G.R. No.
121917 March 12, 1997 temporal as
ROBIN CARIÑO PADILLA @ ROBINHOOD PADILLA, petitioner,
vs.
COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents.
FRANCISCO, J.:
On October 26, 1992, high-powered firearms with live ammunitions were found
in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:
(1) One .357 Caliber revolver, Smith and Wesson, SN-32919
with six (6) live ammunitions;
(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4)
long and one (1) short magazine with ammunitions;
(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight
(8) ammunitions; and
(4) Six additional live double action ammunitions of .38 caliber
revolver.1
Petitioner was correspondingly charged on December 3, 1992, before the
Regional Trial Court (RTC) of Angeles City with illegal possession of firearms
and ammunitions under P.D. 18662 thru the following Information:3
That on or about the 26th day of October, 1992, in the City of
Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously have in his possession and
under his custody and control one (1) M-16 Baby Armalite
rifle, SN-RP 131120 with four (4) long and one (1) short
magazines with ammunitions, one (1) .357 caliber revolver
Smith and Wesson, SN-32919 with six (6) live ammunitions
and one (1) .380 Pietro Beretta, SN-A35723Y with clip and
eight (8) ammunitions, without having the necessary authority
and permit to carry and possess the same.
ALL CONTRARY TO LAW. 4
The lower court then ordered the arrest of petitioner, 5 but granted his
application for bail. 6 During the arraignment on January 20, 1993, a
plea of not guilty was entered for petitioner after he refused, 7 upon
advice of counsel, 8 to make any plea. 9 Petitioner waived in writing his
right to be present in any and all stages of the case. 10
After trial, Angeles City RTC Judge David Rosete rendered judgment dated April
25, 1994 convicting petitioner of the crime charged and sentenced him to an
"indeterminate penalty from 17 years, 4 months and 1 day of reclusion
minimum, to 21 years of reclusion perpetua, as
maximum". 11 Petitioner filed his notice of appeal on April 28, 1994. 12 Pending
the appeal in the respondent Court of Appeals, 13 the Solicitor-General,
convinced that
the conviction shows strong evidence of guilt, filed on December 2, 1994 a
motion to cancel petitioner's bail bond. The resolution of this motion was
incorporated in the now assailed respondent court's decision sustaining
petitioner's conviction 14 the dispositive portion of which reads:
WHEREFORE, the foregoing circumstances considered, the
appealed decision is hereby AFFIRMED, and furthermore, the
P200,000.00 bailbond posted by accused-appellant for his
provisional liberty, FGU Insurance Corporation Bond No. JCR
(2) 6523, is hereby cancelled. The Regional Trial Court, Branch
61, Angeles City, is directed to issue the Order of Arrest of
accused-appellant and thereafter his transmittal to the
National Bureau of Prisons thru the Philippine National Police
where the said accused-appellant shall remain under
confinement pending resolution of his appeal, should he appeal
to the Supreme Court. This shall be immediately executory. The
Regional Trial Court is further directed to submit a report of
compliance herewith.
SO ORDERED. 15
Petitioner received a copy of this decision on July 26, 1995. 16 On August
9, 1995 he filed a "motion for reconsideration (and to recall the warrant
of arrest)" 17 but the same was denied by respondent court in its
September 20, 1995 Resolution 18 copy of which was received by
petitioner on September 27, 1995. The next day, September 28,
petitioner filed the instant petition for review on certiorari with
application for bail 19 followed by two "supplemental petitions" filed by
different counsels, 20 a "second supplemental petition" 21 and an urgent
motion for the separate resolution of his application for bail. Again, the
Solicitor-General 22 sought the denial of the application for bail, to
which the Court agreed in a Resolution promulgated on July 31,
1996. 23 The Court also granted the Solicitor-General's motion to file a
consolidated comment on the petitions and thereafter required the
petitioner to file his reply. 24 However, after his vigorous resistance and
success on the intramural of bail (both in the respondent court and this
Court) and thorough exposition of petitioner's guilt in his 55-page Brief
in the respondent court, the Solicitor-General now makes a complete
turnabout by filing a "Manifestation In Lieu Of Comment" praying for
petitioner's acquittal. 25
The People's detailed narration of facts, well-supported by evidence on record
and given credence by respondent court, is as follows: 26
At about 8:00 o'clock in the evening of October 26, 1992,
Enrique Manarang and his compadre Danny Perez were inside
the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City
where they took shelter from the heavy downpour (pp. 5-6,
TSN, February 15, 1993) that had interrupted their ride on
motorcycles (pp 5-6, ibid.) along McArthur Highway (ibid).
While inside the restaurant, Manarang noticed a vehicle, a
Mitsubishi Pajero, running fast down the highway prompting
him to remark that the vehicle might get into an accident
considering the inclement weather. (p. 7, Ibid) In the local
vernacular, he said thus: "Ka bilis na, mumuran pa naman pota
makaaksidente ya." (p. 7, ibid). True enough, immediately after
the vehicle had passed the restaurant, Manarang and Perez
heard a screeching sound produced by the sudden and hard
braking of a vehicle running very fast (pp. 7-8, ibid) followed
by a sickening sound of the vehicle hitting something (p.
8, ibid). Danny Cruz, quite sure of what had happened,
remarked "oy ta na" signifying that Manarang had been right in
his observation (pp. 8-9, ibid).
Manarang and Cruz went out to investigate and immediately
saw the vehicle occupying the edge or shoulder of the highway
giving it a slight tilt to its side (pp. 9-10, ibid). Manarang, being
a member of both the Spectrum, a civic group and the Barangay
Disaster Coordinating Council, decided to report the incident to
the Philippine National Police of Angeles City (p. 10, ibid). He
took out his radio and called the Viper, the radio controller of
the Philippine National Police of Angeles City (p. 10, ibid). By
the time Manarang completed the call, the vehicle had started
to leave the place of the accident taking the general direction to
the north (p. 11, ibid).
Manarang went to the location of the accident and found out
that the vehicle had hit somebody (p. 11, ibid).
He asked Cruz to look after the victim while he went back to
the restaurant, rode on his motorcycle and chased the vehicle
(p. 11 ibid). During the chase he was able to make out the plate
number of the vehicle as PMA 777 (p. 33, TSN, February 15,
1193). He called the Viper through the radio once again (p.
34, ibid) reporting that a vehicle heading north with plate
number PMA 777 was involved in a hit and run accident (p. 20,
TSN, June 8, 1993). The Viper, in the person of SP02 Ruby
Buan, upon receipt of the second radio call flashed the message
to all units of PNP Angeles City with the order to apprehend the
vehicle (p. 20, ibid). One of the units of the PNP Angeles City
reached by the alarm was its Patrol Division at Jake Gonzales
Street near the Traffic Division (pp. 5-7, TSN, February 23,
1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda
immediately borded a mobile patrol vehicle (Mobile No. 3) and
positioned themselves near the south approach of Abacan
bridge since it was the only passable way going to the north
(pp. 8-9, ibid). It took them about ten (10) seconds to cover the
distance between their office and the Abacan bridge (p. 9, ibid).
Another PNP mobile patrol vehicle that responded to the flash
message from SPO2 Buan was Mobile No. 7 of the
Pulongmaragal Detachment which was then conducting patrol
along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On
board were SPO Ruben Mercado and SPO3 Tan and SPO2
Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3
Tan to proceed to the MacArthur Highway to intercept the
vehicle with plate number PMA 777 (p. 10, ibid).
In the meantime, Manarang continued to chase the vehicle
which figured in the hit and run incident, even passing through
a flooded portion of the MacArthur Highway two (2) feet deep
in front of the Iglesia ni Kristo church but he could not catch up
with the same vehicle (pp. 11-12, February 15, 1993). When he
saw that the car he was chasing went towards Magalang, he
proceeded to Abacan bridge because he knew Pulongmaragal
was not passable (pp. 12-14, ibid). When he reached the
Abacan bridge, he found Mobile No. 3 and SPO2 Borja and
SPO2 Miranda watching all vehicles coming their way (p. 10,
TSN, February 23, 1993). He approached them and informed
them that there was a hit and run incident (p. 10, ibid). Upon
learning that the two police officers already knew about the
incident, Manarang went back to where he came from (pp. 10-
11; ibid). When Manarang was in front of Tina's Restaurant, he
saw the vehicle that had figured in the hit and run incident
emerging from the corner adjoining Tina's Restaurant (p. 15,
TSN, February 15, 1993). He saw that the license plate hanging
in front of the vehicle bore the identifying number PMA 777
and he followed it (p. 15, ibid) towards the Abacan bridge.
Soon the vehicle was within sight of SPO2 Borja and SPO2
Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When
the vehicle was about twelve (12) meters away from their
position, the two police officers boarded their Mobile car,
switched on the engine, operated the siren and strobe light and
drove out to intercept the vehicle (p. 11, ibid). They cut into the
path of the vehicle forcing it to stop (p. 11, ibid).
SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. (Exhibit D) lying horizontally at the front by the driver 's seat.
12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle It had a long magazine filled with live bullets in a semi-
with plate number PMA 777 and instructed its driver to alight automatic mode (pp. 17-21, ibid). He asked appellant for the
(p. 12, ibid). The driver rolled down the window and put his papers covering the rifle and appellant answered angrily that
head out while raising both his hands. They recognized the they were at his home (pp. 26-27, ibid). SPO Mercado modified
driver as Robin C. Padilla, appellant in this case (p. 13, ibid). the arrest of appellant by including as its ground illegal
There was no one else with him inside the vehicle (p. 24). At possession of firearms (p. 28, ibid). SPO Mercado then read to
that moment, Borja noticed that Manarang arrived and stopped appellant his constitutional rights (pp. 28-29, ibid).
his motorcycle behind the vehicle of appellant (p. 14, ibid).
The police officers brought appellant to the Traffic Division at
SPO2 Miranda told appellant to alight to which appellant
Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant
complied. Appellant was wearing a short leather jacket (p. 16,
voluntarily surrendered a third firearm, a pietro berreta pistol
TSN, March 8, 1993) such that when he alighted with both his
(Exhibit "L") with a single round in its chamber and a magazine
hands raised, a gun (Exhibit "C") tucked on the left side of his
(pp. 33-35, ibid) loaded with seven (7) other live bullets.
waist was revealed (p. 15, TSN, February 23, 1993), its butt
Appellant also voluntarily surrendered a black bag containing
protruding (p. 15, ibid). SPO2 Borja made the move to
two additional long magazines and one short magazine
confiscate the gun but appellant held the former's hand
(Exhibits M, N, and O, pp. 36-37, ibid). After appellant had been
alleging that the gun was covered by legal papers (p. 16, ibid).
interrogated by the Chief of the Traffic Division, he was
SPO2 Borja, however, insisted that if the gun really was
transferred to the Police Investigation Division at Sto. Rosario
covered by legal papers, it would have to be shown in the office
Street beside the City Hall Building where he and the firearms
(p. 16, ibid). After disarming appellant, SPO2 Borja told him
and ammunitions were turned over to SPO2 Rene Jesus
about the hit and run incident which was angrily denied by
Gregorio (pp. 5-10, TSN, July 13, 1993). During the
appellant (p. 17, ibid). By that time, a crowd had formed at the
investigation, appellant admitted possession of the firearms
place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun
stating that he used them for shooting (p. 14, ibid). He was not
and find six (6) live bullets inside (p. 20, ibid).
able to produce any permit to carry or memorandum receipt to
While SPO2 Borja and appellant were arguing, Mobile No. 7 cover the three firearms (pp. 16-18, TSN, January 25, 1994).
with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board
On November 28, 1992, a certification (Exhibit "F") was issued
arrived (pp. 11-12, TSN, March 8, 1993). As the most senior
by Captain, Senior Inspector Mario Espino, PNP, Chief, Record
police officer in the group, SPO Mercado took over the matter
Branch of the Firearms and Explosives Office (pp. 7-8, TSN,
and informed appellant that he was being arrested for the hit
March 4, 1993). The Certification stated that the three firearms
and run incident (p. 13, ibid). He pointed out to appellant the
confiscated from appellant, an M-16 Baby armalite rifle SN-RP
fact that the plate number of his vehicle was dangling and the
131280, a .357 caliber revolver Smith and Wesson SN 32919
railing and the hood were dented (p. 12, ibid). Appellant,
and a .380 Pietro Beretta SN-A35720, were not registered in
however, arrogantly denied his misdeed and, instead, played
the name of Robin C. Padilla (p. 6, ibid). A second Certification
with the crowd by holding their hands with one hand and
dated December 11, 1992 issued by Captain Espino stated that
pointing to SPO3 Borja with his right hand saying "iyan, kinuha
the three firearms were not also registered in the name of
ang baril ko" (pp. 13-15, ibid). Because appellant's jacket was
Robinhood C. Padilla (p. 10, ibid).
short, his gesture exposed a long magazine of an armalite rifle
tucked in appellant 's back right, pocket (p. 16, ibid). SPO Petitioner's defenses are as follows: (1) that his arrest was illegal and
Mercado saw this and so when appellant turned around as he consequently, the firearms and ammunitions taken in the course thereof are
was talking and proceeding to his vehicle, Mercado confiscated inadmissible in evidence under the exclusionary rule; (2) that he is a
the magazine from appellant (pp. 16-17, ibid). Suspecting that confidential agent authorized, under a Mission Order and Memorandum
appellant could also be carrying a rifle inside the vehicle since Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal
he had a magazine, SPO2 Mercado prevented appellant from possession constitutes excessive and cruel punishment proscribed by the 1987
going back to his vehicle by opening himself the door of Constitution.
appellant's vehicle (16-17, ibid). He saw a baby armalite rifle
After a careful review of the records 27 of this case, the Court is convinced that
petitioner's guilt of the crime charged stands on terra firma, notwithstanding
the Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest. There is no
dispute that no warrant was issued for the arrest of petitioner, but that  per
se did not make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances: 28
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.
(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.
Paragraph (a) requires that the person be arrested (i) after he has
committed or while he is actually committing or is at least attempting
to commit an offense, (ii) in the presence of the arresting officer or
private person. 29 Both elements concurred here, as it has been
established that petitioner's vehicle figured in a hit and run — an
offense committed in the "presence" of Manarang, a private person,
who then sought to arrest petitioner. It must be stressed at this point
that "presence" does not only require that the arresting person sees the
offense, but also when he "hears the disturbance created thereby AND
proceeds at once to the scene." 30 As testified to by Manarang, he heard
the screeching of tires followed by a thud, saw the sideswiped victim
(balut vendor), reported the incident to the police and thereafter gave
chase to the erring Pajero vehicle using his motorcycle in order to
apprehend its driver. After having sent a radio report to the PNP for
assistance, Manarang proceeded to the Abacan bridge where he found
responding policemen SPO2 Borja and SPO2 Miranda already
positioned near the bridge who effected the actual arrest of
petitioner. 31
Petitioner would nonetheless insist on the illegality of his arrest by arguing that
the policemen who actually arrested him were not at the scene of the hit and
run. 32 We beg to disagree. That Manarang decided to seek the aid of the
policemen (who admittedly were nowhere in the vicinity of the hit and run) in
effecting petitioner's arrest, did not in any way affect the propriety of the
apprehension. It was in fact the most prudent action Manarang could have taken
rather than collaring petitioner by himself, inasmuch as policemen are
unquestionably better trained and well-equipped in effecting an arrest of a
suspect (like herein petitioner) who, in all probability, could have put up a
degree of resistance which an untrained civilian may not be able to contain
without endangering his own life. Moreover, it is a reality that curbing
lawlessness gains more success when law enforcers function in collaboration
with private citizens. It is precisely through this cooperation, that the offense
herein involved fortunately did not become an additional entry to the long list of
unreported and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein,
cannot defeat the arrest which has been set in motion in a public place for want
of a warrant as the police was confronted by an urgent need to render aid or
take action. 33 The exigent circumstances of — hot pursuit, 34 a fleeing suspect, a
moving vehicle, the public place and the raining nighttime — all created a
situation in which speed is essential and delay improvident. 35 The Court
acknowledges police authority to make the forcible stop since they had more
than mere "reasonable and articulable" suspicion that the occupant of the
vehicle has been engaged in criminal activity. 36 Moreover, when caught
in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson)
and ammunition (M-16 magazine), petitioner's warrantless arrest was proper
as he was again actually committing another offense (illegal possession of
firearm and ammunitions) and this time in the presence of a peace officer. 37
Besides, the policemen's warrantless arrest of petitioner could likewise be
justified under paragraph (b) as he had in fact just committed an offense. There
was no supervening event or a considerable lapse of time between the hit and
run and the actual apprehension. Moreover, after having stationed themselves
at the Abacan bridge in response to Manarang's report, the policemen saw for
themselves the fast approaching Pajero of petitioner, 38 its dangling plate
number (PMA 777 as reported by Manarang), and the dented hood and railings
thereof. 39 These formed part of the arresting police officer's personal
knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle
involved in the hit and run incident. Verily then, the arresting police officers
acted upon verified personal knowledge and not on unreliable hearsay
information. 40
Furthermore, in accordance with settled jurisprudence, any objection, defect or
irregularity attending an arrest must be made before the accused enters his
plea. 41 Petitioner's belated challenge thereto aside from his failure to quash the
information, his participation in the trial and by presenting his evidence, placed
him in estoppel to assail the legality of his arrest. 42 Likewise, by applying for
bail, petitioner patently waived such irregularities and defects. 43
We now go to the firearms and ammunitions seized from petitioner without a
search warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of
property is valid, 44 are as follows:
1. warrantless search incidental to a lawful arrest recognized
under Section 12, Rule 126 of the Rules of Court 45 and by
prevailing jurisprudence 46,
2. Seizure of evidence in "plain view", the elements of which
are: 47
(a). a prior valid intrusion based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
(b). the evidence was inadvertently
discovered by the police who had the right to
be where they are;
(c). the evidence must be immediately
apparent, and
(d). "plain view" justified mere seizure of
evidence without further search. 48
3. search of a moving vehicle. 49 Highly regulated by the
government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a
criminal activity. 50
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears that the
authorities stumbled upon petitioner's firearms and ammunitions without even
undertaking any active search which, as it is commonly understood, is a prying
into hidden places for that which is concealed. 51 The seizure of the Smith &
Wesson revolver and an M-16 rifle magazine was justified for they came within
"plain view" of the policemen who inadvertently discovered the revolver and
magazine tucked in petitioner's waist and back pocket respectively, when he
raised his hands after alighting from his Pajero. The same justification applies to
the confiscation of the M-16 armalite rifle which was immediately apparent to
the policemen as they took a casual glance at the Pajero and saw said rifle lying
horizontally near the driver's seat. 52 Thus it has been held that:
(W)hen in pursuing an illegal action or in the commission of a
criminal offense, the . . . police officers should happen to
discover a criminal offense being committed by any person,
they are not precluded from performing their duties as police
officers for the apprehension of the guilty person and the
taking of the, corpus delicti. 53
Objects whose possession are prohibited by law inadvertently
found in plain view are subject to seizure even without a
warrant. 54
With respect to the Berreta pistol and a black bag containing assorted
magazines, petitioner voluntarily surrendered them to the
police. 55 This latter gesture of petitioner indicated a waiver of his right
against the alleged search and seizure 56, and that his failure to quash
the information estopped him from assailing any purported defect. 57
Even assuming that the firearms and ammunitions were products of an active
search done by the authorities on the person and vehicle of petitioner, their
seizure without a search warrant nonetheless can still be justified under a
search incidental to a lawful arrest (first instance). Once the lawful arrest was
effected, the police may undertake a protective search 58 of the passenger
compartment and containers in the vehicle 59 which are within petitioner's
grabbing distance regardless of the nature of the offense. 60 This satisfied the
two-tiered test of an incidental search: (i) the item to be searched (vehicle) was
within the arrestee's custody or area of immediate control 61 and (ii) the search
was contemporaneous with the arrest. 62 The products of that search are
admissible evidence not excluded by the exclusionary rule. Another justification
is a search of a moving vehicle (third instance). In connection therewith, a
warrantless search is constitutionally permissible when, as in this case, the
officers conducting the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender (like herein
petitioner with respect to the hit and run) or the contents or cargo of the vehicle
are or have been instruments or the subject matter or the proceeds of some
criminal offense. 63
Anent his second defense, petitioner contends that he could not be convicted of
violating P.D. 1866 because he is an appointed civilian agent authorized to
possess and carry the subject firearms and ammunition as evidenced by a
Mission Order 64 and Memorandum Receipt duly issued by PNP Supt. Rodialo
Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur.
The contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must be
established, viz.: (1) the existence of the subject firearm and, (2) the fact that the
accused who owned or possessed the firearm does not have the corresponding
license or permit to possess. 65 The first element is beyond dispute as the subject
firearms and ammunitions 66 were seized from petitioner's possession via a
valid warrantless search, identified and offered in evidence during trial. As to
the second element, the same was convincingly proven by the prosecution.
Indeed, petitioner's purported Mission Order and Memorandum Receipt are
inferior in the face of the more formidable evidence for the prosecution as our
meticulous review of the records reveals that the Mission Order and
Memorandum Receipt were mere afterthoughts contrived and issued under
suspicious circumstances. On this score, we lift from respondent court's incisive
observation. Thus:
Appellant's contention is predicated on the assumption that
the Memorandum Receipts and Mission Order were issued
before the subject firearms were seized and confiscated from
him by the police officers in Angeles City. That is not so. The
evidence adduced indicate that the Memorandum Receipts and
Mission Order were prepared and executed long after
appellant had been apprehended on October 26, 1992.
Appellant, when apprehended, could not show any document
as proof of his authority to possess and carry the subject
firearms. During the preliminary investigation of the charge
against him for illegal possession of firearms and ammunitions
he could not, despite the ample time given him, present any
proper document showing his authority. If he had, in actuality,
the Memorandum Receipts and Missions Order, he could have
produced those documents easily, if not at the time of
apprehension, at least during the preliminary investigation.
But neither appellant nor his counsel inform the prosecutor
that appellant is authorized to possess and carry the subject
firearms under Memorandum Receipt and Mission Order. At
the initial presentation of his evidence in court, appellant could
have produced these documents to belie the charged against
him. Appellant did not. He did not even take the witness stand
to explain his possession of the subject firearms.
Even in appellant's Demurrer to Evidence filed after the
prosecution rested contain no allegation of a Memorandum
Receipts and Mission Order authorizing appellant to possess
and carry the subject firearms.
At the initial presentation of appellant's evidence, the witness
cited was one James Neneng to whom a subpoena was issued.
Superintendent Gumtang was not even mentioned. James
Neneng appeared in court but was not presented by the
defense. Subsequent hearings were reset until the defense
found Superintendent Gumtang who appeared in court without
subpoena on January 13, 1994. 67
The Court is baffled why petitioner failed to produce and present the Mission
Order and Memorandum Receipt if they were really issued and existing before
his apprehension. Petitioner's alternative excuses that the subject firearms were
intended for theatrical purposes, or that they were owned by the Presidential
Security Group, or that his Mission Order and Memorandum Receipt were left at
home, further compound their irregularity. As to be reasonably expected, an
accused claiming innocence, like herein petitioner, would grab the earliest
opportunity to present the Mission Order and Memorandum Receipt in question
and save himself from the long and agonizing public trial and spare him from
proffering inconsistent excuses. In fact, the Mission Order itself, as well as the
Letter-Directive of the AFP Chief of Staff, is explicit in providing that:
VIII. c. When a Mission Order is requested for verification by
enforcement units/personnels such as PNP, Military Brigade
and other Military Police Units of AFP, the Mission Order
should be shown without resentment to avoid embarrassment
and/or misunderstanding.
IX. d. Implicit to this Mission Order is the injunction that the
confidential instruction will be carried out through all legal
means and do not cover an actuation in violation of laws. In the
latter event, this Mission Order is rendered inoperative in
respect to such violation. 68
which directive petitioner failed to heed without cogent explanation.
The authenticity and validity of the Mission Order and Memorandum Receipt,
moreover, were ably controverted. Witness for the prosecution Police Supt.
Durendes denied under oath his signature on the dorsal side of the Mission
Order and declared further that he did not authorize anyone to sign in his
behalf. 69 His surname thereon, we note, was glaringly misspelled as
"Durembes." 70 In addition, only Unit Commanders and Chief of Offices have the
authority to issue Mission Orders and Memorandum Receipts under
the Guidelines on the Issuance of MOs, MRs, & PCFORs. 71 PNP Supt. Rodialo
Gumtang who issued petitioner's Mission Order and Memorandum Receipt is
neither a Unit Commander nor the Chief of Office, but a mere deputy
commander. Having emanated from an unauthorized source, petitioner's
Mission Order and Memorandum Receipt are infirm and lacking in force and
effect. Besides, the Mission Order covers "Recom 1-12-Baguio City," 72 areas
outside Supt. Gumtang's area of responsibility thereby needing prior approval
"by next higher Headquarters" 73 which is absent in this case. The Memorandum
Receipt is also unsupported by a certification as required by the March 5, 1988
Memorandum of the Secretary of Defense which pertinently provides that:
No memorandum receipt shall be issued for a CCS firearms
without corresponding certification from the corresponding
Responsible Supply Officer of the appropriate AFP unit that
such firearm has been officially taken up in that units property
 book, and that report of such action has been reported to and the following firearms being asked
higher AFP authority. whether it is registered or not, I did not find
any records, the M-16 and the caliber .357 and
Had petitioner's Memorandum Receipt been authentic, we see no
the caliber .380 but there is a firearm with the
reason why he cannot present the corresponding certification as well.
same serial number which is the same as that
What is even more peculiar is that petitioner's name, as certified to by the licensed and/or registered in the name of one
Director for Personnel of the PNP, does not even appear in the Plantilla of Non- Albert Villanueva Fallorina.
Uniform Personnel or in the list of Civilian Agents or Employees of the PNP
Q. So in short, the only licensed firearms in the
which could justify the issuance of a Mission Order, a fact admitted by
name of accused Robin C. Padilla is a pistol,
petitioner's counsel. 74 The implementing rules of P.D. 1866 issued by the then
Smith and Wesson, caliber 9 mm with Serial
PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and
No. TCT 8214?
unambiguous, thus:
A. Yes, sir.
No Mission Order shall be issued to any civilian agent
authorizing the same to carry firearms outside residence Q. And the firearms that were the subject of
unless he/she is included in the regular plantilla of the this case are not listed in the names of the
government agency involved in law enforcement and is accused in this case?
receiving regular compensation for the services he/she is
A. Yes, sir. 77
rendering in the agency. Further, the civilian agent must be
included in a specific law enforcement/police/intelligence x x x           x x x          x x x
project proposal or special project which specifically required
And the certification which provides as follows:
the use of firearms(s) to insure its accomplishment and that
the project is duly approved at the PC Regional Command level Republic of the Philippines
or its equivalent level in other major services of the AFP, INP Department of the Interior and Local Government
and NBI, or at higher levels of command. 75 Circular No. 1, dated GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
January 6, 1986, of the then Ministry of Justice likewise FIREARMS AND EXPLOSIVES OFFICE
provides as follows: Camp Crame, Quezon City
If mission orders are issued to civilians (not members of the PNFEO5 28 November 1992
uniformed service), they must be civilian agents included in the
CERTIFICATION
regular plantilla of the government agency involved in law
enforcement and are receiving regular compensation for the TO WHOM IT MAY CONCERN:
service they are rendering.
THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St.,
That petitioner's Mission Order and Memorandum Receipt were Quezon City is a licensed/registered holder of Pistol Smith and
fabricated pieces of evidence is accentuated all the more by the Wesson Cal 9mm with serial number TCT8214 covered by
testimony and certification of the Chief of the Records Branch of the License No. RL M76C4476687.
firearms and Explosives Office of the PNP declaring that petitioner's
Further certify that the following firearms are not registered
confiscated firearms are not licensed or registered in the name of the
with this Office per verification from available records on file
petitioner. 76 Thus:
this Office as of this date:
Q. In all these files that you have just
mentioned Mr. Witness, what did you find, if M16 Baby Armalite SN-RP131120
any? Revolver Cal 357 SN-3219
A. I found that a certain Robin C. Padilla is a Pistol Cal 380 Pietro Beretta SN-35723
licensed registered owner of one 9 mm pistol,
Smith and Wesson with Serial No. TCT 8214
 However, we have on file one Pistol Cal 380, Beretta with serial
number 35723Y, licensed/registered to one Albert Villanueva
Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-
Registered License.
This certification is issued pursuant to Subpoena from City of
Angeles.
FOR THE CHIEF, FEO:
(Sgd.)
JOSE
Sr.
Chief, Records Branch
In several occasions, the Court has ruled that either the testimony of a
representative of, or a certification from, the PNP Firearms and Explosives
Office (FEO) attesting that a person is not a licensee of any firearm would suffice
to prove beyond reasonable doubt the second element of illegal possession of
79 80
firearm.   In People vs. Tobias,   we reiterated that such certification is
sufficient to show that a person has in fact no license. From the foregoing
discussion, the fact that petitioner does not have the license or permit to
possess was overwhelmingly proven by the prosecution. The certification may
even be dispensed with in the light of the evidences 81 that an M-16 rifle and any
short firearm higher than a .38 caliber pistol, akin to the confiscated firearms,
cannot be licensed to a civilian, 82 as in the case of petitioner. The Court,
therefore, entertains no doubt in affirming petitioner's conviction especially as
we find no plausible reason, and none was presented, to depart from the factual
findings of both the trial court and respondent court which, as a rule, are
accorded by the Court with respect and finality. 83
Anent his third defense, petitioner faults respondent court "in applying P.D.
1866 in a democratic ambience (sic) and a non-subversive context" and adds
that respondent court should have applied instead the previous laws on illegal
possession of firearms since the reason for the penalty imposed under P.D. 1866
84
no longer exists.   He stresses that the penalty of 17 years and 4 months to 21
years for simple illegal possession of firearm is cruel and excessive in
contravention of the Constitution. 85
The contentions do not merit serious consideration. The trial court and the
respondent court are bound to apply the governing law at the time of
appellant's commission of the offense for it is a rule that laws are repealed only
86
by subsequent ones.   Indeed, it is the duty of judicial officers to respect and
87
apply the law as it stands.   And until its repeal, respondent court can not be
faulted for applying P.D. 1866 which abrogated the previous statutes adverted
to by petitioner.
Equally lacking in merit is appellant's allegation that the penalty for simple
illegal possession is unconstitutional. The penalty for simple possession of
firearm, it should be stressed, ranges from reclusion temporal maximum
to reclusion perpetua contrary to appellant's erroneous averment. The severity
of a penalty does not ipso facto make the same cruel and excessive.
It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the
Constitution. "The fact that the punishment authorized by the
statute is severe does not make it cruel and unusual." (24 C.J.S.,
1187-1188). Expressed in other terms, it has been held that to
MARIO M. ESPINO
come under the ban, the punishment must be "flagrantly and
Inspector, PNP
plainly oppressive", "wholly disproportionate to the nature of
the offense as to shock the moral sense of the community" 88
It is well-settled that as far as the constitutional prohibition goes, it is
not so much the extent as the nature of the punishment that determines
whether it is, or is not, cruel and unusual and that sentences of
imprisonment, though perceived to be harsh, are not cruel or unusual
if within statutory limits. 89
Moreover, every law has in its favor the presumption of constitutionality. The
burden of proving the invalidity of the statute in question lies with the appellant
which burden, we note, was not convincingly discharged. To justify nullification
of the law, there must be a clear and unequivocal breach of the Constitution, not
a doubtful and argumentative implication, 90 as in this case. In fact, the
constitutionality of P.D. 1866 has been upheld twice by this Court. 91 Just
recently, the Court declared that "the pertinent laws on illegal possession of
firearms [are not] contrary to any provision of the Constitution. . .
" 92 Appellant's grievances on the wisdom of the prescribed penalty should not
be addressed to us. Courts are not concerned with the wisdom, efficacy or
morality of laws. That question falls exclusively within the province of Congress
which enacts them and the Chief Executive who approves or vetoes them. The
only function of the courts, we reiterate, is to interpret and apply the laws.
With respect to the penalty imposed by the trial court as affirmed by
respondent court (17 years 4 months and 1 day of reclusion temporal, as
minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same
in line with the fairly recent case of People v. Lian 93 where the Court en
banc provided that the indeterminate penalty imposable for simple illegal
possession of firearm, without any mitigating or aggravating circumstance,
should be within the range of ten (10) years and one (1) day to twelve years
(12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and
one (1) day to twenty (20) of reclusion temporal, as maximum. This is
discernible from the following explanation by the Court:
In the case at bar, no mitigating or aggravating circumstances
have been alleged or proved, In accordance with the doctrine
 regarding special laws explained in People v. Simon, 94 although
Presidential Decree No. 1866 is a special law, the penalties
therein were taken from the Revised Penal Code, hence the
rules in said Code for graduating by degrees or determining the
proper period should be applied. Consequently, the penalty for
the offense of simple illegal possession of firearm is the
medium period of the complex penalty in said Section 1, that is,
18 years, 8 months and 1 day to 20 years.
This penalty, being that which is to be actually imposed in
accordance with the rules therefor and not merely imposable
as a general prescription under the law, shall be the maximum
of the range of the indeterminate sentence. The minimum
thereof shall be taken, as aforesaid, from any period of the
penalty next lower in degree, which is, prision mayor in its
maximum period to reclusion temporal in its medium
period. 95
WHEREFORE, premises considered, the decision of the Court of Appeals
sustaining petitioner's conviction by the lower court of the crime of simple
illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that
petitioner's indeterminate penalty is MODIFIED to "ten (10) years and one (1)
day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as
maximum.
SO ORDERED.
G.R. No. 154130             October 1, 2003
BENITO ASTORGA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of Court, seeking the
reversal of a Decision of the Sandiganbayan in Criminal Case No. 24986, dated
July 5, 2001,1 as well as its Resolutions dated September 28, 2001 and July 10,
2002.
On October 28, 1998, the Office of the Ombudsman filed the following
Information against Benito Astorga, Mayor of Daram, Samar, as well as a
number of his men for Arbitrary Detention:
That on or about the 1st day of September, 1997, and for sometime subsequent
thereto, at the Municipality of Daram, Province of Samar, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, a public
officer, being the Municipal Mayor of Daram, Samar, in such capacity and
committing the offense in relation to office, conniving, confederating and
mutually helping with unidentified persons, who are herein referred to under
fictitious names JOHN DOES, who were armed with firearms of different
calibers, with deliberate intent, did then and there willfully, unlawfully and
feloniously detain Elpidio Simon, Moises dela Cruz, Wenifredo Maniscan, Renato
Militante and Crisanto Pelias, DENR Employees, at the Municipality of Daram, by
not allowing them to leave the place, without any legal and valid grounds
thereby restraining and depriving them of their personal liberty for nine (9)
hours, but without exceeding three (3) days.
CONTRARY TO LAW.2
On September 1, 1997, Regional Special Operations Group (RSOG) of the
Department of Environment and Natural Resources (DENR) Office No. 8,
Tacloban City sent a team to the island of Daram, Western Samar to conduct
intelligence gathering and forest protection operations in line with the
government’s campaign against illegal logging. The team was composed of
Forester II Moises dela Cruz, Scaler Wenifredo Maniscan, Forest Ranger Renato
Militante, and Tree Marker Crisanto Pelias, with Elpidio E. Simon, Chief of the
Forest Protection and Law Enforcement Section, as team leader. The team was
escorted by SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian. 3
The team stopped at Brgy. Bagacay, Daram, Western Samar at 2:00 p.m., where
they saw two yacht-like boats being constructed. After consulting with the local
barangay officials, the team learned that the boats belonged to a certain Michael
Figueroa. However, since Figueroa was not around at the time, the team left
Brgy. Bagacay.4
En route to Brgy. Manungca, Sta. Rita, Samar, the team spotted two more boats
being constructed in the vicinity of Brgy. Lucob-Lucob, Daram, Samar, between
4:30-5:00 p.m., prompting them to stop and investigate. Thus, Maniscan and
Militante disembarked from the DENR’s service pump boat and proceeded to
the site of the boat construction. There, they met Mayor Astorga. After
conversing with the mayor, Militante returned to their boat for the purpose of
fetching Simon, at the request of Mayor Astorga.5
When Simon, accompanied by dela Cruz, SPO3 Cinco, and SPO1 Capoquian,
approached Mayor Astorga to try and explain the purpose of their mission,
Simon was suddenly slapped hard twice on the shoulder by Mayor Astorga, who
exclaimed, "Puwede ko kamo papaglanguyon pag-uli ha Tacloban. Ano, di ka
maaram nga natupa ako? Natupa baya ako. Diri kamo makauli yana kay puwede
kame e charge ha misencounter." (I can make you swim back to Tacloban. Don’t
you know that I can box? I can box. Don’t you know that I can declare this a
misencounter?)6 Mayor Astorga then ordered someone to fetch
"reinforcements," and forty-five (45) minutes later, or between 5:00-6:00 p.m., a
banca arrived bearing ten (10) men, some of them dressed in fatigue uniforms.
The men were armed with M-16 and M14 rifles, and they promptly surrounded
the team, guns pointed at the team members. 7 At this, Simon tried to explain to
Astorga the purpose of his team’s mission. 8 He then took out his handheld ICOM
radio, saying that he was going to contact his people at the DENR in Catbalogan
to inform them of the team’s whereabouts. Suddenly, Mayor Astorga forcibly
grabbed Simon’s radio, saying, "Maupay nga waray kamo radio bis diri somabut
an iyo opisina kon hain kamo, bis diri kamo maka aro hin bulig." (It’s better if
you have no radio so that your office would not know your whereabouts and so
that you cannot ask for help). 9 Mayor Astorga again slapped the right shoulder
of Simon, adding, "Kong siga kamo ha Leyte ayaw pagdad-a dinhi ha Samar kay
diri kamo puwede ha akon." (If you are tough guys in Leyte, do not bring it to
Samar because I will not tolerate it here.) 10 Simon then asked Mayor Astorga to
allow the team to go home, at which Mayor Astorga retorted that they would not
be allowed to go home and that they would instead be brought to
Daram.11 Mayor Astorga then addressed the team, saying, "Kon magdakop man
la kamo, unahon an mga dagko. Kon madakop niyo an mga dagko, an kan
Figueroa dida ha Bagacay puwede ko liwat ipadakop an akon." (If you really
want to confiscate anything, you start with the big-time. If you confiscate the
boats of Figueroa at Brgy. Bagacay, I will surrender mine.) 12 Simon then tried to
reiterate his request for permission to leave, which just succeeded in irking
Mayor Astorga, who angrily said, "Diri kamo maka uli yana kay dad on ko kamo
ha Daram, para didto kita mag uro istorya." (You cannot go home now because I
will bring you to Daram. We will have many things to discuss there.)13
The team was brought to a house where they were told that they would be
served dinner. The team had dinner with Mayor Astorga and several others at a
long table, and the meal lasted between 7:00-8:00 p.m. 14 After dinner, Militante,
Maniscan and SPO1 Capoquian were allowed to go down from the house, but
not to leave the barangay. 15 On the other hand, SPO3 Cinco and the rest just sat
in the house until 2:00 a.m. when the team was finally allowed to
leave.16 1awphi1.nét
Complainants filed a criminal complaint for arbitrary detention against Mayor
Astorga and his men, which led to the filing of the above-quoted Information.
Mayor Astorga was subsequently arraigned on July 3, 2000, wherein he pleaded
not guilty to the offenses charged. 17 At the trial, the prosecution presented the
testimonies of SPO1 Capoquian and SPO3 Cinco, as well as their Joint
Affidavit.18 However, the presentation of Simon’s testimony was not completed,
and none of his fellow team members came forward to testify. Instead, the
members of the team sent by the DENR RSOG executed a Joint Affidavit of
Desistance.19
On July 5, 2001, the Sandiganbayan promulgated its Decision, disposing of the
case as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding
accused BENITO ASTORGA Y BOCATCAT guilty of Arbitrary Detention, and in
the absence of any mitigating or aggravating circumstances, applying the
Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment of
four (4) months of arresto mayor as minimum to one (1) year and eight (8)
months of prision correctional as maximum.
SO ORDERED.20
The accused filed a Motion for Reconsideration dated July 11, 2001 21 which was
denied by the Sandiganabayan in a Resolution dated September 28, 2001. 22 A
Second Motion for Reconsideration dated October 24, 2001 23 was also filed, and
this was similarly denied in a Resolution dated July 10, 2002. 24
Hence, the present petition, wherein the petitioner assigns a sole error for
review:
5.1. The trial court grievously erred in finding the accused guilty of Arbitrary
Detention as defined and penalized under Article 124 of the Revised Penal Code,
based on mere speculations, surmises and conjectures and, worse,
notwithstanding the Affidavit of Desistance executed by the five (5) complaining
witnesses wherein the latter categorically declared petitioner’s innocence of the
crime charged.25
Petitioner contends that the prosecution failed to establish the required
quantum of evidence to prove the guilt of the accused, 26 especially in light of the
fact that the private complainants executed a Joint Affidavit of
Desistance.27 Petitioner asserts that nowhere in the records of the case is there
any competent evidence that could sufficiently establish the fact that restraint
was employed upon the persons of the team members. 28 Furthermore, he claims
that the mere presence of armed men at the scene does not qualify as competent
evidence to prove that fear was in fact instilled in the minds of the team
members, to the extent that they would feel compelled to stay in Brgy. Lucob-
Lucob.29
Arbitrary Detention is committed by any public officer or employee who,
without legal grounds, detains a person.30 The elements of the crime are:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds.31
That petitioner, at the time he committed the acts assailed herein, was then
Mayor of Daram, Samar is not disputed. Hence, the first element of Arbitrary
Detention, that the offender is a public officer or employee, is undeniably
present.
Also, the records are bereft of any allegation on the part of petitioner that his
acts were spurred by some legal purpose. On the contrary, he admitted that his
acts were motivated by his "instinct for self-preservation" and the feeling that
he was being "singled out." 32 The detention was thus without legal grounds,
thereby satisfying the third element enumerated above.
What remains is the determination of whether or not the team was actually People v. Ballabare, it was held that an affidavit of desistance is merely an
detained. additional ground to buttress the defenses of the accused, not the sole
consideration that can result in acquittal. There must be other circumstances
In the case of People v. Acosta, 33 which involved the illegal detention of a child,
which, when coupled with the retraction or desistance, create doubts as to the
we found the accused-appellant therein guilty of kidnapping despite the lack of
truth of the testimony given by the witnesses at the trial and accepted by the
evidence to show that any physical restraint was employed upon the victim.
judge. Here, there are no such circumstances. 40 Indeed, the belated claims made
However, because the victim was a boy of tender age and he was warned not to
in the Joint Affidavit of Desistance, such as the allegations that the incident was
leave until his godmother, the accused-appellant, had returned, he was
the result of a misunderstanding and that the team acceded to Mayor Astorga’s
practically a captive in the sense that he could not leave because of his fear to
orders "out of respect," are belied by petitioner’s own admissions to the
violate such instruction.34
contrary.41 The Joint Affidavit of Desistance of the private complainants is
In the case of People v. Cortez, 35 we held that, in establishing the intent to evidently not a clear repudiation of the material points alleged in the
deprive the victim of his liberty, it is not necessary that the offended party be information and proven at the trial, but a mere expression of the lack of interest
kept within an enclosure to restrict her freedom of locomotion. At the time of of private complainants to pursue the case.1awphi1.nét This conclusion is
her rescue, the offended party in said case was found outside talking to the supported by one of its latter paragraphs, which reads:
owner of the house where she had been taken. She explained that she did not
11. That this affidavit was executed by us if only to prove our sincerity and
attempt to leave the premises for fear that the kidnappers would make good
improving DENR relations with the local Chiefs Executive and other official of
their threats to kill her should she do so. We ruled therein that her fear was not
Daram, Islands so that DENR programs and project can be effectively
baseless as the kidnappers knew where she resided and they had earlier
implemented through the support of the local officials for the betterment of the
announced that their intention in looking for her cousin was to kill him on sight.
residence living conditions who are facing difficulties and are much dependent
Thus, we concluded that fear has been known to render people immobile and
on government support.42
that appeals to the fears of an individual, such as by threats to kill or similar
threats, are equivalent to the use of actual force or violence. 36 Petitioner also assails the weight given by the trial court to the evidence,
pointing out that the Sandiganbayan’s reliance on the testimony of SPO1
The prevailing jurisprudence on kidnapping and illegal detention is that the
Capoquian is misplaced, for the reason that SPO1 Capoquian is not one of the
curtailment of the victim’s liberty need not involve any physical restraint upon
private complainants in the case. 43 He also makes much of the fact that
the victim’s person. If the acts and actuations of the accused can produce such
prosecution witness SPO1 Capoquian was allegedly "not exactly privy to, and
fear in the mind of the victim sufficient to paralyze the latter, to the extent that
knowledgeable of, what exactly transpired between herein accused and the
the victim is compelled to limit his own actions and movements in accordance
DENR team leader Mr. Elpidio E. Simon, from their alleged ‘confrontation,’ until
with the wishes of the accused, then the victim is, for all intents and purposes,
they left Barangay Lucob-Lucob in the early morning of 2 September 1997." 44
detained against his will.
It is a time-honored doctrine that the trial court’s factual findings are conclusive
In the case at bar, the restraint resulting from fear is evident. Inspite of their
and binding upon appellate courts unless some facts or circumstances of weight
pleas, the witnesses and the complainants were not allowed by petitioner to go
and substance have been overlooked, misapprehended or
home.37 This refusal was quickly followed by the call for and arrival of almost a
misinterpreted.45 Nothing in the case at bar prompts us to deviate from this
dozen "reinforcements," all armed with military-issue rifles, who proceeded to
doctrine. Indeed, the fact that SPO1 Capoquian is not one of the private
encircle the team, weapons pointed at the complainants and the
complainants is completely irrelevant. Neither penal law nor the rules of
witnesses.38 Given such circumstances, we give credence to SPO1 Capoquian’s
evidence requires damning testimony to be exclusively supplied by the private
statement that it was not "safe" to refuse Mayor Astorga’s orders. 39 It was not
complainants in cases of Arbitrary Detention. Furthermore, Mayor Astorga’s
just the presence of the armed men, but also the evident effect these gunmen
claim that SPO1 Capoquian was "not exactly privy" to what transpired between
had on the actions of the team which proves that fear was indeed instilled in the
Simon and himself is belied by the evidence. SPO1 Capoquian testified that he
minds of the team members, to the extent that they felt compelled to stay in
accompanied Simon when the latter went to talk to petitioner. 46 He heard all of
Brgy. Lucob-Lucob. The intent to prevent the departure of the complainants and
Mayor Astorga’s threatening remarks. 47 He was with Simon when they were
witnesses against their will is thus clear.
encircled by the men dressed in fatigues and wielding M-16 and M-14 rifles. 48 In
Regarding the Joint Affidavit of Desistance executed by the private sum, SPO1 Capoquian witnessed all the circumstances which led to the
complainants, suffice it to say that the principles governing the use of such Arbitrary Detention of the team at the hands of Mayor Astorga.
instruments in the adjudication of other crimes can be applied here. Thus, in
Petitioner submits that it is unclear whether the team was in fact prevented
from leaving Brgy. Lucob-Lucob or whether they had simply decided to "while
away the time" and take advantage of the purported hospitality of the
accused.49 On the contrary, SPO3 Cinco clearly and categorically denied that they
were simply "whiling away the time" between their dinner with Mayor Astorga
and their departure early the following morning. 50 SPO1 Capoquian gave similar
testimony, saying that they did not use the time between their dinner with
Mayor Astorga and their departure early the following morning to "enjoy the
place" and that, given a choice, they would have gone home.51
Petitioner argues that he was denied the "cold neutrality of an impartial judge",
because the ponente of the assailed decision acted both as magistrate and
advocate when he propounded "very extensive clarificatory questions" on the
witnesses. Surely, the Sandiganbayan, as a trial court, is not an idle arbiter
during a trial. It can propound clarificatory questions to witnesses in order to
ferret out the truth. The impartiality of the court cannot be assailed on the
ground that clarificatory questions were asked during the trial. 52
Thus, we affirm the judgment of the Sandiganbayan finding petitioner guilty
beyond reasonable doubt of Arbitrary Detention. Article 124 (1) of the Revised
Penal Code provides that, where the detention has not exceeded three days, the
penalty shall be arresto mayor in its maximum period to prision correccional in
its minimum period, which has a range of four (4) months and one (1) day to
two (2) years and four (4) months. Applying the Indeterminate Sentence Law,
petitioner is entitled to a minimum term to be taken from the penalty next
lower in degree, or arresto mayor in its minimum and medium periods, which
has a range of one (1) month and one (1) day to four (4) months. Hence, the
Sandiganbayan was correct in imposing the indeterminate penalty of four (4)
months of arresto mayor, as minimum, to one (1) year and eight (8) months of
prision correccional, as maximum.
Before closing, it may not be amiss to quote the words of Justice Perfecto in his
concurring opinion in Lino v. Fugoso, wherein he decried the impunity enjoyed
by public officials in committing arbitrary or illegal detention, and called for the
intensification of efforts towards bringing them to justice:
The provisions of law punishing arbitrary or illegal detention committed by
government officers form part of our statute books even before the advent of
American sovereignty in our country. Those provisions were already in effect
during the Spanish regime; they remained in effect under American rule;
continued in effect under the Commonwealth. Even under the Japanese regime
they were not repealed. The same provisions continue in the statute books of
the free and sovereign Republic of the Philippines. This notwithstanding, and
the complaints often heard of violations of said provisions, it is very seldom that
prosecutions under them have been instituted due to the fact that the erring
individuals happened to belong to the same government to which the
prosecuting officers belong. It is high time that every one must do his duty,
without fear or favor, and that prosecuting officers should not answer with cold
shrugging of the shoulders the complaints of the victims of arbitrary or illegal
detention.
Only by an earnest enforcement of the provisions of articles 124 and 125 of the
Revised Penal Code will it be possible to reduce to its minimum such wanton
trampling of personal freedom as depicted in this case. The responsible officials
should be prosecuted, without prejudice to the detainees’ right to the indemnity
to which they may be entitled for the unjustified violation of their fundamental
rights.53
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The
Decision of the Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001
finding petitioner BENITO ASTORGA guilty beyond reasonable doubt of the
crime of Arbitrary Detention and sentencing him to suffer the indeterminate
penalty of four (4) months of arresto mayor, as minimum, to one (1) year and
eight (8) months of prision correccional, as maximum, is AFFIRMED in toto.
Costs de oficio.
SO ORDERED.
SPECIAL FIRST DIVISION
[G.R. NO. 154130 : August 20, 2004]
BENITO ASTORGA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
On October 1, 2003, we rendered a Decision in this case affirming petitioner's
conviction by the Sandiganbayan of the crime of Arbitrary Detention. Petitioner
now seeks a reconsideration of our Decision.
The facts are briefly restated as follows:
Private offended parties Elpidio Simon, Moises de la Cruz, Wenefredo Maniscan,
Renato Militante and Crisanto Pelias are members of the Regional Special
Operations Group (RSOG) of the Department of Environment and Natural
Resources, Tacloban City. On September 1, 1997, they, together with SPO3
Andres B. Cinco, Jr. and SPO1 Rufo Capoquian of the Philippine National Police
Regional Intelligence Group, were sent to the Island of Daram, Western Samar
to conduct intelligence operations on possible illegal logging activities. At
around 4:30-5:00 p.m., the team found two boats measuring 18 meters in length
and 5 meters in breadth being constructed at Barangay Locob-Locob. There they
met petitioner Benito Astorga, the Mayor of Daram, who turned out to be the
owner of the boats. A heated altercation ensued between petitioner and the
DENR team. Petitioner called for reinforcements and, moments later, a boat
bearing ten armed men, some wearing fatigues, arrived at the scene. The DENR
team was then brought to petitioner's house in Daram, where they had dinner
and drinks. The team left at 2:00 a.m.
On the basis of the foregoing facts, petitioner was charged with and convicted of
Arbitrary Detention by the Sandiganbayan in Criminal Case No. 24986. On
Petition for Review , we rendered judgment as follows:
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The
Decision of the Sandiganbayan in Criminal Case No., dated July 5, 2001 finding
petitioner BENITO ASTORGA guilty beyond reasonable doubt of the crime of
Arbitrary Detention and sentencing him to suffer the indeterminate penalty of
four (4) months of arresto mayor, as minimum, to one (1) year and eight (8)
months of prision correccional, as maximum, is AFFIRMED in toto.
Costs de oficio.
SO ORDERED.
Petitioner filed a Motion for Reconsideration, which was denied with finality on
January 12, 2004.1 Petitioner then filed an "Urgent Motion for Leave to File
Second Motion for Reconsideration"2 with attached "Motion for
Reconsideration,"3 wherein he makes the following submissions:
1. THE ARMED MEN WERE NOT SUMMONED BY PETITIONER FOR THE
PURPOSE OF DETAINING THE PRIVATE OFFENDED PARTIES;
2. THERE IS NO EVIDENCE THAT THE SUPPOSED VICTIMS INSISTED ON
LEAVING THE PLACE WHERE THEY WERE SUPPOSED TO BE DETAINED;
3. THE SUPPOSED VICTIMS THEMSELVES HAVE DECLARED THE INNOCENCE
OF THE PETITIONER;
4. CRIMINAL INTENT ON THE PART OF THE ACCUSED IS CLEARLY WANTING
IN THE INSTANT CASE.4
Subsequently, petitioner filed a Supplement to the Second Motion for
Reconsideration.5
The prosecution was required to comment on petitioner's second Motion for
Reconsideration and the Supplement thereto.
We find the grounds raised by the second Motion for Reconsideration well-
taken.6
While a second motion for reconsideration is, as a general rule, a prohibited
pleading, it is within the sound discretion of the Court to admit the same,
provided it is filed with prior leave whenever substantive justice may be better
served thereby.
The rules of procedure are merely tools designed to facilitate the attainment of
justice. They were conceived and promulgated to effectively aid the court in the
dispensation of justice. Courts are not slaves to or robots of technical rules,
shorn of judicial discretion. In rendering justice, courts have always been, as
they ought to be, conscientiously guided by the norm that on the balance,
technicalities take a backseat against substantive rights, and not the other way
around. Thus, if the application of the Rules would tend to frustrate rather than
promote justice, it is always within our power to suspend the rules, or except a
particular case from its operation.7
The elements of the crime of Arbitrary Detention are:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds.8
The determinative factor in Arbitrary Detention, in the absence of actual
physical restraint, is fear. After a careful review of the evidence on record, we
find no proof that petitioner instilled fear in the minds of the private offended
parties.
Indeed, we fail to discern any element of fear from the narration of SPO1 Rufo
Capoquian, the police officer who escorted the DENR Team during their mission.
On the contrary, what appears is that petitioner, being then a municipal mayor,
merely extended his hospitality and entertained the DENR Team in his house.
SPO1 Capoquian testified thus:
ATTY. JUMAMIL:
q       After Bagacay you arrived in what barangay in Daram?
chanroblesvirtualawlibrary
a       We were on our way to Barangay Sta. Rita in Daram but on our way we saw
a boat being constructed there so we proceeded to Barangay Lucodlucod (sic).
q       And you arrived at 5:00 o'clock?chanroblesvirtualawlibrary
a       Yes sir.
q       And you left at 2:00 o'clock in the morning of September 2?
chanroblesvirtualawlibrary
a       Yes sir.
q       And you ate dinner between 5:00 o'clock to 2:00 o'clock in the morning of
September 2, is that correct?chanroblesvirtualawlibrary
a       Yes sir. Mayor Astorga told us let us have dinner.
q       And Mayor Astorga brought you to a house where you had dinner?
chanroblesvirtualawlibrary
a       Yes sir.
q       And of course you also partook of wine?chanroblesvirtualawlibrary
a       I know they had wine but with respect to us we had no wine sir. a       A little bit hard I don't know when the rain stopped, sir.
xxx       xxx       xxx q       It is possible that it rain.. the rain stopped at 1:00 o'clock in the morning of
September 2?chanroblesvirtualawlibrary
AJ NARIO:
a       I don't remember sir.
q       While you were taking your dinner from 7 to 8:00 o'clock Mayor Astorga
was with you having dinner?chanroblesvirtualawlibrary xxx       xxx       xxx
a       Yes Your Honor. AJ PALATTAO:
q       You did not hear the conversation between the Mayor and the foresters, q       Were you told not to go away from the place?chanroblesvirtualawlibrary
the complainants here?chanroblesvirtualawlibrary
a       No Your Honor.
a       I could not hear anything important because they were just laughing.
q       Up to what point did you reach when you were allegedly prevented to go
xxx       xxx       xxx somewhere?chanroblesvirtualawlibrary
AJ PALATTAO: a       They did not say anything sir.
q       And then according to you there was laughter what was the cause of this q       Where did you go after that?chanroblesvirtualawlibrary
laughter?chanroblesvirtualawlibrary
a       Just down until it rained.
a       Probably they were talking of something humorous. 9
q       If you want to go, let us say, you want to leave that place, on your part, was
The testimonial evidence likewise shows that there was no actual restraint there somebody prevented you to go to another place?
imposed on the private offended parties. SPO1 Capoquian in fact testified that chanroblesvirtualawlibrary
they were free to leave the house and roam around the barangay. Furthermore,
a       I don't know Your Honor.
he admitted that it was raining at that time. Hence, it is possible that petitioner
prevented the team from leaving the island because it was unsafe for them to q       But on your part can you just leave that place or somebody will prevent
travel by boat. you to go somewhere else?chanroblesvirtualawlibrary
ATTY. JUMAMIL: a       What I felt I will not be able to leave because we were already told not to
leave the barangay.
q       It was raining at that time, is that correct?chanroblesvirtualawlibrary
q       In other words, you can go places in that barangay but you are not
a       Yes sir it was raining.
supposed to leave that barangay, is this Barangay Daram?
q       And the weather was not good for motorized travel at that particular time chanroblesvirtualawlibrary
that you were in Lucoblucob, Daram?chanroblesvirtualawlibrary
a       Barangay Lucoblucob, Your Honor.
a       I know it is raining but I could not say that you could not travel.
q       On your part according to you you can go places if you want although in
q       What was the condition of the sea at that time when you were in your impression you cannot leave the barangay. How about the other
Lucoblucob?chanroblesvirtualawlibrary companions like Mr. Simon, Cruz and Maniscan, can they leave the place?
chanroblesvirtualawlibrary
a       The sea was good in fact we did not get wet and there were no waves at
that time. a       No Your Honor.
q       But it was raining the whole day?chanroblesvirtualawlibrary q       Why are you very positive that in your case you can leave but in the case of
those I have enumerated they cannot, why?chanroblesvirtualawlibrary
a       It was not raining at the day but after we ate in the evening it rained.
a       If only in that barangay we can leave, Your Honor.10
q       It was raining hard in fact after 8:00 p.m. up to 1:00 o'clock in the morning
is that correct?chanroblesvirtualawlibrary Mr. Elpidio Simon, one of the private offended parties, took the witness stand on
August 16, 2000 but did not complete his testimony-in-chief due to lack of
material time. His testimony only covered preliminary matters and did not
touch on the circumstances of the alleged detention.11
On August 23, 2000, all the private offended parties, namely, Elpidio E. Simon,
Moises de la Cruz, Renato Militante, Crisanto Pelias and Wenefredo Maniscan,
executed a Joint Affidavit of Desistance stating, in pertinent part:
xxx       xxx       xxx;
6. That what transpired may have been caused by human limitation aggravated
by the exhaustion of the team in scouring the shores of the small islands of
Samar for several days. Mayor Benito Astorga may have also been confronted
with the same predicament, hence our confrontation resulted to a heated
argument and the eventual misunderstanding;
7. Considering that he is the local Chief Executive of the Municipality of Daram,
Samar our respect for him prevailed when he ordered us to take dinner with
him and other local residents thereat, so we capitulated whose invitation was
misinterpreted by us;
8. That thereafter, a natural and spontaneous conversation between the team
and the group of Mayor Astorga during the dinner and we were eventually
allowed to leave Daram, Samar;
9. That upon our return to our respective official stations we reported the
incident to our supervisors who required us to submit our affidavit;
10. That at present our differences had already been reconciled and both parties
had already express apologies and are personally no longer interested to pursue
the case against the Mayor, hence, this affidavit of desistance;
xxx       xxx       xxx.12
Thereafter, the private offended parties did not appear anymore in court to
testify. This notwithstanding, the Sandiganbayan convicted petitioner of the
crime of Arbitrary Detention on the basis of the testimonies of SPO1 Capoquian
and SPO3 Cinco, the police escorts of the DENR Team.
The quoted portions of SPO1 Capoquian's testimony negate the element of
detention. More importantly, fear is a state of mind and is necessarily
subjective.13 Addressed to the mind of the victim, its presence cannot be tested
by any hard-and-fast rule but must instead be viewed in the light of the
perception and judgment of the victim at the time of the crime. 14 As such, SPO1
Capoquian and SPO3 Cinco, not being victims, were not competent to testify on
whether or not fear existed in the minds of the private offended parties herein.
It was thus error for the Sandiganbayan to have relied on their testimonies in
convicting petitioner.
Verily, the circumstances brought out by SPO1 Capoquian created a reasonable
doubt as to whether petitioner detained the DENR Team against their consent.
The events that transpired are, to be sure, capable to two interpretations. While
it may support the proposition that the private offended parties were taken to
petitioner's house and prevented from leaving until 2:00 a.m. the next morning,
it is equally plausible, if not more so, that petitioner extended his hospitality and
served dinner and drinks to the team at his house. He could have advised them
to stay on the island inasmuch as sea travel was rendered unsafe by the heavy
rains. He ate together with the private offended parties and even laughed with
them while conversing over dinner. This scenario is inconsistent with a hostile
confrontation between the parties. Moreover, considering that the Mayor also
served alcoholic drinks, it is not at all unusual that his guests left the house at
2:00 a.m. the following morning.
In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved.15 He is entitled to an acquittal unless his guilt is shown
beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces absolute certainty.
Moral certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind.16
As held in several cases, when the guilt of the accused has not been proven with
moral certainty, the presumption of innocence of the accused must be sustained
and his exoneration be granted as a matter of right. For the prosecution's
evidence must stand or fall on its own merit and cannot be allowed to draw
strength from the weakness of the evidence for the defense. 17 Furthermore,
where the evidence for the prosecution is concededly weak, even if the evidence
for defense is also weak, the accused must be duly accorded the benefit of the
doubt in view of the constitutional presumption of innocence that an accused
enjoys. When the circumstances are capable of two or more inferences, as in this
case, one of which is consistent with the presumption of innocence while the
other is compatible with guilt, the presumption of innocence must prevail and
the court must acquit. It is better to acquit a guilty man than to convict an
innocent man.18
WHEREFORE, in view of the foregoing, the Decision dated October 1, 2003
is RECONSIDERED and SET ASIDE. The appealed judgment of the
Sandiganbayan in Criminal Case No. 24986 is REVERSED. Petitioner Benito
Astorga is ACQUITTED of the crime of Arbitrary Detention on the ground of
reasonable doubt.
No pronouncement as to costs.
SO ORDERED.
[G.R. No. 134503. July 2, 1999.]
JASPER AGBAY, Petitioner, v. THE HONORABLE DEPUTY OMBUDSMAN FOR
THE MILITARY, SPO4 NEMESIO NATIVIDAD, JR. and SPO2 ELEAZAR M.
SOLOMON, Respondents.
 authority within thirty-six (36) hours from September 7, 1997." 5 Private
DECISION respondents did not act on this letter and continued to detain petitioner. 6

On September 12, 1997, the 7th Municipal Circuit Trial Court of Liloan, Metro
Cebu issued an order, denominated as "Detention During the Pendency of the
GONZAGA-REYES, J.: Case", committing petitioner to the jail warden of Cebu City. 7 Five (5) days
later, or on September 17, 1997, petitioner was ordered released by the said
court after he had posted bond. 8

On September 26, 1997, petitioner filed a complaint for delay in the delivery of
This petition for certiorari seeks to nullify the Resolution of the Deputy
detained persons against herein private respondents SPO4 Nemesio Natividad,
Ombudsman for the Military dated 19 January 1998 1 which recommended the
Jr., SPO2 Eleazar M. Salomon and other unidentified police officers stationed at
dismissal of the criminal complaint filed by petitioner against herein private
the Liloan Police Substation, before the Office of the Deputy Ombudsman for the
respondents for violation of Article 125 of the Revised Penal Code for delay in
Visayas. 9
the delivery of detained persons, and the Order of April 13, 1998 2 which denied
his motion for reconsideration.chanrobles virtualawlibrary
Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner
chanrobles.com:chanrobles.com.ph
that on November 10, 1997, the 7th MCTC of Liloan, Metro Cebu issued a
resolution containing the following dispositive portion:chanrobles
The pertinent facts leading to the filing of the petition at bar are as
virtualawlibrary chanrobles.com:chanrobles.com.ph
follows:chanrob1es virtual 1aw library
"WHEREFORE, finding probable cause for the crime in Violation of Republic Act
On September 7, 1997, Petitioner, together with a certain Sherwin Jugalbot, was
7610, it is hereby recommended that an INFORMATION be filed against the two
arrested and detained at the Liloan Police Station, Metro Cebu for an alleged
aforenamed accused.
violation of R.A. 7610, the "Special Protection of Children Against Child abuse,
Exploitation and Discrimination Act." 3 The following day, or on September 8,
Forward the record of this case to the Provincial Fiscal’s Office for appropriate
1997, a Complaint for violation of R.A. 7610 was filed against petitioner and
action." 10
Jugalbot before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu by
one Joan Gicaraya for and in behalf of her daughter Gayle 4 The complaint,
By virtue of Memorandum Circular No. 14, Series of 1995, dated 10 October
insofar as pertinent, reads as follows:jgc:chanrobles.com.ph
1995 of the Office of the Ombudsman, 11 the case for delay in delivery filed by
petitioner against herein private respondents before the Deputy Ombudsman
"That on the 7th day of September 1997 at Sitio Bonbon, Brgy. Catarman, Liloan,
for the Visayas was transferred to the Deputy Ombudsman for the Military for
Metro Cebu, Philippines and within the Preliminary Jurisdiction of this
its proper disposition. Thus, it was this office which acted on the complaint, now
Honorable Court, the above-named accused, did then and there, willfully,
denominated as OMB-VIS-CRIM-97-0786, and which issued the questioned
feloniously and unlawfully, conspiring, confederating, helping with one another,
Resolution dated January 19, 1998 recommending its dismissal against herein
while accused JASPER AGBAY manipulating to finger the vagina of GAYLE
private respondents. Petitioner moved for reconsideration of this Resolution
FATIMA AMIGABLE GICAYARA, his companion block the sight of the Private
but this motion was denied in an Order dated April 13, 1998.
Complainant, Mrs. JOAN A. GICAYARA, while on board a tricycle going their
destinations. Upon initial investigation of the Bgy, Captain of Bgy.
Hence, this petition for certiorari.
Catarman, Accused SHERWIN JUGALBOT was released and accused JASPER
AGBAY is presently detain Liloan Police Station Jail. Medical Certificate issued
The grounds relied upon in the present petition 12 are as follows:chanrob1es
from Don Vicente Sotto Memorial Medical Center, Cebu City is hereto
virtual 1aw library
attached."cralaw virtua1aw library
I.
On September 10, 1997, counsel for petitioner wrote the Chief of Police of
Liloan demanding the immediate release of petitioner considering that the
latter had "failed to deliver the detained Jasper Agbay to the proper judicial
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN RELYING ON Philippine National Police, the Office of the Deputy Ombudsman for the Military,
MEMORANDUM CIRCULAR NO. 14, SERIES OF 1995, DATED 10 OCTOBER 1995, by virtue of the description of the Office, has no competence or jurisdiction to
OF THE OFFICE OF THE OMBUDSMAN IN HOLDING THAT IT HAS act on his complaint against private respondents who are members of the PNP.
COMPETENCE TO ACT ON THE ABOVE-ENTITLED CASE BEFORE IT, THE SAID Petitioner also questions the constitutionality of Memorandum Circular No. 14
CIRCULAR BEING UNCONSTITUTIONAL AND ILLEGAL, HENCE, NULL AND insofar as it purports to vest the Office of the Deputy Ombudsman for Military
VOID. Affairs with jurisdiction to investigate all cases against personnel of the
Philippine National Police.
II.
There is no dispute as to the civilian character of our police force. The 1987
Constitution, in Section 6, Article XVI, has mandated the establishment of "one
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT police force, which shall be national in scope and civilian in character (Emphasis
HOLDING THAT IT IS BEYOND ITS COMPETENCE TO DETERMINE WHETHER supplied)." Likewise, R.A. 6975 13 is categorical in describing the civilian
OR NOT THE MUNICIPAL CIRCUIT TRIAL COURT OF LILOAN-COMPOSTELA character of the police force. 14 The only question now is whether
HAS IN FACT NO JURISDICTION TO TRY THE CASE FILED AGAINST HEREIN Memorandum Circular No. 14, in vesting the Office of the Deputy Ombudsman
PETITIONER. for the Military with jurisdiction to investigate complaints against members of
the PNP, violates the latter’s civilian character.
III.
As opined by the Office of the Solicitor General in its Comment dated 7
December 199815 , the issue as to whether the Deputy Ombudsman for the
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT Military has the authority to investigate civilian personnel of the government
HOLDING THAT THE MCTC, WHILE HAVING AUTHORITY TO CONDUCT A was resolved in the affirmative in the case of Acop v. Office of the Ombudsman.
PRELIMINARY INVESTIGATION, IS NOT THE "PROPER JUDICIAL AUTHORITY" 16 In that case, the petitioners, who were members of the Philippine National
CONTEMPLATED IN ARTICLE 125 OF THE REVISED PENAL CODE AND, HENCE, Police questioned the jurisdiction of the Deputy Ombudsman to investigate the
THE FILING OF THE COMPLAINT BEFORE IT FOR THE PURPOSE OF alleged shootout of certain suspected members of the "Kuratong Baleleng"
CONDUCTING A PRELIMINARY INVESTIGATION DID NOT INTERRUPT THE robbery gang; this Court held that:jgc:chanrobles.com.ph
PERIOD PRESCRIBED BY ART. 125.chanroblesvirtualawlibrary
"The deliberations on the Deputy for the military establishment do not yield
IV.
conclusive evidence that such deputy is prohibited from performing other
functions or duties affecting non-military personnel. On the contrary, a review
of the relevant Constitutional provisions reveal otherwise.
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN HOLDING
THAT THE ISSUE OF THE VALIDITY OF THE ORDER OF DETENTION IS As previously established, the Ombudsman ‘may exercise such other powers or
IRRELEVANT TO THE ISSUE OF CRIMINAL LIABILITY OF PRIVATE perform such functions or duties’ as Congress may prescribe through
RESPONDENTS FOR DELAY IN THE DELIVERY OF DETAINED PERSONS. legislation. Therefore, nothing can prevent Congress from giving the
Ombudsman supervision and control over the Ombudsman’s deputies, one
V. being the deputy for the military establishment. In this light, Section 11 of R.A.
No. 6770 provides:chanrob1es virtual 1aw library

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN HOLDING
THAT THE DUTY OF PRIVATE RESPONDENTS TO FILE THE NECESSARY
COMPLAINT IN COURT WAS FULFILLED WHEN THEY FILED A FORMAL
COMPLAINT ON 8 SEPTEMBER 1997 WITH THE 7TH MCTC OF LILOAN-
COMPOSTELA.
SECTION 11. Structural Organization. — The authority and responsibility for the
exercise of the mandate of the Office of the Ombudsman and for the discharge of
its powers and functions shall be vested in the Ombudsman, who shall have
supervision and control of the said Office.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph

On the first issue, petitioner argues that due to the civilian character of the While Section 31 thereof declares:chanrob1es virtual 1aw library
SECTION 31. Designation of Investigators and Prosecutors. — The Ombudsman
may utilize the personnel of his office and/or designate or deputize any fiscal,
state prosecutor to assist in the investigation and prosecution of certain cases.
Those designated or deputized to assist him herein shall be under his
supervision and control.
Accordingly, the Ombudsman may refer cases involving non-military personnel
for investigation by the Deputy for Military Affairs. In these cases at bench,
therefore, no irregularity attended the referral by the Acting Ombudsman of the
Kuratong Baleleng case to respondent Casaclang who, in turn, created a panel of
investigators." 17
The cited case is determinative of the issue. However, Petitioner, in his Reply to
Comment dated February 1, 1999, argues that the ruling in the Acop case is not
on all fours with the case at bar 18 . Petitioner states that the doctrine laid down
in the said case is simply that "the Ombudsman may refer cases involving non-
military personnel for investigation by the Deputy for Military Affairs. This
doctrine, petitioner argues, "applies only to isolated or individual cases
involving non-military personnel referred by the Ombudsman to the Deputy for
Military Affairs" and does not apply when, as in this case, there is a wholesale or
indiscriminate referral of such cases to the Deputy Ombudsman for Military
Affairs in the form of an Office Memorandum Circular.
Petitioner’s arguments do not convince as there is no basis for the distinction.
The Deputy Ombudsman for the Military, despite his designation as such, is by
no means a member of the military establishment. The said Office was
established "to extend the Office of the Ombudsman to the military
establishment just as it champions the common people against bureaucratic
indifference." The Office was intended to help the "ordinary foot soldiers" to
obtain redress for their grievances against higher authorities and the drafters of
the Constitution were aware that the creation of the Office, which is seemingly
independent of the President, to perform functions which constitutionally
should be performed by the President, might be in derogation of the powers of
the President as Commander-In-Chief of the Armed Forces. 20
It must be borne in mind that the Office of the Ombudsman was envisioned by
the framers of the 1987 Constitution as the "eyes and ears of the people" 21 and
"a champion of the citizen." 22 Sec. 12, Art. XI of the 1987 Constitution describes
the Ombudsman and his deputies as "protectors of the people." Thus, first and
foremost, the Ombudsman and his deputies, including the Deputy Ombudsman
for the Military owe their allegiance to the people and ordinary citizens; it is
clearly not a part of the military. We fail to see how the assumption of
jurisdiction by the said office over the investigation of cases involving the PNP
would detract from or violate the civilian character of the police force when
precisely the Office of the Ombudsman is a civilian office.
The other issues raised by petitioner concerns the application of Art. 125 of the
Revised Penal Code which provides as follows:jgc:chanrobles.com.ph

There is no basis in the above-cited decision to limit the referral of cases "ARTICLE 125. Delay in the delivery of detained persons to the proper judicial
involving non-military personnel to the Deputy Ombudsman for Military Affairs authorities. — The penalties provided in the next preceding article shall be
to isolated or individual cases. imposed upon the public officer or employee who shall detain any person for
some legal ground and shall fail to deliver such person to the proper judicial
The Office of the Ombudsman, in issuing Memorandum Circular No. 15, is authorities within the period of: twelve (12) hours, for crimes or offenses
simply exercising the power vested in the Ombudsman "to utilize the personnel punishable by light penalties, or their equivalent; eighteen (18) hours, for
of his office and/or designate or deputize any fiscal, state prosecutor or lawyer crimes or offenses punishable by correctional penalties, or their equivalent; and
in the government service to act as special investigator or prosecutor to assist in thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital
the investigation and prosecution of certain cases." This Court, absent any grave penalties, or their equivalent.
abuse of discretion, may not interfere with the exercise by the Ombudsman of
his power of supervision and control over the said Office. In every case, the person detained shall be informed of the cause of his
detention and shall be allowed, upon his request, to communicate and confer at
Petitioner further argues that Memorandum Circular No. 14 violates the clear any time with his attorney or counsel."cralaw virtua1aw library
intent and policy of the Constitution and of R.A. 6975 to maintain the civilian
character of the police force and "would render nugatory and meaningless the In the case at bar, petitioner was arrested and detained at the Liloan Police
distinction between cases involving civilian and military personnel and the Station on 7 September 1997 for an alleged violation of R.A. 7610, specifically
creation of separate divisions of the Ombudsman." 19 section 5(b) thereof 23 . This crime carries a penalty of reclusion temporal in its
medium period to reclusion perpetua, an afflictive penalty. Under these
Said contentions are misplaced.chanrobles lawlibrary : rednad circumstances, a criminal complaint or information should be filed with the
proper judicial authorities within thirty six (36) hours of his arrest.chanrobles
virtual lawlibrary
As borne by the records before us the mother of private complainant, Joan
Gicaraya, filed a complaint on 8 September 1997 against petitioner for violation
of R.A. 7610 before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu.
Petitioner contends that the act of private complainant in filing the complaint
before the MCTC was for purposes of preliminary investigation as the MCTC has
no jurisdiction to try the offense. This act of private complainant petitioner
argues, was unnecessary, a surplusage which did not interrupt the period
prescribed by Art. 125 24 considering that under the Rules it is the Regional
Trial Court which has jurisdiction to try the case against him. As such, upon the
lapse of the thirty-six hours given to the arresting officers to effect his delivery
to the proper Regional Trial Court, private respondents were already guilty of
violating Art. 125. Thus, petitioner argues, when the Judge-Designate of the 7th
MCTC issued a Commitment Order on September 12, 1997, he was acting
contrary to law since by then there was no basis for the continued detention of
petitioner.25cralaw:red
In addressing the issue, the Office of the Deputy Ombudsman for the Military in
its 13 April 1998 Order, stated that the duty of filing the corresponding
complaint in court was "fulfilled by respondent when the formal complaint was
filed on September 8, 1997 with the 7th MCTC of Liloan-Compostela, barely 20
hours after the arrest of herein complainant of September 7, 1997." 26 The
Solicitor General, for his part, argues that while a municipal court judge may
conduct preliminary investigations as an exception to his normal judicial duties,
he still retains the authority to issue an order of release or commitment. As
such, upon the filing of the complaint with the MCTC, there was already
compliance with the very purpose and intent of Art. 125. 27
The core issue is whether the filing of the complaint with the Municipal Trial
Court constitutes delivery to a "proper judicial authority" as contemplated by
Art. 125 of the Revised Penal Code.
Article 125 of the Revised Penal Code is intended to prevent any abuse resulting
from confining a person without informing him of his offense and without
permitting him to go on bail 28 . More specifically, it punishes public officials or
employees who shall detain any person for some legal ground and shall fail to
deliver such person to the proper judicial authorities within the periods
prescribed by law. The continued detention of the accused becomes illegal upon
the expiration of the periods provided for by Art. 125 without such detainee
having been delivered to the corresponding judicial authorities 29 .
The words "judicial authority" as contemplated by Art. 125 mean "the courts of
justices or judges of said courts vested with judicial power to order the
temporary detention or confinement of a person charged with having
committed a public offense, that is, ‘the Supreme Court and other such inferior
courts as may be established by law. 30 ‘"
Petitioner takes great pains in arguing that when a municipal trial court judge,
as in the instant case, conducts a preliminary investigation, he is not acting as a
judge but as a fiscal. In support, petitioner cites the cases of Sangguniang Bayan
ng Batac, Ilocos Norte v. Albano, 260 SCRA 561, and Castillo v. Villaluz, 171
SCRA 39, where it was held that "when a preliminary investigation is conducted
by a judge, he performs a non-judicial function as an exception to his usual
duties." Thus, petitioner opines, the ruling in Sayo v. Chief of Police of Manila, 80
Phil. 862, that the city fiscal is not the proper judicial authority referred to in
Art. 125 is applicable.chanrobles lawlibrary : rednad
Petitioner’s reliance on the cited cases is misplaced. The cited cases of
Sangguniang Bayan and Castillo dealt with the issue of whether or not the
findings of the Municipal Court Judge in a preliminary investigation are subject
to review by provincial and city fiscals. There was no pronouncement in these
cases as to whether or not a municipal trial court, in the exercise of its power to
conduct preliminary investigations, is a proper judicial authority as
contemplated by Art. 125.
Neither can petitioner rely on the doctrine enunciated in Sayo v. Chief of Police,
supra, since the facts of this case are different. In Sayo, the complaint was filed
with the city fiscal of Manila who could not issue an order of release or
commitment while in the instant case, the complaint was filed with a judge who
had the power to issue such an order. Furthermore, in the Resolution denying
the Motion for Reconsideration of the Sayo case 31 , this Court even made a
pronouncement that the delivery of a detained person "is a legal one and
consists in making a charge or filing a complaint against the prisoner with the
proper justice of the peace or judge of Court of First Instance in provinces, and
in filing by the city fiscal of an information with the corresponding city courts
after an investigation if the evidence against said person warrants."cralaw
virtua1aw library
The power to order the release or confinement of an accused is determinative of
the issue. In contrast with a city fiscal, it is undisputed that a municipal court
judge, even in the performance of his function to conduct preliminary
investigations, retains the power to issue an order of release or commitment
32 . Furthermore, upon the filing of the complaint with the Municipal Trial
Court, the intent behind Art. 125 is satisfied considering that by such act, the
detained person is informed of the crime imputed against him and, upon his
application with the court, he may be released on bail 33 . Petitioner himself
acknowledged this power of the MCTC to order his release when he applied for
and was granted his release upon posting bail 34 . Thus, the very purpose
underlying Article 125 has been duly served with the filing of the complaint
with the MCTC. We agree with the position of the Ombudsman that such filing of
the complaint with the MCTC interrupted the period prescribed in said Article.
Finally, we note that it was the mother of private complainant who filed the
complaint against petitioner with the 7th MCTC of Liloan, Metro Cebu. If there
was any error in this procedure, private respondents should not be held liable.
In the same manner, petitioner’s argument that the controversial orders issued
by the MCTC are contrary to law does not give rise to criminal liability on the
part of the respondents. Respondent police officers may have rendered
themselves open to sanctions if they had released petitioners without the order
of the court, knowing fully well that a complaint was already filed with
it.chanrobles virtual lawlibrary
WHEREFORE, finding no grave abuse of discretion in the issuance of the
assailed January 19, 1998 Resolution and the April 13, 1998 Order of the Office
of the Deputy Ombudsman for the Military, the Court resolves to DISMISS the
petition. No pronouncement as to costs.
SO ORDERED.
SECOND DIVISION
[G.R. NOS. 153524-25. January 31, 2005]
RODOLFO SORIA and EDIMAR BISTA, Petitioners, v. HON. ANIANO DESIERTO
in his capacity as Head of the Office of the Ombudsman, HON. ORLANDO C.
CASIMIRO in his capacity as Deputy Ombudsman for Military, P/INS.
JEFFREY T. GOROSPE, SPO2 ROLANDO G. REGACHO, SPO1 ALFREDO B.
ALVIAR, JR., PO3 JAIME D. LAZARO, PO2 FLORANTE B. CARDENAS, PO1
JOSEPH A. BENAZA, SPO1 FRANKLIN D. CABAYA and SPO4 PEDRO
PAREL, Respondents.
DECISION
CHICO-NAZARIO, J.:
Yet again, we are tasked to substitute our judgment for that of the Office of the
Ombudsman in its finding of lack of probable cause made during preliminary
investigation. And, yet again, we reaffirm the time-honored practice of non-
interference in the conduct of preliminary investigations by our prosecutory
bodies absent a showing of grave abuse of discretion on their part.
Petitioners, thru a special civil action for certiorari,1 contend precisely that the
public respondents herein - officers of the Office of the Ombudsman - gravely
abused their discretion in dismissing the complaint for violation of Article 125
of the Revised Penal Code (Delay in the delivery of detained persons) against
private respondents herein, members of the Philippine National Police stationed
at the Municipality of Santa, Ilocos Sur.
From the respective pleadings2 of the parties, the following facts appear to be
indubitable:
1. On or about 8:30 in the evening of 13 May 2001 (a Sunday and the day
before the 14 May 2001 Elections3), petitioners were arrested without a
warrant by respondents police officers for alleged illegal possession of firearms
and ammunition;
2. Petitioner Soria was arrested for alleged illegal possession of .38 cal. revolver
(a crime which carries with it the penalty of prision correccional in its maximum
period) and for violation of Article 261 par. (f) of the Omnibus Election Code in
relation to the Commission on Election Resolution No. 3328 (which carries the
penalty of imprisonment of not less than one [1] year but not more than six [6]
years);
3. Petitioner Bista was arrested for alleged illegal possession of sub-machine
pistol UZI, cal. 9mm and a .22 cal. revolver with ammunition;
4. Immediately after their arrest, petitioners were detained at the Santa, Ilocos
Sur, Police Station. It was at the Santa Police Station that petitioner Bista was
identified by one of the police officers to have a standing warrant of arrest for
violation of Batas Pambansa Blg. 6 issued by the Municipal Trial Court (MTC) of
Vigan, Ilocos Sur, docketed as Criminal Case No. 12272;
5. The next day, at about 4:30 p.m. of 14 May 2001 (Monday and election
day), petitioners were brought to the residence of Provincial Prosecutor Jessica
Viloria in San Juan, Ilocos Sur, before whom a 'Joint-Affidavit against them was
subscribed and sworn to by the arresting officers. From there, the arresting
officers brought the petitioners to the Provincial Prosecutor's Office in Vigan,
Ilocos Sur, and there at about 6:00 p.m. the 'Joint-Affidavit was filed and
docketed;
6. At about 6:30 in the evening of the same day, 14 May 2001, petitioner
Soria was released upon the order of Prosecutor Viloria to undergo the
requisite preliminary investigation, while petitioner Bista was brought back and
continued to be detained at the Santa Police Station. From the time of petitioner
Soria's detention up to the time of his release, twenty-two (22) hours had
already elapsed;
7. On 15 May 2001, at around 2:00 in the afternoon, petitioner Bista was
brought before the MTC of Vigan, Ilocos Sur, where the case for violation of
Batas Pambansa Blg. 6 was pending. Petitioner Bista posted bail and an Order of
Temporary Release was issued thereafter;
8. At this point in time, no order of release was issued in connection with
petitioner Bista's arrest for alleged illegal possession of firearms. At 4:30 in the
afternoon of the same day (15 May 2001), an information for Illegal
Possession of Firearms and Ammunition, docketed as Criminal Case No. 4413-S,
was filed against petitioner Bista with the 4 th Municipal Circuit Trial Court of
Narvacan, Ilocos Sur. At 5:00 in the afternoon, informations for Illegal
Possession of Firearms and Ammunition and violation of Article 261 par. (f) of
the Omnibus Election Code in relation to COMELEC Resolution No. 3328,
docketed as Criminal Cases No. 2269-N and No. 2268-N, respectively, were filed
in the Regional Trial Court at Narvacan, Ilocos Sur;
9. On 08 June 2001, petitioner Bista was released upon filing of bail bonds in
Criminal Cases No. 2268-N and No. 4413-S. He was detained for 26 days.
10. On 15 August 2001, petitioners filed with the Office of the Ombudsman for
Military Affairs a complaint-affidavit for violation of Art. 125 of the Revised
Penal Code against herein private respondents.
11. After considering the parties' respective submissions, the Office of the
Ombudsman rendered the first assailed Joint Resolution dated 31 January 2002
dismissing the complaint for violation of Art. 125 of the Revised Penal Code for
lack of merit; andcralawlibrary
12. On 04 March 2002, petitioners then filed their motion for reconsideration
which was denied for lack of merit in the second assailed Resolution dated 25
March 2002.
Article 125 of the Revised Penal Code states:ςηαà ±rοblεŠ¡  Î½Î¹râ € Ï…αl  lαÏ
‰  lιbrαrà ¿
Art. 125. Delay in the delivery of detained persons to the proper judicial
authorities. - The penalties provided in the next preceding article shall be
imposed upon the public officer or employee who shall detain any person for
some legal ground and shall fail to deliver such person to the proper judicial
authorities within the period of: twelve (12) hours, for crimes or offenses
punishable by light penalties, or their equivalent; eighteen (18) hours, for
crimes or offenses punishable by correctional penalties, or their equivalent; and
thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital
penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his
detention and shall be allowed, upon his request, to communicate and confer at
any time with his attorney or counsel.
It is not under dispute that the alleged crimes for which petitioner Soria was
arrested without warrant are punishable by correctional penalties or their
equivalent, thus, criminal complaints or information should be filed with the
proper judicial authorities within 18 hours of his arrest. Neither is it in dispute
that the alleged crimes for which petitioner Bista was arrested are punishable
by afflictive or capital penalties, or their equivalent, thus, he could only be
detained for 36 hours without criminal complaints or information having been
filed with the proper judicial authorities.
The sole bone of contention revolves around the proper application of the 12-
18-36 periods. With respect specifically to the detention of petitioner Soria
which lasted for 22 hours, it is alleged that public respondents gravely erred in
construing Article 1254 as excluding Sundays, holidays and election days in the
computation of the periods prescribed within which public officers should
deliver arrested persons to the proper judicial authorities as the law never
makes such exception. Statutory construction has it that if a statute is clear and
unequivocal, it must be given its literal meaning and applied without any
attempts at interpretation.5 Public respondents, on the other hand, relied on the
cases of Medina v. Orozco, Jr.,6 and Sayo v. Chief of Police of  7 and on
commentaries8 of jurists to bolster their position that Sundays, holidays and
election days are excluded in the computation of the periods provided in Article
125,9 hence, the arresting officers delivered petitioners well within the
allowable time.
In addition to the foregoing arguments and with respect specifically to
petitioner Bista, petitioners maintain that the filing of the information in court
against petitioner Bista did not justify his continuous detention. The
information was filed at 4:30 p.m. of 15 May 2001 but the orders for his
release were issued by the Regional Trial Court and Municipal Trial Court of
Narvacan, Ilocos Sur, only on 08 June 2001. They argued that based on law and
jurisprudence, if no charge is filed by the prosecutor within the period fixed by
law, the arresting officer must release the detainee lest he be charged with
violation of Article 125.10 Public respondents countered that the duty of the
arresting officers ended upon the filing of the informations with the proper
judicial authorities following the rulings in Agbay v. Deputy Ombudsman for the
Military ,11 and People v. Acosta.12 Ï‚rνll
From a study of the opposing views advanced by the parties, it is evident that
public respondents did not abuse their discretion in dismissing for lack of
probable cause the complaint against private respondents.
Grave abuse of discretion is such capricious and whimsical exercise of judgment
on the part of the public officer concerned which is equivalent to an excess or
lack of jurisdiction. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law as where the power is
exercised in an arbitrary and despotic manner by reason of passion or
hostility.13 Ï‚rνll
No grave abuse of discretion, as defined, can be attributed to herein public
respondents. Their disposition of petitioners' complaint for violation of Article
125 of the Revised Penal Code cannot be said to have been conjured out of thin
air as it was properly backed up by law and jurisprudence. Public respondents
ratiocinated thus:ςηαà ±rοblεŠ¡  Î½Î¹râ € Ï…αl  lαω  lιbrαrà ¿
As aptly pointed out by the respondents insofar as the complaint of Rodolfo
Soria is concerned, based on applicable laws and jurisprudence, an election day
or a special holiday, should not be included in the computation of the period
prescribed by law for the filing of complaint/information in courts in cases of
warrantless arrests, it being a 'no-office day. (Medina v. Orosco, 125 Phil. 313.)
In the instant case, while it appears that the complaints against Soria for Illegal
Possession of Firearm and Violation of COMELEC Resolution No. 3328 were
filed with the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos
Sur, only on May 15, 200[1] at 4:30 p.m., he had already been released the day
before or on May 14, 2001 at about 6:30 p.m. by the respondents, as directed by
Prov. Prosecutor Jessica [Viloria]. Hence, there could be no arbitrary detention
or violation of Article 125 of the Revised Penal Code to speak of. 14 Ï‚rνll
Indeed, we did hold in Medina v. Orozco, Jr.,15 that -
.. . The arresting officer's duty under the law was either to deliver him to the
proper judicial authorities within 18 hours, or thereafter release him. The fact
however is that he was not released. From the time of petitioner's arrest at
12:00 oclock p.m. on November 7 to 3:40 p.m. on November 10 when the
information against him for murder actually was in court, over 75 hours have
elapsed.
But, stock should be taken of the fact that November 7 was a Sunday; November
8 was declared an official holiday; and November 9 (election day) was also an
official holiday. In these three no-office days, it was not an easy matter for a
fiscal to look for his clerk and stenographer, draft the information and search
for the Judge to have him act thereon, and get the clerk of court to open the
courthouse, docket the case and have the order of commitment prepared. And
then, where to locate and the uncertainty of locating those officers and
employees could very well compound the fiscal's difficulties. These are
considerations sufficient enough to deter us from declaring that Arthur Medina
was arbitrarily detained. For, he was brought to court on the very first office day
following arrest.
And, in Sayo v. Chief of Police of  16 --
.. . Of course, for the purpose of determining the criminal liability of an officer
detaining a person for more than six hours prescribed by the Revised Penal
Code, the means of communication as well as the hour of arrest and other
circumstances, such as the time of surrender and the material possibility for the
fiscal to make the investigation and file in time the necessary information, must
be taken into consideration.
As to the issue concerning the duty of the arresting officer after the information
has already been filed in Court, public respondents acted well within their
discretion in ruling thus:ςηαà ±rοblεŠ¡  Î½Î¹râ € Ï…αl  lαω  lιbrαrà ¿
In the same vein, the complaint of Edimar Bista against the respondents for
Violation of Article 125, will not prosper because the running of the thirty-six
(36)-hour period prescribed by law for the filing of the complaint against him
from the time of his arrest was tolled by one day (election day). Moreover, he
has a standing warrant of arrest for Violation of B.P. Blg. 6 and it was only on
May 15, 2001, at about 2:00 p.m. that he was able to post bail and secure an
Order of Release. Obviously, however, he could only be released if he has no
other pending criminal case requiring his continuous detention.
The criminal Informations against Bista for Violations of Article 125, RPC and
COMELEC Resolution No. 3328 were filed with the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, on May 15, 2001 (Annexes 'G and
'I', Complaint-Affidavit of Edimar Bista) but he was released from detention only
on June 8, 2001, on orders of the RTC and MTC of Narvacan, Ilocos Sur (Annexes
'J and 'K', Complaint-Affidavit). Was there a delay in the delivery of detained
person to the proper judicial authorities under the circumstances? The answer
is in the negative. The complaints against him was (sic) seasonably filed in the
court of justice within the thirty-six (36)-hour period prescribed by law as
discussed above. The duty of the detaining officers is deemed complied with
upon the filing of the complaints. Further action, like issuance of a Release
Order, then rests upon the judicial authority (People v. Acosta [CA] 54 O.G.
4739).17 Ï‚rνll
The above disposition is in keeping with Agbay v. Deputy Ombudsman for the
Military,18 wherein we ordained that -
.. . Furthermore, upon the filing of the complaint with the Municipal Trial Court,
the intent behind Art. 125 is satisfied considering that by such act, the detained
person is informed of the crime imputed against him and, upon his application
with the court, he may be released on bail. Petitioner himself acknowledged this
power of the MCTC to order his release when he applied for and was granted his
release upon posting bail. Thus, the very purpose underlying Article 125 has
been duly served with the filing of the complaint with the MCTC. We agree with
the position of the Ombudsman that such filing of the complaint with the MCTC
interrupted the period prescribed in said Article.
All things considered, there being no grave abuse of discretion, we have no
choice but to defer to the Office of the Ombudsman's determination that the
facts on hand do not make out a case for violation of Article 125 of the Revised
Penal Code.
As we have underscored in numerous decisions --
We have consistently refrained from interfering with the investigatory and
prosecutorial powers of the Ombudsman absent any compelling reason. This
policy is based on constitutional, statutory and practical considerations. We are
mindful that the Constitution and RA 6770 endowed the Office of the
Ombudsman with a wide latitude of investigatory and prosecutorial powers,
virtually free from legislative, executive or judicial intervention, in order to
insulate it from outside pressure and improper influence. Moreover, a
preliminary investigation is in effect a realistic judicial appraisal of the merits of
the case. Sufficient proof of the guilt of the accused must be adduced so that
when the case is tried, the trial court may not be bound, as a matter of law, to
order an acquittal. Hence, if the Ombudsman, using professional judgment,
finds the case dismissible, the Court shall respect such findings, unless
clothed with grave abuse of discretion. Otherwise, the functions of the courts
will be grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with
regard to complaints filed before it. In much the same way, the courts will be
swamped with cases if they will have to review the exercise of discretion on the
part of fiscals or prosecuting attorneys each time the latter decide to file an
information in court or dismiss a complaint by a private
complainant.19 (Emphasis supplied)
WHEREFORE, premises considered, the petition dated 27 May 2002 is hereby
DISMISSED for lack of merit. The Joint Resolution dated 31 January 2002 and
the Order dated 25 March 2002 of the Office of the Ombudsman are hereby
AFFIRMED. No costs.
SO ORDERED.
G.R. No. 179080               November 26, 2014
EDIGARDO GEROCHE, ROBERTO GARDE and GENEROSO MARFIL alias
"TAPOL", Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is an appeal from the Decision 1 dated November 18, 2005 and
Resolution2 dated June 19, 2007 of the Court of Appeals (CA) in G.R. CR No.
26418, which set aside the November 15, 2001 Decision 3 of the Regional Trial
Court (RTC), Branch 17, Kidapawan City, Cotabato.
Petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil alias "Tapol"
were charged with the crime of Violation of Domicile under Article 128 of the
Revised Penal Code (RPC).4 The Information dated May 3, 1990 reads:
The undersigned accuses EDIGARDO GEROCHE, ROBERTO GARDE AND
GENEROSO MARFIL Alias "TAPOL" of the crime of Violation of Domicile,
committed as follows:
That at about 10:00 o’clock in the evening of May 14, 1989, at Sitio New
Lantawan, Barangay Greenhills, Municipality of President Roxas, Province of
Cotabato, Philippines, the above-named accused EDIGARDO GEROCHE, being a
Barangay Captain and the rest being CAFGUs, hence, persons inauthority,
conspiring, confederating and mutually helping one another, armed with garand
rifles, did then and there, wilfully, unlawfully and feloniously, without proper
judicial order, entered the house of ROBERTO MALLO by forcibly breaking the
door of said house against the will of the occupants thereof, search the effects of
the house without the previous consent of the owner and then mauled one of
the occupant BARILIANO LIMBAG inflicting injuries to the latter.
CONTRARY TO LAW.5
During the arraignment on November5, 1990, all the petitioners pleaded not
guilty.6 Thereafter, trial ensued.
Baleriano Limbag (Baleriano) testified that the crime happened around 10:00
o’clock in the evening of May 14, 1989 inside the house which he already bought
from Roberto Mallo. He roused from sleep when petitioners, who were not
armed with search warrant, suddenly entered the house by destroying the main
door. The petitioners mauled him, striking with a garand rifle, which caused his
injuries. They looked for firearms but instead found and took away his airgun.
Roberto Limbag, Baleriano’s nephew who was living with him, witnessed the
whole incident and corroborated his testimony.
Aside from presenting SPO4 Felomino Calfoforo, the Subpoena and Warrant
Officer of President Roxas Police Station who testified on the police blotter, Dr.
Antonio Cabrera also took the witness stand for the prosecution. Essentially, he
affirmed the medical certificate that he issued. His findings indicated that
Baleriano suffered hematoma on the left side of the nose, back portion of the
body at the level of the hip region, and back portion at the right side of the
scapular region as well as abrasion on the right side of the breast and left side of
the body at the axilliary region.7 Dr. Cabrera opined that the injuries inflicted
would heal from seven to ten days. 8 For the defense, petitioners denied the
crime charged, declaring in unison that they were in their respective houses the
entire evening of May 14, 1989. They alleged, however, that the night before, on
May 13, 1989, they conducted a roving footpatrol, together with other barangay
officials, due to the rampant cattle rustling in the area. At the time, they
recovered a stolen carabao owned by a certain Francisco Pongasi 9 from three
unidentified persons who managed to escape.
On November 15, 2001, the trial court found petitioners guilty beyond
reasonable doubt of the crime of Less Serious Physical Injuries under the Article
265 of the RPC. They were sentenced to suffer the penalty of imprisonment of
arresto mayor maximum, that is, four (4) months and one (1) day to six (6)
months. According to the RTC, the prosecution failed to prove that petitioners
are public officers, which is an essential element of Article 128 of the RPC. It
held:
The prosecution who has that onus probandifailed to prove one of the essential
elements of the crime; on the issue of whether or not all the accused were public
officers; while it is true that accused were named CVO’s and the other as a
barangay captain and that even if the same were admitted by them during their
testimony in open court, such an admission is not enough to prove that they
were public officers; it is for the prosecution to prove by clear and convincing
evidence other than that of the testimony of witnesses that they werein fact
public officers; there exist a doubt of whether or not all the accused were in fact
and in truth public officers; doubts should be ruled in favorof the accused; that
on this lone and essential element the crime charged as violation of domicile is
ruled out; that degree of moral certainty of the crime charged was not
established and proved by convincing evidence of guilt beyond reasonable
doubt; x x x.10 Petitioners elevated the case to the CA, which, on November 18,
2005, set aside the trial court’s judgment. While it agreed with both parties that
petitioners should not be convictedfor Less Serious Physical Injuries, the CA still
ruled that they are guilty of Violation of Domicile considering their judicial
admissions that they were barangay captain (in the case of Geroche) and part of
the Citizen Armed Forces Geographical Unit (in the case of Garde and Marfil).
The dispositive portion of the assailed Decision states:
WHEREFORE, pursuant to applicable law and jurisprudence on the matter and
the evidence on hand, the appealed decision is hereby SET ASIDE and a new one
entered finding the accused-petitioners GUILTY beyond reasonable doubt of the
crime of Violation of Domicile under Article 128 of the Revised Penal Code and
sentencing them to an indeterminate penalty of Four (4) Months, One (1) Day of
arresto mayor maximum to Six (6) Months and One (1) Day of prision
[correccional] minimum with the accessory penalty of suspension from public
office and from the right to follow a professionor calling pursuant to Article 43
of the Revised Penal Code.
SO ORDERED.11
Petitioners’ motion for reconsideration was denied; hence, this petition. They
argue that there is double jeopardy since the trial court already acquitted them
of Violation of Domicile and such judgment, being now final and executory, is
res judicata. Petitioners insist that their appeal before the CA is limited to their
conviction for the crime of Less Serious Physical Injuries, focusing their
arguments and defense for acquittal from said crime, and that the CA violated
their constitutional right to due process when it convicted them for Violation of
Domicile.
We deny.
An appeal in a criminal case opensthe entire case for review on any question
including one not raised by the parties. 12 When an accused appeals from the
sentence of the trial court,he or she waives the constitutional safeguard against
double jeopardy and throws the whole case open to the review of the appellate
court, which is then called upon to render such judgment as law and justice
dictate.13 An appeal confers upon the appellate court jurisdiction to examine the
records, revise the judgment appealed from, increase (or reduce) the penalty,
and cite the proper provision of the penal law. 14 The appellate court may, and
generally does,look into the entire records to ensure that no fact of weight or
substance has been overlooked, misapprehended, or misapplied by the trial
court.15
Thus, when petitioners appealed the trial court’s judgment of conviction for
Less Serious Physical Injuries, they are deemed to have abandoned their right to
invoke the prohibition on doublejeopardy since it becomes the duty of the
appellate court to correct errors as may be found in the assailed judgment.
Petitioners could not have been placed twice in jeopardy when the CA set aside
the ruling of the RTC by finding them guilty of Violation of Domicile as charged
in the Information instead of Less Serious Physical Injuries.
The Court adopts the findings of factand conclusions of law of the CA. In their
testimony before the open court as well as in the pleadings they filed, neither
Geroche denied that hewas a barangay captain nor Garde and Marfil refuted
that they were CAFGU members. In holding such positions, they are considered
as public officers/employees.16
As to the penalty imposed by the CA, however, We modify the same. Under
Article 128 of the RPC, the penalty shall be prision correccionalin its medium
and maximum periods (two [2] years, four [4] months and one [1] day to six [6]
years) if Violation of Domicile be committed at nighttime or if any papers or
effects not constituting evidence of a crime be not returned immediately after
the search made by the offender. In this case, petitioners barged in the house of
Baleriano while they were sleeping at night and, in addition, they took away
with them his airgun.
In imposing a prison sentence for an offense punished by the RPC, the
Indeterminate Sentence Law17 requires courts to impose upon the accused an
indeterminate sentence. The maximum term of the prison sentence shall be that
which, in view of the attending circumstances, could be properly imposed under
the rules of the said Code.1âwphi1 Yet the penalty prescribed by Article 128 of
the RPC is composed of only two, not three, periods. In which case, Article 65 of
the same Code requires the division into three equal portions the time included
in the penalty, forming one period of each of the three portions. Applying the
provision, the minimum, medium and maximum periods of the penalty
prescribed by Article 128 are:
Minimum – 2 years, 4 months and 1 day to 3 years, 6 months and 20 days
Medium – 3 years, 6 months and 21 days to 4 years, 9 months and 10 days
Maximum – 4 years, 9 months and 11 days to 6 years
Thus, applying in this case, the maximum term should be within the medium
period or from 3 years, 6 months and 21 days to 4 years, 9 months and 10 days,
in light of the provisions of Article 64 of the Revised Penal Code that if there are
no other mitigating or aggravating circumstances attending the commission of
the crime, the penalty shall be imposed in its medium period.
On the other hand, the minimum term shall be within the range of the penalty
next lower to that prescribed by the RPC for the crime. The penalty next lower
to that prescribed by Article 128 is arresto mayor in its maximum period to
prision correccional in its minimum period (or 4 months and 1 day to 2 years
and 4 months).
The foregoing considered, in view of the attending circumstances in this case,
the Court hereby sentences the petitioners to suffer the indeterminate penalty
from two (2) years and four (4) months of prision correccional, as minimum, to
four ( 4) years, nine (9) months and ten (10) days of prision correccional, as
maximum.
WHEREFORE, the Court AFFIRMS the Decision dated November 18, 2005 and
Resolution dated June 19, 2007 of the Court of Appeals in CAG.R. CR No. 26418
finding petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil alias
"Tapol" guilty beyond reasonable doubt of Violation of Domicile, penalized
under Article 128 of the Revised Penal Code, with the MODIFICATION that the
penalty that should be imposed is an indeterminate sentence from two (2) years
and four (4) months of prision correccional, as minimum, to four (4) years, nine
(9) months and ten (10) days of prision correccional, as maximum.
SO ORDERED.
G.R. No. 162808             April 22, 2008
FELICIANO GALVANTE, petitioner,
vs.
HON. ORLANDO C. CASIMIRO, Deputy Ombudsman for the Military and
Other Law Enforcement Offices, BIENVENIDO C. BLANCAFLOR, Director,
DENNIS L. GARCIA, Graft Investigation and Prosecution Officer, SPO4
RAMIL AVENIDO, PO1 EDDIE DEGRAN, PO1 VALENTINO RUFANO, and PO1
FEDERICO BALOLOT, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Assailed herein by Petition for Certiorari and Mandamus under Rule 65 of the
Rules of Court are the October 30, 2003 Resolution 1 of the Office of the Deputy
Ombudsman for the Military and Other Law Enforcement Offices - Office of the
Ombudsman (Ombudsman) which dismissed for lack of probable cause the
criminal complaint, docketed as OMB-P-C-02-0109-B, filed by Feliciano
Galvante2 (petitioner) against SPO4 Benjamin Conde, PO1 Ramil Avenido, PO1
Eddie Degran, PO1 Valentino Rufano, and PO1 Federico Balolot (private
respondents) for arbitrary detention, illegal search and grave threats; and the
January 20, 2004 Ombudsman Order 3 which denied his motion for
reconsideration.
The facts are of record.
In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan
del Sur, private respondents confiscated from petitioner one colt pistol
super .38 automatic with serial no. 67973, one short magazine, and nine
super .38 live ammunitions.4 The confiscated materials were covered by an
expired Memorandum Receipt dated September 2, 1999. 5
Consequently, the Assistant Provincial Prosecutor filed against petitioner an
Information6 for Illegal Possession of Firearms and Ammunitions in Relation to
Commission on Elections (Comelec) Resolution No. 3258, docketed as Criminal
Case No. 5047, before the Regional Trial Court (RTC), Prosperidad, Agusan del
Sur.
Pending resolution of Criminal Case No. 5047, petitioner filed against private
respondents an administrative case, docketed as Administrative Case No.
IASOB-020007 for Grave Misconduct, before the Internal Affairs Service (IAS),
Region XIII, Department of Interior and Local Government (DILG); 7 and a
criminal case, docketed as OMB-P-C-02-0109-B for Arbitrary Detention, Illegal
Search and Grave Threats, before the Ombudsman.8
In the June 21, 2001 Affidavit-Complaint he filed in both cases, petitioner
narrated how, on May 14, 2001, private respondents aimed their long firearms
at him, arbitrarily searched his vehicle and put him in detention, thus:
1. That sometime on May 14, 2001 I left my house at around 1:00
o'clock in the afternoon after having lunch for Sitio Cahi-an, Brgy.
Kapatungan, Trento, Agusan del Sur to meet retired police Percival
Plaza and inquire about the retirement procedure for policemen;
2. That upon arrival at the house of retired police Percival Plaza,
together with Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas who
asked for a ride from the highway in going to Sitio Cahi-an, I
immediately went down of the jeep but before I could call Mr. Plaza,
four policemen in uniform blocked my way;
3. That the four policemen were [private respondents] PO1 Romil
Avenido PNP, PO1 Valentino Rufano, PNP both member of 142nd
Company, Regional Mobile Group and PO1 Eddie Degran PNP and PO1
Federico Balolot PNP members of 1403 Prov'l Mobile Group, all of
Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long
firearms ready to fire [at] me, having heard the sound of the release of
the safety lock;
4. That raising my arms, I heard [private respondent] PO1 Avenido
saying, "ANG IMONG PUSIL, IHATAG" which means "Give me your
firearm," to which I answered, "WALA MAN KO'Y PUSIL" translated as
"I have no firearm," showing my waistline when I raised my T-shirt;
5. That my other companions on the jeep also went down and raised
their arms and showed their waistline when the same policemen and a
 person in civilian attire holding an armalite also pointed their firearms
to them to which Mr. Percival Plaza who came down from his house
told them not to harass me as I am also a former police officer but they
did not heed Mr. Plaza's statements;
6. That while we were raising our arms [private respondent] SPO4
Benjamin Conde, Jr. went near my owner type jeep and conducted a
search. To which I asked them if they have any search warrant;
7. That after a while they saw my super .38 pistol under the floormat of
my jeep and asked me of the MR of the firearm but due to fear that their
long arms were still pointed to us, I searched my wallet and gave the
asked [sic] document;
8. That immediately the policemen left me and my companions without
saying anything bringing with them the firearm;
9. That at about 2:30 p.m., I left Mr. Percival's house and went to Trento
Police Station where I saw a person in civilian attire with a revolver
tucked on his waist, to which I asked the police officers including those
who searched my jeep to apprehend him also;
10. That nobody among the policemen at the station made a move to
apprehend the armed civilian person so I went to the office of Police
Chief Rocacorba who immediately called the armed civilian to his office
and when already inside his office, the disarming was done;
11. That after the disarming of the civilian I was put to jail with the said
person by Police Chief Rocacorba and was released only at 4:00 o'clock
in the afternoon of May 16, 2001 after posting a bailbond;
12. That I caused the execution of this document for the purpose of
filing cases of Illegal Search, Grave Misconduct and Abuse of Authority
against SPO4 Benjamin Conde, Jr., of Trento Police Station; PO1 Ramil
Avenido, PO1 Velantino Rufano, PO1 Federico Balolot and PO1 Eddie
Degran.9
Petitioner also submitted the Joint Affidavit 10 of his witnesses, Lorenzo Sanoria
and Percival Plaza.
Private respondent Conde filed a Counter-Affidavit dated March 20, 2002,
where he interposed the following defenses:
First, he had nothing to do with the detention of petitioner as it was Chief of
Police/Officer-in-Charge Police Inspector Dioscoro Mehos Rocacorba who
ordered the detention. Petitioner himself admitted this fact in his own
Complaint-Affidavit;11 and
Second, he denies searching petitioner's vehicle, 12 but admits that even though
he was not armed with a warrant, he searched the person of petitioner as the
latter, in plain view, was committing a violation of Comelec Resolutions No.
3258 and No. 3328 by carrying a firearm in his person.
Private respondents Avenido, Degran, Rufano and Balolot filed their Joint-
Affidavit dated March 25, 2002, which contradicts the statements of private
respondent Conde, viz:
1. that we executed a joint counter-affidavit dated August 28, 2001
where we stated among other things, that "we saw Feleciano "Nani"
Galvante armed with a handgun/pistol tucked on his waist;"
2. that this statement is not accurate because the truth of the matter is
that the said handgun was taken by SPO4 BENJAMIN CONDE, JR., who
was acting as our team leader during the May 14, 2001 Elections, from
the jeep of Mr. Galvante after searching the same; and
3. that we noticed the aforementioned discrepancy in our affidavit
dated August 28, 2001 after we have already affixed our signatures
thereon.13
Consequently, petitioner filed an Affidavit of Desistance dated March 25, 2002
with both the IAS and Ombudsman, absolving private respondents Avenido,
Degran, Rufano and Balolot, but maintaining that private respondent Conde
alone be prosecuted in both administrative and criminal cases. 14
On July 17, 2002, the IAS issued a Decision in Administrative Case No. IASOB-
020007, finding all private respondents guilty of grave misconduct but
penalized them with suspension only. The IAS noted however that private
respondents were merely being "[enthusiastic] in the conduct of the arrest in
line of duty." 15
Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a Motion for
Preliminary Investigation and to Hold in Abeyance the Issuance of or Recall the
Warrant of Arrest.16 The RTC granted the same in an Order 17 dated August 17,
2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed a "Reinvestigation
with Motion to Dismiss" dated November 22, 2001, recommending the
dismissal of Criminal Case No. 5047 on the ground that "the action of the
policemen who conducted the warrantless search in spite of the absence of any
circumstances justifying the same intruded into the privacy of the accused and
the security of his property." 18 Officer-in-Charge Prosecutor II Victoriano Pag-
ong approved said recommendation.19
The RTC granted the prosecution's motion to dismiss in an Order 20 dated
January 16, 2003.
Apparently unaware of what transpired in Criminal Case No. 5047, Ombudsman
Investigation & Prosecution Officer Dennis L. Garcia issued in OMB-P-C-02-
0109-B, the October 30, 2003 Resolution, to wit:
 After a careful evaluation, the undersigned prosecutor finds no
probable cause for any of the offenses charged against above-named
respondents.
The allegations of the complainant failed to establish the factual basis of
the complaint, it appearing from the records that the incident
stemmed from a valid warrantless arrest. The subsequent execution
of an affidavit of desistance by the complainant rendered the complaint
even more uncertain and subject to doubt, especially so since it merely
exculpated some but not all of the respondents. These circumstances,
coupled with the presumption of regularity in the performance of duty,
negates any criminal liability on the part of the respondents.
WHEREFORE, premises considered, it is hereby recommended that the
above-captioned case be dismissed for lack of probable
cause.21 (Emphasis supplied)
Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy
Ombudsman for the Military Orlando C. Casimiro (Deputy Ombudsman)
approved the October 30, 2003 Resolution.22
In his Motion for Reconsideration,23 petitioner called the attention of the
Ombudsman to the earlier IAS Decision, the Reinvestigation with Motion to
Dismiss of Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all of which declared
the warrantless search conducted by private respondents illegal, 24 which are
contradicted by the October 30, 2003 Ombudsman Resolution declaring the
warrantless search legal.
The Ombudsman denied petitioner's motion for reconsideration on the ground
that the latter offered "no new evidence or errors of law which would warrant
the reversal or modification"25 of its October 30, 2003 Resolution.
Petitioner filed the present petition, attributing to Deputy Ombudsman
Casimiro, Director Blancaflor and Prosecutor Garcia (public respondents) the
following acts of grave abuse of discretion:
I. Public respondents acted without or in excess of their jurisdiction
and/or with grave abuse of discretion amounting to lack or excess of
jurisdiction when, in their Resolution dated October 30, 2003, public
respondents found that the incident upon which petitioner's criminal
complaint was based stemmed from a valid warrantless arrest and
dismissed petitioner's complaint despite the fact that:
A. Petitioner has clearly shown that the search conducted by
the private respondents was made without a valid warrant, nor
does it fall under any of the instances of valid warrantless
searches.
B. Notwithstanding the absence of a valid warrant, petitioner
was arrested and detained by the private respondents.
II. Public respondents acted without or in excess of their jurisdiction
and/or with grave abuse of discretion amounting to lack or excess of
jurisdiction when, in their Order dated January 20, 2004, public
respondents denied the petitioner's motion for reconsideration in a
capricious, whimsical, despotic and arbitrary manner. 26
In its Memorandum,27 the Office of the Solicitor General argued that public
respondents acted within the bounds of their discretion in dismissing OMB-P-C-
02-0109-B given that private respondents committed no crime in searching
petitioner and confiscating his firearm as the former were merely performing
their duty of enforcing the law against illegal possession of firearms and the
Comelec ban against the carrying of firearms outside of one's residence.
Private respondent Conde filed a Comment28 and a Memorandum for
himself.29 Private respondents Avenido, Degran, Rufano and Balolot filed their
separate Letter-Comment dated June 25, 2004. 30
The petition lacks merit.
The Constitution vests in the Ombudsman the power 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. 31 The Court respects
the relative autonomy of the Ombudsman to investigate and prosecute, and
refrains from interfering when the latter exercises such powers either directly
or through the Deputy Ombudsman,32 except when the same is shown to be
tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction.33
Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law or to act in contemplation of law as when
judgment rendered is not based on law and evidence but on caprice, whim and
despotism.34 This does not obtain in the present case.
It is noted that the criminal complaint which petitioner filed with the
Ombudsman charges private respondents with warrantless search, arbitrary
detention, and grave threats.
The complaint for warrantless search charges no criminal offense. The
conduct of a warrantless search is not a criminal act for it is not penalized under
the Revised Penal Code (RPC) or any other special law. What the RPC punishes
are only two forms of searches:
Art. 129. Search warrants maliciously obtained and abuse in the service
of those legally obtained. - In addition to the liability attaching to the
offender for the commission of any other offense, the penalty of arresto
mayor in its maximum period to prision correccional in its minimum
period and a fine not exceeding P1,000.00 pesos shall be imposed upon
any public officer or employee who shall procure a search warrant
 without just cause, or, having legally procured the same, shall exceed
his authority or use unnecessary severity in executing the same.
Art. 130. Searching domicile without witnesses. - The penalty
of arresto mayor in its medium and maximum periods shall be imposed
upon a public officer or employee who, in cases where a search is
proper, shall search the domicile, papers or other belongings of any
person, in the absence of the latter, any member of his family, or in
their default, without the presence of two witnesses residing in the
same locality.
Petitioner did not allege any of the elements of the foregoing felonies in his
Affidavit-Complaint; rather, he accused private respondents of conducting a
search on his vehicle without being armed with a valid warrant. This situation,
while lamentable, is not covered by Articles 129 and 130 of the RPC.
The remedy of petitioner against the warrantless search conducted on his
vehicle is civil,35 under Article 32, in relation to Article 2219 36 (6) and (10) of the
Civil Code, which provides:
Art. 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:
xxxx
(9) The right to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures;
xxxx
The indemnity shall include moral damages. Exemplary damages may
also be adjudicated.
and/or disciplinary and administrative, under Section 41 of Republic Act No.
6975.37
To avail of such remedies, petitioner may file against private respondents a
complaint for damages with the regular courts 38 or an administrative case with
the PNP/DILG,39 as petitioner did in Administrative Case No. IASOB-020007, and
not a criminal action with the Ombudsman.
Public respondents' dismissal of the criminal complaint for illegal search which
petitioner filed with the Ombudsman against private respondents was therefore
proper, although the reasons public respondents cited for dismissing the
complaint are rather off the mark because they relied solely on the finding that
the warrantless search conducted by private respondents was valid and that the
Affidavit of Desistance which petitioner executed cast doubt on the veracity of
his complaint.40 Public respondents completely overlooked the fact that the
criminal complaint was not cognizable by the Ombudsman as illegal search is
not a criminal offense. Nevertheless, the result achieved is the same: the
dismissal of a groundless criminal complaint for illegal search which is not an
offense under the RPC. Thus, the Court need not resolve the issue of whether or
not public respondents erred in their finding on the validity of the search for
that issue is completely hypothetical under the circumstance.
The criminal complaint for abitrary detention was likewise properly dismissed
by public respondents. To sustain a criminal charge for arbitrary detention, it
must be shown that (a) the offender is a public officer or employee, (b) the
offender detained the complainant, and (c) the detention is without legal
grounds.41 The second element was not alleged by petitioner in his Affidavit-
Complaint. As pointed out by private respondent Conde in his Comment 42 and
Memorandum,43 petitioner himself identified in his Affidavit-Complaint that it
was Police Chief Rocacorba who caused his detention. Nowhere in said affidavit
did petitioner allege that private respondents effected his detention, or were in
any other way involved in it.44 There was, therefore, no factual or legal basis to
sustain the criminal charge for arbitrary detention against private respondents.
Finally, on the criminal complaint for grave threats, the Solicitor General aptly
pointed out that the same is based merely on petitioner's bare allegation that
private respondents aimed their firearms at him. 45 Such bare allegation stands
no chance against the well-entrenched rule applicable in this case, that public
officers enjoy a presumption of regularity in the performance of their official
function.46 The IAS itself observed that private respondents may have been
carried away by their "enthusiasm in the conduct of the arrest in line of
duty."47 Petitioner expressed the same view when, in his Affidavit of Desistance,
he accepted that private respondents may have been merely following orders
when they pointed their long firearms at him.
All said, public respondents did not act with grave abuse of discretion in
dismissing the criminal complaint against private respondents.
WHEREFORE, the petition is DENIED.
No costs.
SO ORDERED.
G.R. No. 164007 August 10, 2006
LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO
TRILLANES IV, CPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO
GAMBALA, CPT. NICANOR FAELDON, LT. (SG) MANUEL CABOCHAN, ENS.
ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL
SANGGALANG, Petitioners,
vs.
GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces
of the Philippines, and B. GEN. MARIANO M. SARMIENTO, JR., in his
capacity as the Judge Advocate General of the Judge Advocate General’s
Office (JAGO), Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the Petition for Prohibition (with prayer for a temporary
restraining order) filed by the above-named members of the Armed Forces of
the Philippines (AFP), herein petitioners, against the AFP Chief of Staff and the
Judge Advocate General, respondents.
The facts are:
On July 26, 2003, President Gloria Macapagal Arroyo received intelligence
reports that some members of the AFP, with high-powered weapons, had
abandoned their designated places of assignment. Their aim was to destabilize
the government. The President then directed the AFP and the Philippine
National Police (PNP) to track and arrest them.
On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior
officers and enlisted men of the AFP – mostly from the elite units of the Army’s
Scout Rangers and the Navy’s Special Warfare Group – entered the premises of
the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They
disarmed the security guards and planted explosive devices around the
building.
Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands
emblazoned with the emblem of the "Magdalo" faction of the Katipunan. 1 The
troops then, through broadcast media, announced their grievances against the
administration of President Gloria Macapagal Arroyo, such as the graft and
corruption in the military, the illegal sale of arms and ammunition to the
"enemies" of the State, and the bombings in Davao City intended to acquire
more military assistance from the US government. They declared their
withdrawal of support from their Commander-in-Chief and demanded that she
resign as President of the Republic. They also called for the resignation of her
cabinet members and the top brass of the AFP and PNP.
About noontime of the same day, President Arroyo issued Proclamation No. 427
declaring a state of rebellion, followed by General Order No. 4 directing the AFP
and PNP to take all necessary measures to suppress the rebellion then taking
place in Makati City. She then called the soldiers to surrender their weapons at
five o’clock in the afternoon of that same day.
In order to avoid a bloody confrontation, the government sent negotiators to
dialogue with the soldiers. The aim was to persuade them to peacefully return
to the fold of the law. After several hours of negotiation, the government panel
succeeded in convincing them to lay down their arms and defuse the explosives
placed around the premises of the Oakwood Apartments. Eventually, they
returned to their barracks.
A total of 321 soldiers, including petitioners herein, surrendered to the
authorities.
The National Bureau of Investigation (NBI) investigated the incident and
recommended that the military personnel involved be charged with coup
d’etat defined and penalized under Article 134-A of the Revised Penal Code, as
amended. On July 31, 2003, the Chief State Prosecutor of the Department of
Justice (DOJ) recommended the filing of the corresponding Information against
them.
Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War,
respondent General Narciso Abaya, then AFP Chief of Staff, ordered the arrest
and detention of the soldiers involved in the Oakwood incident and directed the
AFP to conduct its own separate investigation.
On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City
an Information for coup d’etat 2 against those soldiers, docketed as Criminal
Case No. 03-2784 and eventually raffled off to Branch 61, presided by Judge
Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case
No. 03-2678, involving the other accused, pending before Branch 148 of the
RTC, Makati City, presided by Judge Oscar B. Pimentel.
On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of
Criminal Case No. 03-2784.
On the same date, respondent Chief of Staff issued Letter Order No. 625 creating
a Pre-Trial Investigation Panel tasked to determine the propriety of filing with
the military tribunal charges for violations of the Articles of War under
Commonwealth Act No. 408, 4 as amended, against the same military personnel.
Specifically, the charges are: (a) violation of Article 63 for disrespect toward the
President, the Secretary of National Defense, etc., (b) violation of Article 64 for
disrespect toward a superior officer, (c) violation of Article 67 for mutiny or
sedition, (d) violation of Article 96 for conduct unbecoming an officer and a
gentleman, and (e) violation of Article 97 for conduct prejudicial to good order
and military discipline.
Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including
petitioners herein) filed with the RTC, Branch 148 an Omnibus Motion praying
that the said trial court assume jurisdiction over all the charges filed with the
military tribunal. They invoked Republic Act (R.A.) No. 7055. 5
On September 15, 2003, petitioners filed with the Judge Advocate General’s
Office (JAGO) a motion praying for the suspension of its proceedings until after
the RTC shall have resolved their motion to assume jurisdiction.
On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial
Report to the AFP Chief of Staff recommending that the military personnel
involved in the Oakwood incident be charged before a general court martial
with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War.
Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation,
found probable cause against only 31 (petitioners included) of the 321 accused
in Criminal Case No. 03-2784. Accordingly, the prosecution filed with the RTC
an Amended Information. 6
In an Order dated November 14, 2003, the RTC admitted the Amended
Information and dropped the charge of coup d’etat against the 290 accused.
Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel
submitted its Final Pre-Trial Investigation Report 7 to the JAGO, recommending
that, following the "doctrine of absorption," those charged with coup
d’etat before the RTCshould not be charged before the military tribunal for
violation of the Articles of War.
For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all
charges before the court martial against the accused…are hereby declared not
service-connected, but rather absorbed and in furtherance of the alleged crime
of coup d’etat." The trial court then proceeded to hear petitioners’ applications
for bail.
In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of
the JAGO, reviewed the findings of the Pre-Trial Investigation Panel. He
recommended that 29 of the officers involved in the Oakwood incident,
including petitioners, be prosecuted before a general court martial for violation
of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of
War.
On June 17, 2004, Colonel Magno’s recommendation was approved by the AFP
top brass. The AFP Judge Advocate General then directed petitioners to submit
their answer to the charge. Instead of complying, they filed with this Court the
instant Petition for Prohibition praying that respondents be ordered to desist
from charging them with violation of Article 96 of the Articles of War in relation
to the Oakwood incident. 9
Petitioners maintain that since the RTC has made a determination in its Order of
February 11, 2004 that the offense for violation of Article 96 (conduct
unbecoming an officer and a gentleman) of the Articles of War is not service-
connected, but is absorbed in the crime of coup d’etat, the military tribunal
cannot compel them to submit to its jurisdiction.
The Solicitor General, representing the respondents, counters that R.A. No. 7055
specifies which offenses covered by the Articles of War areservice-connected.
These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The law
provides that violations of these Articles are properly cognizable by the court
martial. As the charge against petitioners is violation of Article 96 which, under
R.A. No. 7055 is a service-connected offense, then it falls under the jurisdiction
of the court martial.
Subsequently, petitioners filed with this Court a Supplemental Petition raising
the additional issue that the offense charged before the General Court Martial
has prescribed. Petitioners alleged therein that during the pendency of their
original petition, respondents proceeded with the Pre-Trial Investigation for
purposes of charging them with violation of Article 96 (conduct unbecoming an
officer and a gentleman) of the Articles of War; that the Pre-Trial Investigation
Panel then referred the case to the General Court Martial; that "almost two
years since the Oakwood incident on July 27, 2003, only petitioner Lt. (SG)
Antonio Trillanes was arraigned, and this was done under questionable
circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved
for the dismissal of the case on the ground that they were not arraigned within
the prescribed period of two (2) years from the date of the commission of the
alleged offense, in violation of Article 38 of the Articles of War; 11 that "the
offense charged prescribed on July 25, 2005;" 12 that the General Court Martial
ruled, however, that "the prescriptive period shall end only at 12:00 midnight of
July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it
was becoming apparent that the accused could not be arraigned, the
prosecution suddenly changed its position and asserted that 23 of the accused
have already been arraigned;" 14 and that petitioners moved for a
reconsideration but it was denied by the general court martial in its Order dated
September 14, 2005. 15
In his Comment, the Solicitor General prays that the Supplemental Petition be
denied for lack of merit. He alleges that "contrary to petitioners’ pretensions, all
the accused were duly arraigned on July 13 and 18, 2005." 16 The "(r)ecords
show that in the hearing on July 13, 2005, all the 29 accused were present" and,
"(o)n that day, Military Prosecutor Captain Karen Ong Jags read the Charges and
Specifications from the Charge Sheet in open court (pp. 64, TSN, July 13,
2005)." 17
The sole question for our resolution is whether the petitioners are entitled to
the writ of prohibition.
There is no dispute that petitioners, being officers of the AFP, are subject to
military law. Pursuant to Article 1 (a) of Commonwealth Act No. 408, as
amended, otherwise known as the Articles of War, the term "officer" is
"construed to refer to a commissioned officer." Article 2 provides:
Art. 2. Persons Subject to Military Law. – The following persons are subject to
these articles and shall be understood as included in the term "any person
subject to military law" or "persons subject to military law," whenever used in
these articles:
(a) All officers and soldiers in the active service of the Armed Forces of the
Philippines or of the Philippine Constabulary, all members of the reserve force,
from the dates of their call to active duty and while on such active duty; all
trainees undergoing military instructions; and all other persons lawfully called,
drafted, or ordered into, or to duty or for training in the said service, from the
dates they are required by the terms of the call, draft, or order to obey the same.
Upon the other hand, Section 1 of R.A. No. 7055 reads:
SEC. 1. Members of the Armed Forces of the Philippines and other persons
subject to military law, including members of the Citizens Armed Forces
Geographical Units, who commit crimes or offenses penalized under the Revised
Penal Code, other special penal laws, or local government ordinances,
regardless of whether or not civilians are co-accused, victims, or offended
parties, which may be natural or juridical persons, shall be tried by the proper
civil court, except when the offense, as determined before arraignment by the
civil court, is service-connected, in which case, the offense shall be tried by
court-martial, Provided, That the President of the Philippines may, in the
interest of justice, order or direct at any time before arraignment that any such
crimes or offenses be tried by the proper civil courts.
As used in this Section, service-connected crimes or offenses shall be limited to
those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of
Commonwealth Act No. 408, as amended.
In imposing the penalty for such crimes or offenses, the court-martial may take
into consideration the penalty prescribed therefor in the Revised Penal Code,
other special laws, or local government ordinances.
Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays
down the general rule that members of the AFP and other persons subject to
military law, including members of the Citizens Armed Forces Geographical
Units, who commit crimes or offenses penalized under the Revised Penal Code
(like coup d’etat), other special penal laws, or local ordinances shall be tried by
the proper civil court. Next, it provides the exception to the general rule, i.e.,
where the civil court, before arraignment, has determined the offense to be
service-connected, then the offending soldier shall be tried by a court martial.
Lastly, the law states an exception to the exception, i.e., where the President of
the Philippines, in the interest of justice, directs before arraignment that any
such crimes or offenses be tried by the proper civil court.
The second paragraph of the same provision further identifies the "service-
connected crimes or offenses" as "limited to those defined in Articles 54 to 70,
Articles 72 to 92, and Articles 95 to 97" of the Articles of War. Violations of
these specified Articles are triable by court martial. This delineates the
jurisdiction between the civil courts and the court martial over crimes or
offenses committed by military personnel.
Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the
peculiar nature of military justice system over military personnel charged with
service-connected offenses. The military justice system is disciplinary in nature,
aimed at achieving the highest form of discipline in order to ensure the highest
degree of military efficiency. 18 Military law is established not merely to enforce
discipline in times of war, but also to preserve the tranquility and security of the
State in time of peace; for there is nothing more dangerous to the public peace
and safety than a licentious and undisciplined military body. 19 The
administration of military justice has been universally practiced. Since time
immemorial, all the armies in almost all countries of the world look upon the
power of military law and its administration as the most effective means of
enforcing discipline. For this reason, the court martial has become invariably an
indispensable part of any organized armed forces, it being the most potent
agency in enforcing discipline both in peace and in war. 20
Here, petitioners are charged for violation of Article 96 (conduct unbecoming an
officer and a gentleman) of the Articles of War before the court martial, thus:
All persons subject to military law, did on or about 27 July 2003 at Oakwood
Hotel, Makati City, Metro Manila, willfully, unlawfully and feloniously violate
their solemn oath as officers to defend the Constitution, the law and the
duly-constituted authorities and abused their constitutional duty to
protect the people and the State by, among others, attempting to oust the
incumbent duly-elected and legitimate President by force and violence,
seriously disturbing the peace and tranquility of the people and the nation they
are sworn to protect, thereby causing dishonor and disrespect to the
military profession, conduct unbecoming an officer and a gentleman, in
violation of AW 96 of the Articles of War.
CONTRARY TO LAW. (Underscoring ours)
Article 96 of the Articles of War 21 provides:
ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, member
of the Nurse Corps, cadet, flying cadet, or probationary second lieutenant, who
is convicted of conduct unbecoming an officer and a gentleman shall
be dismissed from the service. (Underscoring ours)
We hold that the offense for violation of Article 96 of the Articles of War is
service-connected. This is expressly provided in Section 1 (second paragraph)
of R.A. No. 7055. It bears stressing that the charge against the petitioners
concerns the alleged violation of their solemn oath as officers to defend the
Constitution and the duly-constituted authorities.Such violation
allegedly caused dishonor and disrespect to the military profession. In
short, the charge has a bearing on their professional conduct or behavior as
military officers. Equally indicative of the "service-connected" nature of the
offense is the penalty prescribed for the same – dismissal from the service
– imposable only by the military court.Such penalty is purely disciplinary in
character, evidently intended to cleanse the military profession of misfits and to
preserve the stringent standard of military discipline.
Obviously, there is no merit in petitioners’ argument that they can no longer be
charged before the court martial for violation of Article 96 of the Articles of War
because the same has been declared by the RTC in its Order of February 11,
2004 as "not service-connected, but rather absorbed and in furtherance of the Art. 65. Assaulting or Willfully Disobeying Superior Officer.
alleged crime of coup d’etat," hence, triable by said court (RTC). The RTC, in
Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.
making such declaration, practically amended the law which expressly vests in
the court martial the jurisdiction over "service-connected crimes or offenses." Art. 67. Mutiny or Sedition.
What the law has conferred the court should not take away. It is only the
Art. 68. Failure to Suppress Mutiny or Sedition.
Constitution or the law that bestows jurisdiction on the court, tribunal, body or
officer over the subject matter or nature of an action which can do so. 22 And it is Art. 69. Quarrels; Frays; Disorders.
only through a constitutional amendment or legislative enactment that such act
Art. 70. Arrest or Confinement.
can be done. The first and fundamental duty of the courts is merely to apply the
law "as they find it, not as they like it to be." 23 Evidently, such declaration by the Articles 72 to 92:
RTC constitutes grave abuse of discretion tantamount to lack or excess of
Art. 72. Refusal to Receive and Keep Prisoners.
jurisdiction and is, therefore, void.
Art. 73. Report of Prisoners Received.
In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held:
Art. 74. Releasing Prisoner Without Authority.
We agree with the respondents that the sweeping declaration made by the RTC
(Branch 148) in the dispositive portion of its Order dated February 11, 2004 Art. 75. Delivery of Offenders to Civil Authorities.
that all charges before the court-martial against the accused were not service-
connected, but absorbed and in furtherance of the crime of coup d’etat, cannot Art. 76. Misbehavior Before the Enemy.
be given effect. x x x, such declaration was made without or in excess of Art. 77. Subordinates Compelling Commander to Surrender.
jurisdiction; hence, a nullity.
Art. 78. Improper Use of Countersign.
The second paragraph of the above provision (referring to Section 1 of R.A. No.
7055) explicitly specifies what are considered "service-connected crimes or Art. 79. Forcing a Safeguard.
offenses" under Commonwealth Act No. 408, as amended, also known as the Art. 80. Captured Property to be Secured for Public Service.
Articles of War, to wit:
Art. 81. Dealing in Captured or Abandoned Property.
Articles 54 to 70:
Art. 82. Relieving, Corresponding With, or Aiding the Enemy.
Art. 54. Fraudulent Enlistment.
Art. 83. Spies.
Art. 55. Officer Making Unlawful Enlistment.
Art. 84. Military Property.–Willful or Negligent Loss, Damage
Art. 56. False Muster.
or wrongful Disposition.
Art. 57. False Returns.
Art. 85. Waste or Unlawful Disposition of Military Property
Art. 58. Certain Acts to Constitute Desertion.
Issued to Soldiers.
Art. 59. Desertion.
Art. 86. Drunk on Duty.
Art. 60. Advising or Aiding Another to Desert.
Art. 87. Misbehavior of Sentinel.
Art. 61. Entertaining a Deserter.
Art. 88. Personal Interest in Sale of Provisions.
Art. 62. Absence Without Leave.
Art. 88-A. Unlawful Influencing Action of Court.
Art. 63. Disrespect Toward the President, Vice-President,
Art. 89. Intimidation of Persons Bringing Provisions.
Congress of the Philippines, or Secretary of National
Art. 90. Good Order to be Maintained and Wrongs Redressed.
Defense.
Art. 91. Provoking Speeches or Gestures.
Art. 64. Disrespect Toward Superior Officer.
Art. 92. Dueling.
Articles 95 to 97:
Art. 95. Frauds Against the Government.
Art. 96. Conduct Unbecoming an Officer and Gentleman.
Art. 97. General Article.
Further, Section 1 of Rep. Act No. 7055 vests on the military courts the
jurisdiction over the foregoing offenses. x x x.
It is clear from the foregoing that Rep. Act No. 7055 did not divest the military
courts of jurisdiction to try cases involving violations of Articles 54 to 70,
Articles 72 to 92, and Articles 95 to 97 of the Articles of War as these are
considered "service-connected crimes or offenses." In fact, it mandates that
these shall be tried by the court-martial.
Moreover, the observation made by Mr. Justice Antonio T. Carpio during the
deliberation of this case is worth quoting, thus:
The trial court aggravated its error when it justified its ruling by holding that
the charge of Conduct Unbecoming an Officer and a Gentleman is ‘absorbed and
in furtherance to the alleged crime of coup d’etat.’ Firstly, the doctrine of
‘absorption of crimes’ is peculiar to criminal law and generally applies to crimes
punished by the same statute, 25 unlike here where different statutes are
involved. Secondly, the doctrine applies only if the trial court has jurisdiction
over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of
jurisdiction over service-connected offenses, including Article 96 of the Articles
of War. Thus, the doctrine of absorption of crimes is not applicable to this case.
Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable
only to military personnel because the military constitutes an armed
organization requiring a system of discipline separate from that of civilians (see
Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-
powered arms and other lethal weapons not allowed to civilians. History,
experience, and the nature of a military organization dictate that military
personnel must be subjected to a separate disciplinary system not applicable to
unarmed civilians or unarmed government personnel.
A civilian government employee reassigned to another place by his superior
may question his reassignment by asking a temporary restraining order or
injunction from a civil court. However, a soldier cannot go to a civil court and
ask for a restraining or injunction if his military commander reassigns him to
another area of military operations. If this is allowed, military discipline will
collapse.
xxx
This Court has recognized that courts-martial are instrumentalities of the
Executive to enable the President, as Commander-in-Chief, to effectively
command, control, and discipline the armed forces (see Ruffy v. Chief of Staff, 75
Phil. 875 [1946], citing Winthrop’s Military Law and Precedents, 2nd edition, p.
49). In short, courts-martial form part of the disciplinary system that ensures
the President’s control, and thus civilian supremacy, over the military. At the
apex of this disciplinary system is the President who exercises review powers
over decisions of courts-martial (citing Article 50 of the Articles of War; quoted
provisions omitted).
xxx
While the Court had intervened before in courts-martial or similar proceedings,
it did so sparingly and only to release a military personnel illegally detained
(Ognir v. Director of Prisons, 80 Phil. 401 [1948] or to correct objectionable
procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never
suppressed court-martial proceedings on the ground that the offense charged ‘is
absorbed and in furtherance of’ another criminal charge pending with the civil
courts. The Court may now do so only if the offense charged is not one of the
service-connected offenses specified in Section 1 of RA 7055. Such is not the
situation in the present case.
With respect to the issue of prescription raised by petitioners in their
Supplemental Petition, suffice it to say that we cannot entertain the same. The
contending parties are at loggerheads as to (a) who among the petitioners were
actually arraigned, and (b) the dates of their arraignment. These are matters
involving questions of fact, not within our power of review, as we are not a trier
of facts. In a petition for prohibition, such as the one at bar, only legal issues
affecting the jurisdiction of the tribunal, board or officer involved may be
resolved on the basis of the undisputed facts. 26
Clearly, the instant petition for prohibition must fail. The office of prohibition is
to prevent the unlawful and oppressive exercise of authority and is directed
against proceedings that are done without or in excess of jurisdiction, or with
grave abuse of discretion, there being no appeal or other plain, speedy, and
adequate remedy in the ordinary course of law. 27 Stated differently, prohibition
is the remedy to prevent inferior courts, corporations, boards, or persons from
usurping or exercising a jurisdiction or power with which they have not been
vested by law. 28
In fine, this Court holds that herein respondents have the authority in convening
a court martial and in charging petitioners with violation of Article 96 of the
Articles of War.
WHEREFORE, the instant petition for prohibition is DISMISSED.
SO ORDERED.
G.R. No. 176830               February 11, 2014
SATURNINO C. OCAMPO, Petitioner, On 26 August 2006, a mass grave was discovered by elements of the 43rd
vs. Infantry Brigade of the Philippine Army at Sitio Sapang Daco, Barangay
HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Kaulisihan, Inopacan, Leyte.1 The mass grave contained skeletal remains of
Regional Trial Court of Hilongos, Leyte, Branch 18, CESAR M. MERIN, in. his individuals believed to be victims of "Operation Venereal Disease" (Operation
capacity as Approving Prosecutor and Officer-in-Charge, ROSULO U. VD) launched by members of the Communist Party of the Philippines/New
VIVERO, in his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in People’s Army/National Democratic Front of the Philippines (CPP/NPA/NDFP)
his capacity as Secretary of the Department of Justice, Respondents. to purge their ranks of suspected military informers.
x-----------------------x While the doctrine of hierarchy of courts normally precludes a direct invocation
of this Court’s jurisdiction, we take cognizance of these petitions considering
G.R. No. 185587
that petitioners have chosen to take recourse directly before us and that the
RANDALL B. ECHANIS, Petitioner, cases are of significant national interest.
vs.
Petitioners have raised several issues, but most are too insubstantial to require
HON. THELMA BUNYl-MEDINA, in her capacity as Presiding Judge of the
consideration. Accordingly, in the exercise of sound judicial discretion and
Regional Trial Court of Manila, Branch 32, HON. EPHREM S. ABANDO, in his
economy, this Court will pass primarily upon the following:
capacity as Presiding Judge of the Regional Trial Court of Hilongos, Leyte,
Branch 18, CESAR M. MERIN, in his capacity as Approving Prosecutor and 1. Whether petitioners were denied due process during preliminary
Officer-in-Charge, ROSULO U. VIVERO, in his capacity as Investigating investigation and in the issuance of the warrants of arrest.
Prosecutor, RAUL M. GONZALEZ, in his capacity as Secretary of the
2. Whether the murder charges against petitioners should be dismissed
Department of Justice, Respondents.
under the political offense doctrine.
x-----------------------x
ANTECEDENT FACTS
G.R. No. 185636
These are petitions for certiorari and prohibition 2 seeking the annulment of the
RAFAEL G. BAYLOSIS, Petitioner, orders and resolutions of public respondents with regard to the indictment and
vs. issuance of warrants of arrest against petitioners for the crime of multiple
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the murder.
Regional Trial Court of Manila, Branch 32, HON. EPHREM S. ABANDO, in his
Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the Philippine
capacity as Presiding Judge of the Regional Trial Court of Hilongos, Leyte,
National Police (PNP) Regional Office 8 and Staff Judge Advocate Captain Allan
Branch 18, CESAR M. MERIN, in his capacity as Approving Prosecutor and
Tiu (Army Captain Tiu) of the 8th Infantry Division of the Philippine Army sent
Officer-in-Charge, ROSULO U. VIVERO, in his capacity as Investigating
12 undated letters to the Provincial Prosecutor of Leyte through Assistant
Prosecutor, RAUL M. GONZALEZ, in his capacity as Secretary of the
Provincial Prosecutor Rosulo U. Vivero (Prosecutor Vivero). 3 The letters
Department of Justice, Respondents.
requested appropriate legal action on 12 complaint-affidavits attached
x-----------------------x therewith accusing 71 named members of the Communist Party of the
Philippines/New People’s Army/National Democratic Front of the Philippines
G.R. No. 190005
(CPP/NPA/NDFP) of murder, including petitioners herein along with several
VICENTE P. LADLAD, Petitioner, other unnamed members.
vs.
The letters narrated that on 26 August 2006, elements of the 43rd Infantry
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the
Brigade of the Philippine Army discovered a mass grave site of the
Regional Trial Court of Manila, Branch 32, and the PEOPLE OF THE
CPP/NPA/NDFP at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan,
PHILIPPINES, Respondents.
Leyte.4 Recovered from the grave site were 67 severely deteriorated skeletal
DECISION remains believed to be victims of Operation VD.5
SERENO, CJ.: The PNP Scene of the Crime Operation (SOCO) Team based in Regional Office 8
was immediately dispatched to the mass grave site to conduct crime
investigation, and to collect, preserve and analyze the skeletal remains. 6 Also,
from 11-17 September 2006, an investigation team composed of intelligence
officers, and medico-legal and DNA experts, conducted forensic crime analysis
and collected from alleged relatives of the victims DNA samples for matching. 7
8
The Initial Specialist Report  dated 18 September 2006 issued by the PNP Crime
Laboratory in Camp Crame, Quezon City, was inconclusive with regard to the
identities of the skeletal remains and even the length of time that they had been
buried. The report recommended the conduct of further tests to confirm the
identities of the remains and the time window of death. 9
However, in a Special Report10 dated 2 October 2006, the Case Secretariat of the
Regional and National Inter-Agency Legal Action Group (IALAG) came up with
the names of ten (10) possible victims after comparison and examination based
on testimonies of relatives and witnesses.11
The 12 complaint-affidavits were from relatives of the alleged victims of
Operation VD. All of them swore that their relatives had been abducted or last
seen with members of the CPP/NPA/NDFP and were never seen again.
They also expressed belief that their relatives’ remains were among those
discovered at the mass grave site.
Also attached to the letters were the affidavits of Zacarias Piedad, 12 Leonardo C.
Tanaid, Floro M. Tanaid, Numeriano Beringuel, Glecerio Roluna and Veronica P.
Tabara. They narrated that they were former members of the
CPP/NPA/NDFP.13 According to them, Operation VD was ordered in 1985 by the
CPP/NPA/NDFP Central Committee.14 Allegedly, petitioners Saturnino C.
Ocampo (Ocampo),15 Randall B. Echanis (Echanis),16 Rafael G. Baylosis
(Baylosis),17 and Vicente P. Ladlad (Ladlad) 18 were then members of the Central
Committee.
According to these former members, four sub-groups were formed to
implement Operation VD, namely, (1) the Intel Group responsible for gathering
information on suspected military spies and civilians who would not support
the movement; (2) the Arresting Group charged with their arrests; (3) the
Investigation Group which would subject those arrested to questioning; and (4)
the Execution Group or the "cleaners" of those confirmed to be military spies
and civilians who would not support the movement.19
From 1985 to 1992, at least 100 people had been abducted, hog-tied, tortured
and executed by members of the CPP/NPA/NDF20 pursuant to Operation VD.21
On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a
subpoena requiring, among others, petitioners to submit their counter-affidavits
and those of their witnesses. 22 Petitioner Ocampo submitted his counter-
affidavit.23 Petitioners Echanis24 and Baylosis25 did not file counter-affidavits
because they were allegedly not served the copy of the complaint and the
attached documents or evidence. Counsel of petitioner Ladlad made a formal
entry of appearance on 8 December 2006 during the preliminary
investigation.26 However, petitioner Ladlad did not file a counter-affidavit
because he was allegedly not served a subpoena.27
In a Resolution28 dated 16 February 2007, Prosecutor Vivero recommended the
filing of an Information for 15 counts of multiple murder against 54 named
members of the CPP/NPA/NDFP, including petitioners herein, for the death of
the following: 1) Juanita Aviola, 2) Concepcion Aragon, 3) Gregorio Eras, 4)
Teodoro Recones, Jr., 5) Restituto Ejoc, 6) Rolando Vasquez, 7) Junior Milyapis,
8) Crispin Dalmacio, 9) Zacarias Casil, 10) Pablo Daniel, 11) Romeo Tayabas, 12)
Domingo Napoles, 13) Ciriaco Daniel, 14) Crispin Prado, and 15) Ereberto
Prado.29
Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo Tanaid,
Numeriano Beringuel and Glecerio Roluna be dropped as respondents and
utilized as state witnesses, as their testimonies were vital to the success of the
prosecution.30 The Resolution was silent with regard to Veronica Tabara.
The Information was filed before the Regional Trial Court (RTC) Hilongos, Leyte,
Branch 18 (RTC Hilongos, Leyte) presided by Judge Ephrem S. Abando (Judge
Abando) on 28 February 2007, and docketed as Criminal Case No. H-
1581.31 Petitioner Ocampo filed an Ex Parte Motion to Set Case for Clarificatory
Hearing dated 5 March 2007 prior to receiving a copy of the Resolution
recommending the filing of the Information.32
On 6 March 2007, Judge Abando issued an Order finding probable cause "in the
commission by all mentioned accused of the crime charged." 33 He ordered the
issuance of warrants of arrest against them with no recommended bail for their
temporary liberty.34
On 16 March 2007, petitioner Ocampo filed before us this special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court and docketed as
G.R. No. 176830 seeking the annulment of the 6 March 2007 Order of Judge
Abando and the 16 February 2007 Resolution of Prosecutor Vivero. 35 The
petition prayed for the unconditional release of petitioner Ocampo from PNP
custody, as well as the issuance of a temporary restraining order/ writ of
preliminary injunction to restrain the conduct of further proceedings during the
pendency of the petition.36
Petitioner Ocampo argued that a case for rebellion against him and 44 others
(including petitioners Echanis and Baylosis 37 and Ladlad38) docketed as Criminal
Case No. 06-944 was then pending before the RTC Makati, Branch 150 (RTC
Makati).39 Putting forward the political offense doctrine, petitioner Ocampo
argues that common crimes, such as murder in this case, are already absorbed
by the crime of rebellion when committed as a necessary means, in connection
with and in furtherance of rebellion.40
We required41 the Office of the Solicitor General (OSG) to comment on the
petition and the prayer for the issuance of a temporary restraining order/ writ
of preliminary injunction, and set42 the case for oral arguments on 30 March
2007. The OSG filed its Comment on 27 March 2007. 43
The following were the legal issues discussed by the parties during the oral
arguments:
1. Whether the present petition for certiorari and prohibition is the
proper remedy of petitioner Ocampo;
2. Assuming it is the proper remedy, whether he was denied due
process during preliminary investigation and in the issuance of the
warrant of arrest;
3. Whether the murder charges against him are already included in the
rebellion charge against him in the RTC.44
Afterwards, the parties were ordered to submit their memoranda within 10
days.45 On 3 April 2007, the Court ordered the provisional release of petitioner
Ocampo under a ₱100,000 cash bond. 46
Acting on the observation of the Court during the oral arguments that the single
Information filed before the RTC Hilongos, Leyte was defective for charging 15
counts of murder, the prosecution filed a Motion to Admit Amended
Information and New Informations on 11 April 2007. 47 In an Order dated 27 July
2007, Judge Abando held in abeyance the resolution thereof and effectively
suspended the proceedings during the pendency of G.R. No. 176830 before this
Court.48
While the proceedings were suspended, petitioner Echanis was arrested on 28
January 2008 by virtue of the warrant of arrest issued by Judge Abando on 6
March 2007.49 On 1 February 2008, petitioners Echanis and Baylosis filed a
Motion for Judicial Reinvestigation/ Determination of Probable Cause with
Prayer to Dismiss the Case Outright and Alternative Prayer to Recall/ Suspend
Service of Warrant.50
On 30 April 2008, Judge Abando issued an Order denying the
motion.51 Petitioners Echanis and Baylosis filed a Motion for
Reconsideration52 dated 30 May 2008, but before being able to rule thereon,
Judge Abando issued an Order dated 12 June 2008 transmitting the records of
Criminal Case No. H-1581 to the Office of the Clerk of Court, RTC Manila. 53 The
Order was issued in compliance with the Resolution dated 23 April 2008 of this
Court granting the request of then Secretary of Justice Raul Gonzales to transfer
the venue of the case.
The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by
Judge Thelma Bunyi-Medina (Judge Medina) and re-docketed as Criminal Case
No. 08-262163.54 Petitioner Echanis was transferred to the PNP Custodial
Center in Camp Crame, Quezon City. On 12 August 2008, petitioners Echanis and
Baylosis filed their Supplemental Arguments to Motion for Reconsideration. 55
In an Order56 dated 27 October 2008, Judge Medina suspended the proceedings
of the case pending the resolution of G.R. No. 176830 by this Court.
On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion to
Quash and/or Dismiss.57
On 23 December 2008, petitioner Echanis filed before us a special civil action
for certiorari and prohibition under Rule 65 of the Rules of Court seeking the
annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008
Order of Judge Medina.58 The petition, docketed as G.R. No. 185587, prayed for
the unconditional and immediate release of petitioner Echanis, as well as the
issuance of a temporary restraining order/writ of preliminary injunction to
restrain his further incarceration.59
On 5 January 2009, petitioner Baylosis filed before us a special civil action for
certiorari and prohibition under Rule 65 of the Rules of Court also seeking the
annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008
Order of Judge Medina.60 The petition, docketed as G.R. No. 185636, prayed for
the issuance of a temporary restraining order/ writ of preliminary injunction to
restrain the implementation of the warrant of arrest against petitioner
Baylosis.61
The Court consolidated G.R. Nos. 185587 and 185636 on 12 January 2009. 62
On 3 March 2009, the Court ordered the further consolidation of these two
cases with G.R. No. 176830. 63 We required64 the OSG to comment on the prayer
for petitioner Echanis’s immediate release, to which the OSG did not interpose
any objection on these conditions: that the temporary release shall only be for
the purpose of his attendance and participation in the formal peace negotiations
between the Government of the Republic of the Philippines (GRP) and the
CPP/NPA/NDFP, set to begin in August 2009; and that his temporary release
shall not exceed six (6) months.65 The latter condition was later modified, such
that his temporary liberty shall continue for the duration of his actual
participation in the peace negotiations.66
On 11 August 2009, the Court ordered the provisional release of petitioner
Echanis under a ₱100,000 cash bond, for the purpose of his participation in the
formal peace negotiations.67
Meanwhile, the Department of Justice (DOJ) filed its Opposition 68 to petitioner
Ladlad’s motion to quash before the RTC Manila. The trial court conducted a
hearing on the motion on 13 February 2009. 69
On 6 May 2009, Judge Medina issued an Order 70 denying the motion to quash.
The motion for reconsideration filed by petitioner Ladlad was also denied on 27
August 2009.71
On 9 November 2009, petitioner Ladlad filed before us a special civil action for
certiorari under Rule 65 of the Rules of Court seeking the annulment of the 6
May 2009 and 27 August 2009 Orders of Judge Medina. 72 The petition was
docketed as G.R. No. 190005.
On 11 January 2010, we ordered the consolidation of G.R. No. 190005 with G.R.
Nos. 176830, 185587 and 185636. 73 We also required the OSG to file its
comment thereon. The OSG submitted its Comment74 on 7 May 2010.
On 27 July 2010, we likewise required the OSG to file its Comment in G.R. Nos.
185636 and 185587.75 These Comments were filed by the OSG on 13 December
201076 and on 21 January 2011, 77 respectively. Petitioners Echanis and Baylosis
filed their Consolidated Reply78 on 7 June 2011.
On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail. 79 On 21 July
2011, petitioner Baylosis filed A Motion to Allow Petitioner to Post Bail. 80 The
OSG interposed no objection to the grant of a ₱100,000 cash bail to them
considering that they were consultants of the NDFP negotiating team, which
was then holding negotiations with the GRP peace panel for the signing of a
peace accord.81
On 17 January 2012, we granted the motions of petitioners Ladlad and Baylosis
and fixed their bail in the amount of ₱100,000, subject to the condition that
their temporary release shall be limited to the period of their actual
participation in the peace negotiations.82
Petitioner Ladlad filed his Reply83 to the OSG Comment on 18 January 2013.
OUR RULING
Petitioners were accorded due
process during preliminary
investigation and in the issuance of
the warrants of arrest.
A. Preliminary Investigation
A preliminary investigation is "not a casual affair." 84 It is conducted to protect
the innocent from the embarrassment, expense and anxiety of a public
trial.85 While the right to have a preliminary investigation before trial is
statutory rather than constitutional, it is a substantive right and a component of
due process in the administration of criminal justice.86
In the context of a preliminary investigation, the right to due process of law
entails the opportunity to be heard. 87 It serves to accord an opportunity for the
presentation of the respondent’s side with regard to the accusation. Afterwards,
the investigating officer shall decide whether the allegations and defenses lead
to a reasonable belief that a crime has been committed, and that it was the
respondent who committed it. Otherwise, the investigating officer is bound to
dismiss the complaint.
"The essence of due process is reasonable opportunity to be heard and submit
evidence in support of one's defense."88 What is proscribed is lack of
opportunity to be heard.89 Thus, one who has been afforded a chance to present
one’s own side of the story cannot claim denial of due process. 90
Petitioners Echanis and Baylosis allege that they did not receive a copy of the
complaint and the attached documents or evidence. 91 Petitioner Ladlad claims
that he was not served a subpoena due to the false address indicated in the 12
undated letters of P C/Insp. Almaden and Army Captain Tiu to Prosecutor
Vivero.92 Furthermore, even though his counsels filed their formal entry of
appearance before the Office of the Prosecutor, petitioner Ladlad was still not
sent a subpoena through his counsels’ addresses. 93 Thus, they were deprived of
the right to file counter-affidavits.
Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P C/Insp.
Almaden and Army Captain Tiu, surreptitiously inserted the Supplemental
Affidavit of Zacarias Piedad in the records of the case without furnishing
petitioner Ocampo a copy.94 The original affidavit of Zacarias Piedad dated 14
September 2006 stated that a meeting presided by petitioner Ocampo was held
in 1984, when the launching of Operation VD was agreed upon. 95 Petitioner
Ocampo refuted this claim in his Counter-affidavit dated 22 December 2006
stating that he was in military custody from October 1976 until his escape in
May 1985.96 Thereafter, the Supplemental Affidavit of Zacarias Piedad dated 12
January 2007 admitted that he made a mistake in his original affidavit, and that
the meeting actually took place in June 1985. 97 Petitioner Ocampo argues that he
was denied the opportunity to reply to the Supplemental Affidavit by not being
furnished a copy thereof.
Petitioner Ocampo also claims that he was denied the right to file a motion for
reconsideration or to appeal the Resolution of Prosecutor Vivero, because the
latter deliberately delayed the service of the Resolution by 19 days, effectively
denying petitioner Ocampo his right to due process.98
As to the claim of petitioners Echanis and Baylosis, we quote the pertinent
portion of Prosecutor Vivero’s Resolution, which states:
In connection with the foregoing and pursuant to the Revised Rules of Criminal
Procedure[,] the respondents were issued and served with Subpoena at their
last known address for them to submit their counter-affidavits and that of their
witnesses.
Majority of the respondents did not submit their counter-affidavits because they
could no longer be found in their last known address, per return of the
subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides Lim, Maureen
Palejaro and Ruben Manatad submitted their Counter-Affidavits. However,
Vicente Ladlad and Jasmin Jerusalem failed to submit the required Counter
Affidavits in spite entry of appearance by their respective counsels. 99
Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve
the complaint based on the evidence before him if a respondent could not be
subpoenaed. As long as efforts to reach a respondent were made, and he was
given an opportunity to present countervailing evidence, the preliminary
investigation remains valid. 100 The rule was put in place in order to foil
underhanded attempts of a respondent to delay the prosecution of offenses. 101
In this case, the Resolution stated that efforts were undertaken to serve
subpoenas on the named respondents at their last known addresses. This is
sufficient for due process. It was only because a majority of them could no
longer be found at their last known addresses that they were not served copies
of the complaint and the attached documents or evidence.
Petitioner Ladlad claims that his subpoena was sent to the nonexistent address
"53 Sct. Rallos St., QC,"102 which had never been his address at any time. 103 In
connection with this claim, we take note of the fact that the subpoena to Fides
Lim, petitioner Ladlad’s wife,104 was sent to the same address, and that she was
among those mentioned in the Resolution as having timely submitted their
counter-affidavits.
Despite supposedly never receiving a subpoena, petitioner Ladlad’s counsel
filed a formal entry of appearance on 8 December 2006. 105 Prosecutor Vivero
had a reason to believe that petitioner Ladlad had received the subpoena and
accordingly instructed his counsel to prepare his defense.
Petitioner Ladlad, through his counsel, had every opportunity to secure copies
of the complaint after his counsel’s formal entry of appearance and, thereafter,
to participate fully in the preliminary investigation. Instead, he refused to
participate.
We have previously cautioned that "litigants represented by counsel should not
expect that all they need to do is sit back, relax and await the outcome of their
case."106 Having opted to remain passive during the preliminary investigation,
petitioner Ladlad and his counsel cannot now claim a denial of due process,
since their failure to file a counter-affidavit was of their own doing.
Neither do we find any merit in petitioner Ocampo’s allegation of collusion to
surreptitiously insert the Supplemental Affidavit of Zacarias Piedad in the
records. There was nothing surreptitious about the Supplemental Affidavit since
it clearly alludes to an earlier affidavit and admits the mistake committed
regarding the date of the alleged meeting. The date of the execution of the
Supplemental Affidavit was also clearly stated. Thus, it was clear that it was
executed after petitioner Ocampo had submitted his counter-affidavit. Should
the case go to trial, that will provide petitioner Ocampo with the opportunity to
question the execution of Zacarias Piedad’s Supplemental Affidavit.
Neither can we uphold petitioner Ocampo’s contention that he was denied the
right to be heard. For him to claim that he was denied due process by not being
furnished a copy of the Supplemental Affidavit of Zacarias Piedad would imply
that the entire case of the prosecution rested on the Supplemental Affidavit. The
OSG has asserted that the indictment of petitioner Ocampo was based on the
collective affidavits of several other witnesses 107 attesting to the allegation that
he was a member of the CPP/NPA/NDFP Central Committee, which had ordered
the launch of Operation VD.
As to his claim that he was denied the right to file a motion for reconsideration
or to appeal the Resolution of Prosecutor Vivero due to the 19-day delay in the
service of the Resolution, it must be pointed out that the period for filing a
motion for reconsideration or an appeal to the Secretary of Justice is reckoned
from the date of receipt of the resolution of the prosecutor, not from the date of
the resolution. This is clear from Section 3 of the 2000 National Prosecution
Service Rule on Appeal:
Sec. 3. Period to appeal. – The appeal shall be taken within fifteen (15) days
from receipt of the resolution, or of the denial of the motion for
reconsideration/ reinvestigation if one has been filed within fifteen (15) days
from receipt of the assailed resolution. Only one motion for reconsideration
shall be allowed. (Emphasis supplied)
Thus, when petitioner Ocampo received the Resolution of Prosecutor Vivero on
12 March 2007,108 the former had until 27 March 2007 within which to file
either a motion for reconsideration before the latter or an appeal before the
Secretary of Justice. Instead, petitioner Ocampo chose to file the instant petition
for certiorari directly before this Court on 16 March 2007.
B. Issuance of the Warrants of Arrest
Article III, Section 2 of the Constitution provides that "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."
Petitioner Ocampo alleges that Judge Abando did not comply with the
requirements of the Constitution in finding the existence of probable cause for
the issuance of warrants of arrest against petitioners. 109
Probable cause for the issuance of a warrant of arrest has been defined as "such
facts and circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed by the person sought to be
arrested."110 Although the Constitution provides that probable cause shall be
determined by the judge after an examination under oath or an affirmation of
the complainant and the witnesses, we have ruled that a hearing is not
necessary for the determination thereof. 111 In fact, the judge’s personal
examination of the complainant and the witnesses is not mandatory and
indispensable for determining the aptness of issuing a warrant of arrest. 112
It is enough that the judge personally evaluates the prosecutor’s report and
supporting documents showing the existence of probable cause for the
indictment and, on the basis thereof, issue a warrant of arrest; or if, on the basis
of his evaluation, he finds no probable cause, to disregard the prosecutor's
resolution and require the submission of additional affidavits of witnesses to aid At bottom, issues involving the finding of probable cause for an indictment and
him in determining its existence.113 issuance of a warrant of arrest, as petitioners are doubtless aware, are primarily
questions of fact that are normally not within the purview of a petition for
Petitioners Echanis and Baylosis claim that, had Judge Abando painstakingly
certiorari,120 such as the petitions filed in the instant consolidated cases.
examined the records submitted by Prosecutor Vivero, the judge would have
inevitably dismissed the charge against them. 114 Additionally, petitioner Ocampo The political offense doctrine is not a
alleges that Judge Abando did not point out facts and evidence in the record that ground to dismiss the charge against
were used as bases for his finding of probable cause to issue a warrant of petitioners prior to a determination
arrest.115 by the trial court that the murders
were committed in furtherance of
The determination of probable cause for the issuance of warrants of arrest
rebellion.
against petitioners is addressed to the sound discretion of Judge Abando as the
trial judge.116 Further elucidating on the wide latitude given to trial judges in the Under the political offense doctrine, "common crimes, perpetrated in
issuance of warrants of arrest, this Court stated in Sarigumba v. furtherance of a political offense, are divested of their character as "common"
Sandiganbayan117 as follows: offenses and assume the political complexion of the main crime of which they
are mere ingredients, and, consequently, cannot be punished separately from
x x x. The trial court's exercise of its judicial discretion should not, as a general
the principal offense, or complexed with the same, to justify the imposition of a
rule, be interfered with in the absence of grave abuse of discretion. Indeed,
graver penalty."121
certiorari will not lie to cure errors in the trial court's appreciation of the
evidence of the parties, the conclusion of facts it reached based on the said Any ordinary act assumes a different nature by being absorbed in the crime of
findings, as well as the conclusions of law. x x x. rebellion.122 Thus, when a killing is committed in furtherance of rebellion, the
killing is not homicide or murder. Rather, the killing assumes the political
Whether or not there is probable cause for the issuance of warrants for the
complexion of rebellion as its mere ingredient and must be prosecuted and
arrest of the accused is a question of fact based on the allegations in the
punished as rebellion alone.
Informations, the Resolution of the Investigating Prosecutor, including other
documents and/or evidence appended to the Information. However, this is not to say that public prosecutors are obliged to consistently
charge respondents with simple rebellion instead of common crimes. No one
Here, the allegations of petitioners point to factual matters indicated in the
disputes the well-entrenched principle in criminal procedure that the
affidavits of the complainants and witnesses as bases for the contention that
institution of criminal charges, including whom and what to charge, is
there was no probable cause for petitioners’ indictment for multiple murder or
addressed to the sound discretion of the public prosecutor. 123
for the issuance of warrants for their arrest. As stated above, the trial judge’s
appreciation of the evidence and conclusion of facts based thereon are not But when the political offense doctrine is asserted as a defense in the trial court,
interfered with in the absence of grave abuse of discretion. Again, "he it becomes crucial for the court to determine whether the act of killing was done
sufficiently complies with the requirement of personal determination if he in furtherance of a political end, and for the political motive of the act to be
reviews the [I]nformation and the documents attached thereto, and on the basis conclusively demonstrated.124
thereof forms a belief that the accused is probably guilty of the crime with
Petitioners aver that the records show that the alleged murders were
which he is being charged."118
committed in furtherance of the CPP/NPA/NDFP rebellion, and that the political
Judge Abando’s review of the Information and the supporting documents is motivation behind the alleged murders can be clearly seen from the charge
shown by the following portion of the judge’s 6 March 2007 Order: against the alleged top leaders of the CPP/NPA/NDFP as co-conspirators.
On the evaluation of the Resolution and its Information as submitted and filed We had already ruled that the burden of demonstrating political motivation
by the Provincial Prosecution of Leyte Province supported by the following must be discharged by the defense, since motive is a state of mind which only
documents: Affidavits of Complainants, Sworn Statements of Witnesses and the accused knows.125 The proof showing political motivation is adduced during
other pertinent documents issued by the Regional Crime Laboratory Office, PNP, trial where the accused is assured an opportunity to present evidence
Region VIII and Camp Crame, Quezon City, pictures of the grave site and skeletal supporting his defense. It is not for this Court to determine this factual matter in
remains, this court has the findings [sic] of probable cause in the commission by the instant petitions.
all mentioned accused of the crime charged.119
As held in the case of Office of the Provincial Prosecutor of Zamboanga Del
Norte v. CA,126 if during trial, petitioners are able to show that the alleged
murders were indeed committed in furtherance of rebellion, Section 14, Rule
110 of the Rules of Court provides the remedy, to wit:
SECTION 14. Amendment or substitution. — A complaint or information may be
amended, in form or in substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with notice to the offended
party and with leave of court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties, especially the
offended party. (n)
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Section 19, Rule 119, provided the accused shall not be placed
in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (Emphasis supplied)
Thus, if it is shown that the proper charge against petitioners should have been
simple rebellion, the trial court shall dismiss the murder charges upon the filing
of the Information for simple rebellion, as long as petitioners would not be
placed in double jeopardy.
Section 7, Rule 117 of the Rules of Court, states:
SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused
has been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction,
upon a valid complaint or information or other formal charge sufficient in form
and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt
to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former
complaint or information.
Based on the above provision, double jeopardy only applies when: (1) a first
jeopardy attached; (2) it has been validly terminated; and (3) a second jeopardy
is for the same offense as in the first.127
A first jeopardy attaches only after the accused has been acquitted or convicted,
or the case has been dismissed or otherwise terminated without his express
consent, by a competent court in a valid indictment for which the accused has
entered a valid plea during arraignment.128
To recall, on 12 May 2006, an Information for the crime of rebellion, as defined
and penalized under Article 134 in relation to Article 135 of the Revised Penal
Code, docketed as Criminal Case No. 06-944 was filed before the RTC Makati
against petitioners and several others.129
However, petitioners were never arraigned in Criminal Case No. 06-944.1awp+
+i1 Even before the indictment for rebellion was filed before the RTC Makati,
petitioners Ocampo, Echanis and Ladlad had already filed a petition before this
Court to seek the nullification of the Orders of the DOJ denying their motion for
the inhibition of the members of the prosecution panel due to lack of
impartiality and independence.130 When the indictment was filed, petitioners
Ocampo, Echanis and Ladlad filed supplemental petitions to enjoin the
prosecution of Criminal Case No. 06-944. 131 We eventually ordered the dismissal
of the rebellion case. It is clear then that a first jeopardy never had a chance to
attach.
Petitioner Ocampo shall remain on provisional liberty under the ₱100,000 cash
bond posted before the Office of the Clerk of Court. He shall remain on
provisional liberty until the termination of the proceedings before the RTC
Manila.1âwphi1
The OSG has given its conformity to the provisional liberty of petitioners
Echanis, Baylosis and Ladlad in view of the ongoing peace negotiations. Their
provisional release from detention under the cash bond of ₱100,000 each shall
continue under the condition that their temporary release shall be limited to the
period of their actual participation as CPP-NDF consultants in the peace
negotiations with the government or until the termination of the proceedings
before the RTC Manila, whichever is sooner. It shall be the duty of the
government to inform this Court the moment that peace negotiations are
concluded.
WHEREFORE, the instant consolidated petitions are DISMISSED. The RTC of
Manila, Branch 32, is hereby ORDERED to proceed with dispatch with the
hearing of Criminal Case No. 08-262163. Petitioner Saturnino C. Ocampo shall
remain on temporary liberty under the same bail granted by this Court until the
termination of the proceedings before the RTC Manila. Petitioners Randall B.
Echanis, Rafael G. Baylosis and Vicente P. Ladlad shall remain on temporary
liberty under the same bail granted by this Court until their actual participation
as CPP-NDF consultants in the peace negotiations with the government are
concluded or terminated, or until the termination of the proceedings before the
RTC Manila, whichever is sooner.
SO ORDERED.
THIRD DIVISION
G.R. No. 226486, January 22, 2020
CONTRARY TO LAW."
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. GLECERIO
PITULAN Y BRIONES, ACCUSED-APPELLANT. Criminal Case No. Q-03-116803 against Glecerio Pitulan y Briones for Direct
Assault with Attempted Murder
DECISION
LEONEN, J.: That on or about the 20th day of April, 2003 in Quezon City, Philippines, the said
accused, conspiring, confederating with Eufemio Pitulan, Sergs Pitulan, Edward
In homicide, the prosecution's failure to present the weapon is not fatal to its
Pitulan, Felomino Pitulan and Augusto Torres, who were killed during the
case. An eyewitness' credible testimony on the fact of the crime and the
shootout with the apprehending police officers, and with another person whose
assailant's identity is sufficient to prove the corpus delicti. Moreover, the
name, identity and whereabouts has (sic) not yet been ascertained, and
prosecution's failure to conduct paraffin and ballistic testing has no effect on the
mutually helping each other, did then and there wilfully, unlawfully and
evidentiary value of an eyewitness' positive identification of the accused as the
feloniously with treachery, evident premeditation, and taking advantage of
assailant. The accused's bare denial, on its own, cannot outweigh the
superior strength, commence the commission of the crime of Murder directly by
eyewitness' positive identification.
overt acts upon the person of one PO1 ALBERTO CIRILO DIONISIO y DELACRUZ,
a bonafide member of the PNP, CPDO, assigned at police Station 3, Talipapa
This Court resolves the Notice of Appeal 1 assailing the Decision2 of the Court of
police Station, this City, and therefore an agent of a person in authority who was
Appeals, which affirmed the Regional Trial Court Decision 3 finding Glecerio
then engaged in the performance of his official duties, and the accused knew
Pitulan y Briones (Pitulan) guilty beyond reasonable doubt of the complex crime
him to be such, by then and there shooting him, with intent to kill, with the use
of direct assault with murder.
of a .38 cal. [r]evolver, but said accused was not able to perform all the acts of
execution which should produce the crime of Murder by reason of some cause
Three (3) Informations were filed against Pitulan for direct assault with murder
or accident other than his own spontaneous desistance, to the damage and
of police Officer 1 Aldy Monteroso (PO1 Monteroso), direct assault with
prejudice of the said PO1 Alberto Cirilo Dionisio y Dela Cruz.
attempted murder of police Officer 1 Alberto Cirilo Dionisio (PO1 Dionisio), and
direct assault with frustrated murder of PO1 Benito De Vera (PO1 De Vera). The
CONTRARY TO LAW."
Informations read:
Criminal Case No. Q-05-133382 against Glecerio Pitulan y Briones For Direct
Criminal Case No. Q-03-116802 against Glecerio Pitulan y Briones for Direct
Assault with Frustrated Murder
Assault with Murder

"That on or about the 20th day of April, 2003 in Quezon City, Philippines, the said
"That on or about the 20th day of April, 2003 in Quezon City, Philippines, the said
accused, conspiring, confederating with Eufemio Pitulan, Sergs Pitulan, Edward
accused, conspiring, confederating with Eufemio Pitulan, Sergs Pitulan, Edward
Pitulan, Felomino Pitulan and Augusto Torres, who were killed during the
Pitulan, Felomino Pitulan and Augusto Torres, who were killed during the
shootout with the apprehending police officers, and with another person whose
shootout with the apprehending police officers, and with another person whose
name, identity and whereabouts has (sic) not yet been ascertained, and
name, identity and whereabouts has (sic) not yet been ascertained, and
mutually helping each other, did then and there wilfully, unlawfully and
mutually helping each other, did then and there wilfully, unlawfully and
feloniously with treachery, evident premeditation, and taking advantage of
feloniously with treachery, evident premeditation, and taking advantage of
superior strength, attack, assault and employ personal violence upon the person
superior strength, attack, assault and employ personal violence upon the person
of (sic) commence the commission of the crime of Murder directly by overt acts
of PO1 ALDY MONTEROSO y BELTRAN, a bonafide member of the PNP CPDO,
upon the person of one PO1 BENITO DE VERA y JOPSON, a bonafide member of
assigned at police Station 3, Talipapa police Station, this City, and therefore an
the PNP, CPDO, assigned at police Station 3, Talipapa police Station, this City,
agent of a person in authority who was then engaged in the performance of his
and therefore an agent of a person in authority who was then engaged in the
official duties, and the accused knew him to be such, by then and there shooting
performance of his official duties, and the accused knew him to be such, by then
him, with intent to kill, with the use of a .38 cal. revolver, hitting him on the
and there shooting him, with intent to kill, with the use of a .38 cal. [r]evolver,
chest, thereby inflicting upon him fatal injury which was the direct cause of his
hitting him on the different parts of his body, thereby inflicting upon him fatal
death, to the damage and prejudice of the heirs of said PO1 Aldy B. Monteroso.
injuries, the offender performing all the acts of execution which would produce
death as a consequence but which nevertheless did not produce it by reason of surrender to the police. Once PO3 Cortez and his team arrested him, they
some causes independent of the will of the perpetrator, to the damage and brought Pitulan to the East Avenue Medical Center for treatment. 15 The officers
prejudice of the said PO1 Benito De Veyra (sic) y Jopson. were able to recover from him a .38 cal. revolver, four (4) live ammunitions, and
two (2) empty shells.16
CONTRARY TO LAW."4
Pitulan solely testified for the defense. He alleged that on April 20, 2003, he was
Pitulan was arraigned on all the charges, to which he pleaded not guilty. Trial
with his four (4) brothers on a Besta van driven by a certain Rudy Pagador.
thus ensued.5
Pitulan fell asleep on the road, only to be awakened later on by successive
gunfire, from which he sustained wounds that caused him to fall unconscious on
For its part, the prosecution presented PO1 De Vera, PO1 Dionisio, and police
the floor of the van. He later woke up in a hospital, where he was told that his
Officer 3 Eric Cortez (PO3 Cortez) as witnesses. The parties stipulated on the
brothers were all dead.17
testimonies of the prosecution's other witnesses, the case investigator and the
medico-legal officer.6
In its January 21, 2013 Decision, 18 the Regional Trial Court convicted Pitulan of
the complex crime of direct assault with murder. It found no dispute that
From their testimonies, the prosecution alleged that on April 20, 2003, the
Pitulan was in the van during the shootout, save for his denial that he
group of PO1 De Vera, PO1 Dionisio, and PO1 Monteroso responded to a report
participated as driver and shooter.19 It gave credence to the eyewitness account
that of a group of armed men aboard a Hyundai van was acting suspiciously
of PO1 De Vera over Pitulan's bare denial. 20
along General Avenue, Barangay Bahay Toro, Project 8, Quezon City. Thus, the
officers, in complete uniform, rode their police mobile patrol to the reported
In ruling that treachery attended PO1 Monteroso's killing, the trial court noted
location.7
that PO1 Monteroso was shot thrice after opening the door opposite the driver's
side, leaving him no opportunity to defend himself. 21 Moreover, since the officer
On their way to General Avenue, the officers saw a van, with plate no. PVY-701,
was killed during the performance of his duties, Pitulan was convicted of the
matching the description of the vehicle they were looking for. They ordered the
complex crime of direct assault with murder. 22
van to halt, but it gave chase instead, until the officers overtook and blocked its
path along Road 20.8
As for the other charges, the trial court found no conspiracy among the van's
passengers who were involved in the shootout. Hence, it acquitted Pitulan of
The officers ordered the riders to step out of the vehicle. When all but the driver
direct assault with attempted murder and direct assault with frustrated murder
complied, PO1 Monteroso opened the door opposite the driver's side to check
against PO1 Dionisio and PO1 De Vera, respectively. 23
on him. However, as soon as he did so, the driver-who was later identified as
Pitulan-shot him thrice on the chest. 9
The Regional Trial Court imposed the penalty of reclusion perpetua for the
complex crime of direct assault with murder. Pitulan was ordered to pay the
Simultaneously, the other van passengers, later identified as Eufemio Pitulan,
heirs of PO1 Monteroso P75,000.00 as civil indemnity ex delicto, moral damages
Sergs Pitulan, Edward Pitulan, Felomino Pitulan, and Augusto Torres, wrestled
of P50,000.00, exemplary damages of P30,000.00, and temperate damages of
with PO1 De Vera and PO1 Dionisio.10 One (1) of them was able to get PO1
P30,000.00, and costs of suit. The dispositive portion of the Decision read:
Monteroso's gun and fired at PO1 De Vera, injuring him in the shootout. 11
WHEREFORE, judgment is hereby rendered finding the accused Glecerio Pitulan
Pitulan then attempted to escape, but on his way, he encountered PO3 Cortez y Briones in Criminal Case No. Q-03-116802 GUILTY beyond reasonable doubt
and his team who was responding to a radio message of the gun battle. 12 of the crime of Direct Assault with Murder and he is hereby sentenced to suffer
the penalty of reclusion perpetua.
PO3 Cortez's team ordered the van to stop and attempted to approach the van.
However, its driver, whom he later identified as Pitulan, opened fire at their Accused Glecerio Pitulan y Briones is hereby further ordered to pay the heirs of
patrol car. The officers fired back and, in the shootout that ensued, hit the van's PO1 Aldy Monteroso y Beltran the following amounts:
left tire. The van hit an island at the intersection of Visayas Avenue and
Congressional Avenue.13 1) Php75,000.00 as civil indemnity;
2) Php50,000.00 as moral damages;
The other van passengers turned out dead in the shootout, 14 leaving Pitulan to 3) Php30,000.00 as exemplary damages;
4) Php30,000.00 as temperate damages; and used in the shooting.37
5) costs of suit.
On the other hand, plaintiff-appellee argues in its Brief 38 that PO1 De Vera's
In Criminal Case No. Q-03-116803 and Criminal Case No. Q-03-116804, testimony was clear and unequivocal, successfully establishing accused-
judgment is hereby rendered ACQUITTING the accused Glecerio Pitulan y appellant's identity as the assailant. Contrary to accusedappellant's claim, the
Briones of the offenses of Direct Assault with Attempted Murder and Direct officer had directly witnessed the shooting because the back of the police
Assault with Frustrated Murder, for lack of evidence. mobile was positioned in front of the van. 39

SO ORDERED.24 Moreover, plaintiff-appellee, citing People v. Fernandez,40 asserts that the

presentation of the murder weapon is not indispensable "when the accused has
Pitulan appealed his case. However, the Court of Appeals, in ·its August 12, 2015
positively been identified."41 Finally, it points out that this Court has rendered
Decision,25 affirmed his conviction. It found the police officers' testimonies clear
both paraffin and ballistic testing inconclusive, citing People v. De
that it was Pitulan who fired successive shots at PO1 Monteroso, the same one
Guzman42 and Lumanog v. People.43
who drove off only to be arrested by PO3 Cortez's team. 26 It also affirmed the
trial court's findings that the killing of PO1 Monteroso was attended with
The issues for this Court's resolution are as follows:
treachery, qualifying the complex crime to direct assault with murder. 27
First, whether or not the prosecution's failure to conduct paraffin and ballistic
The Court of Appeals dismissed Pitulan's contention that in failing to present
testing was fatal in proving the guilt of accused-appellant Glecerio Pitulan y
the gun and conduct paraffin and ballistic testing, the prosecution failed to
Briones; and
prove his guilt beyond reasonable doubt. 28 It held that paraffin testing is
extremely unreliable for not being conclusive as to whether the nitrates came
Second, whether or not accused-appellant was correctly convicted of the
from the discharge of a firearm. 29 Moreover, it stated that the lack of ballistic
complex crime of direct assault with murder.
testing does not affect the evidentiary value of an eyewitness' positive
identification of the assailant, as in this case. 30
This Court sustains accused-appellant's conviction only for the complex crime of
direct assault with homicide.
On September 18, 2015, Pitulan filed his Notice of Appeal. 31 The Court of
Appeals, having given due course to his appeal, elevated the case records to this
The determination of witnesses' credibility is left to the trial courts, which have
Court.32
the unique opportunity to observe their conduct in court. The trial courts'
findings are generally binding on this Court and will not be overturned without
This Court later required the parties to file their supplemental
a showing of any fact or circumstance that was overlooked, misunderstood, or
briefs.33 However, both accused-appellant and plaintiff-appellee People of the
misapplied, which may change the results of a case. If these findings are
Philippines, through the Office of the Solicitor General, manifested that they
affirmed by the Court of Appeals, then all the more will this Court be stringent in
would no longer do so. Instead, they would adopt their Briefs filed before the
applying the rule.44
Court of Appeals.34
Moreover, denial is an inherently weak defense. Absent any clear and
In his Brief,35 accused-appellant alleges that the lower courts erred in convicting
convincing evidence, bare denial will not outweigh an affirmative testimony
him of direct assault with murder despite the prosecution failing to establish his
from a credible witness.45 Without "any showing of ill motive on the part of the
identity as PO1 Monteroso's assailant.36
eyewitness testifying on the matter, a categorical, consistent and positive
identification of the accused prevails over denial and alibi." 46
Expounding on this, accused-appellant claims that PO1 De Vera's eyewitness
account should not have been given credence, as he was behind the police In this case, accused-appellant assailed his conviction allegedly based on
mobile during the shootout and, thus, could not have seen the driver who shot compelling doubt that he was the assailant. However, based on PO1 De Vera's
PO1 Monteroso. He also insists that the prosecution's failure to conduct ballistic testimony, both the Regional Trial Court and the Court of Appeals found that of
and paraffin testing was fatal, as the officers failed to determine whether he the van's passengers, only accused-appellant did not alight when ordered to do
really fired any gun. He also faults the prosecution for failing to present the gun
so. As he was the only one in the van, no other person could have shot PO1 A: They were forced to stop, sir.
Monteroso from inside. PO1 De Vera testified:
Q: Where were they forced to stop, what particular place where (sic) they forced
Q: (Prosecutor Luis Maceren)
to stop?
Mr. Witness, you said that you responded to a shootout. When was this when
A: Along Road 20 in front of House No. 126, sir.
you responded to a shootout?
A: (PO1 Benito De Vera, Jr.) Responded to an alarm, sir.
Q: Where is this Road 20, what city is it located, Mr. Witness?
A: Brgy. Bahay Toro, Project 8, Quezon City.
Q: Alright, responded to an alarm, when was that?
A: April 20, 2003, sir.
Q: Now, Mr. witness, after you said that your driver was able to stop, what
happened when you were able to stop them?
Q: You mentioned that you responded to an alarm, what was that alarm about?
A: We ordered them to get off the van, sir.
A: A Hyundai van was parked with persons inside the van and some were
outside the van with 'may nakabukol' and looking suspiciously, sir.
Q: Where were you when this order for them to alight from the van was made?
A: We also alighted from the Mobile Patrol car, sir.
Q: No[w], Mr. Witness, when you received this alarm, what did you and Mobile
Patrol QC 15 do?
Q: Let us go directly to you, Mr. witness. Where were you then standing at that
A: We proceeded to the place, sir.
time when they were being asked to alight from their van?
A: I was behind our Mobile Patrol car, sir.
Q: By the way, Mr. Witness, you mentioned that your Mobile Patrol QC 15 is a
marked vehicle, could you tell us what was the attire of the group including
Q: What happened when ... who m particular who was ordering the occupants of
yourself at the time that you were in the performance of your duty as a member
the van to alight?
of the mobile group?
A: All of us, sir shouting [at] them to alight from the van.
A: We were in complete uniform, sir.
Q: Then what happened?
Q: You said that you, together with your fellow officers proceeded to or
A: Some alighted but some remained inside the van, sir.
responded to this alarm, where did you proceed to?
A: General Avenue near Road 20, sir.
Q: When some of the occupants [in that] van alighted, what happened then,
while others remained inside the van, what happened then?
Q: Were you able to arrive at this area?
A: We asked those who remain inside the van to also alight from the van, sir.
A: No, sir because we met the van.
Q: When you were asking them to ... those who remain inside to alight, what
Q: Where did you encounter or meet the van?
happened then?
A: Along Road 20, sir.
A: The rest alighted except for one, sir.
Q: Now, when you saw the van along Road 20, what happened then?
Q: When this one person did not alight from the van, what happened next?
A: We chased the van and we asked them to pull over but they did not stop, Sir.
A: We ordered them to raise their hands, sir.
Q: You said that you chased the van and asked them to pull over, how did you
Q: What happened when you asked them to raise their hands?
ask them to pull over?
A: They didn't raise their hands, sir.
A: We sounded the siren, sir.
Q: What did PO1 Alvin (sic) Monteroso do when you said one of the person (sic)
Q: You said that they did not stop, what did you do?
did not alight from the van?
A: Our driver overtook the van, sir.
A: He opened the door of the van on the right sir.
Q: After over taking (sic) the van, what happened then?
Q: By the way, Mr. Witness, where was this person who did not alight from the ....
van seated?
A: At the driver's seat, sir. Q: And while you were already approaching the target area, what transpired
there?
Q: You said that PO1 Alvin (sic) Monteroso opened the van on the right, what do A: While we were approaching Congressional Avenue at the time, we spotted
you mean on the right? the said vehicle, Hyundai van, so we got close to it and after that we ordered the
A: The door on the right side opposite the driver, sir. driver to stop, sir.

Q: What happened then when Officer Monteroso opened the said door? Q: After ordering the driver of that Hyundai van with Plate No. PVT-701 as you
A: That's when he was shot at, sir. said to stop, what is the reaction of the driver, if any to your order?
A: The driver fired [at] our mobile patrol car C-172, sir.
Q: What happened to Officer Monteroso when he was shot at?
A: What I saw was when he was shot at he stepped back and started turning Q: So, after your group was fired upon, what were (sic) you and your
around (nagpaikot-ikot), sir. companions do, if any?
A: We retaliated, and shot the rear left wheel of the said van, Sir.
Q: Who shot at Officer Monteroso?
A: That person, sir. Q: After hitting the rear left wheel as you said of the Hyundai van, what
happened next, if any?
Interpreter: A: The Hyundai van hit an island near the stop light at the intersection of
Witness pointing to a person seated inside the court room when ask (sic) to Visayas Avenue and Congressional Avenue.
identify himsel[f] he gave his name as Glecerio Pitulan.
Q: After the said Hyundai van hit the island near the stop light at the
Q: After Officer Monteroso was shot, what happened then? intersection of Visayas Avenue and Congressional Avenue, what else happened,
A: "Kinuyog niya kami", his gun was taken from them [him], sir. if any?
A: We ordered the driver of the van to surrender. When we were approaching to
Q: You said "kinuyog," what do you mean by "kinuyog," Mr. Witness? (sic) the said vehicle with maximum precaution, the drive of the said van
A: He was attacked and his gun was taken from him, sir. surrendered peacefully and we confiscated to (sic) his possession and control
a .38 revolver sir.48
Q: Who attacked him?
As the trial court aptly noted, there is no dispute as to where accusedappellant
A: The companions of Pitulan, sir.47
was at the time of the incident. He categorically admitted during trial that he
Moreover, PO3 Cortez testified that the driver of the van whom they arrested was inside the van when the shootout happened:
was none other than accused-appellant himself. PO3 Cortez stated:
There is no dispute that there was a gun battle between the group of the police
TSN dated March 21, 2006. officers-complainants and the group of the accused. The accused himself
PO3 Eric Cortez admitted this, in addition to the fact that he and his companions (his four
brothers and one Rudy Pagador and Augusto Torres) were on board a blue
Prosecutor Andres Hyundai Besta/Grace Van, qualifying his statement only by asserting that he
was not driving the said van and he was asleep when he woke up to the sound of
Q: So after receiving that radio message from your radio operator regarding that gunfire, but he never shot at anybody and he lost consciousness, waking up
gun battle and after you were directed to proceed to Road 20, Project 8, Quezon much later already confined in a hospital.49
City, what did you and your companions do, if any?
To this, accused-appellant only denied his involvement in the shooting and
A: We proceeded and while we were approaching Mindanao Avenue we
claimed that he was knocked unconscious from the wounds he allegedly
received a radio message coming from CPD-Pre[c]inct 3 regarding the
sustained. This bare denial, without substantial evidence, cannot controvert the
description of the vehicle.
clear and positive identification of PO1 De Vera that he saw accused-appellant
shoot PO1 Monteroso.

Accused-appellant further assailed his conviction on the ground that the
prosecution failed not only to present the gun in evidence, but also to conduct
paraffin and ballistic testing-ultimately failing to prove that it was he who shot
PO1 Monteroso dead.
These defenses fail. The lower courts correctly convicted accused-appellant for
the killing of PO1 Monteroso.
In People v. Tuniaco,50 this Court held that the presentation of the murder
weapon is not indispensable to prove the corpus delicti, as its physical existence
is not an element of murder. To prove the corpus delicti, the prosecution only
needs to show that: "(a) a certain result has been established ... and (b) some
person is criminally responsible for it." 51
Here, the prosecution was able to fulfill the twin requirements and prove
the corpus delicti. First, it offered in evidence PO1 Monteroso's death
certificate52 showing the cause of his death as "hemorrhagic shock secondary to
a gunshot wound to the chest."53 Second, it established the identity of the
shooter through the clear and positive testimony of PO1 De Vera, a credible
eyewitness. Even without the gun, there is no dispute that the prosecution
sufficiently established the corpus delicti.
Likewise, the Court of Appeals is correct in ruling that paraffin and ballistic
testing are not indispensable to prove accused-appellant's guilt. In De
Guzman,54 this Court discussed that paraffin testing is conclusive only as to the
presence of nitrate particles in a person, but not as to its source, such as from
firing a gun. By itself, paraffin testing only indicates a possibility, not infallibility,
that a person has fired a gun:
In a recent case, we reiterated the rule that paraffin test is inconclusive. We
held: "Scientific experts concur in the view that the paraffin test has ... proved
extremely unreliable in use. The only thing that it can definitely establish is the
presence or absence of nitrates or nitrites on the hand. It cannot be established
from this test alone that the source of the nitrates or nitrites was the discharge
of firearm. The person may have handled one or more of a number of
substances which give the same positive reaction for nitrates or nitrites, such as
explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such
as peas, beans, and alfalta (sic). A person who uses tobacco may also have
nitrate or nitrite deposits on his hands since these substances are present in the
products of combustion of tobacco." The presence of nitrates should be taken
only as an indication of a possibility or even of a probability but not of
infallibility that a person has fired a gun, since nitrates are also admittedly
found in substances other than gunpowder. 55 (Citations omitted)
Similarly, ballistic testing establishes only a likelihood that a bullet was fired
from a specific weapon. By itself, it is not enough to prove when the weapon
was fired and who fired the weapon. In Lumanog,56 this Court held that ballistic
testing, along with the presentation of the weapon and bullets used, are
indispensable if there is no credible eyewitness to the shooting. To sustain a
conviction, it is sufficient that the corpus delicti is established and the
eyewitness, through a credible testimony, identifies the accused as the assailant.
This Court held:
As this Court held in Velasco v. People -
As regards the failure of the police to present a ballistic report on the seven
spent shells recovered from the crime scene, the same does not constitute
suppression of evidence. A ballistic report serves only as a guide for the courts
in considering the ultimate facts of the case. It would be indispensable if there
are no credible eyewitnesses to the crime inasmuch as it is corroborative in
nature. The presentation of weapons or the slugs and bullets used and
ballistic examination are not prerequisites for conviction. The corpus
delicti and the positive identification of accused-appellant as the perpetrator of
the crime are more than enough to sustain his conviction. Even without a
ballistic report, the positive identification by prosecution witnesses is more
than sufficient to prove accused's guilt beyond reasonable doubt. In the instant
case, since the identity of the assailant has been sufficiently established, a
ballistic report on the slugs can be dispensed with in proving petitioner's
guilt beyond reasonable doubt.57 (Emphasis in the original)
Finally, in People v. Casanghay,58 this Court ruled that the absence of paraffin
and ballistic testing is not fatal to the prosecution's case. It has no effect on the
evidentiary value of an eyewitness testimony positively identifying the accused
as the assailant:
The absence of a ballistic examination comparing the bullets fired from the fatal
gun with the deformed slug recovered at the scene of the crime cannot nullify
the evidentiary value of the positive identification of the appellant by
prosecution eyewitnesses. Likewise, the failure of the police to conduct a
paraffin test on the appellant is not fatal to the case of the prosecution. Scientific
experts agree that the paraffin test is extremely unreliable. The only thing that it
can definitely establish is the presence or absence of nitrates or nitrites on the
hand. It cannot be established from this test alone that the source of the nitrates
or nitrites is the discharge of a firearm.59 (Citation omitted)
With the identity of accused-appellant as PO1 Monteroso's assailant established,
the only issue left is whether he was properly convicted of direct assault with
murder.
Every conviction requires that the prosecution prove: (1) the identity of the
accused; and (2) the fact of the crime. The second requirement is fulfilled when
all the elements of the crime charged are present. 60
The essence of treachery is "in the suddenness of the attack by an aggressor on
Article 148 of the Revised Penal Code provides: the unsuspecting victim, depriving the latter of any chance to defend himself [or
herself] and thereby ensuring the commission of the offense without risk to the
Article 148. Direct assaults. - Any person or persons who, without a public
offender arising from the defense which the offended party might make." 64
uprising, shall employ force or intimidation for the attainment of any of the
purposes enumerated in defining the crimes of rebellion and sedition, or shall
For treachery to qualify the killing to murder, the following elements must be
attack, employ force or seriously intimidate or resist any person in authority or
proven: "(1) that at the time of the attack, the victim was not in a position to
any of his agents, while engaged in the performance of official duties, or on
defend himself [or herself], and (2) that the offender consciously adopted the
occasion of such performance, shall suffer the penalty of prision correccional in
particular means, method or form of attack employed by him [or her]." 65
its medium and maximum periods and a fine not exceeding 1,000 pesos, when
the assault is committed with a weapon or when the offender is a public officer
The prosecution was not able to establish the existence of treachery here. After
or employee, or when the offender lays hands upon a person in authority. If
the chase, PO1 De Vera's team ordered the van's passengers to alight and raise
none of these circumstances be present, the penalty of prision correccional in its
their hands. Because the driver, accused-appellant, refused to heed the order,
minimum period and a fine not exceeding 500 pesos shall be imposed.
PO1 Monteroso approached the vehicle to accost him. PO1 Monteroso was a
Direct assault may be carried out in two (2) modes: (1) through committing an fully armed and trained police officer; his training and police work would have
act equivalent to rebellion or sedition, but without public uprising; and (2) prepared him for the possible hostilities that· a person impending arrest may
through employing force and resisting any person in authority while engaged in commit. The previous car chase and accused-appellant's refusal to heed police
the performance of duties. The elements of the second mode of direct assault order should have warned him of a possible violent behavior to evade arrest.
are as follows:
Thus, it is not possible that PO1 Monteroso was in no position to defend himself
Appellants committed the second form of assault, the elements of which are: 1)
at the time of the attack. This Court has held that when a police officer had been
that there must be an attack, use of force, or serious intimidation or resistance
forewarned of brewing violence, he or she could not have been completely
upon a person in authority or his agent; 2) the assault was made when the said
taken by surprise by the attack. In such instance, therefore, treachery could not
person was performing his duties or on the occasion of such performance; and
have attended the killing.66
3) the accused knew that the victim is a person in authority or his agent, that is,
that the accused must have the intention to offend, injure or assault the
Here, without the first element of treachery, the killing of PO1 Monteroso
offended party as a person in authority or an agent of a person in
cannot be qualified to murder. Accused-appellant is, therefore, guilty of the
authority.61 (Citation omitted)
complex crime of direct assault with homicide.
In this case, accused-appellant was identified as the driver of the van and the
shooter who attacked and killed PO1 Monteroso. When the shooting happened, Article 48 of the Revised Penal Code requires that the penalty for a complex
PO1 Monteroso and his team were responding to a report of a suspicious group crime is the maximum penalty of the graver offense. The penalty for homicide
of men aboard a van. He was also in complete uniform and aboard a police is reclusion temporal while the penalty for direct assault is prision correccional.
mobile.62 When accused-appellant shot PO1 Monteroso, he knew that he was a Thus, the proper penalty to be imposed for the complex crime of direct assault
person of authority in the exercise of official duties. Thus, all the elements of with homicide is reclusion temporal, subject to the Indeterminate Sentence Law.
direct assault are present.
Pursuant to People v. Jugueta,67 the civil indemnity awarded to the heirs of PO1
63
In People v. Vibal,  this Court held that when the assault leads to the death of an Monteroso should be decreased to P50,000.00, moral damages retained at
agent or a person in authority, the resulting offense is the complex crime of P50,000.00, and temperate damages increased to P50,000.00. There being no
direct assault with murder or homicide. aggravating or qualifying circumstance proven during trial, the award of
exemplary damages should be deleted.
The lower courts convicted accused-appellant of direct assault with murder.
This Court modifies the conviction to the complex crime of direct assault with WHEREFORE, the findings of fact and conclusions of law of the Court of Appeals
homicide, there being no treachery which qualified the killing of PO1 Monteroso are PARTIALLY REVERSED. The assailed August 12, 2015 Decision of the Court
to murder. of Appeals in CA-G.R. CR-HC No. 06017 is MODIFIED. Accused-appellant
Glecerio Pitulan y Briones is found GUILTY of the complex crime of direct
assault with homicide. He is sentenced to an indeterminate penalty of ten (10)
years and one (1) day of prision mayor, as minimum, to twenty (20) years
of reclusion temporal, as maximum.
Accused-appellant is ordered to pay the heirs of Police Officer 1 Aldy Monteroso
civil indemnity, moral damages, and temperate damages worth P50,000.00
each.
All damages awarded shall be subject to interest at the rate of six percent (6%)
per annum from the finality of this Decision until fully paid. 68
SO OREDERED.
EN BANC
G.R. No. 129069. October 17, 2001
PEOPLE OF THE PHILIPPINES, Appellee, vs. JULIO RECTO y ROBEA, Appellant.
DECISION
PANGANIBAN, J.:
Treachery cannot be appreciated to qualify a killing to murder, if the accused
has not deliberately sought to attack the vulnerability of the victim. In the
present case, the latter evidently had the opportunity to escape or to defend
himself, but chose not to grab the opportunity; instead, he placed himself in a
position more open to attack.
The Case
For automatic review by this Court is the Decision 1 dated April 2, 1997,
promulgated by the Regional Trial Court (RTC) of Romblon (Branch 81), which
found Julio Recto y Robea guilty beyond reasonable doubt of (1) two counts of
the complex crime of qualified direct assault with frustrated homicide (Criminal
Case Nos. 1970 and 1971), (2) the complex crime of qualified direct assault with
murder (Criminal Case No. 1972), and (3) homicide (Criminal Case No. 1973).
The decretal portion of the RTC Decision reads as follows:
WHEREFORE, in Criminal Case No. 1970, this Court finds accused JULIO RECTO
GUILTY beyond reasonable doubt of the complex crime of qualified [d]irect
[a]ssault [w]ith [f]rustrated [h]omicide and hereby sentences him to suffer the
indeterminate penalty of from eight (8) years and one (1) day of prision mayor,
as minimum, to ten (10) years and one (1) day of prision mayor, as maximum,
with the accessory penalties of the law, and to pay the costs.
In Criminal Case No. 1971, this Court finds accused JULIO RECTO GUILTY
beyond reasonable doubt of the complex crime of qualified [d]irect [a]ssault
[w]ith [f]rustrated [h]omicide and hereby sentences him to suffer the
indeterminate penalty of from eight (8) years and one (1) day of prision mayor,
as minimum, to ten (10) years and one (1) day of prision mayor, as maximum,
with the accessory penalties of the law, and to pay the costs.
In Criminal Case No. 1972, this Court finds co-accused JULIO RECTO GUILTY
beyond reasonable doubt of the complex crime of qualified [d]irect [a]ssault
[w]ith [m]urder and hereby sentences him to suffer the supreme penalty of
DEATH. He is ordered to pay the heirs of the victim ANTONIO MACALIPAY the
sum of P50,000.00 as indemnity for his death, without subsidiary imprisonment
in case of insolvency, and to pay the costs.
xxx
In Criminal Case No. 1973, this Court finds co-accused JULIO RECTO GUILTY
beyond reasonable doubt of the crime of [h]omicide and hereby sentences him
to suffer the indeterminate penalty of from eight (8) years and one (1) day
of prision mayor, as minimum, to thirteen (13) years, nine (9) months and ten
(10) days of reclusion temporal, as maximum, with the accessory penalties of
the law, and he is ordered to pay the heirs of the victim EMILIANO RENATO
SANTOS, alias REY, the sum of P50,000.00 as indemnity for his death, without
subsidiary imprisonment in case of insolvency, and to pay the costs.
xxx
The pugakang or homemade shotgun with one (1) live ammunition (Exh. C);
twelve (12) gauge live ammunition (Exh. C-1); the revolver together with the
three (3) live bullets and two (2) empty shells (Exhs. D, D-1 to D-5, respectively)
are confiscated in favor of the government.
After the judgment shall have become final, the [o]fficer-in-[c]harge, Office of
the Clerk of Court, this Court, is ordered to deliver and deposit all the foregoing
exhibits to the [p]rovincial [d]irector, PNP, of the Province of Romblon properly
receipted. Thereafter, the receipt must be attached to any of the records of these
cases and shall form part of these records.
The period of preventive imprisonment both accused had undergone shall be
credited in their favor to its full extent and the penalties herein imposed shall be
served successively in accordance with Articles 29 and 70, respectively, of the
Revised Penal Code, as amended.2crä lä wvirtualibrä ry
On September 22, 1994, four (4) Informations, 3 all signed by State Prosecutor II
Felix R. Rocero, were filed against appellant. The fifth Information was dated
October 18, 1994.
The Informations in Criminal Case Nos. 1970 and 1971 charged appellant with
direct assault with frustrated murder, as follows:
Criminal Case No. 1970
That on or about the 18th day of April 1994, at around 5:00 oclock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, with intent to kill, did then and there, by means of treachery,
wilfully, unlawfully and feloniously attack, assault, and shoot with a shotgun
locally called pugakang one MELCHOR RECTO, knowing that the latter is a duly
appointed [b]arangay [c]hief [t]anod of Ambulong, Magdiwang, Romblon, while
he was engaged in the performance of his official duties, inflicting upon the
latter gunshot wounds in different parts of his body, thus performing all the acts
of execution which should produce the felony of murder as a consequence, but
nevertheless, did not produce it by reason of causes independent of the will of
the accused and that is by the timely and able medical assistance rendered to
the victim which prevented his death.4crä lä wvirtualibrä ry
Criminal Case No. 1971
That on or about the 18th day of April 1994, at around 5:00 oclock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, with intent to kill, did then and there, by means of treachery,
wilfully, unlawfully and feloniously attack, assault, and shoot with a shotgun
locally called pugakang one Barangay Captain PERCIVAL ORBE, knowing that
the latter is a duly elected barangay captain of Ambulong, Magdiwang, Romblon,
while he was engaged in the performance of his official duties, inflicting upon
the latter gunshot wounds in different parts of his body, thus performing all the
acts of execution which should produce the felony of murder as a consequence,
but nevertheless, did not produce it by reason of causes independent of the will
of the accused and that is by the timely and able medical assistance rendered to
the victim which prevented his death.5crä lä wvirtualibrä ry
The Information 6 in Criminal Case No. 1972, which charged appellant with
direct assault with murder, was worded thus:
th
That on or about the 18  day of April 1994, at around 5:00 o clock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this [H]onorable Court, the
said accused with intent to kill, conspiring, confederating and mutually helping
each other, did then and there, by means of treachery, willfully, unlawfully and
feloniously attack, assault and shoot with a shotgun locally called pugakang and
strike with a long bolo, one ANTONIO MACALIPAY, knowing that the latter is a
duly elected [b]arangay [k]agawad of Ambulong, Magdiwang, Romblon, while he
was engaged in the performance of his official duties, inflicting upon the latter
mortal wounds in different parts of his body which were the cause of his
untimely death.7crä lä wvirtualibrä ry
In the Information 8 in Criminal Case No. 1973, appellant was charged with
murder, as indicated hereunder:
That on or about the 18th day of April 1994, at around 5:00 oclock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, with intent to kill, did then and there, by means of treachery,
wilfully, unlawfully and feloniously attack, assault and shoot with a shotgun
locally called pugakang and strike with a long bolo, one EMILIANO RENATO
SANTOS9, alias EMY, inflicting upon the latter mortal injuries in different parts
of his body which were the direct and immediate cause of his
death.10crä lä wvirtualibrä ry
Finally, appellant was charged with illegal possession of firearm and
ammunition in the Information in Criminal Case No. 1975, which we quote:
That on or about the 18th day of April 1994, at around 5:00 oclock in the
afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, with intent to kill, did then and there wilfully, unlawfully and
feloniously have in his possession and under his custody and control, one (1)
handgun locally called pugakang with one live ammunition, which he used in
killing Barangay Kagawad Antonio Macalipay and Emiliano Renato Santos and
[which was] confiscated by the police authorities.11crä lä wvirtualibrä ry
When arraigned on all the five charges on November 24, 1994, appellant, with
the assistance of his counsel, 12 pleaded not guilty. 13 In due course, he was tried
and, thereafter, sentenced.
The Facts
Version of the Prosecution
The Office of Solicitor General summarized the evidence for the prosecution in
this wise: 14crä lä wvirtualibrä ry
In the early afternoon of April 18, 1994 at Ambulong, Magdiwang, Sibuyan
Island, Romblon, Barangay Captain Percival Orbe was in his residence together
with Barangay Kagawad Antonio Macalipay and Barangay Tanod Melchor Recto,
appellants cousin. They were trying to settle a land dispute involving Linda
Rance and Cornelio Regis, Jr. While the meeting was in progress, Orbe was
summoned by SPO4 Fortunato Rafol to proceed to the bodega of Rance.
There, they noticed that the padlock of the bodega was destroyed, and the palay
stored therein, stolen. Forthwith, Barangay Kagawad Macalipay, who happened
to be the chairman of the Barangay Agrarian Reform Committee (BARC),
conducted an investigation.
SPO4 Rafol and SPO1 Male, also made their investigation and reported their
findings to Linda Rance. At this point, Barangay Tanod Melchor Recto passed by.
He saw SPO4 Rafol, Wilfredo Arce, [S]pouses Crestito and Linda Rance at the
bodega. He went to Barangay Captain Orbe and inquired why they were there.
Barangay Captain Orbe told him that the padlock of the bodega was destroyed
and the palay, stolen. Orbe requested Melchor Recto to stay as he might be
needed. Thereupon, Barangay Tanod Melchor Recto began his own ocular
investigation.
While SPO4 Rafol and SPO1 Male were leaving the premises, the group of
[A]ppellant Julio Recto, Cornelio Regis, Jr., Dante Regis, Melvar Relox, Teodoro
de la Serna, Enrica Regis and Nida Regis arrived. The group stopped at the
first trampa near the bodega. Barangay Captain Orbe advised them not to create
trouble, but, Dante Regis pulled a piece of wood and threw it towards them.
Thereafter, [A]ppellant Recto, while holding a balisong or fan knife, approached
Barangay Captain Orbe. The latter responded by telling the former to surrender
the balisong. Appellant stepped backward, opened his jacket and pulled out a
gun, a de sabog. Upon seeing the gun, Barangay Captain Orbe retreated, while
Barangay Kagawad Antonio Macalipay stepped forward with both arms raised
and uttered the words: Do not do it. Well just settle this. (Ayoson ta lang ine).
Julio Recto, however, immediately pulled the trigger, hitting Barangay Kagawad
Macalipay, causing him to fall down on the ground. Then Cornelio Regis, Jr.
approached the fallen Macalipay and flipped his bolo at the latter who rolled
and fell into the rice paddy.
Melchor Recto saw the shooting from his hiding place behind a concrete pillar.
He then ran inside the old dilapidated bathroom of the bodega. Barangay
Captain Orbe also followed. Inside the bathroom, Melchor Recto peeped through
the window and saw [A]ppellant Recto fire his gun at Emilio Santos. Santos also
fired his revolver at appellant and later, turned around and crawled. While
crawling, Santos fired another shot towards Regis, Jr[.], but, the latter was able
to reach and hack the former with a bolo.
Amidst the din, Percival Orbe and Melchor Recto heard [A]ppellant Julio Recto
saying: Where is that kapitan? When Melchor could no longer see Julio Recto, he
jumped out of the bathroom window and ran. While running, Julio Recto shot
him hitting the latters thigh. Barangay Captain Orbe also got out of the
bathroom through the top and landed [o]nto the ricefield. Before he could take a
step, he was also shot by [A]ppellant Julio Recto at his right elbow, but was still
able to continue running and cross the southern portion of the ricefield. He
caught up with the wounded Melchor Recto and both went their separate ways.
On the other hand, both Barangay Kagawad Antonio Macalipay and Emiliano
Renato Santos died due to multiple wounds inflicted on them by herein
appellant. (citations omitted)
Version of the Defense
On the other hand, the trial court presented appellants version of the incident,
as follows: 15
x x x. Julio Recto interposed self-defense and defense of his co-accused Cornelio
Regis, Jr. x x x According to co-accused Julio Recto they were berated at about 12
meters away from the bodega and it was there that the late Emiliano Santos
shot co-accused Cornelio Regis, Jr. and he was hit and he (Julio) retreated two
(2) steps backward. Then, he took two (2) steps forward and said why are you
like that. Alberto Rance, the son of Mrs. Linda Rance, shot him, hitting him on his
left side. He ran towards Alberto Rance who shot him with the latter behind the
concrete porch holding his gun with his two (2) hands resting on the concrete
wall (porch) of the bodega, and with Emiliano Santos also holding his
gun [which] he used in shooting Regis, Jr. The distance between Alberto Rance
and the unarmed Julio Recto was 11 meters when x x x Julio Recto r[a]n towards
Alberto Rance[;] the latter ran and he saw Wilfredo Arce [turn] and [pick] up a
gun and he grabbed the gun and while pulling it, it fired and he did not know
whether it hit somebody. Emiliano Santos incredibly was no longer there to
shoot him. However, Julio Recto was able to take possession of this gun from
Wilfredo Arce, took cover behind a post and still managed to shoot Santos who
was somewhere else. He threw the gun later on the disputed land and ran to the
direction of the banana plantation of Regis, Jr. and he reached his house. Both of
them were outside the house of Regis, Jr. when x x x [M]aritime [P]oliceman
Morada and Galin arrived. x x x. (citations omitted, underscoring in original)
Ruling of the Trial Court
The trial court found that appellant had fired at a barangay tanod, Melchor
Recto, who was at the crime scene on the occasion of the performance of his
official duties. 16 It added that appellant had shot a barangay captain, Percival
Orbe, also on the occasion of the performance of his official
duties. 17crä lä wvirtualibrä ry
The lower court ruled out treachery in the killing of Emiliano Santos, because
there had been a gun duel between him and appellant. However, it convicted
and sentenced appellant to death for the murder of Antonio Macalipay.
Because of the trial courts imposition of the death penalty, this review by the
Supreme Court is mandatory and automatic, without need of a notice of
appeal. 18
Assignment of Errors
In his Brief, appellant faults the court a quo with the following alleged errors: 19
I
The lower court erred in finding the accused-appellant guilty of direct assault in
Criminal Case Nos. 1970 and 1972 which accordingly resulted in his being
convicted of complex crimes in those cases.
II
The lower court erred in finding the presence of the qualifying circumstance of
treachery in Criminal Case No. 1972 which accordingly resulted in his being
convicted of murder in that case.
In the interest of justice and despite appellants anemic Brief, we deem it wise to
review the entire assailed Decision, particularly the crimes imputed and the
penalties imposed by the trial court.
The Courts Ruling
The Decision of the trial court should be MODIFIED.
Self-Defense and Defense of a Relative
Appellant contends that he committed the crimes attributed to him in self-
defense and in defense of his uncle, Cornelio Regis Jr.
By invoking self-defense and defense of a relative, appellant plainly admits that
he killed Antonio Macalipay and Emiliano Renato Santos and fired the shots that
injured Melchor Recto and Percival Orbe. Thus, appellant has shifted the burden
of evidence to himself. Consequently, to escape criminal liability, he must prove,
by clear and convincing evidence, the existence of the essential requisites of
self-defense; namely, (1) unlawful aggression on the part of the victim, (2)
reasonable necessity of the means employed to prevent or repel it, and (3) lack
of sufficient provocation on the part of the person resorting to self-
defense. 20 For defense of a relative 21to prosper, appellant must prove the
concurrence of the first and the second requisites of self-defense and the further
requisite, in case the provocation was given by the person attacked, that the one
making the defense had no part therein. 22crä lä wvirtualibrä ry
Appellant miserably failed to discharge this burden. In fact, he was clearly the
aggressor. Without unlawful aggression on the part of the victim, there can be
no viable self-defense or defense of a relative. 23crä lä wvirtualibrä ry
There is unlawful aggression when the peril to ones life, limb or right is either
actual or imminent. There must be actual force or actual use of weapon. 24 In this
case, Antonio Macalipay was unarmed and actually trying to pacify appellant
when the latter shot him. After shooting Antonio, appellant again cocked his
gun, pointed it at Emiliano Santos and shot him. The latters act of drawing his
gun and firing at him was merely self-defense.
As for Melchor Recto and Percival Orbe, no aggression ever emanated from
them during the entire incident. They were unarmed and in fact already running
away from appellant when he shot them. Clearly, there was no unlawful
aggression from any of the victims.
For purposes of clarity and simplicity, we deem it wise to discuss separately the
crimes attributed to appellant and the proper penalties imposed by the trial
court.
Crime and Punishment
The trial court convicted appellant of four (4) crimes: two counts of the complex
crime of qualified direct assault with frustrated homicide, one count of the
complex crime of qualified direct assault with murder, and one count of
homicide. We will now discuss each of these crimes.
Qualified Direct Assault
with Frustrated Homicide
(Criminal Case Nos. 1970 and 1971)
In these two cases, appellant claims that he did not mind the two victims
because they were not his enemies. He, however, testified that the de sabog gun
had merely misfired and hit them. The court a quo was correct in not giving
credence to his attempt to paint the victims injuries as the result of an accident.
Evidence to be believed must be credible in itself. 25 His weak and incredible
testimony cannot prevail over the positive and categorical testimonies of the
prosecution witnesses stating that he deliberately shot them.
However, the trial court erred in convicting appellant of qualified direct assault
with frustrated homicide.
Direct assault, a crime against public order, may be committed in two
ways:  first, by any person or persons who, without a public uprising, shall
employ force or intimidation for the attainment of any of the purposes
enumerated in defining the crimes of rebellion and sedition; and second, by any
person or persons who, without a public uprising, shall attack, employ force, or
seriously intimidate or resist any person in authority or any of his agents, while
engaged in the performance of official duties, or on occasion of such
performance. 26 The first mode is tantamount to rebellion or sedition, without
the element of public uprising. The second mode, on the other hand, is the more
common form of assault, and is aggravated when: (a) the assault is committed
with a weapon, or (b) when the offender is a public officer or employee, or (c)
when the offender lays a hand upon a person in authority. 27crä lä wvirtualibrä ry
An agent of a person in authority is any person who, by direct provision of law
or by election or by appointment by competent authority, is charged with the
maintenance of public order and the protection and security of life and
property, such as barrio councilman, barrio policeman and barangay leader, and
any person who comes to the aid of persons in authority. 28 In the case at bar,
the victim, Melchor Recto 29 -- being then the barangay chief tanod of Ambulong,
Magdiwang, Romblon -- was clearly an agent of a person in authority. However,
contrary to the findings of the trial court, he was not engaged in the
performance of his official duties at the time he was shot. Neither was he
attacked on the occasion of such performance, as we will now show.
It must be emphasized that Melchor Recto was on his way home when he
happened to pass by the bodega of the Rance couple. He testified as follows:
PROSECUTOR MORTEL:
Q: On April 18, 1994 at around 4:00 oclock in the afternoon, you said you were Melchor did not do anything to avert the tension. He only watched what was
in the ricefield gathering the harvested palay[;] what time did you leave that transpiring and later hid himself when the first shot was fired. He continued:
place?
PROSECUTOR MORTEL continuing:
A: Nearing 5:00 oclock already.
Q: Because of that, what did Orbe tell you as a barangay tanod?
Q: And in going to your house, do you remember if you ha[d] to pass by the
ATTY. MONTOJO:
bodega of Rance?
Leading, Your Honor.
ATTY MONTOJO:
COURT: Leading.
Leading, Your Honor.
PROSECUTOR MORTEL continuing:
COURT:
Q: What else did he say?
Leading.
A: He told me not to leave because he might need me.
PROSECUTOR MORTEL continuing:
Q: And did you remain?
Q: Now, did you go to your house that afternoon?
A: Yes, sir.
A: No, sir.
Q: As you were there, did you observe what [t]he policemen were doing?
Q: Why?
A: I observed [them] going there and through around [sic] the bodega.
A: Because when I pass[ed] in the bodega there were plenty of people.
xxx
Q: Whose bodega are you referring to?
Q: Now later on, do you remember what the policemen did?
A: Rance.
A: I observed that the policemen were already passing the rice paddies towards
Q: Do you know the name of the owner?
the road.
A: Yes, sir.
Q: And after they were gone . . . . By the way, who were these policemen whom
Q: Please give us the name? you observed going towards the road, will you please name them?
A: First owned by Jose Rance now owned by Crestito and Linda Rance. A: SPO4 Fortunato Rafol and Male.
Q: What relation has this Crestito Rance to Jose Rance? Q: Do you know the first name of SPO1 Male?
A: Jose is the father of Crestito Rance. A: No sir.
Q: And this Linda, what relation has she with Crestito Rance? Q: Now, after they were gone, do you remember if there were persons who
arrived?
A: Wife.
ATTY. MONTOJO:
Q: You said, that when you passed by the bodega on your way to your house
there were people in that bodega, please give us [the] names of the people Misleading.
thereat whom you know?
COURT:
A: SPO4 Fortunato Rafol, SPO1 Male, Bgy. Captain Percival Orbe, Kag. Antonio
Leading.
Macalipay, Wilfredo Arce and Spouses Crestito and Linda Rance and those who
were threshing palay thereat.30crä lä wvirtualibrä ry PROSECUTOR MORTEL (continuing):
Melchor explained that when appellants group arrived, it was Barangay Captain Q: After they were gone, what happened?
Percival Orbe and Kagawad Antonio Macalipay who talked to the group.
A: I saw Cornelio Regis, Jr., Julio Recto, Melver Relox, Dante Regis, Teodoro dela Witness standing and demonstrating.
Serna, Nida Regis, Enrica Regis. I saw these seven (7) passing through the rice
PROSECUTOR MORTEL continuing:
paddies towards the bodega.
Q: And when the gun was pointed to Kagawad Antonio Macalipay, what did
xxx
Antonio Macalipay do?
PROSECUTOR MORTEL continuing:
A: He raised both hands.
Q: Were these group of people able to reach the bodega?
INTERPRETER:
A: No, sir.
Witness demonstrating by raising his two (2) arms up with open palms as if in
Q: Why? surrender, and said [D]o not do it we will just settle this.[]
A: They stopped on the first trampa that they reached. PROSECUTOR MORTEL continuing:
Q: And upon reaching that place, what happened? Q: And after Macalipay had said that, what happened?
A: Dante Regis thr[e]w a piece of wood. A: Julio Recto shot him.
Q: Going to what direction? Q: And what happened to Macalipay after being shot?
A: Towards the bodega. A: Antonio Macalipay fell down backward.
Q: And when Dante Regis thr[e]w that piece of wood towards the direction of INTERPRETER:
the bodega, what happened?
Witness demonstrating x x x fall[ing] backward.
A: The barangay captain, Percival Orbe, approached them and told them not to
PROSECUTOR MORTEL continuing:
do it.
Q: And when you saw Antonio Macalipay fall down backward, what did you do?
Q: And what did you observe . . . . By the way, who was that barangay captain?
A: I hid behind a pil[l]ar?
A: Orbe.
xxx
Q: And what did you observe when [B]arangay [C]aptain Orbe [told] them not to
do it? Q: After hiding behind the pil[l]ar, what did you do?
A: I observed that the group got angry so Percival Orbe retreated. A: I ran towards an old broken down bathroom. x x x.31crä lä wvirtualibrä ry
Q: And when Percival Orbe approached the group, did he have any companion? Thinking that appellant had already left the bodega, Melchor, while hiding inside
the old bathroom for several minutes, decided to jump out of a broken down
A: Yes, sir.
window 32and ran towards the national road. 33crä lä wvirtualibrä ry
Q: Who?
Clearly, from his arrival at the scene of the crime to his departure therefrom,
A: Kagawad Antonio Macalipay. Melchor was not engaged in the performance of his official duties. Neither was
he attacked on the occasion thereof.
Q: And when Percival Orbe retreated, what did Antonio Macalipay do?
This fact was corroborated further by the testimony of Linda Rance, who said
A: When the barangay captain retreated, Antonio Macalipay proceeded towards
that it was Orbe and Macalipay who had pacified appellant and his six
the group and stop[ped] at the second trampa coming from the bodega.
companions. She testified thus:
Q: Now, when you reached that place of the second trampa, what happened?
PROSECUTOR VICTORIANO continuing:
A: Julio Recto raised his jacket and pulled out a gun and pointed it to Antonio
Q: While they were discussing, what happened?
Macalipay.
A: When they were discussing, Dante Regis thr[e]w a piece of wood.
INTERPRETER:
Q: To what direction was that piece of wood thr[own] by Dante Regis?
A: Going towards our group.
Q: And how is this Dante Regis related to Cornelio Regis, Jr.?
A: He is the son of Cornelio Regis, Jr.
Q: When that piece of wood was thrown towards your direction, was somebody
hit?
A: No, sir.
Q: Where did that piece of wood land?
A: In front of our bodega.
Q: Was there anything hit by that piece of wood?
A: No, sir.
Q: When that piece of wood was thrown, what followed next?
A: They were already agitated.
Q: Now, because of the agitation, what happened?
A: Bgy. Captain Orbe was trying to pacify them.
Q: What about Bgy. Kagawad Antonio Macalipay, what did he do?
A: He was trying to pacify but they would not be pacified.
Q: Now, when they refused to be pacified, what did Julio Recto do?
A: Julio Recto turned his way (witness turning to her left side) and open[ed] his
jacket and drew a gun.
Q: When Julio Recto drew his gun, what did Antonio Macalipay do?
A: Antonio Macalipay said, [L]et us settle this (witness raising x x x both [of her]
hands) and do not do it. (at the same time raising x x x both [of her] hands as if
in surrender[)].
INTERPRETER:
Witness demonstrating.
PROSECUTOR VICTORIANO continuing:
Q: Now, [in] spite of what Barangay Kagawad Antonio Macalipay did, what
happened?
A: Julio Recto shot him once.34crä lä wvirtualibrä ry
Unquestionably, Melchor Recto was a barangay chief tanod; however, at the
crime scene he was a mere bystander. Apparently, he was not acting and had no
occasion to act in the performance of his official duties that afternoon. Thus, the
attack on him did not amount to direct assault. 35crä lä wvirtualibrä ry
We now determine the criminal liability of appellant with respect to the attack.
He shot Melchor only once, but the latter sustained five gunshot entry
wounds 36all located at his backside, at the vicinity of his buttocks. Because the
gun used by the former was a de sabog, 37 each bullet contained several pellets
inside. 38 In other words, a single shot from a de sabog results in the spewing of
several pellets. The nature of the weapon used for the attack and the direction
at which it was aimed -- the victims back -- unmistakably showed appellants
intent to kill.
However, for reasons other than his own desistance, appellant was not able to
perform all the acts of execution necessary to consummate the killing, since the
wounds he inflicted were not mortal. In United States v. Eduave, 39 this Court has
held that if the wounds would not normally cause death, then the last act
necessary to produce homicide has not been performed by the offender. Thus,
appellants liability amounted only to attempted, not frustrated, homicide.
The penalty that is lower by two degrees 40than that prescribed by law for
consummated homicide shall be imposed upon appellant. After applying the
Indeterminate Sentence Law, it shall be taken from the medium period, since
there were no aggravating or mitigating circumstances proven.
In Criminal Case No. 1971, the trial court was correct in ruling that the attack on
Percival Orbe then a barangay captain, a person in authority 41 -- amounted to
qualified direct assault, because he was attacked on the occasion of the
performance of his duty. At the time, he was attempting to pacify appellant and
to keep the peace between the two groups.
A felony is frustrated when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator. In this
case, the nature of the weapon used by appellant unmistakably shows that he
intended to kill Orbe. However, like the wounds inflicted by the accused on
Melchor Recto, those on Orbe were not fatal.
As evidenced by the Medico-Legal Certificate 42prepared by Dr. Ramon D.
Villanueva of the Romblon Provincial Hospital and the testimony given by Dr.
Giovannie C. Fondevilla of the same hospital, Orbe sustained several gunshot
wounds in the vicinity of his right elbow. Those injuries could not have caused
his death. Moreover, according to Dr. Fondevilla, no surgical intervention was
required; only medication was given to him 43 to prevent any secondary
infection from setting in. 44crä lä wvirtualibrä ry
Evidently, appellant had not yet been able to perform all the acts of execution
necessary to bring about the death of Orbe, because the latter was able to run
away after being fired at. Although appellant had already directly commenced
the commission of a felony by overt acts (shooting Orbe with a de sabog), he was
not able to consummate that felony for some reason other than his spontaneous
desistance. Thus, he committed attempted homicide.
Given these circumstances, appellant should therefore be convicted of the
complex crime of qualified direct assault with attempted homicide. To be
imposed therefor should be the penalty for the most serious crime -- in this case
qualified direct assault -- the same to be imposed in its maximum period. 45 The
Indeterminate Sentence Law should also be applied in this case.
Qualified Direct Assault with Murder
(Criminal Case No. 1972)
In Criminal Case No. 1972, appellant does not question the finding of the trial
court that he shot Antonio Macalipay. However, he submits that it erred in
finding the presence of the qualifying circumstance of treachery. We agree.
First , the victims companions outnumbered those of appellant. As shown by the
pleadings and records of the case, his group consisted of seven individuals; the
victims, sixteen. 46crä lä wvirtualibrä ry
Second , the heated confrontation on April 18, 1994 arose as a consequence of
an earlier judgment 47of the trial court in favor of appellants group. This case
strained the relations of the parties who, after all, were related by blood and
marriage. In fact, prior to this event, appellant -- believing that his uncle
Cornelio Regis Jr. should get the landlords share of the palay or rice harvest --
attempted to harvest the fields thrice: (1) in October 1993; (2) in December
1993; and, (3) in March 1994. 48 All of these attempts failed, because Linda
Rance hired a group of bodyguards headed by the victim, Emiliano Renato
Santos. 49 In short, the confrontation was not totally unexpected.
Third, both groups were armed. The exchange of gunfire was substantiated by
the Medico-legal Certificates presented by both the prosecution and the
defense. 50 Moreover, the deceased Santos carried a gun which Alberto Rance,
son of Crestito and Linda, had given him for his protection. 51crä lä wvirtualibrä ry
Fourth, appellants group asked the police station commander to assemble the
workers of the disputed rice field on April 15, 1994 at the Municipal Building of
Magdiwang, Romblon, to inform them of the trial courts Decision awarding the
land to Cornelio Regis Jr. For this reason, the members of the group were to
start collecting the landlords share of the harvest starting April 18,
1994. 52crä lä wvirtualibrä ry
Fifth, appellant was seen holding a balisong or fan knife during the heated
confrontation, before he pulled out the shotgun and pointed it at the other
group. 53 Macalipay, in a bold yet foolish attempt, stepped forward in front of
appellant and told him: Ayosan ta lang ini? 54 (No, dont, because we will just
settle this). 55 And [s]imultaneously with the last word in the phrase []dont
because we will just settle this,[] 56 appellant fired his gun, killing the victim.
Evidently, the victim had all the opportunity to escape or defend himself from
the aggression that was to ensue, yet chose not to grab the opportunity and
instead placed himself in a position more open to attack. 57 Equally important,
his vulnerable position had not been deliberately sought by appellant. It was
thrust on the latter by the former himself. In short, appellant did not
deliberately choose the mode of attack to kill the victim with impunity and
without risk to himself.
Jurisprudence teaches us:
Treachery does not exist [when] the evidence does not show that appellant
deliberately adopted a mode of attack intended to ensure the killing of [the
victim] with impunity, and without giving the victim an opportunity to defend
himself. Further, the shooting took place after a heated exchange of words and a
series of events that forewarned the victim of aggression from appellant. In this
case, it appears to have occurred on sudden impulse but preceded by acts of
appellant showing hostility and a heated temper that indicated an imminent
attack and put the deceased on guard. 58crä lä wvirtualibrä ry
If the decision to kill was sudden, there is no treachery, even if the position of
the victim was vulnerable, because it was not deliberately sought by the
accused, but was purely accidental.59crä lä wvirtualibrä ry
"When there is no evidence that the accused has, prior to the moment of the
killing, resolved to commit the crime, or there is no proof that the death of the
victim was the result of meditation, calculation or reflection, treachery cannot
be considered."60crä lä wvirtualibrä ry
Section 16 of Article 14 of the Revised Penal Code states that there is treachery
when the offender commits any of crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the defense which the
offended party might make.
In this case, appellant was out in the open during the entire span of time from
the heated discussion, to the brewing of the violence, and up to the shooting of
Macalipay. At the time, his every action, which indicated the imminence of more
violence, was visible to them -- to the victim and the latters companions.
Appellant was actually vulnerable to any attack that they could have made at the
time, had they chosen to. His mode of attack was therefore not without risk to
himself. Absent treachery, the killing is homicide, not murder.
Considering that Antonio Macalipay was a kagawad who was in the actual
performance of his duties when he was shot, the attack on him constituted
direct assault.
Applying the provisions of Articles 148 (direct assault), 249 (homicide) and 48
(penalty for complex crimes), appellant should be held liable for the complex
crime of qualified direct assault with homicide. The penalty to be imposed on
him should be for homicide, which is the more serious crime, to be imposed in
the maximum period. This penalty shall comprise the maximum of his
indeterminate sentence, and the minimum shall be within the range of the
penalty next lower than that prescribed for homicide.
Homicide (Criminal Case No. 1973)
We sustain appellants conviction for homicide in Criminal Case No. 1973
because, in the words of the trial judge: The late Emiliano Santos was only
beaten to the draw by co-accused Julio Recto. It was a gun duel between the
two. 61 In his Brief, appellant hardly disputed this holding. Neither do we. The
maximum of the penalty imposed by the court a quo in this case was, however,
taken from the minimum period of the penalty for homicide. Considering that
no mitigating or aggravating circumstances were proven, the maximum of the
indeterminate sentence in this case should be taken from the medium period.
WHEREFORE ,the Decision dated April 2, 1997, issued by the Regional Trial
Court of Romblon, is hereby MODIFIED as follows:
First, in Criminal Case No. 1970, appellant is hereby CONVICTED of attempted
homicide and sentenced to suffer imprisonment for an indeterminate penalty of
four (4) months of arresto mayor as minimum, to four (4) years and two (2)
months of prision correccional as maximum.
Second, in Criminal Case No. 1971, appellant is hereby CONVICTED of the
complex crime of qualified direct assault with attempted homicide and is hereby
sentenced to suffer an indeterminate penalty, of six (6)months of arresto
mayor as minimum, to six (6) years of prision correctional as maximum.
Third, in Criminal Case No. 1972, appellant is hereby CONVICTED of qualified
direct assault with homicide aggravated by the use of a weapon and is
sentenced to suffer an indeterminate penalty of twelve (12) years of prision
mayor as minimum, to twenty (20) years of reclusion temporal as maximum.
We AFFIRM the award of P50,000 as indemnity ex delicto.
Fourth , in Criminal Case No. 1973, the trial courts judgment convicting
appellant of homicide and awarding to the victims heirs an indemnity ex
delicto of P50,000 is AFFIRMED; but the maximum of the penalty imposed is
increased to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal.
All other portions of the trial courts disposition that were not modified in the
above pronouncement are deemed AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 138553               June 30, 2005
ENRIQUE "TOTOY" RIVERA Y DE GUZMAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
GARCIA, J.:
Assailed and sought to be set aside in this petition for review on  certiorari are
the October 16, 1998 decision1 and April 5, 1999 resolution2 of the Court of
Appeals in CA-G.R. CR No. 17284, which respectively affirmed in toto an earlier
decision of the Regional Trial Court of La Trinidad, Benguet convicting herein
petitioner Enrique "Totoy" Rivera of the crime of direct assault, and denied
petitioner’s motion for reconsideration.
On May 6, 1993, in the Regional Trial Court at La Trinidad, Benguet an
information3 for direct assault was filed against petitioner, allegedly committed,
as follows:
That on or about the 20th day of March, 1993, at Tomay, Shilan, Municipality of
La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and feloniously attack, employ force and seriously resist one Lt.
EDWARD M. LEYGO, knowing him to be a policeman, by then and there
challenging the latter to a fistfight and thereafter grappling and hitting the said
policeman on his face, thus injuring him in the process while the latter was
actually engaged in the performance of his official duties.
Contrary to law.
On arraignment, petitioner entered a plea of "Not Guilty." Thereafter, trial
ensued.
To prove its case, the prosecution presented in evidence the testimonies of the
victim himself, Lt. Edward Leygo, and the two alleged eyewitnesses to the
incident, SPO1 Jose Bangcado and Brenda Dup-et. For its part, the defense
presented the petitioner himself and one Alfredo Castro.
As summarized by the trial court and adopted by the Court of Appeals in the
decision herein assailed, the People’s version4 is, as follows:
On March 20, 1993 at around 8:00 o’clock in the evening, Police Inspector
Edward M. Leygo, Deputy Chief of Police for Operation and Patrol of the La
Trinidad Police Station, La Trinidad, Benguet and SPO1 Joseph Basquial were
conducting routinary patrol on board a police car somewhere in Shilan, La
Trinidad, Benguet when they came upon a truck unloading sacks of chicken
dung at the stall of accused Enrique "Totoy" Rivera which was located along the
Halsema Highway at Shilan, La Trinidad, Benguet. Inspector Leygo advised the
driver to stop unloading the manure as it violates La Trinidad Municipal
Ordinance No. I-91 (Exhibit "C") which prohibits, among others, the loading and
unloading of chicken manure along the sidewalks or road shoulders or within
15 meters from the center of the Halsema Highway located at La Trinidad,
Benguet. The driver complied with the police directive. The policemen then
escorted the truck back to Poblacion, La Trinidad, Benguet and proceeded to the
police headquarters.
Not long after, SPOI Jose Bangcado and SPOI Rivera Dayap, members of the La
Trinidad Police under Inspector Leygo were conducting patrol aboard a police
car somewhere at Km. 6, La Trinidad, Benguet when they observed a truck
loaded with chicken dung proceeding towards Shilan, La Trinidad, Benguet.
Having in mind the instructions of La Trinidad Mayor Edna C. Tabanda and their
Commanding Officer Inspector Leygo to Implement Ordinance No. I-91, the two
policemen followed and stopped the truck at Cruz, La Trinidad, Benguet.
Immediately they called Inspector Leygo on the radio and informed him that
they stopped a truck carrying chicken dung. Inspector Leygo ordered them to
restrain the truck, as he would be proceeding to the area.
Knowing that the truck being restrained by the two policemen was the same
truck which they had escorted earlier from Shilan, La Trinidad, Benguet,
Inspector Leygo felt ignored and insulted. He immediately called SPO4 Justino
Tiwtiwa, SPO1 Baldwin Ngolab and SPO1 Joseph Basquial and the group sped to
Cruz, La Trinidad, Benguet.
Meanwhile, back at Cruz, La Trinidad, Benguet, the accused arrived before the
group of Inspector Leygo did and ordered the driver not to obey the policemen
but instead obey him, as he (accused) was the boss. The truck driver followed
the accused’s order and drove the truck towards Shilan, La Trinidad, Benguet
with the accused following closely behind in his vehicle.
Inspector Leygo and his group arrived in time to see the truck pulling away and
so they gave chase. The police were able to overtake and stop the truck at
Dengsi, Tomay, La Trinidad, Benguet. Inspector Leygo confronted the truck
driver and asked him why he still insisted on proceeding to Shilan to unload
chicken manure despite the fact that he was ordered to go back earlier in the
evening. The truck driver stated that he was just following the orders of the
accused. Immediately, Inspector Leygo turned around to see the accused who
had at that time alighted from his vehicle behind the truck. Inspector Leygo
asked the accused why he insisted on defying the ban on the unloading and
loading of chicken manure. Instead of answering however, the accused pointed
a finger on the policeman and uttered words like "Babalian kita ng buto" (I’ll
break your bones). "Ilalampaso kita" (I’ll scrub you). "Pulis lang kayo" (you are
only policemen) and other unsavory and insulting words. Inspector Leygo who
was a little bit angry warned the accused to stop uttering further insulting
words and cautioned him to take it easy and then informed him that he was
being arrested for violation of the chicken dung ordinance. The accused
removed his jacket, placed it inside the vehicle, assumed a fighting stance and
challenged the policeman. Inspector Leygo then approached the accused and
warned him anew that he was being arrested. The accused responded by
punching Inspector Leygo on his face, particularly on his lip. The two then
grappled as Inspector Leygo tried to hold the accused. Finally, with the help of
Policemen Dayap and Bongcado, the accused was subdued. The accused was
then pushed into one of the police cars but he resisted until Alfredo Castro, one
of the chicken dung dealers in the area, boarded the police car to accompany
him.
The accused was brought to the police headquarters where Inspector Leygo
immediately called Mayor Tabanda who arrived at about 10:00 o’clock that
same evening. She confronted the two protagonists and at the same time
admonished the accused for violating Ordinance No. I-91. Mayor Tabanda then
accompanied the accused and Inspector Leygo to the Benguet General Hospital
where both were examined by Dr. Antonio T. Carino. In the medico-legal
certificate (Exhibit "A") of Inspector Leygo, his injury described as "contusion
with 0.5 laceration, upper lip, left side" with healing period from 5 to 7 days.
Subsequently, this present case was filed against the accused.
Reproduced from the same decision of the appellate court, the defense’s
version5 runs:
At about 8:00 o’clock in the evening of March 20, 1993, while the accused was at
the Trading Post at Km. 5, La Trinidad, Benguet, the driver reported to him that
he was prevented by the police from unloading chicken manure at Shilan, La
Trinidad, Benguet. The accused reminded the driver that he should have
brought the chicken manure to Acop, Tublay, Benguet where dealers sell it
when prevented from unloading within the municipality of La Trinidad,
Benguet. As it would be more expensive to return the chicken dung to Batangas
where it came from, the accused told the driver to bring the chicken dung to
Acop, Tublay, Benguet. The driver expressed his fear that the police might stop
him along the way and so the accused ordered the driver to proceed and gave
him the assurance that he (accused) would follow later.
The truck then proceeded as instructed and the accused following after a short
while. Arriving at Cruz, La Trinidad, Benguet, the accused noticed that the truck
was stopped at the side of the road while a police vehicle and three policemen
were across the road. Thinking that the policemen were there trying to extort
money from the driver, the accused told the truck driver to proceed. The truck
driver complied and the accused tailed along.
When the truck and the accused reached Dengsi, Tomay, La Trinidad, Benguet,
he heard a police siren from behind. Immediately, a police vehicle overtook the
truck, another police vehicle was running along side the accused’s vehicle and a
third police vehicle was right behind them. Thus, the truck and the accused had
no recourse but to stop.
Inspector Leygo alighted from one of the police vehicles and angrily uttered so
many words at the accused. The policeman then held the collar of accused’s
jacket and forced the latter to get out of his vehicle while shouting "Ang tigas ng As stated at the outset hereof, the appellate court, in its decision 7 of October 16,
ulo mo. Sige, bumunot ka." (You are very stubborn. Go ahead, draw your gun.) 1998, affirmed in toto that of the trial court, to wit:
The accused explained that he had no gun to draw while removing his jacket
WHEREFORE, premises considered the decision appealed from is hereby
and raising his hands to show that there was no gun on his body. Inspector
affirmed in toto.
Leygo then held the left hand of the accused and tried to put handcuffs on him.
The accused tried to resist, pleading that he had no fault and at the same time SO ORDERED,
asking what infraction of law he committed. Inspector Leygo answered by
and denied petitioner’s motion for reconsideration in its resolution of April 5,
uttering insulting words and pointing his left forefinger on the accused’s face
1999.8
while his right hand was poking a gun on the accused. The accused noticed that
the policeman smelled of liquor. Hence, this petition for review on certiorari, submitting for our consideration
the principal issue of whether or not the Court of Appeals erred in affirming the
A crowd started to gather around the scene. Sensing that the onlookers were on
judgment of conviction rendered by the trial court.
his side, the accused stated that he was going to get his camera inside his
vehicle. As he was opening the door, Inspector Leygo suddenly slapped and We AFFIRM.
boxed him in the stomach causing the accused to feel dizzy. This assault
Direct assault, a crime against public order, may be committed in two
weakened him and so he did not resist when the police pushed him inside the
ways: first, by any person or persons who, without a public uprising, shall
police vehicle. Inspector Leygo then ordered his men to bring the accused to the
employ force or intimidation for the attainment of any of the purposes
police headquarters. The accused recognized Alfredo Castro among the
enumerated in defining the crimes of rebellion and sedition; and second, by any
onlookers and because he (accused) knew him to be one of the chicken dung
person or persons who, without a public uprising, shall attack, employ force, or
dealers, asked him (Castro) to accompany him to the police headquarters for
seriously intimidate or resist any person in authority or any of his agents, while
fear that something might happen.
engaged in the performance of official duties, or on occasion of such
At the police station, the accused suggested that Inspector Leygo should performance.9
undergo medical examination to determine if the policeman was positive of
Unquestionably, petitioner’s case falls under the second mode, which is the
alcoholic breath. The accused, however, was examined ahead and was issued a
more common form of assault and is aggravated when: (a) the assault is
medical certificate (Exhibit "4") which described his injury as "erythema, lip left
committed with a weapon; or (b) when the offender is a public officer or
side face" and "contusion-midepigastric area". The healing period is from 3 to 5
employee; or (c) when the offender lays hand upon a person in authority. 10
days. With him sustaining this injury, the accused now wonders why this charge
was filed against him. In this recourse, petitioner argues that the appellate court, like the trial court,
erred in finding the testimony of complainant Lt. Leygo as clear and convincing.
After weighing the parties’ respective versions of the incident, the trial court
In an attempt to impugn the latter’s credibility, petitioner contends that Lt.
found that of the People more credible. Accordingly, in its decision of April 22,
Leygo was mumbling while giving his testimony, adding that the latter failed to
1994,6 it convicted petitioner of the crime of direct assault and sentenced him,
identify which of his (petitioner) hands was used and the precise distance
thus:
between them when he punched the police lieutenant.
WHEREFORE, the guilt of the accused having been proven beyond reasonable
Admittedly, the record shows that the trial judge had to call Lt. Leygo’s attention
doubt, the Court hereby renders judgment finding the accused Enrique "Totoy"
for testifying in such a low voice while on the witness box. Evidently, however,
Rivera GUILTY and sentences him to suffer an indeterminate penalty of Four (4)
this did not prevent the trial court into believing his testimony and from
Months and One (1) Day of arresto mayor as MINIMUM to One (1) Year, One (1)
according it full faith and credit. As it is, the witness was able to narrate and
Month and Eleven (11) Days of prision correccional as MAXIMUM. He is likewise
communicate the events that transpired. Both the trial court and the Court of
ordered to pay a fine of FIVE HUNDRED PESOS (P500.00) and to pay the costs.
Appeals found the witness to have clearly and adequately recounted how the
SO ORDERED. incident happened, and we find no valid reason to discredit the truth and
veracity of his narration. We quote:
With his motion for reconsideration having been denied by the trial court,
petitioner then went on appeal to the Court of Appeals whereat his recourse Q Now, you said that Mr. Rivera faced you, when he faced you after he
was docketed as CA-G.R. CR No. 17284. removed his jacket what did you do?
A He positioned himself in a fighting stance, sir.
 Q What do you mean "in the fighting stance"?
A He raised his fist. (Witness raised his hands with his clenched fist in
front of him).
Q How about you, what did you do when Mr. Rivera did that?
A I informed him that I am arresting him.
Q How far were you when he faced you at first?
A At first before I went near him is about 6 feet, sir.
Q Now, you said you approached him, is that correct?
A Yes, sir.
Q What did you do when you approached him?
A I told him that I am arresting him, sir.
Q And what was his response?
A He punched me at my face, sir.
Q You said he punched you, with what hand did Mr. Rivera punch you?
A I think it is his left hand, sir.11
Nor is Lt. Leygo’s credibility any less diminished by the circumstance that he
failed to categorically identify which of petitioner’s hands was used in punching
him, and the exact distance between them at that time. In all likelihood, this
police officer was not expecting a physical attack by the petitioner as he was just
confronting the latter about the prohibited unloading of chicken dung when
petitioner laid hand on him. Under this scenario, any person, like Lt. Leygo,
cannot be expected to remember every single detail of the incident with perfect
recall.12 For sure, far from adversely affecting Lt. Leygo’s credibility, his failure
to recall every minute detail of what transpired even fortifies it. We have thus
held that the failure of a witness to recall each and every detail of an occurrence
may even serve to strengthen rather than weaken his credibility because it
erases any suspicion of a coached or rehearsed testimony. 13 What is vital in Lt.
Leygo’s testimony is the fact that petitioner punched him on his face, about
which he was steadfast and unflinching.
In any event, this Court has said time and again that the assessment of the
credibility of witnesses and their testimonies is best undertaken by the trial
court, what with reality that it has the opportunity to observe the witnesses
first-hand and to note their demeanor, conduct, and attitude while testifying. Its
findings on such matters, absent, as here, of any arbitrariness or oversight of
facts or circumstances of weight and substance, are final and conclusive upon
this Court and will not to be disturbed on appeal.14
Petitioner also asserts that the testimonies of prosecution witnesses SPO1 Jose
Bangcado and Brenda Dup-et did not corroborate Lt. Leygo’s testimony. For,
while SPO1 Bangcado merely testified during direct examination that petitioner
punched Lt. Leygo, this witness failed to reiterate said testimony during cross-
examination. As regards prosecution witness Brenda Dup-et, petitioner alleged
that this witness never testified that petitioner boxed Lt. Leygo.
The imputed shortcomings in the testimonies of said two (2) prosecution
witnesses are not of their own making. A witness is supposed to confine his
answers only to questions propounded of him. Here, the defense counsel
focused his line of questioning on what the two protagonists were doing
immediately prior to the punching incident, and the answer correctly received
by counsel was that both petitioner and Leygo were pushing each other. There
is no showing that counsel asked the witness as to what happened after the
pushing incident, as what the public prosecutor did of SPO1 Bangcado during
the latter’s direct examination, to wit:
PROS. BOTENGAN:
Q And what happened when they faced each other?
A Totoy Rivera was shouting at Lt. Leygo, sir.
Q What was he shouting?
A "Bakit ninyo ako tinutugis, hindi ako criminal. Magbabayad kayo rito.
Hindi ninyo ako kaya, pulis lang kayo." And some other words but I
cannot remember them all, sir.
Q What else, if any, did he say?
COURT:
He said he cannot remember the other words.
WITNESS:
There is one thing more, sir. "Ilalampaso kita. Babalian kita ng buto."
And others, sir.
PROS. BOTENGAN:
Q To whom was Mr. Rivera saying this?
A To Lt. Leygo, sir.
Q What was Mr. Rivera doing when he said these?
A He was pointing to the face of Lt. Leygo and they are becoming closer
and closer with each other, sir.
Q At that time, what was Lt. Leygo doing?
 A What I saw was they were pushing to one another and after that
Totoy Rivera boxed Lt. Leygo, sir.
Q You said they were pushing one another, what part of their body
were they holding?
A At the breast, sir.
Q So each one was holding each other’s breast, is that what you mean?
A Yes, sir.
Q How long did they push each other?
A Seven to ten seconds, sir.
Q And was Lt. Leygo saying anything?
A He was trying to arrest Totoy Rivera, sir.
Q You said that he was trying to arrest Totoy Rivera, did you hear him if
he says anything?
A He was convincing Totoy Rivera to go to the Municipal Hall, sir.
Q You said Totoy Rivera boxed Lt. Leygo, what part of the body of Lt.
Leygo was hit?
A His face, sir.
Q What part of his face?
A Here, sir. (Witness referring to his lower lip. Witness is holding his
lower lip).
Q What happened when Lt. Leygo was hit?
A He ordered us to arrest Totoy Rivera, so were able to subdue Totoy
Rivera and placed him in the car, sir.15
But even assuming, in gratia argumente, that Lt. Leygo’s testimony was not
corroborated by the two (2) other prosecution witnesses during their cross-
examinations, still the day cannot be saved for the petitioner. Well-settled is the
rule in this jurisdiction that the testimony of a single witness, if straightforward
and categorical, is sufficient to convict. After all, witnesses are weighed, not
numbered, and evidence are assessed in terms of quality, not quantity. It is not
uncommon, then, to reach a conclusion of guilt on the basis of the testimony of a
lone witness. Corroborative evidence is deemed necessary only when there are
reasons to warrant the suspicion that the witness falsified the truth or that his
observations had been inaccurate.16 Unfortunately for the petitioner, the trial
court found nothing to indicate that Lt. Leygo falsified the truth or that his
observations had been inaccurate.
Petitioner theorizes that he could not have hit Lt. Leygo, what with the
circumstance that his co-policemen were present at the scene of the incident,
and he finds it unusual that none of them retaliated if he really hit Lt. Leygo.
We are not persuaded. The evidence on record clearly bears out that it was Lt.
Leygo who was attacked by petitioner, not the other way around, as petitioner
would want us to believe. Both the witnesses for the prosecution and the
defense are one in saying that it was only petitioner who was in confrontation
with Lt. Leygo. Evidently, petitioner’s anger started to burst when the truck
driver reported to him that Lt. Leygo prohibited the unloading of the chicken
dung and ordered him to return, such that when the same delivery truck was
again intercepted by Lt. Leygo’s group, petitioner’s anger was too much for him
to contain. We quote with approval what the trial court has said in its decision:
The accused, however, denies that he ever laid hands on the cop. But the bigger
question is, how then did the policeman sustain his injuries? It is highly
improbable, if not absurd, for the policeman to inflict it on himself. It is also very
unlikely that his co-policemen would punch him just to make it appear that the
accused did it. The accused admits of being at the place. He admits having been
confronted by the policeman but he denies that he ever lifted a finger against
the policeman. Yet all the witnesses both for the prosecution and the defense
are in accord in saying that it was only the accused who was in confrontation
with the policeman. The only logical conclusion that can be derived from this is
that it is indeed the accused who punched the policeman. Evidence to be
believed must not only proceed from the mouth of the credible witness but it
must be credible in itself. No better test has yet been found to measure the value
of the testimony of a witness than its conformity to the knowledge and common
experience of mankind (People vs. Maspil, Jr., 186 SCRA 751).1awphi1.zw+
That the other police officers did not retaliate is no basis for us to share
petitioner’s submission that Lt. Leygo was the aggressor. In the nature of things,
they naturally reacted the way they should, i.e. placed petitioner under arrest
when ordered by Lt. Leygo.
Petitioner next contends that Lt. Leygo was not in the performance of his official
duties as a police officer and as Deputy Chief of Police for Operation and Patrol
at the time he was attacked.
Again, We disagree.
It is a matter of record that at the time of the assault, Lt. Leygo was engaged in
the actual performance of his official duties. He was wearing the designated
police uniform and was on board a police car conducting a routinary patrol
when he first came upon the truck unloading chicken manure. Because the
unloading of chicken dung was a violation of La Trinidad Municipal Ordinance
No. 1-91, the lieutenant ordered the truck driver to return from where he came,
but petitioner, in defiance of such lawful order, commanded the truck driver to
return to Shilan, the place where the truck was first intercepted, and on being
informed that the same truck had returned, the lieutenant had every reason to
assume it did return for the purpose of unloading its cargo of chicken dung, thus
stopped it from doing so.
Under the circumstances, it simply defies reason to argue that Lt. Leygo was not
in the performance of his lawful duties as a police officer when the assault upon
him was perpetrated by the petitioner.
Nor are we impressed by petitioner’s submission that the prosecution’s failure
to present the doctor, who examined Lt. Leygo, proved disastrous to the
People’s case, arguing that the alleged injury of Lt. Leygo cannot be proved
without the testimony of the attending physician.
That Dr. Antonio T. Carino did not testify on the medical certificate he issued is
of no moment. If ever, the medical certificate is only corroborative in character
and is not an indispensable element of the crime of direct assault filed against
petitioner. The unequivocal piece of evidence against petitioner is no less Lt.
Leygo’s credible and consistent testimony that he was punched on his face by
the petitioner.
Lastly, petitioner puts the Court of Appeals to task for sustaining the trial court’s
observation that he exuded an aura of arrogance and defiance of authorities.
We have consistently ruled that the trial court judge is in the best of position to
see and observe the demeanor, actuation and countenance of a witness, matters
which are not normally expressed in the transcripts of his testimony. We see no
reason, therefore, to disturb the following observations of the trial court in its
decision:
The demeanor of the accused on the witness stand also shows that he is the kind
who is impatient with authority. His manner of answering questions bespeaks
of one who has trouble abiding with authority. He portrayed a very aggressive
manner and his answers were always on the defensive as if he had every right in
this world to do and say whatever he wanted to. Over all, he exuded an aura of
arrogance and defiance of authority.
In closing, let it be noted that the attention of this Court has not been called to of
any ulterior or improper motive on the part of the prosecution witnesses to
falsely testify against petitioner. Absence such a motive, the presumption is that
they were not so moved, and their testimonies are entitled to full faith and
credit.17
WHEREFORE, the petition is hereby DENIED, and the assailed decision and
resolution of the Court of Appeals AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.
THIRD DIVISION
[ G.R. No. 224679, February 12, 2020 ]
JONAH MALLARI Y SAMAR, PETITIONER, V. PEOPLE OF THE PHILIPPINES,
RESPONDENT.
DECISION
LEONEN, J.:
When a person being apprehended by a police officer resists or uses force that
is not dangerous, grave, or severe, the offense is not direct assault under Article
148 of the Revised Penal Code. Instead, the proper offense is resistance and
disobedience to an agent of a person in authority, penalized under Article 151 of
the Revised Penal Code.
This Court resolves a Petition for Review on Certiorari1 questioning the
Decision2 and Resolution3 of the Court of Appeals, which affirmed with
modification the Municipal Trial Court4 and the Regional Trial
Court's5 conviction of Jonah Mallari y Samar (Mallari) for the crime of direct
assault upon an agent of a person in authority.
An Information was filed against Mallari on May 31, 2007.6 It read:
That on or about the Twelfth (12th) day of January 2007, in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused while being pacified by PO2 Richard F. Navarro who was
a duly qualified and appointed police officer of Olongapo City and while the
latter was in the actual performance of his official duties, that is, maintaining
peace and order in the said locality, and the said accused well knowing before
and during the assault that PO2 Richard F. Navarro who was a duly appointed
police officer, as such, an agent of a person in authority, did then and there
willfull, unlawfully and feloniously assault, attack, kick and slap said police
officer.
CONTRARY TO LAW.7
Mallari pleaded not guilty to the charge during her arraignment. Trial then
ensued.8
The prosecution presented the victim, Police Officer 2 Richard Navarro (PO2
Navarro), along with Senior Police Officer 3 Melanio Merza (SPO3 Merza) and
Dr. Rolando Mafel Ortiz (Dr. Ortiz), as its witnesses.9
The incident transpired on the early morning of January 12, 2007. According to
the prosecution, at around 6:45 a.m., the Olongapo Police Station 3 received a
report of an altercation on the ground floor of GenX Billiard Hall on Gordon
Avenue. At this, PO2 Navarro and SPO3 Merza, who were both in uniform, went
to the scene. There, they found two (2) groups of women fighting and pulling
each other's hair out, among them a visibly drunk Mallari. The officers rushed to
stop the fight.10
Once the squabble was over, the officers asked the women to go to the police
station to file proper complaints. However, the intoxicated Mallari shouted at
them, "Wala kayo pakialam sa akin, hindi aka sasama sa inyo."11 She then
grabbed PO2 Navarro by the collar, slapped his cheek, and kicked his legs
several times. To restrain her, PO2 Navarro held her by the shoulders and
brought her to the back of the patrol car. SPO3 Merza was about to pacify the
other women, but they eventually agreed to go to the police station. The
incident was entered in the blotter and Mallari was detained for direct
assault.12
PO2 Navarro was treated at the James Gordon Memorial Hospital for the minor
injuries he got from Mallari.13 Dr. Ortiz issued him a medical certificate stating
that he had sustained swelling on the zygomatic area, or the cheekbone.14
The defense presented the sole testimony of Mallari.15
Mallari testified that at around 6:00 a.m. that day, she and her co-workers were
singing at a karaoke bar in GenX Billiard Hall when they got into a heated
argument with another group of women, which then escalated to a physical
fight. The ruckus prompted the bar owner to send the women downstairs, but
their fighting only continued.16
Later, Mallari added, the police arrived and ordered them to board the patrol
car. Mallari initially obeyed, but after noticing that her companions did not, she
alighted from the vehicle. PO2 Navarro pushed her back in by holding her
stomach and the collar of her blouse. When she still attempted to alight, PO2
Navarro grabbed her by the ankles, spreading her legs open in the process.
When he pulled her down, she hit her head and neck on the vehicle's floor, her
buttocks hitting the ground.17
After composing herself from the embarrassment, Mallari boarded the car and
went with the officers to the police station. There, she was surprised that PO2
Navarro claimed that she had slapped him several times. She then called her
mother and went to the hospital for a medical examination.18 She was found to
have sustained the following injuries:
Contusion 2x2 cm medical aspect M/3 left forearm
Contusion 2x2 cm medical aspect P/3 left forearm
Contusion 2x2 cm post aspect D/3 left forearm
Contusion 0.5x0.5 cm antero-medical aspect M/3 right forearm
Abrasion 2 cm interscapular area
Swelling left thenar eminence.19
Mallari later filed a Complaint against PO2 Navarro and SPO3 Merza for
unlawful arrest, illegal detention, maltreatment of prisoners, and physical
injuries. This was eventually dismissed by the Office of the Prosecutor.20
In its September 5, 2013 Decision,21 the Municipal Trial Court found Mallari
guilty beyond reasonable doubt of direct assault upon an agent of a person in
authority. It noted that Mallari admitted to kicking PO2 Navarro and grabbing
his shirt while he was performing his official duties. It likewise gave premium to
the prosecution's positive testimony against Mallari's defense of denial.22 The
dispositive portion of the Decision read:
WHEREFORE, foregoing considered, judgment is hereby rendered finding
accused JONAH MALLARI y SAMAR, GUILTY beyond reasonable doubt of the
crime of Direct Assault upon an Agent of a Person in Authority and hereby
sentences her to suffer an imprisonment of prision correccional in its medium
period of 3 yrs, 6 mos and 21 days to 4 years, 9 mos and 10 days and to pay the
fine of PHp1,000.00. With costs against the accused.
SO DECIDED.23 (Emphasis in the original)
The Regional Trial Court affirmed Mallari's conviction in its July 30, 2014
Decision.24 It found that all the elements of the offense were present: PO2
Navarro was an agent of a person in authority, and Mallari kicked, slapped, and
injured him while he was engaged in the performance of his official duty. It
found that no improper motive could be traced to the prosecution's witnesses
who clearly testified on the matter. It also noted that Mallari's defenses and
denials were weak and uncorroborated.25
The Court of Appeals, in its October 27, 2015 Decision,26 affirmed with
modification the Regional Trial Court's Decision, thus:
WHEREFORE, the instant petition is hereby DISMISSED for lack of merit.
The Decision dated July 30, 2014 of the RTC, Branch 74, Olongapo City, in
Criminal Case No. 44-14 is hereby AFFIRMED with MODIFICATION as to the
imposable penalty.
Petitioner Jonah Mallari y Samar is hereby sentenced to suffer an indeterminate
penalty of two (2) months of arresto mayor as minimum, to two (2) years and
four (4) months of prision correccional as maximum. He is likewise ordered to
pay a fine of Five Hundred (Php500.00) Pesos.
SO ORDERED.27 (Emphasis in the original)
In ruling so, the Court of Appeals found that PO2 Navarro's testimony was
credible and clear on how the incident occurred, while Mallari was unable to
substantiate her claims. It held that Mallari was the aggressor and PO2 Navarro
was only compelled to restrain her as she was kicking him.28
The Court of Appeals denied Mallari's Motion for Reconsideration in a May 12,
2016 Resolution.29
Thus, Mallari filed before this Court a Petition for Review on
Certiorari,30 claiming that the Court of Appeals erred in sustaining her
conviction.
Petitioner argues that PO2 Navarro's testimony that she repeatedly kicked and
slapped him was inconsistent with his injury of a slightly swollen
cheekbone.31 She points out that it was she who suffered several injuries,
consistent with her allegation that PO2 Navarro "held her feet, pulled her to the
ground and caused her to hit her head, neck and buttocks,"32 despite no
aggression coming from her. Thus, she says that her testimony should have
been given more credence.33
Assuming that she did kick PO2 Navarro, petitioner asserts that she was fully
justified in doing so as the officer unnecessarily held her feet, which constitutes
unlawful aggression on her honor and dignity.34
The Office of the Solicitor General, on behalf of respondent People of the
Philippines, argued back that the Petition must be denied as it raises a question
of fact, which is not proper in a petition for review on certiorari.35
In any case, the Office of the Solicitor General insists that petitioner's assault on
PO2 Navarro was sufficiently established. It points out that the medical
certificate stating that PO2 Navarro had a slightly swollen cheekbone does not
negate his testimony that he was repeatedly kicked by petitioner, as she herself
admitted attacking the officer. It also raises the other officers' testimonies
affirming what had happened. From the totality of evidence, the Office of the
Solicitor General argues that Mallari is the aggressor and her denials are weak
defenses.36 That PO2 Navarro was a police officer on official duty when
petitioner assaulted him completes the elements of the offense charged.37
For this Court's resolution is the sole issue of whether or not petitioner Jonah
Mallari y Samar is guilty beyond reasonable doubt of direct assault upon an
agent of a person in authority.
This Court modifies the ruling of the Court of Appeals.
We affirm that the prosecution's evidence is sufficient to uphold the findings of
fact against petitioner. Questions of fact may no longer be raised in Rule 45
petitions. In Spouses Miano v. Manila Electric Company:38
The Rules of Court states that a review of appeals filed before this Court is "not a
matter of right, but of sound judicial discretion." The Rules of Court further
requires that only questions of law should be raised in petitions filed under Rule
45 since factual questions are not the proper subject of an appeal by certiorari.
It is not this Court's function to once again analyze or weigh evidence that has
already been considered in the lower courts.
Bases Conversion Development Authority v. Reyes distinguished a question of
law from a question of fact:
Jurisprudence dictates that there is a "question of law" when the doubt or
difference arises as to what the law is on a certain set of facts or circumstances;
on the other hand, there is a "question of fact" when the issue raised on appeal
pertains to the truth or falsity of the alleged facts. The test for determining
whether the supposed error was one of "law" or "fact" is not the appellation
given by the parties raising the same; rather, it is whether the reviewing court
can resolve the issues raised without evaluating the evidence, in which case, it is
a question of law; otherwise, it is one of fact. In other words, where there is no
dispute as to the facts, the question of whether or not the conclusions drawn
from these facts are correct is a question of law. However, if the question posed
requires a re-evaluation of the credibility of witnesses, or the existence or
relevance of surrounding circumstances and their relationship to each other,
the issue is factual.
....
Prevailing jurisprudence uniformly, holds that findings of facts of the trial court,
particularly when affirmed by the Court of Appeals, are binding upon this Court.
It is not the function of this Court to analyze or weigh such evidence all over
again. It is only in exceptional cases where this Court may review findings of fact
of the Court of Appeals.39 (Citations omitted)
In this case, the Municipal Trial Court, the Regional Trial Court, and the Court of
Appeals all consistently found that petitioner slapped and kicked PO2 Navarro
while he was on official duty as a police officer.40 The lower courts arrived at
this conclusion after thoroughly examining both parties' evidence. This Court
will no longer disturb their uniform findings.
However, petitioner should not be held guilty of direct assault, but rather, of the
crime of resistance or disobedience under Article 151 of the Revised Penal Code.
Article 148 of the Revised Penal Code defines and penalizes direct assault:
ARTICLE 148. Direct assaults. — Any person or persons who, without a public
uprising, shall employ force or intimidation for the attainment of any of the
purposes enumerated in defining the crimes of rebellion and sedition, or shall
attack, employ force or seriously intimidate or resist any person in authority or
any of his agents, while engaged in the performance of official duties, or on
occasion of such performance, shall suffer the penalty of prision correccional in
its medium and maximum periods and a fine not exceeding 1,000 pesos, when
the assault is committed with a weapon or when the offender is a public officer
or employee, or when the offender lays hands upon a person in authority. If
none of these circumstances be present, the penalty of prision correccional in its
minimum period and a fine not exceeding 500 pesos shall be imposed.
Direct assault may be committed in two (2) ways:
[F]irst, by any person or persons who, without a public uprising, shall employ
force or intimidation for the attainment of any of the purposes enumerated in
defining the crimes of rebellion and sedition; and second, by any person or
persons who, without a public uprising, shall attack, employ force, or seriously
intimidate or resist any person in authority or any of his agents, while engaged
in the performance of official duties, or on occasion of such
performance.41 (Emphasis supplied, citation omitted)
In this case, petitioner is charged with the second mode of assault. Its elements
are the following:
1. That the offender (a) makes an attack, (b) employs force, (c) makes a
serious intimidation, or (d) makes a serious resistance.
2. That the person assaulted is a person in authority or his agent.
3. That at the time of the assault the person in authority or his agent (a)
is engaged in the actual performance of official duties, or [b] that he is
assaulted by reason of the past performance of official duties.
4. That the offender knows that the one he is assaulting is a person in
authority or his agent in the exercise of his duties.
5. That there is no public uprising.42
A police officer is an agent of a person in authority.43 An agent of a person in
authority is one who, "by direct provision of law or by election or by
appointment by competent authority, is charged with the maintenance of public
order and the protection and security of life and property, such as barrio
councilman, barrio policeman and barangay leader, and any person who comes
to the aid of persons in authority[.]"44 Being a police officer, PO2 Navarro is an
agent of a person in authority.
Petitioner was also aware that PO2 Navarro was a police officer. He introduced
himself as one and was in his police uniform.1a₩phi1 He was performing his
official duties as a police officer when he was pacifying the melee, and right
when petitioner attacked him. Thus, the second, third, fourth, and fifth elements
of direct assault are present in this case.
However, the first element of the offense is not present.
To be considered as direct assault, the laying of hands or the use of physical
force against the agent of a person in authority must be serious.
In United States v. Gumban,45 this Court held that the amount of force
employed against agents of persons in authority spells the difference between
direct assault and resistance of disobedience:
In reaching this conclusion, we took into account the decision rendered by this
court in the case against Gelacio Tabiana and Canillas, in which it is said that the
distinction between an assault and a resistance to agents of authority lies
largely in the amount of the force employed in each case, and that a sudden
blow given to a policeman while engaged in effecting an arrest does not
constitute that employment of force which is punishable as assault. We have
also considered the decision rendered by this court in the case against Cipriano
Agustin . . . in which it was also held that a blow upon a policeman was not an
aggression amounting to an assault. It must be remembered, however, that in
these two cases the crime involved was that of assault upon agents of authority,
in which the essential element is substantially the force employed. It is said in
these two cases that any force is not sufficient to constitute an assault[,] but that
it is necessary to consider the circumstances of each case to decide whether the
force used is, or is not, sufficient to constitute assault upon an agent of
authority.46 (Emphasis supplied, citations omitted)
Previous convictions for direct assault against an agent of a person in authority
involve force that is more severe than slapping and punching. In United States v.
Cox,47 the accused "seized [the police officer] by the throat, threw him to the
ground, and struck him several blows with the club which he succeeded in
wresting from the policeman[.]"48
In Rivera v. People,49 the accused repeatedly hurled menacing threats against
the police officer, challenged him to a fight, and scored a punch on the lip as they
grappled. The officer sustained an injury that would take several days to heal,
while the accused was only subdued with the help of other police officers. Thus:
... the accused pointed a finger on the policeman and uttered words like
"Babalian kita ng buto" (I'll break your bones). "Ilalampaso kita" (I'll scrub you).
"Pulis lang kayo" (you are only policemen) and other unsavory and insulting
words. Inspector Leygo who was a little bit angry warned the accused to stop
uttering further insulting words and cautioned him to take it easy and then
informed him that he was being arrested for violation of the chicken dung
ordinance. The accused removed his jacket, placed it inside the vehicle, assumed
a fighting stance and challenged the policeman. Inspector Leygo then
approached the accused and warned him anew that he was being arrested. The
accused responded by punching Inspector Leygo on his face, particularly on his
lip. The two then grappled as Inspector Leygo tried to hold the accused. Finally,
with the help of Policemen Dayap and Bongcado, the accused was subdued. The
accused was then pushed into one of the police cars but he resisted until Alfredo
Castro, one of the chicken dung dealers in the area, boarded the police car to
accompany him.
. . . In the medico-legal certificate (Exhibit "A") of Inspector Leygo, his injury
described as "contusion with 0.5 laceration , upper lip, left side" with healing
period from 5 to 7 days. Subsequently, this present case was filed against the
accused.50
As clarified in People v. Breis,51 if the use of physical force against agents of
persons in authority is not serious, the offense is not direct assault, but
resistance or disobedience:
The laying of hands or using physical force against agents of persons in
authority when not serious in nature constitutes resistance or disobedience
under Article 151, and not direct assault under Article 148 of the RPC. This is
because the gravity of the disobedience to an order of a person in authority or
his agent is measured by the circumstances surrounding the act, the motives
prompting it and the real importance of the transgression, rather than the
source of the order disobeyed. The pushing of IO1 Mangili is not of such serious
defiance to be considered direct assault, but is resistance
nonetheless.52 (Citations omitted)
Resistance or disobedience is punished under Article 151 of the Revised Penal
Code, which provides:
ARTICLE 151. Resistance and disobedience to a person in authority or the agents
of such person. — The penalty of arresto mayor and a fine not exceeding 500
pesos shall be imposed upon any person who not being included in the
provisions of the preceding articles shall resist or seriously disobey any person
in authority, or the agents of such person, while engaged in the performance of
official duties.
When the disobedience to an agent of a person in authority is not of a serious
nature, the penalty of arresto menor or a fine ranging from 10 to 100 pesos shall
be imposed upon the offender.
For this crime to be proven, the two (2) key elements must be shown: "(1) That
a person in authority or his agent is engaged in the performance of official duty
or gives a lawful order to the offender; and (2) That the offender resists or
seriously disobeys such person or his agent."53
In United States v. Tabiana,54 where the accused hit the police officer with his
fist, this Court explained the rationale behind the distinction in the force used:
Upon the whole we find the defendant Tabiana guilty of resistance and serious
disobedience to public authority under article 252, Penal Code, and not of the
more serious offense indicated in subsection 2 of article 249, Penal Code, which
was applied by the Court of First Instance. The question whether an offense
consists of simple resistance or to grave resistance is to be determined with a
view to the gravity of the act proved and the particular conditions under which
committed. In considering this question reference should also be had to the
nature and extend of the penalties attached by the authors of the Code to the
different offenses. Thus, when it is observed that the offense indicated in article
249 carries with it a penalty ranging from prision correccional to prision
mayor in its minimum degree, with corresponding fines, it is obvious that the
lawmaker here had in mind serious offenses, characterized in part at least by
the spirit of aggression directed against the authorities or their agents. . . .
The greatest hesitancy which we have felt in applying article 252 instead of
article 249 to this case arises from the words "shall employ force against them"
(emplearen fuerza contra ellos) contained in article 249. These words, taken
without reference to the context, would seem to make absolutely necessary the
application of article 249 in every case where any degree of force is exerted. We
believe, however, that the words quoted are to be understood as applying
to force of a more serious character than that employed in the present instance.
We are led to this conclusion not only because of the grave penalty attached, as
indicated above, but for the further reason that the Code mentions grave
resistance further on in the same paragraph and also makes special provision
for the offense of simple resistance in article 252. Now practically and rationally
considered in connection with the subject of arrest, resistance is impossible
without the employment of some force. A man may abscond or evade or elude
arrest, or may disobey the commands of an officer without using force but he
cannot resist without using force of some kind or in some degree. If at the
ultimate moment no force is employed to resist, there is not resistance but
submission; and if it had been intended that every manifestation of force,
however slight, against the authorities and their agents should bring the case
under article 249, it was an idle waste of words to make other provisions to
cover grave resistance and simple resistance. It therefore seems reasonable to
hold that the words in article 249 relating to the employment of force are in
some degree limited by the connection in which they are used and are less
peremptory than they at first seem. Reasonably interpreted they appear to have
reference to something more dangerous to civil society than a simple blow with
the hands at the moment a party is taken into custody by a
policeman.55 (Emphasis supplied)
In this case, it was established that petitioner grabbed the shirt of PO2 Navarro,
then slapped and kicked him several times. PO2 Navarro testified:
Q: When you [saw] these (sic) commotion, what did you and Police officer
Merza do?
A: We tried to stop them and introduced ourselves as police officers, sir.
Q: Who directed them to stop, and did they stop?
A; Yes, sir.
Q: What did you do next?
A We invited them at the police station, so that they will file their complaint if
there is any.
Q: Did they abide on (sic) you?
A: No, sir.
Q: And what did they do?
A: After telling them to go to the police station, there was one (1) woman who
shouted: 'WALA KAYO PAKIALAM SA AKIN. HINDI AKO SASAMA SA INYO."
Q: Was the woman who shouted part of the group?
A: Yes, sir.
Q: What did you do then after you heard those words?
A: We continued telling them to board on the vehicle, but this woman slapped
me and kicked me, sir.
....
Q: You said that this woman held your collar, and slapped and kicked you. How
many times [were] you slapped?
A: I could not remember, sir.
Q: Where were [you] slapped?
A: On my right cheek, sir.
Q: And where were you kicked?
A: On both legs, sir.
Q: How many times were you kicked?
A: Many times, sir.56
In the January 12, 2007 Joint Affidavit of PO3 Merza and PO2 Navarro, they
stated:
That upon arrival thereat we saw a two group of female persons fighting each
other in front of gen-ex Billiard hall, located along Gordon Avenue, New Asinan
Olongapo City, That we immediately pacified them, introduced ourselves as a
Police officers (sic) despite we wearing our official Police uniform and invited
both parties involved to our station for proper disposition, but one of the person
(sic) involved later identified as Jona (sic) Mallari Y Samar who reeking with the
smell of alcoholic beverages resisted and shows disrespect and disobedience
upon us, and uttered the following remarks on top of her voice "WALA KAYO
PAKIALAM SA AKIN HINDI AKO SASAMA SA INYO!" then she grabbed PO2
Navarro (sic) uniform and repeatedly kicked him and slapped him on his face
that cause (sic) an injury to his person, and placed us to an embarrassing
situation;
That we compelled to used (sic) a necessary and sufficient forced (sic) to arrest
him and brought (sic) to our Station for proper disposition[.]57
Mallari also admitted to this. Her testimony reveals:
Q: Ms. Witness, in your complaint affidavit [and] ear[l]ier you mentioned that
PO2 Navarro was in uniform, and he was inviting you to go to the police station,
and in 2.4 paragraph of your complaint affidavit Ms. Witness, on the last portion
of the paragraph you mentioned "I was afraid he might again harm me, so I
grabbed his shirt to push him away and kick him away." Now, you admit having
grabbed the shirt of police officer Navarro?
A: Yes, Ma'[a]m.
Q: You admit having kicked him?
A: Yes, ma'am.
Q: I will let you read the part, "when I get up, PO2 Navarro approached me." So
he was not doing anything but approaching you, correct?
A: Yes, Ma'[a]m.
Q: And upon getting near you Ms. Witness you grabbed his shirt and kicked
him?
A: Yes, Ma'[a]m.58
Based on the circumstances, petitioner's resistance and use of force are not so
serious to be deemed as direct assault. While she exerted force, it is not
dangerous, grave, or severe enough to warrant the penalties attached to the
crime.
Moreover, PO2 Navarro himself stated that he was not kicked hard:
Q: Were you kicked hard by the accused?
A: Not really hard, sir.
Court: Did you resent being kicked in the presence of other ladies?
A: Yes, Your Honor.59
Thus, instead of direct assault, this Court convicts petitioner of resistance or
disobedience.
When the crime proved is different from the offense alleged, the accused may be
convicted of the offense proved when the offense charged necessarily includes
the offense proven.60 Rule 120, Sections 4 and 5 of the Rules of Court provide:
SECTION 4. Judgment in case of variance between allegation and proof. — When
there is variance between the offense charged in the complaint or information
and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the offense charged which
is included in the offense proved.
SECTION 5. When an offense includes or is included in another. — An offense
charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former
constitute or form part of those constituting the latter.
In this case, although the charge is direct assault, the prosecution was able to
prove resistance or disobedience. These offenses have similar elements, varying
only as to the degree of seriousness of the offender's resistance. Direct assault
necessarily includes resistance or disobedience.
WHEREFORE, this Court MODIFIES the October 27, 2015 Decision and May 12,
2016 Resolution of the Court of Appeals in CA-G.R. CR No. 36835. Petitioner
Jonah Mallari y Samar is found GUILTY beyond reasonable doubt of the crime of
resistance or disobedience under Article 151 of the Revised Penal Code. She is
sentenced to suffer the penalty of imprisonment of arresto mayor, which covers
one (1) month and one (1) day, as minimum, to six (6) months, as maximum,
and a fine not exceeding P500.00.
SO ORDERED.
G.R. No. 202692               November 12, 2014
EDMUND SYDECO y SIONZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
Assailed and sought to be set aside in this petition for review under Rule 45 are
the December 28, 2011 Decision1 and July 18, 2012 Resolution2 of the Court of
Appeals (CA) in CA-G.R. CR No. 33567. The assailed issuances affirmed the
decision3 of the Regional Trial Court (RTC) of Manila, Branch 12, in Criminal
Case Nos. 09-270107-08 which, in turn, affirmed that of the Metropolitan Trial
Court (MeTC) in Manila adjudging petitioner Edmund Sydeco (Sydeco) guilty of
drunk driving and resisting arrest.4
The factual backdrop:
On July 20, 2006, separate Informations, one for Violation of Section 56(f) of
Republic Act No. (RA) 41365 and another, for Violation of Article 151 of the
Revised Penal Code (RPC)6 were filed against petitioner Sydeco with the MeTC
in Manila and eventually raffled to Branch 14 of that court. The accusatory
portions of the interrelated informations, docketed as Crim. Case No. 052527-
CN for the first offense and Crim. Case No. 052528-CN for the second,
respectively read:
1. Crim. Case No. 052527-CN
That on or about June 11, 2006, in the City of Manila, Philippines, the said
accused, being then the driver and owner of a car, did then and there willfully
and unlawfully, drive, manage and operate the same along Roxas Blvd. cor.
Quirino Avenue, Malate, in said city, while under the influence of liquor, in
violation of Section 56(f) of Republic Act 4136.
Contrary to law.
2. Crim. Case No. 052528-CN
That on or about June 11, 2006, in the City of Manila, Philippines, the said
accused, did then and there willfully and unlawfully resist and disobey P/INSP
Manuel Aguilar, SPO2 Virgilio Paulino, SPO4 Efren Bodino and PO3 Benedict
Cruz III, bonafide member of the Philippine National Police, Malate Police
Station-9, duly qualified and appointed, and while in the actual performance of
their official duties as such police officers, by then and there resisting, shoving
and pushing, the hands of said officers while the latter was placing him under
arrest for violation of Article 151 of the Revised Penal Code.
Contrary to law.
By Order of September 19, 2006, the MeTC classified the cases as falling under,
thus to be governed by, the Rule on Summary Procedure.
When arraigned, petitioner, as accused, pleaded "Not Guilty" to both charges.
During the trial of the two consolidated cases, the prosecution presented in
evidence the oral testimonies of SPO4 Efren Bodino (Bodino), 7 PO2 Emanuelle
Parungao8 and Ms. Laura Delos Santos, 9 plus the documents each identified
while in the witness box, among which was Exh. "A", with sub-markings, the
Joint Affidavit of Arrest10 executed by SPO2 Bodino and two other police
officers. The defense’s witnesses, on the other hand, consisted of Sydeco himself,
his wife, Mildred, and Joenilo Pano.
The prosecution’s version of the incident, as summarized in and/or as may be
deduced from, the CA decision now on appeal is as follows:
On or about June 11, 2006, P/Insp. Manuel Aguilar (Aguilar), SPO4 Bodino, PO3
Benedict Cruz III and another officer were manning a checkpoint established
along Roxas Boulevard corner Quirino Ave., Malate, Manila when, from about
twenty (20) meters away, they spotted a swerving red Ford Ranger pick up with
plate number XAE-988. Petitioner was behind the wheel. The team members, all
inuniform, flagged the vehicle down and asked the petitioner to alightfrom the
vehicle so he could take a rest at the police station situated nearby,before he
resumes driving.11 Petitioner, who the policemen claimed was smelling of liquor,
denied being drunk and insisted he could manage to drive. Then in a raised
voice, petitioner started talking rudely to the policemen and in fact yelled at
P/Insp. Aguilar blurting: "P…g ina mo, bakit mo ako hinuhuli." Atthat remark,
P/Insp. Aguilar, who earlier pointed out to petitioner that his team had seen him
swerving and driving under the influence of liquor, proceeded to
arrestpetitioner who put up resistance. Despite petitioner’s efforts to parry the
hold on him, the police eventually succeeded in subduing him who was then
brought to the Ospital ng Maynila where he was examined and found to be
positive of alcoholic breath per the Medical Certificate issuedby that hospital,
marked as Exh. "F". Petitioner was then turned over to the Malate Police Station
for disposition.12 Petitioner, on the other hand, claimed tobe a victim in the
incident in question, adding in this regard that he has in fact filed criminal
charges for physical injuries, robbery and arbitrary detention against P/Insp.
Aguilar et al. In his Counter-Affidavit 13 and his Complaint-Affidavit14 appended
thereto, petitioner averred that, in the early morning of June 12, 2006, he
together with Joenilo Pano and Josie Villanueva, cook and waitress, respectively,
in his restaurant located along Macapagal Ave., Pasay City, were on the way
home from on board his pick-up when signaled to stop by police officers at the
area immediately referred to above. Their flashlights trained on the inside of the
vehicle and its occupants, the policemen then asked the petitioner to open the
vehicle’s door and alight for a body and vehicle search, a directive he refused to
heed owing to a previous extortion experience. Instead, he opened the vehicle
window, uttering, "plain view lang boss, plain view lang." Obviously irked by
this remark, one of the policemen, P/Insp. Aguilar, as it turnedout, then told the
petitioner that he was drunk, pointing to three cases of empty beer bottles in
the trunk of the vehicle. Petitioner’s explanation about being sober and that the
empty bottles adverted to came from his restaurant was ignored as P/Insp.
Aguilar suddenly boxed him (petitioner) on the mouth and poked a gun at his
head, at the same time blurting, "P…g ina mo gusto mo tapusin na kita dito
marami ka pang sinasabi." The officers then pulled the petitioner out of the
driver’s seat and pushed him into the police mobile car, whereupon he,
petitioner, asked his companions to call up his wife. The policemen then
brought petitioner to the Ospital ng Maynila where they succeeded in securing a
medical certificate under the signature of one Dr. Harvey Balucating depicting
petitioner as positive of alcoholic breath, although he refused to be examined
and no alcohol breath examination was conducted. He was thereafter detained
from 3:00 a.m.of June 12, 2006 and released in the afternoon of June 13, 2006.
Before his release, however, he was allowed to undergo actual medical
examination where the resulting medical certificate indicated that he has
sustained physical injuries but negative for alcohol breath. Ten days later,
petitioner filed his Complaint-Affidavit against Dr. Balucating, P/Insp. Aguilar
and the other police officers.
Petitioner also stated in his counter-affidavit that, under Sec. 29 of R.A. 4136, or
the Land Transportation and Traffic Code, the procedure for dealing with a
traffic violation is not to place the erring driver under arrest, but to confiscate
his driver’s license.
On June 26, 2009, the MeTC rendered judgment finding petitioner guilty as
charged, disposing as follows:
WHEREFORE, premises considered, the prosecution having established the guilt
of the accused beyond reasonable doubt, his conviction of the offenses charges
is hereby pronounced. Accordingly, he is sentenced to:
1. Pay a fine of two hundred fifty pesos (₱250.00) for Criminal Case No.
052527-CN; and
2. Suffer imprisonment of straight penalty of three (3) months and pay
a fine of two hundred fifty pesos (₱250.00) for Criminal Case No.
052528-CN.
For lack of basis, no civil liability is adjudged.
The Branch Clerk of Court is directed to certify to the Land Transportation
Office the result of this case, stating further the data required under Section
5815 of Republic Act 4136.
Therefrom, petitioner appealed to the RTC on the main submissions that the
MeTC erred in: 1) according credit to the medical certificate issued by Dr.
Balucating, although the records custodian of Ospital ng Maynila was presented
to testify thereon instead of the issuing physician, and 2) upholding the veracity
of the joint affidavit of arrest of P/INSP Manuel Aguilar, SPO4 Efren Bodino, and
PO3 Benedict Cruz III, considering that only SPO4 Bodino appeared in court to
testify.
By Decision16 dated February 22, 2010, the RTC affirmed the conviction of the
petitioner, addressing the first issue thus raised in the appeal in the following
wise: Dr. Balucating’s failure to testify relative to petitioner’s alcoholic breath,
as indicatedin the medical certificate, is not fatal as such testimony would only
serve to corroborate the testimony on the matter of SPO4 Bodino, noting
thatunder the Rules of Court,17 observations of the police officers regarding the
petitioner’s behavior would suffice to support the conclusion of the latter’s
drunken state on the day he was apprehended.18
Apropos the second issue, the RTC pointed out that the prosecution has the
discretion as to how many witnesses it needs to present before the trial court,
the positive testimony of a single credible witness as to the guilt of the accused
being reasonable enough to warrant a conviction. The RTC cited established
jurisprudence19 enunciating the rule that preponderance is not necessarily with
the greatest number as "[W]itnesses are to be weighed, not numbered."
Following the denial by the RTC of his motion for reconsideration, petitioner
went to the CA on a petition for review, the recourse docketed as CA-G.R. CR No.
33567. By a Decision dated December 28, 2011, as would be reiterated in a
Resolution of July 18, 2012, the appellatecourt affirmed that of the RTC, thus:
WHEREFORE, the petition is DENIED. The assailed Decision dated February 22,
2010 of the RTC, Manila, Branch 12, is AFFIRMED.
SO ORDERED.
Hence, this petition on the following stated issues:
I. The CA erred in upholding the presumption of regularity in the
performance of duties by the police officers; and
II. The CA erred in giving weight to the Medical Certificate issued by Dr.
Harvey Balucating, in the absence of his testimony before the Court.
The petition is meritorious.
Prefatory, the rule according great weight, even finality at times, to the trial
court’s findings of fact does hold sway when, as here, it appears in the record
that facts and circumstancesof weight and substance have been overlooked,
misapprehended or misapplied in a case under appeal. 20 Corollary, it is basic
that an appeal in criminal prosecutions throws the whole case wide open for
review, inclusive of the matter of credibility and appreciation of evidence. 21`
Peace officers and traffic enforcers,like other public officials and employees are
bound to discharge their duties with prudence, caution and attention, which
careful men usually exercise in the management of their own affairs. 22
In the case at bar, the men manning the checkpoint in the subject area and
during the period material appearednot to have performed their duties as
required by law, or at least fell short of the norm expected of peace officers.
They spotted the petitioner’s purported swerving vehicle. They then signaled
him to stop which he obeyed. But they did not demand the presentation of the
driver’s license orissue any ticket or similar citation paper for traffic violation as
required under the particular premises by Sec. 29 of RA 4136, which specifically
provides:
SECTION 29. Confiscation of Driver’s License. – Law enforcement and peace
officers of other agencies duly deputized by the Director shall, in apprehending
a driver for any violation of this Act or any regulations issued pursuant thereto,
or of local traffic rules and regulations x x x confiscate the license ofthe driver
concerned and issue a receipt prescribed and issuedby the Bureau therefor
which shall authorize the driver to operate a motor vehicle for a period not
exceeding seventy-two hours from the time and date of issue of said receipt. The
period so fixed in the receipt shall not be extended, and shall become invalid
thereafter.x x x (Emphasis added.) Instead of requiring the vehicle’s occupants
to answer one or two routinary questions out of respectto what the Court has, in
Abenes v. Court of Appeals, 23 adverted to as the motorists’ right of "free passage
without [intrusive] interruption," P/Insp. Aguilar, et al. engaged petitioner in
what appears to be an unnecessary conversation and when utterances were
made doubtless not to their liking, they ordered the latter to step out of the
vehicle, concluding after seeing three (3) empty cases of beer at the trunk of the
vehicle that petitioner was driving under the influence of alcohol. Then
petitioner went on with his "plain view search" line. The remark apparently
pissed the police officers off no end as one of them immediately lashed at
petitioner and his companions as "mga lasing" (drunk) and to get out of the
vehicle, an incongruous response to an otherwise reasonable plea. Defense
witness, Joenilo Pano, graphically described this particular event in his
sinumpaang salaysay, as follows:
x x x matapos kami huminto ay naglapitan sa amin ang mga pulis, nag flash light
sa loob ng sasakyan at sa aming mga mukha.
x x x isang pulis ang nag-utos sa aminna kami ay magsi-baba at buksan ang
pintuan ng nasabing sasakyan.
x x x dahil doon sinabi ni Kuya sa mga pulis, na hindi pwede iyon at pinigilan
niya ako at ang aking kasama kong waitress na bumaba.
x x x iginiit ni Kuya sa mga pulisang salitang "PLAIN VIEW LANG BOSS, PLAIN
VIEW LANG" pero iyon ayhindi nila pinansin. Sa halip as isang pulis ang nagsabi
na "MGA LASING KAYO HETO MAY CASE PA KAYO NG BEER".
x x x habang nagpapaliwanag si Kuya, isang pulis ang biglang kumuha ng susi ng
sasakyan habang ang isang pulis ang biglang sumuntok sa bibig ni Kuya,
nagbunot ng baril at tinutukan sa ulo si Kuya.
x x x dahil doon ay nagmakaawa ako na wag barilin si Kuya subalit ako rin ay
tinutukan ng baril. x x x na matapos suntukin si Kuya aypinagtulungan siya ng
mga pulis na ilabas sa sasakyan at nang mailabas siyaay pinagtulakan siya ng
mga pulis sa gilid ng kalsada habang hawak ang kanilang baril. 24
Pano’s above account ironicallyfinds in a way collaboration from the arresting
officers themselves who admitted that they originally had no intention to search
the vehicle in question nor subject its occupants to a body search. The officers
wrote in their aforementioned joint affidavit:
xxxx
That we arrested the suspect, Edmund Sydeco y Siozon x x x for violation of RA
4136 (Driving under the influence of liquor), and violation of Article 151 of the
RPC (Resisting Arrest) x x x committed on or about 3:30A.M., June 11, 2006
along x x x Malate, Manila. x x x He began to raise his voice and converse with us
rudely without considering that we are in uniform, on duty and performing our
job. P/INSP Manuel Aguilar pointed out that we saw him swerving and driving
under the influence of liquor that was why we are inviting him to our police
station in which our intention was to make him rest for a moment before he
continue to drive. x x x (Emphasis added.)
In fine, at the time of his apprehension, or when he was signaled to stop, to be
precise, petitioner has not committed any crime or suspected of having
committed one. "Swerving," as ordinarily understood,refers to a movement
wherein a vehicle shifts from a lane to another or to turn aside from a direct
course of action or movement.25 The act may become punishable when there is a
sign indicating that swerving is prohibited or where swerving partakes the
nature ofreckless driving, a concept defined under RA 4136, as:
SECTION 48. Reckless Driving. – Noperson shall operate a motor vehicle on any
highway recklessly or without reasonable caution considering the width, traffic,
grades, crossing, curvatures, visibility and other conditions of the highway and
the conditions of the atmosphere and weather, or so as to endanger the
property or the safetyor rights of any person or so as to cause excessive or
unreasonable damage to the highway.
Swerving is not necessarily indicative of imprudent behavior let alone
constitutive of reckless driving. To constitute the offense of reckless driving, the
act must be something more than a mere negligence in the operation of a motor
vehicle, and a willful and wantondisregard of the consequences is
required.26 Nothing in the records indicate that the area was a "no swerving or
overtaking zone." Moreover, the swerving incident, if this be the case, occurred
at around 3:00 a.m. when the streets are usually clear of moving vehicles and
human traffic, and the danger to life, limb and property to third persons is
minimal. When the police officers stopped the petitioner’s car, they did not issue
any ticket for swerving as required under Section 29 of RA 4136. Instead, they
inspected the vehicle, ordered the petitioner and his companions to step down
of their pick up and concluded that the petitioner was then drunk mainly
because of the cases of beer found at the trunk of the vehicle. On re-direct
examination, SPO4 Bodino testified:
Q: On that particular date, time and place … what exactly prompted you to
arrest the accused (sic) the charged in for Viol. of Section 56(f) of R.A. 4136?
A: Noong mag check-up kami, naamoynamin na amoy alak siya at yung sasakyan
ay hindi maganda ang takbo.
Q: Now you stated in your affidavit of arrest Mr. Witness that you spotted the
vehicle of the accused swerving, is that correct?
A: Yes, sir.
Q. Is that also the reason why you apprehended him?
A: Yes, sir.
Q: And what happened after Mr. Witness, when you approached the vehicle of
the accused?
A: The accused was in a loud voice. He was asking, "Bakit daw siya pinahihinto?"
xxxx
Q: How do you describe the resistance Mr. Witness?
A: He refused to ride with usgoing to the hospital, Your Honor.
x x x x27
Going over the records, it is fairly clear that what triggered the confrontational
stand-off between the police team, on one hand, and petitioner on the other,
was the latter’s refusal to get off of the vehicle for a body and vehicle search
juxtaposed by his insistence on a plain view search only. Petitioner’s twin
gestures cannot plausibly be considered as resisting a lawful order. 28 He may
have sounded boorish or spoken crudely at that time, but none of this would
make him a criminal. It remains to stress that the petitioner has not, when
flagged down, committed a crime or performed an overt act warranting a
reasonable inference of criminal activity. He did not try to avoid the road block
established. He came to a full stop when so required to stop. The two key
elements of resistance and serious disobedience punished under Art. 151 of the
RPC are: (1) That a person in authority or his agent is engaged in the
performance of official duty or gives a lawful order to the offender; and (2) That
the offender resists or seriously disobeys such person or his agent. 29
There can be no quibble that P/Insp. Aguilar and his apprehending team are
persons in authority or agents of a person in authority manning a legal
checkpoint. But surely petitioner’s act of exercising one’s right against
unreasonable searches30 to be conducted in the middle of the night cannot, in
context, be equated to disobedience let alone resisting a lawful order in
contemplation of Art. 151 of the RPC. As has often been said, albeit expressed
differently and under dissimilar circumstances, the vitality of democracy lies
not in the rights it guarantees, but in the courage of the people to assert and use
them whenever they are ignored or worse infringed. 31 Moreover, there is, to
stress, nothing in RA 4136 that authorized the checkpoint-manning policemen
to order petitioner and his companions to get out of the vehicle for a vehicle and
body search. And it bears to emphasize that there was no reasonable suspicion
of the occurrence of a crime that would allow what jurisprudence refers to as a
"stop and frisk" action. As SPO4 Bodino no less testified, the only reason why
they asked petitioner to get out of the vehicle was not because he has
committed a crime, but because of their intention toinvite him to Station 9 so he
could rest before he resumes driving. But instead of a tactful invitation, the
apprehending officers, in an act indicative of overstepping of their duties,
dragged the petitioner out of the vehicle and, in the process of subduing him,
pointed a gun and punched him on the face. None of the police officers, to note,
categorically denied the petitioner’s allegation aboutbeing physically hurt
before being brought to the Ospital ng Maynila to be tested for intoxication.
What the policemen claimed was that it took the three (3) of them to subdue the
fifty-five year old petitioner. Both actions were done in excess of their authority
granted under RA 4136. They relied on the medical certificate issued by Dr.
Balucating attesting that petitioner showed no physical injuries. The medical
certificate was in fact challenged not only because the petitioner insisted at
every turn that he was not examined, but also because Dr. Balucating failed to
testify as to its content. Ms. Delos Santos, the medical record custodian ofthe
Ospital ng Maynila, testified, but only to attest that the hospital has a record of
the certificate. The trial court, in its decision, merely stated:
At the outset, the records of the case show that the same were not testified upon
by the doctor who issued it.1âwphi1 Instead, the Records Custodian of the
Ospital ng Maynila was presented by the Prosecution to testify on the said
documents.
However, although the doctor who examined the accused was unable to testify
to affirm the contents of the Medical Certificate he issued (re: that he was found
to have an alcoholic breath), this court finds that the observation of herein
private complainants as to the accused’s behavior and condition after the
incident was sufficient.
Under Section 50 of Rule 130 of the Revised Rules of evidence:
The opinion of a witness for which proper basis is given, may be received in The Court must underscore at this juncture that the petitioner, after the
evidence regarding x x x x unfortunate incident, lost no time incommencing the appropriate criminal
charges against the police officers and Dr. Balucating, whomhe accused of
The witness may also testify on his impressions of the emotion, behavior,
issuing Exh. "F" even without examining him. The element of immediacy in the
condition or appearance of a person Under Section 15 of the Revised Rules on
filing lends credence to petitioner’s profession of innocence, particularly of the
Summary Procedure, "at the trial, the affidavits submitted by the parties shall
charge of disobeying lawful order or resisting arrest. Certainly not to be
constitute the direct testimonies of the witnesses who executed the same." 32
overlooked is the fact that petitioner,in so filing his complaint, could not have
In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical possibly been inspired by improper motive, the police officers being complete
certificate Dr. Balucating issued on June 12, 2006 as to petitioner’s intoxicated strangers to him and vice versa. Withal, unless he had a legitimate grievance, it
state, as the former was not able to testify as to its contents, but on the is difficult to accept the notion that petitioner would expose himself to harm’s
testimony of SPO4Bodino, on the assumption that he and his fellow police way by filing a harassment criminal suit against policemen.
officers were acting in the regular performance of their duties. It cannot be
Conviction must come only after it survives the test of reason. 36 It is thus
emphasized enough that smelling of liquor/alcohol and be under the influence
required that every circumstance favoring one’s innocence be duly taken into
of liquor are differing concepts. Corollarily, it is difficult to determine with
account.37 Given the deviation of the police officers from the standard and usual
legally acceptable certainty whether a person is drunk in contemplation of Sec.
procedure in dealing with traffic violation by perceived drivers under the
56(f) of RA 4136 penalizing the act of driving under the influence of alcohol. The
influence of alcoholand executing an arrest, the blind reliance and simplistic
legal situation has of course changed with the approval in May 2013 of the Anti-
invocation by the trial court and the CA on the presumption of regularity in the
Drunk and Drugged Driving Act of 2013 (RA 10586) which also penalizes
conduct of police duty is clearly misplaced. As stressed in People v.
driving under the influence of alcohol (DUIA), 33 a term defined under its Sec.
Ambrosio,38 the presumption of regularity is merely just that, a presumption
3(e) as the "act of operating a motor vehicle while the driver’s blood alcohol
disputable by contrary proof and which when challenged by the evidence
concentration level has, after being subjected to a breath analyzer test reached
cannot be regarded as binding truth. And to be sure, this presumption alone
the level of intoxication as established jointly by the [DOH], the NAPOLCOM]
cannot preponderate over the presumption of innocence that prevails if not
and the [DOTC]. And under Sec. 3(g) of the IRR of RA 10586, a driver of a private
overcome by proof that obliterates all doubts as to the offender’s culpability. In
motor vehicle with gross vehicle weight not exceeding 4,500 kilograms who has
the present case, the absence of conclusive proof being under the influence of
BAC [blood alcohol concentration] of 0.05% or higher shall be conclusive proof
liquor while driving coupled with the forceful manner the police yanked
that said driver isdriving under the influence of alcohol. Viewed from the prism
petitioner out of his vehicle argues against or at least cast doubt on the finding
of RA 10586, petitioner cannot plausibly be convicted of driving under the
of guilt for drunken driving and resisting arrest.
influence of alcohol for this obvious reason: he had not been tested beyond
reasonable doubt, let alone conclusively, for reaching during the period material In case of doubt as to the moral certainty of culpability, the balance tips in favor
the threshold level of intoxication set under the law for DUIA, i.e., a BAC of of innocence or at least infavor of the milderform of criminal liability. This is as
0.05% or over. Under Art. 22 of the RPC, 34 penal laws shall be given retroactive it should be. For, it is basic, almost elementary, that the burden of proving the
insofar asthey are favorable to the accused. Section 19 of RA 10586 expressly guiltof an accused lies on the prosecution which must rely on the strength of its
modified Sec. 56(f) of RA 4136. Verily, even by force of Art. 22 ofthe RPC in evidence and noton the weakness of the defense.
relation to Sec. 3(e) of RA 10586 alone, petitioner could very well be acquitted
WHEREFORE, in light of all the foregoing, the appealed Decision and Resolution
for the charge of driving under the influence of alcohol, even if the supposed
of the Court of Appeals in CA-G.R. CR No. 33567 are hereby REVERSED and SET
inculpatory act occurred in 2006.
ASI:OE. Petitioner is hereby acquitted of the crimes charged in Criminal Case No.
Parenthetically, the Office of the City Prosecutor of Manila, per its 052527-CN and Criminal Case No. 052528-CN.
Resolution35 of November 21, 2006 found, on the strength of another physical
No pronouncement as to costs.
examination from the same Ospital ng Maynila conducted by Dr. Devega on the
petitioner on the same day,June 12, but later hour, probable cause for slight G.R. Nos. L-20246-48             April 24, 1967
physical injuries against P/Insp. Aguilar et al. That finding to be sure tends to
JORGE VYTIACO, petitioner,
indicate that the police indeed man handled the petitioner and belied, or at least
vs.
cancelled out, the purported Dr. Balucating’s finding as to petitioner’s true state.
THE HONORABLE COURT OF APPEALS, ET AL., respondents.
Tañada, Carreon & Tañada for petitioner.
Office of the Solicitor General for respondents.
ZALDIVAR, J.:
This is a petition for certiorari to review the decision of the Court of Appeals
finding the petitioner, Jorge Vytiaco, guilty of the crime of resistance and serious
disobedience in Case CA-G.R. No. 00528-R.
As a result of an incident which occurred in Aborlan, Palawan, on March 12,
1959, the herein petitioner, Jorge Vytiaco, was charged before the Court of First
Instance of Palawan in three criminal cases, to wit:
1. Criminal Case No. 2350, People of the Philippines vs. Jorge Vytiaco for
Grave Threats;
2. Criminal Case No. 2351, People of the Philippines vs. Jorge Vytiaco, for
Assault Upon in Agent of a Person in Authority; and .
3. Criminal Case No. 2356, People of the Philippines vs. Jorge Vytiaco, for
Disobedience to a Person in Authority.
These cases were jointly tried by the Court of First Instance of Palawan, and in
all the three cases herein petitioner was found guilty as charged, and sentenced
as follows:
(1) In Criminal Case No. 2350, for grave threats, petitioner was
sentenced to suffer two (2) months and one (1) day of arresto mayor, to
pay a fine of P100.00, and to pay the costs.
(2) In Criminal Case No. 2351, for assault upon an agent of a person in
authority, petitioner was sentenced to two (2) months and one (1) day
of arresto mayor as minimum, to two (2) years, four (4) months and
one (1) day of prision correccional as maximum, to pay a fine of
P400.00, and to pay the costs. The gun used by the accused was order
confiscated.1äwphï1.ñët
(3) In Criminal Case No. 2356, for disobedience to a person in authority,
petitioner was sentenced to one (1) month and one (1) day of arresto
mayor a fine of P100.00, and to pay the cost.
Regarding the fines imposed on the accused in the three cases,
subsidiary imprisonment is to be served in case of insolvency.
From the decision of the Court of First Instance of Palawan, the petitioner
appealed to the Court of Appeals, and the abovementioned three cases were
respectively docketed as CA-G.R. No. 00527-R, CA-G.R. No. 00528-R and CA-G.R.
No. 00529-R.
On July 17, 1962, Court of Appeals rendered a decision, the dispositive portion
of which reads as follows:
WHEREFORE, in Criminal Cases Nos. 2350 and 2356 for grave threat
and serious disobedience, respectively, the decision is reversed and
appellant acquitted, with costs de oficio. In Criminal Case No. 2351, he is
hereby held guilty, not of direct assault as held by the lower court but of
resistance and serious disobedience and is sentenced to two (2)
months and one (1) day of arresto mayor and to pay a fine of P200.00,
with subsidiary, imprisonment in case of insolvency, plus the costs.
In the Court of Appeals the three cases were docketed as CA-G.R. Nos. 00527-R,
00528-R and 00529-R. It was in CA-G.R. Nos. 00527-R and 00529-R where the
petitioner was acquitted. It is the decision of the Court of Appeals in CA-G.R. No.
00528-R that is now sought to be reviewed by this Court. Because the Court of
Appeals rendered only one decision for the three cases, those three cases are
now docketed in this Court as G.R. Nos, L-20246, L-20247 and L-20248.
Actually, it is Case G.R. No. L-20247 (which corresponds to CA-G.R. No. 00528-R)
that is the subject of this decision.
The petitioner contends that, based on the facts as found by the Court of
Appeals, the respondent Court of Appeals committed error in holding him guilty
of the crime of resistance and serious disobedience. The facts as found by the
Court of Appeals are as follows:1
The State's evidence tends to show that at about noon of March 12,
1959, in the private market of Manuel Zambales in Panacan, Aborlan,
Rosalino Jagmis was informed by his brother-in-law, Zambales, that the
previous day a certain Eduardo created trouble in the market,
overturning the tables. Jagmis got mad and started talking in a loud
voice. Appellant Jorge Vytiaco, who was passing by, heard Jagmis.
Appellant told him to calm down. Jagmis did not take the remark good-
naturedly. He told appellant to mind his own business. An exchange of
unfriendly words followed and the two in no time grabbed each other.
Esteban Gapilango, a PC enlisted man who was in plainclothes and on
patrol duty, saw the two adversaries and separated them. Appellant ran
away but told Jagmis to wait and he would get his gun. On the way,
appellant met his brother-in-law, Ramon Ramos, carrying a .22 caliber
rifle and a .38 caliber pistol. Someone apparently had relayed the tiff to
appellant's house. When Gapilango saw Ramos handing the pistol to
appellant, he approached to demand the surrender of the firearms. He,
however, failed to get the weapons because Ramos ran away with the
rifle and appellant held him by the waist and tried to snatch his service
pistol in his back pocket. He tried to prevent appellant from gaining
possession of the pistol and while they were grappling, it went off.
Gapilango lost his balance and appellant succeeded in wresting the gun
from him. With a revolver in each hand, his own and that of Gapilango,
appellant ordered the former and Jagmis, who followed Gapilango, to
raise their hands and not to advance or he would shoot them. Gapilango
did as ordered but asked appellant to return to him his pistol,
identifying himself as a PC soldier. Appellant refused to give the gun
back and did not recognize Gapilango's authority. So Gapilango sent
somebody to call the PC detachment commander, Sgt. Pelucio Buñ ag. In
the meantime, one Jesus Lepasana arrived and Gapilango also
requested him to help get his gun back from appellant who already
went home. While Lepasana was talking to appellant, Sgt. Buñ ag came.
He asked appellant for Gapilango's pistol and promised that he would
try to amicably settle the case. Appellant, who was standing outside his
house, again declined to yield the gun and instead went inside and told
the soldiers to get it if they wanted it. Later in the afternoon, Capt.
Pastor Escano, PC assistant provincial commander to whom Sgt. Buñ ag
reported the incident went to appellant's house and talked to him. The
revolver was returned to Capt. Escano by the vice mayor of Aborlan to
whom appellant surrendered it earlier.
Appellant offers this story: On the day in question, he went to Zambales'
market to see a Mr. Murillo to have him sign some papers. While
conversing with Murillo, appellant heard Jagmis angrily talking aloud.
Appellant, in a manner of greeting Jagmis who was his friend, told him
to cool off as the weather was already hot. Jagmis resented the remark
and collared appellant. Surprised by Jagmis' reaction, appellant tried to
free himself and protested that he had done Jagmis no wrong and that
they were friends. A companion of appellant and another man, who
turned out to be Gapilango, intervened and Jagmis released appellant.
When appellant asked Jagmis why he collared him, he (appellant)
having merely intended his remark as a greeting to a friend, Jagmis
again grabbed him and said that appellant was a rich man and had no
business interfering. Appellant again remonstrated and told Jagmis not
to treat him that way because they were friends. Jagmis' brother-in-law,
Zambales, intervened and separated the two. Already peeved and
embarrassed, appellant prepared to defend himself if Jagmis would
charge again. But as appellant happened to look towards the road, he
saw his brother-in-law carrying a rifle and a pistol. So he ran out and
shouted at him to go home. He was followed by Gapilango and Jagmis.
Jagmis told Gapilango to get the guns. Gapilango drew his pistol and
demanded the surrender of the firearms. Appellant sensing Gapilango
to be close behind suddenly wheeled around and seeing the latter's gun
aimed it him, grabbed it. In the ensuing struggle for its possession, it
fired. Finally, appellant was able to wrest it from Gapilango and with his
own revolver which he got from his brother-in-law, appellant pointed
them at Gapilango and Jagmis and warned them, while retreating, not to
go near him or he would shoot. Mrs. Zambales at this stage approached
appellant and they went home together. A little later after he had
hidden the guns and while he was standing outside his house,
Gapilango and Sgt. Buñ ag came. Sgt. Buñ ag, without asking any
question, collared him and hereby demanded for Gapilango's revolver.
Gapilango also held him by the shirt. Appellant asked Sgt. Buñ ag that
they clear matters first. When he was released, appellant went inside
his house and told the soldiers to come inside if they wanted to get the
pistol. But the soldiers left instead. Appellant then delivered
Gapilango's revolver to the vice mayor.
It is now urged that appellant's conviction for assault upon an agent of
a person in authority, i.e., upon Esteban Gapilango, a constabulary
soldier, was an error, the prosecution having failed utterly to show that
appellant knew that Gapilango was a soldier or an agent of a person in
authority when he disarmed him, which knowledge is essential for
conviction. (U.S. vs. Alvear, 35 Phil. 625; People vs. Rellin, 37 Phil.
1038.) We find the contention meritorious. Indeed, nowhere in the
testimony of any of the prosecution witnesses could be found that
appellant knew or ought to have known at the time he seized
Gapilango's gun that the latter was a peace officer. Gapilango revealed
his identity to appellant only after the latter had dispossessed him of
his gun and he was asking it back. It is contended by the prosecution,
nonetheless, that appellant's act in pointing the revolver at Gapilango
even after he was informed that he (Gapilango) was a peace officer
constitutes direct assault. The whole trouble started when appellant
was unjustifiably roughed up by Jagmis. When appellant ran away, he
was followed by Gapilango and Jagmis. The fact that Gapilango had his
gun in hand was perhaps not without reason considering that
appellant's brother-in-law appeared in the scene carrying firearms.
Appellant was able to wrest Gapilango's pistol. While retreating, he
warned Gapilango, together with Jagmis, not to advance or he would
shoot. At this particular moment when appellant could understandably
be under the apprehension that his pursuers, one of whom he still did
not know to be a constabulary soldier, were still after him, his act of
pointing the guns at them with warning not to come forward is not
properly an act of intimidation but rather of self-protection; appellant
thereby hoped to discourage them from committing any rash action or
violence against his person. Gapilango asked for the return of his gun,
identifying himself. Appellant did not give the gun back. The evidence
does not show whether or not, after knowing of Gapilango's identity,
appellant continued to point the gun at him. There is no question,
however, that he thereafter went home. Under the circumstance, it
cannot be said with certainty that there was on the part of appellant a
palpable intent or determination to defy a law officer and therefore his
failure to heed Gapilango's order to return the revolver constitutes
merely resistance and serious disobedience. (See U.S. vs. Tabiana and
Canillas, 37 Phil. 515; People vs. Lapitan, 58 Phil. 774; People vs. Reyes,
40 O.G. [118] No. 15, 24.) .
As above shown, appellant also pointed a revolver at Rosalino Jagmis be guilty of disobedience in just declining to return the gun without
and threatened to shoot him if he advanced. The trial court considered using force or violence.
this as constituting grave threat. Appellant claims that when he saw his
We find merit in the contention of petitioner. We gather, from a reading of the
brother-in-law carrying firearms, he ran towards him and told him to
decision of the Court of Appeals, that the petitioner was acquitted of the charge
go home. The prosecution, on the other hand, asserts that when he ran
of grave threats against the person of Rosalino Jagmis upon the ground that
away he told Jagmis to wait and he would get his gun. That appellant
when he pointed a gun at Jagmis his act did not constitute an intimidation,
said this seems doubtful in the light of Jagmis' own statement that when
which is an essential element in the crime of grave threats, it was simply an act
appellant ran away, he did not follow the latter anymore because he
of self-defense to prevent Jagmis and Esteban Gapilango from getting nearer to
thought that they were pacified already. Had appellant really told
him while he (petitioner) was it the same time retreating. The Court of Appeals
Jagmis that he would get his gun, the latter would not have the
said: "Appellant was able to wrest Gapilango's pistol. While retreating, he
impression that the incident was already closed. The picture as we see
warned Gapilango, together with Jagmis, not to advance or he would shoot. At
it seems to be that when Jagmis saw appellant's brother-in-law carrying
this particular moment when appellant could understandably be under the
guns, Jagmis, with Gapilango, went after appellant to prevent him from
apprehension that his pursuers, one of whom he still did not know to be a
getting hold of the weapons. Appellant, who had just been subjected to
constabulary soldier, were still after him, his act of pointing the guns at them
unwarranted violence by Jagmis, on his part, thought that he would be
with warning not to come forward is not properly an act of intimidation but
attacked again. Thus, it is not farfetched, as we have observed above,
rather of self-protection; appellant thereby hoped to discourage them from
that the purpose of appellant in pointing the gun at Jagmis was to
committing any rush action or violence against his person." The Court of
protect himself from what he thought was an impending aggression.
Appeals further said: "Appellant, who had just been subjected to unwarranted
This is evident from appellant's warning to Jagmis not to come near him
violence by Jagmis, on his part, thought that he would be attacked again. Thus, it
while at the same time retreating. The essence of threat is intimidation.
is not far-fetched, as we have observed above, that the purpose of the appellant
Appellant's act, in this particular case, cannot be considered an act of
in pointing the gun at Jagmis was to protect himself from what he thought was
intimidation.
an impending aggression. This is evident from appellant's warning to Jagmis not
Appellant was also held guilty of grave disobedience in refusing to to come near him while at the same time retreating. The essence of threat is
return Gapilango's pistol to Sgt. Buñ ag despite the latter's order intimidation. Appellant's act, in this, particular case, cannot be considered an act
therefor. The prosecution would like it to appear that Sgt. Buñ ag did of intimidation."
nothing but demand from appellant the gun and that appellant, instead
The Court of Appeals found that the petitioner did not know Gapilango was a
of obeying this lawful order, defied and challenged him. The defense, on
soldier when he disarmed Gapilango. This is what the Court of Appeals said:
the other hand, would like us to believe that Sgt. Buñ ag employed
"Indeed, nowhere in the testimony of any of the prosecution witnesses can it be
unnecessary violence in the performance of his duty and therefore he
found that appellant knew or ought to have known at the time he seized
exceeded the limit of his authority and ceased to be a peace officer from
Gapilango's gun that the latter was a peace officer. Gapilango revealed his
that moment and appellant was justified in disobeying him, nay even in
identity to appellant only after the latter had disposed him of his gun and he
repelling the aggression. (People vs. Dumo, 40 O.G. [58], No. 9, 58).
was asking it back." The petitioner, at that particular moment, had two guns,
There is reason to believe the claim of appellant that Sgt. Buñ ag used
one in each hand — his own pistol and the pistol that he had wrested from
unnecessary force in demanding the return of the revolver. Appellant
Gapilango. The Court of Appeals considered the act of the petitioner of pointing
declared that Sgt. Buñ ag, upon arriving at his house, collared him and
the guns at Jagmis and Gapilango as an act of self-defense. That is why the Court
shook him violently and in a harsh tone said, 'will you give me the pistol
of Appeals did not find the petitioner guilty of grave threats against the person
or not?' In his testimony, Sgt. Buñ ag stated that when he arrived, he
of Jagmis, and of assault against Gapilango as an agent of a person in authority.
approached appellant, touching his collar and tapping his shoulder, and
But, while the Court of Appeals had declared that under those circumstances the
asked for Gapilango's gun. He also stated that 'when I was holding his
petitioner had not committed the crime of assault against an agent of a person
collar', appellant uttered angry words. In asking for the pistol, Sgt.
in authority he had, however, committed the crime of resistance and serious
Buñ ag did not have to 'touch' or 'hold' appellant's collar. If by using
disobedience against the agent of a person in authority. The reason of the Court
adequate means to repel the unlawful aggression of Sgt. Buiñ ag,
of Appeals in finding that the petitioner had committed the crime of resistance
appellant would be merely acting in self-defense and therefore free
and serious disobedience is because he did not return the gun of Gapilango after
from any criminal liability (People vs. Dumo, supra), then he could not
Gapilango had identified himself as a constabulary soldier. In this connection,
this is what the Court of Appeals said: "At this particular moment when
appellant could understandably be under the apprehension that his pursuers,
one of whom he still did not know to be a constabulary soldier, were still after
him, his act of pointing the gun at them with warning not to come forward is not
properly an act of intimidation but rather of self-protection; appellant thereby
hoped to discourage them from committing any rush action or violence against
his person. Gapilango asked for the return of his gun, identifying himself.
Appellant did not give the gun back. The evidence does not show whether or
not, after knowing Gapilango's identity, appellant continued to point the gun at
him. There is no question, however, that he thereafter went home. Under the
circumstance, it cannot be said with certainty that there was on the part of
appellant a palpable intent or determination to defy a law officer and therefore
his failure to heed Gapilango's order to return the revolver constitutes merely
resistance and serious disobedience."
It is urged by the petitioner that there is no positive finding by the Court of
Appeals that in failing to obey Gapilango's demand for the return of his gun
petitioner intended to resist or seriously disobey said Gapilango in his capacity
as an agent of a person in authority engaged in the performance of his official
duties. The petitioner maintains that the particular act for which the petitioner
was held guilty by the Court of Appeals — that is, his failure to return the gun —
was but one of a series of acts done in self-defense and/or under a mistake of
fact, one act following the other closely in point of time, all arising from the
same incident and each one performed under the same impulse. The petitioner
points out that Gapilango's demand for the return of the gun and petitioner's
refusal to deliver the same happened immediately after the struggle for the gun
and the warning made by petitioner to Gapilango and Jagmis not to advance any
farther or he would shoot, and that was at a time when, as the Court of Appeals
had found, the petitioner was understandably under the apprehension that his
pursuers were still after him.
We find merit in the stand of the petitioner. Let it be noted that, as the Court of
Appeals itself had found, the petitioner did not know that Gapilango was a
constabulary soldier at the time when he grabbed Gapilango's gun and at the
time when he started pointing the guns at both Gapilango and Jagmis. The Court
of Appeals had found this act of petitioner in pointing the guns at both
Gapilango and Jagmis as an act of self-protection. As the petitioner was pointing
the guns at Gapilango and Jagmis he was retreating and at the same time
warning them not to approach. Under that circumstance We consider that the
refusal of the petitioner to return the gun to Gapilango was but one of the series
of acts on his part to protect himself. Under that circumstance it cannot
reasonably be said that he meant to defy, or resist, or disobey an agent of a
person in authority who was in the performance of his official duties. What
assurance had the petitioner at that precise moment, immediately after he had a
struggle with Gapilango for the possession of the latter's gun and while he was
pointing that gun to Gapilango and Jagmis, that Gapilango was really a peace
officer? The evidence shows that Gapilango was in civilian clothes, he did not
exhibit any badge — he simply identified himself verbally after the petitioner
had wrested his gun from him. The refusal of petitioner to return Gapilango's
gun was but a continuation of his efforts to defend himself from whatever harm
that could come from both Jagmis and Gapilango. Under the circumstances, the
petitioner had reason to believe that once he had returned the gun to Gapilango,
Gapilango would use that gun against him. His refusal to return the gun was
what any reasonable person would have done under the situation that the
petitioner found himself.
We agree with the petitioner that in the decision of the Court of Appeals there is
no positive finding that the petitioner intended to resist or seriously disobey an
agent of a person in authority while engaged in the performance of official
duties. Likewise, there is no positive finding that when the petitioner refused to
return Gapilango's gun he believed that Gapilango was a constabulary soldier,
and that the petitioner knew that Gapilango was at the time performing his
official duties as a peace officer. We accept the hypothesis offered by counsel for
the petitioner that the petitioner had reason to suspect that Gapilango was
helping Jagmis, because right at the start of the incident between Jagmis and the
petitioner at the store of Ramon Zambales, Gapilango did not identify himself as
a peace officer and both of them pursued the petitioner from the store.
Before a person can be held guilty of the crime of resistance or disobedience to a
person in authority or the agent of such person it must be shown beyond
reasonable doubt that the accused knew that the person he disobeyed or
resisted is a person in authority or the agent of such person who is actually
engaged in the performance of his official duties. What is punished as an act of
resistance or serious disobedience under the Revised Penal Code is not the
resistance or disobedience against a person in authority or an agent of such
person in his capacity as a private individual but in his official capacity as an
authority under the law, or as agent of the law, while engaged in the
performance of his official duties. The facts as narrated in the decision of the
Court of Appeals engender in the mind a serious doubt as to whether or not the
petitioner had the intention to resist and disobey a peace officer who was in the
performance of his official duty. That doubt must be resolved in favor of the
petitioner. Consequently, We hold that the Court of Appeals erred when in case
CA-G.R. No. 00528-R, it found the petitioner guilty of the crime of resistance and
serious disobedience as defined in Article 161 of the Revised Penal Code.
Wherefore, the decision of the Court of Appeals under review, insofar as it
relates to case CA-G.R. No. 00528-R which is now before this Court on appeal in
case G.R. No. L-20247, should be, as it is hereby reversed, and the petitioner is
thereby acquitted of the crime of resistance and serious disobedience of which
he was found guilty by the Court of Appeals, with costs de oficio. It is so ordered.
G.R. No. L-31839 June 30, 1980
EDMUNDO S. ALBERTO, Provincial Fiscal and BONIFACIO C. INTIA 1st Asst.
Provincial Fiscal, both of Camarines Sur, Petitioners, vs. HON. RAFAEL DE LA
CRUZ, in his capacity as Judge of the CFI of Camarines Sur and ELIGIO
ORBITA, Respondents.chanrobles virtual law library
CONCEPCION, J.:
Petition for certiorari, with a prayer for the issuance of a writ of preliminay
injunction, to annul and set aside the order of the respondent Judge, dated
January 26, 1970, directing the petitioners, Provincial Fiscal and Assitant
Provincial Fiscal of Camarines Sur, to amend the information filed in Criminal
Case No. 9414 of the Court of First Instance of CamarinesSur, entitled: "The
People of the Philippines, plaintiff, versus Eligio Orbita, accused," so as to
include, as defendants, Governor Armando Cledera and Jose Esmeralda,
assistant provincial warden of Camarines Sur; as well as the order dated
February 18, 1970, denying the motion for the reconsideration of the said
order.chanroblesvirtualawlibrarychanrobles virtual law library
In Criminal Case No. 9414 of the Court of First Instance of Camarines Sur, Eligio
Orbita, a Provincial guard, is prosecuted for the crime of Infedelity in the
Custody of Prisoner, defined and punished under Article 224 of the Revised
Penal Code, committed, as follows:chanrobles virtual law library
That on or about the 12th day of September. 1968, in the barrio of Taculod,
municipality of Canaman, province of Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, being then a member of
the Provincial Guard of Camarines Sur and specially charged with the duty of
keeping under custody and vigilance detention prisoner Pablo Denaque, did
then and there with great carelessness and unjustifiable negligence leave the
latter unguarded while in said barrio, thereby giving him the opportunity to run
away and escape, as in fact said detention prisoner Pablo Denaque did run away
and escape from the custody of the said accused. 1 chanrobles virtual law library
In the course of the trial thereof, or more particularly during the cross-
examination of prosecution witness Jose Esmeralda, assistant provincial warden
of Camarines Sur, the defense brought forht and confronted the witness with a
note, marked as exhibit, purportedly written by Gov. Armando Cledera, asking
Jose Esmeralda to send five men to work in the construction of a fence at his
house at Taculod, Canaman, Camarines Sur, then leased by the province and
used as an official guest house. Jose Esmeralda, declared, however, that he could
not remember who ahnded the note for him; that he was not sure as to
genuineness of the signature appearing therein and that he was not preszent
when the note was made and signed by Gov. Cledera. 2Beleiving that the escape
of Pablo Denaque was made possible by the note of Gov. Cledera to Jose
Esmeralda and that Cledera and Esmeralda are equally guilty of the offense for
which tha accused Eligio Orbita had been charged, the defense cousel filed a
motion in court seeking the amendment of the information so as to include Gov.
cledera and Jose Esmeralda as defendants therein. 3chanrobles virtual law
library
Acting upon said motion, as well as the opposition of the prosecution
officers 4 and finding that "the court cannot grant the motion or order the
inclusion of Gov. Cledera and Lt. Esmeralda at this stage unless an investigation
is made," the respondent Judge directed the Fiscals office, within 15 days from
date, to cause the further investigation of the case, taking into consideration the
provisions of Article 156 in relation to Articles 223 and 224 of the Revised Penal
Code in order to determine once and for all whether the Governor as jailer of
the Province and his assistant have any criminatory participation in the
circumstances of Pablo Denaque's escape from judicial custody. 5 chanrobles
virtual law library
In compliance with said order, the Fiscal set the reinvestigation of the case for
December 19, 1969. Summonses were issued to Gov. Cledera Jose Esmeralda,
Lorenzo Padua, the provincial warden, and the accused Eligio Orbita to be
present thereat. 6 Dr. went thereat But, on the date set for the reinvestigation of
the case, only Gov. Cledera Jose Esmeralda and Lorenzo Padua appeared. The
accused Eligio Orbita did not appear. Neither was the note (Exhibit 2) produced.
Since no additional evidence was presented, the Fiscal manifested in Court on
January 2, 1970 that "after conducting a reinvestigation of the case and after a
thorough and intelligent analysis of the facts and law involved, no prima facie
case against Governor Cledera and Jose Esmeralda exist, hence, they cannot be
charged. 7 chanrobles virtual law library
On January 19, 1970, the accused Eligio Orbita filed a "Motion for
Reconsideration" praying "that the Order of this Honorable Court dated
December 11, 1969 be, in that instead of ordering the Fiscal to reinvestigate this
case, on the basis of the evidence already adduce during the trial of this case, he
be ordered to amend the information on to include Cledera and Esmeralda it
appearing the on record that their inclusion is warranted. 8chanrobles virtual
law library
On January 26, 1970, the respondent Court issued the order complained of, the
dispositive portion of which reads, as follows: chanrobles virtual law library
WHEREFORE, premises considered, in the light of the facts brought about by the
prosecuting fiscal let the charges be so amended by including in the information
the author or writer of Exhibit 2 and the person or persons who carried out the
said orders considering the provisions of Article 156 in relation to Articles 223
and 224 of the Penal Code. 9 chanrobles virtual law library
The Fiscal filed a motion for the reconsideration of said order, 10 but the motion
was denied on February 18, 1970. 11 Hence, the instant
recourse.chanroblesvirtualawlibrary chanrobles virtual law library
From the facts of the case, We are convinced that the respondent Judge
committed an error in ordering the fiscal to amend the information so as to
include Armando Cledera and Jose Esmeralda as defendants in Criminal Case
No. 9414 of the Court of First Instance of Camarines Sur. It is the rule that a
fiscal by the nature of his office, is under no compulsion to file a particular
criminal information where he is not convinced that he has evidence to support
the allegations thereof. 12 Although this power and prerogative of the Fiscal, to
determine whether or not the evidence at hand is sufficient to form a
reasonable belief that a person committed an offense, is not absolute and
subject to judicial review, 13 it would be embarrassing for the prosecuting
attorney to be compelled to prosecute a case when he is in no position to do so
because in his opinion, he does not have the necessary evidence to secure a
conviction, or he is not convinced of the merits of the case. The better procedure
would be to appeal the Fiscal's decision to the Ministry of Justice and/or ask for
a special prosecutor.chanroblesvirtualawlibrary chanrobles virtual law library
Besides, it cannot be said that the Fiscal had capriciously and whimsically
refused to prosecute Cledera and
Esmeralda.chanroblesvirtualawlibrary chanrobles virtual law library
In his order directing the Fiscal's office to conduct a further reinvestigation of
the case, the respondent Judge candidly ad. muted that without a
reinvestigation of the case, he cannot determine once and for all whether or not
to include Gov. Cledera and Jose Esmeralda in the information. Pursuant thereto,
a reinvestigation was conducted by the fiscals office. Summonses were issued.
But, no additional fact was elicited since Eligio Orbita did not appear thereat.
Neither was the note (Exh. 2) presented and produced. Gov. Cledera could not
admit nor deny the genuineness of the signature appearing in the note since it
was not on hand. Such being the case, the prosecuting officers had reason to
refuse to amend the information filed by them after a previous pre examination
and investigation.chanroblesvirtualawlibrary chanrobles virtual law library
Moreover, there is no sufficient evidence in the record to show a prima facie
case against Gov. Cledera and Jose Esmeralda. The order to amend the
information is based upon the following facts: chanrobles virtual law library
1. Pablo Denaque, a detention prisoner for homicide, while working at the Guest
House of Governor Cledera on September 12, 1968; chanrobles virtual law
library
2. The Governor's evidence at that time is being rented by the province and its
maintenance and upkeep is shouldered by the province of Camarines
Sur, chanrobles virtual law library
3. That neither Governor Cledera nor Lt. Jose Esmeralda was charged or
entrusted with the duty of conveying and the detainee from the jail to the
residence of the governor.chanroblesvirtualawlibrary chanrobles virtual law
library
4. That the de worked at the Governor Is by virtue of an order of the Governor
(Exhibit 2) which was tsn by Lt. Esmeralda; and chanrobles virtual law library
5. That it was the accused Orbita who himself who handpicked the group of
Prisoners to work at the Governor's on 12, 1968. 14
Article 156 of the Revised Penal Code provides: chanrobles virtual law library
Art. 156. Delivering prisoners from jails. - The city Of arrests mayor in its
maximum period to prison correccional in its minimum Period shall be imposed
upon any person who shall remove from any jail or penal establishment t any
person confined therein or shall help the escape of such person, by means of
violence, intimidation, or bribery.chanroblesvirtualawlibrary chanrobles virtual
law library
If other means are used the penalty of arresto mayor shall be imposed. If the
escape of the prisoner shall take place outside of said establishments by taking
the guards by surprise, the same penalties shall be imposed in their minimum
period.
The offenders may be committed in two ways: (1) by removing a person
confined in any jail or penal establishment; and (2) by helping such a person to
escape. To remove means to take away a person from the place of his
confinement, with or without the active compensation of the person released To
help in the escape of a Person confined in any jail or penal institution means to
furnished that person with the material means such as a file, ladder, rope, etc.
which greatly facilitate his escape. 15 The offenders under this article is usually
committed by an outsider who removes from jail any person therein confined or
helps him escape. If the offender is a public officer who has custody or charge of
the prisoner, he is liable for infidelity in the custody of prisoner defined and
penalty under Article 223 of the Revised Penal Code. Since Gov. Cledera as
governor, is the jailer of the province, 16and Jose Esmeralda is the assistant
provincial warden, they cannot be prosecuted for the escape Of Pablo Denaque
under Article 156 of the Revised Penal Code. There is likewise no sufficient
evidence to warrant their prosecution under Article 223 of the Revised Penal
Code, which reads, as follows: chanrobles virtual law library
ART. 223. Conniving with or consenting to evasion. - Any Public officer who shall
consent to the escape of a prisoner in his custody or charge, shall be
punished chanrobles virtual law library
1. By prision correccional in its medium and maximum periods and temporary
disqualification in its minimum period to perpetual special disqualification, if
the fugitive shall have been sentenced by final judgment to any
penalty.chanroblesvirtualawlibrary chanrobles virtual law library
2. By prision correccional in its minimum period and temporary special
disqualification, in case the fugitive shall not have been finally convicted but
only held as a detention prisoner for any crime or violation of law or municipal
ordinance.
In order to be guilty under the aforequoted provisions of the Penal Code, it is
necessary that the public officer had consented to, or connived in, the escape of
the prisoner under his custody or charge. Connivance in the escape of a prisoner
on the part of the person in charge is an essential condition in the commission
of the crime of faithlessness in the custody of the prisoner. If the public officer
charged with the duty of guarding him does not connive with the fugitive, then
he has not violated the law and is not guilty of the crime. 17 For sure no
connivance in the escape of Pablo Denaque from the custody of the accused
Eligio Orbita can be deduced from the note of Gov. Cledera to Jose Esmeralda
asking for five men to work in the guest house, it appearing that the notes does
not mention the names of the prisoners to be brought to the guest house; and
that it was the accused Eligio Orbita who picked the men to compose the work
party.chanroblesvirtualawlibrary chanrobles virtual law library
Neither is there evidence to warrant the prosecution of Cledera and Esmeralda
under Article 224 of the Revised Penal Code. This article punishes the public
officer in whose custody or charge a prisoner has escaped by reason of his
negligence resulting in evasion is definite amounting to deliberate non-
performance of duty. 18 In the constant case, the respondent Judge
said:chanrobles virtual law library
We cannot, for the present be reconciled with the Idea that the escape. of
Denaque was facilitated by the Governor's or . his assistants negligence.
According to law, if there is any negligence committed it must be the officer who
is charged with the custody and guarding of the ... 19
We find no reason to set aside such
findings.chanroblesvirtualawlibrary chanrobles virtual law library
WHEREFORE, the orders issued on January 26, and February 18, 1970 in
Criminal Case No. 9414 of the Court of First Instance of Camarines Sur,
entitled: "The People of the Philippines, plaintiff, versus Eligio Orbita, accused are
hereby annulled and set aside. The respondent Judge or any other judge acting
in his stead is directed to proceed with the trial of the case. Without
costs.chanroblesvirtualawlibrary chanrobles virtual law library
SO ORDERED.
G.R. No. 141718            January 21, 2005
BENJAMIN PANGAN y RIVERA, petitioner,
vs.
HON. LOURDES F. GATBALITE, as the Presiding Judge, Regional Trial Court
of Angeles City, Branch 56, and COL. JAMES D. LABORDO, as the City Jail
Warden of Angeles City, respondents.
DECISION
AZCUNA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure, assailing the decision of the Regional Trial Court of
Angeles City, Branch 56, rendered on January 31, 2000. 1
The facts of this case are undisputed. The petitioner was indicted for simple
seduction in Criminal Case No. 85-816, at the Municipal Trial Court of Angeles
City, Branch 3.
During the trial of the case, Atty. Eduardo Pineda, counsel for petitioner,
submitted the case for decision without offering any evidence, due to the
petitioner’s constant absence at hearings.
On September 16, 1987, the petitioner was convicted of the offense charged and
was sentenced to serve a penalty of two months and one day of arresto mayor.
On appeal, the Regional Trial Court, on October 24, 1988, affirmed in toto the
decision of the Municipal Trial Court.
On August 9, 1991, the case was called for promulgation of the decision in the
court of origin. Despite due notice, counsel for the petitioner did not appear.
Notice to petitioner was returned unserved with the notation that he no longer
resided at the given address. As a consequence, he also failed to appear at the
scheduled promulgation. The court of origin issued an order directing the
recording of the decision in the criminal docket of the court and an order of
arrest against the petitioner.2
Pursuant to the order of arrest, on January 20, 2000, the petitioner was
apprehended and detained at the Mabalacat Detention Cell. On January 24,
2000, petitioner filed a Petition for a Writ of Habeas Corpus at the Regional Trial
Court of Angeles City. He impleaded as respondent the Acting Chief of Police of
Mabalacat, Pampanga.3 Petitioner contended that his arrest was illegal and
unjustified on the grounds that:
(a) the straight penalty of two months and one day of arresto mayor
prescribes in five years under No. 3, Article 93 [of the] Revised Penal
Code, and
(b) having been able to continuously evade service of sentence for
almost nine years, his criminal liability has long been totally
extinguished under No. 6, Article 89 [of the] Revised Penal Code. 4
After his transfer to the City Jail of Angeles City on January 25, 2000, petitioner
filed an Amended Petition with the Regional Trial Court, impleading herein
respondent Col. James D. Labordo, the Jail Warden of Angeles City, as
respondent.5
In response, the Jail Warden alleged that petitioner’s detention was pursuant to
the order of commitment (mittimus), issued by Marlon P. Roque, Clerk of Court
III of the Municipal Trial Court of Angeles City, Branch 3, dated January 25,
2000.6
On January 31, 2000, respondent Judge rendered the decision, which is the
subject of this present appeal, which pronounced:
The Court cannot subscribe to the contention of the petitioner that the penalty
imposed on him in the decision adverted to above had already prescribed,
hence, his detention is illegal for under Article 93 of the Revised Penal Code:
"The period of prescription of penalties shall commence to run from the date
when the culprit should evade the service of sentence, and it shall be
interrupted if the defendant should give himself up, be captured, should go to
some foreign country with which this Government has no extradition treaty, or
should commit another crime before the expiration of the period of
prescription.
The elements of prescription are:
1. That the penalty is imposed by final judgment;
2. That convict evaded the service of the sentence by escaping during
the term of his sentence;
3. That the convict who had escaped from prison has not given himself
up, or been captured, or gone to a foreign country with which we have
no extradition treaty, or committed another crime;
4. The penalty has prescribed, because of the lapse of time from the
date of the evasion of the service of the sentence by the convict.
In this case, the essential element of prescription which is the evasion of the
service of sentence is absent. Admittedly, the petitioner herein has not served
the penalty imposed on him in prison and that during the service of the
sentence, he escaped therefrom. Notably, at the trial of Crim. Case No. 85-816 in
the Municipal Trial Court, Branch III, Angeles City and on the date set for the
promulgation of the affirmed decision, the petitioner failed to appear and
remained at large.1a\^/phi1.net
"There was no evasion of the service of the sentence in this case, because such
evasion presupposes escaping during the service of the sentence consisting in
deprivation of liberty." (Infante vs. Warden, 48 O.G. No. 122) (92 Phil. 310).
Corollarily, the detention of the petitioner in Angeles City Jail in compliance
with the Order of Commitment (Exhibit E) is not illegal for –
"A commitment in due form, based on a final judgment, convicting and
sentencing the defendant in a criminal case, is conclusive evidence of the
legality of his detention, unless it appears that the court which pronounced the
judgment was without jurisdiction or exceeded it." (U.S. vs. Jayne, 24 Phil 90, 24
J.F. 94, Phil. Digest, Vol. 2, 1398).
WHEREFORE, for not being meritorious and well-founded, the petition for a
writ of habeas corpus is hereby denied.
SO ORDERED.
Angeles City, January 31, 2000.7
From the above quoted decision, petitioner filed the instant petition for review
on a question purely of law and raised the following issue:
HOW SHOULD THE PHRASE "SHALL COMMENCE TO RUN FROM THE DATE
WHEN THE CULPRIT SHOULD EVADE THE SERVICE OF SENTENCE" IN
ARTICLE 93 OF THE REVISED PENAL CODE ON THE COMPUTATION OF THE
PRESCRIPTION OF PENALTIES BE CONSTRUED? PUT A LITTLE DIFFERENTLY,
WHEN DOES THE PRESCRIPTIVE PERIOD OF PENALTIES BEGIN TO RUN?8
Petitioner claims that:
xxx the period for the computation of penalties under Article 93 of the Revised
Penal Code begins to run from the moment the judgment of conviction becomes
final and the convict successfully evades, eludes, and dodges arrest for him to
serve sentence.9
Petitioner supports his claim in the following manner:
The Decision subject of this appeal, which was based on the 1952 ruling
rendered in Infante vs. Warden, 48 O.G. No. 122, 92 Phil. 310, is, petitioner most
respectfully submits, not good case law. It imposes upon the convict a condition
not stated in the law. It is contrary to the spirit, nature or essence of
prescription of penalties, creates an ambiguity in the law and opens the law to
abuse by government.
THE INFANTE RULING IMPOSES A
CONDITION NOT STATED IN THE LAW.
It appears that the Infante ruling imposes that, as an essential element, the
convict must serve at least a few seconds, minutes, days, weeks or years of his
jail sentence and then escapes before the computation of prescription of
penalties begins to run. This, petitioner respectfully submits is not a condition
stated in Article 93, which states that, the prescription of penalties "shall
commence to run from the date when the culprit should evade the service of
sentence."
There is no dispute that the duty of government to compel the service of
sentence sets in when the judgment of conviction becomes final.
The dispute, however, is in the construction of the phrase "should evade the
service of sentence." When does the period of prescription of penalties begin to
run? The Infante ruling construes this to mean that the convict must escape
from jail "because such evasion presupposes escaping during the service of the
sentence consisting in deprivation of liberty."
Petitioner, with due respect, disagrees because if that were the intention of the
law, then the phrase "should evade the service of sentence" in Article 93 would
have read: "should escape during the service of the sentence consisting in
deprivation of liberty." The legislature could have very easily written Article 93
to read this way –
"The period of prescription of penalties shall commence to run from the date
when the culprit should escape during the service of the sentence
consisting in deprivation of liberty, and it shall be interrupted if the
defendant should give himself up, be captured, should go to some foreign
country with which this Government has no extradition treaty, or should
commit another crime before the expiration of the period of prescription."
But they did not.
The legislature wrote "should evade the service of sentence" to cover or include
convicts like him who, although convicted by final judgment, were never
arrested or apprehended by government for the service of their sentence. With
all the powers of government at its disposal, petitioner was able to successfully
evade service of his 2 months and 1 day jail sentence for at least nine (9) years,
from August 9, 1991 to January 20, 2000. This is approximately 3 years and 5
months longer than the 5-year prescriptive period of the penalty imposed on
him.
That, as the respondent RTC Judge noted, petitioner did not attend the trial at
the Municipal Trial Court and the promulgation of his judgment of conviction in
August 9, 1991 is of no moment. His bond for provisional release was surely
cancelled and an order of arrest was surely issued against petitioner. The
undisputed fact is that on August 9, 1991 the judgment of conviction was
promulgated in absentia and an order for petitioner’s arrest was issued by the
Municipal Trial Court of Angeles City, Branch III.
The duty of government, therefore, to arrest petitioner and compel him to serve
his sentence began on August 9, 1991. The 5-year prescriptive period of
his arresto mayor penalty also began to run on that day considering that no
relief was taken therefrom. Since petitioner never gave himself up [n]or was
[he], until January 20, 2000, ever captured, for the service of his sentence nor
did he flee to some foreign country with which [our] government has no
extradition treaty, that 5-year prescriptive period of his penalty ran
continuously from August 9, 1991 when his judgment of conviction was
promulgated in absentia and was never interrupted.
For reasons known only to it, however, government failed or neglected, for
almost nine (9) years, to arrest petitioner for the service of his arresto
mayor sentence [which] should not be taken against petitioner. He was able to
successfully evade service of his sentence for a period longer than the 5-year
prescriptive period of his penalty and, as such, is entitled to total extinction of
his criminal liability.
To say, as was said in Infante, that the prescriptive period of the penalty never
began to run in favor of petitioner because he never escaped from jail during the
service of his sentence imposes a condition not written in the law. It also
violates the basic principle that the criminal statutes are construed liberally in
favor of the accused and/or convict and is contrary to the spirit behind or
essence of statutes of limitations [and] prescription, in criminal cases. 10
The Regional Trial Court based its decision on the case of Infante v. Warden11 . In
said case, Infante, the petitioner, was convicted of murder and was sentenced to
seventeen years, four months and one day of reclusion temporal. After serving
fifteen years, seven months and eleven days, he was granted a conditional
pardon. The condition was that "he shall not again violate any of the penal laws
of the Philippines." Ten years after his release on conditional pardon, Infante
was found guilty by a Municipal Court for driving without a license. Infante was
immediately ordered rearrested for breach of the condition of his pardon. One
of the issues raised by Infante in his petition,
xxx was that the remitted penalty for which the petitioner had been
recommitted to jail – one year and 11 days – had prescribed. xxx 12
The Court disagreed and reasoned out thus:
The contention is not well taken. According to article 93 of the Revised Penal
Code the period of prescription of penalties commences to run from the date
when the culprit should evade the service of his sentence. It is evident from this
provision that evasion of the sentence is an essential element of prescription.
There has been no such evasion in this case. Even if there had been one and
prescription were to be applied, its basis would have to be the evasion of the
unserved sentence, and computation could not have started earlier than the
date of the order for the prisoner's rearrest.13
A perusal of the facts in Infante v. Warden reveals that it is not on all fours with
the present case. In Infante, the convict was on conditional pardon when he was
re-arrested. Hence, he had started serving sentence but the State released him.
In the present case, the convict evaded service of sentence from the start, and
was arrested eight years later.
The RTC decision, however, must stand, since it is in accord with applicable
decisions of this Court. The issue raised by petitioner is not novel. Article 93 of
the Revised Penal Code14 has been interpreted several times by the Court.
The case of Tanega v. Masakayan15 falls squarely within the issues of the present
case. In that case, petitioner Adelaida Tanega failed to appear on the day of the
execution of her sentence.1awphi1.nét On the same day, respondent judge
issued a warrant for her arrest. She was never arrested. More than a year later,
petitioner through counsel moved to quash the warrant of arrest, on the ground
that the penalty had prescribed. Petitioner claimed that she was convicted for a
light offense and since light offenses prescribe in one year, her penalty had
already prescribed. The Court disagreed, thus:
xxx The period of prescription of penalties — the succeeding Article 93 provides
— "shall commence to run from the date when the culprit should evade the
service of his sentence". What then is the concept of evasion of service of
sentence? Article 157 of the Revised Penal Code furnishes the ready answer.
Says Article 157:
"ART. 157. Evasion of service of sentence. — The penalty of prision
correccional in its medium and maximum periods shall be imposed upon any
convict who shall evade service of his sentence by escaping during the term of
his imprisonment by reason of final judgment. xxx"
Elements of evasion of service of sentence are: (1) the offender is a convict by
final judgment; (2) he "is serving his sentence which consists in deprivation of
liberty"; and (3) he evades service of sentence by escaping during the term of
his sentence. This must be so. For, by the express terms of the statute, a convict
evades "service of his sentence" by "escaping during the term of his
imprisonment by reason of final judgment." That escape should take place while
serving sentence, is emphasized by the provisions of the second sentence of
Article 157 which provides for a higher penalty if such "evasion or escape shall
have taken place by means of unlawful entry, by breaking doors, windows,
gates, walls, roofs, or floors, or by using picklocks, false keys, disguise, deceit,
violence or intimidation, or through connivance with other convicts or
employees of the penal institution, . . ." Indeed, evasion of sentence is but
another expression of the term "jail breaking."
xxx
We, therefore, rule that for prescription of penalty of imprisonment imposed by
final sentence to commence to run, the culprit should escape during the term of
such imprisonment.
Adverting to the facts, we have here the case of a convict who — sentenced to
imprisonment by final judgment — was thereafter never placed in confinement.
Prescription of penalty, then, does not run in her favor. 16
In Del Castillo v. Torrecampo 17 , the Court cited and reiterated Tanega.
Petitioner, Del Castillo, was charged for violation of Section 178 (nn) of the 1978
Election Code. The trial court found Del Castillo guilty beyond reasonable doubt
and sentenced him to suffer an indeterminate sentence of imprisonment of 1
year as minimum to 3 years as maximum. On appeal the Court of Appeals
affirmed the decision of the trial court in toto. During the execution of judgment
on October 14, 1987, petitioner was not present. The presiding Judge issued an
order of arrest and the confiscation of his bond. Petitioner was never
apprehended. Ten years later, petitioner filed a motion to quash the warrant of
arrest on the ground that the penalty imposed upon him had already prescribed.
The motion was denied by the trial court. Del Castillo, on a petition
for certiorari to the Court of Appeals, questioned the denial by the trial court.
The Court of Appeals dismissed the petition for lack of merit. Upon denial of his
Motion for Reconsideration, Del Castillo raised the matter to this Court. The
Court decided against Del Castillo and after quoting the ratio decidendi of the
Court of Appeals in full, it ratiocinated, thus:
The foregoing conclusion of the Court of Appeals is consistent with the ruling of
this Court in Tanega vs. Masakayan, et al., where we declared that, for
prescription of penalty imposed by final sentence to commence to run, the
culprit should escape during the term of such imprisonment.1a\^/phi1.net
The Court is unable to find and, in fact, does not perceive any compelling reason
to deviate from our earlier pronouncement clearly exemplified in the Tanega
case.
Article 93 of the Revised Penal Code provides when the prescription of penalties
shall commence to run. Under said provision, it shall commence to run from the
date the felon evades the service of his sentence. Pursuant to Article 157 of the
same Code, evasion of service of sentence can be committed only by those who
have been convicted by final judgment by escaping during the term of his
sentence.
As correctly pointed out by the Solicitor General, "escape" in legal parlance and
for purposes of Articles 93 and 157 of the RPC means unlawful departure of
prisoner from the limits of his custody. Clearly, one who has not been
committed to prison cannot be said to have escaped therefrom.
In the instant case, petitioner was never brought to prison. In fact, even before
the execution of the judgment for his conviction, he was already in hiding. Now
petitioner begs for the compassion of the Court because he has ceased to live a
life of peace and tranquility after he failed to appear in court for the execution of
his sentence. But it was petitioner who chose to become a fugitive. The Court
accords compassion only to those who are deserving. Petitioner's guilt was
proven beyond reasonable doubt but he refused to answer for the wrong he
committed. He is therefore not to be rewarded therefor.
The assailed decision of the Court of Appeals is based on settled jurisprudence
and applicable laws. It did not engage in judicial legislation but correctly
interpreted the pertinent laws. Because petitioner was never placed in
confinement, prescription never started to run in his favor. 18l^vvphi1.net
Consistent with the two cases cited above, this Court pronounces that the
prescription of penalties found in Article 93 of the Revised Penal Code, applies
only to those who are convicted by final judgment and are serving sentence
which consists in deprivation of liberty. The period for prescription of penalties
begins only when the convict evades service of sentence by escaping during the
term of his sentence. Since petitioner never suffered deprivation of liberty
before his arrest on January 20, 2000 and as a consequence never evaded
sentence by escaping during the term of his service, the period for prescription
never began.
Petitioner, however, has by this time fully served his sentence of two months
and one day of arresto mayor and should forthwith be released unless he is
being detained for another offense or charge.
WHEREFORE, the decision of the Regional Trial Court of Angeles City, Branch
56 is AFFIRMED, but petitioner is ordered released effective immediately for
having fully served his sentence unless he is detained for another offense or
charge.
No costs.
SO ORDERED.