Finkelman, ENCYCLOPEDIA OF AMERICAN CIVIL LIBERTIES, 2006 Ed., p. 82.

 Entitled THE INSTITUTES OF THE LAWES OF ENGLAND, cited generally by Thomas Y. Davies,
24

Correcting Search-and-Seizure History: Now Forgotten Common-Law Warrantless Arrest Standards and the
Original Meaning of Due Process, University of Tennessee College of Law Legal Studies Research Paper
Series, April 23, 2008.

 http://en.wikipedia.org/wiki/Magna Carta, last accessed October 10, 2014.

25

 Id.
26

 homas Y. Davies, Correcting Search-and-Seizure History: Now Forgotten Common-Law Warrantless

27

Arrest Standards and the Original Meaning of Due Process, University of Tennessee College of Law Legal
Studies Research Paper Series, April 23, 2008.

 Id at 45.
28

 Wrongfully dispossessed.
29

 Supra note 27.

30

 278 Fed. 650.

31

 The People of the Philippine Islands v. Malasugui, G.R. No. L-44335, 63 Phil. 221, 226 (1936).
32

 Finkelman, ENCYCLOPEDIA OF AMERICAN CIVIL LIBERTIES, 2006 Ed., p. 82.

33

 The United States v. Santos, 36 Phil. 853, 856 (1917).

34

 The United States v. Fortaleza, 12 Phil. 472, 474-480 (1909).

35

 4 Phil. 317, 323-324 (1905).

36

 In The United States v. Fortaleza, the Court cited Section 37 ctf Act No. 183 (Charter of Manila), which
37

designates certain officials, including police officers, as "peace officers" expressly provides that within the
territory defined in the Act they "may pursue and arrest without warrant, any person found in suspicious
places or under suspicious circumstances, reasonably tending to show that such person has committed, or
is about to commit any crime or breach of the peace; may arrest, or cause to be arrested without warrant,
any offender, when the offense is committed in the presence of a peace officer or within his view."

 11 Phil. 193, 197 (1908).

38

 Supra note 34, at 856.

39

 Id. Citizens must be protected from annoyance and crime. Prevention of crime is just as commendatory as
40

the capture of criminals and the officer should not wait the commission of the crime.

This rule is supported by the necessities of life.

 Sec. 2204, 1916 ed.; Sec. 2258, 1917 ed.

41

 Supra note 35, at 477-479.

42

 Section 37 (a) If the number of barrios in a municipality is less than or equal to the number of councilors
43

the council shall put each of its members in immediate charge of a barrio or part of a barrio, so that each
barrio shall be under the direction of one or more councilors.

(b) If the number of barrios exceeds the number of councilors, including the vice-president, the
council shall group the barrios into as many districts as there are councilors, and shall place each
councilor in charge of one such district. Each councilor shall be empowered to appoint one
lieutenant in each barrio or part of barrio which comes under his immediate supervision. A lieutenant
of barrio shall serve without compensation and shall report directly to the councilor appointing him.

Sec. 38. (a) Each councilor shall keep the people of his barrio or barrios informed as to the acts of
the council, or other governmental measures which directly concern them, by means of suitable
notices posted in a public and conspicuous place in each barrio. He shall serve in the council as the
representative of the people of his barrio or barrios and shall bring their special needs to the
attention of that body.

(b) He shall further promptly inform the president of any unusual or untoward event occurring within
the barrios assigned to him.
 (c) He is authorized to use as a symbol of office a cane with silver head, plated ferule and black cord
and tassels.

 Malacat v. CA, 347 Phil. 462, 479 (1997).

44

 Supra note 35, at 477-478.

45

 Supra note 34, at 856.

46

 60 Ill. 361 (1871].

47

 Supra note 34, at 854-855.

48

 G.R. No. L-6909, 21 Phil. 514-516 (1912).

49

 Resolution of Motion for Reconsideration in Sayo v. The Chief of Police, 80 Phil. 859, 875 (1948).
50

 Oscar M. Herrera, Remedial Law, Book IV, 2007 Edition, citing Feria, Philippine Legal Studies, Series No.
51

2, p. 375.

 5 Am Jur 2d, p. 688, citing Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S Ct. 1371.
52

 111SC174,97, SE 62, 3 ALR 1500, cited in 5 Am Jur 2d, p. 689.

53

 361 U.S. 98, 4 L. Ed. 2d 134, 80 S Ct. 168, cited in 5 Am Jur 2d, p. 688.
54

 5 Am Jur 2d, p. 690, citing United States v. Keown, 19 F. Supp. 639 (W.D. Ky. 1937) and Draper v. United
55

States, 358 U.S. 307 (1959).

 5 Arn Jur 2d, pp. 691-692, citing Moore v. Marketplace Restaurant, Inc., 754 F. 2d 1336; Be Vier v. Hucal,
56

(CA? Ill) 806 F. 2d 123; Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560; Martin v. Eaton,
140 Vt 134, 436 A. 2d 751; Warren v. Dwyer, 906 F. 2d 70; State v. Kendall, 794 P. 2d 114; People v.
Villiard, 679 P. 2d 593; State v. Tarica, 59 Wash App 368, 798 P. 2d 296; Hill v. California, 401 U.S. 797;
United States v. Bell, 48 F. Supp. 986; Gaudio v. State, 1 Md App 455, 230 A. 2d 700.

 5 Arn Jur 2d, pp. 692, citing Hill v. California, 401 U.S. 797, 28 L Ed 2d 484, 91 S Ct 1106;
57

United States v. Bell, 48 F. Supp. 986; People v. Exum, 382 Ill 204, 47 N. E. 2d 56; Wilson v.
Commonwealth, 403 S.W. 2d 705; Gaudio v. State, 1 Md App 455, 230 A. 2d 700.

 5 Arn Jur 2d, pp. 692, citing Thompson v. State (Del Sup) 539 A. 2d 1052; Ricks v State, 82 Md. App. 369,
58

571 A. 2d 887, cert gr 320 Md 3505, 578 A. 2d 778 and affd 322 Md 183, 586 A. 2d 740; People v. Tracy,
186 Mich App 171, 46. N.W. 2d 457; State v. Leonard (Utah App) 825 P. 2d 664, 177 Utah Adv Rep 49, cert
den (Utah) 843 P. 2d 1042.

 G.R. No. 170672, August 14, 2009, 596 SCRA 220, 227.
59

 Paderanga v. Drilon et al., 273 Phil. 290, 296 (1991).

60

 32 Phil. 363, 365 (1915).

61

 Section 3, Rule 112 of the Revised Rules of Criminal Procedure.

62

 People v. CA, 361Phil.401, 413 (1999).

63

 People v. Racho, G.R. No. 186529, August 3, 2010, 626 SCRA 633, 642.
64

 Supra note 59.

65

 Supra note 34.

66

 Id.
67

 G.R. No. 131492, September 29, 2000, 341 SCRA 388.

68

 G.R. L-68995, September 4, 1986, 144 SCRA 1.

69
  365 Phil. 292, 312 (1999).
70

 268 Phil. 571, 576 (1990).

71

 G.R. No. 101837, February 11, 1992, 206 SCRA 138, 150.
72

 G.R. No. 94533, February 4, 1992, 205 SCRA 772, 775, 778.
73

 G.R. No. 95847-48, March 10, 1993, 219 SCRA 756, 761.
74

 341 Phil. 526, 534, 543 (1997).

75

 346 Phil. 847, 853-854 (1997).

76

 232 Phil. 406 (1994).

77

 G.R. No. 123123, August 19, 1999, 232 SCRA 412-413.

78

 Supra note 59.

79

 Fifth Edition, p. 220.

80

 New City Builders, Inc. v. NLRC, 499 Phil. 207, 212-213 (2005).
81

 According to the Certification of the Batasan Hills Police Station as regards the excerpt of the PNP
82

Complaint at PNP Complaint Volume 19, Series of2005, Entry No. 324, Page No. 250; RTC records, p. 72.

 Rollo, pp. 73-74.

83

 Issued by the Medico-Legal Officer, Dr. Charlton S. Sibal, M.D.; RTC records, p. 7.
84

 Joey Pestilos then resided at Block 1, Lot 6, Don Primitivo Extension, Brgy. Holy Spirit, Quezon City;
85

Dwight Macapanas then resided at No. 24 Kasiyahan St., Brgy. Holy Spirit, Quezon City; Miguel Gaces then
resided at No. 13, Kasiyahan St., Brgy. Holy Spirit, Quezon City; Jerry Fernandez resided at No. 16,
Kasiyahan St., Brgy. Holy Spirit, Quezon City; Ronald Mufioz then resided at No. 15, Kasiyahan St., Brgy.
Holy Spirit, Quezon City; RTC records, p. 4.

 Atty. Generoso then resided at No. 16 Kasiyahan St., Brgy. Holy Spirit, Quezon City per the referral letter
86

of the Police Inspector to the City Prosecutor, dated February 20, 2005; id.

 Rollo, p. 75.
87

 Supra note 76.

88

 G.R. No. 144497, June 29, 2004, 433 SCRA 139.

89

 Rollo, p. 40.
90

 Rule 113, Section 2 of the Revised Rules of Court.

91

 Sanchez v. Demetriou, G.R. Nos. 111771-77, November 9, 1993, 227 SCRA 627, 637-638; see also
92

People v. Mi/ado, 462 Phil. 411, 417 (2003).

 The pertinent portion of the Affidavit of Arrest states:

93

That, immediately we proceeded at the said place and upon arrival complainant appeared
complained and pointed to the undersigned to suspects [Joey] Pestilos, Dwight Macapanas, Miguel
Gaces[,] Jerry Fernandez and Ronald Munoz at (sic) those who mauled him.

That, I informed all the suspects of the charges imputed [against] them by complainant Atty.
Generoso then invited them to Batasan Police Station for Investigation x x x" (Emphasis ours)

 Rollo, p. 41.
94

 Sec. 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the
95

facts and the law on which it is based.

 No petition for review or motion for reconsideration of a decision of the court shall be refused due
course or denied without stating the legal basis therefor.

 SEC. 3. Resolution of motion. - After the hearing, the court may dismiss the action or claim, deny the
96

motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor.
 EN BANC

[G.R. No. 127755. April 14, 1999]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOSELITO DEL

ROSARIO y PASCUAL, accused-appellant.

DECISION

BELLOSILLO, J.:

ON AUTOMATIC REVIEW is the decision of the court a quo finding

accused Joselito del Rosario y Pascual guilty as co-principal in the
crime of Robbery with Homicide and sentencing him to death and to
pay the heirs of the victim Virginia Bernas P550,000.00 as actual
damages and P100,000.00 as moral and exemplary damages.1

Joselito del Rosario y Pascual, Ernesto Marquez alias Jun, Virgilio

Santos alias Boy Santos and John Doe alias Dodong were charged with
special complex crime of Robbery with Homicide for having robbed
Virginia Bernas, a 66-year old businesswoman, of P200,000.00 in cash
and jewelry and on the occasion thereof shot and killed her.2

While accused Joselito del Rosario pleaded not guilty,3 Virgilio Boy

Santos and John Doe alias Dodong remained at large. Ernesto Jun
Marquez was killed in a police encounter. Only Joselito del Rosario
was tried.

These facts were established by the prosecution from the eyewitness

account of tricycle driver Paul Vincent Alonzo: On 13 May 1996
between 6:00 and 6:30 in the evening, Alonzo stopped his tricycle by
the side of Nitas Drugstore, General Luna St., Cabanatuan City, when
three women flagged him. Parked at a distance of about one and a-
half (1) meters in front of him was a tricycle driven by accused
Joselito del Rosario. At that point, Alonzo saw two (2) men and a
woman grappling for possession of a bag. After taking hold of the bag
one of the two men armed with a gun started chasing a man who was
trying to help the woman, while the other snatcher kicked the woman
sending her to the ground. Soon after, the armed man returned and
while the woman was still on the ground he shot her on the head. The
bag taken by the man was brought to the tricycle of accused del
Rosario where someone inside received the bag. The armed man then
sat behind the driver while his companion entered the sidecar. When
the tricycle sped away Alonzo gave chase and was able to get the
plate number of the tricycle. He also recognized the driver, after which
he went to the nearest police headquarters and reported the incident.4

Accused Joselito del Rosario gave his own version of the incident: At
around 5:30 in the afternoon he was hired for P120.005 by a certain
Boy Santos,6 his co-accused. Their original agreement was that he
would drive him to cockpit at the Blas Edward Coliseum.7 However,
despite their earlier arrangement boy Santos directed him to proceed
to the market place to fetch Jun Marquez and Dodong Bisaya. He (del
Rosario) acceded.8 Marquez and Bisaya boarded in front of the parking
lot of Merced Drugstore  at the public market.9 Subsequently, he was
asked to proceed and stop at the corner of Burgos and General Luna
Sts. where Bisaya alighted on the pretest of buying a cigarette. The
latter then accosted the victim Virginia Bernas and grappled with her
for the possession of her bag. Jun Marquez alighted from the tricycle
to help Dodong Bisaya.10 Accused del Rosario tried to leave and seek
help but Boy Santos who stayed inside the tricycle prevented him from
leaving and threatened in fact to shoot him.

Meanwhile, Dodong Bisaya succeeded in taking the victims bag, but

before boarding the tricycle Jun Marquez mercilessly shot the victim
on the head while she was lying prone on the ground. After the
shooting, Dodong Bisaya boarded the sidecar of the tricycle while Jun
Marquez rode behind del Rosario and ordered him to start the engine
and drive towards Dicarma. While inside his tricycle, del Rosario
overheard his passengers saying that they would throw the bag at
Zulueta St. where there were cogon grasses.11 Upon arriving at
Dicarma, the three (3) men alighted and warned del Rosario not to
inform the police authorities about the incident otherwise he and his
family would be harmed.12 Del Rosario then went home.13 Because of
the threat, however, he did not report the matter to the owner of the
tricycle nor to the barangay captain and the police.14

As earlier stated, the court a quo found accused Joselito del Rosario

guilty as charged and sentenced him to death. He now contends in this
automatic review that the court a quo erred in: (1) Not finding the
presence of threat and irresistible force employed upon him by his co-
accused Virgilio Boy Santos, Ernesto Jun Marquez and Dodong Bisaya;
(2) Not considering his defense that he was not part of the conspiracy
among co-accused "Boy" Santos, "Jun" Marquez and "Dodong" Bisaya
to commit the crime of Robbery with Homicide; (3) Not considering
the violations on his constitutional rights as an accused; and, (4) Not
considering that there was no lawful warrantless arrest within the
meaning of Sec. 5, Rule 113, of the Rules of Court.15

The conviction of del Rosario must be set aside. His claim for
exemption from criminal liability under Art. 12, par. 5, Revised Penal
Code as he acted under the compulsion of an irresistible force must be
sustained. He was then unarmed and unable to protect himself when
he was prevented at gunpoint by his co-accused from leaving the
crime scene during the perpetration of the robbery and killing, and
was only forced to help them escape after the commission of the
crime.16

But the trial court ruled that his fear was merely speculative, fanciful
and remote, hence, could not be considered uncontrollable; and that a
gun pointed at him did not constitute irresistible force because it fell
short of the test required by law and jurisprudence.17

We disagree. A person who acts under the compulsion of an

irresistible force, like one who acts under the impulse of an
uncontrollable fear of equal or greater injury, is exempt from criminal
liability because he does not act with freedom. Actus me invito factus
non est meus actus. An act done by me against my will is not my act.
The force contemplated must be so formidable as to reduce the actor
to a mere instrument who acts not only without will but against his
will. The duress, force, fear or intimidation must be present, imminent
and impending, and of such nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act be done. A
threat of future injury is not enough. The compulsion must be of such
a character as to leave no opportunity for the accused for escape or
self-defense in equal combat.18

As a rule, it is natural for people to be seized by fear when threatened

with weapons, even those less powerful that a gun, such as knives and
clubs. People will normally, usually and probably do what an armed
man asks them to do, nothing more, nothing less. In the instant case,
del Rosario was threatened with a gun. He could not therefore be
expected to flee nor risk his life to help a stranger. A person under the
same circumstances would be more concerned with his personal
welfare and security rather than the safety of a person whom he only
saw for the first time that day.19

Corollary with defense of del Rosario, we hold that the trial court
erred when it said that it was Boy Santos who left the tricycle to chase
the companion of the victim and then shot the victim on the head,
instantly killing her.20 A careful and meticulous scrutiny of the
transcripts and records of the case, particularly the testimonies of the
witness Alonzo and del Rosario himself, reveals that it was Jun
Marquez who ran after the victims helper and fired at the victim.
Witness Alonzo testified on direct examination -

Q: What was that unusual incident that transpired in that place at that
time?

A: I saw two men and a lady grappling for the possession of a bag, sir
xxxx

Q: What happened after the bag of the lady was grabbed by the two
men?

A: One helper of the lady was chased by the other man, sir.

Q: Who was that man who chased the helper of the lady?

A: He was the one holding the gun, sir x x x x

Q: What happened when the bag of the woman was already taken by
the two men who grappled the same from her?

A: The man who chased the helper of the lady returned to the scene
while the other man was then kicking the lady who in turn fell to the
ground, sir.

Q: What happened to the lady who to the ground?

A: The man who chased the helper of the lady returned and then shot
the woman who was then lying on the ground, sir x x x x

Q: What about the bag, what happened to the bag?

A: The bag was taken to a motorcycle, sir.

Q: Will you please state before the Court what you noticed from the
tricycle which was at a distance of about one and a half meter?

A: There was a passenger inside the tricycle,  sir  x x x x

Q: What happened to that woman that was shot by the man who
grappled for the possession of the bag?

A: She was no longer moving and lying down, sir.

Q: After the shooting by one of the two men of the woman what else
happened?

A: They went away, sir x x x x

Q: Will you please tell the Court in what portion of the tricycle did
these men sit in the tricycle?

A: The man who was holding the gun sat himself behind the
driver  while the other man  entered the sidecar, sir.21cräläwvirtualibräry

On the continuation of his direct examination, after an ocular

inspection on the crime scene conducted by the trial court, witness
Alonzo categorically stated

Q: Will you please tell us where in particular did you see the accused
who was then holding the gun fired at the victim?

A: At the time  one man was kicking the victim it was then his other
companion holding the gun chased the helper of the deceased going
towards Burgos Avenue, sir.

Q: What happen (sic) afterwards?

A: The man with the gun returned and then while the victim was lying
down in this spot the man holding the gun shot the victim, sir.22 cräläwvirtualibräry

On cross-examination, the same witness further clarified

Q: So, you saw the two other accused returned back to the tricycle?

A: Yes, sir.

Q: And one of their companion was already inside the tricycle?

xxxx
Court: There was somebody inside the tricycle where the handbag was
given.

xxxx

A: Yes, sir.

Q: And the one who sat at the back of the tricycle driver was the
person with the gun?

A: Yes, sir.23 cräläwvirtualibräry

On the other hand, accused Del Rosario declared during the direct
examination that

Q: x x x x On the evening of May 13, 1996 you were the driver of the
tricycle as testified to by Eduardo Nalagon?

A: Yes, sir.

Q: Now, you also heard that there was a shoot out near the Cathedral
and the Nitas Drugstore at Gen. Tinio St.?

A: Yes, sir.

xxxx

Court: At that time you were seated at the tricycle, which tricycle was
used by the assailants?

A: Yes, sir.

Q: Then what did you do?

A: I tried to escape, sir, but I was stopped by them.

Q: When you said they to whom are you referring?

A: Boy Santos and Jun Marquez, sir.

Q: And at that time where was Boy Santos?

A: He was inside the tricycle, sir.

Q: And what about Jun Marquez?

A: He alighted from the tricycle and helped him grabbed (sic) the bag
of the victim .

Q: And was the bag grabbed and by whom?

A: Yes, sir, by Dodong Visaya was able to grab the bag.

Q: And after that what happened?

A: Both of them rode inside my tricycle, sir.

Court: Did you not see any shooting?

A: There was, sir.

Q: Who was shot?

A: Jun Marquez shot the woman, sir  x x x x

Q: When the bag of the woman was being grabbed you know that
what was transpiring was wrong and illegal?

A: Yes, sir.

Q: But you did not try to leave?

A: I tried to leave but Boy Santos who was inside my tricycle
prevented me.

Q: During that time before you leave (sic) how many firearms did you
see?

A: Two firearms, sir, one in the possession of Boy (Jun?) Marquez and
one in the possession of Boy Santos x x x x

Q: And at the time when the shooting took place where was Boy
Santos?

A: He was still inside my tricycle, sir.

Q: And during the shooting when Boy Santos was inside the tricycle
and when you tried to escape that was the time when Boy Santos
threatened you if you will escape something will happen to your
family?

A: Yes, sir.

Q: After the shooting who first boarded the tricycle, Boy (Jun?)
Marquez or Dodong Visaya?

A: Dodong Visaya, sir.

Q: And immediately thereafter Jun Marquez boarded your tricycle

sitting at your back?

A: Yes, sir.24 cräläwvirtualibräry

On cross-examination, accused further stated

Q: After shopping in that place for one minute what else happened?

A: I saw Dodong Bisaya grabbing the bag of the woman, sir.

Q: How about your two companions, what are (sic) they doing while
Dodong Bisaya was grabbing the bag of the woman?
A: Jun Marquez was helping Dodong Bisaya, sir.

Q: What happened after Jun Marquez helped Dodong Bisaya?

A: I heard a gunshot and I saw the woman lying down x x x x

Q: You could have ran away to seek the help of the police or any
private persons?

A: I was not able to ask for help because Boy Santos pointed his gun
to me, sir.

Q: Was the gun being carried by Boy Santos, is the one that is used in
shooting the old woman?

A: No, sir x x x x.

Q: Where was Boy Santos when Dodong Bisaya and Jun Marquez were
grappling for the possession of the handbag?

A: He was then inside the tricycle, sir x x x x25 cräläwvirtualibräry

Q: Mr. Witness, you testified that the reason why you just cannot
leave the area where the incident occurred is because a gun was
pointed to you by Boy Santos and he was telling you that you should
not do anything against their will, they will kill you and your family
will be killed also, is that correct?

A: Yes, sir.

Q: Now, is it not a fact that at the time you stop (sic) your tricycle
which was loaded by your other three co-accused in this case, all of
them alighted and that Boy Santos ran after a helper of the victim
going towards the public market along Burgos Street?

A: He did not alight from the tricycle, sir.

Court: Are you quite sure of that?

A: Yes, sir.26 cräläwvirtualibräry

Del Rosario maintains that Boy Santos never left the tricycle and that
the latter pointed his gun at him and threatened to shoot if he tried to
escape. He also asserted that it was Jun Marquez who shot the victim
and sat behind him in the tricycle.

From the narration of witness Alonzo, these events stood out: that
after the bag of the victim was grabbed, her male helper was chased
by a man holding a gun; that the gunwielder returned and shot the
victim and then sat behind the driver of the tricycle; and, the bag was
given to a person who was inside the tricycle. Taking the testimony of
witness Alonzo in juxtaposition with the testimony of del Rosario, it
can be deduced that Jun Marquez was the person witness Alonzo was
referring to when he mentioned that a helper of the lady was
chased by the other man and that this other man could not be Boy
Santos who stayed inside the tricycle and to whom the bag was
handed over. This conclusion gives credence to the claim of del
Rosario that Boy Santos never left the tricycle, and to his allegation
that Boy Santos stayed inside the tricycle precisely to threaten him
with violence and prevent him from fleeing; that there could have
been no other plausible reason for Boy Santos to stay in the tricycle if
the accused was indeed a conspirator; that Boy Santos could have just
left the tricycle and helped in the commission of the crime, particularly
when he saw the victim grappling with Dodong Bisaya and resisting
the attempts to grab her bag; and, that Boy Santos opted to remain
inside the tricycle to fulfill his preordained role of threatening del
Rosario and insuring that he would not escape and leave them
behind.27

Even if the tricycle of del Rosario was only parked one meter and a
half (1) in front of the tricycle of witness Alonzo, the latter still could
not have totally seen and was not privy to events that were
transpiring inside the vehicle, i.e., the pointing of the gun by Boy
Santos at del Rosario simultaneously with the robbing and shooting of
the victim. From the exhibits submitted by the prosecution panel the
back of the sidecar of del Rosario tricycle was not transparent.28

There is no doubt that the fear entertained by del Rosario because of

the gun directly pointed at him was real and imminent. Such fear
rendered him immobile and subject to the will of Boy Santos, making
him for the moment of automaton without a will of his own. In other
words, in effect, he could not be any more than a mere instrument
acting involuntarily an against his will. He is therefore exempt from
criminal liability since by reason of fear of bodily harm he was
compelled against his will to transport his co-accused away from the
crime scene.

On the issue of conspiracy, the trial court anchored del Rosarios

conviction on his participation in the orchestrated acts of Boy Santos,
Jun Marquez and Dodong Bisaya. According to the trial court, del
Rosario facilitated the escape of the other malefactors from the crime
scene and conspiracy between accused and his passengers was
evident because while the grappling of the bag, the chasing of the
helper of the victim and the shooting that led to the death of Virginia
Bernas were happening, accused Joselito del Rosario was riding on his
tricycle and the engine of the motor was running;29 that the accused
did not deny that the tricycle driven by him and under his control was
hired and used by his co-accused in the commission of the crime;
neither did he deny his failure to report to the authorities the incident
of robbery, killing and fleeing away from the scene of the crime.30

We disagree with the trial court. A conspiracy in the statutory

language exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. The
objective of the conspirators is to perform an act or omission
punishable by law. That must be their intent. There is need for
concurrence of wills or unity of action and purpose or for common and
joint purpose and design. Its manifestation could be shown by united
and concerted action.31

Admittedly, direct proof is not essential to establish conspiracy. Since

by its nature conspiracy is planned in utmost secrecy, it can rarely be
proved by direct evidence. Consequently, the presence of the
concurrence of minds which is involved in conspiracy may be inferred
from proof of facts and circumstances which, taken together,
apparently indicate that they are merely parts of some complete
whole. If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing
a part so that their combined acts, though apparently independent,
were in fact connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment, a conspiracy
may be inferred though no actual meeting among them to concert
means is proved. That would be termed an implied
conspiracy.32 Nevertheless, mere knowledge, acquiescence or approval
of the act, without the cooperation or agreement to cooperate, is not
enough to constitute one a party to a conspiracy, but that there must
be intentional participation in the transaction with a view to the
furtherance of the common design and purpose. Conspiracy must be
established, not by conjectures, but by positive and conclusive
evidence. In fact, the same degree of proof necessary to establish the
crime is required to support a finding of the presence of a criminal
conspiracy, which is, proof beyond reasonable doubt.33

In the instant case, while del Rosario admits that he was at the locus
criminis  as he was the driver of the getaway vehicle, he nonetheless
rebuts the imputation of guilt against him by asserting that he had no
inkling of the malevolent design of his co-accused to rob and kill since
he was not given any briefing thereof. He was merely hired by Boy
Santos to drive to an agreed destination and he was prevented at
gunpoint from leaving the scene of the crime since he was ordered to
help them escape.

In this case, the trial court stated that "there is no evidence that the
accused came to an agreement concerning the commission of the
felony and decided to commit the same."34 Therefore, in order to
convict the accused, the presence of an implied conspiracy is required
to be proved beyond reasonable doubt. However, the fact that del
Rosario was with the other accused when the crime was committed is
insufficient proof to show cabal. Mere companionship does not
establish conspiracy.35 The only incriminating evidence against del
Rosario is that he was at the scene of the crime but he has amply
explained the reason for his presence and the same has not been
successfully refuted by the prosecution. As stated earlier, he feared
for his safety and security because of the threat made by his co-
accused that he would, be killed should he shout for help. No
complicity can be deduced where there is absolutely no showing that
the accused directly participated in the overt act of robbing and
shooting although he was with the persons who robbed and killed the
victim.36
That del Rosario did not disclose what he knew about the incident to
the authorities, to his employer or to the barangay captain does not
affect his credibility. The natural hesitance of most people to get
involved in a criminal case is of judicial notice.37 It must be recalled
that del Rosario was merely a tricycle driver with a family to look
after. Given his quite limited means, del Rosario understandably did
not want to get involved in the case so he chose to keep his silence.
Besides, he was threatened with physical harm should he squeal.

Del Rosario further contends that there was violation of his right to
remain silent, right to have competent and independent counsel
preferably of his own choice, and right to be informed of these rights
as enshrined and guaranteed in the Bill of Rights.38 As testified to by
SP04 Geronimo de Leon, the prosecution witness who was the team
leader of the policemen who investigated the 13 May incident, during
his cross-examination -

Upon finding the name of the owner of the tricycle, they proceeded to
Bakod Bayan in the house of the barangay captain where the owner of
the tricycle was summoned and who in turn revealed the driver's
name and was invited for interview. The driver was accused Joselito
del Rosario who volunteered to name his passengers on May 13, 1996.
On the way to the police station, accused informed them of the bag
and lunch kit's location and the place where the hold-uppers may be
found and they reported these findings to their officers, Capt. Biag and
Capt. Cruz. After lunch, they proceeded to Brgy. Dicarma composed of
15 armed men where a shoot-out transpired that lasted from 1:00 to
4:00 o'clock in the afternoon. After a brief encounter, they went inside
the house where they found Marquez dead holding a magazine and a
gun. While all of these were happening, accused del Rosario was at
the back of the school, after which they went back to the police
station. The investigator took the statement of the accused on May
14,1996, and was only subscribed on May 22,1996. All the while, he
was detained in the police station as ordered by the Fiscal. His
statements were only signed on May 16, 1996. He also executed a
waiver of his detention. His Sinumpaang Salaysay was done with the
assistance of Ex-Judge Talavera.39 cräläwvirtualibräry

A further perusal of the transcript reveals that during the encounter at

Brgy. Dicarma, del Rosario was handcuffed by the police because
allegedly they had already gathered enough evidence against him and
they were afraid that he might attempt to escape.40

Custodial investigation is the stage where the police investigation is

no longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect taken into custody by the police who
carry out a process of interrogation that lends itself to elicit
incriminating statements. It is well-settled that it encompasses any
question initiated by law enforcers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.41 This concept of custodial investigation has been
broadened by RA 743842 to include "the Practice of issuing
an 'invitation' to a person who is investigated in connection with an offense he is
suspected to have committed." Section 2 of the same Act further provides that -

x x x x Any public officer or employee, or anyone acting under his

order or in his place, who arrests, detains or investigates any person
for the commission of an offense shall inform the latter, in a language
known and understood by him of his right to remain silent and to have
competent and independent counsel, preferably of his own choice,
who shall at all times be allowed to confer privately with the person
arrested, detained or under custodial investigation. If such person
cannot afford the services of his own counsel, he must be provided
with a competent and independent counsel by the investigating
officer.

From the foregoing, it is clear that del Rosario was deprived of his
rights during custodial investigation. From the time he was "invited"
for questioning at the house of the barangay captain, he was already
under effective  custodial investigation, but he was not apprised nor
made aware thereof by the investigating officers. The police already
knew the name of the tricycle driver and the latter was already a
suspect in the robbing and senseless slaying of Virginia Bernas. Since
the prosecution failed to establish that del Rosario had waived his
right to remain silent, his verbal admissions on his participation in the
crime even before his actual arrest were inadmissible against him, as
the same transgressed the safeguards provided by law and the Bill of
Rights.

Del Rosario also avers that his arrest was unlawful since there was no
warrant therefor. Section 5, Rule 113 of the Rules of Court provides:43

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a

private person may, without a warrant, arrest a person: (a) When, in
his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense; (b) When an
offense has in fact been committed and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and,
(c) When the person to be arrested is a prisoner who has escaped
from penal establishment or place where he is serving final judgment
or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.

It must be recalled that del Rosario was arrested by SPO4 De Leon

during the police raid at the place of "Jun" Marquez at Brgy. Dicarma
on 14 May 1996. In People vs Sucro44 we held that when a police
officer sees the offense, although at a distance, or hears the
disturbances created thereby, and proceeds at once to the scene
thereof, he may effect an arrest without a warrant on the basis of Sec.
5, par. (a), Rule 113, since the offense is deemed committed in his
presence or within his view. In essence, Sec. 5, par. (a), Rule 113,
requires that the accused be caught in flagrante delicto  or caught
immediately after the consummation of the act. The arrest of del
Rosario is obviously outside the purview of the aforequoted rule since
he was arrested on the day following the commission of the robbery
with homicide.

On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2)
stringent requirements before a warrantless arrest can be effected:
(1) an offense has just  been committed; and (2) the person making
the arrest has personal knowledge  of facts indicating that the person
to be arrested had committed it. Hence, there must be a large measure
of immediacy  between the time the offense was committed and the
time of the arrest, and if there was an appreciable lapse of time
between the arrest and the commission of the crime, a warrant of
arrest must be secured. Aside from the sense of immediacy, it is also
mandatory that the person making the arrest must have personal
knowledge  of certain facts indicating that the person to be taken into
custody has committed the crime.45 Again, the arrest of del Rosario
does not comply with these requirements since, as earlier explained,
the arrest came a day after the consummation of the crime and not
immediately thereafter. As such, the crime had not been "just
committed" at the time the accused was arrested. Likewise, the
arresting officers had no personal knowledge of facts indicating that
the person to be arrested had committed the offense since they were
not present and were not actual eyewitnesses to the crime, and they
became aware of his identity as the driver of the getaway tricycle only
during the custodial investigation.

However the conspicuous illegality of del Rosario's arrest cannot

affect the jurisdiction of the court a quo because even in instances not
allowed by law, a warrantless arrest is not a jurisdictional defect and
any objection thereto is waived when the person arrested submits to
arraignment without any objection, as in this case.46

A transgression of the law has occurred. Unfortunately, an innocent

person lost her life and property in the process. Someone therefore
must be held accountable, but it will not be accused Joselito del
Rosario; we must acquit him. Like victim Virginia Bernas, he too was a
hapless victim who was forcibly used by other persons with nefarious
designs to perpetrate a dastardly act. Del Rosario's defense of
"irresistible force" has been substantiated by clear and convincing
evidence. On the other hand, conspiracy between him and his co-
accused was not proved beyond a whimper of a doubt by the
prosecution, thus clearing del Rosario of any complicity in the crime
charged.

WHEREFORE, the decision of the Regional Trial Court of Cabanatuan

City convicting accused JOSELITO DEL ROSARIO Y PASCUAL of
Robbery with Homicide and sentencing him to death, is REVERSED and
SET ASIDE, and the accused is ACQUITTED of the crime charged. His
immediate RELEASE from confinement is ordered unless held for some
other lawful cause. In this regard, the Director of Prisons is directed to
report to the Court his compliance herewith within five (5) days from
receipt hereof.

SO ORDERED.
Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes,
and Ynares-Santiago, JJ. concur.
 [G.R. No. 131492. September 29, 2000.]

ROGER POSADAS, ROSARIO TORRES-YU, and MARICHU LAMBINO, Petitioners, v. THE HON.

OMBUDSMAN, THE SPECIAL PROSECUTOR, and ORLANDO V. DIZON, Respondents.

DECISION

MENDOZA, J.:

Dennis Venturina, a member of Sigma Rho at the University of the Philippines, was killed in a rumble
between his fraternity and another fraternity on December 8, 1994. In a letter dated December 11,
1994, petitioner Roger Posadas, then Chancellor of U.P. Diliman in Quezon City, asked the Director of
the National Bureau of Investigation for assistance in determining the persons responsible for the
crime. In response to the request, respondent Orlando V. Dizon, Chief of the Special Operations
Group of the NBI, and his men went to U.P. on December 12 and, on the basis of the supposed
positive identification of two alleged eyewitnesses, Leandro Lachica and Cesar Mangrobang, Jr.,
attempted to arrest Francis Carlo Taparan and Raymundo Narag, officers/members of the Scintilla
Juris Fraternity, as suspects in the killing of Venturina. It appears that the two suspects had come
that day to the U.P. Police Station for a peace talk between their fraternity and the Sigma Rho
Fraternity.

Petitioners Posadas, Marichu Lambino, and Rosario Torres-Yu, also of U.P., and a certain Atty.
Villamor, counsel for the suspects, objected on the ground that the NBI did not have warrants of
arrest with them. Posadas and Atty. Villamor promised to take the suspects to the NBI Office the
next day. As a result of their intervention, Taparan and Narag were not arrested by the NBI agents
on that day. 1 However, criminal charges were filed later against the two student suspects. 2

Dizon then filed a complaint in the Office of the Special Prosecutor, charging petitioners Posadas,
Torres-Yu, Lambino, Col. Eduardo Bentain, Chief of the Security Force of the U.P. Police, and Atty.
Villamor with violation of P.D. 1829, 3 which makes it unlawful for anyone to obstruct the
apprehension and prosecution of criminal offenders.

On May 18, 1995, an information 4 was filed against them, alleging that: chanrob1es virtual 1aw library

That on or about December 12, 1994 and for sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, above-named accused, namely:
ROGER POSADAS, Chancellor; ROSARIO YU — Vice Chancellor; ATTY. MARICHU LAMBINO — Asst.
Legal Counsel; and COL. EDUARDO BENTAIN — Chief, Security Force, all of the University of the
Philippines, Diliman, Quezon City, all public officers, while in the performance of their respective
official functions, taking advantage of their official duties and committing the crime in relation to their
office, conspiring and confederating with each other and with a certain ATTY. VILLAMOR, did then
and there wilfully, knowingly and criminally obstruct, impede and frustrate the apprehension of
FRANCIS CARLO TAPARAN and RAYMUNDO NARAG, both principal suspects involved in the brutal
killing of DENNIS VENTURINA, a U.P. graduating student and Chairperson of the UP College of
Administration, Student Council, and delaying the investigation and prosecution of the said heinous
case by harboring and concealing said suspects thus, leading to the successful escape of suspects
Narag and another principal suspect JOEL CARLO DENOSTA; that said above acts were done by the
above-named accused public officials despite their full knowledge that said suspects were implicated
in the brutal slaying of said Dennis Venturina, thus preventing the suspects arrest, prosecution and
conviction.

CONTRARY TO LAW.

Later, on motion of petitioners, the Special Prosecutor’s Office recommended the dismissal of the
case. But the recommendation was disapproved. In a memorandum, dated September 8, 1997, the
Office of the Ombudsman directed the Special Prosecutor to proceed with the prosecution of
petitioners in the Sandiganbayan. Hence this petition for certiorari and prohibition to set aside the
resolution of the Ombudsman’s office ordering the prosecution of petitioners.

Petitioners contend that: chanrob1es virtual 1aw library

I. THE HONORABLE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN HE RULED

THAT: 1) STUDENTS COULD BE ARRESTED WITHOUT WARRANT ON MERE SUSPICION; 2) PD 1829
INCLUDES ARRESTS WITHOUT WARRANTS ON MERE SUSPICION; AND WHEN HE REVERSED THE
FINDINGS AND RESOLUTION OF THE SPECIAL PROSECUTION OFFICER, THE DEPUTY SPECIAL
PROSECUTOR AND THE SPECIAL PROSECUTOR, WHO CONDUCTED THE REINVESTIGATION OF THE
CASE; AND FINALLY WHEN HE RESOLVED THAT PETITIONERS SHOULD BE SUBJECTED TO PUBLIC
TRIAL WHEN THERE IS NO PROBABLE CAUSE AND NO BASIS.

II. SECTION 1, PARAGRAPH C OF PRESIDENTIAL DECREE NO. 1829 IS UNCONSTITUTIONAL. 5

Two issues are raised in this case, to wit: (1) Whether the attempted arrest of the student suspects
by the NBI could be validly made without a warrant; and (2) Whether there was probable cause for
prosecuting petitioners for violation of P.D. No. 1829. We answer these questions in the negative.

First. In view of Art. III, §2 of the Constitution, the rule is that no arrest may be made except by
virtue of a warrant issued by a judge after examining the complainant and the witnesses he may
produce and after finding probable cause to believe that the person to be arrested has committed the
crime. The exceptions when an arrest may be made even without a warrant are provided in Rule 113,
§5 of the Rules of Criminal Procedure which reads: chanrob1es virtual 1aw library

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of the facts
indicating that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

There is no question that this case does not fall under paragraphs (a) and (c). The arresting officers
in this case did not witness the crime being committed. Neither are the students fugitives from
justice nor prisoners who had escaped from confinement. The question is whether paragraph (b)
applies because a crime had just been committed and the NBI agents had personal knowledge of
facts indicating that Narag and Taparan were probably guilty.

Respondents contend that the NBI agents had personal knowledge of facts gathered by them in the
course of their investigation indicating that the students sought to be arrested were the perpetrators
of the crime. 6 They invoke the ruling in People v. Tonog, Jr. 7 in which it was held: chanrob1es virtual 1aw library

It may be that the police officers were not armed with a warrant when they apprehended Accused-
appellant. The warrantless arrest, however, was justified under Section 5 (b), Rule 133 (sic) of the
1985 Rules of Criminal Procedure providing that a peace officer may, without a warrant, arrest a
person "when an offense has in fact just been committed and he has personal knowledge of facts
indicating that the person to be arrested has committed it." In this case, Pat. Leguarda, in effecting
the arrest of Accused-appellant, had knowledge of facts gathered by him personally in the course of
his investigation indicating that Accused-appellant was one of the perpetrators.

In that case, the accused voluntarily went upon invitation of the police officer who later noticed the
presence of blood stains on the pants of the accused. Upon reaching the police station, the accused
was asked to take off his pants for examination at the crime laboratory. The question in that case
involved the admissibility of the maong pants taken from the accused. It is clear that Tonog does not
apply to this case. First, the accused in that case voluntarily went with the police upon the latter’s
invitation. Second, the arresting officer found blood stains on the pants of the accused, on the basis
of which he concluded that the accused probably committed the crime for which reason the latter was
taken into custody. Third, the arrest was made on the same day the crime was committed. In the
words of Rule 113, §5(b), the crime had "just been committed" and the arresting officer had
"personal knowledge of the facts indicating that the person to be arrested had committed it." cralaw virtua1aw library

In contrast, the NBI agents in the case at bar tried to arrest Narag and Taparan four days after the
commission of the crime. They had no personal knowledge of any fact which might indicate that the
two students were probably guilty of the crime. What they had were the supposed positive
identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant
by the NBI.

We have already explained what constitutes "personal knowledge" on the part of the arresting
officers:
jgc:chanrobles.com.ph

"Personal knowledge" of facts in arrests without a warrant under Section 5 (b) of Rule 113 must be
based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion." The
grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers,
the suspicion that the person to be arrested is probably guilty of committing the offense is based on
actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable
cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers making the arrest. 8

Indeed, at the time Dennis Venturina was killed, these agents were nowhere near the scene of the
crime. When respondent Dizon and his men attempted to arrest Taparan and Narag, the latter were
not committing a crime nor were they doing anything that would create the suspicion that they were
doing anything illegal. On the contrary, Taparan and Narag, under the supervision of the U.P. police,
were taking part in a peace talk called to put an end to the violence on the campus.

To allow the arrest which the NBI intended to make without warrant would in effect allow them to
supplant the courts. The determination of the existence of probable cause that the persons to be
arrested committed the crime was for the judge to make. The law authorizes a police officer or even
an ordinary citizen to arrest criminal offenders only if the latter are committing or have just
committed a crime. Otherwise, we cannot leave to the police officers the determination of whom to
apprehend if we are to protect our civil liberties. This is evident from a consideration of the
requirements before a judge can order the arrest of suspects. Art. III, §2 of the Constitution
provides:chanrob1es virtual 1aw library

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

For the failure of the NBI agents to comply with constitutional and procedural requirements, we hold
that their attempt to arrest Taparan and Narag without a warrant was illegal.

Second. In ordering the prosecution of petitioners for violation of P.D. No. 1829, §1(c), the Office of
the Ombudsman stated in its memorandum dated September 8, 1997: chanrob1es virtual 1aw library

From the facts adduced, it is submitted that respondents had reasonable ground to suspect that the
SJ members sought to be arrested participated in the clubbing of Dennis Venturina, eventually
leading to the latter’s demise. It must be remembered that these SJ members were positively
identified by two eyewitnesses. A reasonably prudent mind could not just ignore this positive
identification. In fact, respondents do not dispute the identification made on the alleged participants
in the clubbing of Dennis Venturina.

Respondent U.P. officials justify their act of barring the apprehending officers from arresting the SJ
members on the ground that the warrantless arrest sought to be effected did not conform with Sec.
5, Rule 113 of the Rules of Court; thereby averting, what would be in their opinion, an illegal arrest.
While this justification may, at best, show their good faith, it does not detract from the fact that they
had reasonable ground to suspect that the SJ members sought to be arrested committed the heinous
crime of murder as a result of the positive identification made by two eyewitnesses. Besides, the
reliance on the alleged illegality of the arrest just shows the clear intent, on respondents’ part, to
wilfully obstruct, frustrate or, at the least, delay the apprehension and investigation and prosecution
of the SJ members positively identified.

To be sure, respondents knew fully well that inquest proceedings follow warrantless arrests. It is in
this forum where the prosecutor conducting the inquest may rule on their opinion on whether or not
the warrantless arrest effected was valid; he having the quasi-judicial authority to rule on this
matter. Of course, there are various remedies under the law which respondents may have likewise
availed of or resorted to in order to secure the liberty of the SJ members had the latter been
arrested, without prejudice to any criminal or administrative actions that they may have filed against
the arresting NBI agents. However, it appears that they took the law into their own hands in a
manner that obstructed and delayed the investigation being conducted by a law enforcement agency
like the NBI. They facilitated the escape of the two SJ members pinpointed by eyewitnesses as
among those who clubbed to death Dennis Venturina. 9

The question is not whether petitioners had reasonable grounds to believe that the suspects were
guilty. The question is whether the suspects could be arrested even in the absence of a warrant
issued by a court, considering that, as already explained, the attempted arrest did not fall under any
of the cases provided in Rule 113, §5. Regardless of their suspicion, petitioners could not very well
have authorized the arrest without warrant of the students or even effected the arrest themselves.
Only courts could decide the question of probable cause since the students were not being arrested in
flagrante delicto. As the Special Prosecutor stated in his memorandum, dated May 18, 1995, in
recommending the dismissal of the case against petitioners: chanrob1es virtual 1aw library

All told, the evidence adduced in this case do not show that on the night of December 12, 1994, the
accused knew or had reasonable ground to believe that the students who were then at the U.P. police
headquarters had committed a crime. Neither were the warrantless arrest being sought to be made
on campus that night, legal. The U.P. officials then present had every right to prevent the
commission of illegal arrests of students on campus.

Based on all the foregoing, the obvious conclusion is that, there is no probable cause to charge
Posadas, Torres-Yu, Lambino, Bentain and Atty. Villamor of violating Section 1(c) of P.D. 1829.
Probable cause is defined as "sufficient ground to engender a well founded belief that a crime
cognizable by the court has been committed and that the respondents are probably guilty thereof
and should be held for trial" (Section 1, Rule 12, Rules of Court). The absence of an arrest warrant,
the absence of knowledge or reasonable ground on the part of the accused to believe that the
students had committed a crime, the absence of any law punishing refusal to attend an investigation
at the NBI, all show that there is no sufficient ground to charge the accused with Obstruction of
Justice. On the contrary, the circumstances show that the accused, in safeguarding the rights of
students, were acting within the bounds of law. 10

Third. Petitioners are being prosecuted under the following provision of P.D. No. 1829: chanrob1es virtual 1aw library

SEC. 1. The-penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or wilfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts: chanrob1es virtual 1aw library

x          x           x

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable
ground to believe or suspect, has committed any offense under existing penal laws in order to
prevent his arrest, prosecution and conviction;

The rule, of course, is that a criminal prosecution cannot be enjoined. 11 But as has been held,"
[i]nfinitely more important than conventional adherence to general rules of criminal procedure is
respect for the citizen’s right to be free not only from arbitrary arrest and punishment but also from
unwarranted and vexatious prosecution." 12 As we held in the similar case of Venus v. Desierto: 13

Conformably with the general rule that criminal prosecutions may not be restrained either through a
preliminary or final injunction or a writ of prohibition, this Court ordinarily does not interfere with the
discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts. There are, however, settled exceptions to this
rule, such as those enumerated in Brocka v. Enrile, to wit: chanrob1es virtual 1aw library

a. To afford protection to the constitutional rights of the accused (Hernandez v. Albano, Et. Al. L-
19272, January 25, 1967, 19 SCRA 95); chanrob1es virtua1 1aw 1ibrary

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions (Dimayuga, Et. Al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra; Fortun v. Labang,
Et Al., L-38383, May 27, 1981, 104 SCRA 607); chanrob1es virtua1 1aw 1ibrary

c. When there is a prejudicial question which is sub judice (De Leon v. Mabanag, 70 Phil. 202); chanrob1es virtua1 1aw 1ibrary

d. When the acts of the officer are without or in excess of authority (Planas v. Gil, 67 Phil. 62); chanrob1es virtua1 1aw 1ibrary

e. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33 Phil.
556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389); chanrob1es virtua1 1aw 1ibrary

f. When double jeopardy is clearly apparent (Sangalang v. People and Alvendia, 109 Phil. 1140); chanrob1es virtua1 1aw 1ibrary

g. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October 29,
1966, 18 SCRA 616);

h. Where it is a case of persecution rather than prosecution (Rustia v. Ocampo, CA-G.R. No. 4760,
March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto v. Castelo,
18 L.J. (1953), cited in Rañoa v. Alvendia, CA G.R. No. 30720-R, October 8, 1962; Cf. Guingona, Et.
Al. v. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577);

j. Where there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied (Salonga v. Paño, Et Al., L-59524, February 18, 1985, 134 SCRA 438); and

k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful
arrest of petitioners (Rodriguez v. Castelo, L-6374, August 1, 1953) cited in Regalado, Remedial Law
Compendium, p. 188, 1988 Ed.)

In this case, petitioners’ objection to the arrest of the students cannot be construed as a violation of
P.D. No. 1829, §1(c) without rendering it unconstitutional. Petitioners had a right to prevent the
arrest of Taparan and Narag at the time because their attempted arrest was illegal. Indeed, they
could not have interfered with the prosecution of the guilty parties because in fact petitioner Posadas
had asked the NBI for assistance in investigating the death of Venturina. On the other hand, just
because petitioners had asked for assistance from the NBI did not authorize respondent Dizon and
his men to disregard constitutional requirements.

The Office of the Ombudsman, however, found that the intervention by petitioners resulted in the
escape of the student suspects as petitioner Posadas and Atty. Villamor failed in their undertaking to
surrender the students the following day. 14 Hence, the information against them charged that
petitioners willfully obstructed the apprehension of the suspects Taparan and Narag, leading to the
successful escape of these students and another principal suspect, a certain Joel Carlo Denosta. 15
The student suspect mentioned by both the resolution dated May 18, 1995 and the information, a
certain Joel Carlo Denosta, was not one of the students whose arrest by the NBI agents petitioners
prevented on December 12, 1994. Moreover, whether or not petitioner Posadas surrendered the
student suspects to the NBI agents the following day is immaterial. In the first place, they were not
sureties or bondsmen who could be held to their undertaking. In the second place, the fact remains
that the NBI agents could not have validly arrested Taparan and Narag at the U.P. Police Station as
they did not have a warrant at that time. Hence, only the NBI agents themselves could be faulted for
their inability to arrest Taparan and Narag. If the NBI believed the information given to them by the
supposed eyewitnesses, the NBI should have applied for a warrant before making the attempted
arrest instead of taking the law into their own hands. That they chose not to and were prevented
from making an arrest for lack of a warrant is their responsibility alone. Petitioners could not be held
accountable therefor.

We understand that the highly publicized death of Dennis Venturina caused a public clamor to bring
to justice those responsible therefor. We also recognize the pressures faced by law enforcement
agencies to effect immediate arrests and produce results without unnecessary delay. But it must be
remembered that the need to enforce the law cannot be justified by sacrificing constitutional rights.
The absence of probable cause for the filing of an information against petitioners is evident from the
records. They cannot be indicted because they dared to uphold the rights of the students. Hence, we
see no other recourse but to enjoin the Sandiganbayan and the Ombudsman from proceeding with
the case against petitioners.

Fourth. The conclusion we have thus far reached makes it unnecessary to consider petitioners’
challenge to P.D. No. 1829, §1(c). For a cardinal rule of constitutional adjudication is that the Court
will not pass upon a constitutional question although properly presented by the record if the case can
be disposed of on some other ground such as the application of a statute or general law. 16

WHEREFORE, the petition is GRANTED and the Ombudsman and his agents are hereby prohibited
from prosecuting petitioners for violation of P.D. No. 1829 §1(c) as a result of the incident
complained of in Criminal Case No. 22801 and the Sandiganbayan is ORDERED to dismiss the
information in Criminal Case No. 22801 against petitioners.

SO ORDERED.

Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial
Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report,   on 2 July 1991, Eldon Maguan was
1

driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson
St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson
and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car,
walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at
a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the
scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol.
Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had come from;
they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained
a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard
of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had
shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for
petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was
being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An
eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman.
That same day, the police promptly filed a complaint for frustrated homicide   against petitioner with the Office of the
2

Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed
petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that
he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute
any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court,
the victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an
information for murder   before the Regional Trial Court. No bail was recommended. At the bottom of the
3

information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did
not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion
for immediate release and proper preliminary investigation,  alleging that the warrantless arrest of petitioner was
4

unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also
prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus
motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted
provisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle   in order to expedite action on the
5

Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date,
approved the cash bond   posted by petitioner and ordered his release.   Petitioner was in fact released that same
6 7

day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary
investigation  and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner
8

had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and
preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed
to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's
omnibus motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order   granting leave to conduct preliminary investigation and
9

cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary
investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order,   embodying the following: (1) the 12 10

July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to
surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary
investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary
investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court
assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for
suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the
Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23
August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit
petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however,
of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal
case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and
22 November 1991.  11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's
failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be
released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus.   The petition for certiorari, prohibition
13

and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently
consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his
arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision   dismissing the two (2) petitions, on 14

the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and
charged had been "freshly committed." His identity had been established through investigation. At
the time he showed up at the police station, there had been an existing manhunt for him. During the
confrontation at the San Juan Police Station, one witness positively identified petitioner as the
culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived
his right to preliminary investigation by not invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial
court had the inherent power to amend and control its processes so as to make them conformable to
law and justice.

d. Since there was a valid information for murder against petitioner and a valid commitment order
(issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given
to the custody of the Provincial Warden), the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed
a "Withdrawal of Appearance"   with the trial court, with petitioner's conformity.
15

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a
Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further
orders from this Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless
arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had
effectively waived his right to preliminary investigation. We consider these issues seriatim.

In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly
arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had
been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police
Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al.,   one of the seven (7) cases
16

consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al.   where a
17

majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in
connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions
of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the
provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for
murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police
station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had
been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the
lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in
respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case,
misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of
petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that
such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed
organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was
murder, an offense which was obviously commenced and completed at one definite location in time and space. No
one had pretended that the fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the
terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or a private person may, without
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance
with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not
present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the
"arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact
just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information
upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting —
one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number
which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal
knowledge."  18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5
of Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is lawfully arrested
without a warrant for an offense cognizable by the Regional Trial Court the complaint or information
may be filed by the offended party, peace officer or fiscal without a preliminary investigation having
been first conducted, on the basis of the affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may ask for a
preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver
of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a
lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule
and the investigation must be terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the
accused may within five (5) days from the time he learns of the filing of the information, ask for a
preliminary investigation with the same right to adduce evidence in his favor in the manner
prescribed in this Rule. (Emphasis supplied)

is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station,
accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state
that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon
Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there
was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required
petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a
preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and
that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested,
with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the
preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note
that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier
pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed
with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General
contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that
the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that
waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The
preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the
time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial
Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. In Crespo v. Mogul,   this Court held:
19

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists to warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion
the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in court or not, once the case had already been
brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter
should be addressed for the consideration of the Court. The only qualification is that the action of the
Court must not impair the substantial rights of the accused., or the right of the People to due process
of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he cannot impose his opinion
on the trial court. The Court is the best and sole judge on what to do with the case before
it. . . .   (Citations omitted; emphasis supplied)
20

Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-
investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the
 trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary
investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's
omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without such preliminary investigation,
and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary
investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary
investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of
Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must
be held to have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is
statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a
component part of due process in criminal justice.   The right to have a preliminary investigation conducted before
21

being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty,
is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed
to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a
process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a
preliminary investigation would be to deprive him the full measure of his right to due process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case
considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation
is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment.   In the instant
22

case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the
time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition
and mandamus precisely asking for a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to
preliminary investigation. In People v. Selfaison,   we did hold that appellants there had waived their right to
23

preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without
previously claiming that they did not have the benefit of a preliminary investigation."   In the instant case, petitioner
24

Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had
thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary
investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a
legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation,
while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not
impair the validity of the information for murder nor affect the jurisdiction of the trial court. 
25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was
equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not
strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting
bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary
considering that no evidence at all — and certainly no new or additional evidence — had been submitted to
respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that
petitioner was entitled to be released on bail as a matter of right.

The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits
has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly,
petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he
continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does
petitioner remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary
investigation although trial on the merits has already began. Trial on the merits should be suspended or held in
abeyance and a preliminary investigation forthwith accorded to petitioner.   It is true that the Prosecutor might, in
26

view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other
hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding
of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to
by way of procedural due process.   Petitioner was forced to undergo arraignment and literally pushed to trial
27

without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the
courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of
speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of
petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the
arraignment precisely because of the denial of preliminary investigation.   So energetic and determined were
28

petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw
or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first
witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary
investigation: petitioner's counsel made of record his "continuing objection."   Petitioner had promptly gone to the
29

appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to
undergo and the lawfulness of his detention.  If he did not walk out on the trial, and if he cross-examined the
30

prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by
the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of
truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail
as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief
of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then
be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the
motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail
were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation
of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to
dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to
accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be
largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not
be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own people and a re-
affirmation of its obligation and determination to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court
dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23
September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the
charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15)
days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be
SUSPENDED to await the conclusion of the preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred
Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may
issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary
investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

Separate Opinions

 
GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss for reasons why an
experienced Judge should insist on proceeding to trial in a sensational murder case without preliminary investigation
inspite of the vigorous and continued objection and reservation of rights of the accused and notwithstanding the
recommendations of the Prosecutor that those rights must be respected. If the Court had faithfully followed the
Rules, trial would have proceeded smoothly and if the accused is really guilty, then he may have been convicted by
now. As it is, the case has to go back to square one.

I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to cater to public
opinion to the detriment of the impartial administration of justice." Mass media has its duty to fearlessly but faithfully
inform the public about events and persons. However, when a case has received wide and sensational publicity, the
trial court should be doubly careful not only to be fair and impartial but also to give the appearance of complete
objectivity in its handling of the case.
The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting the true facts of a case
is present in all cases but it is particularly important if the accused is indigent; more so, if he is one of those
unfortunates who seem to spend more time behind bars than outside. Unlike the accused in this case who enjoys
the assistance of competent counsel, a poor defendant convicted by wide and unfavorable media coverage may be
presumed guilty before trial and be unable to defend himself properly. Hence, the importance of the court always
following the Rules.

While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing observations because I
feel they form an integral part of the Court's decision.

CRUZ, J., concurring:

I was one of the members of the Court who initially felt that the petitioner had waived the right to preliminary
investigation because he freely participated in his trial and his counsel even cross-examined the prosecution
witnesses. A closer study of the record, however, particularly of the transcript of the proceedings footnoted in
the ponencia, reveals that he had from the start demanded a preliminary investigation and that his counsel had
reluctantly participated in the trial only because the court threatened to replace him with a counsel de oficio if he did
not. Under the circumstances, I am convinced that there was no waiver. The petitioner was virtually compelled to go
to trial. Such compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the proceedings as
violative of procedural due process.

It is true that the ruling we lay down here will take the case back to square one, so to speak, but that is not the
petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of Court be strictly observed.
The delay entailed by the procedural lapse and the attendant expense imposed on the Government and the
defendant must be laid at the door of the trial judge for his precipitate and illegal action.

It appears that the trial court has been moved by a desire to cater to public opinion to the detriment of the impartial
administration of justice. The petitioner as portrayed by the media is not exactly a popular person. Nevertheless, the
trial court should not have been influenced by this irrelevant consideration, remembering instead that its only guide
was the mandate of the law.

GRIÑO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after four (4) prosecution witnesses
have already testified, among them an eyewitness who identified the accused as the gunman who shot Eldon
Maguan inside his car in cold blood, and a security guard who identified the plate number of the gunman's car, I do
not believe that there is still need to conduct a preliminary investigation the sole purpose of which would be to
ascertain if there is sufficient ground to believe that a crime was committed (which the petitioner does not dispute)
and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the information against him,
presumably believed to be so).

In the present stage of the presentation of the prosecution's evidence, to return the case to the Prosecutor to
conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal Procedure would be
supererogatory.

This case did not suffer from a lack of previous investigation. Diligent police work, with ample media coverage, led to
the identification of the suspect who, seven (7) days after the shooting, appeared at the San Juan police station to
verify news reports that he was the object of a police manhunt. Upon entering the station, he was positively
identified as the gunman by an eyewitness who was being interrogated by the police to ferret more clues and details
about the crime. The police thereupon arrested the petitioner and on the same day, July 8, 1991, promptly filed with
the Provincial Prosecutor of Rizal, a complaint for frustrated homicide against him. As the victim died the next day,
July 9, 1991, before an information could be filed, the First Assistant Prosecutor, instead of filing an information for
frustrated homicide, filed an information for murder on July 11, 1991 in the Regional Trial Court, with no bail
recommended.

However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary investigation and
release on bail (which was erroneously filed with his office instead of the court), recommended a cash bond of
P100,000 for his release, and submitted the omnibus motion to the trial court for resolution.

Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had issued: (a) his order of
July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his order of July 16, 1991 granting
the Prosecutor leave to conduct a preliminary investigation, for he motu propio issued on July 17, 1991 another
order rescinding his previous orders and setting for hearing the petitioner's application for bail.

The cases cited in page 15 of the majority opinion in support of the view that the trial of the case should be
suspended and that the prosecutor should now conduct a preliminary investigation, are not on all fours with this
case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the trial of the
criminal case had not yet commenced because motions to quash the information were filed by the accused. Lozada
vs. Hernandez, 92 Phil. 1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110
and People vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary investigations
had in fact been conducted before the informations were filed in court.

It should be remembered that as important as is the right of the accused to a preliminary investigation, it is not a
constitutional right. Its absence is not a ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA
354). It does not affect the court's jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan,
166 SCRA 618), nor constitute an infringement of the right of the accused to confront witnesses (Bustos vs. Lucero,
81 Phil. 640).

The petitioner's motion for a preliminary investigation is not more important than his application for release on bail,
just as the conduct of such preliminary investigation is not more important than the hearing of the application for
bail. The court's hearing of the application for bail should not be subordinated to the preliminary investigation of the
charge. The hearing should not be suspended, but should be allowed to proceed for it will accomplish a double
purpose. The parties will have an opportunity to show not only: (1) whether or not there is probable cause to believe
that the petitioner killed Eldon Maguan, but more importantly (b) whether or not the evidence of his guilt is strong.
The judge's determination that the evidence of his guilt is strong would naturally foreclose the need for a preliminary
investigation to ascertain the probability of his guilt.

The bail hearing may not be suspended because upon the filing of an application for bail by one accused of a capital
offense, "the judge is under a legal obligation to receive evidence with the view of determining whether evidence of
guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210; Hadhirul Tahil vs. Eisma, 64 SCRA
378; Peralta vs. Ramos and Provincial Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs.
Ponce Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123)

The abolition of the death penalty did not make the right to bail absolute, for persons charged with offenses
punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987
Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial court for having granted the motion
for bail in a murder case without any hearing and without giving the prosecution an opportunity to comment or file
objections thereto.

Similarly this Court held in People vs. Bocar, 27 SCRA 512:

. . . due process also demands that in the matter of bail the prosecution should be afforded full
opportunity to present proof of the guilt of the accused. Thus, if it were true that the prosecution in
this case was deprived of the right to present its evidence against the bail petition, or that the order
granting such petition was issued upon incomplete evidence, then the issuance of the order would
really constitute abuse of discretion that would call for the remedy of certiorari. (Emphasis supplied.)

The petitioner may not be released pending the hearing of his petition for bail for it would be incongruous to grant
bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2 SCRA 888).

I respectfully take exception to the statements in the ponencia that the "petitioner was not arrested at all" (p. 12)
and that "petitioner had not been arrested, with or without a warrant" (p. 130). Arrest is the taking of the person into
the custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113, Rules of
Court). An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of
the person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police Station
on July 8, 1991, and placed himself at the disposal of the police authorities who clamped him in jail after he was
identified by an eyewitness as the person who shot Maguan, he was actually and effectively arrested. His filing of a
petition to be released on bail was a waiver of any irregularity attending his arrest and estops him from questioning
its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).

I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss for reasons why an
experienced Judge should insist on proceeding to trial in a sensational murder case without preliminary investigation
inspite of the vigorous and continued objection and reservation of rights of the accused and notwithstanding the
recommendations of the Prosecutor that those rights must be respected. If the Court had faithfully followed the
Rules, trial would have proceeded smoothly and if the accused is really guilty, then he may have been convicted by
now. As it is, the case has to go back to square one.

I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to cater to public
opinion to the detriment of the impartial administration of justice." Mass media has its duty to fearlessly but faithfully
inform the public about events and persons. However, when a case has received wide and sensational publicity, the
trial court should be doubly careful not only to be fair and impartial but also to give the appearance of complete
objectivity in its handling of the case.

The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting the true facts of a case
is present in all cases but it is particularly important if the accused is indigent; more so, if he is one of those
unfortunates who seem to spend more time behind bars than outside. Unlike the accused in this case who enjoys
the assistance of competent counsel, a poor defendant convicted by wide and unfavorable media coverage may be
presumed guilty before trial and be unable to defend himself properly. Hence, the importance of the court always
following the Rules.

While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing observations because I
feel they form an integral part of the Court's decision.

CRUZ, J., concurring:

I was one of the members of the Court who initially felt that the petitioner had waived the right to preliminary
investigation because he freely participated in his trial and his counsel even cross-examined the prosecution
witnesses. A closer study of the record, however, particularly of the transcript of the proceedings footnoted in
the ponencia, reveals that he had from the start demanded a preliminary investigation and that his counsel had
reluctantly participated in the trial only because the court threatened to replace him with a counsel de oficio if he did
not. Under the circumstances, I am convinced that there was no waiver. The petitioner was virtually compelled to go
to trial. Such compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the proceedings as
violative of procedural due process.

It is true that the ruling we lay down here will take the case back to square one, so to speak, but that is not the
petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of Court be strictly observed.
The delay entailed by the procedural lapse and the attendant expense imposed on the Government and the
defendant must be laid at the door of the trial judge for his precipitate and illegal action.

It appears that the trial court has been moved by a desire to cater to public opinion to the detriment of the impartial
administration of justice. The petitioner as portrayed by the media is not exactly a popular person. Nevertheless, the
trial court should not have been influenced by this irrelevant consideration, remembering instead that its only guide
was the mandate of the law.

GRIÑO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after four (4) prosecution witnesses
have already testified, among them an eyewitness who identified the accused as the gunman who shot Eldon
Maguan inside his car in cold blood, and a security guard who identified the plate number of the gunman's car, I do
not believe that there is still need to conduct a preliminary investigation the sole purpose of which would be to
ascertain if there is sufficient ground to believe that a crime was committed (which the petitioner does not dispute)
and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the information against him,
presumably believed to be so).

In the present stage of the presentation of the prosecution's evidence, to return the case to the Prosecutor to
conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal Procedure would be
supererogatory.

This case did not suffer from a lack of previous investigation. Diligent police work, with ample media coverage, led to
the identification of the suspect who, seven (7) days after the shooting, appeared at the San Juan police station to
verify news reports that he was the object of a police manhunt. Upon entering the station, he was positively
identified as the gunman by an eyewitness who was being interrogated by the police to ferret more clues and details
about the crime. The police thereupon arrested the petitioner and on the same day, July 8, 1991, promptly filed with
the Provincial Prosecutor of Rizal, a complaint for frustrated homicide against him. As the victim died the next day,
July 9, 1991, before an information could be filed, the First Assistant Prosecutor, instead of filing an information for
frustrated homicide, filed an information for murder on July 11, 1991 in the Regional Trial Court, with no bail
recommended.
However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary investigation and
release on bail (which was erroneously filed with his office instead of the court), recommended a cash bond of
P100,000 for his release, and submitted the omnibus motion to the trial court for resolution.

Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had issued: (a) his order of
July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his order of July 16, 1991 granting
the Prosecutor leave to conduct a preliminary investigation, for he motu propio issued on July 17, 1991 another
order rescinding his previous orders and setting for hearing the petitioner's application for bail.

The cases cited in page 15 of the majority opinion in support of the view that the trial of the case should be
suspended and that the prosecutor should now conduct a preliminary investigation, are not on all fours with this
case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the trial of the
criminal case had not yet commenced because motions to quash the information were filed by the accused. Lozada
vs. Hernandez, 92 Phil. 1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110
and People vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary investigations
had in fact been conducted before the informations were filed in court.

It should be remembered that as important as is the right of the accused to a preliminary investigation, it is not a
constitutional right. Its absence is not a ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA
354). It does not affect the court's jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan,
166 SCRA 618), nor constitute an infringement of the right of the accused to confront witnesses (Bustos vs. Lucero,
81 Phil. 640).

The petitioner's motion for a preliminary investigation is not more important than his application for release on bail,
just as the conduct of such preliminary investigation is not more important than the hearing of the application for
bail. The court's hearing of the application for bail should not be subordinated to the preliminary investigation of the
charge. The hearing should not be suspended, but should be allowed to proceed for it will accomplish a double
purpose. The parties will have an opportunity to show not only: (1) whether or not there is probable cause to believe
that the petitioner killed Eldon Maguan, but more importantly (b) whether or not the evidence of his guilt is strong.
The judge's determination that the evidence of his guilt is strong would naturally foreclose the need for a preliminary
investigation to ascertain the probability of his guilt.

The bail hearing may not be suspended because upon the filing of an application for bail by one accused of a capital
offense, "the judge is under a legal obligation to receive evidence with the view of determining whether evidence of
guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210; Hadhirul Tahil vs. Eisma, 64 SCRA
378; Peralta vs. Ramos and Provincial Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs.
Ponce Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123)

The abolition of the death penalty did not make the right to bail absolute, for persons charged with offenses
punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987
Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial court for having granted the motion
for bail in a murder case without any hearing and without giving the prosecution an opportunity to comment or file
objections thereto.

Similarly this Court held in People vs. Bocar, 27 SCRA 512:

. . . due process also demands that in the matter of bail the prosecution should be afforded full
opportunity to present proof of the guilt of the accused. Thus, if it were true that the prosecution in
this case was deprived of the right to present its evidence against the bail petition, or that the order
granting such petition was issued upon incomplete evidence, then the issuance of the order would
really constitute abuse of discretion that would call for the remedy of certiorari. (Emphasis supplied.)

The petitioner may not be released pending the hearing of his petition for bail for it would be incongruous to grant
bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2 SCRA 888).

I respectfully take exception to the statements in the ponencia that the "petitioner was not arrested at all" (p. 12)
and that "petitioner had not been arrested, with or without a warrant" (p. 130). Arrest is the taking of the person into
the custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113, Rules of
Court). An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of
the person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police Station
on July 8, 1991, and placed himself at the disposal of the police authorities who clamped him in jail after he was
identified by an eyewitness as the person who shot Maguan, he was actually and effectively arrested. His filing of a
petition to be released on bail was a waiver of any irregularity attending his arrest and estops him from questioning
its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).

I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

 

Footnotes

1 Annex "A" of Petition; Rollo, pp. 29-32.

2 Rollo, p. 28.

3 Annex "B" of Petition, Rollo, pp. 33-34.

4 Annex "C" of Petition, Rollo, pp. 35-43.

5 Annex "D" of Petition, Rollo, pp. 44-45.

6 Annexes "E" and "E-1" of Petition, Rollo, pp. 46-48.

7 Annex "F" of Petition, Rollo, p. 49.

8 Annex "G" of Petition, Rollo, pp. 50-51.

9 Annex "G-1" of Petition, Rollo, p. 52.

10 Annex "H" of Petition, Rollo, pp. 54-55.

11 Annex "J" of Petition, Rollo, pp. 57-58

12 Annex "K" of Petition, Rollo, pp. 59-66.

13 Annex "K-1" of Petition, Rollo, pp. 67-68.

14 Annex "N" of Petition, Rollo, pp. 109-120.

15 Annex "A" of Comment, Rollo, p. 154.

16 G.R. No. 86332.

17 G.R. No. 81567, promulgated 3 October 1991.

18 People v. Burgos, 144 SCRA 1 (1986).

19 151 SCRA 462 (1987).

20 151 SCRA at 469-471.

21 Doromal v. Sandiganbayan; 177 SCRA 354 (1989); San Diego v. Hernandez, 24 SCRA 110
(1968); People v. Monton, 23 SCRA 1024, (1968); People v. Oandasan, 25 SCRA 277 (1968);
Lozada v. Hernandez, 92 Phil. 1051 (1953); U.S. v. Banzuela, 31 Phil. 564 (1915).

22 People v. Monteverde, 142 SCRA 668 (1986); People v. Gomez, 117 SCRA 72 (1982); People v.
Marquez, 27 SCRA 808 (1969); People v. de la Cerna, 21 SCRA 569 (1967).

23 110 Phil. 839 (1961).

24 110 Phil. at 848.

25 People v. Gomez, supra; People v. Yutila, 102 SCRA 264 (1981); People v. Casiano, 111 Phil.
73 (1961).

26 In Rodis, Sr. V. Sandiganbayan, 2nd Division (166 SCRA 618 [1988]), the Court said:

". . . And while the absence of preliminary investigations does not affect the court's jurisdiction over
the case (n)or do they impair the validity of the information or otherwise render it defective, but, if
there were no preliminary investigations and the defendants, before entering their plea, invite the
attention of the court to their absence, the court, instead of dismissing the information, should
conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so
that the preliminary investigation may be conducted. In this case, the Tanodbayan has the duty to
conduct the said investigation.
Thus, although the Sandiganbayan was correct in ruling that the absence of a preliminary
investigation is not ground for quashing an information, it should have held the proceedings in the
criminal cases in abeyance pending resolution by the Tanodbayan of petitioner's petition for
reinvestigation, as alternatively prayed for by him in his motion to quash." (166 SCRA at 623-624)

In Paredes v. Sandiganbayan (193 SCRA 464 [1991]), the Court stated:

". . . The remedy of the accused in such a case is to call the attention of the court to the lack of a
preliminary investigation and demand, as a matter of right, that one be conducted. The
court, instead of dismissing the information, should merely suspend the trial and order the fiscal to
conduct a preliminary investigation. Thus did we rule in Ilagan v. Enrile, 139 SCRA 349." (193
SCRA at 469)

27 Section 14 (1), Article III, 1987 Constitution: "No person should be held to answer for a criminal
offense without due process of law."

28 ATTY. ARMOVIT:

. . . We are sad to make the statement that it would seem that the government now in this
proceeding would like to become the law breaker. Why do we say this, Your Honor. The information
for a serious crime of murder was filed against the accused without the benefit of the preliminary
investigation has been admitted by no less than the Investigating Fiscal himself . . .

xxx xxx xxx

ATTY. ARMOVIT:

Why do we say the government becomes a law breaker. We have a case of US vs. Marfori. It says
and I quote (counsel reading said portion in open court)
. . . Likewise in San Diego v. Hernandez, the Supreme Court says I quote, (counsel reading said
portion in open court). All these doctrines had been recently quoted in the case of Doromal
v. Sandiganbayan. In addition to this, we have filed a motion before this Court. The motion to
Suspend Proceedings and Transfer Venue which is set for hearing on 28 August 1991. The
arguments we cited in this motion to suspend proceedings and to transfer venue are not invention of
this counsel.

ATTY. FLAMINIANO:

He is talking about the motion which is set for August 28, Your Honor.

ATTY. ARMOVIT:

I want to be heard, Your Honor.

ATTY. FLAMINIANO:

The Motion is set for August 28 and he is now arguing on that motion.

COURT:

I am going to stop you. You concentrate on the motion before the Court.

FISCAL VILLA IGNACIO:

The pending incident is for the arraignment of the accused, You Honor.

COURT:

What we are doing are not pertinent to the issue. This would be unprocedural.

ATTY. ARMOVIT:

What are we trying to say, Your Honor, why do you rush with the arraignment of the accused
when there are several unresolved incidents. The special civil action before the Court of
Appeals where we questioned the very validity . . .

COURT:
Until now the Court of Appeals has not given due course regarding that.

ATTY. ARMOVIT:

The government rushes with the proceedings here. In the Court of Appeals they filed a
motion for extension of ten days from August 19 or until August 29 to comment on that
special civil action. There are dozens of cases which languishes 2, 3, 4 to 5 years. Why so
special and selective in the treatment of this case. I ask that question.

COURT:

Before you proceed, can you cite an incident before this Court where the preliminary
investigation has been delayed.

FISCAL VILLA IGNACIO:

The information was filed last July 11, 1991. Today is August 23. Where is the rush in
arraigning the accused.

COURT:

Heard enough. Proceed with the arraignment of the accused.

ATTY. ARMOVIT:

In my 30 years of practice, this is the first time I am stopped by the Court in the middle of my
arguments.

FISCAL VILLA IGNACIO:

You are wasting the time of the court.

COURT:

Order in the court. Order in the court.

ATTY. ARMOVIT:

I want to make of record that there has been clapping after the manifestation of Hon. Fiscal,
Your Honor.

COURT:

Let us proceed with the arraignment.

ATTY. ARMOVIT:

May I conclude citing, Your Honor, the Supreme Court decision.

COURT:

I have made my ruling. The accused is entitled to speedy trial. That is the reason why this
arraignment was set for today.

ATTY. ARMOVIT:

May I move for a reconsideration, Your Honor.

COURT:

The motion for reconsideration is denied. Proceed with the arraignment of the accused.

ATTY. ARMOVIT:

Your Honor , may we move that we may be given a period of five days to file a motion to
quash information.
FISCAL VILLA IGNACIO:

This is plain dilatory tactics, Your honor.

COURT:

In view of the refusal of the accused to enter a plea on account of the advice of this lawyer,
let therefore a plea of not guilty be entered into the record of this case.

ATTY. ARMOVIT:

I would like to move for a ruling on our motion to be given five days to file a motion to quash.
We did not hear the ruling on that point, Your Honor.

COURT:

As prayed for, counsel for accused is hereby given a period of five days from today within
which to file his Motion to Quash, . . .

It is understood that the Motion to Quash will not in anyway affect the arraignment of the
accused.

ATTY. ARMOVIT:

Considering the favorable ruling of the Court that we were given five days to file motion to
quash, may we move that the Court order the entering a plea of not guilty of the accused be
expunged from record, otherwise we will deem to have waived our right to file a motion to
quash.

xxx xxx xxx

ATTY. ARMOVIT:

With due respect considering that there are very serious criminal law questions involved in
this proceeding, we respectfully submit that it is premature. Besides, I have an unresolved
motion to inhibit the Presiding Judge.

COURT:

I will cut you there . . . assuming you were given five days to file a motion to quash, it doesn't
mean the arraignment is considered moot and academic. The arraignment stands including
the plea of not guilty to the offense as charged. I am asking you whether you are availing of
the pre-trial without prejudice to filing a motion to quash.

ATTY. ARMOVIT:

Consistently, there is no valid proceeding before this Court. I would rather not participate in
this case. But if it is the Court's order then we'll have to submit, but from this representation
we will not voluntarily submit.

xxx xxx xxx

ATTY ARMOVIT:

This representation manifested that I would rather not participate in this case. But if it is the
Court's order we would submit to the Order of this Court because we are officers of the
law not that we are already representing the accused. May we respectfully move to strike out
from the record the inofficious order of the Hon. Prosecutor to appoint a counsel de oficio.
The accused is entitled to counsel de oficio. The accused is entitled to counsel de parte.

FISCAL VILLA IGNACIO:

But counsel de parte refuses to participate, in which the incumbent court can appoint a PAO
lawyer in case of the absence of counsel de parte.

COURT:
 The objection of Public Prosecutor is well taken. That is the procedure of the Court, that if
the accused has no counsel de parte we always appoint a counsel de oficio for the accused.

ATTY. ARMOVIT:

We respectfully submit that accused in Criminal Case is entitled to counsel of his own

choice. May we at lease allow the accused to express his opinion or decision on matters as
to who should give him legal representation.

COURT

You just said earlier you don't want to participate in the proceedings.

ATTY. ARMOVIT:

This is not what I said. I said that we'll not voluntarily participate but if it is the Court's order,
certainly the accused has the right of his own counsel of choice.

COURT

The Court will now reiterate ordering the trial of this case.

xxx xxx xxx

(TSN. 23 August 1991. pp. 2-9; emphasis supplied)

During the hearing held on 4 September 1991, before the Court of Appeals, in the petition
for Habeas Corpus, counsel for petitioner recounted in detail what took place before the trial
court and stressed the objection entered by the petitioner before the trial court and that
petitioner participated in the proceedings blow not voluntarily but under the coercive power of
the trial judge. Counsel concluded:

. . . Again I said, Your Honors, we are not participating in this proceedings, but we will
submit to what the Judge rules because that is all we can do. While we object we have to
submit. That is why, Your Honors, dates were set out of compulsion not because we
voluntarily participated but we reserved our right, Your Honors, to pursue our special civil
action and so that is why these dates came about." (TSN, 4 September 1991. Records in
CA-G.R. Nos. SP-25800 and 25530, pp. 37-39; emphasis supplied)

29 The relevant portion of the transcript of stenographic notes reads as follows:

COURT:

And considering that the Court has not been restrained by the Court of Appeals despite the petition,
let the trial of this case proceed.

ATTY. ARMOVIT:

Your Honor please may we just record a continuing objection on the grounds that are cited in our
petition for habeas corpus and certiorari to conduct the further proceedings of this Court and by the
way Your Honor, we do not consider unfortunate the deliberation and serious thoughts our higher
courts are giving in respect to a consideration of the constitutional right of the accused invoked
before that body rather it is the most judicial act of uplifting the highest court of our land.

COURT:

Alright proceed.

PP VILLA IGNACIO:

We call on our first witness to the witness stand, Mr. Nicanor Bayhona, (TSN, 19 September 1991,
p. 6; emphasis supplied)

30 In People v. Lambino (103 Phil. 504 [1958]), Lambino, before commencement of trial, demanded
his right to preliminary investigation. His motion for preliminary investigation was denied by the trial
court which, in due course of time, convicted Lambino. On appeal, the Supreme Court held that the
trial court did not err in denying Lambino's motion for preliminary investigation because said motion
was filed after he had entered a plea of not guilty and because he took no steps to bring the matter
to a higher court to stop the trial of the case. The Supreme Court said:

". . . Again, before the commencement of the trial, appellant reiterated his petition for a preliminary
investigation, which was overruled, nevertheless appellant took no steps to bring the matter to
higher courts and stop the trial of the case; instead he allowed the prosecution to present the first
witness who was able to testify and show the commission of the crime charged in the information. By
his conduct, we held that he waived his right to a preliminary investigation and is estopped from
claiming it." (103 Phil. at 508; emphasis supplied)
G.R. No. 94533 February 4, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IGNACIO TONOG, JR., alias ABDUL TONOG, ALLAN SOLAMILLO, "JOHN DOE" and "PETER DOE", accused-
appellants.

The Solicitor General for plaintiff-appellee.

Eduardo T. Sedillo for accused-appellants.

MELENCIO-HERRERA, J.:

Charged along with three (3) others, Ignacio Tonog, Jr., alias "Abdul" was convicted of Murder and sentenced
to reclusion perpetua in a Decision rendered by the Regional Trial Court of Dumaguete City, Branch
XXXIV,   promulgated on 3 July 1990. He is now before us, seeking a reversal. The cases against his co-accused,
1

Allan Solamillo and two (2) other unidentified individuals, were archived as the latter three have eluded arrest and
have yet to be apprehended.

The evidence of the prosecution linking the accused-appellant to the crime charged discloses that on 25 April 1988,
at around 6:00 o'clock in the morning, the Dumaguete City Police Station received a report that there was a "lifeless
person found lying at the crossing of Cantil-e, Dumaguete City" (TSN, 6 January 1989, p. 6). The deceased, who
had stab wounds all over his body, was later identified as Efren Flores, son of the Deputy Station Commander of the
Dumaguete City Police Force (Id., pp. 2-3).

That same morning, after receiving the report, Patrolman Walter Leguarda went to the place where the body was
found and conducted an investigation. He learned from his investigation that a "motorcab" with side car number
0164 had stopped near the place where the deceased was found. His investigation likewise revealed that "the
person responsible for the death of Efren Flores was a certain Abdul Tonog of Bacong, Negros Oriental" (Id., p. 6).
Pat. Leguarda based his conclusion principally from the information given to him by one Liberato Solamillo (Id., p.
12). He was also informed by the girlfriend of Abdul Tonog's co-accused, Allan Solamillo, that prior to the stabbing
incident, "there were grudges between Efren Flores and Abdul Tonog" (Id., p. 9).

In the afternoon of that same day, 25 April 1988, Pat. Leguarda, together with P/Sgt, Orlando Patricio and other
police operatives, without a warrant (Id., p. 13), "proceeded to Bacong, Negros Oriental, to look for and effect the
apprehension of Abdul Tonog," (Id., pp. 6-7) who, upon being "invited for questioning," voluntarily went with the law
enforcers to the police station, unaccompanied by counsel (Id., p. 13).

P/Sgt. Patricio narrated that while they were on their way to the police station on board the patrol jeep, he noticed
the presence of blood stains on the pants of the Accused-appellant. When asked where the stains came from, the
latter allegedly answered that they were blood stains from a pig (TSN, July 12, 1989, pp. 4-5). He was then
requested to take off his pants for examination at the PC/INP Crime Laboratory in Cebu, to which request, he
supposedly acceded upon reaching the police station (Id).

Also at the police station, the Accused-appellant cried and looked for the Station Commander. He then confessed to
the officer-in-charge of the police station (TSN, January 6, 1989, p. 7), which confession was not recorded nor
reduced to writing (Id., p. 14). He admitted that he was one of the assailants of Efren Flores and that he used his
Batangas knife (Id., p. 7).

After about a month, due to lack of funds, Policewoman Vilma Beltran brought and turned over the "blood-stained"
pants and stainless knife, which was recovered by Pat. Patricio from the grassy portion where the deceased was
found (TSN, July 12, 1989, p. 15), to the PC/INP Crime Laboratory in Cebu (TSN, August 23, 1989, p. 4).

The. forensic chemist thereat affirmed that the blood stains found on the pants of the Accused-appellant and those
on the stainless knife were of type "O" (Id., p. 14), the same as the victim's blood type (TSN, December 4, 1989,
p.3).

Liberato Solamillo, whom Pat. Leguarda had investigated, was likewise called to testify. He attested that around
7:00 o'clock in the evening of 24 April 1988, he was drinking with the Accused-appellant and the latter's co-accused,
Allan Solamillo, at Nora's Store located in Bacong, Negros Oriental (TSN, February 20, 1989, pp. 2-3). Accused-
appellant then left at around 9:30 p.m. together with a certain Patrolman Biyok on the latter's motorcycle (Id., pp. 6-
7). At 11:00 o'clock that evening, Allan and Liberato then headed for Pat. Biyok's house to look for the Accused-
appellant. They rode on a "motorcab" with side car number 0164, the "motorcab" regularly driven by Allan. Upon
reaching Pat. Biyok's house, they were informed that the Accused-appellant was not there. They then saw the
victim, Efren Flores, who requested that he be conveyed to Dumaguete City (Id., p. 8).
Allan asked Liberato to stay behind so that the former could take Efren Flores to Dumaguete City. Liberato stayed
behind and conversed with Pat. Biyok until 11:45 that evening. After Allan failed to return, Liberato decided to ride
with a certain Gorio, who happened to pass by, on the latter's "pedicab" (TSN, March 8, 1989, p. 3).

On his way home, Liberato saw the "motorcab" with side car number 0164 parked outside a store. He alighted from
Gorio's "pedicab" and proceeded to where the "motorcab" was. He saw Accused-appellant, Abdul Tonog, inside the
"motorcab." He then heard Allan tell Elvis Bueno, son of the owner of the store: "Kuha na gyod, "Vis."" (He is
already taken, "Vis.") (Id., pp. 4-5). He also noticed the presence of blood stains (many red spots) on Allan's fatigue
shirt, which was not the same shirt the latter was wearing when they were drinking. Allan then allegedly got angry
when asked why there seemed to be red spots on his shirt (Id., p. 6).

The City Health Officer also took the witness stand. It was he who examined the body of the deceased. His findings
revealed that the corpse of victim, Efren Flores, had twenty-seven (27) wounds, several of which were fatal, and
which may have been caused by a long sharp-bladed instrument (TSN, May 25, 1989, pp. 3-6).

For his part, Accused-appellant categorically denied having had anything to do with the victim's death. He
asseverated that at around 7:00 o'clock in the evening of 24 April 1988, he was drinking with his co-accused, Allan
Solamillo and prosecution witness, Liberato Solamillo, at Nora's Store in Bacong. During the drinking spree, a
heated argument ensued between him and Allan, prompting the latter to fire his gun. Accused-appellant immediately
left the place to look for a policeman who could arrest Allan and confiscate the latter's gun (TSN, February 13, 1990,
p. 9). Some policemen arrived but failed to find Allan's gun.

Afraid to spend the night in Bacong, where he shares his place with Allan, Accused-appellant, at around 9:30 p.m.,
requested Pat. Biyok to convey him to Tinago where he could stay for the night (Id.). Upon arrival at Tinago, he
immediately slept and woke up at 7:00 o'clock the following morning.

Later that afternoon, after Liberato Solamillo pointed to Accused-appellant and told the policemen: "That fellow is
Abdul. He is Abdul" (Id., p. 10), he was taken to the Dumaguete City Police Station and detained. He disavowed
having had any conversation with any policeman on their way to the police station (Id.).

Accused-appellant averred that at the police station, he was told to admit the killing of Efren Flores. The police
authorities also ordered him to take off his pants (Id., p. 21). He vehemently denied that his trousers were stained
with blood (Id., pp. 11, 21). He also denied having known or having met the victim (Id., p. 12).

After trial, the Court a quo rejected the alleged Accused-appelant's extra-judicial confession, as the latter was not
represented by counsel and because it had not been reduced to writing. Nonetheless, on the basis of circumstantial
evidence, it rendered a judgment of conviction, the dispositive portion of which is quoted hereunder:

WHEREFORE, the accused Ignacio Tonog, Jr., alias "Abdul" Tonog is hereby found guilty beyond
reasonable doubt of the crime of murder and the court hereby imposes on him the penalty
of Reclusion Perpetua.

Accused is likewise ordered to indemnify the heirs of the deceased victim the sum of THIRTY
THOUSAND PESOS (P30,000.00) and to pay the costs.

The case filed against his co-accused Allan Solamillo and two other unidentified individuals are
hereby ordered archived, without prejudice to their further prosecution, considering that until this
time they have not yet been apprehended and still remain at large. (Rollo, pp. 180-181)

Accused-appellant, still professing innocence, now faults the Trial Court for admitting in evidence his "acid-washed
maong" pants and the stainless knife; in declaring that sufficient circumstantial evidence was adduced to warrant his
conviction; in concluding that the presumption of innocence in his favor has been overcome; in holding that the
killing of the victim was attended by the qualifying circumstance of cruelty; and in appreciating the aggravating
circumstance of the use of a motor vehicle in the commission of the crime (Appellant's Brief, pp.
3-4).

Except for the aggravating circumstances considered, we find ourselves in disagreement.

The "acid-washed maong" pants (Exh. D) were admissible in evidence, They were taken from Accused-appellant as
an incident of his arrest. It may be that the police officers were not armed with a warrant when they apprehended
Accused-Appellant. The warrantless arrest, however, was justified under Section 5(b), Rule 133 of the 1985 Rules
of Criminal Procedure providing that a peace officer may, without a warrant, arrest a person "when an offense has in
fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has
committed it." In this case, Pat. Leguarda, in effecting the arrest of Accused-appellant, had knowledge of facts
gathered by him personally in the course of his investigation indicating that Accused-appellant was one of the
perpetrators.

The "maong" pants having been taken from Accused-appellant as an incident to a lawful arrest, no infirmity may be
attributed to their seizure without a warrant. Section 12 of Rule 126 of the Rules of Court explicitly provides that "A
person charges with an offense may be searched for dangerous weapons or any thing which may be used as proof
of the commission of the offense."

We come now to the threshold question of whether or not there was sufficient circumstantial evidence to warrant
Accused-appellant's conviction, enough to overcome the presumption of innocence in his favor.

It is undisputed that there was no eyewitness to the crime, But it is also well-settled that guilt may be established
through circumstantial evidence. Direct evidence is not always necessary to prove the guilt of the accused (People
v. Aldeguer, No. 47991, April 3, 1990, 184 SCRA 1 at 10, citing People v. Roa, No. 78052, November 8, 1988, 163
SCRA 783). For circumstantial evidence to succeed , the following requisites must be present, namely: (1) there
must be more than one circumstance; (2) the inferences must be based on proven facts; and (3) the combination of
all the circumstances produces a conviction beyond reasonable doubt of the guilt of the accused (Sec. 5, Rule 133,
Rules of Court; People v. Alcantara, No. L-74737, 29 July 1988, 163 SCRA 783 at 786).

Furthermore, in determining the sufficiency of circumstantial evidence to support a conviction, each case is to be
determined on its own peculiar set-up and all the facts and circumstances are to be considered as a whole and,
when so considered, may be sufficient to support a conviction, although one or more of the facts taken separately
would not be sufficient for this purpose (People v. Jora, Nos. L-61356-57, September 30, 1986, citing 23 CJS p.
555).

The foregoing requisites have been met. The chain of events circumstantially point to Accused-appellant's guilt.

As testified to by prosecution witness, Liberato Solamillo, he, Accused-appellant, and Allan Solamillo were drinking
together in the evening of 24 April 1988 at around 7:00 P.M. Accused-appellant left at around 9:30 P.M. together
with Pat. Biyok on the latter's motorcycle. At around 11:00 P.M., because Accused-appellant had not yet returned,
Liberato and Allan headed for Pat. Biyok's house to look for him (Accused-appellant). They rode on a "motorcab"
with side car number 0164, the "motorcab" regularly driven by Allan for hire. They did not find Accused-appellant at
that house. They then saw the victim, Efren Flores, hail a pedicab to go to Dumaguete City.

Allan obliged, using the "motorcab" with side car number 0164, and drove off with the victim. In doing so, Allan
asked Liberate to stay behind. The latter did as bidded and conversed with Pat. Biyok until 11:45 that evening.
Since Allan failed to return, Liberato decided to go home and ride with a certain Gorio, who happened to pass by, on
the latter's pedicab.

Notably, within that span of time, both Accused-appellant and Allan had mysteriously disappeared from the group of
Pat. Biyok and Liberato, who continued trying to trail their whereabouts.

On his way home, Liberato saw the "motorcab" with side car number 0164, which was used by Allan to transport the
victim, parked outside a store. He alighted from Gorio's pedicab and proceeded to where the "motorcab" was. He
saw Accused-appellant seated therein. He also saw Allan inside the store buying sardines and Pepsi. He then heard
Allan tell one Elvis Bueno, son of the storeowner: "Kuha na gyod, Vis." (He is already taken, "Vis"). Then Liberato
noticed the presence of blood stains on Allan's fatigue shirt, which was not the same shirt the latter was wearing
when they were drinking. When queried on why there seemed to be red spots on his shirt, Allan reacted angrily.

As the events unfolded, it is evident that Accused-appellant and Allan had been together during the time that each
one separately disappeared from Liberato's sight during which period they had done away with the victim. The
victim was last seen with Allan in the latter's "motorcab." That was around 11:00 o'clock in the evening. Liberato
waited for him to return. He never did. Roughly around midnight, the same "motorcab" was seen outside a store.
Accused-appellant was in it, while Allan was in the store buying some items. Blood stains were noticed on Allan's
shirt. Later, at the police station, blood spots were also seen on Accused-appellant's pants. The latter tried to
conceal the crime by stating that the blood spots were those of a pig. Unwittingly, therefore, he admitted the
presence of those stains except that he attributed them to some other cause.

Note should also be taken of the proven fact that investigation by Pat. Leguarda revealed that the "motorcab" with
side car number 0164, the vehicle that Allan drove with the victim as his passenger, was seen near the spot where
the victim's body was discovered. This lead enabled Pat. Leguarda to zero in on two suspects, Accused-appellant
and Allan, which eventually led to the apprehension of the former the very same day.

Most telling of all is the proven fact that laboratory examination at the PC/INP Crime Laboratory of the blood stains
on Accused-appellant's "acid-washed maong pants" revealed that they were positive for human blood, type "O", the
same blood type as that of the victim (Exh. "J"). Again of significance is another proven fact that the stainless knife
recovered from the crime scene, upon similar laboratory examination, exhibited blood stains of the same blood-type
"O".

While it may be that Accused-appellant had denied that his pants had blood stains, he nevertheless admitted that
the pants subjected to laboratory testing and presented by the prosecution in this case were the same pair he wore
in the evening when he was drinking with Allan and Liberato and on the following day when he was brought to the
police station.
The foregoing circumstances, considered as a whole, and the inferences from which are derived from proven facts,
constitute an unbroken chain that point to no other rational hypothesis except that of guilt of Accused-Appellant
(People v. Jara, supra).

Liberato's credibility has not been overcome. On the contrary, as testified to by him, Accused-appellant admitted
that he, Liberato and Allan had a drinking spree in the early evening of 24 April 1988. Accused-appellant's
testimony, however, that he and Allan had a heated argument at the time and that Allan had fired a gun is belied by
the fact that the police did not find such a gun on Allan's person, according to Accused-appellant's own version.
Furthermore, Accused-appellant's declaration that he became afraid of Allan, by reason of his having fired a gun, is
negated by the circumstance that they were together in front of a store at around midnight in the evening of 24 April
1988 and had eaten together thereafter.

As found by the Trial Court, there is no reason for Liberato to concoct a false story incriminating his cousin, Allan,
and Accused-appellant, an acquaintance of his.

We agree with the defense, however, that the aggravating circumstance of cruelty should not have been
appreciated by the Trial Court. For this aggravating circumstance to be appreciated, it is essential "that the wrong
done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its
commission" (Art. 14 (21), Revised Penal Code). There having been no eyewitness to the commission of the crime,
it can not justifiably be concluded that the wrong done had been deliberately augmented. The mere fact that wounds
in excess of that necessary to cause death were inflicted upon the body of the victim does not necessarily imply that
such wounds were inflicted with cruelty and with the intention of deliberately and inhumanly increasing the sufferings
of the victim (People v. Siblag, 37 Phil. 703 [1918]). It is necessary to show that the accused deliberately and
inhumanly increased the victim's sufferings (People v. Luna, No. L-28812, July 31, 1974, 58 SCRA 198; People v.
Manzano, Nos. L-33643-44, July 31, 1974, 58 SCRA 250). The number of wounds is not the criterion for the
appreciation of cruelty as an aggravating circumstance (Ibid.).

The aggravating circumstance of use of a motor vehicle should neither be appreciated, the same not having been
indubitably proven under the environmental facts of the case.

What may be appreciated, however, is the aggravating circumstance of abuse of superior strength, also charged in
the Information. There is ample evidence to show that two individuals, one of them Accused-appellant, armed with a
knife, attacked a single person, the victim. It is obvious that the perpetrators of this crime took advantage of their
combined strength in order to consummate the offense. By reason of their superiority, not only in numbers but also
in weaponry, they were able to inflict twenty-seven (27) stab wounds, fourteen (14) of which were fatal.

In fine, Accused-appellant's conviction for the crime of Murder is proper. The indemnity to the heirs of the victim,
however, should be increased to P50,000.00 in line with current jurisprudence.

WHEREFORE, the judgment appealed from is hereby AFFIRMED, except with respect to the indemnity, which is
hereby increased to 50,000.00. Costs against accused-appellant, Ignacio Tonog, Jr.

SO ORDERED.

Paras, Padilla , Regalado and Nocon, JJ., concur.

 
 FIRST DIVISION

[G.R. No. 95847-48. March 10, 1993.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GABRIEL GERENTE y BULLO, Accused-

Appellant.

The Solicitor General for Plaintiff-Appellee.

Public Attorney’s Office for Accused-Appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN

ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS
COMMITTED THE CRIME; CASE AT BAR. — The policemen arrested Gerente only some three (3) hours
after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they
inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow
block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the
happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those
circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating
that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had
postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did.

2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN
INCIDENT TO LAWFUL ARREST; RATIONALE. — The search conducted on Gerente’s person was
likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule
126 of the Revised Rules of Court which provides: "Section 12. Search incident to lawful arrest. — A person
lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant." The frisk and search of appellant’s person upon his arrest
was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about
to be arrested may be armed and might attack them unless he is first disarmed. In Adams v. Williams, 47 U.S.
143, cited in Justice Isagani A. Cruz’s Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual
being arrested may be frisked for concealed weapons that may be used against the arresting officer and all
unlawful articles found his person, or within his immediate control may be seized." cralaw virtua1aw library

3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. — There

is no merit in appellant’s allegation that the trial court erred in convicting him of having conspired and
cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the
fracture on the back of the victim’s skull could have been inflicted by one person only. what Dr. Bernales stated
was a mere possibility that only one person dropped the concrete hollow block on the head of the victim,
smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of
Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The
conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant
and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood
and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for
the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony
is entitled to full faith and credit" (People v. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in
giving full credit to Edna Reyes’ testimony.

4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. — The Solicitor General correctly
pointed out in the appellee’s brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace
should be increased to P50,000.00 in accordance with our ruling in People v. Sison, 189 SCRA 643.

DECISION

GRIÑO-AQUINO, J.:
This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch
172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous
Drugs Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve
(12) years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him
guilty of Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The
dispositive portion of the appealed decision reads: jgc:chanrobles.com.ph

"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal Case
No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby
sentences him to suffer the penalty of imprisonment of twelve years and one day as minimum to
twenty years as maximum, and a fine of twelve thousand, without subsidiary imprisonment in case of
insolvency, and to pay the costs.

"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond
reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor
mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to
indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as
funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The
accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25,
Rollo.)

Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which
was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro
Manila. The Information reads: jgc:chanrobles.com.ph

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without
justification, did then and there wilfully, unlawfully and feloniously have in his possession and control
dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are
considered prohibited drugs." (p. 2, Rollo.)

The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged with
Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the same
Assistant Provincial Prosecutor, as follows: chanrobles virtual lawlibrary

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together
with two (2) others who are still at large and against whom the preliminary investigation has not yet
been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating
together and mutually helping one another, armed with a piece of wood and hallow (sic) block and
with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with
evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow
block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting
serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.)

Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente,
together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in
the house of the appellant which is about six (6) meters away from the house of the prosecution
witness who was in her house on that day. She overheard the three men talking about their intention
to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si
Clarito Blace," and Totoy Echigoren allegedly seconded Fredo’s suggestion saying: "Papatayin natin
‘yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August
24, 1990.)

Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m.
of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the
killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and
Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren
dropped a hollow block on the victim’s head. Thereafter, the three men dragged Blace to a place
behind the house of Gerente.

At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station
received a report from the Palo Police Detachment about a mauling incident. He went to the
Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials
that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard
and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and
Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There they
found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They were
informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she pointed to
Gabriel Gerente as one of the three men who killed Clarito.

The policemen proceeded to the house of the appellant who was then sleeping. They told him to
come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked
appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil.
The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic
Chemist found them to be marijuana. cralawnad

Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and
Totoy Echigoren, are still at large.

On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin
Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder.

When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of
the two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of
Violation of Section 8 of R.A. 6425 and of Murder.

In this appeal of the appellant, the following errors are ascribed to the trial court: chanrob1es virtual 1aw library

1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the
prosecution; and

2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite
the absence of evidence required to prove his guilt beyond reasonable doubt.

The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in
violation of his constitutional right not to be subjected to illegal search and seizure, for the dried
marijuana leaves were seized from him in the course of a warrantless arrest by the police officers.
We do not agree.

The search of appellant’s person and the seizure of the marijuana leaves in his possession were valid
because they were incident to a lawful warrantless arrest.

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide: chanrob1es virtual 1aw library

‘SECTION 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without
a warrant, arrest a person: jgc:chanrobles.com.ph

"(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;"

"(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; . . .’

The policemen arrested Gerente only some three (3) hours after Gerente and his companions had
killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime,
they found the instruments of death: a piece of wood and a concrete hollow block which the killers
had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to
the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those
circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts
indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a
warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the
law as his two companions did. chanrobles.com.ph : virtual law library

In Umil v. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1)
day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon
the rationale stated by us in People v. Malasugui, 63 Phil. 221, 228, thus: jgc:chanrobles.com.ph

"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of
his crime without a warrant, would be to leave society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many
instances." cralaw virtua1aw library

The search conducted on Gerente’s person was likewise lawful because it was made as an incident to
a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which
provides:jgc:chanrobles.com.ph

"SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant." cralaw virtua1aw library

The frisk and search of appellant’s person upon his arrest was a permissible precautionary measure
of arresting officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams v. Williams, 47 U.S. 143, cited in Justice
Isagani A. Cruz’s Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being
arrested may be frisked for concealed weapons that may be used against the arresting officer and all
unlawful articles found in his person, or within his immediate control may be seized." cralaw virtua1aw library

There is no merit in appellant’s allegation that the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr.
Valentin Bernales that the fracture on the back of the victim’s skull could have been inflicted by one
person only.

What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow
block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the
other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime,
the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of
Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that
acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his
death. "When there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the presumption is that he was not so moved and his testimony is
entitled to full faith and credit" (People v. Belibet, 199 SCRA 587, 588). Hence, the trial court did not
err in giving full credit to Edna Reyes’ testimony. chanrobles.com : virtual law library

Appellant’s failure to escape (because he was very drunk) is no indicium of his innocence.

The Solicitor General correctly pointed out in the appellee’s brief that the award of P30,000.00 as
civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with
our ruling in People v. Sison, 189 SCRA 643.

WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity
awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00.

SO ORDERED.

Cruz, Bellosillo and Quiason, JJ., concur.

G.R. No. 200370

MARIO VERIDIANO y SAPI, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

LEONEN, J.:

Through this Petition for Review on Certiorari,   Mario Veridiano y Sapi (Veridiano) assails the Decision  dated
1 2

November 18, 2011 and Resolution  dated January 25, 2012 of the Court of Appeals in CA-G.R. CR No. 33588,
3

which affirmed his conviction for violation of Article II, Section 11 of Republic Act No. 9165. 4

In an Information filed before the Regional Trial Court of San Pablo City, Laguna,  Veridiano was charged with the
5

crime of illegal possession of dangerous drugs. The Information read:

That on or about January 15, 2008, in the Municipality of Nagcarlan, Province of Laguna and within the jurisdiction
of this Honorable Court, the above-named accused, not being permitted or authorized by law, did then and there
willfully, unlawfully and feloniously have in his possession, control and custody one (1) small heat-sealed
transparent plastic sachet containing 2. 72 grams of dried marijuana leaves, a dangerous drug.

CONTRARY TO LAW. 6

On October 9, 2008, Veridiano was arraigned. He pleaded not guilty to the offense charged. Trial on the merits
ensued. 7

During trial, the prosecution presented PO 1 Guillermo Cabello (PO 1 Cabello) and POI Daniel Solano (POI Solano)
to testify. 8

According to the prosecution, at about 7:20 a.m. of January 15, 2008, a concerned citizen called a certain P03
Esteves, police radio operator of the Nagcarlan Police Station, informing him that a certain alias "Baho," who was
later identified as Veridiano, was on the way to San Pablo City to obtain illegal drugs.
9

P03 Esteves immediately relayed the information to PO I Cabello and P02 Alvin Vergara (P02 Vergara) who were
both on duty.   Chief of Police June Urquia instructed POI Cabello and P02 Vergara to set up a checkpoint at
10

Barangay Taytay, Nagcarlan, Laguna.  11

The police officers at the checkpoint personally knew Veridiano.

They allowed some vehicles to pass through after checking that he was not on board.   At around 10:00 a.m., they
12

chanced upon Veridiano inside a passenger jeepney coming from San Pablo, Laguna.   They flagged down the
13

jeepney and asked the passengers to disembark.   The police officers instructed the passengers to raise their t-
14

shirts to check for possible concealed weapons and to remove the contents of their pockets. 15

The police officers recovered from Veridiano "a tea bag containing what appeared to be marijuana."   POI Cabello
16

confiscated the tea bag and marked it with his initials.   Veridiano was arrested and apprised of his constitutional
17

rights.   He was then brought to the police station.

18 19

At the police station, PO 1 Cabello turned over the seized tea bag to PO 1 Solano, who also placed his initials.   PO 20

1 Solano then made a laboratory examination request, which he personally brought with the seized tea bag to the
Philippine National Police Crime Laboratory.  The contents of the tea bag tested positive for marijuana.
21 22

For his defense, Veridiano testified that he went to the fiesta in San Pablo City on January 15, 2008.  After
23

participating in the festivities, he decided to go home and took a passenger jeepney bound for Nagcarlan.  At 24

around 10:00 a.m., the jeepney passed a police checkpoint in Barangay Taytay, Nagcarlan.  Veridiano noticed that
25

the jeepney was being followed by three (3) motorcycles, each with two (2) passengers in civilian attire. 26

When the jeepney reached Barangay Buboy, Nagcarlan, the motorcyclists flagged down the jeepney.  Two (2) 27

armed men boarded the jeepney and frisked Veridiano.  However, they found nothing on his person.  Still,
28 29

Veridiano was accosted and brought to the police station where he was informed that "illegal drug was ... found in
his possession. " 30

In the Decision dated July 16, 2010,  the Regional Trial Court found Veridiano guilty beyond reasonable doubt for
31

the crime of illegal possession of marijuana. Accordingly, he was sentenced to suffer a penalty of imprisonment of
twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum, and to pay a fine of
₱300,000.00. 32
Veridiano appealed the decision of the trial court asserting that "he was illegally arrested."  He argued that the tea
33

bag containing marijuana is "inadmissible in evidence [for] being the 'fruit of a poisonous tree. "[['34]] Veridiano
further argued that the police officers failed to comply with the rule on chain of custody.  35

On the other hand, the prosecution asserted that "[t]he legality of an arrest affects only the jurisdiction of the court
over [the person of the accused]."  Thus, by entering his plea, Veridiano waived his right to question any irregularity
36

in his arrest.  With regard to the alleged illegal warrantless search conducted by the police officers, the prosecution
37

argued that Veridiano' s "submissive deportment at the time of the search" indicated that he consented to the
warrantless search.  38

On November 18, 2011, the Court of Appeals rendered a Decision  affirming the guilt ofVeridiano.
39 40

The Court of Appeals found that "Veridiano was caught in jlagrante delicto" of having marijuana in his
possession.  Assuming that he was illegally arrested, Veridiano waived his right to question any irregularity that may
41

have attended his arrest when he entered his plea and submitted himself to the jurisdiction of the
court.  Furthermore, the Court of Appeals held that Veridiano consented to the warrantless search because he did
42

not protest when the police asked him to remove the contents of his pocket. 43

Veridiano moved for reconsideration, which was denied in the

Resolution dated January 25, 2012.44

On March 16, 2012, Veridiano filed a Petition for Review on Certiorari. 45

Petitioner argues that the tea bag containing marijuana leaves was seized in violation of his right against
unreasonable searches and seizures.  He asserts that his arrest was illegal.  Petitioner was merely seated inside
46 47

the jeepney at the time of his apprehension. He did not act in any manner that would give the police officers
reasonable ground to believe that he had just committed a crime or that he was committing a crime.   Petitioner also 48

asserts that reliable information is insufficient to constitute probable cause that would support a valid warrantless
arrest.  49

Since his arrest was illegal, petitioner argues· that "the accompanying [warrantless] search was likewise
illegal."  Hence, under Article III, Section 2,  in relation to Article III, Section 3(2)  of the Constitution, the seized tea
50 51 52

bag containing marijuana is "inadmissible in evidence [for] being the fruit of a poisonous tree." 53

Nevertheless, assuming that the seized tea bag containing marijuana is admissible in evidence, petitioner contends
that the prosecution failed to preserve its integrity.  The apprehending team did not strictly comply with the rule on
54

chain of custody under Section 21 of the Implementing Rules and Regulations of Republic Act No. 9165. 55

In a Resolution dated June 13, 2012, this Court required respondent to file a comment on the petition.   In the 56

Manifestation and Motion dated August 1, 2012,  respondent stated that it would no longer file a comment.
57

The following issues are for this Court's resolution:

First, whether there was a valid warrantless arrest;

Second, whether there was a valid warrantless search against petitioner; and

Lastly, whether there is enough evidence to sustain petitioner's conviction for illegal possession of dangerous drugs.

The Petition is granted.

The invalidity of an arrest leads to several consequences among which are: (a) the failure to acquire jurisdiction over
the person of an accused; (b) criminal liability of law enforcers for illegal arrest; and (c) any search incident to the
arrest becomes invalid thus rendering the evidence acquired as constitutionally inadmissible.

Lack of jurisdiction over the person of an accused as a result of an invalid arrest must be raised through a motion to
quash before an accused enters his or her plea. Otherwise, the objection is deemed waived and an accused is
"estopped from questioning the legality of his [or her] arrest." 58

The voluntary submission of an accused to the jurisdiction of the court and his or her active participation during trial
cures any defect or irregularity that may have attended an arrest.   The reason for this rule is that "the legality of an
59

arrest affects only the jurisdiction of the court over the person of the accused." 60

Nevertheless, failure to timely object to the illegality of an arrest does not preclude an accused from questioning the
admissibility of evidence seized.  The inadmissibility of the evidence is not affected when an accused fails to
61
question the court's jurisdiction over his or her person in atimely manner. Jurisdiction over the person of an accused
and the constitutional inadmissibility of evidence are separate and mutually exclusive consequences of an illegal
arrest.

As a component of the right to privacy,  the fundamental right against unlawful searches and seizures is guaranteed
62

by no less than the Constitution. Article III, Section 2 of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.  63

To underscore the importance of an individual's right against unlawful searches and seizures, Article III, Section 3(2)
of the Constitution considers any evidence obtained in violation of this right as inadmissible.  64

The Constitutional guarantee does not prohibit all forms of searches and seizures.  It is only directed against those
65

that are unreasonable.  Conversely, reasonable searches and seizures fall outside the scope of the prohibition and
66

are not forbidden. 67

In People v. Aruta,   this Court explained that the language of the Constitution implies that "searches and seizures
68

are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest."  The69

requirements of a valid search warrant are laid down in Article III, Section 2 of the Constitution and reiterated in Rule
126, Section 4 of the Rules on Criminal Procedure.  70

However, People v. Cogaed  clarified that there are exceptional circumstances "when searches are reasonable
71

even when warrantless."  The following are recognized instances of permissible warrantless searches laid down in
72

jurisprudence: (1) a "warrantless search incidental to a lawful arrest,"  (2) search of "evidence in 'plain view,"' (3)
73

"search of a moving vehicle," (4) "consented warrantless search[es]," (5) "customs search," (6) "stop and frisk," and
(7) "exigent and emergency circumstances." 74

There is no hard and fast rule in determining when a search and seizure is reasonable. In any given situation,
"[w]hat constitutes a reasonable ... search ... is purely a judicial question," the resolution of which depends upon the
unique and distinct factual circumstances.   This may involve an inquiry into "the purpose of the search or seizure,
75

the presence or absence of probable cause, the manner in which the search and seizure was made, the place or
thing searched, and the character of the articles procured."  76

II

Pertinent to the resolution of this case is the determination of whether the warrantless search was incidental to a
lawful arrest. The Court of Appeals concluded that petitioner was caught in flagrante delicto of having marijuana in
his possession making the warrantless search lawful.  77

This Court disagrees. Petitioner's warrantless arrest was unlawful.

A search incidental to a lawful arrest requires that there must first be a lawful arrest before a search is made.
Otherwise stated, a lawful arrest must precede the search; "the process cannot be reversed."  For there to be a
78

lawful arrest, law enforcers must be armed with a valid warrant. Nevertheless, an arrest may also be effected
without a warrant.

There are three (3) grounds that will justify a warrantless arrest. Rule 113, Section 5 of the Revised Rules of
Criminal Procedure provides:

Section 5. Arrest Without Warrant; When Lawful. -A peace officer or a private person may, without a warrant, arrest
a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge
of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred
from one confinement to another.

The first kind of warrantless arrest is known as an in flagrante delicto arrest. The validity of this warrantless arrest
requires compliance with the overt act test  as explained in Cogaed:
79
[F]or a warrantless arrest of in flagrante delicto to be affected, "two elements must concur: (1) the person to be
arrested must execute an overt act indicating that he [or she] has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting
officer." 80

Failure to comply with the overt act test renders an inflagrante delicto arrest constitutionally infirm. In Cogaed, the
warrantless arrest was invalidated as an in flagrante delicto arrest because the accused did not exhibit an overt act
within the view of the police officers suggesting that he was in possession of illegal drugs at the time he was
apprehended.  81

The warrantless search in People v. Racho  was also considered unlawful.  The police officers received information
82 83

that a man was in possession of illegal drugs and was on board a Genesis bus bound for Baler, Aurora. The
informant added that the man was "wearing a red and white striped [t]-shirt."  The police officers waited for the bus
84

along the national highway.  When the bus arrived, Jack Racho (Racho) disembarked and waited along the highway
85

for a tricycle.  Suddenly, the police officers approached him and invited him to the police station since he was
86

suspected of having shabu in his possession.  As Racho pulled out his hands from his pocket, a white envelope fell
87

yielding a sachet of shabu. 88

In holding that the warrantless search was invalid, this Court observed that Racho was not "committing a crime in
the presence of the police officers" at the time he was apprehended.  Moreover, Racho's arrest was solely based on
89

a tip.  Although there are cases stating that reliable information is sufficient to justify a warrantless search incidental
90

to a lawful arrest, they were covered under the other exceptions to the rule on warrantless searches. 91

Rule 113, Section 5(b) of the Rules of Court pertains to a hot pursuit arrest.  The rule requires that an offense has
92

just been committed. It connotes "immediacy in point of time."  That a crime was in fact committed does not
93

automatically bring the case under this rule.   An arrest under Rule 113, Section 5(b) of the Rules of Court entails a
94

time element from the moment the crime is committed up to the point of arrest.

Law enforcers need not personally witness the commission of a crime. However, they must have personal
knowledge of facts and circumstances indicating that the person sought to be arrested committed it.

People v. Gerente  illustrates a valid arrest under Rule 113, Section 5(b) of the Rules of Court. In Gerente, the
95

accused was convicted for murder and for violation of Republic Act No. 6425.  He assailed the admissibility of dried
96

marijuana leaves as evidence on the ground that they were allegedly seized from him pursuant to a warrantless
arrest.  On appeal, the accused's conviction was affirmed.  This Court ruled that the warrantless arrest was justified
97 98

under Rule 113, Section 5(b) of the Rules of Court. The police officers had personal knowledge of facts and
circumstances indicating that the accused killed the victim:

The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed
Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the
instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to
death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her
neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge
of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully
arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have
fled the law as his two companions did.  (Emphasis supplied)
99

The requirement that law enforcers must have personal knowledge of facts surrounding the commission of an
offense was underscored in In Re Saliba v. Warden.  100

In Re Saliba involved a petition for habeas corpus. The police officers suspected Datukan Salibo (Salibo) as one (1)
of the accused in the Maguindano Massacre.   Salibo presented himself before the authorities to clear his name.
101

Despite his explanation, Salibo was apprehended and detained.   In granting the petition, this Court pointed out that
102

Salibo was not restrained under a lawful court process or order.   Furthermore, he was not arrested pursuant to a
103

valid warrantless arrest:  104

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police Station to clear his name and
to prove that he is not the accused Butukan S. Malang. When petitioner Salibo was in the presence of the police
officers of Datu Hofer Police Station, he was neither committing nor attempting to commit an offense. The police
officers had no personal knowledge of any offense that he might have committed. Petitioner Salibo was also not an
escapee prisoner.   (Emphasis supplied)
105

In this case, petitioner's arrest could not be justified as an inflagrante delicta arrest under Rule 113, Section 5(a) of
the Rules of Court. He was not committing a crime at the checkpoint. Petitioner was merely a passenger who did not
exhibit any unusual conduct in the presence of the law enforcers that would incite suspicion. In effecting the
warrantless arrest, the police officers relied solely on the tip they received. Reliable information alone is insufficient
to support a warrantless arrest absent any overt act from the person to be arrested indicating that a crime has just
been committed, was being committed, or is about to be committed. 10
The warrantless arrest cannot likewise be justified under Rule 113, Section 5(b) of the Revised Rules of Criminal
Procedure. The law enforcers had no personal knowledge of any fact or circumstance indicating that petitioner had
just committed an offense.

A hearsay tip by itself does not justify a warrantless arrest. Law enforcers must have personal knowledge of facts,
based on their observation, that the person sought to be arrested has just committed a crime. This is what gives rise
to probable cause that would justify a warrantless search under Rule 113, Section 5(b) of the Revised Rules of
Criminal Procedure.

III

The warrantless search cannot be justified under the reasonable suspicion requirement in "stop and frisk" searches.

A "stop and frisk" search is defined in People v. Chua   as "the act of a police officer to stop a citizen on the street,
107

interrogate him, and pat him for weapon(s) or contraband."   Thus, the allowable scope of a "stop and frisk" search
108

is limited to a "protective search of outer clothing for weapons." 109

Although a "stop and frisk" search is a necessary law enforcement measure specifically directed towards crime
prevention, there is a need to safeguard the right of individuals against unreasonable searches and seizures.  110

Law enforcers do not have unbridled discretion in conducting "stop and frisk" searches. While probable cause is not
required, a "stop and frisk" search cannot be validated on the basis of a suspicion or hunch.   Law enforcers must
111

have a genuine reason to believe, based on their experience and the particular circumstances of each case, that
criminal activity may be afoot.   Reliance on one (1) suspicious activity alone, or none at all, cannot produce a
112

reasonable search.  113

In Manalili v. Court of Appeals,   the police officers conducted surveillance operations in Caloocan City Cemetery, a
114

place reportedly frequented by drug addicts.  They chanced upon a male person who had "reddish eyes and [was]
115

walking in a swaying manner."  Suspecting that the man was high on drugs, the police officers approached him,
116

introduced themselves, and asked him what he was holding.  However, the man resisted.   Upon further
117 118

investigation, the police officers found marijuana in the man's possession. 119 This Court held that the
circumstances of the case gave the police officers justifiable reason to stop the man and investigate if he was high
on drugs.  120

In People v. Solayao,   the police officers were conducting an intelligence patrol to verify reports on the presence of
121

armed persons within Caibiran.  They met a group of drunk men, one (1) of whom was the accused in a
122

camouflage uniform.   When the police officers approached, his companions fled leaving behind the accused who
123

was told not to run away.   One (1) of the police officers introduced himself and seized from the accused a firearm
124

wrapped in dry coconut leaves.   This Court likewise found justifiable reason to stop and frisk the accused when
125

"his companions fled upon seeing the government agents."  126

The "stop and frisk" searches in these two (2) cases were considered valid because the accused in both cases
exhibited overt acts that gave law enforcers genuine reason to conduct a "stop and frisk" search. In contrast
with Manalili and Solayao, the warrantless search in Cogaed  was considered as an invalid "stop and frisk" search
127

because of the absence of a single suspicious circumstance that would justify a warrantless search.

In Cogaed, the police officers received information that a certain Marvin Buya would be transporting marijuana.   A 128

passenger jeepney passed through the checkpoint set up by the police officers. The driver then disembarked and
signaled that two (2) male passengers were carrying marijuana.   The police officers approached the two (2) men,
129

who were later identified as Victor Cogaed (Cogaed) and Santiago Dayao, and inquired about the contents of their
bags. 130

Upon further investigation, the police officers discovered three (3) bricks of marijuana in Cogaed's bag.   In holding
131

that the "stop and frisk" search was invalid, this Court reasoned that "[t]here was not a single suspicious
circumstance" that gave the police officers genuine reason to stop the two (2) men and search their
belongings.   Cogaed did not exhibit any overt act indicating that he was in possession of marijuana. 
132 133

Similar to Cogaed, petitioner in this case was a mere passenger in a jeepney who did not exhibit any act that would
give police officers reasonable suspicion to believe that he had drugs in his possession. Reasonable persons will
act in a nervous manner in any check point. There was no evidence to show that the police had basis or personal
knowledge that would reasonably allow them to infer anything suspicious.

IV

Moreover, petitioner's silence or lack of resistance can hardly be considered as consent to the warrantless search.
Although the right against unreasonable searches and seizures may be surrendered through a valid waiver, the
prosecution must prove that the waiver was executed with clear and convincing evidence.   Consent to a
134

warrantless search and seizure must be "unequivocal, specific, intelligently given ... [and unattended] by duress or
coercion." 135
The validity of a consented warrantless search is determined by the totality of the circumstances.   This may involve 136

an inquiry into the environment in which the consent was given such as "the presence of coercive police
procedures." 137

Mere passive conformity or silence to the warrantless search is only an implied acquiescence, which amounts to no
consent at all.   In Cogaed, this Court observed:
138

Cogaed's silence or lack of aggressive objection was a natural reaction to a coercive environment brought about by
the police officer's excessive intrusion into his private space. The prosecution and the police carry the burden of
showing that the waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed. 139

The presence of a coercive environment negates the claim that petitioner consented to the warrantless search.

Another instance of a valid warrantless search is a search of a moving vehicle. The rules governing searches and
seizures have been liberalized when the object of a search is a vehicle for practical purposes.  Police officers 140

cannot be expected to appear before a judge and apply for a search warrant when time is of the essence
considering the efficiency of vehicles in facilitating transactions involving contraband or dangerous
articles.   However, the inherent mobility of vehicles cannot justify all kinds of searches.  Law enforcers must act
141 142

on the basis of probable cause.  143

A checkpoint search is a variant of a search of a moving vehicle.   Due to the number of cases involving
144

warrantless ·searches in checkpoints and for the guidance of law enforcers, it is imperative to discuss the
parameters by which searches in checkpoints should be conducted.

Checkpoints per se are not invalid.   They are allowed in exceptional circumstances to protect the lives of
145

individuals and ensure their safety.   They are also sanctioned in cases where the government's survival is in
146

danger.   Considering that routine checkpoints intrude "on [a] motorist'sright to 'free passage'"  to a certain extent,
147 148

they must be "conducted in a way least intrusive to motorists."   The extent of routine inspections must be limited to
149

a visual search. Routine inspections do not give law enforcers carte blanche to perform warrantless searches.  150

In Valmonte v. De Villa,   this Court clarified that "[f]or as long as the vehicle is neither searched nor its occupants
151

subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot
be regarded as violative of an individual's right against unreasonable search[es]."  Thus, a search where an "officer
152

merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a
vehicle, or flashes a light therein" is not unreasonable.  153

However, an extensive search may be conducted on a vehicle at a checkpoint when law enforcers have probable
cause to believe that the vehicle's passengers committed a crime or when the vehicle contains instruments of an
offense. 154

Thus, routinary and indiscriminate searches of moving vehicles are allowed if they are limited to a visual search.
This holds especially true when the object of the search is a public vehicle where individuals have a reasonably
reduced expectation of privacy. On the other hand, extensive searches are permissible only when they are founded
upon probable cause. Any evidence obtained will be subject to the exclusionary principle under the Constitution.

That the object of a warrantless search is allegedly inside a moving vehicle does not justify an extensive search
absent probable cause. Moreover, law enforcers cannot act solely on the basis of confidential or tipped information.
A tip is still hearsay no matter how reliable it may be. It is not sufficient to constitute probable cause in the absence
of any other circumstance that will arouse suspicion.

Although this Court has upheld warrantless searches of moving vehicles based on tipped information, there have
been other circumstances that justified warrantless searches conducted by the authorities.

In People v. Breis,  apart from the tipped information they received, the law enforcement agents observed
155

suspicious behavior on the part of the accused that gave them reasonable ground to believe that a crime was being
committed.  The accused attempted to alight from the bus after the law enforcers introduced themselves and
156

inquired about the ownership of a box which the accused had in their possession.   In their attempt to leave the
157

bus, one (1) of the accused physically pushed a law enforcer out of the way.   Immediately alighting from a bus that
158

had just left the terminal and leaving one's belongings behind is unusual conduct. 159

In People v. Mariacos,   a police officer received information that a bag containing illegal drugs was about to be
160

transported on a passenger jeepney.   The bag was marked with "O.K."  On the basis of the tip, a police officer
161 162

conducted surveillance operations on board a jeepney.  Upon seeing the bag described to him, he peeked inside
163

and smelled the distinct odor of marijuana emanating from the bag.   The tipped information and the police officer's
164

personal observations gave rise to probable cause that rendered the warrantless search valid.  165
The police officers in People v. Ayangao  and People v. Libnao  likewise received tipped information regarding the
166 167

transport of illegal drugs. In Libnao, the police officers had probable cause to arrest the accused based on their
three (3)-month long surveillance operation in the area where the accused was arrested.   On the other hand,
168

in Ayangao, the police officers noticed marijuana leaves protruding through a hole in one (1) of the sacks carried by
the accused. 169

In the present case, the extensive search conducted by the police officers exceeded the allowable limits of
warrantless searches.  They had no probable cause to believe that the accused violated any law except for the tip
1âwphi1

they received. They did not observe any peculiar activity from the accused that may either arouse their suspicion or
verify the tip. Moreover, the search was flawed at its inception. The checkpoint was set up to target the arrest of the
accused.

There are different hybrids of reasonable warrantless searches. There are searches based on reasonable suspicion
as in Posadas v. Court of Appeals   where this Court justified the warrantless search of the accused who attempted
170

to flee with a buri bag after the police officers identified themselves. 

171

On the other hand, there are reasonable searches because of heightened security. In Dela Cruz v. People,   the 172

search conducted on the accused was considered valid because it was done in accordance with routine security
measures in ports.   This case, however, should not be construed to apply to border searches. Border searches are
173

not unreasonable per se;   there is a "reasonable reduced expectation of privacy" when travellers pass through or
174

stop at airports or other ports of travel.  175

The warrantless search conducted by the police officers is invalid. Consequently, the tea bag containing marijuana
seized from petitioner is rendered inadmissible under the exclusionary principle in Article III, Section 3(2) of the
Constitution. There being no evidence to support his conviction, petitioner must be acquitted.

WHEREFORE, the Decision dated July 16, 2010 of the Regional Trial Court in Criminal Case No. 16976-SP and the
Decision dated November 18, 2011 and Resolution dated January 25, 2012 of the Court of Appeals in CA-G.R. CR.
No. 33588 are REVERSED and SET ASIDE. Petitioner Mario Veridiano y Sapi is hereby ACQUITTED and is
ordered immediately RELEASED from confinement unless he is being held for some other lawful cause.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR: